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In world ranking on Ease-Of-Doing-Business in India, India ranks absolutely at the bottom of the world on the criterion of contract enforceability (in fact, last but one, with Latvia taking these honours). Late Palkhiwala used to describe India as a heaven for lawyers.  Frequently we read in papers that over 3 crore cases are pending in courts in India which will take over 300 years to resolve. Technically, it means a new case that comes to court should take over 300 years to resolve. That speaks volumes about a basic human right, being entitled to fair and speedy justice, in world’s largest democracy.

Way back in 1985 when the then CJI, P N Bhagwati, was addressing a conference, observed that Indian legal system was on the verge of collapse under the weight of a mountain of pending court cases. 26 years from that stage, and this mountain has only grown bigger, and our legal system is still not dead, not literally yet, but justice is long dead already with 3.5 cr cases pending, with absolute subjectivity in administration of bail, with no accountability in public life in the country and recently, with retrospective amendments in law, dating back to 60s!

Has any government ever been concerned about this state of affairs? Certainly not. Lip service has been paid by some like in 2009 when Moily, the then Law Minister showed serious concern and even went on record saying that he would like a case to be concluded in any court in India in not more than 1 year. In two years of his occupation this post, did he do anything about it? Not that public knows, of course. The mockery our lawmakers have made of the Lokpal issue, must be a popular joke on democracy around the world!

Laymen know that the peculiarity of our judicial system or practice is characterized by:-

1) Abundance of lies in the courts, right from registration of a case by Police to delivery of final justice.

a. Police do not register a complaint, and need to be bribed. In cases where a complainant approaches court and gets court’s direction to register such complaint, the courts never ask the police to justify its failure to register the complaint and punish the concerned officers if they do not show a valid legal reason for such refusal to register complaint.

b. Police registers false reports and implicates innocent people, evidently after being bribed by the opposite party. Most complaints on allegation of dowry (498A), social atrocities (harijan act) and quite a few on allegation of rape are known to all and sundry. In all such cases, police never conducts a fair investigation and does not submit those evidences & statements which go in favour of the accused, in charge-sheets to the courts because inclusion of such evidences could blow apart their charge-sheet. Inability to conduct a fair investigation is incompetence which should see instant dismissal of the officers concerned from the job as they are not fit to do the job, and any negligence whether willful or otherwise, resulting in its failure to derive correct and fair conclusion upon an investigation, must result in instant dismissal as well, because such incompetence or negligence is resulting into abuse of authority inflicting serious injustice to the accused.

c. In open and shut cases involving people in high places, arrests are not made and even warrants are not served although many times such accused could be seen to be moving with ministers in public places, yet there is no one asking these policemen to explain why warrants were not served on these people and why arrests were not made when in similar situations involving ordinary people prompt arrests were made. For instance, in recent case of broad daylight murder by ministers’ son and nephew, no arrests were made despite courts’ order and instead, police submitted an application to court to allow them not to arrest the accused if police did not find them guilty after investigation. Still, there is no one to ask police asto why an investigation which should not take more than a few hours in murder in front of hundreds of people, should not be complete even after 3 months of incident, and so on. Thus, loads of lies are being spoken in courts without any fear of backlash or consequences.

d. Almost in every case, even of civil nature, the respondent’s lawyer invariably denies almost everything in legal notice, and then, in plaint in court. He even denies having done the transaction, or most obvious facts. It takes considerable time of the court to establish even the undisputed and obvious facts of a case and the intention of one party to drag the matter and frustrate the opposite party despite being most apparent goes completely unpunished. That it puts crores of cases on slow track and delays everybody does not seem to matter to the judiciary or the executive or even the legislation.

e. In a personal experience, my friend travelling to Australia, casually declared “NO” in immigration asking if he was bringing any food items with him. During checking, immigration people found one packet of namkeen (bhujia) and a small bottle of pickle in his baggage. This was considered a serious offence by the Australian Immigration who treated this instance as that of Speaking Lies To Their Government, resulting into his written apology and red-flagging of his case. Now, each time he visits Australia, his is checked thoroughly as he is regarded as a LIER. In another case, during a commercial recovery suit in court, opposite party submitted concocted letters claimed to have been sent by UPC. I said these letters were concocted and forged to which defence lawyer objected. Before I could explain further, the hon’ble magistrate intervened and said the letters were certainly concocted and forged else why would they be sent by UPC and not Registered Mail or Speedpost. Yet, opposite party got away with it and court simply ignored those letters but made no attempt to penalize the party for coming to court with lies and forged documents. This contrast characterizes our judicial system.

f. Ram Jethmalani claims in court that the bribe money in Cash-For-Vote case, came from Advani who confirmed having authorized sting operation, and another day, he claims that the bribe money came from Ahmed Patel of Congress. He has demonstrated how careless and contemptfull lawyers could be in the courts to achieve their mean object of immediate benefit for their client (read : hefty fee from their client).

