It is therefore, necessary that some kind of control over courts is necessary to eliminate the possibility of miscarriage of justice.
The courts can be kept under effective control through a rationalised sentencing policy which embodies the following principles:— 1. Mandatory penalty should be obligatory in all circumstances. 2. An escape clause should be provided for those offenders who are suffering from some mental disorder or have no record of previous conviction or committed crime due to provocation. 3. Sentencing be prohibited in certain cases of trivial offences.
4. Appeals against the sentence is yet another form of control over courts. This not only enables timely correction of errors of individual judgment but also offers an additional opportunity of reconsidering justice in doubtful cases. 5. Each sentence must be accompanied by reasoned justification.
It is encouraging to note that court trials in India have the requisite elaborateness, sophistication and meticulousness which are necessary for a fair criminal trial. The provisions relating to bail, anticipatory bail and bonds avoid unnecessary prison term for the suspects and undertrials. The hearings in courts are, however, often protracted and adjournments cause inordinate delay in disposal of cases. The philosophy of impartial justice is envisaged in appeals at three different levels, namely, the district, the State and the federal level, with the result convictions are prolonged to years or even decades to bring the guilty to the prison cell or to the gallows for their criminal acts. To cite an illustration, people’s confidence in the efficacy of the country’s judicial system is bound to weaken when they see that it took four long years to send the two assassins of India’s most powerful Prime Minister Mrs. Indira Gandhi to gallows after a long legal battle.
Even after the Supreme Court having described the killing as “most foul and senseless act” in its judgment, another six months were lost in an intense legal battle and disposal of mercy petition by the President. While protracted legal proceedings brought both name and fame for the lawyers who advocated on behalf of the accused, an uncalled for glorification was provided to assassins Satwant and Kehar Singh by media. The inordinate delay more than four years in concluding of Late Rajiv Gandhi murder case by Jain Commission, has again undermined the faith of people in the criminal justice system.
When killers of persons no less than the Prime Minister takes such a long time what can be expected of the murder of a common man! Some of the reasons for apathy and distrust of the people towards the functioning of courts of law in general and criminal courts in particular, are high cost of litigation, laws’ delay, inconvenience due to distant location of courts and cumbersome court procedure of trial. Exploitative tendency of the Bar towards the litigants is also a major contributing factor for public apathy for the criminal justice system. It is common knowledge that very few members of the public who are present at the scene of occurrence are willing to come forward to depose in courts because of long waiting for evidence to be recorded, adjournments on flimsy grounds, brow beating of genuine witnesses by overzealous defence lawyers and inadequate compensation for the loss of day’s earnings. These are the biggest hurdles in getting public witnesses, which are so essential for getting the accused person convicted in criminal cases. That apart, the main problem that the subordinate criminal courts are facing today is the problem of witnesses turning hostile for one reason or the other.
This is more true when an influential person or his near relative is involved in a criminal case and is undergoing trial. Commenting on backtracking by witnesses, the Delhi High Court in its recent judgment in the notorious Jessica Lai Murder case, observed that “witnesses turning hostile appears to be the order of the day and the courts must put an end to this kind of attitude.” In the instant case, as many as 32 witnesses had turned hostile due to the alleged manipulation of evidence by the accused Manu Sharma who happened to be the son of the Congress leader Vinod Sharma. Accused Manu Sharma was sentenced to life imprisonment by the Court. All these witnesses were asked to appear before the Court on February 1, 2007 to explain as to why action should not be taken against them under Section 340 of the Code of Criminal Procedure, 1973, for interfering with the administration of justice. These witnesses are likely to face the same fate as Zahira Sheikh, who was sent to jail by the Supreme Court in March, 2006, for lying under oath in the notorious Best Bakery case.
