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Judicial activism: How far does it go?

July 13, 2011 17:00 IST

Judicial activism has come about due to the failure of the executive, but that does not mean the judiciary should dabble in all areas where the organs of State are functioning, says Colonel Anil Athale (retd)

The recent Neeraj Grover murder case and public attention due to the alleged 'love triangle' brought back memories of the famous Nanavati case (external link). Any Indian on the wrong side of their 50s remembers the case that brought traffic to standstill in Mumbai, catapulted the tabloid Blitz to number one position, and was a great source of entertainment for the vast public.

The case had all the elements of glamour, suspense, intrigue, honour and betrayal. Public sympathy at the time was with the accused, Commander Cawas Nanavati, unlike in the present Grover case. But more than the national publicity to the Nanavati case, it also had a long term impact on our lives! Yes, one is referring here to the abolition of the jury system.

It is with some degree of trepidation and uncertainty that one sets out to write on the judiciary, partly out of lack of specialised knowledge and also the ever-present fear of contempt of court. Naturally, then, this author will confine his observations to generalities and a layman's point of view.

In 1994, a journalist friend had interviewed Karl Khandalavala in Pune. The interview of course was about his contribution as an art collector and preserver par excellence. But invariably the subject of the famous Nanavati case, in which he was the defending lawyer, inevitably came up. Karl was also of the view that the jury's 'not guilty' verdict in that case, despite clear evidence to the contrary, sealed the fate of the jury system in India.

Why was the jury system abolished?

The hasty abolition of the jury system in India is the first judicial puzzle. Since we adopted the Anglo-Saxon system of jurisprudence, a jury is an important part of the system. It is through the jury that public opinion and common-sense enter the judicial process. In its absence, the whole process becomes purely technical and dominated by lawyers.

A classic case was the well-publicised Jessica Lal murder case. During the trial the judge himself admitted that he was convinced that the accused was guilty, yet he was forced to release him on a technicality. If there were to be a jury, this would certainly not happen. The jury system is also in consonance with the Indian tradition of having a 'panchayat' (five wise people) sorting out minor disputes at the village level.

Why is no one punished for perjury?

Despite not being from the legal fraternity, this author can vouch for the fact that in the last 40 years there have been just two or three cases of people being punished for lying under oath. Is one to believe that all Indians have suddenly turned virtuous? Have we ushered in 'Satya-yug'?

The Indian Penal Code under Section 191 defines perjury as giving false evidence and by interpretation it includes statements retracted as the person is presumed to have given a false statement earlier or later when the statement is retracted.

But hardly anyone, including legal experts, could recall a single case in which a person was prosecuted for making a false statement before the court. Under Section 191 of the IPC, an affidavit is evidence and a person swearing to a false affidavit is guilty of perjury punishable under Section 193 IPC which prescribes punishment up to seven years imprisonment.

Perjury is regarded as an extremely serious offence all over the world, but in India lying in court is routine. The fear of being jailed for perjury persuades witnesses to tell the truth. If the witness turns hostile, it will amount to perjury with no defence possible, and the judge can convict the witness on the spot. That will surely persuade witnesses that lies are less profitable than the truth.

One of the biggest charges against former US president Richard Nixon was lying -- a charge that led to his resignation and loss of presidency. On the other hand, in India, for instance, in the so-called BMW hit and run case, the rich man who mowed down several people due to drunken driving escaped as the main witness turned hostile.

Currently the burden of launching a prosecution against perjury rests with the prosecution. But in most high-profile cases, the prosecution is not interested in justice but actually works to help the accused.

As the courts increasingly take suo motu notice of many issues ranging from environment to black money, why can't the Supreme Court lay down the law that courts will henceforth take suo motu notice of perjury and punish the witnesses for lying under oath?

Judicial delay and indefinite bail

How is it that in so many high-profile cases -- of actors killing people in drunken driving cases, actors, cricketers caught killing the black buck (an endangered species) or even complicit in terror activities -- the accused remain on indefinite bail with no prospect of their case ever coming to a conclusion in their lifetime?

Should there not be a time limit set for bail period? Because, without such a limit, the rich and the powerful have all the incentive to delay the final verdict.

Can the highest court not lay down a reasonable time limit for bail? If a time limit for bail is set, the rich and powerful will no longer have any incentive to delay trial.

Many years ago a former high court chief justice had confided to this author that one of the biggest causes behing judicial delay is the Supreme Court itself. He explained that the correct forum for deciding the question of facts in a case is the high court. When an appeal challenges its verdict on the basis of facts, the highest court has no business in entertaining an appeal.

According to him, the Supreme Court must accept appeals only if it involves a point of law. He then went on to say that the apex court had indiscriminately accepted appeals even when there was a dispute about payment or non-payment of rent -- a case under the Rent Control Act! Is it any wonder, then, that we have a backlog of 20 million or more cases?

Judicial overreach

A recent judgment on special police officers in Naxal-hit areas has held these to be illegal and to be disarmed. This would have made perfect sense if the Naxals were peaceful Gandhians. With this judgment, the apex court has condemned SPOs to a certain death at the hands of Naxals, who are both well-armed and beyond the pale of the judges.

With a stroke of the pen, the judges have taken away the right to defend from a vast population who face the threat of armed militants in Naxal-hit areas as well as in Jammu and Kashmir. The fundamental flaw is that the judiciary does not understand what India faces in these areas.

In Kashmir, Manipur or Naxal-hit areas, what the State is dealing with is guerrilla war. No war can be fought under the criminal penal code. Stretching this logic, the village defence force, home guards or even the Territorial Army are illegal!

Judicial activism has come about due to the failure of the executive, but that does not mean the judiciary should dabble in all areas where the organs of State are functioning.

Conclusion

When confronted with the dismal fact that the conviction rate in India is just four percent, members of the judiciary often hide behind the argument that they can only interpret and implement laws and are helpless in the face of Parliament's failure to enact suitable laws. To a great extent this is true -- the vested interests in bureaucracy and politics make sure that laws are made in such a way that there are enough loopholes left for the rich and famous to go scot-free.

But there are areas like indefinite bail to the rich and famous or non-punishment for lying witnesses, that lie totally under judicial control. It is a puzzle as to why the otherwise hyperactive judiciary is ignoring these issues that can make a vast difference to the rule of law in the country. If paid heed to, the menace of 'stock witnesses' and the culture of impunity that lead to the rich and famous flouting the law, could be controlled.

Colonel Anil Athale (retd)