I, Aruna Shanbaug

I was a nurse at a hospital in Mumbai, full of life just like a 24 year old girl. I had many dreams, countless aspirations just like all. I was about to get married to a handsome doctor. And then everything fell apart.

On the night of 23 November, 1973 I was sexually assaulted by a boy who was working in the same hospital where I was. And I lost my power to speak , I was paralysed and slowly I slipped into a vegetative state. That was 37 years ago. With time everyone left me, my family, my fiancé, my friends and my death too.

A vegetative state is a condition which arises after a patient suffers from severe brain damage. It’s a state of coma. In the vegetative state patients can open their eyelids occasionally and demonstrate sleep-wake cycles, but completely lack cognitive function. I have been in this state for the past 37 years. This was before India won the world cup in 1983, or before the calendar turned 2000. I don’t know who is Sachin Tendulkar or who is Shahrukh Khan.

Binayak Sen – we a nation of hypocrites

The conviction of Dr.Binayak Sen for life by a Chhattisgarh court for supporting the naxalites has drawn expression of anger and sadness from many quarters. Which I dare to say was expected.

Sen was arrested by the the Chhattisgarh police in 2007 for allegedly acting as a courier between a jailed naxal leader and a businessman.

The reactions that have come from various sides of the globe have blasted the Indian judiciary, the Indian governing system and alike to all corners. Activists have till now organized many a rallies in support of the doctor. One such rally was organized in the heart of Delhi where the great “Arundhati Roy” too made her presence felt. Online petitions have already flooded emails of many an enlightened Indians asking them to register their protest. Amnesty too has joined in.

The charade of the 'intellectuals' is at full swing for the world to see and to mock the Indian democracy which according to them is trembling in fear of a doctor.

The Judiciary retreats-Executive wins-We lose

The Supreme court yesterday in a far reaching observation said that the judiciary has crossed the thin yet important line that separates the judiciary from the other two branches of governance ; the executive and legislature and the time has come for the courts to refrain from indulging in what it called ‘judicial over-reach’.

A two-judge Bench of Justices A K Mathur and Markandey Katju slammed the judiciary for over-reaching its limit and stepping into the shoes of legislature and executive.

The effects of yesterdays judgment were immediately felt as citing criticism of judicial over-reach, a two-judge bench of the Supreme Court refused to hear a PIL seeking relief for ''sex workers''. The petition was filed in the form of a PIL by an NGO Prajwala seeking rehabilitation of victims of flesh trade.

The two bench observation humbly conceded that judicial activism has reached the fifth gear and it should be pulled back. They reiterated the same point which the legislative and the executives have been saying time and again, “Courts should be limited to overseeing that the existing laws are upheld and it shouldn’t take to creating laws.

The observations shocked the legal fraternity and the immediate effect was felt even on the Apex Court the following day as Justice S B Sinha and Justice H S Bedi, literally set the agenda for debate on judicial activism as their Lordships observed " Parameters for hearing the PIL now needed to be fixed by a larger bench ." 

They declined to hear the PIL which they had been hearing for the past four years and referred the matter to the Chief Justice for guidance. The petition was filed in the form of a PIL by an NGO Prajwala seeking rehabilitation of victims of flesh trade.

Same day, the Delhi High Court bench presided by Justice Mukul Mudgal, declined to hear the matter relating to ban on Begging in view of the forthcoming Commonwealth games and observed the court would proceed in the matter only after reading the observations of the Supreme Court.

The judiciary, particularly the High Courts and the Supreme Court were charged with governing the executives. Probably the statement holds an iota of truth. In many cases the courts intervened only when the executive failed to deliver goods to the common man, be it the ban on diesel run buses in New Delhi or commercialization of residential flats in the capital.

However, the Supreme Court had to face criticism when it issued guidelines for vote of confidence proceedings in Uttar Pradesh and then in Jharkhand state assembly and there were accusations that the judiciary encroached upon the functioning of the legislature.

Although it was the judiciary it-self that introspectively came out with the observation but for the present it seems that the executive and the legislature have had the last laugh. The humble self-judged comment by the two judge bench may push back the judiciary into a shell giving executive ample opportunity to deteriorate further.

Although it was the judiciary it-self that introspectively came out with the observation but for the present it seems that the executive and the legislature have had the last laugh. The humble self-judged comment by the two judge bench may push back the judiciary into a shell giving executive ample opportunity to deteriorate further.

Maybe the judiciary has erred while passing the above observations. Although it shows the level of maturity the judiciary possesses and the sanctity it has attained all through these years but the message that will go out would not be too good for the system in the larger context.

In a constitutional setup like ours none of the three branches of governance can be at the same footing, albeit this is what constitution calls for. Though the constitution talks about an ideal setup where each of the three branches of governance will work in its own distinct sphere still it can be reasonably expected that the either of the three will transcend its boundaries and unconsciously and for a good cause will dishonor the separation of power structure.

And if this tilt in balance occurs, as it is happening now then it should be in the favour of judiciary and the it’s the judiciary that should be on a higher pedestal.

Judicial activism traces it roots back to 1980s when the concept of PILs (public interest litigation) came into focus under the learned guidance of Justice P N bhagwati and Justice V.R.Krishna Iyer. It was these PILs that highlighted the environmental pollutions, the sorry state of river Ganga under a series of case filed by MC Mehta.

According to a study by Hans Dembowski, PIL has been successful in the sense of making official authorities accountable to civil society organizations in India. The executive in our country is in a sorry state and there needs to be an accountability that would push them to work efficiently. The courts are one such accountability tool.

