• kewal sethi

rule of law

rule of law

july 2021

this was the issue discussed last thursday in the group. i did not participate concentrating on listening to the experts explaining their points of view. but if i had done, i would have liked to say –


rule of law. where is it? looking for rule of law is like looking in a dark room on a dark night for a black cat which is not there.


had there been rule of law, the question would be who is in charge of rule of law. the police, could not be. it was once described as the largest lawless group in india by justice a n mulla of allahabad high court. frequently described as the hand maiden of political bosses, they are more bothered about keeping themselves in good books rather than enforce rule of law. rule of law usually means impartiality. it does not suit the politicians. having said this, it would be unwise to condemn an entire organization based on the opinion of one person, who might have come across some situation which made him write all this. we must examine the situation with open mind.


there are plenty of police officers who investigate crime honestly and with due diligence but they are handicapped due to the system. the cardinal principle of administration of criminal justice in india is that the policemen are unreliable. whatever evidence they present to the courts must be initially held to be forced, concocted and prejudicial till it is proved otherwise. a confession before policeman is no confession. in that even the common man has advantage over the policeman. in tada law, a confession before an officer of the rank of deputy superintendent of police was, by law, considered to be evidence but even that was looked at with suspicion. finally they did away with the act rather than enforce it because it was uncomfortable for many.


the suspicion with which the investigations by the police officers are viewed leads to another uncomfortable factor which leads to failure of justice. in order to ensure the courts that their investigation was thorough, comprehensive and all encompassing, the charge sheet (and the accompanying documents) run into hundreds of pages. the number of witnesses, likewise, run into dozens if not hundreds. in the malegaon blast case, nia told the court that 181 witnesses have been examined so far out of 500 and odd. the mere voluminous presentations, by law of probability, have content which is contradictory. this is a good enough excuse to give benefit of doubt to the criminal.


it has been my view that policemen are as much responsible as anybody in the system is. they come from the same strata of society from which the magistrates come. if they do something which is not right, the circumstances and the situation must be taken into consideration. here i am not thinking of the unruly behaviour of policemen when controlling crowds or enforcing prohibition orders. these are reprehensible, though very much common occurrence, but the remedy lies in proper recruitment and proper training. here i am merely talking about the investigations part of the duties of the police. the findings of the police should be considered to be true, unless proved otherwise. this will lessen the burden of the prosecution, though it may increase the burden of the defendant. in the interest of the society, the time spent on investigation must not be allowed to go waste by wrangling about a contradiction here or a discrepancy there. rule of law means justice and justice must be kept in mind.


so far as rule of law is concerned, if not the police then is it the judiciary? they are not beholden to the politicians. they are not under pressure. over time they have got rid of the political influence and now influence the politicians with their well exercised notion of contempt. they could be in charge of rule of law. but can they be?


i usually describe the judges, from the recently recruited magistrate second class to the chief justice of india as weighing machines. machines cannot be concerned with laws or the rules or the rule of law. they only judge the weight of the arguments presented before them by the two sides and decide which sounds heavier and better. in the case of criminal cases, the idea of humane attitude and a vague concept that hundred culprits may escape but one innocent should not be punished is a factor which tilts the balance to the criminal's side. the rule of law has to do something with justice but nothing is farther from the minds of the judges. they do their duties diligently but the very principles of jurisprudence keep them away from justice, and thereby, rule of law.


so far as civil cases are concerned, the importance and reputation of the lawyers appearing for the two parties influence the decisions. if two are of equal eminence, the decision is unduly delayed and finally (it is my surmise) it is decided by lottery. it does lead to anomalies and difference of opinion (or the result of the lottery) in giving contradictory decisions by different benches resulting in further longish arguments before a bench having more members. but ultimately the procedure remains the same.


another big factor in not being able to have rule of law is the arbitrariness which is the watchword of jurisprudence. the same offence may get imprisonment till the rising of the court or, maybe, seven years in jail. the lower courts convict a person and he suffers for a decade or so before higher court, on the same facts, and the same evidence acquits him, of course without compensating him for wrongful internment or the indictment of the lower court for wrong decision. of late the arbitrariness is growing. even the precedents are ignored very often. added to this is the oral indictments of investigating officers (which are not recorded but widely reported). the intention may be noble but the demoralisation is not. it further hinders the investigations. also add the sup moto cognition of some occurrences which impinge upon rights of other wings of the governance.


another malady, of late, is the court monitored enquiries, notwithstanding the fact that it goes against the principle of separation of judiciary and executive. in the ultimate analysis, such monitoring is good, provided the courts then also share the responsibility of the success of the case, otherwise it is power without responsibility, interference without direction, overseeing without insight.


is then the rule of law not feasible. in my opinion, with the present system of jurisprudence – no.


we have to change the entire mindset and the system. rule of law can be enforced only when there is justice. justice can only be ensured if the magistrates and higher ups are empowered to do justice and not merely arbitrate. practical experience of the situation obtaining in society is a must for interacting with the public as well as the criminals. this implies that the present system of separation of judiciary and executive must go. the judiciary should be as much answerable to the society as any other branch of governance. they cannot be super government, above the law and above the aspirations of the nation. the present façade of appearing to be guardians of system must give way to being a part of the system, the whole aligned with the welfare of the society. this does not mean laying down the laws and the regulations by the judiciary which must be the prerogative of the elected representatives of the people. it is to examine these laws and regulations with the same sentiments with which the laws and regulations are framed.


we have talked of practical experience of the administration of laws and regulations. this cannot be done just by study, or even by training. there has to be learning on the job. this means frequent interchange of the personnel who apply regulations and those who check whether the application of regulations was not arbitrary in a particular case.


as for as civil cases are concerned, endless proceedings must give way to in-chamber presentation. there is already a rule which says that agreed points need not be proved. the judges should be part of what these agreed points are and not leave it merely to parties or the lawyers representing these parties. to cut short the lengthy proceedings, the arguments should be given in writing. it must be kept in mind that the judges are as much cognizant with laws as the lawyers and they do not need lengthy exposition of law with voluminous quotations from the previous decisions. cutting short the time wasted in these proceedings would expedite the decisions, which may not be desirable for some of the litigants but will certainly be beneficial to the society as a whole. i have earlier referred to voluminous charge sheets. the same goes for the judgments also. the points for decision should be briefly stated and also the orders regarding them. we need decisions, well argued but not scholarly expositions.


it is a farfetched hope and aspiration that anyone will listen to the arguments advanced above. every one – the judges, the lawyers – are perfectly comfortable with the present never ending cases. and would not look with favour on any idea to deprive them of the importance which they get by open court system where they can impress the litigants and the general public with their eloquence. sitting down in an office, howsoever comfortable, will be poor substitute for the limelight to which they are addicted. likewise so far as criminal cases are concerned, the courts, with their notion of self importance, the scheming politician, the compliant police officers, the lawyers and the champions of public interest litigation getting their publicity exposure would not look favourably on any reform of the system. they would like to pay lip sympathy and make loud protestations for the reforms and then let it continue as before. we have seen umpteen number of law commission reports, lengthy and full of suggestions, but with scant attention to the real malady which afflicts the system. as i have said elsewhere, no one wants to leave the comfort zone they are used to. it is the fear of the unknown which deters them from trying anything new.


still, in the interest of society, it must be said.

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