Something’s rotten in…

This article can also be accessed at MyLaw

“‘Something is rotten in the State of Denmark’, said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court, as this case illustrates.”

- Justice Markandeya Katju, with characteristic flair, referring to Marcellus’ dialogue witth Horatio in Shakespeare’s Hamlet in Raja Khan Vs. U.P. Sunni Central Waqf Board (26.11.2010)

At yesterday’s hearing in the Chief Court of the Supreme Court of India, relating to directions and follow up in the case of Prakash Singh v Union of India, senior counsel Harish N Salve circulated a note calling upon the Apex Court to call for an inquiry into the nightmarish saga unfolding in Banda. The Court asked him to convert it into an application calling for judicial enquiry into the failure of the criminal justice system that resulted in this atrocity (and I use that word legally) ).

With respect to Mr. Salve and the Bench, they would be better off not wasting their time on this application and reading this judgement of the Supreme Court of India delivered by Justice RM Lodha on 14.01.2011. More specifically, all the answers they seek are found in this one, succinct, illuminating paragraph that I have quoted here in full.

28. … We are constrained to observe that criminal justice system is not working in our country as it should. The police reforms have not taken place despite directions of this Court in the case of Prakash Singh and Ors. v. Union of India and Ors. (2006) 8 SCC 1. We do not intend to say anything more in this regard since matter is being dealt with separately by a 3-Judge Bench. The investigators hardly have professional orientation; they do not have modern tools. On many occasions impartial investigation suffers because of political interference. The criminal trials are protracted because of non-appearance of official witnesses on time and the non-availability of the facilities for recording evidence by video conferencing. The public prosecutors have their limitations; the defence lawyers do not make themselves available and the court would be routinely informed about their pre-occupation with other matters; the courts remain over-burdened with the briefs listed on the day and they do not have adequate infrastructure. The adjournments thus become routine; the casualty is justice. It is imperative that the criminal cases relating to offences against the State, corruption, dowry death, domestic violence, sexual assault, financial fraud and cyber crimes are fast tracked and decided in a fixed time frame, preferably, of three years including the appeal provisions. It is high time that immediate and urgent steps are taken in amending the procedural and other laws to achieve the above objectives. We must remember that a strong and efficient criminal justice system is a guarantee to the rule of law and vibrant civil society.

The facts of Choteylal’s case are stark. It’s kidnapping and rape, and just like the Banda case, it probably involves a minor, unlettered and of rural upbringing; and there’s massive insensitivity staring one right in the face. Of course, the only difference is that the Supreme Court has, in 2011, passed its final verdict on a crime committed in, wait for it, 1989. In fact, the Supreme Court took only seven years to dispose off the case, as opposed to the Allahabad High Court which took, wait for it,

Thirteen years.

And then handed out an order with exactly two paragraphs of reasoning acquitting the accused.

The Allahabad High Court has been getting a bad rap these days. With good reason. “Uncle judges”, corrupt judges, more vacancies than appointments to the Bench, a backlog of cases the likes of which no court has seen in the history of the world, and to top it all, handing out judgments like those on Raja Khan and Choteylal.

Anecdotally as well, lawyers and judges recount tales of horror when it comes to the Allahabad High Court. During the bail cancellation hearings of the Satyam scam accused, Justice Dalveer Bhandari recounted how Supreme Court judges were forced to modify the general policy on bail for convicts because of the Allahabad High Court. Whereas the Supreme Court would rarely grant bail to convicts appealing conviction (as opposed to accused for whom bail is the rule and jail the exception), in the 2000s, when judges realized that the Allahabad High Court was yet to decide criminal appeals dating back to the 1980s, they had to grant bail since the High Court’s track record meant that there was little chance of the appeal being heard before the sentence was served, probably even during the life-time of the accused. (something which happened to one of the accused in Choteylal as well!)

As Justic Katju, in Raja Khan laments, this is indeed a steep fall for what was once recognized as one of India’s finest High Courts; once ranked as an equal with the Presidency High Courts of Bombay, Madras and Calcutta (at least two of which have fallen as far, but more on that some other time). Deep introspection and action is needed in Allahabad and Lucknow to remedy this state of affairs, and just as it is with treating any disease, the first step to reform is acceptance of the fact that one is unhealthy and needs treatment in the form of strong medicine.

Except, what we got from the Allahabad High Court was this. A long whine in the guise of an application to expunge remarks. It got the deserved response from Justice Katju.

The Allahabad High Court didn’t get to this position in isolation. It has followed the path of other institutions in UP in systemic and general breakdown. With even Bihar on the path of progress under Nitish Kumar, I guess all that remains is to crown UP with the new title of India’s Heart of Darkness: Abandon Hope, all ye Who Enter Here.*

*Due apologies to both Joseph Conrad and Dante Aleghieri