Tag Archives: judiciary

Judicial reform is a must

Even after six months have lapsed since the chief justice of India emotionally pleaded for filling up the vacancies in courts, the government is sitting over the names cleared by the Supreme Court, undermining the agony of judiciary.

Recently, after the apex court spoke of scuttling and decimating the institution of judiciary, only 10 names have been cleared for appointment. This was despite Supreme Court taking exception to the Center cherry-picking the names recommended by collegium.

The logjam that started in August 2014 between the government and the judiciary has become complicated over the period of time. In August this year, the apex court had to warn of judicial intervention if the impasse is not broken. The warning came after the government’s response to the objections of the collegium in the memorandum of procedure (MoP) regarding who shall have the final say in selection and rejection of names. Since then, both the parties are yet to agree on the MoP to proceed further on the appointment process.

If the timeline of the matter is of any indication, it is clear that the government has decided to confront the judiciary on MoP notwithstanding its reservations. Also, there seems to be no hurry to fill the existing vacancies. On the other hand, Supreme Court is not ready to accept the clause in the MoP that gives the Center a veto like power to reject any recommendation of the collegium even after it has been reiterated.

At present, India has 10.5 judges per million population, one of the lowest in the world. In 2014, the Law Commission in its 245th report had suggested that there should be 50 judges per million. The recommendations of the Law Commission are still in cold store. There is not a single word from the government regarding consideration of the recommendations or otherwise. In the monsoon session of Parliament, the government had admitted of 475 vacancies in various high courts of our country. Allahabad High Court tops the list with 82 vacancies followed by high courts of Hyderabad, Bombay and Calcutta.

Situation is not comfortable in lower courts either with nearly 5,000 vacancies. The last time the sanctioned strength of the lower judiciary was increased was in 2012 when an additional 2,787 posts were created by the UPA government. So, by any rational standard, the judiciary in India is undermanned. Even the fast track courts are suffering from manpower shortage. With this crunch in human resource, the judiciary is fighting with the herculean task of clearing 3.2 crore pending cases, the figure expanding with each passing day. Just the high courts alone have more than 38 lakh cases pending for judgement.

Such vacancies are not only affecting speedy disposal of cases but also affecting quality of justice as well. A study conducted by a Bengaluru based NGO Daksh found that high court judges in India are getting an average 2.5 minutes to hear case and an average five to six minutes to decide a case. Nothing can be better calculated to destroy the sanctity of the institution than the prevailing situation. In the mutual distrust between the executive and the judiciary, the common man is losing trust on the both.

The delays have the potential to make matters worse. It impacts the whole system. We should not forget that 68 per cent of the inmates in Indian jails are under trials. They are in jails because they cannot afford the bail amount. They belong to the poor and marginalised sections of society. Over 55 per cent of the under trials are dalits, tribals and minorities. Approximately 5,000 persons with mental disabilities are languishing in various jails in India.

There is an imperative on the part of the government to break the deadlock so that the vacancies in judiciary are filled up without any further delay and the health of the judiciary is recovered before it gets paralyzed. Besides, additional courts must be created and additional judicial officers must be appointed till the backlog is cleared. Ad hoc judges under Article 224A of the Constitution should be appointed to clear the backlog in the high courts for a period of five years or till the backlog is cleared. All the cases which are pending in the high court for two years or more can be allocated to these ad hoc judges. Since the annual institution in high courts as well as in subordinate courts exceeds their respective annual disposal, additional judges in high courts as well as in subordinate courts should be appointed on permanent basis to deal with the increase in institution over the disposal.

Another important aspect that has been repeatedly pointed out by the apex court is litigations by government. Being the largest litigant, it should reduce the burden on the courts. The structural gaps in the judiciary need to be fixed. The infrastructure in courts should also be rebooted. The state governments concerned should also expedite filling up the vacancies in lower courts.

An independent and effective judiciary is the very heart of a republic. Judicial reform, in accordance with contemporary needs and challenges, is necessary. We also need more women judges. After 70 years of independence, women constitute less than 10 per cent of judges in high courts. Access to justice is a fundamental right. State cannot disown the responsibility it shares with the judiciary to deliver an efficient and accessible justice system to the people of India.

Death penalty is arbitrary and should be abolished

The recommendations of the Law Commission for graded abolition of death penalty has once again opened the debate on both the right of a State to take away the life of a person as well as effectiveness of death penalty as a deterrence against crime. The Commission is of the view that the notion of an ‘eye for an eye’ and ‘a tooth for a tooth’ has no place in our constitution and legal system.

