By Rajan Narayan

With crimes crossing the three crore mark and the judiciary lagging far behind, murderers can execute their sinister plans faster than the judiciary can punish them.

SPEAKING AT a function recently the outgoing Chief Justice of the Supreme Court, K G Balakrishnan, the highest law officer in the country commented that murderers can execute their sinister plans faster than the judiciary can punish them. Which also holds true for other kinds of criminals like rapists, paedophiles, large scale narcotics pedlars and those who indulge in genocide of the kind we witnessed in Gujarat. Indeed it would be easier for a whole caravan of camels to pass through the eyehole of a needle than to get prompt justice in our system of law and judiciary. There are instances in our own Goa where litigation, particularly in property cases, has gone on for three generations.

The bitter ground reality is that as on January 1, 2010 there were 53,000 cases pending in the Supreme Court, as many as 40 lakh cases pending before the various high courts in the country and an incredible 2.7 crore cases pending in the lower courts. The arrears of cases awaiting disposal continue to go up. There has been an increase of 139% in the number of cases pending in the Supreme Court since January 2000. In the case of the high courts in the country, the increase in the number of pending cases is 46%. Of the cases pending before the high courts, 25% have been unresolved for more than 10 years. Hundreds of thousands of families of victims who have been murdered are still waiting for the murderers to be punished. According to senior judicial officers, 5,00,000 cases of murder are pending in the courts at various levels.

CASE MOUNTAIN

FRESH cases outnumber the number of pending cases disposed off by the various courts. In 2008, the lower courts — who are referred to as the subordinate judiciary — settled 1.5 lakh cases, however 1.64 lakh fresh cases were filed in the year 2008 alone. According to estimates made by chief justices of high courts and the Supreme Court, it would take 3651 years to dispose off all the cases pending before the various courts in the country.

UP WORST

ACCORDING to another estimate, it would take 466 years to dispose off the cases pending before the Delhi High Court alone. The largest number of cases pending in a high court is in the Allahabad High Court. Uttar Pradesh also has the dubious distinction of having the largest number of pending cases in the lower courts. The Allahabad High Court had over nine lakh pending cases in 2010, while the Uttar Pradesh and subordinate courts had over 51 lakh cases awaiting disposal. Not surprisingly, Prime Minister Manmohan Singh in his address to chief ministers and chief justices of the Supreme Court called the delay in disposing off cases a scourge.

CIVIL DISPUTES

THE case of Goa is not very much better than the other states in the country. As on January 1, 2010 the total number of pending cases in Goa exceeded 30,000.  North Goa accounted for almost double the number of pending cases than South Goa.  North Goa, which has 26 judges, had over 20,000 cases pending disposal while South Goa, which has 23 judges, had over 10,000 cases pending disposal. Of the 30,000 odd cases pending disposal in the courts in Goa, the overwhelming majority of about 18,000 cases relates to civil disputes and only 12,000 to criminal cases. In the North Goa district, the number of civil cases pending was around 12,000 whereas the criminal cases pending were around 10,000. In the case of South Goa, there were around 7000 while the criminal cases pending were around 5000.

The reason why more civil cases are pending in Goan courts rather than criminal cases is primarily because of the Uniform Civil Code followed by Goa in respect of inheritance, property and personal laws. Unlike in the rest of the country where the personal laws relating to various communities apply in matters of inheritance, in Goa there is a Uniform Civil Code, which is a positive legacy of the 400 years of Portuguese colonial rule. Unlike in the rest of the country where the personal inheritance laws favour the sons and discriminate against daughters, under the Uniform Civil Code daughters and sons, or for that matter wives, have an equal right to the property of the deceased.

