The Indian Constitution —  Some Creative Mutations Mooted

(By Justice V.R. Krishna Iyer)

More than a semi-centennial span has passed and several amendments inscribed making our long and complicated Constitution an arcane, logomachic and even obscurantist instrument. This supreme deed is now a lawyer’s bizarre paradise and judges’ interpretive and authoritarian pronouncement, alienating the people, including intellectuals, from its meaning. The investment of powers, fundamental values and vision are often a riddle for the common man facilitation arbitrary executive and legislative action.

Everything that could be thought of or raked up has been used to weaken confidence in the Government, has been used to prove that Ministers are incompetent and to weaken their confidence in themselves, to make the Army distrust the backing it is getting from the civil power, to make the workmen lose confidence in the weapons they are striving so hard to make, to present the Government as a set of nonentities over whom the Prime Minister towers, and then to undermine him in his own heart, and, if possible, before the eyes of the nation. All this poured out by cable and radio to all parts of the world, to the distress of all our friends and to the delight of all our foes! I am in favour of this freedom, which no other country would use, or dare to use in times of mortal peril such as those through which we are passing.

Arbitration by retired judges was statutorily conceived as a process of reducing court docket arrears which were shocking and dilatory. But the arbitral remedy aggravated the malady, the arbitrators arbitrarily charging Rs.10,000/- to fifty thousand per day, (of course with moderation in some cases) each day consisting of two or three hours work and the proceedings being adjournment-merry to the lucrative pleasure of the participating judges and advocates. The judges formally retire but manage to occupy membership of strange commissions doing recommendations which are often ignored by government. The Bias Commission (I cannot sure of the exact name) where judges retired from every conceivable Commission occupy without limitation of time, drawing high salary and doing little work. 

A judge, great while on the Bench and became a celebrity on retirement, making professional income by way of consultation from the party on retirement. He took fees for consultation and later became an arbitrator in the same matter, took fees and gave his verdict in favour of the same party! This is prima facie the limit of misconduct. But horrendous is the refusal of the Supreme Court which declined to hear the misconduct charge! Arbitration business needs new moral principles with statutory regulations and conciliation alternatives lest the people lose credibility in this quasi-judicial operation. Imagine how, some judges never wrote judgements or took years to produce one. Whom to blame when they are not accountable with punitive sanctions! Why judges only? MPs draw heavy T.A. large salaries and perks and walk out under curious, eccentric pretexts! Constitutional instrumentalities are slowly suffering moral decadence.

The Founding Fathers had expressed certain democratic views about the governance of the country. But in practice their perceptions and expression of principles have been ignored by the Executive and their ideology has been openly defied even by the judiciary. Their concept of representative government has poor purchase and Nehru, Ambedkar, Rajendraprasad, Patel and other leading cadres have ceased to possess relevance. The weak and the underprivileged who had great expectations from swaraj have no voice in the rule of the Republic. Winston Churchill, in the British House of Commons, opposing the basics of the Indian Independence Act, articulated his hostility to handing over power to rogues, rascals and freebooters. This was a vicious description of the patriotic Indian leaders, but today, sixty years, after skeptical nationalists with integrity and humanism wonder whether that description is being fulfilled by the present generation of Indians in power. The Preamble to the Constitution speaks of a Socialist, Secular, and Democratic Republic. Alas! Socialism has been burked and Yankee imperialism is alleged to influence our foreign policy and our internal administration and ‘Westoxicated’ our culture through exotic investments by tycoons. The written text of the Founding Deed speaks of secularism and socio-economic justice to the masses and classes. But no more secular classes, only lunatic casteism and religious rivalry competitive pluralism. Democracy highlighted in the Preamble has been de facto liquidated and only the rich can afford to contest elections, only communal forces and corrupt methodologies can nominate candidates or shape policies. Rarely, if ever, has an elected candidate secured  fifty one percent of the Constituency’s voter totality. A small percentage of the people in the voter’s list can buy and become the winner candidate. Money matters in the elections and communalism too, making the vast majority in the constituency a mockery. Governance by a Coalition renders the vice of the people a terrible travesty of Abraham Lincoln’s definition of Government, by the people, of the people and for the people. The judiciary has often denied the imperativeness of misplaced Article 32 as a fundamental right and the expression ‘class’ has been substituted by counterfeit caste. The poor have been denied human rights and India’s billions have suffered power eclipse. The billionaires, Indian and foreign, have control over the three instrumentalities of Government. For fifty years or so the judiciary, which has great authority, used to be appointed by the President of India on the recommendation of the Prime Minister who ordinarily consults the Chief Justice of India. But now, in open defiance of Ambedkar’s views in the Constituent Assembly, a few judges of the Supreme Court, composing a Constitution Bench, by a majority seized power to appoint judges through a collegium without any warrant in the Constitution a weak executive and a divided parliament have allowed this usurpation to pass muster. The performance of the alleged collegium is often extraordinarily inefficient on the administrative side.

