‘EQUALITY IS STILL A DISTANT DREAM’ HELD ON 19-01-2021
Noida,in collaboration with BSK Legal, Delhi on the topic of ‘Equality is still a distant dream’. The speaker for the webinar was Hon’bleMr. Justice S.N. Dhingra (Retd.). Justice Dhingra, a former Judge of Delhi High Court, has also worked as a member of CCI and has headed several inquiry commissions and panels. The webinar spanned for a period of two and a half hour, commencing with an introductory note by Ms. Srishti Pandey, Assistant Professor, MLS, followed by address of Justice Dhingra and a brief Q&A session.Prof. (Dr.) K. B. Asthana, Dean, MLSextended his warm welcome to Hon. Mr.Justice S.N. Dhingra (Retd.), Mr. Sanjay Chaddha and the participants.
Hon’ble Justice S.N Dhingra began his address by highlighting the fact that the stakeholders of criminal justice system, namely, Judiciary, advocates and the legislature are grabbed by the state of ‘inertia’ and lack of any initiative and responsibility on part of these stakeholders is further aggravating the situation because our criminal law regime is not subjected to the necessary push/ force needed to bring it on track. Over the span of an hour, Justice Dhingra talked about how lack of concrete structure of law, lack of specialization in law, lack of updated pedagogy for training of judges, and exploitation of Criminal Law regime by members of bar, is becoming fodder for criminals and lawyers with good face value in the courts.
Justice Dhingra reflected on the plight of a common man who has a really hard time putting in his faith in judiciary and undergoing a decade long procedure of criminal justice. He pointed out that trial courts are plagued by pendency and delay and higher courts (busy dispensing IPL justice) are approachable only if you are in a position to employ senior lawyers charging hefty fee. The unfortunate saga of our country, according to him, is that our court’s door can open at mid-night at the instance of a senior lawyer, but, a poor man seeking justice and fighting odds of life can never be able to do so. The working of Judiciary at higher and sub-ordinate levels was also brought into discussion and the need to have a limited interference by Higher Court in working of lower court was highlighted with a suggestion to a system of checks and balances in place. Your Lordship pointed out that the trial courts should not be termed as ‘inferior courts’ because all courts are conferred with their respective jurisdictions “with the solemn duty of dispensing justice.”
With respect to the duty of the legislature to come out of hibernation and step in to give clarity on contradictory and multiple interpretations of one law (causing confusion on procedure and relevance of ‘un-overruled’ precedents), Justice Dhingra cited an example of law governing Narcotics Substances (NS) in which the Apex Court in one of its earlier judgments held that ‘quantity’ of NS will be understood as the percentage of Narcotics available in the substance seized but in a very recent judgment, this law is reversed and now, the entire substance will be actuated as NS.
Justice Dhingra further mentioned that there is no definitive procedure for summary, summon, warrant and session trial at Trial Courts. He stated that, “We are living in evolving times wherein the forms and nature of crimes are changing day by day while our judiciary is not responding to the need of changing/ evolving times”.
He further added that, “Judges are bound to ensure that justice is delivered by accommodating need to the time. The training of judges is not only faulty but also lacks substance because they are taught old and repetitive judgments. Unfortunately, a whopping 90 percent of our judges act as mere ‘Babus’ who are not trained to respond to the need of the poor litigants but are concerned with their careers. They tend to not take cases which are complex and which need more time and energy. On various occasions it so happens that in trial court, a witness is called on several times because of delay tactics employed and adjournments sought by Defense Counsels and in other cases witnesses are not called at all because of non-intention of prosecution to further the cause of justice”.
The other reason for crippling justice system is that judges are taught to “co-operate” with and ‘refrain from annoying’ the members of the Bar. This is the primary reason why in- spite of having a legal provision to the effect that ‘busy-ness of an advocate cannot be a ground of seeking adjournments,’ adjournments are given. Even for a petty offence like ‘contesting a challan’ an aggrieved person has to procure his presence before the court for 10 to 12 times because of adjournments given due to absence of the responding authority/ party.
In order to cure pendency, he suggested that a judge; (a) should start a trial according to his schedule, that is to say, if a promotion or a transfer is due for him/ her in near feature, then he or she should not start a trial; (b) once a trial is started, it should not be left unfinished and if it is not finished within the specified time, the judge must be considered in-competent.
After having discussed the ailments of Indian Criminal Justice system, Justice Mr. Dhingra, also suggested the ardent need of having specialization in courts and law fraternity. He highlighted how our entire judiciary, right from the lower courts to the Apex Court is in the hands of “novice” judicial officers who have utter ‘incompetence to deliver justice.’ Judges in the lower judiciary are trained in Judicial Academies for a year and then are given on-job training while 66 percent of the appointment in High Courts is done by elevating members of bar to bench. They are trained for a fraction of 3 months after which they are placed in a Division bench to learn the intricacies of High Court functioning and that of the law. This inadequate training is followed by leaving these newly appointed judges on their own to get on job training while simultaneously delivering ‘so-called’ justice.
He stated that, “Now, this is a very problematic scenario because these advocates have experience in various branches of law ranging from taxation, property, IPR, civil, service laws, to name a few, but once they are appointed as High Court judges, they are supposed to become expert of every law”. Another practice which has failed the justice delivery system is; change of High Court roster every 3 weeks or 3 months or 6 months. Just when a judge has gained understanding of a law, his/her roster is changed and he/she has to again struggle with another field of law. To make matters worse, a judge’s roster can be changed on request of the bar members made before the Chief justice of the High Court. Therefore, we should have specialized courts like, Criminal Courts, in which right from the bottom to the top, Judges have single specialization of particular field of law. We can have different branches of criminal courts, civil courts, etc. A magistrate trained in criminal law, having significant experience in criminal law can be elevated or promoted on the ladder to reach to the SC to be a part of Criminal Law division. Such a Judge can be considered as a true specialist because he has sufficient training and knowledge of the law; the procedure; the latest developments; the changes in nature of crimes and therefore can address the call for justice is a better manner. Also, an advocate having expertise or sufficient experience in criminal law can be elevated to criminal law bench.
In the end, a number of questions ranging from; possible solution to the problem of increasing rate of under trial prisoner, to competence of legal aid centre in providing free legal aid to poor sections of the society, role of law students in curbing corruption, media trial, to attribution of accountability for higher acquittal rates, to responsibility of a public prosecutor, were asked by the audience. Justice Dhingra addressed each and every question in detail. With respect to increasing rate of UTP, he suggested that under trials charged with petty offenses should be encouraged to confess their crime and be granted permission to go out of parole. Increasing the number of prisons was also one of the suggestions. Lordship very rightly pointed out, with respect to ascertaining participation of good senior learned lawyers in giving free legal aid, that a Judge should assign senior lawyers responsibility to work in legal aid cases and the participation of lawyers should also be tracked from time to time. He brought very important point to the forefront that due to non- availability of good lawyers for free legal aid, poor litigants become mere subjects of gaining on job experience and training for untrained lawyers.
This Q & A session came to an end with this, followed by a vote of thanks by the Deputy Dean, MLS, Prof. (Dr.) AnnuBahlMehra and Mr. Sanjay K. Chadha, Managing Partner, BSK Legal.
The session was live on YouTube with a parallel live streaming on MS Teams and was viewed by around 1500 participants all over India and professionals from neighboring countries like Sri Lanka, Pakistan and Bangladesh.
All participants were issued e-certificates of participation.