g. Chandra Mohan of Haryana becomes Chand Mohammed and marries second time despite his first wife living. When second marriage fails, he becomes Chandra Mohan once again. The film stars, Dharmendra and Hema Malini becomes Dilavar Khan and Aiysha Bibi in order to marry despite Dharmendra’s first wife living. Yet, they both remain Dharmendra and Hema Malini, get elected or nominated to Parliament and make laws for rest of us to follow. There is no one in the country to ask them as how come Aiysha Bibi is taking filing nomination as Hema Malini and why is she taking oath of MP as such and a Hindu when she converted into muslim decades ago. Law and judicial system has become a handle in the hands of people in high places. It means one thing to them and quite another for masses, and yet, we remain The Largest Democracy of the World!

2) Abundance of subjectivity resulting in discretion with courts even in most obvious cases leading to high degree of uncertainty, an ideal breeding ground for corruption, and injustice.

a. In criminal law, bail is a matter of total discretion which is exploited by unscrupulous lawyers and corrupt judges to the most. Without assigning any reason and without being asked to justify his decision, a judge can accept or reject a bail application. No wonder, lawyers wait for weeks and sometimes even months for roaster to change to be able to present a bail application before a convenient or even manageable judge or to avoid an unreasonably tough or rigid judge. Judges quickly build image of being good or bad for a bail application. To make matters worse, system further ensures that a bail application once rejected by a particular judge, has always to be presented in future, before the same judge only. It means the victim of subjectivity or discretion of a particular judge will always remain victim to the whims and bias of the same individual judge. Do we need to look for injustice any further?

b. Too much of hue and cry is made for certain crimes being heinous or otherwise, affecting administration of bails. If accusation is for crime punishable with 7 years or more, accused is rendered Garib Ki Joru who can be exploited by all and sundry. Even if some judges are not corrupt, lawyers will demand hefty amounts in the name of the judges and will pocket the same personally if bail is granted, and return the same in full or part if bail is rejected. The scene in the movie GANGAJAL may be recalled where IG Police tells the villain to send Rs 25 lacs to the residence of the judge and another Rs 2 lacs to him, to ensure bail to his criminal son. Such subjectivity and discretion is a perfect breeding ground for corruption and exploitation, and hence, suits everybody who matter in this country! No wonder, no action would ever be taken to dispense with the same.

3) Plethora of laws, mostly drafted with less than bonafide or fair motives without enough safeguards against misuse.

a. Most laws are obsolete and outdated. For instance, the land acquisition laws which were criticized by SC recently. The law of contract is nearly 150 years old and so on. No wonder contract enforceability is neglected in our system.

b.Many laws or rather the ones which are used most for direct control of the executive on public, suffer abuse of too frequent amendments and continuous tightening with high degree of malaise. Income tax law is a classic example which must be suffering from at least a dozen amendments every year, and still, has been deemed to be completely revised in the guise of Direct Tax Code. A critical study of the DTC will reveal the real intention of the government of bringing in sweeping changes in income tax law with an intention of collecting more taxes while keeping an instance of trying to simplify the income tax law as is always the situation. Government never speaks the truth. Reality is almost always hidden and is ugly behind noble and public-oriented manifestations. The recent bill brought by the government for declaration of assets by judges is a good example. Contrary to the name of the act, the real intention of the government was to prevent public from knowing the details of assets of the judges. Lokpal bill is a glaring example which sought to protect the corrupt in the guise of bringing a law to punish the corrupt.

4) Complete lack of accountability of the entire judicial system, riding on great unity among the lawyers who do not practice what they preach, and resist serious reforms fearing loss of their domination and earning potentials, and

a. There is no concept of finality of litigation in India. Almost every litigant who can afford the cost of litigation, goes to Supreme Court before giving up. Cases rarely end up at sessions courts level or even at high courts level. On the contrary, in the West, even fines extending to hundreds of millions on companies like Microsoft or Siemens were quickly paid without the companies going into appeal to higher courts. Surely, these companies could afford litigation right to the moon and still they don’t appeal too much. This reflects on the basic difference in administration of justice in India and the world. Complete lack of accountability in India results in reversal of decisions in appeal and again, reversal of appellate courts’ decision in second appeal and so on. Even Supreme Court has taken opposite views on same issue at different times. It seems entire India results in reversal of decisions in appeal and again, reversal of appellate courts’ decision in second appeal and so on. Even Supreme Court has taken opposite views on same issue at different times. It seems entirely a matter of chance for one party to lose and another to win. Same case decided by another bench of the same court on another day might have produced completely opposite decision.

