Saturday 13 January 2018

My Lords, please end delays in justice (Sunday Guardian)

By M D Nalapat
The Supreme Court needs to set time limits for disposal of cases. 
Some weeks ago, this columnist and his wife went to a cinema show at a mall in Gurgaon, whose cafeteria had an excellent chocolate éclair. It was while consuming this together with a glass of coconut water that the national anthem was played on screen. It took a few moments before the éclair and the coconut water could be safely deposited by the side of the seat, thereby enabling this columnist to rise to attention, guiltily conscious of the fact that for part of the time that the anthem was being played, it was not possible to be standing to attention. Fortunately, there were very few other viewers, and none rushed to the police and the nearest television anchor to declaim against the apparent “disrespect” (albeit for a few moments) to the anthem as a consequence of deciding not to stand until after the éclair and coconut water were safely deposited.
Any normal citizen would instinctively rise to one’s feet whenever the national anthem got played, and this columnist is no exception. However, the incident did create some curiosity in his mind as to what materials the relevant Supreme Court bench relied upon when it made the playing of the national anthem obligatory at theatres (though not as yet at school or sports assemblies). There must be weighty reasons based on objective research for the learned bench to believe that such a move would significantly boost the patriotism quotient of customers at movie theatres, and that feelings of patriotism were otherwise not strong enough, else the highest court in the land would not have given the emphatic order that it did. However, some may argue that, given the Republic of India’s age of 71, cannot the citizenry of this country be trusted upon to be patriotic without recourse to methods such as the obligatory playing of the national anthem in theatres? That they do not need their lives and their activities to be micromanaged by the state and its institutions the way it was during earlier times.
The superiority of civil society over the myrmidons of government is clear from the fact that cash surpluses come from the private sector and the deficits from the state sector, barring monopolies such as ONGC or the RBI. Unfortunately for India’s prospects after 1947, those who took charge from Lord Louis Mountbatten believed that only the government could be trusted to do the right thing and never the people. They continued a governance structure, in which the myriad arms of government have far more authority and discretion over the lives of citizens than in any other major democracy. They systematically weakened private industry and individual initiative and pumped resources into the state sector, which from that time onwards has been digging deeper and deeper into public funds for mere survival.
As for the judiciary, that noble and necessary institution has entered into practically every domain of human life in India, whether public or private, and routinely gives judgements that have enormous consequences, sometimes on individuals, but often on much more people, sometimes even on the entire country, without sharing sufficient detail about how such conclusions were reached. Of course, among the champions in a competition between the judiciary and the executive for decisions that impact the most number of people is probably the 8 November 2016 demonetisation of 86% of the country’s currency, done so as to try and suck up the 6% of black money that exists in the form of Indian currency.
The judicial system is at the heart of the Rule of Law. And most of us have direct evidence of the painfully slow manner in which the legal system functions. In a particular case familiar to this columnist, the two children of a deceased individual from Mumbai have spent nearly four decades in court because a self-proclaimed relative in Haryana filed a suit to get an equal share of the property left behind by their father. Thus far, there is no sign of the case getting finally decided, and such delays seem not the exception, but the norm in all too many cases. India has a world class judiciary and the Supreme Court needs to set time limits for disposal of cases. Deadlines given need to take account of the fact that human life is short, and hence justice needs to be completed within five years at a maximum. We have a system where practically all judicial decisions can be re-examined and re-litigated, and where a plethora of additional cases daily move into the chain, there to form larger and larger pools of cases yet to be finally—and this is the operative word, finally—decided.
In another case involving a family, some relatives residing in Bangalore filed a property suit against another branch of the family living in Trivandrum, that was finally decided in favour of the latter by the Supreme Court, but after more than two decades, during which the individual against whom the case was filed died of old age. More than two decades later, the same Bangalore-based relatives have now filed essentially the same case against those Trivandrum-based relatives who are still alive. Will this too have to wait another 20 years and another Supreme Court verdict before getting settled? And after that, will there be a third effort through filing yet another case? Has it become the reality in India that in practice, cases never get settled except temporarily? Should not changes in procedures get introduced that ensure that this no longer be the case, and that an absolute 5-year rule gets established? When will the Supreme Court act on this?
Fortunately for those who prefer the 21st rather to the 19th century, the Supreme Court has lately made moves towards re-examining its earlier dismissal of a High Court verdict decriminalising same sex relationships between consenting adults. Hopefully, it will also relook its earlier rejection of a petition to decriminalise defamation. Given the obvious interest of the executive in ensuring that the powers enjoyed by British colonial officers remain, only our judiciary has the power to ensure that the people of India be treated as adults, rather than juveniles or half-wits. Only “minimum governance” and not “maximum powers” to officialdom can create the impetus needed for China-style growth in India. For ensuring such a situation, the hope of citizens is that the Supreme Court of India will consistently and strongly widen the zone of individual freedom by pruning that of governmental discretion.

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