India held back - II: Quis Custodes Ipsos Custodiet? ("Who guards the guards?") - the Indian Judicial system

As a part of my small attempt to understand why our nation (country rather – we are not a nation anyways – more on that in another post!) is held back from achieving our potential, I had written about the menace of corruption. Today, as the second part in that series, I will attempt to briefly examine one of the key aspects of the problem – the judicial system. Before I proceed any further, however, I should make it clear that this is the situation as I see it; being a lay person and one of the average citizens of this country, my understanding of law and its complexities is limited to whatever research I could google up. Consequently, I have addressed this issue in fairly layman terms – without recourse to legalese. Any opinions/clarifications or even factual corrections from seasoned advocates and jurists are welcome – indeed, desirable.

The recent spate of Public Interest Litigations (PILs) and the stictures passed against the Executive and/or Legislature in various cases have been whole-heartedly welcomed by Indians at large. Indeed, India might probably be the only country in the world where the Supreme Court can take suo motu cognizance of public matters or even act on letters written to the Chief Justice.

At a fundamental level, the Indian State has three arms – or pillars if you will; the Legislature, the Executive and the Judiciary. The Legislature is directly accountable to the people, while the Executive is accountable to the Legislature, and thus, indirectly to the people. In fact, due to its very nature, the Executive (i.e. The Government) is often directly held accountable by the people since it has the responsibility of implementing the decisions of the Legislature and the directions of the Judiciary, and consequently, is the one directly in contact with the people at large. The raison d’etre of the Judiciary is to act as a check on the functioning of the other two arms.

At this point, I would suggest reading this comment written by Justice V N Khare, former Chief Justice of India. (http://www.freeindiamedia.com/current_affairs/27_march1_06.htm). He has raised a number of issues regarding the judicial system, and as a former Chief Justice, I guess he knows what he is saying! (To give you a contrarian opinion though, please go through this as well : Swapan Dasgupta’s piece on Justice Khare’s retirement (http://in.rediff.com/news/2004/may/10swadas.htm). I will touch upon what I think are some other things that urgently need resolving.

One major problem – which Justice Khare has not pointed out in his comment - is that the judiciary is not accountable to the people. You and I as lay citizens cannot go and question a Judge for not hearing cases or for being inefficient or inept; neither can we counter the inordinate delays in the justice delivery process - we just have to be resigned to our fate. We do not know what the KRAs of our judges are, how many cases they are supposed to decide, what has been their performance in this regard, rating of various judges etc. I do not know if the RTI act covers this; though it is pointless since even if it did, there is little relief that we can get – since the judiciary is accountable to itself!

It is indeed true that India faces a tremendous shortage of judges, since the Government has not appointed judges in various places, for whatever reasons – mala fide or sheer incompetence. Newspaper reports put this figure at 3,000 judges in the various courts. However, isn’t it strange to see the courts taking extended vacations in the Summer and for Dussehra, Diwali and Christmas, while simultaneously, there are between 2.2 to 3 crore cases pending in the courts. Surely, we as citizens can question the rationale for sticking to this quaint, British custom in todays’s days? Its like the case that occurred a few years ago when Sourav Ganguly and Rahul Dravid cribbed about the punishing international cricket schedule, and then, when given a longish break by the Board, went abroad and played County cricket!!!

The Hon’ble Supreme Court of India has about 37,000 pending cases at the end of June 2006. (http://www.supremecourtofindia.nic.in/new_s/pendingstat.htm) However, one look at its vacation calendar (130 days in vacations, public holidays and Sundays) can suggest that by cutting down on the vacations, we can improve the justice delivery mechanism quite significantly.
(http://supremecourtofindia.nic.in/new_s/cal.htm). Ditto with the Hon’ble Mumbai High Court. (http://hcbom.mah.nic.in/calender.html)

Another contributor to the inordinate delay in justice delivery is the infinite number of “dates” one gets – it takes many years before a case even comes up for hearing. It is true that the police are extremely and often deliberately lax in investigating criminal cases (Remember Jessica Lal?), and that our public prosecutors (with a few honourable exceptions) are often losers who could not make it to private firms. Consequently, both the arms of the prosecution system can often be influenced – by money or fear or both. Additionally, there is really no incentive for them to do their work honestly – since they can be transferred at the drop of the hat in case they manage to offend their political bosses, while any great work in prosecution may not lend them any advantages! Thus, the courts may be critically hamstrung in criminal cases.

