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Mainstream, VOL LIX No 40, New Delhi, Sept 18, 2021

Poor and common People of the country look towards the CJI with the high hopes of their liberation from state repression | Arun Srivastava

Friday 17 September 2021


by Arun Srivastava

The Indian judicial system is horizontally split in two hemisphere having divergent dimension and dynamics. While the lower judiciary has not succeeded in disconnecting itself from the colonial practices and mode of functioning, the higher judiciary is finding it tough to over throw the drag of the modern political institution and system and assert its own independent status and rights.

It is bound to happen as in both the cases the presiding officers are unable to liberate and detach themselves from the primordial relations. The presiding officers instead of looking at the incidents in a holistic manner, allow themselves to be directed by the political imperatives.

There is one more basic difference between the two. While for the lower courts are not bothered at all of the fundamental human rights and personal liberty and they look at every individual as a hard core criminal, the higher judiciary has to perform tight rope walking.

Indians know how badly the legal system is broken. It is beyond comprehension why a lower court judge would accept any stupid and illogical case against any oe filed by the police. The judges know how the police behave, how they are forced by the vested interest. We have seen in recent past a large number of false cases were filed by the police at the behest of the BJP -RSS local level leaders and cadres against the people who are either secular or opposed to the hatred campaign launched by the saffron brigade, The judges do not ask a single question to verify the truth and based on the whimsical allegations placed before it by the police send the innocent person in jail for weeks and months.

Often the police approaches these judges with the plea to implicate the concerned person under UAPA or sedition charge. What is surprising even after keeping that person in jail the police never files a chargesheet specifying the charges against him. The entire process has acquired the character of harassing the individual and teach him a lesson or settle the old rivalry.

It is beyond comprehension how a person criticising the government could be charged under sedition law or punished under UAPA. In fact the police has completely changed the tenet of the law and has been interpreting according to its convenience. The judiciary which should have stood as a guard to the manipulative tactics of the police sadly allows itself to be a collaborator to their machinations.

Are we supposed to believe that the judges are so naïve not to differentiate the motive and actions of the police and the complainant? Often the complainants belong to the BJP-RSS ort their front organisations like Bajrang Dal, Hindu Sena etc. It is also significant to watch such organisations have mushroomed after Narendra Modi led BJP government came to power in Delhi. An insight into the entire modus operandi would reveal that each stakeholder from police to person representing judiciary have their personal stake.

In recent times the police has been falsely implicating any person opposed to the BJP-RSS under UAPA. They approach the judges at the lower level to send that individual in jail for uncertain time. The judges oblige the police. Are we supposed to believe that the judges are so naïve not to understand the implication of this move of the police. He can seek certain clarifications and information. Bur instead od doing so they simply oblige the police and become a collaborator in ruining the life of that individual. No doubt this is a special act, but even then the judge can play a pro active role instead of simply toeing police line.

Judges must realise that they are ruining hundreds of precious lives by refusing to question the intenstionbs and motives of the police. Let us take the case of implicating a person under the scrapped section of 66A of the Information Technology Act, which allowed the police to arrest those who posted offensive content online. This was struck down in 2015. Why the judges did not object. Obviously they had their own interest. “There is misuse of these provisions, but there is no accountability!” On July 5, People’s Union for Civil Liberties had informed the court that the police were still filing cases under the scrapped section. The court expressed shock at this and issued a notice to the Centre. During Thursday’s hearing, the Supreme Court also said that the situation on the ground was very serious. “If some party doesn’t want to hear the voice of another party, they may use this type of law and implicate other people,” it added. “It’s a serious question for individuals.”

The general allegation cannot be denied that lower judiciary has been communalised to a great extent and judges are too willing to gratify the Hindutva vigilantes. The judges are not so naïve to know why the police was acting in partition and discreet manner. The Supreme Court has to intervene and issue directives to judges to apply their minds. It must understand that communalisation at the lower level would erode the fundamentals of the judicial system and also erode its credibility in the eyes of the people. Already reports emanating from the judicial circle has been causing embarrassment to the judiciary.

