Vijay Kumar Gaba: judicial reforms

Showing posts with label judicial reforms. Show all posts

Wednesday, August 16, 2023

Battle Ground 2024 – Judicial reform & Compliance strengthening

The government introduced three bills in the recently concluded monsoon session of the Parliament. These bills propose to replace the Indian Penal Code 1860 (IPC), The Code of Criminal Procedure, 1973 (CrPC), and The Indian Evidence Act, 1872 (IEA). The objectives of these bills are:

· Streamline provisions relating to offenses and penalties; increase the scope of summary trials; make various offenses gender neutral; deal effectively with the problem of organized crimes and terrorist activities, new offenses of terrorist acts and organized crime have been added in the Bill with deterrent punishments, and introduce community service as punishment for first time petty crimes;

· Increased use of technology and electronic communication in the investigation of crimes and the trial process;

· Provision to include electronic and digital records and virtual testimony.

Admittedly, it is a recent event and I have not studied the newly introduced bills in great detail. However, I gather from my study of new provisions that these bills merely seek to incrementally improve the operations of the extant laws by incorporating new crimes; eliminating some redundancies; and integrating the use of technology in the justice delivery system. There is nothing to suggest any transformative change. Besides, CrPC and IPC deal with criminal matters only. A larger problem exists in the settlement of civil disputes, for which nothing is proposed.

In my view, these changes could bring some incremental improvement in the extant justice delivery system. However, to bring a transformative change, which is critical to the growth and development of Indian society, our judicial system needs some radical changes. We need to build a justice delivery system that is premised on trust rather than suspicion.

Based on my numerous discussions with the citizens, community associations, business associations, etc., I have collected some thoughts about a transformed justice delivery system. Again, some readers may find it utopian, but I have a strong belief that a system based on these lines could be very effective and transformative. Of course, these are some preliminary ideas that would need to be refined and structured to build a robust justice delivery and compliance ecosystem.

Promote citizen courts

As I suggested last week (see here), there is strong evidence of numerous democratic assemblies operating within various communities, businesses, and localities. I discovered that most citizens not only feel comfortable working with the members of their own community but are usually most compliant and productive when operating within the network of their “Own people” or "Community". This community bonding is popularly used for resolving disputes within the community. We need to expand this system of mutual trust-based justice delivery and compliance enforcement system by according to it a constitutional and legal status.

To this effect, I suggest the following—

Community courts

· Make a constitutional provision to recognize community and business associations as authorized dispute-resolving institutions with a right to pass legally enforceable orders in respect of all disputes involving their respective members.

· Allow social community associations, business associations, RWAs, etc. having prescribed bye laws, rules, and regulations, to register with an autonomous Citizen Justice Authority (CJA).

· CJA shall assign a judicial officer, who could be a retired magistrate, judge or senior advocate etc., to assist such association in the discharge of their dispute resolution duties.

· Allow such association to adjudicate all civil disputes, divorce cases, and petty crimes (upto 6months sentence), etc. The order/award of association should be filed with CJA and become enforceable as an order of a competent court. Only orders relating to disputes above the prescribed amount (say Rs. 25lacs) should be appealable in a high court.

Police courts

· Assign two judicial officers – one Magistrate and one prosecutor - to every key police station (say ACP level) permanently.

· These judicial officers shall work 9 AM to 6 PM every day; and adjudicate all petty crimes (theft, brawls, injuries, accidents, etc.) and disputes not referred to a community court, at the police station itself within a week of the reporting of a crime.

· These judicial officers should also hold frequent meetings with the local residents, schools, and businesses to guide them about the importance of compliance, law & order, etc.

· All orders of such police station courts should be filed with CJA. Any aggrieved person may apply to CJA for reassessment. If CJA finds merit in such appeal, it may refer the matter to a higher court for a detailed trial.

Advance Ruling system

· The duration of law courses may be extended by one year. In the final year, all students shall be required to undergo a mandatory internship with a district or local court. All candidates selected for judicial postings must be mandatorily required to serve one-year internship with a high court. All designated senior advocates and magistrates getting promoted to sessions court shall serve one year of internship with the Supreme Court.

· It must be made mandatory for all lawyers to submit a complete petition with all supporting documentary evidence, affidavits, and transcripts of the key witness statements at the time of filing of the petition itself.

· The interns assigned to various courts shall study these petitions carefully and prepare a draft judgment. They may seek additional details from parties if required.

· This draft judgment shall then be perused by the respective judges; and if found prima facie acceptable, shall be communicated to the respective parties. If all the parties accept the draft judgment, the same should be pronounced as final; else the regular proceedings should commence. A rate of 35-40% acceptance could substantially reduce the justice delivery time for all.

· This could be extremely useful in civil and revenue matters, where most of the evidence is available at the outset.

· The State should normally not object to draft rulings.

Strong perjury law

· In the absence of a strong perjury law, it is common to see witnesses, complainants, and accused blatantly making false statements, furnishing forged documents, presenting false witnesses, etc.

