Wednesday, February 24, 2010

Decongesting prisons: 42 undertrials freed

It was not easy to believe but it may have started!  The earlier news about release of undertrials from prisons seems to have started with a somewhat substantial number of 42 undertrials being released in a day in Delhi.

A city court released 42 undertrial prisoners Wednesday in a start to a project to put the criminal justice system on a fast track. The plan is to reduce the number of undertrial prisoners by two-third in the next six months. About 170,000 prisoners will be released countrywide by July.

The process, an initiative of Law and Justice Minister M. Veerappa Moily who was present at the Patiala House court along with Delhi High Court Justice Madan B.Lokur here to witness the first such release Wednesday, was started in view of the overcrowding in Indian jails, the huge pendency of cases and long delays in the justice delivery system.

'It's a reformative process and should be encouraged,' Moily said on the occasion.

Forty six cases were listed Wednesday in the special court of Additional Chief Metropolitan Magistrate Ajay Pandey, all dealing with petty offences. The list included prisoners who are still in jail just because they cannot raise their bail bond money.

Among 42, 12 prisoners were released after they furnished their personal bonds and the remaining 30 prisoners pleaded guilty and were acquitted.

Hello? Prisoners pleaded guilty and then were acquitted? I know there is a process of law that a judge can order trial to continue for a person even if he/she pleads guilty; but for someone to be acquitted after pleading guilty cannot be possible.

Those prisoners who were released or granted bail are offenders involved in petty offences like theft, pick-pocketing, snatching and robberies.

Four prisoners could not be freed as they are involved in other cases as well.

'Need of the hour is to release prisoners who are lodged in jails for years together and are involved in petty offences so that they don't become hard core criminals when they come out,' Moliy said.

Ok. So the law minister has admitted publicly at least that being in jail for long time can make one into hardcore criminal.  It is like a university of crime, right?

'We are planning to release 1.7 lakh prisoners till July 31 around India. To begin this, we have informed all the courts and the various legal services authorities to prepare the list of prisoners who can be released,' Moily said.

The government has asked all state high courts to identify undertrials who are not involved in heinous crimes and whose cases can be expedited.

Moily said the union cabinet has 'in principle' agreed to operationalise and implement the national legal mission - 'a step towards guaranteeing access to justice for every citizen, including those in jails'.

The minister said chief justices of state high courts have been asked to prepare a report 'as fast as possible' about the people in jails, their offences, the nature of cases, and the maximum punishment they can invite so these trials can be completed by July 31.

Thursday, February 18, 2010

Indians wanna be safe? – then become hard targets

Home minister P Chidambaram has conveniently explained away the blasts in Pune saying that the blast was done on a soft target, and hence could not be avoided!

The Pune blast was not the result of any intelligence failure but an 'insidious' planting of a bomb in a 'soft' target establishment, Union Home Minister P Chidambaram said.

So terrorists should inform you in advance and be gentlemanly rather than insidious! India is sometimes said to be soft state, but at this rate we will come to be known as a fool state.

Again he rants about the ‘insidious’ nature of the attack:

"There is no intelligence failure, but please remember this is not an overt attack by gunmen. This is an insidious bomb that had been planted in what appears to be a backpack," the Home Minister said.

Further he explains the government’s definition of hard vs soft targets.

Terming Osho Ashram and the Chabad House as "hard targets", he said, "But apart from hard targets, there are soft targets...All these (the German bakery and an Italian restaurant nearby) are soft targets where foreigners and Indians congregate especially during the peak hours."

Now any Indian who wants to stay alive and safe, should attempt to become into a hard target. Hard targets are ministers, MPs, MLAs who are provided high security cover and do not need to bother about bombs blasting around them while having a cup of tea. Soft targets is everyone else.

Wednesday, February 17, 2010

Delhi High Court chief justice who allowed RTI on Supreme court is not elevated to SC

Chief justice Ajit Prakash Shah of Delhi High court retired recently, and there is news that he did not get elevation to Supreme Court even though the file was sent by government to collegium for a second time.

New Delhi: Chief justice Ajit Prakash Shah of the Delhi high court, who scripted landmark judgments legalising homosexuality and bringing the office of the chief justice of India within the ambit of the Right to Information Act, today said he was "hurt" at being bypassed for elevation to the Supreme Court.