Delays in resolving cases are legendary and have reached a point where they prevent citizens from even exploring a legal solution to a problem. It takes 1445 days to resolve a dispute from the date of filing. For criminal cases, if a case ever makes it to court, the delays are much longer. It is possible to die in jail before getting one’s day in court or die waiting to see the perpetrators get punished in court. Recently father stans died in police custody as he was denied the bail.

This endless trial process is a menace which is used by the police and judiciary to harass the innocent people. Witnesses often change their testimony because it is difficult for the Indian state to keep witnesses safe over long periods as the perpetrators undergo trials.

There are about 20 million pending cases in the trial courts, to be disposed by about 15,000-16,000 trial court judges. About 30% of the cases take between 2-5 years and another 30% of the cases take over five years. Additionally, there is a backlog, (i.e. the difference between the cases initiated in a given year and the number of cases disposed in a given year) that has only grown year on year. Though it is said that justice delayed is justice denied, the fact is the judges are least bothered of it. They wilfully delay delivery of the justice.

There are four areas within the justice system that need immediate reforms. Most of these reforms pertain to the lower judiciary, which is usually the first point of contact between the citizen and the judicial system, and also the starting point of the glut in the judicial system.

While appointing judges impartial intelligence agencies should be used to find the background of the probable incumbent. Thre Vacancy rates in the lower courts are about 25% and in High Courts about 40% Indian courts are, thus, only operating at only 75% of their already extremely deficient capacity. And therefore, all current vacancies should be filled without delay.

There must be complete transparency in the appointment process. Lower judiciary need a streamlined recruitment process that is handled by full-time administrators and not judges. i.e. our judiciary needs a dedicated HR manager. The Indian judiciary needs to have a dedicated registrar, administrative, and management service, like Her Majesty’s Courts & Tribunals Service in the UK, to address administrative needs of the judicial system.

The courts need a case-management system that streamlines the process of filing a case, getting a date for hearing, filling additional paperwork, rejoinders, responses, etc. The Indian judicial system still operates largely the way the British set up the courts centuries ago. Other than the highest level, there has been virtually no updating of the physical and technological infrastructure of the courts. Even in higher courts, for instance, judges spend valuable time in court scheduling cases and dates and hearings.

The supreme court must fix a definite date line for disposal of cases at the lower level. The judges cannot prefer to sit on the cases for indefinite period and grant date after dates. This practice must stop forthwith. The manner in which the lower courts are operating the people have started losing trust on the judiciary. They have come to believe that the judges are the cadres of a political party. This would certainly not well. The sititaion will invariably explode on the faces of the higher judiciary and the [political system.

In the Indian case, we are neither achieving justice nor efficiency. In fact, the lack of efficiency is denying justice. India is notorious for granting adjournments and allowing parties to exploit delays in the judicial system. The first step is to amend the evidence and court procedures and reduce the number of , and the situations where, the court allows delays, continuances, and adjournments.

If we get into a detailed analysis as to why the Indian judiciary is slow, it can be said that the problem lies at the grass-root level. To be honest, the levels of difficulty people face in getting their cases heard contribute largely to the overall chaos in the system. Right from the time that is taken to lodge an FIR to the time that is taken in the lower court, the High court or the Supreme Court is beyond imagination. The malice of corruption has penetrated deep into the system. With too much of corruption present in the legal profession, all the processes get slowed down.

Fast track court system has proved to be farce. It has lost much of its importance and is being viewed as an instrument to serve the interest of the ruling elite class.

Over the years, the Law Commission of India’s reports have recommended several reforms. In addition to these, there were reports by Justice GC Rankin (1925), Justice SR Das (1949), and Justice VS Malimath (2003). Civil society organisations have also released reports on the different facets of the justice delivery system. Despite the plethora of such documents, the inefficient justice delivery system has only become more inefficient.

