India’s long wait for justice: 27 million court cases trapped in a legal logjam

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Calls for wholesale reform of legal system with delays costing the country trillions rupees every year

Ashish Kumar last saw his brother Vinod when he was being driven away by a senior police officer in Ludhiana, in northern India.

Vinods body was never found but the CBI, Indias intelligence agency believes that the officer, Sumedh Singh Saini, was responsible for his death.

They filed murder charges against him within a month.

That was in 1994.

Twenty-two years have passed since the murder case began. Only three of 36 witnesses have been heard so far. Four witnesses have already died without being presented in court.

At 94 years old, Vinods mother Amar Kaur cant hear or speak well. She doesnt seem to understand much about life at present. But when she hears her sons name, she yells at the top of her voice, Insaaf! Justice.

Kaur, who used to go to court in a stretcher, gave her testimony in her sons murder case when she was aged 86, 14 years after he went missing.

94-year-old
94-year-old Amar Kaur is still waiting for justice after the death of her son, Vinod, in 1994. Photograph: Vidhi Doshi

She asked the court several times to hear her statement sooner, fearing that she didnt have long to live. When she was finally heard, the judge had to step down from the podium and stand next to the witness box to be able to hear her thin, fading voice. But before she could finish, he decided to break for lunch. The next available date for her to deliver her statement was a month later.

In the time that has passed since Vinod disappeared, Saini has continued in his role and was promoted to Director General of Police in Punjab. He still has charges hanging over him.

Vinods family on the other hand, has had to leave their family home, give up their business, and move to Delhi. They claim to have been threatened on numerous occasions and moved in order to remain safe and follow the case.

Vinods murder case is not exceptional in India.

More than 22 million cases are currently pending in Indias district courts. 6 million of those have lasted longer than five years. Another 4.5 million are waiting to be heard in the high courts and more than 60,000 in the supreme court, according to the most recently available government data. These figures are increasing according to decennial reports.

Last week, Chief Justice of Indias supreme court, Tirath Singh Thakur broke down while addressing the Prime Minister Narendra Modi, blaming the government for inaction over judicial delays, particularly for failing to appoint enough judges to deal with the huge backlog of pending cases.

In the governments budget for 2016, only 0.2% of the total budget was given to the Law Ministry, one of the lowest in the world.

More than 22 million cases are currently pending in Indias district courts
More than 22 million cases are currently pending in Indias district courts

There is a systematic problem with Indias courts, Vinods younger brother Ashish says. And because of it our family has suffered so much.

The number of cases, however, is only a part of the problem. Take a walk through any court building in India and youll see long queues of people waiting outside courtrooms without any guarantee of getting a complete hearing.

Ashish
Ashish Kuar last saw his brother Vinod in 1994 when he was murdered. The Indian court system currently has a backlog of nearly 27 million cases. Photograph: Vidhi Doshi for the Guardian

India has one of the worlds lowest judges to population ratios in the world, with only 13 judges per million people, compared to 50 in developed nations. As a result, judges hear scores of cases every day, which leads to a large number of adjournments, multiple judges passing cases between them, and increasingly long queues of people waiting outside courtrooms on the off chance that their case is heard.

Judges are under enormous pressure, justice Mukul Mudgal, a former high court judge, says. You have around 30 or 40 cases every day, and usually, you spend an hour before court reading the files. I used to do half of them the previous night. Its a lot of work, and it is chimerical to hope that any judge will read every page of every case hes dealing with.

Judges are paid little compared to lawyers, which has led to a steady decline in the quality of judges.

Judges
Judges are under enormous pressure, says justice Mukul Mudgal, a former high court judge. Photograph: Vidhi Doshi for the Guardian

To add to the burden, lawyers frequently use delaying tactics such as appealing verdicts endlessly, or saying theyre sick or failing to show up to court.

Adjournments are given freely, witnesses dont come on time, and theres nobody looking at judicial administration, explains Harish Narsappa, whose thinktank Daksh analyses data on judicial delays.

If you go to court and ask the judge for an adjournment, the judge will ask ok, what day do you want? At that time, neither the judge nor the lawyer has any clue what the judges capacity is for that day next week. Whats the point of saying Ill hear you on this day next week, if he just doesnt have the time?

Narsappa estimates that the delays cost Indias economy trillions of rupees every year.

Major Manjit Rajain had to skip a day of work every month for nine years over a case against him which was was eventually dismissed as a clerical error.

After he retired from the army and opened his first business, the Registrar of Companies filed a suit against him for misrepresenting himself because his army files showed his surname to be Rajan, without the i, and he had written his surname Rajain, with an i on the forms to register his company.