"I cannot pretend that I am not hurt," justice Shah said during an interaction with reporters on his last working day. "A sense of hurt is always there. These things happen in life."

It will be good if now some progress can be made on bringing transparency in appointment of judges.  Although judges do not speak a lot to the media, the very fact that a retiring judge expresses his personal disappointment means that all is not well in judicial appointments.

The Supreme Court collegium bypassed justice Shah, one of the most senior high court chief justices, for elevation while recommending to the Centre names of other judges who were junior to him in October 2008.

The government refused to accept the collegium's decision and returned the file. But it had to accept the recommendation when the collegium refused to give in.

It is high time that this football mechanism of appointments file being going back and forth between collegium and government is replaced by something more transparent.

Further, justice Shah does not think too much about corruption in higher judiciary.  We disagree!  Read here about Prashant Bhushan of CJAR stating about corrupt justices in SC.

With regard to the charge of corruption in the judiciary, justice Shah said there is corruption but it is minimal at the higher level. "I will not be telling you the truth if I say no corruption is there in the judiciary. It is a reality, corruption does exist, but minimal corruption is there in the higher judiciary."

Judges need a course in RTI Act, or maybe fundamental rights!

It was horrifying to read the judgment below, where an accused husband was given bail but with the condition that he will not file RTI regarding her wife or her family members (see bold sentence in judgment below).

  BAIL APPLN. 2102/2009
  Through: Mr. Kunal Duggal and Mr. C.M. Verma
  STATE ..... Respondent
  Through: Ms. Fizani Husain, APP.
  ASI Shyamlal Bhardwaj, PS Lajpat Nagar.
  Mr. Ajay Digpal for the complainant.
   O R D E R
  Mediation is reported to have failed.
  The petitioner is the accused in the FIR of offences under Sections
  498A/406/34 of the IPC. He is working as a senior scientist with CSIR. According
  to the complainant wife, she is living separately from petitioner since 26th
  November, 2008. FIR was lodged on 4th June, 2009. The petitioner as well as the
  complainant wife had been married earlier. Each of them has a grown up child
  from the earlier marriage.
  The APP contends that no jewellery has been recovered from the
  petitioner. The counsel for the complainant wife contends that the petitioner is
  not paying any maintenance also. The petitioner had on 12th November, 2009
  before this court paid Rs.50,000/- to the complainant wife. It is further
  contended that the petitioner is harassing the complainant wife and her family.
  In the circumstances aforesaid, it is directed that in the event of
  arrest, the petitioner be released on bail on furnishing security bond of
  Rs.10,000/- to the satisfaction of the arresting officer. The following further
  conditions are agreed by the petitioner:-
  a. That the petitioner shall not file any complaint and/or RTI enquiries qua the
  affairs of the complainant wife or any of her family members.
  b. That the petitioner shall continue to pay a sum of Rs.10,000/- to the
  complainant wife w.e.f. 1st December, 2009 and till the date of decision on the
  application for interim maintenance in maintenance proceedings stated to have
  been separately instituted. The amounts so paid shall be adjusted in the interim
  maintenance if any to which complainant wife is so found entitled. It is
  clarified that the amount of Rs.10,000/- per month offered by petitioner as a
  condition for bail, shall not influence the court where application of
  complainant wife for maintenance is pending.
  c. The petitioner shall not leave Delhi without the permission of IO and shall
  deposit his passport with the IO.
  Copy of this order be given dasti to the counsel for parties.
  JANUARY 18, 2010

Let’s look at it from the following viewpoints:

  1. It is a well accepted principle of law that a person accused of a crime is innocent until proven guilty.  Will the judges curb freedom of RTI if the accused was a powerful person?
  2. Further, Right to Information is a fundamental right derived from Article 19 of Indian constitution, and also considered a fundamental right from various international conventions.  World over, fundamental rights cannot be curtailed except under very special situations of national security and the like.
  3. Here it seems an accused if fit to be granted bail, but he is not fit enough to exercise his fundamental right of RTI.  He can exercise his right to vote, stand for elections, and so on, but only not be able to exercise RTI!  Under what rule can a judge trample upon fundamental right of a citizen, especially considering that no rationale or reason for the order has been given in judgment.
  4. Right to Information grants an Indian citizen to get public information from public authorities.  Such information is already in public domain and no one can be said to be harassed or inconvenienced by disclosure of such public information.  The Right to Information is not right on private information of another person, but on public information which cannot be said to be private property of any person.  Then how can a judge decide that a particular person cannot file for RTI on another person.  The RTI is only on public information.
  5. It seems clear that the judge has tried to cut off the source of information this accused man could use to prove himself innocent.  Read this story about how a man was able to prove his innocence using RTI in a very similar situation where he was accused by his wife in a dowry case.

