Recently in New Delhi, I met a US delegation consisting of about a dozen members (lawyers, journalists, teachers, a communications specialist, a specialist in women’s issues, a deputy sheriff), most of them women.
The main topic of discussion was the Indian criminal law system though we also discussed other topics.
About the criminal law system, I mentioned the great delay in the dispensation of justice in India. As many as 33 million cases are pending in our courts, a majority of those are criminal cases.
Allahabad High Court (my parent High Court) once had a norm that a judge of the subordinate judiciary should not have more than 300 cases pending before him. I have been informed that many judges have 20,000 or more cases pending before them. This is like placing an elephant on a man, who can only carry a weight of 100 pounds.
In Allahabad High Court, some of the criminal appeals filed 30 years ago are still coming up for hearings.
I was asked why there was such a huge backlog of cases (some say it would take 300 years to clear if no new case was filed). I replied that there were two main reasons. First, India had a huge population (1,350 million people), so naturally, there were always going to be large number of cases.
Second, we have not, as yet, adequately developed alternative dispute resolution mechanisms including mediation, conciliation and arbitration to which about 93 per cent of cases in the US are diverted. Thus, the entire burden is on our courts.
Apart from that, I mentioned a judge has to decide a case on the basis of the evidence gathered by the police. He cannot himself investigate the crime. Now, the criminal investigation is a science, as we learn from the stories of Sherlock Holmes. In the US when a crime is committed, the police go to the spot and collect the evidence -fingerprints, bloodstains, ashes, cloth fibres – and send it to laboratories for study and analysis. There, the DNA tests are done and fingerprints fed into a national fingerprint network. Such practices enable the authorities to solve the crime and apprehend the culprit.
Today, the greatest danger to world peace is Chinese imperialism
In India, most policemen are not properly trained in scientific investigation, nor do they have the required tools. Yet, there is pressure on them to solve the crime. The result is that the policemen often charge a person on the basis of mere suspicion, and then fabricate evidence or resort to the time-tested method of using torture for getting a “confession.”
Also, a large section of the Indian police is corrupt. Corrupt officers do not properly investigate the cases. Eyewitnesses are reluctant to give evidence for fear of reprisal.
All this has made the Indian criminal law system a mockery of justice.
We then discussed other topics, on which there were some sharp differences between us.
Most of the delegation members were critical of US President Trump, but I said he should be supported. I referred to my article Donald Trump’s Opposition to Chinese Imperialism Overshadows His Defects published in outlookindia.com.
I pointed out that today the greatest danger to world peace was Chinese imperialism. Like the Nazi imperialism, Chinese imperialism is expanding and turning aggressive. So because of his opposition to it, we should support Trump instead of focusing on his defects.
We then discussed the condition of Blacks in the US. The members of the delegation, who were all white, were very critical of the bad treatment of Blacks in the US. However, I said one should not overlook the progress made in this connection. Even long after the decision of the US Supreme Court in Brown vs Board of Education (1954), Blacks could not go to many restaurants, get a room in many hotels, or go to many swimming schools or beaches. Today, that is not so.
In Mark Twain’s famous novel Adventures of Huckleberry Finn, when there is an explosion, Aunt Sally asks “Was anyone hurt?”
To which, Huck replies, “No Ma’am, only a nigger killed.”
So, once, a Black man was not even regarded as a human being.
Contrast this situation to the one when Iowa, a state that is 95 per cent White, voted for a Black man, Barack Obama, in the primaries of a presidential election, which launched him on his path to the White House.
Was this even conceivable 25 years ago? However, it is true that there is still racism in some parts of the US and its needs to be opposed.
We then discussed gay relationships. I said that though I approved of the Indian Supreme Court decision decriminalising it, too much hue and cry should not be raised over gay rights. More important issues in India are unemployment (the recent National Sample Survey Report says it is at a 45-year high, with 12 million youth entering the job market every year and jobs declining); farmers’ distress (300,000 farmers have already committed suicide and the trend is continuing); child malnourishment (47 per cent Indian children are malnourished, as mentioned by the Global Hunger Index, which is one of the highest in the world) and the almost non-existent provision of healthcare and good education.
To lay too much emphasis on gay rights appears to be a diversionary measure to distract attention from vital issues.
I was particularly critical of the US Supreme Court decision in Obergefell vs Hodges (2015) that directed all states in the US to validate gay marriages. To my mind, this direction amounts to judicial legislation, which is not proper since there is a separation of powers in the Constitution. Judges should exercise restraint and not take over the functions of the legislature. Judicial legislation, to my mind, is an oxymoron.
The writer is a former judge of Supreme Court of India