Justice must be founded on sympathy, compassion

We should lay the blame at the doorstep of all three pillars of democracy Legislature, Executive and Judiciary.

Over several decades now, we have seen committee after committee being formed to address the menace of pendency eating into the vitals of health of judiciary as a vibrant institution. Rankin Committee was of 1924 vintage, on delay in civil cases in High Courts and subordinate Courts. After independence, 1949 saw High Court Arrears Committee under the stewardship of Justice S.R. Das. It was then the turn of Committee headed by Hidayatulla CJ in 1969. Not long after, Justice Shah presided over High Courts Arrears Committee, 1972. One has lost count of them.

The opening lines of V.S. Malimath Committee give away all that is wrong with our efforts. “Everything has been said already, but as no one listens, we must always begin again,”using the words of Andre Gide, French thinker, and Literature Nobel prize winner. They added for emphasis, “Law should not sit limply, while those who defy it go free and those who seek its protection lose hope”. (Jennison v. Baker (1972) 1 All ER 997). The Committee on Reforms of the Criminal Justice System was constituted by the Government of India, Ministry of Home Affairs by its order dated November 24, 2000 and came to be known as Malimath Committee - to consider measures for revamping the Criminal justice system.

One of the major Terms of Reference was to make specific recommendations on simplifying judicial procedures and practices and making the delivery of justice to the common man closer, faster, uncomplicated and inexpensive; Sound good, neat and simple. However, it may be proper to ask the family of Lalit Narain Misra and Jeevajyothi, what has come of the reform.

And the Malimath Committee could not have put it more succinctly than in these words. “It is common knowledge that the two major problems besieging the Criminal Justice System are huge pendency of Criminal Cases and the inordinate delay in disposal of criminal cases on the one hand and the very low rate of conviction in cases involving serious crimes on the other”

The tragedy is that there is such a deep-rooted systemic fault that none has the time, inclination and perseverance to dig deep and root out what ails it. A couple of classic instances - Nambi Narayanan and the poignant story of Anita Shourie wife of Arun Shourie, journalist would reveal, that not just Jeevajyothis as complainants are denied closure in real time, even the accused could be harassed and not allowed to have one. To put it cynically and sarcastically, both simultaneously, it would appear that the system treats both complainants and accused in an even-handed manner.

On Sept,14,2018 the Supreme Court directed the Government of Kerala to pay compensation of Rs 50 lakhs, to Nambi Narayanan. The famed ISRO scientist holding that “The criminal law was set in motion without any basis. It was initiated, if one is allowed to say, on some kind of fancy or notion. The liberty and dignity of the appellant which are basic to his human rights were jeopardized as he was taken into custody and, eventually, despite all the glory of the past, he was compelled to face cynical abhorrence. This situation invites the public law remedy for grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. In such a situation, it springs to life with immediacy. It is because life commands self-respect and dignity.

Does it mean closure? Of something that began in 1994 - a 24-year saga. No, not by a mile. He was hounded out in the prime of his career and the loss was not his alone. It was India’s too. For, there was a sure fire international conspiracy ‘to fix him before he delivered on the cryogenic engine ahead of many an advanced country’. The shame was that the possible conspiracy was perpetrated by the Kerala Government with the aid, advice and collusion of Kerala Police, not to ignore the role of the Central Government of the day.

Then there is the poignant story of Anita Shourie. In his book Anita gets Bail - What are our Courts Doing? What should we do About Them, Arun Shourie records vividly what he, his wife and family went through while his wife was afflicted by Parkinson’s disease and unable to so much as move. Shourie in his own inimitable style with felicitous yet sad prose portrays the tribulations they faced “for evading summons that were never served, summons that were ostensibly issued for their having built a house that was never built, on a plot they did not own.”

The insensitivity of the Court and its utter disdain to the travails of a bedridden patient, who was brought to Court on a stretcher, form a Kafakesque backdrop. A case that ought not to have been filed. It was ‘Taken on File’ without a care for the substance of it. A thoughtless process when application of mind was called for. Then, an act or no act which was no crime, which ought to have been scotched at the earliest point of time was allowed to go to trial with a ‘Magnanimous Court’ acquitting her in the end. It was a heartless process involving shuffling of papers and calling of cases but with very little empathy or concern for a hapless Anita. It is a system meant to safeguard the interests of the genuine criminal, for whom it costs little to procrastinate and drag it on till cows come home, if at all.

We should lay the blame at the doorstep of all three pillars of democracy - Legislature, Executive and Judiciary. Leave aside the expected harmony - they work at cross purposes and the utter callousness and indifference to Police reforms has resulted in amateurish investigations letting the culprits go free and intimidate the complainants who dare to pursue a crime. It is time for a movement of sorts that legislature take note of and amend the requisite laws on the recommendations of Malimath Committee and many more. The Executive needs to take serious note of the dire need for Police reforms. Then the Judiciary, which has invented the Collegium for itself, ought to crack the whip to the subordinate judiciary and train them to empthaise with those who appear before it and treat them with dignity and compassion they deserve. The act of the appointment of judges and presiding officers must be cleaned up to recognise talent, competence, honesty and integrity rather than compromise on their faculties, for extraneous reasons.

Jeevajyothis and Anitas and Nambinarayanans may have to wait a lot longer. It is not as if the judiciary is to blame for the most part. The judiciary, of course, takes within its ambit, legal fraternity. It is an old boy’s network at play, where adjournments are asked for and given. Time may have come for the courts to insist on written submissions as a rule and not permit oral submissions to go on interminably. And, above all else,’administration of justice ought to be founded on and for those it is meant, with empathy and compassion and not distant and disdainful unconcern - as Justice Krishna Iyer put it, with prescience.

(Author is practising advocate in the Madras High Court)

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