Our hopes are that other judges will read this blog post and understand that their actions and judgments are being watched by citizens.

Now love police more – they are coming to a place near you

Here is a recent directive in Karnataka police which aims to bring better and more conviction in dowry death related cases.  I cannot comment on the whole bureaucratic structure of police, CID etc as given in this news, but on reading this news it is clear that it is quite bureaucratic.  That apart, I did not find anything unusual except the last part of news which made me write this blog post.

Local police to handle dowry cases

MANGALORE/BANGALORE: Now onwards the relatives of dowry death victims or the complainants need not go to Bangalore all the way for justice.

Victims or complainants from Mangalore, Bijapur, Hubli or any other city or village, who had to go to Bangalore for getting the accused convicted, can now heave a sigh of relief.

The state government has planned to transfer the investigation powers from Criminal Investigation Department - CID (earlier Corps of Detectives - CoD) to the local police to speed up the investigation and prosecution, so that conviction rate in dowry death cases goes up.

The government has cancelled the power of investigation of CID in dowry death cases and asked the local police (deputy superintendents of police) to investigate these cases, with effect from January 1.

Earlier, except police commissionerates like Bangalore, Mysore and Hubli, all other districts used to transfer the dowry death cases to CID for further investigation.

Now, the district police will investigate such cases on their own.

Dowry harassment cases and dowry death cases have their own sensitivity.

Earlier, the local police were investigating these cases. But due to the negligent attitude of the SI-level officers and inadequate power that DySPs had, the government had handed over the power of investigation to the CoD (now CID) almost a decade ago.

“Now the situation has changed.

There are about 224 DySPs in the state and if dowry death cases are investigated by them, it will help the victim’s family to get relief early,” said DV Guruprasad, Director General of Police (CID).

“In September, 2009 the CID had requested the government to transfer the dowry death investigation powers to the local police. Hence, the government has decided to get such cases investigated locally. If the government refers any emergency or sensitive case, the CID will investigate it,” he said.

“The government’s decision will help solve dowry death cases fast. It will help the victim’s family and complainants, particularly from remote villages. It will also help raise the conviction rate,” A Subrahmanyeshwara Rao, Superintendent of Police told Express.

“The dowry death cases were registered at local police stations in the initial stage and simultaneously it was transferred to CID also. While registering a case, information about the accused were collected in detail," said an IPS officer.

"The dowry death cases took a minimum of 15 days to be transferred to the CID in Bangalore from the remote villages. This caused lapses in the investigation as well as procuring evidences," the officer said.

At least 25 per cent of the investigation made by the local police was a mere waste during the process of transferring the cases, he said.

The victim’s relatives, witnesses and others were then made to go to Bangalore many times for interrogation and for giving statements. In some cases, the complainants themselves preferred to turn hostile, the officer said.

Witnesses turning hostile was also a common thing. Police conducting investigation locally will always help the complainants and also the investigators,” the officer added.

It is the last part of news which is really the tragicomedy.  if witnesses are made to travel long distances to Bangalore, wouldn’t they prefer to turn hostile and save themselves the hassle?   If government has been given the right to collect taxes as per constitution, then it is also government’s duty to provide safety to citizens too.  If that means that detectives and police has to go to witnesses’ place for investigation, so be it.  How else it is supposed to be?

Lawyers cannot resolve their matters using law!

This is one of the news 2 weeks ago where bar lawyers in Gulbarga protested in a way only lawyers are known to, against formation of a new association of high court lawyers in Gulbarga bench.  No wonder common public is more scared of dealing with lawyers than even courts!

