>I would like to hear from those in Assam Net who believe there is
nothing wrong with the SYSTEM, after they read this.
I don't think you will find ANYBODY
who believe there is nothing wrong with the SYSTEM.
NOBODY is saying the SYSTEM is
perfect.
All we are trying to find out what
is not PERFECT and so that we can make it PERFECT.
So far nobody could come up with
specific items what need to be fixed.
Can you help?
Rajen
----- Original Message -----
Sent: Tuesday, April 26, 2005 12:38
PM
Subject: Re: [Assam] Fast Track
Courts
I did not find any description of what this FTC is. But found the
following from Hindusthan Times.
I would like to hear from those in Assam Net who believe there is nothing
wrong with the SYSTEM, after they read this.
cm
BEST BAKERY - A SAMPLE OF FAST
TRACK JUSTICE
Author -
Anil Chawla
Witnesses turned hostile and that
led to the acquittal of all the accused in the Best Bakery Case. But it is a
bit more complex than that. The case is illustrative of the way fast
track courts in India are dispensing justice. There is a need to review
the system of fast track courts to ensure quality and credibility of
judicial system.
Today morning's Dainik Bhaskar (local Hindi
newspaper) carried an interesting news-item. There was a theft at the
house of Rekha, the famous film actress, way back in 1986. Rekha lost some
jewellery in the theft. The police acted and recovered the jewellery
soon after the theft. It took the judicial system seventeen years to
hand over the jewellery to Rekha. Last week, she finally got possession
of the jewels.
Rekha should be thankful that her case was handled by a
normal court and not by a fast track court. India's courts have acquired
a bad name for delaying matters for decades. It is often said, "Justice
delayed is justice denied". But two years back Government of India
created so-called "fast-track courts" that have proved the other famous
maxim, "Justice hurried is justice buried".
Stung by the
criticism of backlog of cases, the Government created the fast-track
courts. On last count more than 1000 such courts (target was 1,734) have
been set up all over the country. This was a quick band-aid to cure a
cancerous disease and surprisingly, it seems to be working, at least on
the surface.
Fast track courts scheme involved an infusion of funds by
Central Government for erecting new court buildings. Retired judges were
appointed on a two-year tenure basis; and lo and behold - fast track
courts were created by executive action without any legislative sanction
or provision. Functional aspects of the fast track courts were left to
the judiciary - simply put, nothing was decided on any functional
aspect. The only thing that we are told is that each judge was given a
target to dispose of at least fourteen sessions cases in a
month.
Disposal mentality has been the key behind the setting up and
working of fast track courts. The performance of a fast track court
(even of all other courts in India now) is judged solely by the number of
cases disposed in a month. There is no evaluation of the quality of
judgements. Quantity rather than quality is the mantra sweeping the
judicial system in the country today.
The fast track courts
scheme made no systemic changes in the judicial system. No new code of
procedure has been created. Retired judges, who have a past but no future, are
dispensing justice at a speed that is truly mind-boggling. What is
interesting is that these same gentlemen never performed at even half
the speed when they were in their regular careers.
Two reasons
are being touted for the extra speed shown by fast track
courts
a The judges were
cautious during their regular careers since they were subject to
disciplinary proceedings. There can be no disciplinary proceedings for a
person who has already retired and is serving on a short end-of-career
tenure. This combines with a complete absence of accountability of a
judge under Indian legal
system.
b Some judges are
viewing this tenure appointment as a last opportunity to make some hay
while the sun shines. So there is extra effort at quick wheeling-dealing
and disposal of the maximum number of cases.
Ten days back, I
had an occasion to spend a day at fast-track courts in Indore. The
advocates were talking openly of this judge being open to adjustments and that
judge being slightly difficult. Stories could be heard of how a judge
can ruin an advocate's career by giving adverse judgements based on personal
whims and fancies. A senior advocate preached to me about the importance
of 'tact and personal relations' (euphemisms for you-know-what) in this
profession. Apparently, earlier when disposal was slow, a judge had
limited power but in these days of quick disposal the off-bench
relationship between judge and advocate is very important.
All this loose talk in the
court compound is never reported but can be heard across the country.
The effect of this new 'culture' in courts across the country is a cause
of worry. But before that a few more observations - almost all lawyers
with whom I interact complain about the lack of new business. The courts
at Indore were not half as crowded as they used to be three years ago.
Of course, there were huge number of lawyers, but litigants were much
less in numbers. No official records are available, but I suspect that
the number of civil cases filed per year has come down. Similarly,
private complaint criminal cases filed in a year are also coming
down.
