BEST BAKERY - A SAMPLE OF FAST TRACK JUSTICE
Today morning's Dainik Bhaskar (local Hindi newspaper) carried an interesting news-item. There was a theft at the house of Rekha, the famous film actress, way back in 1986. Rekha lost some jewellery in the theft. The police acted and recovered the jewellery soon after the theft. It took the judicial system seventeen years to hand over the jewellery to Rekha. Last week, she finally got possession of the jewels.
Rekha should be thankful that her case was handled by a normal court and not by a fast track court. India's courts have acquired a bad name for delaying matters for decades. It is often said, "Justice delayed is justice denied". But two years back Government of India created so-called "fast-track courts" that have proved the other famous maxim, "Justice hurried is justice buried".
Stung by the criticism of backlog of cases, the Government created the fast-track courts. On last count more than 1000 such courts (target was 1,734) have been set up all over the country. This was a quick band-aid to cure a cancerous disease and surprisingly, it seems to be working, at least on the surface.
Fast track courts scheme involved an infusion of funds by Central Government for erecting new court buildings. Retired judges were appointed on a two-year tenure basis; and lo and behold - fast track courts were created by executive action without any legislative sanction or provision. Functional aspects of the fast track courts were left to the judiciary - simply put, nothing was decided on any functional aspect. The only thing that we are told is that each judge was given a target to dispose of at least fourteen sessions cases in a month.
Disposal mentality has been the key behind the setting up and working of fast track courts. The performance of a fast track court (even of all other courts in India now) is judged solely by the number of cases disposed in a month. There is no evaluation of the quality of judgements. Quantity rather than quality is the mantra sweeping the judicial system in the country today.
The fast track courts scheme made no systemic changes in the judicial system. No new code of procedure has been created. Retired judges, who have a past but no future, are dispensing justice at a speed that is truly mind-boggling. What is interesting is that these same gentlemen never performed at even half the speed when they were in their regular careers.
Two reasons are being touted for the extra speed shown by fast track courts
Ten days back, I had an occasion to spend a day at fast-track courts in Indore. The advocates were talking openly of this judge being open to adjustments and that judge being slightly difficult. Stories could be heard of how a judge can ruin an advocate's career by giving adverse judgements based on personal whims and fancies. A senior advocate preached to me about the importance of 'tact and personal relations' (euphemisms for you-know-what) in this profession. Apparently, earlier when disposal was slow, a judge had limited power but in these days of quick disposal the off-bench relationship between judge and advocate is very important.
All this loose talk in the court compound is never reported but can be heard across the country. The effect of this new 'culture' in courts across the country is a cause of worry. But before that a few more observations - almost all lawyers with whom I interact complain about the lack of new business. The courts at Indore were not half as crowded as they used to be three years ago. Of course, there were huge number of lawyers, but litigants were much less in numbers. No official records are available, but I suspect that the number of civil cases filed per year has come down. Similarly, private complaint criminal cases filed in a year are also coming down.
These observations, which need to be confirmed by a more scientific study, point toward a very serious trend. It seems that the common people are losing confidence in the judicial system. As a litigant, one cannot feel too enthused if one's lawyer tells him in whispers that the judge is open to adjustments. After all, if the judge is open to adjustments, one's opponent is as likely to be able to manage the adjustments. Justice in such a case becomes a big gamble (some might call it an auction). Not many would like to gamble (or participate in a shoddy auction).
Combined with this is the attitude of lawyers. Faced with increasing competition, reducing business and their own insatiable greed - they spare no efforts to manage, adjust and distort the judicial systems and procedures, even resorting to arm-twisting of their own clients. The power of lawyers in the judicial system arises from the basic tenets of adversarial judicial system where a judge is not supposed to dispense justice. A judge only hears the arguments of two adversaries and decides whose arguments are more acceptable. A judge has no power to reject both sides and order for more detailed presentations, leave alone carrying out any enquiries or investigations on his own. So if one of the litigants has an incompetent or lazy or corrupt lawyer, the other side wins in spite of the judge knowing fully well that balance of justice should tilt the other way round.
All these are systemic faults that came fully to the fore in the recent infamous Best Bakery case. Twelve persons were burnt alive in the bakery and two went missing on 1 March 2002, in the post-Godhra communal violence. The case was tried by Justice HU Mahida, Additional Sessions Judge of Fast Track Court at Vadodara. On 27 June 2003, in a 24-page order the judge acquitted all the 21 accused. All the key witnesses including the complainant in the case had turned hostile. The judgement mentioned that the police have proved weak in handling cases of communal violence.
No one denies that Best Bakery carnage actually incurred. Obviously, it was not an act of God that occurred spontaneously without any human intervention. The court realized that the police have not investigated the case properly. The court could have thrown the case back at the prosecution (police) and told them to investigate properly and come back with sufficient evidence. It may be argued that under the Criminal Procedure Code, a sessions judge has no such powers. This is a question of law on which the Court could have sought reference from High Court under section 395(2) of Criminal Procedure Code. The sessions court could have also sought a writ from High Court under Article 226 of Constitution asking for an investigation by another agency, say CBI, in the case. The judge did not choose to resort to any of these valid legal options and chose to close the case without nailing anyone responsible for the carnage.
National Human Rights Commission (NHRC) Chairman AS Anand has termed the Best Bakery case as a 'miscarriage of justice'. NGOs across the country are demanding a reopening of the case and a retrial in the case. Apparently, under the present constitutional and legal provisions, this cannot be done. No person can be tried twice for the same offence. Of course, the NHRC may recommend to State Government to file an appeal or revision in High Court.
In the midst of this excitement about retrial or in any other way ensuring justice in the Best Bakery case, the key issue that has somehow been lost is the issue of the quality of justice-delivery systems and procedures. Justice Mahida was in a tearing hurry to dispose of the case and did not mind even if this resulted in 'miscarriage of justice'. The concern in the case ought not to be the fate of the 21 accused who have been acquitted. That is important but certainly not as important as the conduct of the honourable judge and the judicial system.
NHRC should get over its preoccupation of making to the front-page headlines by jumping on the bandwagon of a communally charged case. It should rather spend its time and effort to look at the way the fast track courts, in specific, and all courts in general have been performing. There can be no human rights in a society where courts are answerable to none, act irresponsibly, have no accountability, act with impunity and let themselves be manipulated by the wheeling-dealing of crooked lawyers and other external influences. The 'miscarriage of justice' in Best Bakery case is neither an accident nor an isolated case. It is illustrative of the deeper malaise that has come to afflict the country's judicial system.
NHRC and the nation as a whole must conduct studies that monitor on a regular basis the quality of judgements delivered and the level of confidence of the people in the judicial system. Unfortunately, law schools of Indian universities are in no position to carry out such studies. Fast-track court scheme was a quick-fix that has apparently worked on the surface in as much as the backlog of cases has probably gone down and there is a quick disposal of cases. On the other hand it has led to serious problems by leading to a gross 'miscarriage of justice' in thousands of cases leading to an erosion in the institution of judiciary.
It is a serious matter if courts take seventeen years to return jewellery seized from a thief to its rightful owner. Our sympathies must go out to Rekha for the delay, but it would have been worse, if the judge had made some off-bench 'adjustments' and declared someone else to be the rightful owner of the jewellery. Unfortunately, that is the game that is being played across the country in the name of justice, while the country devotes its attention to individual cases like Best Bakery, ignoring the systemic issues of quality and credibility of the judicial system as a whole.
28 July 2003
Please write to me your comments about the above article.
ANIL CHAWLA is an engineer (and now a lawyer too) by qualification but a philosopher by vocation and a management consultant by profession.
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