· A strong perjury law, providing for similar punishment for perjury as may be applicable to the underlying crime, may prevent numerous frivolous and false cases.

Legal education

· The new education policy may consider introducing small courses at the primary and middle school levels to educate students about (a) the importance of compliance; and (b) making them aware of various laws that exist to help and protect them.

· The local police officers, regulatory bodies, and community associations should be mandatorily required to hold training sessions for students in their jurisdiction to make them aware of the importance of compliance with tax laws, traffic rules, civic rules like no-smoking, no-littering etc.; rights of equality, respect for other genders, castes, religions etc.

· Schools should be mandatorily required to engage with all the parents with compliance training.

· All students must be given lessons on traffic rules, cleanliness, primary healthcare and gender equality.

Pragmatic regulation

· All regulatory compliance norms should be pragmatic and based on the behavior of the majority that is compliant rather than the behavior of the minority that is non-compliant.

· Compliance rules should avoid micro-regulation and should regularly review the norms for redundancy.

State Appeals

· The Indian state is inarguably the single largest litigant. The appeals filed by the State against decisions of various courts, regulators, revenue authorities, etc. constitute a significant part of the outstanding cases in various higher courts.

· It would be extremely beneficial if the rules for appeal by the State are made much more stringent. Appeal by the State in revenue and criminal cases should be an exception rather than a rule, as is the case presently.

These suggestions are meant only to be a starting point for a larger debate on the justice delivery system and compliance reforms in India. Readers are welcome to add suggestions, ideas, and views based on their experiences.

Tuesday, August 8, 2023

Battle Ground 2024 – Justice delivery, Jugaad & Non-Compliance

Three of the major impediments to India’s sustainable development and faster socio-economic growth could be listed as (i) Blatant disregard for the law due to a pathetic justice delivery system; (ii) Jugaad mindset of people and (iii) total disregard for the social and regulatory compliance norms.

Let me explain my point with the help of the following examples:

Bail is acquittal

I recently visited Chaubeypur Village in the Varanasi district of Uttar Pradesh. A decent sized urbanized village located about 25 km from Varanasi city, Chaubeypur is representative of the unplanned and unsustainable urbanization of numerous Indian villages.

In Chaubeypur, I met Chote Lal (name changed) who is accused of 2 murders, arson, land grabbing, extortion, and rape of a middle-aged woman. Presently out on bail, he gleefully boasted to have committed some of these crimes. When I tried to discuss the law and order situation in the area with Vimal Saxena (Name changed), a lecturer at Law College in Chaubeypur, he appeared rather bemused at my naivety. On a little prodding, he asked a counter question – “Have you ever noticed why a bail order is invariably celebrated and makes big headlines in India?” I literally was at a loss for words, as I could not think of any logical explanation for celebrating a bail order.

“For the accused of criminal acts, two-thirds of cases end with the bail order. Once the accused is released on bail, the case remains of little consequence. The cases could be dragged to eternity. In most cases witnesses would vanish; complainants and/or accused would die; the complainants would run out of money/patience to pursue the case; or the complainants would be forced/lured to withdraw cases. Therefore, anyone who is confident of securing a bail order is fearless and not afraid to commit heinous crimes. The situation is no better in civil matters. Property and family disputes, in particular, could drag on for decades without any resolution.”

Interacting with Chote Lal and Vimal Saxena for 20 minutes would give you a fair idea of the malaise plaguing the Indian justice delivery system. Anyone who has been in a situation warranting a judicial or legal intervention would know this situation very well. But still, no one talks about solutions for this grave problem!

Jugaad is celebrated as a “unique skill”

In the past five years, in particular, social media has been incessantly flooded with messages highlighting the architectural excellence of medieval India, as reflected in our temples, water bodies, forts, etc. The messages everyone sees in the media conveniently ignore the fact that we are unable to build a 10 km stretch of road that could sustain 25mm of rain in a day.

The point is that the ‘jugaad’ mindset has perennially pushed back India and Indians tenaciously into survival mode, preventing the development of a strong foundation for economic growth and prosperity. The ‘jugaad’ mindset reflects poorly on almost every aspect of the socio-economic life in India. This has severely impacted the pursuit of excellence, a hallmark of Indian art, culture, engineering, architecture, and industry till the 19th century, at least.

The ‘jugaad’ mindset has also doggedly constricted the vision of an average Indian entrepreneur. Except for a handful of Indians, most of whom have the benefit of studying and/or working overseas, not many have thought about scalable business models. Consequently:

· Despite having over 2000yrs of the rich tradition of fashion, fabric manufacturing, dress designing, and abundant raw material availability why no Indian textile or fashion brands figures prominently in the global fashion and textile industry?

· Despite being one of the oldest civilizations, the tradition of living and networking in communities, spending considerable time in chaupals and doing Adda till late at night, and availability of tremendous IT skills – no Indian thought of creating Facebook – an e-chaupal with over US$800bn in market cap.

