"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Wednesday, May 6, 2015

Tale of two cases: Judicial delays and social tensions

Judicial delays are in vogue only during intervals.  On Law Day or during high profile seminars and conferences where media attention falls. The constantly escalating statistics and ensuing discussions without tangible solutions have desensitized us. It do not to touch the daily lives of majority of the populace perceptibly except few unfortunate ones whose Kafkaesque existence have a brush with law. While the miserable litigant wait for years, grow old and shrivel and the door meant only for him closes on his face forever, how on earth should he react!

Statistics have a detaching effect.  It definitely offers critical overall assessment but obscures singular nuances, missing the trees while seeing a forest. Two litigations, one in which judgment might be delivered today ie., 6th May, 2015 and another decided on 6th of April, 2015 is engaged to image the impacts of delay in judicial process in particular and legal process in general.

Shamima Farooqui v. Shahid Khan is a petition for maintenance by a Muslim divorced wife under Section 125 of Cr.PC, which the SC of India allowed on 6th April, 2015. The judgment draws attention to an overwhelming aspect of maintenance litigations in the context of the present case. The petition for maintenance was filed in the year 1998 in the family court. It lived 16 years and travelled up to the national capital, for a person to get allowance to maintain oneself.  There was no order of interim maintenance during this entire period. In paragraph 13 of the judgment, Justice Deepak Misra squarely addresses the apathetic attitude of judicial officers and legal system and reminds what they owe to people and justice. Shamima Farooqui waited 16 long years in front of doors of law for what is due to her to sustain herself or merely to live. She alone will be the witness to what she endured during this extended period. Reducing her to a digit in the data disconnects her experiences of seeking justice through established means of legal system. Her travails become inert and disregardable.

One person was killed and four others injured when an SUV ran into footpath in September 2002. A trial that started after four years of investigation and the long winding legal process might culminate today, 13 years after. Life of the litigation perhaps is gearing up for further few decades as the possibility of appeal, review and even remand are waiting to commence. Thirteen years for a criminal case to reach its first verdict would sound ridiculous in any other civilized society, but for India, this seems to be the norm and normal. Media and public have debate and comments on various aspects of the case but the delay is a nonissue. 

Examining the reasons for judicial delay and fixing the problems of the legal system is not attempted here as it is been done ad nauseaum. Attempt is to link certain signals society is sending on the delays and denial of justice. Inordinate and unacceptable delays in justice delivery that go beyond private litigations, which in itself is problematic, when touches public lives and it reaches a critical level, society’s faith in legal system is bound to break. The sense of inability of the system to deliver justice will cause people to turn to substitute structures of power that is capable of dispensing instant justice. In the alternative, some become justice dispensers themselves according to their measure. The growing rate of public lynching as extreme examples and responses of ordinary public braying for blood of alleged rapists instantly without procedure are illustrations of this mindset. It doesn’t take long for the balance to tip. Such a society is a fertile ground for recruiters who promise power of transformation through violent means to the disgruntled youth.

The statistics of pending cases has more than mere numbers and percentages; it has tears, sweat, blood and forewarning. Each digit has a story to narrate provided we have sensitivities to notice. Then even digits will start to haunt.

Postscript: Early alumni of NUJS, sure will be fondly recalling their Labour Law teacher who could bring out tears while teaching Section 2A of Industrial Disputes Act, when he theatrically starts “deceased Shambhu Nath Mukherjee…”  The reference is Delhi Cloth And General Mills Ltd. vs Shambhu Nath Mukherjee, a litigation that started by a workman in 1965 in Labour Court and by the time the final verdict was delivered in 1984 by the SC, the judge had to start the judgment as ‘deceased Shambhu Nath Mukherjee’.


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