Every generation is a new nation, said Ambedkar, quoting Jefferson, in the Constituent Assembly. Now let us see whether any substantial mutation may be mooted to make the Constitution truly socialist, secular and democratic.

Corruption, in its various dimensions, has consumed the country’s integrity and ability. The Parliament with the exception of an excellent Speaker and exceedingly capable members and ministers, only some of them, is a shameful picture of jungle behaviour and absence of dignity and high values or powerful debate. One wonders whether the berserk behaviour of Parliament exasperating even the Hon’ble Speaker, rarely discuss legislative bills of importance and issues of national concern. Oh! The pity of it. As we see the two Houses in functional futility we remember the great Churchill in the Commons. 

Indeed, many members have criminal antecedents and even ministers are not above board. But are they accountable to the people or is there a right of recall? The Cabinet, with its executive supremacy is often incompetent to understand legislation or national inquest. Some MPs could be purchased with the result the rich dominate and the rule of unlaw, with undefined privileges, trample over the rule of life. The judiciary, which is the glory of the nation, is appointed on the fancy of a collegium. Some of them have a dubious background and it is openly discussed that a percentage of them, though small, is guilty of arrogance, incompetence and delinquency. For these reasons some fundamental changes are a must, if India is to be a brave new Bharat with swaraj secured under Mahatma Gandhi’s leadership is to survive. 

Delay in Administration of Criminal Justice*

(By A.P.J. Abdul Kalam, His Excellency, The President of India)

Dimensions of criminal justice delivery system

I am extremely happy to be with you all on the occasion of the National Seminar on “Delay in Administration of Criminal Justice” marking the conclusion of the golden jubilee celebrations of the Indian Law Institute. I am particularly happy that the subject “Delay in Administration of Criminal Justice” has been chosen to be the topic of the seminar. The theme is so topical and I sincerely hope that the deliberations during the seminar would throw up practical solutions to the extremely serious problem of delay in administration of criminal justice that is plaguing our nation. I am reminded of what our great legal luminary Justice Shri V.R. Krishna Iyer once said, “Man lives in the short run, but litigation lives in the long run”. How true! I would say that it literally crawls in the long run. Dispensation of justice becomes a mockery if it gets delayed and becomes long-drawn-out, making it patently unjust and unfair to all concerned.

I have visited all the States and Union Territories of our country. During the discussions with many citizens from various walks of life, they have expressed a very important point about criminal justice, which I would like to share with you, “If real criminals in our society are left without punishment for many years, because of delay in criminal justice for various reasons, it will indeed result in multiplication of number of people taking to criminal acts.” Now I would like to discuss on the topic “Dimensions of Criminal Justice Delivery System”.

Research—Teaching—Research

Since this seminar is conducted as part of golden jubilee celebrations of the Indian Law Institute, I would like to stress on the importance of research. Good teaching emanates from research. The teachers’ love for research and their experience in research are vital for the growth of any institution. Any institution is judged by the level and extent of the research work it accomplishes. This sets in a regenerative cycle of excellence. Experience of research leads to quality teaching and quality teaching imparted to the young in turn enriches the research.

Suggestions for research by Indian Law Institute

The Indian Law Institute can take up 20 criminal cases decided by the Supreme Court, 40 cases decided by the High Courts and 100 cases decided by District Courts for research. They can go into the case from the time of the crime committed till the final judgment and study with reference to the following aspects:

(a)    Identify the time of reporting of the crime from the site and the gaps, if any, between the occurrence and reporting.

(b)    The time when the FIR was filed and delay in filing of FIR, if any, with causes for the delay.

(c)    Dynamics of witnesses with reference to time delay in court proceedings.

(d)    Dynamics of advocates in obtaining adjournments and the impact of public interest litigations.

(e)    Time delay in leading the witnesses and the arguments by the prosecution and defence.

(f)     Time delay in judicial process leading to final delivery of judgments.

Research findings of these cases, I am sure will definitely provide an insight into multiple causes of delay and suggest methods for procedural and legal provisions needed to be modified in our criminal justice system. Now let me discuss how a crime gets manifested.