GULBARGA: The High Court premises turned into an arena of high drama, as lawyers attacked the president of the newly-formed High Court Advocates' Association, and manhandled him.
Members of the Gulbarga Bar Association appeared to resent the new association, and protested in the High Court Circuit Bench premises. They manhandled the president, S V Deshmukh, and forced him to ban the new association.
A group of 20 advocates of the Gulbarga district court -- attached to the Gulbarga Bar Association -- arrived at the High Court Circuit Bench and started shouting slogans against the existence of the new association. Then, they started pushing Deshmukh around the advocates' hall in the HC premises. Later, they locked him into the hall and forced him to dissolve the new association. When he refused, they began threatening him.
Under force, Deshmukh temporarily suspended the association work, and said so to the media. He said he would discuss the issue with the members, and take a decision. Until then, the association stands suspended.

Speaking to The Times of India, Deshmukh later said he did not understand why the lawyers were against the formation of the Advocates' Association, High Court Circuit Bench, Gulbarga. "We have around 100 members in our association and it is registered on January 25. There are associations at the High Court in Bangalore, the Dharwad High Court Circuit Bench and the district court. I don't know why the Bar members are opposed to it," he said.
Gulbarga Bar Association president Shivaputrappa Barode said the association had planned to form the unit in the high court by appointing a president acceptable to the members. "We will not allow them to form another association in Gulbarga. Within a week, we will form a second unit of our association in the High Court."

Monday, February 15, 2010

To arrest or not to arrest -- Home ministry in excruciating pain

Ministry of home affairs had notified the CrPC amendments recently after full one year delay.  It seems they are in agony over the matter of restraining powers of arrest by police.  Read below:

NEW DELHI: The Centre’s efforts to simplify and restrict powers of arrest may take a while longer to yield fruit as the home ministry’s draft proposal to make it mandatory for a police officer to give reasons in writing for both arresting or not arresting a person has run into some resistance.

The contentious amendment to Section 41, CrPC, passed by Parliament, was not notified following voluble protests by lawyers who opposed the move to give police discretion over making an arrest in cases where the likely punishment was less than seven years. It was feared dilution in mandatory arrest provisions would hurt lawyers who depend on bail cases.

Even if we assume that people getting falsely arrested is no big deal, the real reason is not that a livelihood of a few lawyers will be hurt.  The real reason is that most of the lawmakers themselves are lawyers or have good knowledge of how to game the legal system, several of them having criminal cases pending or even convictions.   Having the full knowledge themselves of how to manipulate the system, they do not want to lose their power to terrorize common public or enemies by arrests in false cases manufactured by police.  Don’t we remember how ex-DGP Rathore allegedly put false cases against Ruchika’s family?  If police could not arrest arbitrarily, the powerful people will become just like the rest of us – citizens.

Now, the home ministry feels the amendment can state reasons for both arrest and non-arrest and this is likely to pass muster with bodies representing lawyers. The catch seems to be that the proposal may end up working contrary to the intended reform of making arrests less whimsical, arbitrary and opaque than has been the case. Though home minister P Chidambaram has said the existing provisions of arrest are capable of being misused and this perception is widely shared, some pertinent issues have arisen. It has been pointed out that asked to record reasons for arresting or letting a person go will see most police officers opt for the former. The instinct would be to play safe rather than be blamed for letting a suspect or criminal walk away.

This kind of anxiety on making decision is some kind of tragic-comedy on state of affairs in India.  It reminds of Hamlet and “to be or not to be” kind of dilemma.  If police has to give reason, then we assume it will be reasonable reason, and not just formality like “hereby I arrest this person because I feel that he could be a dangerous criminal”.  Come on, the whole idea of recording reason for arrest is that there is a written record which can later be used to bring guilty police person to book.

Discussions in government have seem PMO voice the view that the notification can either be held back for a while longer to allow a detailed review of various offences and decide whether they should be dealth with arrest, made compoundable or bailable. The review could also look at the quantum of sentencing — issues that have typically arisen in sexual molestation or drunk driving cases.

Just look at how meandering the decision making has gone from simple task of arrest/ no-arrest to quantum of sentencing and specific crimes.  This is just putting wool over eyes of public that something is being done by bureaucrats when all they are doing is delaying things and not taking any decisions whatsoever.

