Justice: Judge and Best Bakery

“Little drops of Water, little grains of sand Make the mighty ocean And the pleasant land, Little deeds of kindness, Little words of love Help to make earth happy Like the heaven above. ” This poem of Julia A F Cabney in “Little Things” was quoted by the Supreme Court judges Doraiswamy Raju and Arijit Pasayat while delivering their judgement on April 12 in the infamous Best Bakery riot case in Gujarat. Before I start I would like to highlight something about the origin of the quoted line “Justice delayed is justice denied.

” This line was written by William Ewart Gladstone (1809 – 1898). He was one of the greatest of English Politicians and also former British Prime Minister. The 15th August 1947 is a red-letter day to the Indians. India got freedom on this day at midnight. The last ship carrying British soldiers left India for England. Struggle for independence was thus over on this day. But, to speak the truth, it was only the beginning of a struggle — the struggle to live as an independent nation and to establish a democracy based on the ideas of justice, liberty, equality and fraternity.

Keeping these ideals in mind the Preamble to the Indian constitution, interalia, declares that — “We the people of India having solemnly resolved to constitute India into a sovereign, socialist, secular, Democratic Republic and to secure to all its citizens — Justice, — social, economic and political …. . But sixty years after Independence, we have endless laws but not enough justice. The founding fathers of our constitution placed “Justice” at the highest pedestal and our preamble to the constitution placed justice higher that the other features like liberty, equality and fraternity.

People use to go to the judiciary in quest of justice. The little drops of humanness, which make humanity a cherished desire of mankind, had dried up when the perpetrators of the crime had burnt alive helpless women and innocent children. Was it their fault that they were born in the houses of persons belonging to a particular community? “Criminals have no religion. No religion teaches violence and cruelty-based religion is no religion at all, but a mere cloak to usurp power by fanning ill feeling and playing on feelings aroused thereby,” the court said.

“The golden thread passing through every religion is love and compassion. The fanatics who spread violence in the name of religion are worse than terrorists and more dangerous than an enemy”. These wise words were spoken by the two judges while ordering re-investigation into the Best Bakery case and its retrial outside Gujarat — in a Maharashtra court. The court has sent a strong message across the country that communal elements, which indulge in mass killings, would not be spared. The apex court quashed the acquittal of 21 accused.

The fast track court had acquitted them and the decision was further upheld by the Gujarat High Court. In the past all such communal elements from both the Hindus and Muslims have, by and large, remained unpunished because of the shortcomings in the criminal justice system. But the apex court has now amply demonstrated that no future rioteers will go unpunished. Between 8. 30 pm of March 1, 2002 and 11. 00 am of March 2, 2002, “Best Bakery” at Vadodara was burnt down by an unruly mob, killing 14 persons in the building. This all happened in the land of Mahatma Gandhi, the apostle of peace.

“When ghastly killings take place in the land of Mahatma Gandhi, it raises a very pertinent question as to whether some people have become so bankrupt in their ideology that they have deviated from everything which was so dear to him,” said the judges. The key-witness, Zahira, was intimidated to turn hostile to record that she cannot identify the accused and that she had not given their names to the police. Later, she met National Human Rights Commission to seek justice. Besides, a social activist, Teesta Setalvad, approached the Supreme Court.

All state governments should also realise that when its law and order machinery becomes inactive to control the riots, it cannot escape strong indictment from the highest court of the land. “The modern day Neros were looking elsewhere when innocent children and helpless women were burning and were probably deliberating how the perpetrators of the crime could be protected,” the apex court said. The judgment is an indictment not only against the Narendra Modi government, its bureaucracy, police, prosecution but also against the state judiciary.

One can understand the inaction of the state governments, its subservient bureaucracy, police and prosecution but not the judiciary. “The public prosecutor was not acting in a manner befitting the position held by him. He did not even request the trial court for holding the trial in-camera when a large number of witnesses were resiling from the statements made during investigation. The powers under Section 165 of the Indian Evidence Act (Judge’s power to put questions or order production) was not resorted to at all’.

One of the witnesses was declared being of unsound mind but it was manipulated by the prosecution to drop him from being a witness, the apex court said. Some of the witnesses were not examined at all without disclosing reasons. Courts are not expected to play to the gallery. They are not expected to be tape recorders to record whatever the witnesses are stating. Section 311 of the Code of Criminal Procedure and Section 165 of the Evidence Act confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidence collecting process. CHRONOLOGY OF BEST BAKERY CASE.

March 1, 2002: A strong 1000-mob burns down Best Bakery at Hanuman Tekri in Vadodara, killing 14 Muslims. March 21: Zahira meets NHRC team, demands justice. May 9, 2003: The case comes in fast track court May 17: Under pressure eye-witness Zahira turns hostile. May 27: Trial Judge H U Mahida acquitts all the 21 accused. July 7: Zahira says she was threatened and the case be heard outside Gujarat. August 7: Gujarat government in the High Court appeals against the trial court acquittals. September 29: The state government amends appeal in the High Court. December 26: The HC upholds fast tract court’s order.

