Bijo Francis

Lakhichand Paswan, father of Bhikari Paswan, was not fortunate enough to see the murderers of his son tried for their acts. Lakhichand, a prime witness in the case in West Bengal, passed away on July 29, 2004, a day after the Special Bench of the Kolkota High Court ruled that the case against the perpetrators in the murder of Bhikari could proceed on the finding that "government permission is not required to prosecute Harman Preet Singh, now a deputy inspector general, as kidnapping was not among his official duties as a police officer." Thus, it has taken the Indian judiciary 10 years to decide a matter that any informed person would have resolved in a few minutes.

Bhikari, a jute mill worker, was taken away by Additional Superintendent of Police (ASP) Harman Preet Singh and three of his men in the early hours of Oct. 31, 1993 -reportedly to Telinipara police outpost where they tortured him to death. Bhikari was never seen again nor was his body ever found.
 
As far back as 1995, senior police investigators concluded that ASP Singh and his subordinates took Bhikari from his house that night in October. There was no question about the complicity of state agents. The questions that remained related only to what happened afterwards. However, the Indian judicial system responded to the urgent needs of the case by entangling it in technicalities - one hearing upon the next - before delivering it to the doorstep of the state's high court. It lay there for years through disinterest and the machinations of the perpetrators, who have since been promoted to positions of authority rather than being suspended and properly investigated.

A decade of waiting is sadly not much time in deciding a case in India - a legal tragedy that is equally applicable to civil and criminal trials. In the end, the litigants and victims often leave only a bundle of old documents and case number for the next generation to inherit. The legal process in India is always protracted where parties are made to run through a legal and bureaucratic gauntlet and spend boundless amounts of money to pursue their claims in court. There are numerous reasons for this delay that could, in fact, be eliminated by conscious efforts and earnest attempts. However, the effects of this exorbitant delay are far-reaching upon the victim, especially in criminal cases, often eliminating the justice quotient in the entire process.

In civil cases, one of the major reasons for delays is technical snags and the delaying tactics of lawyers. However, the hibernating attitude of judges once the case has been finally heard, and thus resulting in the reservation of the open pronouncement of the judgment for years and months, is also another contributing factor. In criminal cases, the delay begins from the very inability and often refusal of the investigating agency to submit a charge sheet in time after the completion of the investigation.

Even if the charge sheet is submitted, the prosecutor's office also plays a role in delaying the process of the court. Often many courts do not have enough prosecutors to represent the case when the cases are heard. For example, in a local magistrate's court in Wadakkanchery in the state of Kerala, prosecutions have been stalled for years because the only prosecutor available was on deputation from another court. It was only when this officer had enough time to spare that he would appear in court in Wadakkanchery. By the end of one year, the number of criminal cases pending disposal before the Wadakkanchery court was so huge that it will take at least a few years to clear all of these cases as every year the number accumulates and is added to the existing backlog. It is shocking to note that when the backlog of cases increases the judges connive with the police officers, forcing people to plead guilty on charges so that cases can be summarily tried.

Another element causing delays in legal proceedings is the lack of infrastructure to process evidence. Today the police in India are neither trained to gather evidence scientifically nor do they understand the meaning of forensic evidence. It is common to observe material objects produced in court wrapped in newspapers and bound by jute threads. The safety of the contents depends upon the quality of the newsprint. Given the climatic conditions in India, this evidence is usually damaged within a few months even before any preliminary hearing is held.

In cases where there is a need for forensic examination, the situation is even worse. The objects requiring forensic examination are detained at the central or state forensic lab for at least 10 to 15 years. This reflects upon the facilities provided for these labs and also the work habits of the forensic technicians. The evidence held at these labs is also prone to manipulation or destruction as demonstrated by an incident in Kerala where an "accidental" explosion destroyed several pieces of evidence pending examination. While this is what routinely happens to inanimate objects, the manner in which human remains and dead bodies are handled is equally bad or worse. In cases where there is a requirement for a fingerprint or handwriting examination, the minimum period required for the results to be sent back to the referral court from the forensic lab is 10 years. This long process only benefits the financial interests of "government-recognised" private experts.

The inordinate delay in legal proceedings results in acquittals in criminal cases through the loss of human memory as well. When a witness is required to testify about an incident that they saw a decade earlier, the results are obvious. Given the fact that prosecutors in India are ill equipped and professionally incompetent to meet the challenges posed by highly paid defence lawyers, the cases of the victims are either thrown out of court, or the victims are forced to accept a compromise.

The compromises made in providing basic infrastructure for the courts and judiciary is another cardinal issue affecting India's justice system. If a prosecutor's office wants to communicate with a particular police station, there is no mechanism available other than the initiative of the prosecutor to spend from own pocket or make the interested party pay for communicating with a police station within his jurisdiction or stall the entire proceedings. The lack of such basic infrastructure not only results in the delay of the proceedings but is also a root cause of corruption.

In cases where witnesses face threats from the perpetrators, as might occur in a case of police torture, the plight of the victims is beyond imagination in the absence of a proper witness protection programme. The much acclaimed judgment of the Supreme Court of India in the D. K. Basu case in 1996, known for its directives aimed to prevent custodial torture, originated from the state of West Bengal in 1986. Thus, even the apex court of the country is not safe from delay.

The Law Commission of India in its 189th report published in February 2004 acknowledged that more than two million cases are pending in about 13,000 district subordinate courts. About two-thirds of these cases are criminal cases, and about a million are in sessions courts that involve such heinous offences as murder, rape,  armed robbery, etc. About 30 percent of the cases in sessions courts have been pending for three years or more. If one includes all of the courts in India, both civil and criminal, the total number of cases pending disposal would add up to a staggering 25 million!

The lack of initiative by the government at both the state and central levels to address these problems is also a fundamental reason for such exorbitant delays. According to available statistics and acknowledged as well by the former chief justice of India, Justice Bharucha, the ratio of judges to the population is 12 or 13 judges per million whereas 12 years ago it was about 41 in Australia, 75 in Canada, 51 in the United Kingdom and 107 in the United States. Moreover, this paucity of judges is further magnified when one notes that the ratio of litigation to population in India is 10 times higher than these countries. A study conducted by the Ministry of Finance reveals that at the current rate it would take 324 years to dispose of the backlog of cases in India's courts. In April 2004, there were 163 vacancies at various high courts in India. This number would amount to more than 25 percent of the total number of judges at this level of the judiciary. If the entire judiciary in India is included, the figure, of course, would be much higher.

U.S. Justice Wendell Holmes said that "the denial of justice through delay is the biggest mockery of law"; but in India, it is not limited to a mere mockery of the law but is killing the entire justice dispensation system in the country! This has led to people settling disputes on their own, which has resulted in a growing number of criminal syndicates in the country, thus reflecting people's attitudes toward the justice system: they have no more faith in the rule of law.

Therefore, the following actions are imperative:

1. The government of India must take immediate steps to fill the existing vacancies at various levels of the Indian judiciary;

2. Immediate arrangements should be made through the appropriate ministries, like the Ministry of Finance, to provide adequate funds to the judiciary and the prosecution mechanism in order to liberate the justice dispensation system from its financial deficiencies;

3. Available and willing international expertise and advice should be utilised to improve the judiciary's communication infrastructure;

4. A process of accountability should be put in place so that the aggrieved party suffering from a delay of process can challenge the delay without the fear of judicial wrath, such as contempt of court proceedings;

5. Adequate training and education should be provided to presiding officers to facilitate a change in their attitude while discharging their judicial functions.