| 77 |
Is there an appeals mechanism for challenging criminal judgments? |
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77a:
In law, there is a general right of appeal.
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| Score: |
YES |
NO |
 |
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Comments:
References: Section 374 of the Criminal Procedure Code, 1973, www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973-3.htm
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77b:
In practice, appeals are resolved within a reasonable time period.
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| Score: |
100 |
75 |
50 |
25 |
0 |
|
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Comments: Figures for delays in disposing criminal appeals are not available. One available figure, for Dec. 31, 2005, is that 531,477 cases pending in High Courts were more than 10 years old. As of June 30, 2009, 3,955,224 criminal cases were pending in different High Courts in India. Separate figures for criminal cases in the Supreme Court are not available, but the total number of pending cases as of June 30,2009, was 52,592. It is estimated that, assuming no fresh cases and no increase in judge strength, it would take 9 months for the Supreme Court to clear all pending cases. On average, High Courts would need about 2 years and 7 months; Lower Courts about 1 year and 9 months.
References: "Rules of the Law-II," Bibek Debroy, Financial Express, Sept. 9, 2009, www.financialexpress.com/news/rules-of-the-lawii/514585/
Court News, Supreme Court of India, April-June 2009, www.supremecourtofindia.nic.in/courtnews/court%20news%20apr-jun-09.pdf
PRS Legislative Research, Vital Stats, Pendency of Cases in Indian Courts, Aug. 26, 2009, www.prsindia.org/administrator/uploads/general/1251796330~~Vital%20Stats%20-%20Pendency%20of%20Cases%20in%20Indian%20Courts%2026Aug2009%20v10.pdf
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77c:
In practice, citizens can use the appeals mechanism at a reasonable cost.
|
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| Score: |
100 |
75 |
50 |
25 |
0 |
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Comments: Court fees are low in criminal cases. Advocate fees may be high and delays in dispensation of justice can raise the cost of pursuing appeals for the middle class. Free legal aid is available to those who need it, but the numbers of undertrial prisoners that languish in Indian jails are indicative of the fact that free legal aid is not always accessible.
References: The Supreme Court Rules, 1966, Third Schedule, Table of Court Fees, www.supremecourtofindia.nic.in/rulespdf.pdf
The Court Fees' Act, 1870, read with respective High Court Rules, www.vakilno1.com/bareacts/the_court_fees_act/courtfeeact.htm
Peer Review Comments: Litigation in India is very expensive, in both civil and criminal cases. The lawyers really fleece their clients. There are also hidden costs. Hence, the cost is not reasonable.
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| 78 |
In practice, do judgments in the criminal system follow written law? |
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78:
In practice, do judgments in the criminal system follow written law?
|
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| Score: |
100 |
75 |
50 |
25 |
0 |
|
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Comments: The 2005 Corruption in Judiciary study indicates that 23 percent of bribes paid in courts were for a favorable judgment and 14% for getting bail. Corruption in the judiciary is rampant, particularly in the lower judiciary, and the written law is easily manipulated.
References: Section 353 and 354 of the Criminal Procedure Code, 1973, lays down the form of a judgment, its language and content, www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973-3.htm
"Ignoring judicial corruption in Gujarat?" Sevanti Ninan, The Hoot, July 6, 2008, www.thehoot.org/web/home/story.php?storyid=3210&pg=1&mod=1§ionId=21§ionname=MEDIA%20ACTIVISM&valid=true
Indian Corruption Study 2005 to Improve Governance, Vol. II (Eleven Public Services), Corruption in the Judiciary, Transparency India, Center for Media Studies (CMS)
Judge in a corruption case, by Amulya Gopalakrishnan, Vol: 20, Issue 10, www.flonnet.com/fl2010/stories/20030523002904600.htm
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| 79 |
In practice, are judicial decisions enforced by the state? |
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79:
In practice, are judicial decisions enforced by the state?
|
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| Score: |
100 |
75 |
50 |
25 |
0 |
|
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Comments: The typical response of the state to judicial decisions is to go into appeal whether or not a case is worth appealing. Government litigation thus forms the highest component of cases before various courts and delays resolution of cases, sometimes by decades.
References: "Government itself to blame for backlog of cases," Kannan Kasturi, India Together, March 25, 2008, www.indiatogether.org/2008/mar/gov-litigant.htm
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| 80 |
Is the judiciary able to act independently? |
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80a:
In law, the independence of the judiciary is guaranteed.
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| Score: |
YES |
NO |
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Comments:
References: Constitution of India, Articles 50 (separation of powers), 124(2) and 217(1) (appointment of judges), 124(2) and 217(1) (security of tenure), 125 and 221 (salaries), 124(2) and (4) (removal), and 129 and 215 (power to punish for contempt) ensure independence of the judiciary. Various Supreme Court decisions have confirmed that independence of the judiciary is a basic structure of the Indian Constitution.
"Judicial Independence, Fiscal Autonomy and Accountability," Justice S.B. Sinha, Judicial Reform Network in the 21st Century Conference Papers, 2005, jrn21.supremecourt.gov.ph/index.php?links=documents
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80b:
In practice, national-level judges are protected from political interference.