January 2, 2004: The Supreme Court admits Zahira’s appeal against HC order March 12: The SC admits state government’s appeal against acquittals. There was a time when it was an age of barbarism. Civilization begins to progress through many ups and downs. Today we have reached, so to speak, the culmination of civilization. Justice and the judiciary is the inevitable result of that civilization. But the present day society is a victim to the dilatoriness of the process of justice. People unfortunately fall victim to injustice. They suffer day after day. A Major portions of the Indian people are very poor and illiterate as well.

They come to the court to get justice by paying their hard-earned money. They pay to advocates, Law clerks day after day, and wait for justice. They pay for court fees and Wakalatnama and wait for justice. Month after month, year after year passes away- they wait for justice. They become gradually destitute by selling their everything to meet the fees of advocates, law clerks and other expenses and still wait for justice. Sometimes they pass away from the world and never get justice. Dilly-dally policy in the judiciary makes them deprived of having justice. Thus justice remains untouched by many victims in the Indian judicial system.

The more they do not get relief, the more they lose their faith in judiciary. As a result, people gradually will take law in their own hand, which will lead a social anarchism. There will be deep darkness of frustration and futility, — nihilism and cynicism all around. The whole society will be in jeopardy, as the entire judicial system will collapse under its own weight. In the words of K. G. Balakrishnan, Hon’ble Chief Justice of India, “…. the peoples faith in the judicial system will begin to wane, because justice that is delayed is forgotten, excluded and finally discharged There are about 10,000 courts in India .

Out of these, one Supreme Court, 21 High Courts, 3150 District Courts, 4861 Munsif and 1st class Magistrate courts and 1964 2nd class Magistrate courts are there. Besides, there are many tribunals. There are 4. 04 crores cases pending in different district courts across the country while there is a backlog of 34 lacks cases in State High Courts. 1,66,77,657 criminal cases are pending before Magisterial courts and 72,37,495 civil cases are pending in various subordinate courts. As many as 70 percent of these cases are -litigations from villagers. Again some of these cases are as long as 25 to 30 years old.

The longer a case runs, the more expensive it becomes to pursue. Primary causes behind Law’s Delays : a) The hopelessly inadequate number of judges and also courts in the country is undoubtedly one of the major reasons for such delay. Successive Governments have not only failed to increase the numerical strength of judges and courts but have also been slack in filling up of vacancies. At present the country’s 21 High Courts have a combined strength of 725 judges; but there are 128 vacancies left to fill up. The High courts are handling an overwhelming 34,00,000 cases and the shortage of judges is only delaying the legal process.

b) If the inadequate number of judges is one reason behind delay in judicial process another reason is the incompetence and inefficiency of judges. There are some law colleges in India where students do not have to attend classes, teachers need not deliver lectures and syllabus need not be followed. These colleges have become factory of distribution of law degree. A degree is the sole requirement to become a member of the Bar and a degree coupled with a few years standing at the Bar is the only requirement for joining the Bench (in some cases that is also not required).

As a result the quality of judges is far from satisfactory to give us the desired level of — competence, efficiency and effectiveness. Good judgment prevents multiplicity of proceedings. Good advice by lawyers followed by good assistance prevents unnecessary litigation and wastage of time. (c) The habit of taking adjournment by the lawyers is another reason behind delay. Some lawyers take adjournment unnecessarily to harass opposite parties and to extract money from clients. Some of them causes delay by continuing meaningless argument day after day.

In Government cases, adjournment are freely sought to file affidavit because the offices of the Advocate General, the Attorney General and Solicitors General to the Central and State Governments are inadequately staffed and equipped. However, the habit of taking adjournment by lawyers day after day, poses a serious threat to the entire judiciary, which only can be equated with the disease of cancer. (d) Endless amendment of laws is another reason behind delay. Most of Indian laws were amended time and again. As a result, it takes time to understand and explain the new provisions of law.

It kills valuable time of court. These endless amendments make the legal system slow and confusing. Our propensity for enacting laws is really a problem. The Income Tax Act, for example, has been amended over 4000 times since it came into force in 1961. According to Late Mr. Nani A. Palkhivala, the tragedy of India is the tragedy of wastage of national time, energy and manpower for grappling with torrential countless amendments. (e) Absence of work culture in the courts is another reason behind the delayed — justice. Every work of courts is carried out very slowly.

