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India's Justice System Is in a Sorry, Sorry State

Categories: South Asia, India, Citizen Media, Development, Governance, Law, Politics
Image from Flickr by Krishnaraj Rao. Used under a CC license BY-ND 2.0 [1]

Image from Flickr by Krishnaraj Rao. Used under a CC license BY-ND 2.0

A couple of months back the Indian judicial system set social media, local news and many a household abuzz by handing Bollywood star Salman Khan [2] a five-year jail term for a 2002 hit-and-run incident.

Two days after the court's decision, however, his sentence was suspended by Bombay High Court [3] and he was swiftly released on bail, turning public attention towards a judicial system that is frequently seen as non-transparent, unfair and — if you are not a Bollywood film star — very, very slow [4].

There has always been a feeling India’s elite can get away with any wrong-doing while the average even middle class Indian citizen would have faced a much different (read severe) punishment had they been behind the wheel in a hit and run case.

But the Salman Khan ruling was the just tip of the iceberg. The Indian Judicial system is plagued by serious and long-term problems.

Consider the case of Machal Lalung [8], an Indian living in the Silchang village in the state of Assam. Machal spent 54 years in an Indian jail [9] without facing trial despite no specific charges.

When he was 23, Machal went missing from his village and a record in Guwahati Jail reveals that he was booked under Section 326 of the Indian Penal Code – ‘voluntarily causing grievous hurt by dangerous weapons or means’.

If found guilty, the maximum penalty under this section would have required him to spend 10 years in prison. Instead, he was forgotten about and spent more than five decades there. Machal was released in July 2005 and died two years later.

But the Indian court system is filled with stories of people who have had to wait decades languishing in jails waiting for trials. One reason for the maze [10] of delays in administering justice is the shortage of judges — India has only 13 judges in the lower courts per million people [11], comparing to more than 55 judges [12] for every million people in the US.

This shortage is complemented by Indian lawyers who demand hearings one after another in order to collect fees [13].

DAKHS [14] is an independent, professional, apolitical, not-for-profit organisation based in Bangalore, which is working on the rule of law project [15] focusing on the pendency and backlogs in the Indian courts. Kavya Murthy [16] at DAKSH blog writes:

The problem of pendency — all cases instituted but not disposed of, regardless of when the case was instituted in the courts — we have found, is a much studied one, accompanied as it is with a widely held common sense that sees the judiciary as several steps behind its potential in being unable to deliver timely justice. “Justice hurried is justice buried” and “Justice delayed is justice denied”: commonly understood maxims that tell us that the quality of justice is very much dependent on the time taken to deliver it.

Across all Indian courts there were more than 30 million [17] open cases in the country at the end of 2013.

According to Bloomberg Businessweek's calculations [18], “if the nation’s judges attacked their backlog nonstop – with no breaks for eating or sleeping – and closed 100 cases every hour, it would take more than 35 years to catch up.”

Pavan Kulkarni [19] writes at India Together:

Harish Narasappa, the co-founder of Daksh, drew attention to the dismaying numbers of pending cases, that we see published in newspapers every few months: “3 crores in the lower courts, 45 lakhs in high courts and between 65,000 and one lakh cases pending in the Supreme Court, depending on which part of the year you look at the data.”

But there has been no analysis of what these numbers mean. What does it mean when we say there are 3 crore cases pending? How long has each case been pending? And why is it taking such a long time to decide each of these cases? These are questions pertinently raised by Narasappa.

According to the Prison Statistics Report published by National Crime Records Bureau of India, at the end of 2013 there were a total of 267,503 undertrial prisoners [20] in the country.

The total number of jail inmates was found to be 411,992 [21], up by almost 7% compared to the previous report. The lack of trials is taking its toll on jails already running above their capacities. In 2011, the occupancy rate was 112.1% increasing to 112.2% in 2012 and 118.4% by 2013. Catering for the growing number of prisoners is eating into the country's budget.

To ensure long-pending cases and those involving undertrials are resolved, the government set up fast-track courts in 2000. Back then, the central government allotted financial resources to setup 1,734 courts and a central grant was made available to them for an initial period of five years, later extended till 2011.

However, when the funding was discontinued and the responsibility fell on State governments, many fast track courts simply shut down [22] and according to the Ministry of Law and Justice, there were just 976 fast track courts functional in August 2014. Although it was revealed that these courts handled more than 3.8 million cases, doubts over the quality of the verdicts still lingered. Fast track courts now look at crimes against women and children and there are plans to set up more of these courts, especially in Delhi, where 20 are expected [23] to open this year.

The Indian justice system's numbers reveal an institutionalised shambles. It would be no exaggeration to state that the largest democracy in the world has one branch of government that has gone missing. People like Machal have literally had their lives taken away from them for no reason at all.