Major Rajain explained how trivial the error was.

Even though the former soldier showed the court his passport, birth certificate, marriage certificate, and several other documents to prove there was ani in his last name, the case against him was not dismissed for nine years.

The good thing that came out of it, Major Rajain says was that I made friends with many major businessmen sitting outside the courtroom, because they had all been dragged there for equally trivial reasons.

Major
Major Manjit Rajain had to skip a day of work every month for nine years over a court case against him which was was eventually dismissed as a clerical error. Photograph: Vidhi Doshi for the Guardian

This countrys progress depends on a strong judicial system which can provide quick justice in commercial matters, says Dushyant Dave, a senior advocate in the supreme court, who has seen the judicial system deteriorate since he began practicing in 1978.

We need foreign investment to improve technology and capital. If were not able to protect technology in terms of intellectual property rights, and if were going to drag investors into our court system for several decades, then theyre not going to come.

We have more than 700 million people living in poverty, and this is the greatest challenge of our democracy. The judiciary has a great role to play. Unfortunately I dont think the judiciary really realises that.

The legal logjam has led to overcrowded prisons, with more than 68% of the prison population still under trial. Some prisons are over two or three times over capacity.

Getting bail usually depends on the quality of a defendants lawyers. Alok Prasanna, an analyst from a thinktank called Vidhi Legal Policy says.

In criminal trials, the process itself is a punishment. Many under trial prisoners end up doing their entire sentence without getting a full trial.

The result of these never ending cases has led to a crisis of faith in the legal system. Two-thirds of ongoing cases are criminal rather than civil cases, which suggests that Indias judicial system more than six decades after independence is not much different from the one inherited from the British raj, where rulers used the legal system as a means of maintaining order and criminalising agitators, whilst the majority of civil disputes were settled outside courts. Prasanna explains.

Parties dont see litigation as a way to resolve disputes so much as get what they want by making the other party suffer and come to court repeatedly for years.

I always tell people who approach me for legal advice not to go through the courts, he says, because you may win or lose the case, but you will definitely lose both your money and your sanity

Attempts to improve the system have seen little success. After the horrific gang rape of a medical student in Delhi, a series of fast-track courts were set up to speed up cases concerning violence against women. It hasnt made much of a difference. Over 93% of rape cases are still pending trial. Trivial matters hold up the cases progress.

Asha* was gang raped in 2005, when she was just 13. Until 2013, the court was simply trying to decide whether one of the men who raped her should be tried as a juvenile or an adult.

Even after her case was fast-tracked, it took two years for the court to sentence the man who arranged the gang-rape.

Her friend, who cant be identified for legal reasons says :Her entire childhood has been eaten away by this trauma. The man is now married and has children and has even run for election. No one will marry Asha or her younger sister because of what happened to her. Her lawyer says that hes certain the man will appeal the judges verdict. Why would you not appeal? he says, over the phone. Its a way out.

In the absence of speedy justice, vigilantism thrives. Groups defending womens rights such as the Gulabi Gang or the Love Commandos are infamous for taking their revenge in cases of domestic violence and honour killings. Corruption too, is endemic. People would rather bribe a police officer or a judge than go through the lengthy hassle of a trial.

Meanwhile, the impunity that criminals may enjoy because of how slowly the legal system operates, is exemplified by Indias elected politicians. One of every three politicians currently sitting in the Indian parliament have criminal records, with the vast majority of those involved in serious cases such as rape, murder, or kidnapping.

Prasanna explains that even the most basic needs of the courts are not met. Some courts are having to hold sessions in the dark because theres no electricity. Old buildings need to be maintained. People need to be trained better, even when computers are provided people are not trained to use them.

Dave believes that the judicial system is in dire need of a complete overhaul. Laws need rewriting. Judicial process needs to be streamlined. Lawyers need to be penalised for delaying matters without reason. The government is not interested, he says. No politician or bureaucrat wants a strong judiciary.

Justice Mudgal agrees, but doesnt believe the changes needed to strengthen the judiciary will come in his lifetime.

In the meantime, Ashish Kumar will keep fighting for his brother. I believe in this country, and I believe I will get justice one day, he says. My brother was a great man, Ashish says. Thats why Ive spent my entire life trying to get justice for my brother. The rest is up to God

A request was made to talk to the lawyers for Sumedh Singh Saini in preparation of this article but no response was forthcoming.

*name changed to protect identity

Read more: http://www.theguardian.com/world/2016/may/05/indias-long-wait-for-justice-27-million-court-cases-trapped-in-a-legal-logjam