b. Recent high profile case of Chief Vigilance Officer, Thomas explains complete absence of the concept of accountability in India. PM and Home Minister deliberately ignore concrete possibility of doubtful character of the candidate and go ahead with appointment despite Leader of Opposition bringing such doubts to table and recording her opposition. It is only because they knew that there was hardly any chance of being made to explain, and even if that happens, there is absolutely no chance of being made to pay for it. Arrest of Anna Hazare and then, release is another example. Nobody has been made to pay for such high-handed and illegal act. This democracy is meaningless without accountability.

c. Police is not accountable. They are never asked by the judiciary as to why some summons are not being served, or arrests are not being made, or investigation was not fair and so on. Adjudication officers in tax matters are never asked as to why they did not apply the law properly to a case. Bureaucrats are never asked as to why they issued a particular order against the law, and so called appellate officers of income tax/sales tax/excise who are supposed to be quasi-judicial officers and free from administrative orders from their departments, are never asked as to why they did not act impartially in a case and so on. Accountability is a sham unless coupled with punishment for lack of it. If every government authority is held accountable for his decision, and likewise, every judicial officer is held accountable for his decision, number of cases coming to court will drop drastically, and number of cases going into appeal will fall phenomenally.

5) The system of offering plum posts to judges after their retirement.

a. Bureaucrats and judicial officers are routinely offered plum posts of chairmanship of some commissions or enquiry committees which are destined to last for ever. No wonder, even close to retirement these people do not exercise their independence and remain subject and prone to allurement.

While judicial system needs to be overhauled, the least that must be done to protect the civilization  and democracy in this country is to:-

1) Deal with lies by

a. Amend criminal law to ensure mandatory punishment of not less than the maximum punishment which is sought to be evaded with such lies, or maximum punishment which is sought for an accused in a case where truth has been hidden in any investigation/prosecution.

b. The role of lawyers involved in such lies or hiding of truth to be mandatorily examined by courts to determine whether they were involved directly or indirectly or whether any diligent conduct of legal profession could have helped them to unearth such lies or concealment, and is, they to be compulsorily awarded the same punishment as well.

2) Bring objectivity in justice by

a. Eliminating or at least minimizing discretion.

b. Specifying in bail matters that bail SHALL BE GRANTED unless answer to any of the following FOUR questions is in affirmative

i. Whether the accused is likely to run away from trial and not being available to receive sentence on completion of trial,

ii. Whether the accused is likely to temper with evidence if his bail is accepted,

iii. Whether the accused is likely to commit the SAME offence once released on bail, and

iv. Whether the accused is likely to be a threat to the society if released on bail.

c. Ensuring that bail application once rejected by a particular judge, is not presented to the same judge again, and invariably goes to another one so that law could be applied in most objective manner, minimizing prejudice and bias as much as possible.

3) Make laws for majority and not for a few crooks

a. In practical world, 10% people will be God fearing who do not need any to behave. Another 10% will be hard core crooks who will not behave no matter how stringent or tough the law came. The rest will behave according to law. Give them a fair law and administration, and they will behave well. Developed world makes law for these 80% while India keeps chasing the last 10% and in the process, makes life of remaining 90% people miserable. This must change. Law must be made for the majority of 80% who must not be made to suffer simply because 10% hard core crooks are able to beat law.

b. There is no justification in continuously making the tax laws tougher and tougher while failing to eradicate corruption and eliminate misuse of tax money. All energies must be used to ensure fair and proper use of tax money before extracting more blood from tax papers. Massive ad spending by government does not convince anybody. It is only a waste of public money.

4) Bring accountability in public life by

a. Amending the criminal law to ensure that a witness who turns hostile and dilutes allegations that we made to initiate a trial, is awarded maximum punishment that was sought for the accused in that particular case. This will discourage large number of cases which are registered only to blackmail accused, such as dowry demand, atrocities on harijans or even rape.

b. Enact special law to enable citizens to prosecute any government authority who has not shown accountability to blackmail accused, such as dowry demand, atrocities on harijans or even rape.

c. Enact special law to enable citizens to prosecute any government authority who has not shown accountability in his work including the judicial officers, providing that upon finding the accused guilty, mandatory in his work including the judicial officers, providing that upon finding the accused guilty, mandatory punishment must be dismissal from job with no retirement benefits AND maximum punishment that the complainant was to suffer or suffered for such lack of accountability. Such complaint to be cognizable only upon the complainant being acquitted from an alleged criminal offence or exonerated from a civil or tax liability.  

5) Abolish any extension or holding of any public post after retirement of any government official or judicial officer. This will take away allurement of benefit post retirement. In any case, in a country with large unemployment, there is no justification in some people remaining unemployed with some retain employed even after retirement. Probably, this move could reduce the infinite time taken by most enquiry commissions in India which are a perfect method of rewarding the favoured retired babus or judges.

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CA Anil Garg
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