Attraction to the holidays makes the work of judiciary dilatory and procrastinating. Number of — holidays, especially in higher judiciary, are so vast that one can easily count the number of working days. This adds to the number of mountainous pending cases in the court. Some facts : There are several cases where — judgements were delivered by courts after a long time. In Safdar Hasmi murder case, for example, who was killed by political opponents, the criminals were punished after a long 15 years. In Tanduri murder case, the accused a Delhi Congress Leader Susil Sarma was convicted with death sentence after long 8 years 6 months.

He murdered Nayna Sahani and destroyed evidence by burning her body within a Delhi based hotel. In Model Jesicalal Murder case and Madhumita Sarma Murder case, accused persons were punished after a long legal battle. The Supreme Court of India is not even immune to delays. It’s much acclaimed — judgment in the D. K. Basu case in 1996, known for its directives aimed to prevent custodial torture, took ten years to be reached. If a judgment takes this long time in the Supreme Court what can be expected from courts of lesser authority? Various Committees :

For speedy trial and quick — disposal of cases several committees were formed by the Government from time to time. In 1924 a committee was formed under the chairmanship of Justice Rankin. In 1949 Justice S. R. Das Committee, in 1972 Justice J. C. Shaha committee, in 1986 Satish Chandra Committee and in 1990 Justice V. S. Mallimath committee. But the situation has not so changed. The law commission in its 120th report submitted in 1987 — examined the problem of understaffing of judiciary and recommended 50 judges per million of population instead of the present number 10.

5. The inadequate number of judges is a major reason behind delay in disposal of cases. Thus, the main cause of judicial procrastination is not in the hand of judiciary but in the hand of executive and administrative wings. Justice R. P. Sethi in Anil Rai vs. State of Bihar, Criminal appeal of 6th August, 2001], [observed that in a country like ours where people consider judges second only to God, effort should be made to strengthen that belief of the common man.

His Lordship was of the view that time has come for the judiciary to assert itself to preserve its stature, respect and regard for the rule of law. He observed “for the fault of few”, the glorious and glittering name of the judiciary cannot be permitted to be made ugly6. Former Attorney General of India Mr. Soli Sorabjee in a lecture at the Nehru Center in London lamented the laws delays and said the criminal justice system in India was on the verge of collapse on this reason. He also observed that, “Justice delayed will not only be justice denied, it will be the Rule of law destroyed”.

More than 60 percent of pending court cases in India are the result of — “State” action or inaction because some official of the central or State Government or agency has failed to act justly — towards a citizen or a group of citizen. Lately, Hon’ble Supreme Court has delivered guidelines for quick disposal of cases. The arrears committee headed by Justice V. S. Mallimath (1990) — identified various causes of accumulation of arrears of cases in the High Courts. Some of the principal causes are : (i) Litigation explosion; (ii) Accumulation of first appeal; (iii) Inadequacy of staff attached to the High Court;

(iv) Inordinate concentration of work in the hands of some members of the Bar’ (v) Lack of punctuality among judges; (vi) Granting of unnecessary adjournments; (vii) Indiscriminate closure of Courts; (viii) Indiscriminate resort to writ jurisdiction; (ix) Inadequacy of classification and granting of cases; (x) Inordinate delay in the supply of certified copies of judgments and orders etc. Some suggestions and conclusion : All the above points, should be taken care of. Proper steps should be taken immediately to solve the above problems. Adjournments must not be given on flimsy and frivolous grounds and beyond certain numbers.

To speed up the process of justice, computerization of the whole country’s judicial system is the need of the hour. The judges must set examples for themselves and others by maintaining a decent degree of punctuality and dutifulness. However, hoping against hope, Hon’ble Supreme Court has already taken some steps to avoid law’s delay. E-filing has been introduced in the Supreme Court on 2nd October, 2006. It is now possible for any advocate – on -record or any other petitioner to file his matter through internet from anywhere in the world. Computerization has been introduced in some of the High Courts in India.

In this era of globalization and rapid technological developments — various avenues of laws are opening day by day. Justice and judiciary have an important role to play in this – globalize world. If we do not care it — that we may at our own risk. However, at a cursory glance to the reasons behind laws delay and the steps that have already been taken in various quarters after a long time, the author is of the view that many things still remain to do before long. The real picture is not very satisfactory and encouraging. No effective changes are made particularly in the lower judiciary to prevent laws delays.

That is why recently Mr. Fali S. Nariman, an eminent Indian jurist and former Rajya Sabha member, when delivered the first Nani A. Palkhiwala Memorial Lecture, expressed with grief about the laws delays that – “Injustice is easy to bear, what stings is justice”. Before I conclude I would like to opine with the former Attorney General of India Mr. Soli Sorabjee that — justice delayed will not only be justice denied, it will also destroy the Rule of law,- a basic feature of our Constitution. However, let us gird up the loins to protect and preserve it. By Adv. Prachi P. Prabhu.