These observations, which need to be confirmed by a more
scientific study, point toward a very serious trend. It seems that the
common people are losing confidence in the judicial system. As a
litigant, one cannot feel too enthused if one's lawyer tells him in
whispers that the judge is open to adjustments. After all, if the judge
is open to adjustments, one's opponent is as likely to be able to manage
the adjustments. Justice in such a case becomes a big gamble (some
might call it an auction). Not many would like to gamble (or participate
in a shoddy auction).
Combined with this is the attitude of
lawyers. Faced with increasing competition, reducing business and their
own insatiable greed - they spare no efforts to manage, adjust and distort the
judicial systems and procedures, even resorting to arm-twisting of their
own clients. The power of lawyers in the judicial system arises from the
basic tenets of adversarial judicial system where a judge is not
supposed to dispense justice. A judge only hears the arguments of two
adversaries and decides whose arguments are more acceptable. A judge has
no power to reject both sides and order for more detailed presentations,
leave alone carrying out any enquiries or investigations on his own. So
if one of the litigants has an incompetent or lazy or corrupt lawyer,
the other side wins in spite of the judge knowing fully well that
balance of justice should tilt the other way round.
All these are
systemic faults that came fully to the fore in the recent infamous Best
Bakery case. Twelve persons were burnt alive in the bakery and two went
missing on 1 March 2002, in the post-Godhra communal violence. The case
was tried by Justice HU Mahida, Additional Sessions Judge of Fast Track
Court at Vadodara. On 27 June 2003, in a 24-page order the judge
acquitted all the 21 accused. All the key witnesses including the
complainant in the case had turned hostile. The judgement mentioned that
the police have proved weak in handling cases of communal violence.
No
one denies that Best Bakery carnage actually incurred. Obviously, it was
not an act of God that occurred spontaneously without any human
intervention. The court realized that the police have not investigated
the case properly. The court could have thrown the case back at the
prosecution (police) and told them to investigate properly and come back
with sufficient evidence. It may be argued that under the Criminal
Procedure Code, a sessions judge has no such powers. This is a question
of law on which the Court could have sought reference from High Court
under section 395(2) of Criminal Procedure Code. The sessions court
could have also sought a writ from High Court under Article 226 of
Constitution asking for an investigation by another agency, say CBI, in
the case. The judge did not choose to resort to any of these valid legal
options and chose to close the case without nailing anyone responsible
for the carnage.
National Human Rights Commission (NHRC) Chairman AS
Anand has termed the Best Bakery case as a 'miscarriage of justice'.
NGOs across the country are demanding a reopening of the case and a
retrial in the case. Apparently, under the present constitutional and
legal provisions, this cannot be done. No person can be tried twice for
the same offence. Of course, the NHRC may recommend to State Government
to file an appeal or revision in High Court.
In the midst of this
excitement about retrial or in any other way ensuring justice in the
Best Bakery case, the key issue that has somehow been lost is the issue
of the quality of justice-delivery systems and procedures. Justice
Mahida was in a tearing hurry to dispose of the case and did not mind
even if this resulted in 'miscarriage of justice'. The concern in the
case ought not to be the fate of the 21 accused who have been acquitted.
That is important but certainly not as important as the conduct of the
honourable judge and the judicial system.
NHRC should get over
its preoccupation of making to the front-page headlines by jumping on
the bandwagon of a communally charged case. It should rather spend its time
and effort to look at the way the fast track courts, in specific, and
all courts in general have been performing. There can be no human rights
in a society where courts are answerable to none, act irresponsibly,
have no accountability, act with impunity and let themselves be
manipulated by the wheeling-dealing of crooked lawyers and other
external influences. The 'miscarriage of justice' in Best Bakery case is
neither an accident nor an isolated case. It is illustrative of the
deeper malaise that has come to afflict the country's judicial
system.
NHRC and the nation as a whole must conduct studies that
monitor on a regular basis the quality of judgements delivered and the
level of confidence of the people in the judicial system. Unfortunately,
law schools of Indian universities are in no position to carry out
such studies. Fast-track court scheme was a quick-fix that has
apparently worked on the surface in as much as the backlog of cases has
probably gone down and there is a quick disposal of cases. On the other
hand it has led to serious problems by leading to a gross 'miscarriage
of justice' in thousands of cases leading to an erosion in the
institution of judiciary.
It is a serious matter if courts take
seventeen years to return jewellery seized from a thief to its rightful
owner. Our sympathies must go out to Rekha for the delay, but it would
have been worse, if the judge had made some off-bench 'adjustments' and
declared someone else to be the rightful owner of the jewellery.