These shortcomings can be remedied by streamlining the judicial system where at present the Judge acts as an “umpire” and not inquisition trying to arrive at truth. An All-India Judicial Service for recruitment of Judges, prescribing maximum time-limit for disposal of cases listed by courts, evading innovative trial-procedure, curtailing the number of appeals and entrusting the task of deposal of petty cases to Nyaya Panchayats are some of the useful measures which may improve the working of courts and ensure speedy disposal of criminal cases. It must, be reiterated that the Judges in imparting justice are no doubt guided by the settled principles of law but the public opinion exerts considerable influence on judicial proceedings. As Donald Taft rightly remarked, “the public opinion about a particular case finds expression through the judgment of the judicial authority dealing the case duly supported by the relevant legal provisions”. The social, economic, and cultural changes in the society are inevitably reflected in the judicial pronouncements. Court’s activism through their judicial verdicts helps in shaping law to meet the needs of changing society. The Supreme Court’s decision in Shah Bano Begum’s case, involving Muslim divorcee claiming maintenance under Section 125 of the Code of Criminal Procedure, 1973 and in Pratibha Rani v.
Suraj Kumar legitimizing a Hindu wife to proceed against her husband or in-laws under Section 406 I.P.C., if she is denied possession of her dowry (called Stridhan) on demand or if it is misappropriated, may be cited in support of this contention. Again, in V.
M. Arbat v. K. R. Sawant, the Supreme Court ruled that it is daughter’s duty to maintain parents in their old age. Actuated by the desire of judicial activism, the Supreme Court of India while deciding a rape case came to the rescue of rape victims and observed that there is no reason to insist on the corroboration except from the medical evidence, where having regard to the circumstances of the case the evidence of the victim does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence.
Supreme Court’s judicial activism is further discernible in compensatory relief granted to victims in criminal cases. With a view to providing protection to dowry victims against harassment by the husband or his relatives, the Criminal Law (Second Amendment) Act, 1983 has added a new Section 498-A to the Indian Penal Code making ‘cruelty’ to wife by a husband or any relative of husband punishable with imprisonment upto three years and fine. The meaning of ‘cruelty’ is not only limited to ‘physical abuse’ but extends to ‘harassment’ of wife and may even include ‘unlawful demand for dowry or property or valuable security’. The amendment thus seeks to provide adequate relief to dowry victims against their greedy husband or in-laws. Summing up the role of courts in the administration of justice, suffice it to say that “India today is passing .through an age of social questioning.
There is need for legal institution and courts to earn reverence through the test of truth”. The high incidence of acquittals and the increasing failure of the system to bring major culprits to book is one of the major reason which is shaking the confidence of the people in the criminal justice system. At present the high percentage of acquittals is due to decline in the quality of police investigation and its consequent inability to procure and produce credible evidence which may establish the guilt of the accused. Perhaps the reason which makes the task of the police difficult is the fact that most of its time is consumed in making arrangements for V.I.P.’s, handling bandhs, strikes, hartals, agitations and other disturbances which have increasingly become a part of public life today.
Therefore, every effort should be made by the magistracy to preserve the image of judiciary which is the ‘highest armoury’ imparting justice. The Bar should equally be vigilent against any attack on the independence of judiciary so that people do not lose confidence in this august institution. It hardly needs to be pointed out that independent judiciary is surely a sign of good health in a democracy. The Judges of the Supreme Court have always acted keeping in view the largest interest of the country and its democratic values.
Their performance as the conscience-keepers of the Constitution and the guardians of fundamental rights has been laudable. Their role in revamping the criminal justice system by interpreting ‘procedure established by law’ as “due process of law” in Article 21 of the Constitution has been commendable insofar as it has provided great relief to common men against the complex technicalities of criminal law- procedure. It must be stated that of late, the higher judiciary in India has acquired a dominant profile. The politicalisation of the police and the criminalisation of politics may carry this process of dominance by judiciary further. As rightly pointed out by an eminent writer, “to some extent, the judiciary is born great, some greatness has been acquired by it on the strength of the performance of some of its illustrious Judges, but some of it has also been thrust on it by the failure of the Executive and the legislative organs of the State to do their duty properly”. There have been occasions when the Judges have not hesitated from directing the various executive functionaries to have certain laws enacted for speedy and impartial administration of criminal justice.
More recently, the Supreme Court has directed the government to introduce accountability along with necessary checks and balances in the key investigation agencies such as CBI and the Enforcement Directorate through appropriate legislation. The Court also ruled that all the recommendations of the IRC (Independent Review Committee) needed to be implemented immediately.