The need for a careful look at the arrest laws has been occasioned by a view that the guidelines for making detention more accountable, while in keeping with the government’s push for reform, may not cover certain important eventualities. Conditions such an apprehension of flight, recovery of stolen property or threat to witnesses may not always be easily established. This had to be addressed in a non-draconian manner.

And all these things are possible when fundamental issues are solved – a better police force, well-paid, in larger numbers, without interference from political and power bosses.  Right now the people who take police career in India probably do it because they could not get anything better, rather than doing it with spirit of service and pride.  With such low pay and atrocious working hours, it is ensured that police in India can do only one thing properly – do bidding of political masters and powerful people.

Delhi High Court Snubs 90% of Indians – says speak only English

Delhi High Court has rejected demands of lawyers’ association to argue in Hindi.

This is what lawyers’ association has to say:

“When lawyers argue in Hindi, judges do not pay attention to them. English has become a status symbol,” Aggarwal said. Moreover, Article 348 of the constitution provides for arguing court cases in English as well as in regional languages, he pointed out.

“Hindi is being used in the high courts of Rajasthan, Allahabad and Madhya Pradesh, but not in the national capital,” he said.

Article 348, clause 2 deals with issue of allowing other languages apart from English.

(2) Notwithstanding anything in sub-clause (a) of
clause (1), the Governor
*** of a State may, with the
previous consent of the President, authorise the use of the
Hindi language, or any other language used for any official
purposes of the State, in proceedings in the High Court
having its principal seat in that State:
Provided that nothing in this clause shall apply to
any judgment, decree or order passed or made by such
High Court.

So this basically means that even though the final judgment will be only in English but arguments and other high court activities can be allowed in Hindi or any other language.

The lawyers had earlier started a campaign on allowing usage of Hindi in Sep 2009 as given below.

It is interesting that the lower courts allow regional languages in courts, but the higher you go the access to justice will be limited to those who know English language.

Maybe first government should first make use of English mandatory in all public and government dealings in police, armed forces, government offices and so on.  Also the constitution should be changed to allow free English language learning to all children till age of 14.  Else how can it be hoped that 90% of Indians who don’t know English can get justice in courts?  Or probably the Delhi high court thinks that 90% of Indians don’t deserve to get to high court and above!  They should settle their matters in lower courts and be happy.

Friday, February 12, 2010

CJI Balakrishnan speaks like a politician, is this independence of judiciary?

The chief justice of India does not think the case fit for having Indian citizens access to supreme court bench nearer to where they stay. They must come to SC in Delhi because – hold your breath – that is the capital of India!

NEW DELHI: Virtually slamming the Law Commission's radical recommendation for a Supreme Court each in four regions for easy access to litigants and fight pendency, Chief Justice of India K G Balakrishnan on Saturday warned that such a move could lead to disintegration of SC's authority.

Oh pleeeaaase… with Mr Prashant Bhushan of CJAR asserting “half of previous 16 chief justices of India were corrupt”, the aam aadmi citizen does not give high value on a concept called SC authority. As far as disintegration of SC authority is concerned, that has already happened starting with when Justice D V Shylendra Kumar had said that CJI cannot speak for HC judges in matter of declaration of assets by judges; and further recently when Delhi HC bench also gave judgment that Supreme Court cannot escape purview of RTI.

Speaking at the inaugural R K Jain Memorial Lecture on "Towards Holistic Restructuring of the Supreme Court of India", the CJI said: "I am not in favour of the disintegration of the Supreme Court. Personally, I feel the SC cannot be in any other part of India. This is the highest court of the land and should be in the capital city of the country. It is in the capital city of the land."

Mr CJI, with all due respect this is not about personal opinion of a CJI. The Lok Sabha can be in Delhi being capital city, because only 545 legislators need to travel to Delhi to be present for law making and other parliament’s business. But the 1.3 crore and counting population of India can be better served if there were more SC benches closer to where they stayed. They don’t need to be reminded that they were not fortunate enough to be born in Delhi or closer to Delhi.

"It is a final court and we should maintain the integrity of the Supreme Court," Justice Balakrishnan said, while agreeing with the suggestion of senior advocate K K Venugopal that there could be an additional appellate court in between the high courts and the Supreme Court.