However, in civil cases, the courts must share some of the blame for not being stricter with dilly-dallying plaintiffs or defendants. Justice Khare squarely puts the blame on the Government for this – one in one’s limited experience is not so sure that the Judiciary is entirely blameless.

Let me qualify that lest I run foul of the Contempt of Court Act of 1971. One aspect of the functioning of the courts that I have had an opportunity to observe is the way cases are listed and how new dates are given. Recently, there was a news report (in the Times of India) of a judge having a ridiculous number of cases on his docket for one day (900 it was, I think). Now, however efficient a judge is, there is no way that he can judge 900 cases a day. However, since there are 900 cases listed, you have 900 plaintiffs and 900 defendents turning up at the very least, along with a posse of a few hundred lawyers (some lawyers may be common!). These guys have to hang around the court till the end of the day, when they get the new date for their hearings, since only a few tens of cases are heard. What a waste of time and effort for the lay person – surely, this can be avoided – if, as mentioned earlier, the courts have lesser number of holidays? An even simpler solution is to actually reduce the number of cases listed on the docket to a more manageable number – or maybe taking a recess mid-session to estimate how many cases can really be heard in the remainder of the day and setting up the rest for hearing later?

At this point, let me digress a bit and compare the criminal prosecution system prevalent in many American states. People who watch Hollywood movies or CSI etc. may be aware of the concept of District Attorney. The DA is the Chief prosecutor for a district, and is often an elected official. That means that the most charismatic or popular – and often not the most competent - prosecutor or even lawyer in the district gets elected as DA. The popularity is often a function of results delivered in terms of number of convictions etc.

Now, knowing that he has just won an election, there will naturally be a tendency of aiming to win more important elections in the future – various posts like state representative or senator, Governor and the top prize – the White House. And, since his popularity as DA is decided by his results, there is a natural incentive for the DA to sniff out cases dealing with either the high and mighty of the land, or the most hardened of criminals. A DA managing to successfully prosecute the State Senator or a serial killer would be extremely likely to win higher office. This system thus creates powerful incentives for its prosecutors to go after the high, mighty and powerful, in the hope of reaching there oneself. Contrast this career path with the typical profile of our public prosecutors, and the difference would be stark.

Coming back, while one must readily admit that the cases of corruption in the Judiciary have been few and far between, and that the judiciary is still seen as the last hope for a desperate nation being robbed blind by its legislators, politicians and bureaucrats, no rational observer can claim that the courts have truly lived up to the challenge of acting as an effective balance to the other arms of the State. Delivering justice in spectacular fashion in a handful of PIL cases has won the judiciary laurels, and helped it paper over cracks in the justice delivery mechanism (“Chalo koi to kaam kar raha hai” – that’s been the refrain doing the rounds in recent times). However, delivering justice in the millions of low profile cases the delays in which cause immense heartburn to the common man is the key challenge – one that will in the ultimate analysis decide the utility of our judicial system. Tragically, our judiciary seems nowhere close to tackling it.

India held back - I: The problem of corruption

As I promised the other day, I would focus on what is holding India back from achieving its true potential. As the first part of this series, what better topic to examine than the one widely identified as the single largest problem facing our country – the problem of corruption.

Corruption, like religion, is a way of life in India. It is unbelievably widespread – so much so that people expect to be demanded money for routine things. In fact, the other day, I chanced to see a blog publishing the standard rates of corruption in Delhi (http://bribedelhi.blogspot.com) – a blog started ostensibly to “create a database for bribe rates for the help of all the delhi-ites. SO next time you go for a job you know before hand how much to expect to bribe”. I do not know too much about the motives of the bloggers; while it seems a cynical means of fighting corruption, I am sure that the objectives indeed are noble.

A recent Times of India edition featured an excellent article on corruption by Swaminathan Iyer, where he suggests that democracy is the reason why India has continued to progress despite having very abysmal record on corruption. In the latest edition of Transparency International, India is ranked 88th on the Corruption Perception Index. This puts us below even newly independent countries like Namibia. Shameful, isn’t it?

