All political parties in India talk about “inclusive growth”. Our economists talk about our world ranking in GDP, per capita GDP, composite measure of welfare, corruption index, the level of technology and other esoteric economic indicators. Interestingly, however, the role of a country’s government for the economic security of its citizens is a relatively recent phenomenon. Historically, the primary function of every government was to guarantee law and order under its jurisdiction by instituting a fair judicial system. Why then is there hardly any discussion on “inclusive justice” in our country? How well have we fulfilled that task after Independence?

This thought came to my mind when I learnt about the decision of the Supreme Court on 16 October to strike down the National Judicial Appointments Commission (NJAC) Act, along with the Constitution Amendment Act, after the corresponding bills were passed by Parliament, duly ratified by 16 state legislatures and subsequently assented by the President on 31 December 2014. The purpose of the proposed NJAC was to appoint Supreme Court and High Court judges by a committee consisting of the Chief Justice of India (Chairperson, ex officio), the next two senior judges of the Supreme Court, Union Minister of Law and Justice (ex officio) and two eminent persons. This was supposed to replace the collegium system, in place since 1993, where a committee composed exclusively of judges of the Supreme Court and High Courts decide on those appointments. Justice Goel writing in favour of the verdict noted, “The will of the people is the Constitution while the Parliament represents the will of the majority at a given point of time which is subordinate to the Constitution.”

Our Constitution was approved in 1950. How did the learned judge know that this is still the will of the people today? As someone completely ignorant of law, I thought that the purpose of constitutional amendments is precisely to fine-tune the Constitution with changes in the will of the people as a slowly evolving dynamic process.

Soon enough, Markandey Katju wrote an article in Outlook on the verdict of the Supreme Court. This time I took his opinion seriously as he is himself a retired judge of the Supreme Court, as well as a former Chief Justice of Allahabad High Court, and must have known the Indian judiciary intimately. He flatly asserted that the judges themselves created the collegial system earlier, “which, apart from having no Constitutional basis (there is no mention of any Collegium in Article 124 of the Constitution), has set up a mechanism by which judges appoint judges.” I wondered which Constitution Justice Goel was referring to in his judgment mentioned above. Justice Katju concluded his article with the observation that, in his estimate, about 50 per cent or more of the higher judiciary (High Court and Supreme Court) has become corrupt. His most damning comment on our judiciary was, “My own opinion is that it matters little whether we have the NJAC or any other system, as the Indian judiciary is beyond redemption.”

My personal impression is that every ordinary Indian shares his view, but does not dare to say that publicly for fear of contempt charges. This is unfortunate as, to mimic Charles de Gaulle, justice is too serious a matter to be left to the judges. While thinking of “inclusive justice”, I found out that an independent NGO, The World Justice Project (WJP), ranks countries every year based on their WJP Rule of law index which is based on nine factors that influence the overall law and order of the country. The factor that concerns us here is Criminal Justice. The WJP 2014 ranking puts India in the 48th place in the Criminal Justice system. On the overall ranking based on all 9 factors, India ranks 66th, below Sri Lanka (48th) and Nepal (57th) among the South Asian countries. On the overall ranking of India, the report mentioned among serious problems, “Administrative agencies are slow and ineffective (ranking 81st), and the civil court system ranks poorly (ranking 90th), mainly because deficiencies in the areas of court congestion, enforcement and delays in processing cases.”

These drawbacks affect most Indians, except possibly the very rich. But the worst suffering faced by the poor and lower middle class is the criminal court system. According to an official report on prisoners released at the end of last year, Muslims, Dalits and Adivasis together form 53 per cent of our prisoners, although they constitute barely 40 per cent of our population. The reason may not necessarily be due to a built-in bias against these social groups, but just reflect the over-representation of these groups among the poor of our country. What is even more shocking is that two-thirds of our prison inmates are actually undertrials, who are yet to be convicted of any crime. In fact, the percentage of undertrials in prison is growing by the year. But the story does not end there. A majority of our undertrials have spent more time in jail than the sentence they might have received in case they were convicted of their alleged crimes. More than 3000 undertrials are in prison for more than five years!

The real culprit here is the system of bail. Our criminal justice system is a legacy left by our colonial rulers and has seen a few amendments occasionally under political pressure. There has been no effort to change many archaic aspects of the laws that victimise the vast majority of our fellow countrymen who have very limited financial means at their disposal. Bail is the most potent weapon in the hands of the powerful to keep the downtrodden masses in their place. The rich, by contrast, use this as a means to avoid going to prison while appealing to higher courts in a process that often goes on for decades. Ironically, the Criminal Procedure Code, 1973, does not define bail, although the terms bailable offence and non-bailable offence have been adequately explained there. In effect, the court has arbitrary authority to put a monetary cap on the bonds for bailable criminal offences. Courts are often insensitive to the economic plight of the poor alleged criminals and demand exorbitant amounts as bail bonds. This is bound to have disastrous consequences, as they are often the only breadwinners in their families.

The Supreme Court has been largely oblivious to this travesty of justice. One notable exception was the late Justice Krishna Iyer. Here are just two illustrations. In State of Rajasthan v Balchand case, the trial court convicted the accused, but the verdict was later overturned by the High Court. The State then appealed to the Supreme Court and the accused was asked to surrender to the court. He then applied for bail. It was then that Justice Iyer raised his objection to the system of bail and said that the time for rethinking about the system of bail has come. In most cases, an undertaking should serve the purpose. In Moti Ram and Ors. v State of MP, the accused was a poor mason. The apex court asked the Chief Judicial Magistrate to release him on bail. The CJM fixed Rs. 10,000 as surety and bond, and refused his brother to be surety as his property was not in the same village. Again, Justice Iyer condemned the decision of the CJM and said that judges should be more inclined towards bail and not jail.

It is obvious that our justice system has a strong anti-poor bias. “Inclusive justice” should actually be a tautology. But is this so in India? “Inclusive justice” in our country is even more illusory than “inclusive growth.” Our intellectuals are rightfully concerned about human rights violations in the Naxalite belt, the North-east and Kashmir. Somehow they miss the plight of people closer to their homes. Since criminal justice affects individuals, as opposed to groups, there is no large-scale movement for putting pressure on politicians to change this unfair justice. It is heartening to note that our Prime Minister has just added Sabka Nyay to his catchy slogan Sabka Saath, Sabka Vikas.

by Arunabha Bagchi

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