It has taken all the authority and credibility at the command of a former Chief Justice of India, no less, to warn the nation about the “ramshackle” state of the Judiciary in the country today. The warning could not have come a day too soon, considering that the ever-mounting problem of judicial arrears is now the staple of national media reporting on the dismal state of justice system under arguably the finest Constitution in the democratic world. It is a highly embarrassing paradox.

The courts in India are clogged and their dockets are overflowing. More than 60,000 cases are pending in the Supreme Court, a quarter of a million in the various High Courts and several million in the lower courts. The problem is persisting for years, and aggravating by the day. The victim is the hapless litigant who is losing faith in the “system”. A recent survey by a reputed institution to ascertain public opinion on the general state of affairs came up with a startling finding. It should make every right thinking Indian sit up and take notice. More than half the respondents have switched their loyalties from democracy and the rule of law, to a “spell” of military rule. Apparently, the common man feels that drastic ills need drastic remedies – a frightening remedy indeed.

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To be fair to the Judiciary, it cannot be blamed entirely for overflowing dockets. The Executive and the Legislature must also share the responsibility for this state of affairs. The Government is the biggest litigant, not with so many civil as criminal cases being filed. The Executive is responsible for the mess primarily because it is not able to control its prosecution agency – the police force. The latter does what it pleases, without any check or accountability. As a result, it is arresting people at will, slapping cases against citizens on flimsy grounds and, every so often, abusing authority under a plethora of criminal laws to cook up petty misdemeanours – largely bailable – into nonbailable offences. Per force, pun intended, the accused has to rush to the savior of the last resort – the independent courts of law for relief and shelter.

Today, the police department has become the most valued “client” of the Judiciary, in a manner of speaking. It is bringing in maximum “business”. In a shocking revelation, the National Commission on Constitutional Reforms set up by the Government of India in 2002 recorded that 80 per cent of the arrests being made by the Police were “unnecessary”. It was headed by a distinguished former Chief Justice of India, and mainly comprised former judges of the Apex Court. Their findings can be taken as the most authentic assessment of the problem facing the Judiciary, in so far as criminal case load is concerned. In other words, four-fifths of the “unnecessary” criminal cases foisted by the police would have resulted in the independent courts throwing out these cases eventually or imposing fines. Imagine the precious time of the Judiciary lost in the bargain!

To be fair to the Executive, it did try to bring about reforms in the criminal justice system, so as to reduce the unnecessary burden on the Judiciary which would have partly solved the problem of arrears. Independent India’s first National Police Commission was set up. It was flawed even to begin with. Nominally headed by a retired civilian, it comprised mostly police officers, an academic and a former judge of the High Court who had no experience of the way police function, or having any working knowledge of the Criminal Code of India. It was serviced by the police directorate themselves. Thus, police which is a part of the problem was attempted to be made part of the solution.

The outcome was predictable. It was a largely self-serving report. What was shocking was the innocence betrayed by the police officers who authored the report, about the Constitution of India. Several years before the Report was submitted, the Apex Court in the celebrated case of Keshavananda Bharti had outlined the ‘basic structure’ of the Constitution. It had categorically ruled that it is inviolable – even the Parliament could not tinker with it. One of the ‘basic features’ was the ‘separation of powers’ between the Executive and the Judiciary. Thus, the members of the Executive shall not be entrusted with judicial functions nor shall members of the Judiciary be entrusted with administrative functions. The authors of the Report made recommendations, some of which were outright unconstitutional.

To cite just one example, allegations against the police force in the districts all over India would be investigated by a committee headed by the District Judge, a plain violation of the basic structure – ‘separation of powers’. And the committee would be serviced by the local Deputy Superintendent of Police. In other words, the accused would be, in effect, the investigator. One of the mandates of the Police Commission was to study the magisterial control of police force, a basic postulate of democracy and the rule of law. The Commission ended up by so diluting the role of the magistracy as to reduce it to just a nominal one. Such a report was bound to be rejected by the Government, and it was justifiably trashed.

The police continue merrily to misuse their powers of arrest for their often dubious motives. Whenever questioned, they conveniently shift the blame on the political executive – that they have done so under political pressure. This is a patently lame excuse. Another mandate of the Police Commission was to suggest ways to eliminate this “pressure”. Their findings only corroborated what is common knowledge, and known to all except the police. The Commission studied the problem in depth, and recorded that a number of retiring police officers ‘‘hobnobbed” with ruling politicians, in the expectation of post-retirement ‘rewards’ for ‘loyal service’. Fully aware of the clout wielded by the police, the Commission themselves recommended a law be framed which will bar police officers from post-retirement sinecures.

As the entire Report was shelved by the then Government, the aforesaid most worthwhile recommendation was also shelved. Apparently, it was so done under police pressure, it can be said with the advantage of hindsight.

After the Report was shelved, some retiring senior police officers continued with their old habits and maintained their cozy liaison with the ruling politicians, to mutual benefit. In return for tailoring their investigation and crime detection to please ruling politicians, they were generously rewarded with the highest prize – post-retirement – that could be offered by the political bosses Governorship. The Police Commission recommendation was observed more in the breach than compliance.

