TORTURED BY THE “PROCEDURE” OF LAW
(GUILTY…… UNTIL PROVEN INNOCENT)
Advocate Asim Sarode
Dodging clear, of the milk vendor slowly pushing his bicycle across the middle of the crossroads, impatient scooterists, three wheelers and other vehicles end up in a jam. Chaos and road rage follow; the milkman totally unawares of what his cutting corners has caused. Complying with traffic rules and procedure is common sense; it ought to be even for an uneducated milkman. However, in the disciplined traffic of the lower courts, is it in the best interests of the community to make “procedure” the unquestionable Rule of Law; or is it contrary to justice being served?
1. In a bail order the defense Lawyer wishes to confirm with the Registrar whether the 7/12 extract he intends to submit as surety is sufficient to serve the purpose. He is told to follow procedure, submit the papers and he will be informed in due course if they are admissible.
2. In a complaint against a `quack’ doctor making false claims of curing several thousands of HIV+ patients, the judge, refusing to take cognizance of the gravity of the matter, insists on procedural verification through oral and written re-telling of the complaint. Long dates are set, arguably because “this is not the only case!”
3. Any accused can represent his case and submit an application before the court. It is not expected of the layperson to know under which section of the Law the application is to be made. Such applications however are not even taken on record on the grounds that the applicant has not followed procedure. The code on Ethics and Principles makes it mandatory to accept all such applications and for the learned judge to ascertain the relevant sections.
4. The family of an Advocate was being harassed. With a son and three daughters at home and his wife no more, the man, a lawyer himself, lodged a complaint with the police. Arrests were made and three persons charged but soon released on bail. The harassment resumed. To the bureaucrat’s subsequent application that the accused were not following the bail conditions, and were more violent now giving death threats, the `in-charge’ court orders that the original judge, now on long maternal leave, will decide on the application! Bureaucracy and the Law having taken the best out of this man, he passed away recently.
5. A foreign national with family residing in India is ready to give all sureties to have his impounded passport returned. His request is finally granted by the Judicial Magistrate First Class (JMFC) the lowest court in the Indian Judicial System after 5 months of filing his petition. However, the same court requires him to submit a fresh application for the actual return of his passport. As a general rule the prosecution will oppose this application; not doing so might imply corruption.
6. Lower courts automatically grant the prosecution’s request for custody on arrests in a new case without really going into the evidence, which is more often than not purely circumstantial. Innocent suspects are thus harassed, traumatized and incarcerated until bailed out or proven innocent.
Though bail has been ordered, the accused in the first case above will languish in jail for some more time if the surety papers submitted are found inadmissible. In the second case the judge’s insistence on lengthy procedure means that in the interim period many more poor HIV+ patients will seek remedy from the quack doctor, incurring considerable expense on the false promise of a permanent cure against the stigma of HIV. Procedure in the third situation defies due process, violating the constitutional rights of the applicant. In the fourth case, what is the sense in appointing a substitute judge if he is not going to adjudicate in the cases placed originally before the now absentee judge? In the fifth, it defies common sense for the court to grant permission to travel without returning the passport; procedure compels the foreign national to appeal, meaning further delay and his effective detention within the country. Procedure in the sixth case above results in our prisons becoming over crowded that too with a high percentage of innocent under trials.
Imagine the frustration experienced by sincere lawyers who many a times are humiliated “before the dias of Court room” by the arrogant magistrates; imagine also then the torture for the lay citizen! Making procedure the rule of law has become a scourge on the democratic freedoms and human rights of the people of this nation. Judges positioning themselves safely in this `no man’s land’ must be seen as acting in contempt. How can justice be served where there is failure by default on grounds of procedure - as much a strategy of many lawyers in legal proceedings?
Such mechanical approach frustrates all norms of due process, diminishes the human perspective and erodes the very spirit and foundation of The Law. Where the discretionary powers of authority and a learned human mind is not to be utilized one is compelled to ask: “Why have human judges then?” With the IT expertise in our country, surely programs can be designed to fulfill procedures through slot machines. Not only will this save on human resources and maintenance costs, but in the event of error there will be no assigning of blame! Nobody will question humanitarian angles or the circumstances of the case – after all its only a machine!
Progressive legislations such as the Juvenile Justice (Care and Protection) Act 2000, Family Court Act, Labour Act, Consumer Protection Act, Probation of Offenders Act and Public Interest Litigation, supported by directions from the Supreme Court and International Conventions, are all meaningless if they function just like the conventional courts. The very purpose behind these special courts is to make the process of litigation informal, less intimidating and user friendly. It is also the popular notion among the lower judiciary and lawyers that human and civil rights issues under the Constitution may be discussed and interpreted only by the High Courts and Supreme Court.
Where previously a law graduate had to have at least three years experience before appearing for the JMFC exam, nowadays a fresh LLB graduate can appear for it, and on passing which is immediately appointed a judge. Justice can not function like corporate where “you catch them young”. Equipped with only classroom theory, judges in the lower courts possess neither the skill nor the humility of experience to take cognizance of the socio-legal perspective in the rule of law and apply modern concepts and interpretations on contemporary issues such as gender equality, human rights, social stigma and discrimination, etc.(There may be some exceptions) Further, our education, in fact the very essence of our national ethos is founded on `Don’t ask questions to your seniors(or to the persons on Authority chairs); it is rude to do so.”
If the power of a judge’s chair, if the robes of a lawyer remain unquestionable, accountability it would appear then lies with the accused: guilty until proven innocent.
The earlier precedent for JMFC exams needs to be re-instituted. Also judges from the High Courts and the Supreme Court could play a proactive role through periodic surprise visits to assess the performance of judicial magistrates; perhaps retired members of the fraternity can be assigned this task with a mandate to intervene, for an honorarium.
What is most telling is that in spite of its poor performance and inhumanness the common man continues to have faith in the judiciary and the legal machinery. Surely such faith in this pillar of civilization, calls for better returns. Otherwise that Day of Judgment will come when the millions of victims of a mechanical jurisprudence will rise against this thoughtless system.
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-Advocate Asim Sarode
The writer is a human rights activist and heading an organisation ‘Human Rights and Law Defenders’ (HRLD) He is an Ashoka Fellow. [1140 words]
