Cover Story: Law; Delayed Justice Is Indian Justice

India's fetish for controls has spawned a labyrinth of crime and corruption. The way out is to abolish antiquated laws and strengthen the judiciary's hands.

In the '80s Bollywood potboiler Andha Kanoon, hero Amitabh Bachchan is framed by a criminal gang in a murder charge. The court gives Bachchan a prison term. On his release, however, he finds the murdered man to be alive. In a climactic scene, Bachchan drags the man to the same court, kills him before the judge and walks off boasting that the court cannot punish him twice for killing the same man.

FACTOIDS

ť There were 20,307 cases awaiting disposal in the Supreme Court on November 19, 1999.

ť In December 1998, 32.03 lakh cases were pending in high courts and 2.01 crore cases in subordinate courts.

ť Appeal in 2.9 lakh cases was pending before the Income Tax Appellate Tribunal in July 1999 and in 4,338 cases before the Foreign Exchange Regulation Appellate Board in August 1998.

Usual tripe? Of course. But what makes the scene memorable is the deafening applause it draws even now, for making a fool of the court. A lack of confidence in the judicial system is not just the staple of commercial cinema. It has a strong resonance in real life. Fifty years after the Constitution was adopted, the law appears to most ordinary people to be an object of fear which is better avoided.

Just how insensitive the judicial system has become is evident from a recent disclosure by Chief Justice of India A.S. Anand. He narrated before a shocked courtroom the plight of Ajay Kumar Ghosh, an accused charged with the murder of his brother in 1962, who has been in custody for 37 years without trial. The man, a chronic schizophrenic, languished in Calcutta's Presidency Jail for 34 years before being shifted to a hospital.

IDEAS

ť Reduce court holidays by half, mainly by withdrawing the summer vacation.

ť Set a minimum number of judgements that a judge should deliver in a year.

ť Punish prosecution for failing to collect evidence yet keeping the case open.

ť Allow plea bargaining. This will reduce load on courts.

While the undertrials await trial for years, those who seek justice from the court, in personal disputes or against executive inaction or excess, are finding the system twisted, narrow and full of sharks. Thanks to the inefficiency or capriciousness of the investigating agencies, only 6 per cent of registered cases in any year lead to conviction. Meanwhile, there has been a docket explosion, with 25 million cases pending disposal in the various courts.

Delays multiply costs, not to speak of causing harassment. There is, of course, a solution to every problem, offered by the corrupt "inspector raj". Solicitor-General of India Harish Salve narrates the woe of a businessman whose factory is located just beyond the 500-metre limit of a national highway in which no permanent construction is allowed. The inspector visits him each year to pick up his "due". "If the payment stops," says Salve, "the inspector may put up a note saying that the factory is indeed within the no-construction zone and that there may have been an error in the previous years' surveys. The matter will then go to court, costing money and sweat."

The cornerstone of the Constitution is the rule of law, which implies equality before the law. It is this principle of equality that has been paralysed from the top by the power of money and muscle. The son of an ips officer accused of murdering Priyadarshini Mattoo, a fellow student, is acquitted for want of evidence. The judge says he's helpless. In the case involving a rich man's son who mowed down half a dozen people in his BMW on a Delhi road, each prosecution witness turned hostile, creating the ground for his discharge.

In every high-profile corruption case, the investigative agencies invariably succumb to political pressure. Quashing the charges against former minister Arif Mohammed Khan in the Jain hawala case, Special Judge V.B. Gupta observed that he failed to understand what prevented the prosecution from conducting investigation under the same section of the Prevention of Corruption Act in which the accused was chargesheeted. Instead of probing the case under this section, the politician was given a clean chit under a section irrelevant to the charge-sheet.

The failure of rule of law has pushed India towards a near-helpless situation, turning justice into a joke. The judiciary still remains the most respected arm of the republic, though it is not above board. In the famous impeachment proceedings against V. Ramaswamy, the controversial judge, after being found guilty of misconduct by a committee of three judges, saved his job because the Congress, which had an absolute majority in the Lok Sabha, stayed away from the House. The point is, nobody even in the supportive Congress voted against the motion. This shows rust gathering on the judiciary's squeaky-clean image.

The subordinate judiciary, on the other hand, reeks of corruption. A sessions judge in Mumbai recently made headlines as recordings were made of his conversation with an underworld don, the judge seeking the gangster's help in the settlement of his business dues. Law Minister Ram Jethmalani admits that corruption is rampant among the 12,400 subordinate judges, but says it is because "they live in honourable poverty". However, it is not certain if a pay hike will contain corruption. The recent hike in the salaries of the Central Government staff on the recommendation of the Fifth Pay Commission has not reduced corruption level in the bureaucracy.

In the judiciary and the Government, voices are increasingly being heard for restoration of the rule of law by attacking corruption. Two years ago, the then chief justice of India J.S. Verma drew the road map insulating the premier investigative agencies -- the CBI and the Enforcement Directorate -- from extraneous influence by making the Central Vigilance Commission (CVC) a statutory body responsible for their supervision. CVC chief N. Vittal has made efforts to bring more accountability into the agencies, but the CVC Bill, which defines his authority, is still before a parliamentary committee. After the MPs are through, it may leave Vittal with much less power.

However, rather than streamlining the legal system by launching a frontal attack against corruption, the focus should be on making the laws enforceable. India inherited its legal system from Britain but built on this foundation an edifice of socialism based on controls. Instead of bringing relief to the people, these have become the sources of corruption.

Take for instance the ban on import of gold, which was relaxed as late as the '90s. If gold import with reasonable duty was permitted 10 or 15 years earlier, the Mumbai brotherhood of "gold smugglers" could not have mushroomed in the '70s. As gold runners, they gathered enough resources to diversify into the smuggling of narcotics and arms, and in providing support to Pakistan in its proxy war on India.

Equally pernicious are the provisions of the Income-Tax Act, the Excise Act, the Sales-Tax Acts of the states, the laws that govern foreign exchange use, the building laws in cities, and the laws that affect the daily lives of most citizens, like pension, rationing and dealings with banks. During Indira Gandhi's quick march to the left, the top income-tax rate reached an unconscionable 97 per cent, spawning a regime of tax dodgers and corrupt tax officials. The US $500 expense limit on foreign travel, in force till a few years ago, compelled two generations of travelling Indians to buy the dollar from the neighbourhood hawala operator at a 30 per cent premium. A far better alternative was to make the dollar purchaseable at banks, with a reasonable premium beyond a limit.

The arcane building laws have made the municipal "no objection certificates" a buyable commodity. The two layers of excise, at the Centre and the states, begun in 1953 at Jawaharlal Nehru's insistence, have not only created their own babudom but have kept collections low. A one-point Value Added Tax is a simple remedy by which the state can collect more revenues at a lower cost.

At the dawn of a new millennium, India must dismantle the controls that have not worked. The state's attitude of being over-moralistic must change. The control-fetish hasn't helped the country in any way. Indians fail to perform in their control-based motherland but they shine when they migrate to rule-based societies.

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