Manifestation of crime

Firstly, historically conditioned political problems simmer for a long time and are remaining unresolved. At this stage, certain foreign elements also enter into the fray and encourage violence to take advantage of the situation. Over a period of time, many of these activities transform into various forms of crimes ranging from extortion, abduction, drug trafficking, arms trade and brutal killing and massive attack on innocent people. Second type starts with economic and socially conditioned crimes such as smuggling, illicit liquor, land grabbing which over a period of time become organised activities by major groups. These powerful groups enter into various economic activities such as real estate, films and various other financial investments and business. Over a period of time, they are also able to obtain political patronage through their money power and muscle power. Thirdly, business rivalries between competitors also lead to obtaining the services of criminal elements. Over a period of time these activities develop a nexus between business world and criminal world. Fourthly, political competition for electoral or various other forms of alliances to seek power uses the money power and criminal elements. They resort to financial and other forms of servicing by the criminal elements. Over the period, all the four elements develop various forms of linkages and cause societal unrest due to the invisible nexus between and among them. In this process all forms of administrative machinery are also drawn into these problems knowingly or unknowingly. It is against this complex background we need to address the subject of criminal justice in India today.

Suggested solution

I have thought about it several times. Some people suggest that the solutions are in creating good governance. Many children ask me, when can I see a corruption free, peaceful and safe India? I have been telling them that they should transform themselves and to a certain extent attempt to transform their parents and families if they are deviant through their love and affection. But how long can they wait? Will the situation survive till they grow up? Therefore I was thinking and thinking, I found what appear to be some basic facts:

(a)   Those who are in power and are enjoying power in the above context, by themselves do not have any reason to change the system. They will even resist changes.

(b)    Coming to ordinary powerless citizens by their very nature of lives, they cannot do much, because the very power system will punish them if they raise their voice. Therefore, generally citizens are resigned to their fate. When occasionally few young whistle-blowers who are keen to correct the system bring out the facts, the powerful nexus of criminal elements systematically eliminates them. Therefore what is the solution?

Those who are in the powerful system and have power but think that it is wrongly used should now come out and be ready to face the wrath of others. They have to assert that the system has to be changed in the interest of one billion people of the nation. It is not enough to have one or two like this, we have to mobilise hundreds and thousands of them at various levels as genuine societal reformers. It has to come from political system, bureaucratic system, judicial system, police system and various other government and non-government agencies that wield power should be ready to expose the criminal process in power and ready to fight it and bring out a fundamental difference to the common man by effecting systemic changes at all levels. It may need lot of sacrifice and I am sure the people who sacrifice today will be remembered by the posterity for centuries to come. This is the new satyagraha which is required for the 21st century India for the sake of our youth, who rightly deserve a prosperous, peaceful and safe India well before 2020. I am sure we can definitely achieve this if all of us collectively work together. Now let me discuss some details of justice delivery process.

Justice delivery process

When I think of justice delivery system following event comes to my mind. The criminal justice system has the following components— the affected person, the accused, police, witnesses, lawyers and multi-levels of judiciary apart from the influence of the society. Many times, the affected person himself or herself is the cause of the delay in reporting of the crime. If the reporting is with mala fide intentions in the first place, the affected person cannot expect sympathy for not getting justice in time. However, in certain cases, particularly in respect of women the reporting takes place much after the occurrence of the crime. This is probably due to the fear of defamation of the aggrieved party. In such cases, there is a need for sympathetic treatment and the complaint cannot be ignored because of the delay. It should be acted upon immediately even though the accused might have taken many actions to destroy the evidence. In view of this, police may have to act faster to prevent further destruction of evidence. Let us discuss the crime situation prevalent in the country.

Dynamics of crime

I would like to share with you some of the immediate concerns which I have been getting through the interaction with the people, e-mails and from other sources. The women in the country generally feel that they are not safe in certain localities in certain States. In addition, there are a number of incidences of violence against women in many forms. Kidnapping, abduction and extortion have become a frequently occurring serious problem in certain States. Inter-State gangs launch themselves and conduct daylight robbery and mercenary action. Problem of alienation has led to terrorism, and naxalism has spread to certain regions. Several methods are found by individuals and groups to create large-scale scams and frauds in different parts of the country. Even educational institutions and medical institutions are not spared, like leakage of question papers. Every election witnesses episodes of criminal attacks on candidates, booth-capturing, tampering with ballot boxes and methods to disturb the democratic election process. Of course, the situation is gradually improving. No one wants to be a witness due to the sense of insecurity and lack of confidence in the system. The jurisdiction issue many times results in not filing the FIR in time and gives the opportunity to the criminal to destroy all the evidence in the interim period. For ensuring timely filing of FIR and urgent action for apprehending the criminal, I would suggest the following action by the police.