It is worth recalling from the preface to the Justice Malimath Committee’s report: “Everything has been said already, but as no one listens, we must always begin again.”

What is immediately needed is to improve the quality of the judges appointed, and employ qualified staff and adequate resources and equipment; promote the values of equality, speed and quality which should be practiced by judges and lawyers; prescribe time limits for all court cases.

Lawyers in India have said the police were frequently using the anti-terrorism law as it enabled them to detain the accused for longer periods of time without a trial. Lawyers see this as part of police’s efforts to stifle peaceful dissent.

In August, the Centre had told the Parliament that 1,948 people were arrested under the UAPA In 2019 but only 34 were convicted. Over the last couple of months, courts and Supreme Court judges – both former and sitting – have expressed their concerns over the inadvertent use of the legislation. In July this year Supreme Court judge Justice DY Chandrachud had said that the law should not be used for “quelling dissent”. It is worth mentioning that former Supreme Court judge Justice Madan Lokur said that the courts, society and the State should consider the mental trauma afflicted on the families of activists, journalists and civil society members accused of sedition and UAPA.

It is imperative that the use of the Unlawful Activities Prevention Act, 1967 (“UAPA”) needs critical analysis, especially in light of the increasing use of the UAPA. What is surprising is that while the UAPA was enacted in 1967, its constitutionality has never been challenged in any of the High Courts or the Supreme Court. The UAPA has had several amendments, and the most recent amendments being made in 2019 amending Section 35. This amendment allows the Government to even categorize individuals involved in terrorism and not just organizations. It is only the 2019 amendments that have been recently challenged in the Supreme Court in two recent petitions.

The National Crime Records Bureau (NCRB) reveals that there were no crimes registered under the UAPA before 2014. Even the crimes registered under the Terrorist and Disruptive Activities Act, which was repealed, is “0” from 2006 onwards. There could be some UAPA cases included generally under the heading ‘other SLL crimes” but it seems unlikely because in subsequent years the UAPA is marked a separate crime head. The NCRB records crimes under the UAPA only from the year 2014 and from 2014 there is a rise in the use of UAPA. The total numbers of cases filed under the UAPA rose from 976 in 2014 to 897 (2015), 922 (2016), 901 (2017), and 1182 (2018).

The use of the UAPA has substantially increased in States where the BJP has been in power. The 2018 NCRB report also mentions that 3920 UAPA cases are pending investigation from previous years with the added reportage of 1182 fresh cases, totally making it 5107 cases under the UAPA pending totally till 2018. This shows that once accused are charged under the UAPA, while bail is rarely granted, trials take years to complete with a majority of the cases even from 2014 not having completed trial. With this data, it is therefore important to ask how the constitutional rights of the accused can ever be guaranteed.

As many as 5,128 cases under the stringent antiterror law and 229 on charges of sedition have been lodged across the country in a five-year period from 2015. Minister of State for Home Affairs G Kishan Reddy tabled the data for a period of 2015 to 2019 in response to a query by Rajya Sabha MP Abdul Wahab.

There has been over 72% increase in the number of persons arrested under the anti-terror law UAPA in 2019 compared to 2015. As many as 1948 persons were arrested under the UAPA in 1226 cases registered across the country in 2019. Such cases registered in 2015-2018 stood at 897, 922, 901 and 1182 and the number of those arrested was 1128, 999, 1554 and 1421 respectively.

The government had declared 42 organisations as terrorist organisations and listed their names in the First Schedule of the UAPA, the Minister said and added that “terrorism in India has largely been sponsored from across the border.” A reply by the government in the Lok Sabha shows that only 2.2 % of cases registered under the UAPA between 2016-2019 ended in convictions by court.

Legal experts say this implies that in many cases, the accused remained incarcerated for up to six months without provision for bail because an officer decided to evoke UAPA. “Police can misuse UAPA. Availing of bail in UAPA cases is not easy. While an accused becomes eligible for automatic bail after 90 days in IPC, this time frame is 180 days under UAPA,” said former director-general of prosecutions T Asaf Ali.

