Police, courts: Making India's justice work

Police and courts in a democratic society like India are public interface institutions and play a vital role in maintaining law and order and in protecting and safeguarding the constitutional rights of the citizens.

Police being one of the most visible arms of the state, interacts with the people more frequently and in situations when they are in distress and require immediate intervention.

As a result they have to bear the brunt and wrath of the people for the action taken and in discharge of official duties most of the times.

On the other hand, judiciary and the existing court system in India plays an important role in maintaining law and order, dispensation of justice and safeguarding the rights of the people as envisaged by the constitution of the country.

The Constitution of India grants judiciary an independent and self-regulatory status separate from the Executive and Legislature.

The court system in India seems to be loosing faith of the citizens, as cases are lingering and piling up in courts and dispensation of justice getting unduly delayed.

The State of the Nation survey conducted by CSDS in collaboration with CNN-IBN checked the popular perception about police and judiciary in India and questions connected with it from a cross section of people.

Methodology:

The survey was carried out at 882 locations among 14,786 respondent spread across 18 states of India. The questions related to police were asked to 5818 respondents and questions related to courts were asked to 5501 respondents across all the locations.

To debate and discuss the findings was a panel comprising former IPS officer Kiran Bedi, senior advocates of the Supreme Court Vindra Grover and Ashok Desai. The discussion was moderated by CNN-IBN Senior Editor Sagarika Ghose.

In India it is generally seen that the procedures of the court are too lengthy and too expensive.

Advocate Ashok Desai agreed and said he was surprised that it was only 35 per cent who felt that way. He said, "Unless we are robust judges who refuse adjournments, are willing to expedite matters, individual cases linger on for years together until clients lose their interest or ultimately have to give up their litigation. And while we have great confidence in the institution of courts, an individual litigant comes back full of personal anguish because of the delay."

"To take a simple example, a matter in the Supreme court. Every time it is adjourned, it costs lakhs of rupees to the clients on both sides. And yet every admission in the Supreme Court has virtually three or four adjournments writs," Desai added.

The survey shows that 14 per cent Indians approach the court when required but four per cent did not. Is it because of the sheer shortage of judges?

Vindra Grover said that she thought there were two aspects for this matter.

"There is a structural reason, which is not about shortage of judges alone. We need to see what is the budgetary allocation we are making to our judiciary. I think it requires serious introspection by all of us." She felt that there was shortage of judges, however she also mentioned about the recent amendments that says no adjournments will be granted. "Unfortunately, the bar association has gone on strike. They have cited many reasons for the strike. No adjournments have to be made the rule here," she said.

Grover felt that the delay was one aspect of the people's alienation from court. The other aspect, she felt, was that the people are feeling that they are not being heard, they are not being understood and certain concerns are not being heard. She said that the shift away from the constitutional principles may alienate large communities and not just individuals and that could be very precarious for our system.

Is there a rich-poor bias as there is a feeling that the rich can just go and get the justice they want?

Kiran Bedi concurred saying, "The rich can afford to be getting heard. The poor are probably left with very little. She strongly felt that there was a rich-poor divide.”

Following the recent spate of corruption cases involving judges the image of the judiciary in the public eye too is falling.

Desai said that the image of the judiciary in the public eye was indeed a worrisome episode.

Desai explained his argument, "The judiciary has taken on a burden and has asserted rights for its citizen of India far beyond what the founding fathers expected. Our fundamental rights have been extended. At the same time, I find more and more judges are on a frolic of their own. If few of them bring bad name to the system and the opacity which is now created by judges by not being willing to disclose what ought to be disclosed is matter really of concern. It affects the reputation of the institution itself."

"Those of my colleagues who are members of Parliament have to declare their wealth and I don't think they hesitate at that. Why do they declare their wealth? Because the Supreme Court said that you must disclose various particulars of your fitness to become a member of parliament. Why can't the same yardstick apply to a judge?’ asked Desai.

Isn't it shocking that a judge doesn't want to declare his wealth?

Grover, too, expressed her concern on the issue and said that judiciary should command respect.

"I think it has caused a lot of concern amongst people. Justice must not only be done but seem to be done. The institution has to be above all. The institution must command that kind of respect. The kind of murmuring and mutterings that we are hearing within society, the only way to stop this kind of alienation from the judiciary if for the judiciary to rise above it all and to declare assets to have complete transparency and allow comments on judgements, which should not be seen as contempt," Grover said.

Police's role in the delivery of justice

"We can't put everything at the door step of the police. There is something between the court and the police, it is called mediation. We need to evolve a proper mediation system, which is in many other countries. They have mediation law, they have authorised mediators who step in and take the pressure off the police. How can everything be left in the doorstep of the police?" A mediation policy needs to be evolved where a lot of issues should go into mediation first and reconciliation and everything need not come at the doorsteps of the police or the court," said Kiran Bedi.

