> I don't think you will find ANYBODY who believe there is nothing wrong with > the SYSTEM. NOBODY is saying the SYSTEM is perfect.
In fact, I would go a step further. There is no perfect system, democracy, court systems, of governance, even in an advanced country like the US. So, India is no exception. When we discuss issues facing Assam, it is not done out of spite, or some political agenda, it is done with the thoughts of how (in our small way) make things better, if possible. This thought, though is being constantly misconstrued, and the frequent defense mechanism is somehow tracing the problem to Delhi or the GOI. That institutions like the PWD or ASEB rife with corruption is primarily due to the fact that people have LET it happen for so long and Delhi has nothing to do with it. The people may have known about corruption, they may not like corruption, but what they never did, was do anything about it. There was no public outcry or a whimper of protest until recently. But to put up arguments like, 'whats the use of public outcries or protests, because the court systems don't work' or that people are powerless, etc, is like asking the people to let things be as they are, and not to worry about things because anything they do will have no effect on a system thats gone awry. I applaud the DNBs of Assam, as they have shown the courage to say things as they see them, without frills. Such writings may encourage people affected to cry foul and protest loudly, letting ministers and officials know about the public sentiments. At least this is far better than keeping to the sidelines and doing nothing. --Ram On 4/26/05, Rajen Barua <[EMAIL PROTECTED]> wrote: > > >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 ----- > From: Chan Mahanta > To: Dilip/Dil Deka ; ASSAMNETCOLORADO > 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 > ================================================================ > > 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 > > > > _______________________________________________ > 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