PROPERTY MATTERS

FOR instance, if the husband dies before the wife, 50 percent of the property goes to the wife and vice versa. The remaining property goes to the children. The property of the surviving wife or husband has to be equally divided among the heirs, both daughters, sons, grandsons, grand nephews, brothers-in-law and sisters-in-law. Which of course is very equitable. But the problem is that every one of the heirs has the right to dispute the value of the property that is assigned to him or her in the inventory conducted after the death of the father or mother. This is the principal cause for civil cases exceeding criminal cases and the inordinate delay in disposing civil cases in the state. Ironically, the government of Portugal from whom we have inherited our personal laws has amended the relevant portions of the act to appoint an arbitrator who determines the value of the various kinds of property left behind, which avoids protracted litigation over the value of every piece of land or house or coconut trees inherited by the heirs.

The inexcusable and if you may call it criminal delay in the disposal of cases at all levels of the judiciary from that of the junior magistrate to the Supreme Court has not only resulted in the denial of justice to victims of crimes, but also resulted in many innocent people languishing in jails for their lifetime. This is because 70% of all the prisoners in Indian jails are under trials. Which means that they are at least technically not criminals. The law is clear that every one is innocent unless proved guilty beyond any reasonable shadow of doubt. This principle is dramatised by the successive acquittal of Mahanand Naik in two cases of murder that have been decided by the lower courts. Mahanand was acquitted because the police could not establish even the identity of the victim let alone produce evidence that would establish the guilt of Mahanand Naik beyond the shadow of any reasonable doubt.

The question that then arises is why 70% of those accused but not yet convicted of any crime are languishing in jails. The answer is very simple. If you are arrested in any cognisable case, you cannot get bail automatically. You have to apply for bail, which is normally given on executing a bond or producing a surety. The surety maybe as low as Rs.500 in courts in rural areas and as much as Rs.500 or even Rs.50 lakh in some cases. But those who cannot produce sureties or furnish the bail amount, however much it may be, have to stay in jail till their cases are finally disposed off. Which means if you do not have the money or relatives or friends who can stand surety for you, you will have to stay in jail for as long as it takes for your case to be disposed off.

INNOCENT JAILED

IN the process many innocent people have to stay in jail for a long time. There are many tragic cases of people who have spent the entire period of the sentence that they were liable to if they had been proved guilty in jail who have been finally acquitted. The most recent case in Goa is that of the alleged drug peddler who was released from jail after one year because the drugs alleged to have been seized from him turned out to be fertilizer. As against many innocents who are languishing in jail for decades, the high profile and the bold and the beautiful and the rich and the powerful manage to avoid the hospitality of the country’s jailors even for a single day. Most politicians and industrialists, not to mention the stars of tinsel town arrested for various offences including serious offences like defrauding their companies of millions of rupees or having masterminded the murder of their political rivals have tended to promptly fall sick and get themselves admitted to luxury suits in hospitals. I understand that the promoter of Satyam has been spending the majority of his days in jail in a private hospital. And even those dons of crime who cannot escape being jailed live a life of luxury within the jail because of the corruption rampant in our jails.

Why is there so much delay in disposing off cases? Why have the number of pending cases grown to such astronomical proportions? The primary cause of delay in the disposal of cases is the shortage of judges at all levels. As against the sanctioned strength of 886 judges in the high courts, the number of actual judges who have been appointed is 606. So much so, 280 seats of judges of the sanctioned strength are lying vacant. The fault for the failure to fill up the vacancies in the high courts is that of the Chief Justice of the Supreme Court and the Ministry of Law at the centre.

CORRUPT JUDGES

PART of the problem is that there is so much politicking and even cases of corruption in the selection of high court judges that the process of appointing them gets delayed inordinately. For instance, it is Goa’s turn to have a judge appointed to the high court against the vacancies existing in the Bombay High Court. But because of the politicking and the lobbying and mutual recriminations among the two senior most members of the subordinate judiciary who are eligible for elevation to the High Court, it is likely that their appointment will be delayed. Indeed the Bar Association of Goa has demanded that there should be no appointment to the High Court from the lower judiciary in Goa till the enquiries into the charges against the two claimants, Anuja Prabhudesai and Nutan Sadessai are completed.