Interestingly in many UAPA cases, the charges don’t stand, and are dropped eventually for want of proof. But the jailed person faces huge trauma during trial. Police should not be allowed to evoke UAPA without solid evidence. In many cases, the charges are leveled based on surmises. But those evoking UAPA charges against a person should be made accountable if the charges are dropped later.

There should be a mechanism where the court orders a probe after UAPA charges are dropped. It should look for any misuse of UAPA, and if there is any, the official concerned and state should be held accountable.

Common people have come to nurse the believe that presiding officers at the lower level indulge in the game to appease the political masters. If the judge is under some kind of legal obligation to accept the case filed by the police, it is high time Supreme Court must intervene and bring about a change in the procedure. This cannot go on. This is a blot and the crooked politicians will use it to gain fame and money. They resort to this practice to gain their favour and acquire a prominent political slot. This has been happening at the cost of destroying the precious lives of the innocent people. This is the biggest crime the judges were doing in collusion with their friends and cannot be pardoned.

Judicial magistrates cannot extend deadlines given to investigating agencies to complete inquiries and file chargesheets in cases registered under the Unlawful Activities Prevention Act, the Supreme Court has ruled. In an order Justices UU Lalit, Bela Trivedi and S Ravindra Bhat had said that only special courts established under the National Investigation Agency Act, or in their absence sessions courts, have the power to extend deadlines. But the lower cpurets have not adhering to the legal norms. As a result of this the police has using its own prerogatives and make the accused personb languish in jail.

A court in Bhopal had denied them bail in 2014, after which they approached the Madhya Pradesh High Court. The petitioners sought bail on the grounds that the police had failed to file a chargesheet against them within the prescribed 90-day period, according to the Hindustan Times. But, the High Court noted that the chief judicial magistrate in Bhopal had extended the deadline to file the chargesheet from 90 days to 180 days, and held that the petitioners could not be granted bail. The High Court upheld the magistrate’s verdict. In this context, the Supreme Court bench noted: “In so far as time to complete investigation is concerned, a magistrate will not be within his jurisdiction to extend the time for filing of the charge sheet...such a power is non-existent.”

With the desire to please its political masters, the police not only misused the UAPA, it even distorted the sedition law. The sedition law should have no place in democracies which thrive on criticism of the government. It ought to have no place in societies that recognise that states of existence are temporary, that truth is not one-dimensional, that versions are merely interpretations. But as the law suits the sadistic sentiment of the politicians, the police use it with the help of the gullible judiciary.

A couple of months back the Supreme Court had said India’s sedition law belonged to the colonial era and sought to know whether it was still necessary to use it after 75 years of Independence. The obse4vation was made while Chief Justice NV Ramana and Justices AS Bopanna and Hrishikesh Roy were hearing a petition filed by a retired Army general, challenging the constitutional validity of Section 124A (sedition) of the Indian Penal Code. “This dispute about law is a colonial law, it was meant to suppress the freedom movement, the same law was used by [the] British to silence Mahatma Gandhi, [Bal Gangadhar] Tilak etc,” the chief justice said.

Ramana said the continuation of these laws after Independence was unfortunate. “The government is introducing many laws, I don’t know why they are not looking into this,” the chief justice said. Ramana even observed that there was no accountability of the executive. “If we go see history of charging of this section, the enormous power of this section can be compared to a carpenter using a saw to cut the entire forest instead of a tree,” he added. “That’s the effect of this provision.” Barely a month back sedition case was registered against farmers in Sirsa, Haryana for breaking the windshield of a minister’s vehicle!” he tweeted. “That’s what this law is being used for.”

The petitioner, Major General SG Vombatkere had said in his plea that the sedition law is based on unconstitutionally vague definitions like “disaffection towards government”. “[It] is an unreasonable restriction on the fundamental right to free expression guaranteed under Article 19(1)(a) [of the Constitution] and causes constitutionally impermissible chilling effect on speech,” the petition added. Obviously in view of this the court must take into account the “march of the times and the development of the law” before dealing with Section 124A.

