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'Legal system is no longer an instrument of the people'

By Geoffrey Cook in Los Angeles
October 06, 2008 17:04 IST
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In America, groups of people will often be brought together in one space that will rarely be available in the same way at home (India). This was the second annual programme on Indian democracy sponsored by the Federation for Democratic Reforms in India and the Center for South Asian Studies at the University of California (Berkeley). The emphasis for the conference for this year, held on September 26 and 27, was an overview of 'Justice and Law' in India today.

India, as an amazingly developing nation, is unique in its multicultural democracy. Thus, the relation between its democratic political culture and economic growth must be examined for the future of its enhancement.   

The participants represented jurisprudence, law enforcement, NGOs, business/finance and academia and included names like Flavia Agnes, Pradeep Chhiber, Lawrence Cohen, Rajeev Dhavan, Marc Galantar, David Gilmartin, Colin Gonsalves, Sridar Iyengar, Erik Jensen, Madhu Kishwar, N R Madhava Menon, Manoj Mate, Pratap Bhanu Mehta, Suhas Palshikar, Vikram Raghavan, Vishwa Ranjan, Raka Ray, Nandini Sundar, K C Suri, Siddharth Varadrajan, Arvind Verma, and, most importantly, retired Supreme Court judge, Justice B N Srikrishna who chaired the commission of inquiry into the 1992-93 Mumbai riots. 

Professor Pranab Bardhan of Berkeley early on noted that the rule of law in India has been dysfunctional. Therefore, in his view, "People are disgusted with the judiciary."

Pratap Bhanu Mehta of the Center for Policy Research was quite effusive in a personal discussion. "Democracy refers to the process" while "legitimacy involves creation of policy." If there is a gap [here], democracy is not working. "If a crisis of law exists civil society may not be able to fix it." The Indian courts have stepped in to create a consensus.

Legal educator N R Madhava Menon mentioned, "We require more democracy to solve our problems." The notorious backlog in the Indian system makes access to "timely justice hard." In more recent times, "Judicial activism is generating governance from the bench." Ultimately, in such a situation, there must be "accountability from the judiciary."

In an interview, Madhu Kishwar, founder of the influential NGO and publication Manushi for Women, asserted, "To break the institutions[s] of the bureaucracies, one [must presently have the right to entry into the Supreme Court]. Yet most of the oppressed [needing such protection] lack it."

Unfortunately, "The lower courts will deal with insignificant issues, and not weighty matters. Therefore, a plaintiff has to go to the high or Supreme Court for policy [level] matters.

"The need for litigation should be a rare necessity, for policy should be created in consultation with the stakeholders themselves."

Arvind Verma, a retired Indian Police Service office who is currently professor of criminality, University of Indiana, criticised the police for not even "preserving a crime scene" consistently. He could not prosecute a unformed official without the permission of the government, while civil society gives law enforcement a nod to stage "encounters". Verma said the legal basis among citizenry for such encouragement should be closely investigated.

I was able to get a strong interview with Dr Verma. "The Indian police are quite independent from other levels of government. The control of corruption depends upon independent police chiefs who are curtailed by the cultural code of silence within the various departments. This code of silence has arisen from the pervasive misuse of force. If the individual police chief is proactive, his department will be free of bribery."

Professor Verma, during his years of police service, is proud to have sent 48 of his junior police officers to jail for corruption and/or brutality during his years of service.        

Rajeev Dhavan, another leading Indian jurist, emphasised, "There is no institution performing to perfection." Additionally, he showed that there is an astonishing investment on the police. 

Kashmir, for instance, is under the old military law promulgated by the British. "[The] army State goes along with [the] police State, we have a colonial space that has been superimposed upon a police State." Besides, there is no "democratic oversight of the police. We (must) have a discretionary democracy."

Marc Galanter of the Madison campus of the University of Wisconsin is greatly respected by his peers at the conference. His chief concern was the lowly lower courts. The "civil court use is among the lowest in the world." The "congestion is not because so much comes in, but because so little goes out". He once heard a New Delhi lawyer exclaim, "If you have a strong case settle, if a weak one go to court."  People, though, are now looking for alternatives to courts, and the various proposals for such were looked over in detail.

Galantar answered my queries on who uses the courts and why: "Almost every case in the civil courts are referred on. Besides, there are considerable problems with enforceability, some classes and castes have accessibility to the courts and others [do] not. Geographically the richer [states] have a lower use of litigation than their poorer neighbours."

Eliot Gonsalves, Esq, of a human rights' NGO pointed out that although India has an 8 per cent economic growth rate, 70 per cent of its population is below the poverty line, and blames globalism. The judiciary, consequently, is dismantling the social net bit by bit.

"We need support from Americans. I hope the people in America can relate to our poorest," for in his opinion, "His legal system is no longer an instrument of the people."  Further, "Contemporary India has changed quite dramatically. There has been a dismantling of the criminal justice system" to a negative result.

The keynote speaker on Saturday was Justice B N Srikrishna, retired Supreme Court judge. He made two important points. One, "India is based on pluralism," and a litigant will "have to pay lakhs of rupees to get competent representation" at the Supreme Court.

However, Srikrishna ended his speech with, "I am an eternal optimist."

The last session was on the tragic insurgency/counter-insurgency in Chhatisgarh. This proved to be a highly contentious panel with vociferous demonstrators descending upon the hall with accusatory signs against some of the participants.
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