The Bhagavad Geeta has also taught us that there is no permanent labelling of human beings as good or evil. Even the man with most evil ways may chose to turn a new leaf, sometime in his life. Jesus has also said that even when we have undeniable proof of another’s wrong doing, we should exercise mental charity. Therefore, we should not label a man a criminal beyond redemption and approve of putting him to death, without giving him a chance to repent and mend his ways.

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As per Amnesty International Report, 2014, at least 2,466 people in 55 countries have been sentenced to death in 2014 and more than 19,000 people were believed to be under sentence of death worldwide at the end of 2014.

During this period, 64 persons have been sentenced to death in India. The figures appear to be high given the value of each human life is concerned. But, still there is a positive sign that the number of executions recorded in 2014 decreased by 22% compared to 2013. In case of India also, the number has reduced by almost 50% (from 125 in 2013 to 64 in 2014), during the period. A total of 339 convicts were awarded capital punishment during 2011-13 in India.

This itself is an indication that the judiciary across the nations, including India, is gradually feeling uncomfortable with death penalty as a form of punishment.
The change in heart and change in perception is not without basis and logic.

About 80% of the under trials belong to the disadvantaged sections of society. A study done by National Law University, Delhi, and the Law Commission has confirmed that there is a class bias in awarding the death penalty. According to the study, more than 75% of death row convicts belong to backward classes and minorities; 75% are economically vulnerable and over 93% of those sentenced for terror crimes are minorities or Dalits.

This goes against the principle that justice should not only be done but also appear to be done. One of the basic objectives of retaining capital punishment is believed to have an effective deterrent against crime. But, does it serve the purpose? Have we ever tried to correlate between the two? Perhaps not, fearing of not establishing the correlation.

There is no evidence to support the argument that death sentence has a greater deterrent effect on crime than imprisonment. In fact, I have not come across any scientific study establishing that capital punishment deters criminals from committing crime. So far as victims’ right is concerned, injustice, once done, cannot be returned. Death sentence is irreversible and in justice system which is not free from human error, execution of an innocent cannot be ruled out.

The Supreme Court has, in the past, admitted that death penalty jurisprudence is arbitrary in India. Secondly, there is possibility of using death sentence as a political tool. When capital punishment is used as a political tool, either to silence the critics or to reap electoral dividends, it has the potential to create disharmony in society.

The issue of national security is definitely a serious and sensitive issue. Keeping this mind, the Law Commission has kept it outside the purview of abolition. But, we need to keep in mind that we are victims of state sponsored terrorism. Terror is being unleashed against India as a political and military strategy. So, death penalty of a terrorist will have no implication as a deterrent.

Besides diplomacy, we need effective counter-terrorism measures, stringent border management and very effective internal security and intelligence mechanism to fight against state sponsored terrorism. This will help us to fight not only against terrorism but naxal insurgency and internal law & order issues as well.

As rightly pointed by Justice AP Shah Commission, the capital punishment system is diverting our attention to other urgent issues like low conviction rate, prevention of crime, protection of witnesses, police reforms, etc. According to the National Crime Records Bureau data, the rate of conviction in crimes committed under IPC has dropped significantly in the recent decades.

In serious cases like rape and murder, conviction rate is abysmal, less than the average conviction rate of 38.5%. So, there is an urgency of strict enforcement of law and police reform so that conviction rates can be higher. This will be a greater deterrent than capital punishment as the probability of being punished for committing a crime will be higher. The Government should also clear the National Judicial Appointment Commission mess at the earliest and fill up the vacancies in both higher and lower judiciary.

The Law Commission had recommended earlier that there should be at least 50 judges per one million population. At present, the number is eleven. So, the vacancies need to filled up on an emergent basis. Approximately, 2 crore 64 lakh cases are pending in lower and district courts. If the Government can fast track these cases, it will benefit crores of people. This will bestow confidence of people on the State and judiciary. Another important thing is that cases should be examined in terms of their merit, the result not being influenced by media and public opinion. Media driven justice is against healthy judicial practice.

With nation-states evolving and their criminal justice system becoming more humane, nations after nations are abolishing death penalty. Despite this, the phenomenon is still there and unfortunately exist in a great civilisation like India. It is time for India to take a positive and progressive move and do away with the irreversible and extreme form of inhuman punishment. Even the ‘rarest of rare’ doctrine is arbitrary. Let’s build a mature, functional and healthy criminal justice system. There should be complete moratorium on capital punishment.

The Author is a Supreme Court Lawyer and National Media Panellist, the Indian National Congress. The views expressed by the Author are personal.

Source-http://www.ibnlive.com/blogs/india/jaiveer-shergill/death-penalty-is-arbitrary-and-should-be-abolished-14401-1102711.html