Tuesday, October 14, 2014

DA Case : Did the system work?

In the past, I have written posts here grumbling about a non-performing judiciary in our country. The recent verdict on a 18-year old corruption case against the AIADMK supremo Jayalalitha and her subsequent arrest is one that needs a response here in my columns. On conviction, she lost her MLA seat and her post as the Chief minister. She became the first sitting chief minister to go to jail under the Prevention of corruption act. She is currently lodged in the Bangalore prison fighting for her bail.

There is a feeling that the system worked and an environment that the rule of law is finally in place. Did the verdict really convince the average man on the street? Not really.

There are many highlights (rather lowlights) in this judicial verdict:

Time Line: Why would a corruption case against a single public servant go on for eighteen years. Did it take that long to find, if a person got richer more than his officially stated income. why can't those be solved lot sooner than that? If the courts do not deliver the verdict in-time, then they should drop the case and move on. Why waste time of the defendant and the prosecution. People barely remember what happened 18 years old in their life. This empty statement of - Justice delayed but not denied might sound comforting to heart for some, the fundamental flaw in the judicial process in our country is right in front of our eyes. Wonder, if it is even possible that someone in the judiciary or the legislation can possibly defend that. It could be argued the defense team was instrumental in the delay. Why was it allowed? There were instances in this case, where documents got translated from one language to other as requested by the defense. The question is why allow that? Why even have that option to choose from, for the defense. It is also a mental agony for the person who goes through the trial process for these many years. It is not fair to someone who is eventually found not guilty. Would the courts compensate for that. One idea is to make a threshold starting date say January 01 2015 - any case that has been filed on or after this threshold date, will be prosecuted to its logical conclusion within a maximum of 6 years. If no verdict has been reached in that time frame, just throw the case out of the courts and make the case "void". No one needs to stay in prison anymore for it. Free up the prosecution and defense, so that they can do something else productively. The crime can be forgotten and the country can just go on.

Special Court:The trial was moved from a court in Tamil Nadu to a court in Karnataka. The reason cited was the defendant is the Chief minister of the state and would not get a fair trial. This itself is a fair admission of the judiciary that the political establishment can easily fix the outcomes of any trial. This is screwed up to its core and a proof that you could get away with murders and looting in our country, if you have the political power. The Judiciary has to reform itself to impinge its authority on the society. Right now, because of its historical under performance, it is not credible in performing its duties. Once it has the confidence and respect of the society - a fair trial can take place in any part of the country for any citizen. Right now, the machinery is so out of control and hence inefficient. A complete revamp is necessary.

Bail Process:Once the verdict was delivered and the Chief Minister was taken into custody, the defense started filling for bail petitions. There were undue delay in the process mainly because of Dussehra holidays. The holidays were running not into days, but weeks. Do the judiciary need these long vacations? Say Someone has a genuine medical emergency and is languishing in Jail and needs a bail immediately - would it be right to make him wait until the courts come back from vacation? With lakhs and lakhs of cases pending in Indian courts - is Dussehra vacation really needed? There is no other institution that has as many holidays on a calendar year as the judiciary. Weekends are also holidays. whatever way its counted - its just too much. The bail petition was rejected by the high court judge who came back from Dussehra vacation (Hope he had a nice vacation!). Now the bail petition is looming in the Supreme Court. It would not be surprising, that it might be postponed for another week, becase the court is out for another week for Diwali. what a horrible employer is the Indian judiciary. No institution can succeed with this set-up.
The judiciary has to be reformed so that it acts better and sensible to the society and gives fair trial to both people outside and those convicted and in custody. On a high level - reduce the number of people who hit the courts for example, as a argument sake - anyone who has been convicted cannot apply for bail for the first 3 months. Some thing like that would make things more predictable. Make the process so simple and straight forward, so that the people can understand it and not just the lawyers. Laws that affect the common people is supposed to be non-complex.

Fine Amount:The defendant in this case has been asked to pay Rs. 100 crores as fine as part of the conviction. How was the Rs. 100 crore arrived at? why not Rs. 99 crores! Everyone knows for a high-profile leader like the AIADMK supremo - the amount is not substantial. It can be managed either through the individual's asset or through the party machinery. Why can't the rules be changed that ALL assets in the defendant's name will be taken over and auctioned out., if found guilty. A public servant found guilty must be disowned of all assets in his name irrespective of whether they were obtained prior to or after the looting. It is one - a good source of income for the courts and two - it could act as a firm deterrent for perpetrators. In general - court fines must be increased a lot, at least 10 times the current amount. They should act as deterrent for people to come to the court. Only valid and genuine "winnable" grievances need to hit the court causing less traffic. Most cases that are pending in Indian courts today are just "false" cases. At the face of it, they can be rejected/verdict delivered. But the horrible truth is, even these cases are put in the queue process, and they drag on for multiple years. A high fee to initiate a court proceeding would act as a deterrent. It could be argued that the poor might not be able to afford it. In reality its not true. Now they end up paying the lawyers for years together as fees. The poor would be happy to pay more and get a verdict than to end up paying the lawyer and go through the pain of the delay for years.

The work of the judicial system in this country is not to deliver verdicts once in a blue moon on high profile cases. With so much high profile cases on, It needs to perform consistently every time and very fast. Most of the elected member of Parliament and State assembly have criminal cases pending against them. Their only hope is the courts would never deliver and they could get away with it for very many years when the suit is "pending". The courts facilitates the existence of a corrupt ruling class by not responding actively to their old complaints. It doesn't matter if its a guilty verdict or not-guilty verdict. The essence is to get to a verdict.

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