Unfortunately, that is the game that is being played across the country
in the name of justice, while the country devotes its attention to
individual cases like Best Bakery, ignoring the systemic issues of
quality and credibility of the judicial system as a
whole.
ANIL CHAWLA
28 July 2003
Please write to me your comments about the
above article.
At 9:38 AM -0700 4/26/05, Dilip/Dil Deka wrote:
How does a Fast Track Court work? Are they
for petty thefts, intimidation and cases of that sort? Who decides what goes
to FTC and what doesn't? Do magistrates preside over these courts? Do
lawyers take part in the process?
Is the old trial set-up of a Gaon Panchayat
traeted as an FTC?
Dilip
================================================================
![www.assamtribune./115299A4.gif]()
Guwahati, Tuesday, April 26,
2005
EDITORIAL
MESSAGE FOR
TODAY
He who goes no
further than bare justice, stops at the beginning of
virtue.
�
BLAIR
Fast Track
Courts
It�s a typical instance of coordination between two arms of modern
democratic Governance � executive and judiciary at its worst. As a result,
one of the ideal means of assuring fast redressal of masses grievances at
the minimum of time and expenses � the Fast Track Courts (FTCs) � is now in
the lurch. The moot point is the term of the 11th Finance Commission, under
whose recommendations the FTCs were set up, is over and there is no mention
of any counsel for the continuity of this scheme in the report of the 12th
Finance Commission. This is despite the fact that the performances of these
FTCs had come in for appre! ciation from the Supreme Court. Mentionably,
taking a serious view of the issue, the apex Court in an interim order on
March 30 had ordered extension of the FTCs till April 30, 2005. Union Law
Minister HR Bharadwaj is also on record as saying four days later that the
Centre is keen on continuing with these Courts as �scrapping them down would
be a retrograde step�. The 11th Finance panel had given a grant of Rs 509
crore for the setting up of 1,734 FTCs across the country which were to
continue till March 31 this year. However, the case now remains
hanging.
To ensure the
uninterrupted flow of funds for the FTCs, the Justice Department should have
well in advance approached either the Finance Ministry with a non-plan
scheme or the Planning Commission for a plan scheme. On the contrary, the
Department kept waiting for the recommendation of the 12th Finance
Commission which ultimately resulted in the present crisis. The folly was
that it acted upon the assumption that the 12th ! Finance Commission would
adopt a positive approach in the case. What is more, the Finance panel�s
report could not be made available to the Department before the finalization
of its budget process. Therefore, it did not get the time to pursue it
further. Belatedly though, a Parliamentary Committee has recommended that
the Justice Department should take up the matter with the State Governments
for providing funds to them. The Parliamentary Standing Committee on
Personal, Public Grievances and Law and Justice, in its report tabled in
Parliament, said in these circumstances, the Justice Department should
�vigorously pursue this issue with the Finance Ministry or the Planning
Commission and till the scheme is finalized, take up the matter with the
State Governments for providing funds to be reimbursed subsequently by the
Central Government.� Under the circumstances, it remains to be seen what the
stand of the Centre would be. Nonetheless, it is in the fitness of things
that the Union G! overnment gives its nod to the proposal and in the
meantime ensure that the necessary steps are taken in the 12th Finance
Commission for inclusion of the clause to extend the life period of these
Courts.
A socialist democratic society depends largely on the rule of
law that is quite comprehensive in its scope. It is not merely a tool to
safeguard and advance civil and political rights but also a potent weapon to
establish social, economic, educational and cultural conditions under which
human dignity and his legitimate aspirations are realized. And, the FTCs
foot the bill aptly. Since there cannot be a fair process of law unless it
is accompanied by an effective rule of law structure, it is a must that the
authorities concerned join hands in making these Courts � till now highly
successful � a viable component of the judiciary system. Mere money factor
should not be allowed to act as a spanner in this
regard.
_______________________________________________
Assam
mailing
list
[email protected]
http://pikespeak.uccs.edu/mailman/listinfo/assam
Mailing
list FAQ:
http://pikespeak.uccs.edu/assam/assam-faq.html
To
unsubscribe or change
options:
http://pikespeak.uccs.edu/mailman/options/assam
_______________________________________________
Assam mailing
list
[email protected]
http://pikespeak.uccs.edu/mailman/listinfo/assam
Mailing
list FAQ:
http://pikespeak.uccs.edu/assam/assam-faq.html
To unsubscribe
or change
options:
http://pikespeak.uccs.edu/mailman/options/assam
|
