- kewal sethi
more on judicial reform
in a blog sometime back, it was said that an alternative method of justice would be to involve the magistrate/judge right from the beginning in a criminal case. the intent should be to find out truth rather than weigh the evidence which the two sides want to bring up.
this view is reflected, surprisingly, in a recent judgment of Supreme Court in an appeal by maheshbhiai ranchodbhai and his parents. the court says "trial courts were expected to perform their duties of dispensing justice effectively and in line with the spirit of the authority they wield, unearth the truth when the conduct of prosecution is suspect or appears to be hand in glove with the accused." it condemned the "parading a mock fight and making a mockery of the criminal administration itself". there were other points like prosecution had listed 17 documents but produced only four. the husband accused of murdering his wife was given three days' imprisonment for harassment and cruelty.
but this is not enough. a swallow does not make a summer (at least in Europe). the right thing to do is to attempt to find the truth in all the cases. to that purpose, the judge should be a part of investigations right from the beginning calling for further investigation, if necessary, suggest lines in which inquiries are to proceed. he should not be there just to listen but should play an active part in the proceedings.
to this end, we do not have to pay much attention to so called independence of judiciary. the primary duty is towards the society which is paying you for maintenance of law and order. judiciary should be part of that purpose and not aloof from it.
it also applies to the civil cases. truth finding is, or should be, the goal not just weighing the evidence. the judge should not be a shopkeeper weighing the goods and give award to one whose pleaders and /or arguments are quantitatively more though lacking in quality.