Justice Markandey Katju-
Recently I had a meeting in Delhi with a US delegation consisting of about a dozen members (lawyers, journalists, teachers, a communications specialist, a specialist on women’s issues, a Deputy Sheriff, etc. ), the majority of whom were women. The main topic of discussion was the Indian criminal law system, though we discussed other topics too.
About the criminal law system, I mentioned the great delay in dispensation of justice in India. 33 million cases were pending in our law courts, the majority of which were criminal cases. Judges are often blamed for this, but the public is not aware of their predicament. For instance, the Allahabad High Court ( my parent High Court ) had set a norm that a judge of the subordinate judiciary should not have more than 300 cases pending before him at one time. But many such judges have 20,000 or more cases pending in their court alone, as I was informed. This is like placing an elephant on a man who can carry only 100 pounds weight.
In the Allahabad High Court, criminal appeals filed 30 years ago are coming up for hearing today.
I was asked why there was such a huge backlog of cases (some say it will take 300 years to clear it even if no new case was filed). I replied that there were two main reasons. Firstly, India had a huge population of 1350 million people, so naturally, there will be a large number of cases. Secondly, we have not as yet adequately developed alternative dispute resolution mechanisms (mediation, conciliation, arbitration, etc.) to which about 93% cases in America are diverted, and the entire burden is on our courts.
Apart from that, I mentioned that 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 America when a crime is committed the police goes to the spot and collects the evidence–fingerprints, bloodstains, ashes, cloth fibers, etc. and sends it to laboratories for study and analysis. There DNA tests etc. are done, fingerprints fed into a national fingerprint network, etc., and this enables solving the crime and apprehending the real criminal.
In India, on the other hand, most policemen are not properly trained in scientific investigation, nor have they the scientific equipment for this, and 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, and so do not do a proper investigation at the behest of some party. Eye witnesses 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 the delegation members and me.
Most of the delegation members were anti-President Trump, but I said he should be supported, and 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, just as Hitler’s imperialism was at one time since like Hitler’s imperialism Chinese imperialism is expanding and aggressive imperialism. So, Trump, who is opposing it, should be supported, instead of focusing on his defects.
We then discussed the condition of blacks in America. The members of the delegation, who were all white, were very critical of the bad treatment of blacks in America. However, I said one should not overlook the progress made in this connection. At one time, 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 at one time a black man was not even regarded a human being. Contrast this situation to the one now when Iowa, a state which is 95% 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 was still racism in some parts of America, and this needs to be opposed
We then discussed about gay relationships. I said that though I approved of the Indian Supreme Court decision decriminalizing it, too much hue and cry should not be raised over gay rights. The much more important issues in India are unemployment ( the recent National Sample Survey Report says that it is at a 45 year high, with 12 million youth entering the job market every year but jobs declining ), farmers distress ( 300,000 farmers have already committed suicide and the trend is continuing unabated ), child malnourishment ( 47% of Indian children are malnourished, as mentioned by the Global Hunger Index, which is one of the highest in the world ), almost non existent proper healthcare and good education for the masses, etc. To lay too much emphasis on gay rights is really a diversionary measure to divert attention from these much more vital issues.
I was particularly critical of the US Supreme Court decision in Obergefell vs Hodges (2015) which directed all states in the USA 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.
[Justice Markandey Katju is former Judge, Supreme Court of India and former Chairman, Press Council of India. The views expressed are his own]