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25 May, 2009

AHRC poser to India: will the public behave differently from the government?

The following is a statement issued by the Asian Human Rights Commission, Hong Kong:

Expressing concern about the decrease in the number of civil disputes filed in the courts in the country, the Chief Justice of India, Justice K. G. Balakrishnan, on Saturday said that the people prefer to settle disputes resorting to extra-constitutional methods. Clarifying his position, Justice Balakrishnan said that the judiciary is worried about the absence of new cases in the courts, indicating that the litigants are resorting to illegal means for dispute resolution. The Chief Justice also said that in a period where the average citizen is more aware of his rights and thus the chances of having disputes between persons high, the lesser number of cases filed in the courts means that the people have found ways to settle disputes outside the due process of law.

In an ideal scenario, a person settling disputes outside the realm of the court is good. But this proposition is suitable only if the means for dispute resolution is within the acceptable norms of justice and equality. But in India, the means resorted to are of hiring thugs and criminals to bully and threaten the opponent, thereby forcing a settlement. It is been so since the past decade. Even though late, it appears that the Indian judiciary is waking up to the reality, and is willing to admit that the average Indian litigant has less faith in the country's judiciary. Thus, the Chief Justice's concern is not out of place, but is relevant in addressing concerns related to the justice process in the country.

The mistrust of the general public in the due process indicates that the justice machinery of the country has failed to serve its purpose. While long delays in judicial process is disheartening enough for a serious litigant for not approaching the court, delay is just one reason why the people prefer to keep away from the courts. The lack of quality in professional service is yet another reason why the people shy off from the courts. For instance, it is a challenging task for a litigant to find a good lawyer at an affordable price.

To make matters worse, professional ethics among the lawyers in the country is as good as non-existent. Breach of professional ethics and morale is so common in the country, that a lawyer accepting money from both sides is no more news. Often lawyers prefer adjournments of cases since each day of hearing fetch them money. Corruption is however not limited to the lawyers, as the lawyers are just one component of a larger machinery.

Corruption within the judicial service is of such nature that even if a judge is not corrupt, a case could still be stalled due to a corrupt court staff. Officers ranging from the court registrar to the process server demand and accept bribes. It is almost impossible for papers to be processed in the court registry unless the court staffs are paid bribes. The judges often are aware of the corruption, but never initiate action against their own staff. Corruption is omnipresent, from the Munsiff's Court to the Supreme Court. The only difference is the amount of money demanded and paid. Even some of the judges in the country are corrupt.

Expressing the importance of a judge's role in sorting the issues within the justice system, the Chief Justice said that the judiciary requires judges who are committed to social values. For this, the Chief Justice emphasised on training for the judges. The Chief Justice however denied admitting that a value system a judge is not used to in his life outside the judge's chamber cannot be inculcated into an officer by mere training.

Some practices within the judiciary are as if the judiciary is alien to the very concept of decency and human and professional dignity. There are customary practices within the Indian judiciary that will shame feudal lords. For instance, it is a common practice for senior judges to direct subordinate judicial officers to serve as an orderly to the senior judge when the senior judge happens to visit a place with his family within the jurisdiction of the subordinate officer. Such practices of mere show and egotist vulgarity cannot be changed by training, but could be stopped, if the members of the judiciary are willing to realise that a judge's office is to be placed at a higher pedestal than that of a corrupt politician in the country who is arguably more prone to public show. What determines a judiciary's character is not the mere 'social value concept' of the judge, but his knowledge and skill in applying the law. A judge who is morally degraded by his superior officers cannot be expected to be blind and impartial while applying the law.

The standard of the Indian judiciary has arguably degenerated in the past three decades. The degradation process is rapid during the past ten years. This contradicts the fact that in the past ten years, the service conditions of the judges have improved considerably. An Indian judge is no more a poorly paid public servant as opposed to the service conditions in the past. Yet, cases implicating the members of the judiciary in corruption and other scandals are on the increase in the recent years.

The fact that judges are increasingly prone to corruption is only a mere indicator of the widespread prevalence of corruption in the society. For instance, some judges allegedly turn a blind eye to accusations that their relatives are accepting bribes in the judge's name for fixing cases. The continuation of such practices generates a public perception that the judge is corrupt. One cannot expect an ordinary litigant to trust a system that the judge is not committed to.

The government is also not committed to developing the Indian justice system. The judiciary receives negligible support from the government in terms of financial commitment. Vacancies are left unfilled and infrastructure sparingly made available. For example, during the past sixty years, the government's spending on justice institutions is a negligible minimum in comparison to what the government has spent on ministerial projects or on defence. This neglect is intentional. The more a justice system is smothered out of its life, the better the prospects for a corrupt politician, a class that is found in plenty in the country.

The worst dent is upon the criminal justice administration. For example, the service conditions of the public prosecutors are of such nature that this office does not attract professionals of any quality. Appointments to this office are publicly auctioned, where the highest bidder for payment of bribe is offered the post. Such payment is no more made in secrecy. It is a common practice among the public prosecutors and the government pleaders to demand bribes from the litigants. When the normative quotient for appointment to these important offices are determined by political affinities and the amount of bribes paid, replacing merits and skill, it is natural for the other elements within the criminal justice machinery also to degenerate.

During the past five years the number of extra judicial executions has increased to alarming levels in the country. It is estimated that in 2008 alone there has been 422 cases of extra judicial executions carried out in India. This includes cases involving the state police and other enforcement units like the para-military units deployed in various parts of the country.

Murderer officers are publically acknowledged as 'encounter specialists' as if they possess a higher technical skill, rare and coveted, in the law enforcement service. Even the media recognise these officers' skill of murdering suspects by referring to them as some form of specialist and elite officers within the system, conveniently neglecting the fact that the officer is a psychopath who murders people with impunity. Not a single judge from the Indian judiciary, including the Chief Justice, has questioned this practice. The argument in support of these murderers is that often when a suspect is brought to the trail, he escapes conviction, thereby becoming a continuing threat to the society. What is conveniently forgotten is the fact that often an acquittal is the result of poor investigation and appalling prosecution. An encounter killing is a blatant negation of the principles of the rule of law.

A criminal case in essence is a dispute between the state and an accused. In a country where the state itself practices extra-constitutional means for resolving the dispute with an accused in a crime, by encouraging state officers to murder the suspect in a fictitious encounter, can a litigant in a civil dispute expected to be different?
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

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