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Later the mob poured acid into his eyes at the village office. The incident that provoked the mob into this ghastly act was that the man allegedly tried to steal betel nuts. This incident is not an isolated one. Several such cases were reported from India in the past few months. What is wrong with the people in India?
In fact nothing is wrong with the people, but everything is wrong with the justice system. The failure of the justice system is reflected unfortunately through the blood-chilling acts of the citizenry, where ordinary people try to render what they feel is justice.
For example, a Magistrate's Court is the temple of justice for an ordinary citizen. As the lowest in the judicial hierarchy, a Magistrate's Court is the most accessible court for a commoner. But what goes on in the name of justice in these courts throughout India has no semblance of justice. What awaits a litigant at the Magistrate's Court is nothing other than injustice.
Cases are taken up, often hundreds of them a day, by roll call, and adjourned at random for months. This is the first experience a litigant might face at any Magistrate's Court. If a case is taken up for adjudication, either the prosecutor or the concerned police officer might be absent, or when both of them are present, the witnesses might be absent. If every one is present, the steno for the judge might be absent, or even the judge might not have any time left to start the case after the roll call.
This is a simple problem of case management and accountability, which could be corrected without much trouble. A sensible magistrate could to a large extent manage his court, given a chance and adequate training.
Worse conditions exist outside the court hall, the registry of the court in particular. Often for a case to be taken up the litigant will have to pay a series of bribes at the court registry. For example, for a private complaint the mandatory court fee is the meager sum of 2 rupees (US$.05).
The Criminal Rules of Practice, laws applicable to the criminal courts that vary slightly from state to state, lay down the procedure to be followed in filing complaints, among other issues. All that is required under this law is to write down the complaint on a standard piece of paper and affix a 2-rupee court fee stamp and file it at the court's registry. Ideally, the petition must be taken up by the judge the next working day. But in India it does not happen this way.
For the case to be taken up one has to follow the complaint, literally, from table to table. At each table, depending upon the urgency and the seriousness of the matter, the clerks must be paid a bribe. The complaint will have to move from one desk to the other, being entered in a series of registers, and by the time the complaint is numbered and presented at the court, the complainant might have paid more than 500 rupees in bribes. Yet the ordeal is not over. The complaint before being called in the court has to go through the bench clerk, who also has to be bribed.
After paying all the required dues, when the complaint is taken up by the magistrate, if it requires the attention or even a comment by the prosecutor, the prosecutor must be given prior notice, which in fact is stipulated by law. But practice is different from law. Serving notice to the prosecutor means paying the prosecutor his money. The complainant can choose to pay a certain amount of money to convince the prosecutor to oppose the application or to admit it. Only after all this is the complaint taken up in court.
But the ordeal for the litigant does not end here. The complaint will have to go to a police station for required action. The action may vary from serving notice to the accused to the investigation of the case. The bribes to be paid at the police station are far higher than in the court. Every officer at the police station will have to be bribed for the police to take action upon a court's order.
The situation is completely different when the case comes to the court after being initiated by the police. In a police case, where there may not be any interested party other than the accused, the complainant in the earlier scenario is replaced by the accused. The only difference is that a complainant might wish to push the case faster whereas in a police case the accused might wish to delay it as much as possible. If the accused has enough resources he can even make the case file disappear, only to be traced if the magistrate insists. Like the case file, the accused can also make the witnesses and other evidence against him disappear if he so chooses.
These descriptions are not the result of a year-long survey or academic research. These are the hard realities in India. India has reasonably good laws and a system in place for delivering justice. What prevents this system from functioning is the people who run it. Yet no one is speaking out about these realities.
There is much discussion about changing the laws in the country. Of course, certain changes in the procedural laws might ease out some outdated procedural formalities. But the people who would be expected to implement any new laws would be the same as those who have thus far failed to provide justice under the existing system.
Changing the people might not be a practical solution. But changing attitudes could be a possibility. How can this be done? There is no simple or capsule solution.
It is widespread corruption that makes the justice system a mockery of justice. How can this be addressed? An independent corruption prevention agency might be a solution. India as of now has similar agencies. But these agencies are run and managed by officers from the police or other law enforcement agencies in the country. This is not enough as these agencies have proved themselves worthless in addressing corruption.
The government must have the political will to initiate a change in the existing setup. Mere cosmetic changes to laws, as are being attempted now, will not help. Until this change is viewed as essential, the ordinary people in India cannot be blamed for taking the law into their own hands. Today they might attack a petty thief, but tomorrow they might turn against a corrupt politician.
If the ordinary people in countries like Myanmar and Pakistan can rise up against the dictatorial governments in those countries, Indians have more possibility to rise up against corrupt politicians. Change will come only when the people realize their strength, and force those who run the government to accept that "for the people and by the people" are not mere phrases in the national Constitution, but norms that could be actually practiced. Until then more petty thieves will be attacked by mobs.
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(Bijo Francis is a human rights lawyer currently working with the Asian Legal Resource Center in Hong Kong. He is responsible for the South Asia desk at the center. Mr. Francis has practiced law for more than a decade and holds an advanced master's degree in human rights law.)