· Despite claiming ourselves to be the world leaders in the field of religion, spirituality, culture, etc. we could not create Mecca, Vatican, and Jerusalem out of Vrindavan, Kashi, Tirupati, Ajmer, Haridwar, etc. Most of these places are filthy and abysmally inadequate in basic tourist infrastructure.

· Despite slavery for many centuries, why do we still depend on those very foreigners for the supply of equipment, arms, and ammunition for our armed forces?

· Why failing to win an Olympic gold medal is a subject of national shame; failing to get a nomination for the Oscars is a subject of national disappointment, but not getting a single Nobel for mathematics, science or literature post-independence does not evoke any regrets or discussion. Remember, we always proudly claim ourselves to be pioneers in the fields of mathematics, physics, astrophysics, metallurgical and medical sciences, etc.

· Why do we derive pride from the success of emigrated Indians who have taken foreign citizenship?

· Why an average Indian male feels proud of being sexist when our religion, culture, and traditions propound the supremacy of feminine power (The Mother Supreme)?

· Why does an average Indian feel proud of being racist when our religion, culture, and traditions preach the universality of human (Vasudheva Kutumbakam)?

These are not but just a few of the illustrations that explain the harmful effects of the ‘jugaad’ mindset. ‘Jugaad’ in the economic field is as dangerous as in personal life (like self-medication) and politics (caste and religion-based politics, adhocism in key socio-economic policies, etc.)

It is because of this jugaad mindset that a large proportion of the Indian populace could not develop respect for intellectual property rights – others and their own.

Compliance is for the cowards

When you see these pictures, what comes to your mind first?

Are these funny? Are these worth appreciating? Do they highlight the quintessential Indian character? Do you care?

Now tell me—

· Have you heard of anyone protesting or suing Amir Khan for openly desecrating the historic Red Fort, a heritage building in movie PK?

· Did you find engineering students drinking alcohol in college campus in 3 Idiot, acceptable?

· Did you find Amir Khan riding a scooter in the critical care ward of a Hospital acceptable?

· Did you noticed that Salman Khan is romancing on a motorbike without wearing a helmet?

· Did you find this overloaded lorry in Fevicol advertisement impressive or funny?

· Did you ever thought of complaining about the famous and celebrated Mumbai Dabbawallahs blocking traffic, causing inconvenience to passengers in local trains, or you find it regular or rather part of a great service to the nation?

· Does the latest TV advertisements of Sporto sportswear and CEAT tyres, that describes Indians as incorrigibly non-compliant, offend you, or you would just laugh it off?

Once, I sent these photographs to 50 people, randomly selected from my contact list, for their comments on these pictures. The mail was sent without any preamble.

No surprises there. None of the respondents pointed out any problems with these pictures.

28 respondents just found the pictures funny and answered in LoL emojis. 3 respondents said, Amir Khan is any day better than Salman Khan. 5 respondents have asked who is the actor jumping the road divider and dancing in front of the motorbike. Two of them also wanted to check whether there is Govinda amongst the Dabbawallas' group seen in the given picture.

14 respondents answered with just "???"

The respondents include professionals working with MNC banks, large IT firms, infra developers, exporters, and Indians working in foreign countries as senior managers. 20 are women. All are in the 35-50yr age bracket.

There is no dearth of people who consider wearing a helmet while riding a motorbike, wearing a seatbelt while driving a car, and ignoring a phone call while driving an act of cowardice. Just by not following lane discipline while driving on roads, people cause massive traffic jams, wasting millions of work hours and fuel worth billions of rupees.

It is a common practice for most private schools and teachers to assign tasks to small children, that they could not be reasonably expected to perform on their own. In most cases, teachers are fully conscious that the parents will be completing such assignments. The parents are usually bothered, but somehow choose not to register their protest to teachers; rather they choose to complete the assignments themselves. Of course, the children get their first lesson in non-compliance in their preschool tenure itself.

It is undisputed and inarguable that a section of Indian businesses has been violating the law of land and rules of compliance with impunity for long. Have we witnessed industry associations like CII, Assochem, PHDCCI etc., strongly reprimanding their constituents or issuing a mandatory advisory to all its constituents and members not to indulge in such practices and ensure full compliance with the law & rules in force?

The entire nation knows how the staff members and officers of banks conducted themselves during the Demonetization period. How many of these bank employees have been punished even with a reprimand? How many of the citizens who bribed these bank employees to get their currency notes converted out-of-turn, are ashamed of their act of non-compliance?

The point in case is that "compliance" does not appear to be a high priority on the agenda of even the most educated, wealthy, and responsible citizens. It is unfathomable for a habitually non-compliant society to develop sustainably and grow at a faster speed to become truly a global force.

I shall be traveling for the next 3 days., and may not be in a position to write my daily posts. I shall therefore offer my solutions for improving compliance standards and reforms in the justice delivery system next week. These solutions could form a basis for a larger debate in society and at the policy-making level to evolve an appropriate policy framework

In the meantime, I shall be happy to receive input from readers in this context.