While it is a pet peeve of the educated middle class in our country (including me!) to rant against the politicians and the Police and all sundry Government officials for their being corrupt, so we even begin to examine our own role in that? They say that it takes two hands to clap. This also applies to corruption.

Just the other day, I was having a discussion with a friend who claimed that his friend had to bribe a cop 5,000 bucks. He was indeed quite agitated and was venting his spleen against the cop who openly demanded the bribe. My only question to him was – what did you he wrong? Are the police nuts to demand a bribe of someone just like that?

“Namaskar Shreeman. Main Inspector Pandey bol rahan hoon Thane Police Station se. Aaj aab ki kismet khul gayee hai – hamare police bribery lotto mein aap ka naam nikal aaya hai. Kripiya apne najdeeki police station mein jaaiye aur Rs 5,000 bataur ghoos jama kijiye. Aapki sahayta ke liye dhanyawaad”

The reality is that one would have to pay such an insane amount to hush up some big “kaand”. Which means we ourselves are not blameless either – some innocent victims being ripped off by crooks. We are equally culpable. We have committed some crime, and are absolutely unwilling to face the consequences. Why then do we continue to rant against corruption?

There is another type of corruption that does not entail any blame on our part – it is the type one encounters when one tries to get a passport made, or a license verified or the likes. In such cases, isn’t the reason for corruption the fact that we want something done for us out of turn? In that case, doesn’t it become some convenience premium? Is it that radically different from the multiplex vendor charging 25 bucks for a 300 ml glass of cola? And even if someone asks us money for just doing their duty, are we not equally reprehensible if we quietly acquiesce in it and pay people off?

The reality is that corruption will continue till we as citizens change our outlook towards the law. It means refusing to pay bribes to officers – either for doing their duty or for not doing it. It means being willing to stand in queue for things. It means being honest in our personal dealings. Can we as a nation start doing this?

The futility of hero - worship

Today is Good Friday, a religious festival for Christians the world over. However, in a strictly literal sense, it is not a good Friday for the families of at least 8 people in Bangalore, the capital of the southern Indian state of Karnataka. For these are the unfortunate souls who died in the violence following the death of Dr. Rajkumar - one of the doyens of South Indian cinema and an icon for Kannadigas - in another manifestation of the shameful, immature hero-worship

Hero worship in India is not new. For ages now, Indians have been worshipping mere mortals as the avatars of God, or as God himself. Nothing unique in that; after all, the major dividing point between Islam, Judaism and Christianity revolves precisely around that – the role of Jesus and whether he was a mortal, a messiah or the Son of God. It is not my brief to question people’s faith; what I intend to do is to point out the deleterious effects to society of letting it rule over one’s judgment.

Hero worship – be it of the religious kind or the idolatry kind – can have extremely serious consequences if allowed to carry on unchecked. In India, it is also a deeper symptom of social malaise. Here, people often take recourse to cricket or movies as an escape from the rigmarole of day-to-day living – a release from the drudgery of a punishing, impoverished existence. A large number of people live in appalling conditions, with the Government and society at large totally oblivious to their lot. These people face the worst side of the government machinery – the limitless corruption of the bureaucracy, the extortion and physical abuse by the police, and the cynical exploitation by the political class – all things that they often wish to smash with their bare hands – a la Dharmendra – but cannot. This leads to a tremendous amount of frustration and anger, which couple with the bottled up energy from lack of opportunities can lead to an explosive combination.

This tension brewing within the self seeks release in the movies and in crickets. Often, this release is found through fantasizing. An Amitabh Bachchan thrashing up villains, a Dharmendra promising to “drink theb blood” of the villain, a Sachin Tendulkar dancing down the pitch and lifting Shane Warne for a huge six, Dada doing ditto to Murali – all are as much reality as a projection of people’s fantasies on the mortals in the field. This leads to an increased level of expectation from them, which when even moderately achieved can confer star status on the newest greenhorn.

Till this stage this if fine and indeed, even desirable. However, the problem lies when the admiration turns into hero-worship. At this stage, people refuse to believe that their hero can even be wrong – that he has a full scpectrum of black, white and grey to his personality. It is this that makes Kolkattans feel a sense of anguish on the treatment meted out to Dada. It is this that causes a fan of Salman’s to vow to suffer the same treatment as Salman is in jail.