The number of sanctioned posts in the subordinate judiciary, which consists of junior and senior magistrates and the district magistrates, is 16,685 as on January 1, 2010. The number of judges actually working is less than 13,000. So much so, even while the judiciary is groaning under a huge backlog of cases, state governments have been delaying the appointment of judges to the subordinate courts, which come under the jurisdiction of the state governments. But even if all the vacancies are filled up, it would not be adequate to clear the backlog of over three crore cases pending in various courts in the country. This is because a lot more judges need to be appointed. Indeed the percentage of judges to the total population is among the lowest in India. While, there are 107 judges for every million of the population in the United States, 75 judges for every million citizens in Canada, 41 judges for every million in Australia and 12 judges for every million of the population even in neighbouring Bangladesh, the number of judges per million in population in India is as low as 10.5.

ENDLESS WAIT

BUT it is not just the shortage of judges that is the problem. The problem is the manner in which our judiciary works. Where adjournments are the norm rather than the exception. Last week I was in two courts in the state, one in South Goa and one in North Goa in connection with various defamation cases that had been filed against me in my capacity as the editor of the Herald, a publication which I quit seven years ago. I continue to be the accused and have to continue to be present in court because the law is that the person who was the editor when the defamation case was filed is liable even after he has left the organisation. In fact, in one of the cases, the defamation suit has arisen from not any news reports or articles or editorials but because of an advertisement carried by the Herald.

But the law states that the editor is responsible for all the contents of a newspaper. Even though the editor has no say in what advertisements are carried in a newspaper or magazine. Which is however not the point. The case in Margao has been going on for the last 15 years and has not even reached the stage of being charge-sheeted. Similarly, the case in the district court in Panaji has been going on for 12 years or more and is yet to be charge-sheeted. In fact, in both the cases that I am accused of defamation in my capacity of the editor of Herald, I had attended the court sessions to record my statement as to whether I accepted or denied the charges made against me.

WASTED DAYS

IN the first case in South Goa the co-accused, the managing director of the Herald, did not turn up. His advocate insisted that the co-accused could not attend the court till April 5 because he was out of the country. Never mind that in the earlier hearing it had been made clear that he ought to be present. Because he was not present, I could not record my statement and the matter has been adjourned till both the accused are present. In the case of the other matter in the Panaji district court, when I reached the court at 2.30 pm on Saturday - as I had been instructed by my advocate — I could not find the case registered on the board for Saturday afternoon.

When I pointed this out to my advocate, he was shocked as all the parties to the case had been told during the previous hearing to be present on Saturday at 2.30 pm. It turned out that the case in which my statement was to be recorded was not listed because the relevant file was missing. In any case the same co-accused, Raul Fernandes — the managing director of the Herald — was not present and his counsel claimed that he was out of the country. So the case has been adjourned again. Over the last 26 years in Goa I have spent many days in the courts. Should I say wasted many days in court? Because in the overwhelming majority of the days I have been required to be present in court the matter has been adjourned. The matter has been adjourned sometimes because the co-accused were not present. They have been adjourned because neither the plaintiff nor his lawyer were present. There have been times when cases have been adjourned because the judge was so busy catching up on writing judgements that he or she did not sit in court on that particular day. There have been days when the matter has been adjourned because the judge had fallen ill.

There have also been instances when the matter has been adjourned because the judge who had almost finished hearing the case had been transferred and the successor judge needed time to study the matter. It is rarely, if ever, that I have ever seen a case decided on the several hundreds of days I have been present in various courts in Goa. I am therefore not surprised that the backlog of indisposed cases keeps mounting in not only the courts in Goa, but all the courts in the country, including the highest court in the country the Supreme Court. Incredibly, as many as 690 cases were pending in the fast track court as on January 1, 2010. The very purpose of fast track courts is defeated if so many cases are allowed to pile up in courts that are specially set up for speeding up the process of the disposal of cases.