Reforming Judiciary in India
Posted July 5, 2009on:
A good thing – and intensely in the interest of the nation – that Manmohan Singh has done in his second term is to keep Hansraj Bhardwaj out of his council of ministers. How P.V.Narasimha Rao and Manmohan Singh tolerated this master of gimmickry is beyond one’s comprehension. There is nothing to show by way of his achievements as the Union Minister of Law and Justice. Maybe, he retained his usefulness by carrying out extra-judicial tasks for the party bosses –- as in the Quattrocchi case for Sonia Gandhi.
Narasimha Rao had taken Bhardwaj in his council of ministers in July 1992 as Minister of State (Independent charge) for Law, Justice and Company Affairs. The problem of judicial reforms was as pressing even then as it is now. Bhardwaj appeared to tackle the problem in right earnestness (as Veerappa Moily is doing now; one only hopes Moily does not become another Bhardwaj).
A meeting of law ministers of the States was convened by Bhardwaj at Bangalore within a few months of his taking over (October 1992) where a blueprint for legal reforms was prepared. This was followed by another meeting of law ministers and law secretaries in Panaji in Goa in April 1993, which was followed by another meeting at Pachmarhi a month later, and so on and so on. The Congress government went in 1996 but the implementation stage for the decisions taken at the first meeting never came. How he wasted the nation’s wealth on the salary and perks of the Union Cabinet Minister of Law and Justice in the Manmohan Singh government (2004-2009) is recent history.
Challenge beore Moily
Going by Moily’s known temperament, he is not expected to indulge into gimmickry when he promises judicial reforms expeditiously. The task is not easy because of the hypersensitivity of this privileged class. The malaise of corruption, greed, inefficiency and arbitrariness is percolating at all the levels of the judiciary. Two young women — sisters —are found murdered in their house at Shajapur in Madhya Pradesh while their parents were out on a morning walk. The sessions judge awards death sentence to a dalit youth (who was not even present in the town on that day) because the police wanted it under pressure from the young women’s influential father. The High Court bench at Indore upholds the conviction but only changes the sentence from death to life imprisonment. The youth is saved by the Supreme Court which exposed the mischief as to how the case was built up on the irrelevant and fictitious evidence and the relevant evidence was ignored. The dalit youth is a wreck by this time, having languished in jail under the threat of the gallows. Would Moily recommend deterrent punishment for the prosecutors, as well as for the judge, in such cut and dried cases?
There is another instance, which is much more common because of the thin line between discretion, error of judgement and deliberate mischief. An Itarsi resident went to attend a marriage ceremony along with his wife and nine-year-old daughter. The young girl was lured by a person and taken to the terrace where he raped her and tried to strangulate her with a rope. Taking the girl for dead, he left the place. The girl, however, managed to loosen the knot and stumbled down to her parents in a horrifying state, with her eyes bulging and body smeared in blood. The Hoshangabad Sessions Judge sentenced the accused to five years’ imprisonment under Sections 376/511 IPC (attempt to rape) instead of rape, and one year’s imprisonment under Section 323 (injury) instead of attempt to murder. A division bench of the Madhya Pradesh High Court, at Jabalpur, saw the point and ordered an inquiry by its vigilance wing against the Hoshangabad District and Sessions Judge.
Unfortunately, the ultimate disposal of such inquiries and findings is not often confidence-inspiring. A judicial officer of Uttar Pradesh was charged with accepting illegal gratification for granting bail. An inquiry was held and it came to light that the respective courts had rejected bail applications of the accused twice on merits. It was alleged that the judicial officer had granted bail on the third application in utter disregard of judicial norms and on insufficient grounds and it appeared to be based on extraneous considerations.
The full court of the Allahabad High Court imposed a punishment of withholding two annual increments of the judicial officer with cumulative effect and subsequently he was reduced to a lower rank. His writ petition challenging the punishment was dismissed by the High Court. He then went in appeal to the Supreme Court.
What the three-judge bench of the apex court comprising Chief Justice K.G.Balakrishnan, Justice Lokeshwar Singh Panta and Justice D.K.Jain ruled was incredible, to say the least. It said: “this court on several occasions has disapproved of the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgements/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgements of the lower courts. While taking disciplinary action based on judicial orders, High Court must take extra care or caution.” The bench set aside the High Court judgement and directed that the appellant be immediately posted to the cadre of district judge and paid all monetary benefits due to him.
The Apex Court
One aggrieved by the subordinate judiciary can go in an appeal. When the judges of the highest court leave gaps in the judgement, what is the remedy? The Niyogi murder case illustrates the point. A highly respectable labour leader of Chhattisgarh, Shankar Guha Niyogi, was murdered in Bhilai. The case was investigated by the CBI. The Durg Sessions Judge gave a cogent judgement as to how certain industrialists of the area had conspired to get Niyogi eliminated. They hired for the job Paltan Mallah, who was doing odd jobs in Bhilai and occasionally indulged in petty crimes. The trial court’s judgement gives a sequence of events up to who paid the money and when to Paltan Mallah and provided the weapon to him to kill Niyogi. The Sessions Judge awarded death sentence to Paltan Mallah and life imprisonment to certain industrialists. The Madhya Pradesh High Court (Chhattisgarh was part of Madhya Pradesh then) acquitted all of them.
An appeal was moved in the Supreme Court. A division bench of K.G.Balakrishnan (he was not chief justice yet) and A.R.Lakshmanan sentenced Paltan Mallah to life imprisonment but acquitted the accused-industrialists. No one had brought before the trial court that Mallah had a grudge against Niyogi. The trial judge records that “Paltan Mallah had no personal animosity against labour leader Shankar Guha Niyogi. He had no motive for this offence (murder) except that he received money from those industrialists against whom Niyogi was organising the labour movement”. Once the industrialists are absolved of any part in the conspiracy, as the Supreme Court has done, what was Mallah’s motive in taking Niyogi’s life? A revision petition was preferred by Niyogi’s wife before the same bench – but it was rejected.