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| Score: |
100 |
75 |
50 |
25 |
0 |
|
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Comments: It would be hard to find evidence, but it is a badly kept secret. The judiciary is not open to having its judgments criticized, and such attempts would invite action for contempt of the court. Political and executive interference is common in lower courts and tribunals (see Supreme Court citation above).
References: "No minister called up Madras High Court judge, says CJI Balakrishnan," Indian Express, July 5, 2009, www.indianexpress.com/news/no-minister-called-up-madras-high-court-judge-says-cji-balakrishnan/485249/0
Speech by Fali S. Nariman on the occasion of M.S. Oberoi Media Awards 2007 at Oberoi Hotel, March 15, 2008, www.transparencyindia.org/f_s_nariman.htm
"Lords on trial," Shafi Rahman, India Today, Aug. 27, 2009, indiatoday.intoday.in/site/Story/58750/Lords+on+trial.html?complete=1
L. Chandra Kumar v. the Union of India & Ors., 1995( 1 )Scc 400
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80c:
In law, there is a transparent and objective system for distributing cases to national-level judges.
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| Score: |
YES |
NO |
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Comments: The work distribution to benches is generally made subject-wise; for example, a bench may be devoted to tax matters or service matters, etc. The chief justice decides on the judges to be assigned the work. With enhanced computerization of courts in India, there is consistency on case assignments, and information about which judge is handling what kind of cases is available to the public.
References: There is no legal requirement.
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80d:
In law, national-level judges are protected from removal without relevant justification.
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| Score: |
YES |
NO |
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Comments: A judge of the Supreme Court or a High Court cannot be removed from office except by an order of the president passed after an address in each House of Parliament that is supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the president in the same session for such removal, only on the ground of proved misbehavior or incapacity .
References: Article 124(2) and (4) of the Constitution of India
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| 81 |
Are judges safe when adjudicating corruption cases? |
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81a:
In practice, in the last year, no judges have been physically harmed because of adjudicating corruption cases.
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| Score: |
YES |
NO |
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Comments:
References: No source given.
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81b:
In practice, in the last year, no judges have been killed because of adjudicating corruption cases.
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| Score: |
YES |
NO |
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Comments:
References: No source given.
|
| 82 |
Do citizens have equal access to the justice system? |
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82a:
In practice, judicial decisions are not affected by racial or ethnic bias.
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| Score: |
100 |
75 |
50 |
25 |
0 |
|
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Comments: Judicial decisions in lower courts sometimes reflect the bias of individual judges. This has been significant in the functioning of trial courts in a state polarized along religious lines, such as Gujarat, where the Supreme Court had to intervene and either transfer cases for trial in another state or get its own team to re-investigate and monitor the trial, relating communal riots that happened in 2003.
References: Article 15 bars discrimination on the grounds of religion, race, caste, sex, place of birth or any of them. Article 25 of the Indian Constitution grants freedom of religion, which can be the subject to restrictions on grounds such as public order, morality, health and all the other fundamental rights.
india.gov.in/govt/documents/english/coi_part_full.pdf
Individual Rights in India: A perspective from the Supreme Court, by K.G. Balakrishnan, chief justice of the Supreme Court of India, www.supremecourtofindia.nic.in/speeches/speeches_2009/Presentation_at_Roundtable_-_University_of_Georgia.pdf
A significant intervention, by V. Venkatesan, Frontline, Volume 20, Issue 17, Aug. 16-29, 2003, www.thehindu.com/fline/fl2017/stories/20030829008200800.htm
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82b:
In practice, women have full access to the judicial system.
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| |
| Score: |
100 |
75 |
50 |
25 |
0 |
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Comments: Despite constitutional protections and positive laws, women face gender bias in the judicial process because of the attitudes of individual judges and lawyers. This is particularly marked in cases in which women are victims of violence. There are concerns regarding a lack of a progressive approach by the judiciary when interpreting personal laws relating to marriage and succession. There are gaps between the intent of the legislation to empowering women and the actual practices in courts.
References: Article 14 of the Constitution grants every person equality before the law and equal protection of laws. Article 15(1) bars discrimination on the grounds of religion, race, caste, sex, place of birth or any of them.
india.gov.in/govt/documents/english/coi_part_full.pdf
"Single & Unsafe," Kaveree Bamzai and Anjali Doshi, India Today, May 30, 2005, www.india-today.com/itoday/20050530/cover.html
All India Meeting of Chief Justices of High Courts on Women Empowerment Vis-a-Vis Legislation and Judicial Decisions, Dec. 11, 2004, ncw.nic.in/pdfreports/All%20India%20Meeting%20of%20chief%20Justice.pdf
"State, Gender and the Rhetoric of Law Reforms," Flavia Agnes, SNDT Womens University, Mumbai, 1995
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82c:
In law, the state provides legal counsel for defendants in criminal cases who cannot afford it.