While some of it is understandable and some downright ludicrous, it is still pretty much benign. The major concern occurs when this hero-worship finds violent means of expressing itself, or turns into sycophancy. Some unfortunate manifestations of this are the “Jihadi” attacks on the orders of a fanatic Osama Bin Laden, the attacks on the media (Zee TV) by Bal Thackeray;s followers on their running a satirical program criticizing him, the rioting by Rajkumar fans on being denied a final glimpse at the mortal remains of one of their hero. And yes, who can forget the immortal image of Congressmen lying prostrate at 10 Janpath, begging Sonia Gandhi to “save the party and the country”.

India has already suffered on account of hero worship gone wrong. Who can forget Rajiv Gandhi’s condoning the anti-Sikh riots by his quote “When a big tree falls, the ground is bound to shake” or Devkant Barua’s “Indira is India and India is Indira”? Or the silence of Nehru on the Jeep scandal? Or his condoning corruption charges against Pratap Singh Kairon? (source: http://www.saag.org/papers3/paper219.htm)

It is time we as a nation grow up and start seeing our film stars, our cricketers and our politicians as mortals, as people subjected to the similar trials and tribulations as any of us. It is time we start demanding that they perform of perish. If it means throwing Sachin Tedulkar out from the Indian team, so be it – and lets be brave enough to say “dropped” and not “rested”. If it means Lata Mangeshkar tries to misuse our regard for her singing prowess to stop a flyover being built, let us ask her to leave (or something a lot less parliamentary!). If it means a Salman kills black bucks, let us be willing to crucify him for it.

It is time we realize that with great power and fame come great responsibility and humility. And ensure that those with great power and fame do behave in a befitting manner.

Chosing a focus...

After deciding to revive my blog, I figured that it would be a better idea to actually focus on a few subjects rather than make it a general blog. I mean, once in a while, I will definitely post some idiosyncratic comments, but overall, I realize that I am nowhere hot enough to publish “I had coffee at Coffee Day today, where I dropped the cup and it smashed to pieces” and still have oodles of fans salivating at my every word, as one sees so often in blogdom, especially if the blog belongs to an 18 year-old PYT (pretty young thing for the uninitiated!)

Be that as it may, I did some amount of introspection to determine the one topic that I find the most interesting enough to research and share with others. I found that my interests lie in sports, politics, general lukkhagiri, harmonicaq playing et al. But the one thing I love above all is my country.

I am 100% proud to be an Indian. Like most educated Indians of my generation, I do often feel extremely frustrated with the state of affairs here, so much so that the option of quitting it all and going to a phoren land is often very appealing. I mean, look at the potholes in the road, the lack of electricity, the lack of education, the burgeoning population, the torrid heat, the omni-present dust and the omnipotent disease.

But then, the mind also gloats over the things that make this country great – the enterprise of the people, the willingness to work hard at rates people in the developed world scoff at, the readiness to tell loud-mouthed nincompoops how to change their kids diapers, to year them yell the choicest abuses in return, and yet respond with a smile – even though the mind wants to strangle the last living grey cells of the person, and still bear it all with the stoicness that one associates with this country. And at the end of the day, the heart says, so what if some of the things suck? It is still our roads, our electricity, our heat, our dust – our country!

Considering all this, it is but natural that I chose to focus predominantly on things that need to be different, things that are holding us back from achieving our rightful place in the comity of nations, and what we as individuals can do to correct that balance.

I hope I can do even moderate justice to this endeavour, and that my readers do help and encourage me in this regard.

Apologies!

Well, for all my friends who have been pestering me to either officialy consign my blog to the online equivalent of the cemetery or to make it the online equivalent of the phoenix, I have some good news.

I have decided (and not for the first time!) to revive my blog. Well, like I decide to lose weight, I also frequently decide to revive my blog. But then, there is an intention and then there is an opportunity. For the past two months, I was in Mithapur, working in community development department of Tata Chemicals. My work meant that I had little time and the beauty of the place meant that I have even little intention to write. This time however, I return to the familiar 5 day a week cycle and so, you will hopefully find more from me.

Tata for now...