It is an open fact that sedition law has no place in a modern democracy. Born of an authoritarian mindset and fixation with order, it’s been done away with in most of the world. It is the illegitimate child of two fathers; one is monarchy and the other a fixation with “order”. A monarch lives in perpetual fear of an overthrow hence the desire to quash dissent by not permitting it to be even uttered.

In June, the Supreme Court quashed sedition charges against mediaperson Vinod Dua. However, more than six months ago, a journalist from Kerala, Siddique Kappan, was charged with sedition (among other things) by the UP police. Though Vinod Dua got released, the poor journalist Kappan is still languishing in jail. Dua was never arrested while Kappan has not yet been granted bail. A decade ago, Binayak Sen was convicted of sedition and imprisoned. His case clearly did not meet the requirement of the Supreme Court.

Legally speaking, one of the main problems with the sedition law is that it is poorly defined. Some time back Justice Chandrachud had remarked, “Everything cannot be seditious. It is time we define what is sedition and what is not.” In another important case (PIL filed against Farooq Abdullah, the former Chief Minister of Jammu and Kashmir), Justice Chandrachud stated, “Expression of views which is dissent and different from the opinion of the government cannot be termed seditious.” Similarly, Delhi High Court’s ruling in the Disha Ravi case clearly stated that the government cannot put citizens “behind bars simply because they chose to disagree with the state policies” and “the offence of sedition cannot be invoked to minister to the wounded vanity of the governments.” These rulings by the judiciary clearly diverge from the interpretation of the sedition law by the executive and show how the law is being indiscriminately misused by them. Unfortunately sedition law is spuriously by the police to falsely accuse individuals as it does not clearly state which acts are seditious and provides a broad outline of what can be classified as seditious.

Hundreds of habeas corpus petitions from Kashmir have been put off indefinitely. Father Stan Swamy, a social activist in his mid-eighties and suffering from Parkinson’s, has been denied a straw to drink water because the investigating agency wants 20 days to respond to the request. Eminent poet Varavara Rao, also in his eighties, who has multiple afflictions and is practically dying has been denied bail; as have scholar Anand Teltumbde, activist Sudha Bharadwaj, student leader Umar Khalid and anti-CAA activists in Delhi and Uttar Pradesh. By arresting people under the non-bailable UAPA (Unlawful Activities Prevention Act) and tarring those detained as “Urban Naxals”, “Maoists”, “anti-nationals” and such in terms which evoke fear and prejudice in public minds, the police and governments have denied bail, hearing or trial to so many for long periods. These are undeniably cases of denying personal liberty. These lives are placed “on the path of destruction”, to use Justice Chandrachud’s phrase.

Freedom of speech and expression is the hallmark of a democracy. In the existing situation the Supreme Court is the only institution which can protect the people and ensure that fundamental rights are not ravaged by the state. A democracy requires citizens to actively participate in debates and express their constructive criticisms of government policies. But the Modi government has made it pariah. Any body criticising the government is instantly described as anti national and precisely enemy of Modi. The only place left for him to live is jail. Time is subjectively as well objectively ripe for Supreme Court to intervene, as the sole mainstay of the Constitution and justice, and set the things right. We have seen how the state and political establishment of the country have been playing havoc with the lives of the people and democratic institutions of the country. The government has used the sedition law to suppress protesting voices to protect its interests.

It is worth mentioning that out of 326 cases registered in the country under the controversial colonial-era penal law on sedition between 2014 and 2019 just six persons were convicted. The Supreme Court is in agreement that Section 124 (A) of the IPC — offence of sedition — has been enormously misused. It must strive to scrap it. Along with it the court should also ensure that lower judiciary is made absolutely responsible and it must not act in arbitrary manner to please politicians and police. Supreme Court must make the high courts and lower courts take up the cases of less equal citizens? It must stop judiciary from denying personal liberty.

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