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| Score: |
YES |
NO |
|
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| |
Comments:
References: Article 39A of the Constitution of India provides that state shall secure that the operation of the legal system promotes justice on a basis of equal opportunity and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability.
india.gov.in/govt/constitutions_of_india.php
The Legal Services Authorities Act, 1987, was enacted to give a statutory basis to legal aid programs throughout India and came into effect in 1995.
causelists.nic.in/nalsa/
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82d:
In practice, the state provides adequate legal counsel for defendants in criminal cases who cannot afford it.
|
| |
| Score: |
100 |
75 |
50 |
25 |
0 |
|
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Comments: The 2006 prison statistics show that the numbers of undertrial prisoners being held in jails across the country is 2,45,244 (65.7 percent of the total inmates). While Legal Aid Services of the states maintain a panel of advocates, clearly, legal aid is not reaching enough of these undertrial prisoners, many of whom are in jail beyond the sentence period likely to have been handed down. Many who have been ordered released are still inside because they have not been able to furnish the necessary bonds.
References: "Judges to inform undertrials of free legal aid," Utkarsh Anand, Expressindia, May 6, 2009, www.expressindia.com/latest-news/judges-to-inform-undertrials-of-free-legal-aid/455024/
National Crime Records Bureau, Prison Statistics 2006, ncrb.nic.in/PSI2006/prison2006.htm
"CJI signals speedier justice for undertrials," Times of India, Aug. 17, 2009, timesofindia.indiatimes.com/news/india/CJI-signals-speedier-justice-for-undertrials/articleshow/4900450.cms
Access to Justice for Undertrial Prisoners: Problems and Solutions, R. Sreekumar, Commonwealth Human Rights Initiative, New Delhi, www.humanrightsinitiative.org/artres/Access%20to%20Justice%20for%20Undetrial%20Prisoners.pdf
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82e:
In practice, citizens earning the median yearly income can afford to bring a legal suit.
|
| |
| Score: |
100 |
75 |
50 |
25 |
0 |
|
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| |
Comments: Advocate fees are high, given that the legal process is so slow. Civil suits have an additional burden of court fees, which is a proportion (roughly 7.5%) of the value of the suit. The Supreme Court and the Law Commission have frequently recommended having a reasonable fixed court fee charge instead of an ad valorem fee. State governments (which have the powers to regulate) see it more as a revenue-earning mechanism than a charge to offset the administration of justice. The hardest hit are the poor and the middle classes fighting property-related suits.
References: Law Commission of India, Need to Fix Maximum Chargeable Court Fees in Subordinate Civil Courts, Report No. 220, March 2009, lawcommissionofindia.nic.in/reports/report220.pdf
Women and Access to Justice, Geeta Sajjanshetty, Lawyers Collective HIV/AIDS Unit, Bangalore, www.lawyerscollective.org/magazine/aug-sept-2008/feature-1
"SC anguished over high cost of litigation in the country," Y. Prakash, Feb. 4, 2009, www.lawyersclubindia.com/news/2009/2/sc_anguished_over_high_cost_of_litigation_in_the_country.asp
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82f:
In practice, a typical small retail business can afford to bring a legal suit.
|
| |
| Score: |
100 |
75 |
50 |
25 |
0 |
|
|
| |
Comments: Advocate fees are high, given that the legal process is so slow. Civil suits have an additional burden of court fees, which is a proportion (roughly 7.5%) of the value of the suit. The Supreme Court and the Law Commission have frequently recommended having a reasonable fixed court fee charge instead of an ad valorem fee. State governments (which have the powers to regulate) see it more as a revenue-earning mechanism. Small businesses are oppressed by permit/license regimes and consequent litigation with the government, which has enough resources to keep the litigation dragging from one court to another, even though it loses most of time.
References: Law Commission of India, Need to Fix Maximum Chargeable Court Fees in Subordinate Civil Courts, Report No. 220, March 2009, lawcommissionofindia.nic.in/reports/report220.pdf
Law Commission of India, Cost of Litigation, Report No. 128, 1988, Women and Access to Justice, Geeta Sajjanshetty, Lawyers Collective HIV/AIDS Unit, Bangalore, www.lawyerscollective.org/magazine/aug-sept-2008/feature-1
PM's address at the Conference of the Chief Ministers & Chief Justices, Sept. 18, 2004, New Delhi, pmindia.nic.in/lspeech.asp?id=22
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82g:
In practice, all citizens have access to a court of law, regardless of geographic location.
|
| |
| Score: |
100 |
75 |
50 |
25 |
0 |
|
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| |
Comments: Inadequate/expensive access to the court system for geographical reasons has long been an issue. It is only with the Gram Nyayalaya Act, 2008, which came into effect on Oct. 2, 2009, that bringing justice to the people will, hopefully, be realized.
References: Law Commission of India, Reforms in the Judiciary, Some Suggestions, Report No. 230, August 2009, lawcommissionofindia.nic.in/reports/report230.pdf
Nyaya Panchayat: Doorstep to Access to Justice, Shadab Mansoori, www.indialaws.info/display.aspx?808AAE43-A34E-4E54-945A-B8B545FFB8C7
"Gram Nyayalaya Act ,2008, to come into effect on Mahatma Gandhi Jayanti," Press Information Bureau, Delhi , Sept. 29, 2009, pibmumbai.gov.in/scripts/detail.asp?releaseId=E2009PR1038
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