Agreed, that as stated by the Supreme Court bench the judiciary has sometimes crossed the “Lakshman rekha” but as said earlier this things are expected. In Shakesperian language it’s about forgoing the lesser evil for a greater cause. And it should not be forgotten that we are not residing in a perfectly-built-ideally constructed world.

The court may have been forced into making these observations in view of the recent vociferous demands by the legislature for bringing judges accountability bill and this was evident when mincing no words the bench cautioned the judiciary to exercise restraint as the reactions from politicians may result in the curtailment of power and dent in independence of judiciary.

If a civil society faces problem and the executive thinks that problem doesn’t warrant attention then is it right to say that even the judiciary should tow the same line? Or the judiciary should portray a picture of blindfolded idol and say that since there is no law to deal with the problem hence there can be no enforcement or wait for a law to be enacted, violated and then decide to look into it.

The three arms of governance are independent and yet dependent on each other. If any one of them is given even a subtle hint of having a free run then there will chaos and anarchy and perhaps the executive has just received that message.

The judiciary is the always the last resort against the oppression of the executive and the legislature and if that last resort too decides to look the other way and ignore its ‘extra-resposible-activism, the country may still survive but then the picture will not be too bright.

http://www.telegraphindia.com/1071218/asp/opinion/story_8660260.asp

Systemic reforms needed to rejuvenate the judiciary

As India celebrates this year as Year of Excellence in Judiciary, one needs to explore ways to rejuvenate the administration of justice at various levels. During a recent visit to Bhopal, the Chief Justice of India, Justice R.C. Lahoti said that one of the main reasons for the judiciary’s failure to deliver quick justice is the lack of manpower to clear the huge backlog of over 30 million cases. He also advocated changes in the legal system to expedite justice.

Clearly, the increasing number of cases proves that the people’s faith in the judiciary is also increasing. But the number of judges is too small to handle the workload. One of the suggestions is for fixing a timeframe within which the case should be heard and decided. But what is required is both increasing the strength of the judges and the timeframe. At the same time, there is need for revamping the whole procedural law and bringing new laws which would reduce delays.

We still follow a legal system introduced by the British to suit their needs. Our lawmakers have designed the system in such a way that cases go on and on to give maximum chance to the accused to prove that they are innocent. One cannot blame them because the very system presented an opportunity to the law to be misguided.

The law enforcing authority (read Police) may be given more powers but with necessary safeguards so that petty cases are solved at the ground level itself, thus reducing the burden on the judiciary. Another solution is for revamping the procedural law, giving jurisdiction and authority to the police to deal with such offences which need not go to the courts.

Creating a new and parallel system, the same as the existing one, but only one with jurisdiction and authority to decide cases of petty nature can also be an answer. This will lead to the dilution of cases right at the inception stage. This will serve two purposes: easing the burden on judiciary; and settlement of these types of cases within a short time.

The aspect of appeal and re-appeal should be looked into. If a party to the dispute is not satisfied from the decision of the district court, it appeals to the High Court and, if still unsatisfied, goes to the Supreme Court. Though it is the discretion of the concerned court to allow the party to appeal, in most cases, the appeal is allowed. Consequently, loose implementation of the process of appeal leads to the loss of valuable time, though the higher court only hears the same facts again including the examination of the same witnesses.

Why, then, follow the same practice of wasting time and resources again and again? Clearly, provisions for appeal need to be tightened: the petitioner should have a substantial ground for seeking an order of appeal.

A careful study of the Criminal Procedure Code and the Civil Procedure Code would suggest that though these laws have numerous offences listed under various heads, some of the offences can be clubbed together. It would be appropriate to suggest that the minute distinction between various sections should be removed and offences of similar nature should find place in one section. This will go a long way in reducing the filing of a single case under various sections and thus help reduce the time and resources.

Keeping in view the increasing workload on the judges, it must be made explicitly clear how many cases a judge needs to hear everyday. Similarly, the region falling under the jurisdiction of a single judge should not be too large. Otherwise, it won’t be of any help because the judges will be forced to decide a large number of cases. Dividing regions into small numbers and appointing judge for every region would help reduce the burden on a single judge. The end result would be that each case could be decided within a reasonable timeframe.

Unfortunately, the Union Law Ministry has not done enough work on judicial reforms. The kind of importance this Ministry holds, one would have expected it to be treated at par with any other governmental department like Finance, Home or Defence. But this has not been the case. There is reasonable justification for increasing the budget for the Law Department. More resources should be allocated to the various branches of the Law Ministry keeping development and reforms in sharp focus.

Many state governments have put a moratorium on inducting new judges. This should be revoked, and regular induction of judges should take place on the basis of examinations. Also the time period of promotion of a Sessions Judge to the High Court should be reduced.

President A.P.J. Abdul Kalam, while delivering the convocation address at Jodhpur Law University recently, suggested the creation of Indian Judicial Service (IJS). He promised to write to the government on this issue. The creation of IJS, on the pattern of the Indian Administrative Service (IAS), will help expedite pending cases as young judges will be more active, enterprising and render speedy service. The recruitment norms and procedures for the IJS could be on the lines of the Civil Services examination conducted by the Union Public Service Commission.

Institutes like the National Judicial Academy (NJA) in Bhopal should be given due attention. Every region in the country should have an institute based on the NJA model. The NJA’s basic aim is to train judges, improve their skill, and make them acquainted with legal fields like cyber law, arbitration law, environmental law etc. These areas, having developed in recent times, need to be given the attention they deserve.

National law schools in various parts of the country have been playing their part, by giving well-informed, well-moulded legal graduates. Encouragingly, there are more than 12 law schools all over the country.

As this year is being celebrated as Year of Excellence in Judiciary, we have to strive for the all round improvement in the judiciary.

http://www.tribuneindia.com/2005/20050320/edit.htm#2