>*** That is obviously the problem. But NOT NOBODY. There are many who
know exactly where the problems are and some have >explained them time and
again. But to accept them would again require to get real. We are obviously not
anywhere near facing >reality, YET.
If ANYBODY can show me with
logical reasoning where the problem is and how to fix it, I will worship him/her
as my Guru. All my life I have been looking for such a Guru. If you know
some such person, please ask him/her to engage with me in a debate
and defeat me with logical reasoning so that I can accept him/her
as my Guru.
Rajen
----- Original Message -----
Sent: Tuesday, April 26, 2005 5:24
PM
Subject: Re: [Assam] Fast Track
Courts
>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.
*** I don't know who is seeking a PERFECT system, but I think most
people will be happy to see even a nominally functioning one. So to invoke the
absence of a PERFECT system, is to attempt to suggest, on the sly, that the
desi system is no different than anything else -- an IMPERFECT one.
That would be yet another attempt at obfuscation, of denying reality.
Question is why the need for such obvious attempts to hide the truths of
Indian governance. Is it not far better to acknowledge what is wrong and then
attempt to help find solutions?
*** Anyway, I will go along with the heavily sugar-coated 'not-perfect'
euphemism for what is nothing but 'broken and dysfunctional' in English. I
realize the truth hurts and I will play along with the charade for the
moment.
But if we have no clue to what is 'not PERFECT', then how do we
recommend all those fine solutions, like NGOs to the rescue, investigative
journalism as the savior, call for the people to RISE ( rise against
WHAT?) etc. that we have been offered in recent days? More charade? Or
merely running around like chickens with the heads cut-off?
>So far nobody could come up with
specific items what need to be fixed.
*** That is obviously the problem. But NOT NOBODY. There are many who
know exactly where the problems are and some have explained them time and
again. But to accept them would again require to get real. We are obviously
not anywhere near facing reality, YET.
>Can you help?
*** Me, help? That depends.If past experience is any guide, when I point
out where the problems lie or how to approach solution scenarios the help
seekers will run helter-skelter again. So what is the use ?
One can wake up only those who are asleep.
At 1:28 PM -0500 4/26/05, Rajen Barua 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
================================================================
![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.
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