Time was, not long ago, under the previous Government that most of the Raj Bhavans in India were under police occupation, so to say. False and frivolous criminal cases continue to be filed, adding to the workload of the judiciary. One such recent case is that filed against a girl who is barely out of her teens. She has been charged with “sedition”, a very serious offence punishable with life imprisonment. The most lethal weapon found in her armoury was a ‘toolkit’. It is long-settled law that sedition implies a call to overthrow a duly elected Government by violent means, or through armed insurrection. That the arrest and the consequent prosecution were publicly justified by a Commissioner of Police of the Capital, only showcases the rot in the “system”. Something is utterly rotten in the State of Denmark, as the great Bard would have said.

The Judiciary is equally concerned with the question of Police Reforms, which goes to its credit. Accordingly, it entertained a PIL by a handful of retired Police officers led by a DGP. The Police officers petitioned the Hon’ble Court to issue directions to the Government to implement the Police Commission report. Secondly, to amend the Police Act, 1861 as it was a “colonial” piece of legislation, brought in by the British in the wake of Indian Mutiny of 1857.

There is another manifestation how the Police are pressurizing even the Law Ministry to tinker with the Criminal Code. It authorizes the police to arrest a person after a formal complaint is voluntarily filed with them in the form of an FIR. They can do so only if the FIR discloses the commission of a serious offence, punishable with imprisonment for two years or more. In other less serious cases, they have to take the prior permission of a magistrate. The apex court, in a landmark judgment quarter of a century ago had distinguished between the power of arrest granted by law and the exercise thereof in actual practice. It had explicitly cautioned the police to arrest and seek the custody of an accused in “heinous” offences only, generally those cases where the imprisonment prescribed is seven years or more. But Apex Court directions are no issue, as far as sections of police are concerned.

Witness the ongoing shenanigans of the Bombay police. Incidentally, it is under a Police Commissioner system, if at all it can be called a “system”. It is a typical case of the way police are functioning in the country. An editor of a national news channel is arrested by sending dozens of heavily armed policemen to his residence. His main “offence” was that he manipulated viewership figures in favour of his own channel, to increase revenue. He was incarcerated with common criminals, and denied bail – he had to rush to the Supreme Court to regain his freedom. Along with him, several of his senior colleagues were “summoned” from time to time to the police station for questioning.

The entire case is a shocking travesty of law. Assuming the editor concerned did manipulate the market figures, one does not have to be a law graduate to appreciate that it is a civil, not a criminal case. The police has no jurisdiction in civil cases. That the police are continuing with their brazen breach of basic norms of democracy points to a dismal state of affairs in the department. The police generally, under a Commissioner “system”, are virtually accountable to no civil authority. The basic scheme of the Criminal Code is that the head of the district police reports to the head of civil magistracy, and is accountable to him. But increasingly in metropolitan cities, the police have virtually broken free from civilian control and now report directly to the state Home Minister who, incidentally, is also a politician, as in the present case.

Recently, the Supreme Court, in another commendable initiative has directed the Executive to take meaningful steps to enforce some police accountability. It has directed the installation of CCTV cameras in all the police stations across the country. The Hon’ble Court has underestimated the resourcefulness of the police force. In Tamil Nadu, police stations are fitted with such cameras already. The Court has underestimated that the force is nothing if not tech savvy. Always ahead of the latest technology, like a smart modern force. In a recent case, when policemen in a police station were mercilessly thrashing a father and son, in a manner a sane man would not treat a wild animal, the CBI discovered that the police had quietly slipped in an ‘auto-delete’ device in the CCTV!

To revert to the issue of overall arrears, the Executive will first have to carry out root and branch reforms, beginning with the Criminal Code. At present, around 400 offences are listed in the Penal Code for which various punishments are prescribed, ranging from fines to death penalty. Offences punishable with imprisonment for 2 years or more are cognizable, i.e. police can arrest without court permission. All other minor offences are non-cognizable, i.e. police cannot arrest without court permission. Of the total offences listed, around 40 per cent are cognizable. If meaningful police reforms are to be carried out, and police powers of arbitrary arrests curbed, the list of cognizable offences needs to be pruned drastically.

While there is justification for treating serious offences as cognizable, there is little justification for so treating minor offences. No doubt, many such minor offences are bailable by the police themselves. In reality, these are deadly weapons with the police to extort money from the accused before he is released on a personal bond or bail. It is a bitter experience all over the country.

According to the Supreme Court itself: “the power of arrest is one of the lucrative sources of police corruption”. In a complete reversal of modern democratic jurisprudence, in 2009, a little-noticed tampering of the Criminal Code occurred. The power of arrest by the police without warrant was expanded beyond Constitutional limits. The relevant section has now been amended to read that a police officer can arrest without warrant “if he is satisfied that such arrest is necessary for proper investigation of the offence”. This turns democratic jurisprudence on its head. In plain words, arrest will no longer be a part of the investigation, as is the position now but henceforth investigation will be a part of the arrest. It is in violation of the Supreme Court observations: “The attitude to arrest first and then proceed with the rest is despicable… a handy tool to the police officers who act with oblique motives”. A recipe for a Police State. Undeniably, the problem of mounting arrears is acute, and will require concerted action on the part of all the three organs of the State. But the first responsibility rests on the Executive, to reduce the workload on the Judiciary by enforcing checks on its police force and enforcing in-house accountability. The Courts can then concentrate on civil and serious criminal cases.