The CJI said there was nothing wrong in attempting to restructure the functioning of the three-tier justice delivery mechanism but the Supreme Court should not be allowed to be disintegrated. Another speaker, senior advocate A M Singhvi, also agreed with the CJI that there should not be furcation of the apex court on a regional basis.

Though the filing of cases in the apex court was rising at an alarming rate and pendency was mounting despite increase in the sanctioned strength from 26 to 31 judges, the CJI was against crowding the apex court with more judges.

"It is not possible for the Supreme Court to handle that much of cases and it is also not possible to increase the strength of the judges in the Supreme Court. As a national court, I feel that 31 judges are slightly on the higher side," he said.

Of course, once the ‘learned people’ make up their mind that there can be only 1 SC, and only 1 SC building in Delhi which cannot expand upwards or sideways, then obviously there will be limitation on number of SC judges.

"We don't agree to increase the number of judges anymore and it is also not possible to reduce its jurisdiction," he said and cited examples from the US, the UK and other countries where the top courts have only 10 to 15 judges.

And what is the population of US and UK compared to India? Should we reduce the number of MPs also from 545 to some lower number being closer to that in US or UK? What about 1.3 billion people who have to depend on 31 judges of SC for justice?

Unfortunately, the whole drama seems to be of concentrating power of judiciary at the centre of power of executive in Delhi. With credibility of SC going down especially in recent times, it is highly suspect if the real reason is not to allow future SC judges in newly created SC benches to go their own way against corruption in judiciary. A concentration of highest seat of judiciary close to highest seat of executive, and centre of political hobnobbing can only give rise to such suspicions.

Blame judges for adjournments and 3 crore pending cases!

Justice S N Dhingra of Delhi High Court believes that it is both judges and lawyers who are responsible for culture of adjournment in courts. We will come to the part where we decide who is to get more blame between judges and lawyers, but first let’s read the news below:

NEW DELHI: A Delhi high court judge has blamed his colleagues for the "culture of adjournment'' that often prolongs cases for years.

Rueing the "latitude shown by the high court'' to lawyers who plead for adjournments, justice S N Dhingra said: "It appears as if there is an understanding between the courts and advocates that come what may the orders of trial courts refusing adjournments shall be set aside on mercy pleas and one more opportunity shall be granted.''

Claiming that courts often grant adjournments on "frivolous grounds'', Dhingra said: "A separate breed of advocates has cropped up who are experts in pleading for adjournments and dragging cases. This culture has to be brought to an end,'' the HC noted, while upholding a order passed by a guardianship court in a child custody dispute between a couple. The court refused to adjourn the case when the woman's lawyer claimed that he had left the case files in his car which was stolen 11 days ago.

The last line shows the cute argument by the lawyer! If you think that a lawyer will not lie about his car being stolen, maybe you need an education in what lawyers in India can get away with. In BMW hit and run case by Nanda, the ‘well-respected’ defence lawyers who influenced a key witness and were caught in a sting operation were fined a mere Rs 2,000 by the bar council and were not allowed to take cases for 2 months. Long live bar councils! I am not saying that, lawyers are.

The HC agreed with the decision of the lower court to proceed with the hearing and close cross examination of witnesses, despite protests by the advocate of the child's mother. "Adjournments are sought in the name of strikes, elections, personal difficulties of the senior or briefing counsels or because two counsels agree to an adjournment...

Did you read the last part… two counsels agree to an adjournment… so now if you have a doubt how come your case drags on for so long, don’t just blame other party’s lawyer; it could well be your own lawyer is a willing party to this adjournment game at your expense.

This whole culture of adjournment is a major reasons why a case or a petition, which should be decided in two or three hearings, is disposed of in more than 100 hearings,'' the HC noted while dismissing the appeal filed by the child's mother against the lower court's order.

This is a damning indictment of judiciary and judges. On one hand, prime minister, law minister, and chief justice rue about 3 crore plus cases pending in courts; but if a case is dragged from 3 hearings to more than 100, even god in his next avatar cannot reclaim the judiciary from sinking down.

Since lawyers do their job in representing their clients, the majority of blame lies with judges in granting adjournments at the drop of a hat.