Vindra Grover said she I would like to take criminal cases were prosecution needs to be done. She said such cases needed to be seen in two or three ways. “A, there is lack of skills, and torture whether through narco-analysis or through beating up people is the only way we have ever found evidence. B, we have no systems to actually curtail corruption. In-house mechanisms within the police have not worked. Immunity is granted and therefore we have this kind of impunity. Even where courts do understand that yes torture has taken place, courts seem to be backing off and saying 'we will turn a blind eye, we will condone it'. And that is what is leading to these kinds of situation,” she said.

Like many other cases in the Jessica Lal murder case, too, police were simply not able to produce the evidence. So what can the court do in such situations?

Kiran Bedi clarified on the matter further. She said that she wanted to see what kinds of contributions the bar council made in improving the legal delivery system. She felt that the bar council was the actual change makers.

“Are they just assembly of lawyers or are they contributors to legal processes changes. Citizens need to know what kind of proactive systems have come through courts," she added. "I am aware of certain decisions of the Rajasthan court, a particular rape case, delivering a judgement in 30 days, if one High Court can do, what about other courts?”

“They have followed the same process,” she said.

She felt that it was important to highlight the good points that certain courts were following. She said that just as people expect the police to evolve innovative practices, they should also do that for the courts.

Desai responded by going a step backward and saying that mediation in a police case was unheard of and what really can be tried out is what in America is called 'plea bargaining'.

He asked Bedi whether a system by which a criminal case can be settled by plea bargaining would not be a manner of cutting down a large number of cases particularly offences which do not really carry a very large sentence?

Bedi responded to Desai's statement by saying, "Plea bargaining is being used very, very little so far. When I am talking of mediation, there is a very large noncognisible matter going into the police. Where does a person go if he has a landlord-tenet dispute or a husband-wife dispute? Every time it is going at the doorstep of the police. As you know even for serious crimes, the investigating officers are very little. Where is the mediation linked with the police station? Where it could say 'all right refer to it', and even compoundable offences.”

Grover added another dimension to the conversation by saying, "We do not have an independent directorate of prosecution. We do not permit prosecutorial discretion in this country, we have mandatory prosecutions. We need to move away from that.

Although there is disappointment the way the judiciary is working, disappointment about delays and slowness and expensive court cases, yet, there is also a significant percentage that is happy. Hope is not dead in the judiciary system. The judiciary then is a citizen of our republic, it is where the ideas of our founding fathers live and breathe ever so urgent that we don't lose faith.

How much confidence do we have in the police? How much corrupt is the police?

Bedi said that she wanted to go deeper in to the survey. She said, "I would think this kind of a national survey should also become state surveys to see which state is leading in what. There are differences in the police departments of different states. I am the biggest propagandist for state surveys."

She felt that CNN-IBN deserved full marks for this nationwide survey, but urged for a state-wide surveys as well.

Is the proposed police reform law unrealistic? It is proposing too much autonomy to policemen which a politician will never give.

Desai said, "One of the problems which we have is that law and order is a state subject and each state seems to regard it as some sort of a grace and favour which they can confer on their followers. Two things need to be done. One, terrorism requires an all India response and a federal response which means that law and order will have to shift to the concurrent list. This is a very important change where the states would be reluctant whatever lip service they pay to a unified system of fighting terror.

What are the reforms that are going to be made realistically?

Ashok said, “You have to give certain autonomy. Look at the instance of Uttar Pradesh. Every chief minister moves inspector generals of police as if they are toys to be trifled with and the ones who does not accept the politicians point of view you remove him within a short period.”

Are the charges against police politically motivated? Who are the police going to be accountable to?

"I think that's a very pertinent question. We need to understand police reforms. What are we seeking autonomy from? The police don't fit in the constitutional framework as an independent autonomy. They have to be accountable. Brutality, torture is routine. It is a method of police functioning today. It is not done only at the behest of politicians. The other thing we need to look at is the institutional prejudice that whether we are seeing in Gujarat whether in 1984. Therefore, when we talk of police reforms, we have to talk about accountability and mechanism of accountability has to be put in place,” Grover said.

However, Bedi differed and said, "It is not autonomy. I think what we are talking of is insulation. Do we have an escape from the directors of Supreme Court? How can you get away from the judgement of the Supreme Court of September 22, 2006? If they are not, they are committing a contempt of court. Citizen groups haven't gone back saying. We are looking at insulation. In fact, we are raising accountability. With the security commission there, you are looking at insulation and within complaint authorities you are raising accountability. Let's get it right. You are actually saving yourself from illegal directions, because the police can't put the blame on some authority. You are raising accountability by insulating them.

The survey showed that 49 per cent of the victims said they were satisfied with the police

A very nuanced picture that is coming out from our survey. Although there is disappointment in our institutions, there are some sections who are saying they are satisfied.

There is still hope. The Indian citizens have not given up on the judiciary, not given up on the police. The institutions given to us by our founding fathers are alive.

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