Police station is the place of action

First of all every Station House Officer (SHO) of the police station should be instructed that he or she is bound to register the complaint immediately. Every police station should be provided with a computer for registration of complaints and e-mail address of the SHO should be published. In case nobody is registering the complaint, the complainant should have the option to send the complaint by e-mail to the officer concerned endorsing a copy of the complaint to the higher authorities whose e-mail id should also be widely published. Every complainant should get a receipt for the complaint launched with intimation to higher authorities. Procedures for registering of complaints should be widely publicised in leading newspapers and electronic media. The higher authorities should be apprised of the progress of the case by entering the status report in the police network. It must be made mandatory for all the police officers charged with filing of complaints to give an action-taken report periodically within ten days to the superior officers. All police officers should abstain from pressurising the complainant to withdraw or compromise the complaint. If such circumstances are found, the higher authorities should listen to the complainant and take action against the erring police officers.

Technology for transparency

Now, with the use of technology, we have to ensure that the investigation carried out by the police is fair and transparent. To ensure manipulation of evidence by some of the erring officials, it is necessary to bring all aspects of the crime as a visual data on a computer file so that continuous traceability of the person involved in the investigation process is available, so that any abnormal action can be traced to an individual. This will act as a deterrent for biased individuals to take wrong action. Also, the police have to be given a clear time-frame for filing of the charge-sheet. In spite of all these actions, if it is detected that the police had colluded with the criminal and had attempted to manipulate the evidence against the accused, three-pronged action is necessary to deal with the offence of the police. Firstly, there should be an impartial departmental enquiry with exemplary punishment if the manipulation is established. Secondly, there should be a parallel criminal court action against the erring officials and thirdly, the affected person who had suffered due to the collusion of the police should be compensated for inflicting additional suffering. Such exemplary actions against the erring individuals will be an important deterrent for other officials while dealing with similar situations. As an additional precaution and to create societal pressure, there should be a bar on the recruitment of even the relatives of the erring officials in the police force for a specific period.

Time-bound justice delivery system

Another element which contributes to the delay in criminal justice is the seeking of never-ending adjournments by both side lawyers and courts acceding to such requests. To deliver speedy criminal justice, it is essential to have a time-bound mechanism for hearing, arguing, deciding including appeals of the cases. A law can be enacted prescribing an upper limit of time by which a criminal case has to be finally decided. This could be a maximum of six months or one year depending upon the complexity of the crime. All the stakeholders namely the accused, police, lawyers, witnesses, judges at various levels have all got to become accountable for finalising the case before the prescribed time-limit. For any deviation from the limit, they must assign reasons for non-compliance in writing.

Hostile witnesses

One more issue which crops up frequently is the witnesses turning hostile. They declare the truth at the commencement of the case and later give opposite evidence in the court or they refuse to attend the court. This arises either due to the fear of the accused and the police or due to inducements of different types. A strict mechanism has to be evolved for preventing the witness turning hostile. Also, such action should attract exemplary punishment as a crime against society.

Protecting the rule of law

The rule of law is protected only when there is a predictable legal system that is readily accessible and responds to the needs and problems of the citizens in a fair and non-discriminatory manner. The police, the prosecution, the Prisons Department and the judiciary need to introspect and review their own processes to rectify ills in the system caused by their own malfunctioning. It would be a good idea to engage young law students to identify factors which impede efficient and effective administration of criminal justice. They could examine good practices of other countries and assess the feasibility, appropriateness and suitability of their application to Indian conditions. Use of modern technology to improve upon the efficiency of the investigative and prosecution wing needs to be given special attention. A competent team of prosecutors and specialised investigation can vastly improve the performance of our criminal justice machinery. Equally significant is the fact that there is little hope for justice when people who witness a crime do not co-operate with the investigation. Lawyers should also remember that while it is natural on their part to work towards winning their case, litigation should not be reduced to a mere trade at the cost of basic principles of ethics. This is an obligation that they owe to the society and they must live up to it.

Conclusion: Righteousness and peace

Now I would like to share with you a beautiful divine hymn about righteousness. It reads as follows:

“Where there is righteousness in the heart, there is beauty in the character.

When there is beauty in the character, there is harmony in the home.

When there is harmony in the home, there is order in the nation.

When there is order in the nation, there is peace in the world.”

It is a beautiful connectivity between heart, character, nation and the world. In a society we have to build righteousness among all its constituents. For the society as a whole to be righteous we need creation of righteousness in family, righteousness in education, righteousness in service, righteousness in career, righteousness in business and industry, righteousness in civil administration, righteousness in politics, righteousness in Government, righteousness in law and order, righteousness in justice. A righteous society will eventually become a crime free society. While we are working out several methods for administering speedy criminal justice, we have to eventually work for a crime free, peaceful, harmonious and happy society.

With these words, I inaugurate the National Seminar on Delay in Administration of Criminal Justice and my best wishes to all the participants of this seminar and success in their mission of reducing the delay in administration of criminal justice to the needy.

May God bless you.

*Address at the National Seminar on Delay in the Administration of Criminal Justice, organised by the Indian Law Institute, New Delhi.