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Integrity Scorecard

2007 Assessment

India: Integrity Indicators Scorecard

India: Integrity Scorecard Report > Sub-Category: Rule of Law
Indicators		Score
74	Is there an appeals mechanism for challenging criminal judgments?	58
75	In practice, do judgments in the criminal system follow written law?	75
76	In practice, are judicial decisions enforced by the state?	75
77	Is the judiciary able to act independently?	94
78	Are judges safe when adjudicating corruption cases?	100
79	Do citizens have equal access to the justice system?	64

Indicator and sub-Indicator Details

Is there an appeals mechanism for challenging criminal judgments?

74a: In law, there is a general right of appeal.

Score:

YES

Comments: Article 134 of the constitution read in consonnace with Section 374 of the Criminal Procedure Code

References: Section 374 of the Criminal Procedure Code; Article 134 of the constitution

74b: In practice, appeals are resolved within a reasonable time period.

Score:

100

Comments: The judicial process grinds ever so slowly that many believe that the injustice that they suffer while waiting for justice is more intense than the injustice for which they wish to approach the court. Recent amendments were introduced to the Criminal Law Process to speed up the justice delivery mechanisms. They are yet to operationalized.

References: www.lawmin.nic.in;

www.supremecourtofindia.nic.in

Peer Review Comments: Adjudication of court cases, let alone appeals, in India is frustratingly slow. Appeals in general are not resolved within a reasonable time period. There may be exceptions.

74c: In practice, citizens can use the appeals mechanism at a reasonable cost.

Score:

100

Comments: The costs can be quite high given the need for professional support and the long delays in the judicial procedures/ processes. Many celebrated cases in recent times have taken over a decade to reach the state of final conviction - The case involving the Mumbai blasts, the Uphaar Tragedy case, the Jessica Lal Murder case are a few that can be cited in this regard. A recent speech made by the chief justice of India draws attention to this point :

"Various factors contribute to large pendency of criminal cases in the subordinate courts. Speedy trial of criminal cases should be recognized as an urgent need of the present judicial system in order to decide the fate of lakh of litigants. It will help enhance the faith of general public in the present judicial system. In order to have a strong socio-economic system, it is important that each and every state of trial of an accused should move at a reasonably fast pace. In many cases, the accused is the head of a family and is the only bread winner, his responsibility is also towards the large family left behind him. It is not only the accused but also other members of his family who suffer because of delays in trial. Speedy trial ensures that a society is free of such vices. In many cases, large number of persons are arrested and kept in custody. It is said that large percentage of jail population is under-trial prisoners. Arrest of an accused originally was a mechanism for bringing the suspects before the magistrate so that their cases could be decided. This was the only coercive power possessed by the police. In reality, of course, warrants were issued on the basis of information provided by the police, but at least some information was required. But gradually it was replaced by summary arrest, that is, arrest without warrant on reasonable suspicion for arrest. Unless the pending cases are disposed of as quickly as possible in the present scenario, we would not be able to free our jails from large number of under-trial prisoners. The new system of plea bargaining incorporated in the Criminal Procedure Code shall be available to the under-trial prisoners and the court and the prosecuting agency and the lawyers should make them aware of the benefits of the benevolent provision incorporated in our statute." ( Entire text www.supremecourtofindia.nic.in/new_links/ILI-17.3.07.doc )

References: www.legalservicesindia.com/articles/bar;

www.supremecourtofindia.nic.in/new_links/ILI-17.3.07.doc

Peer Review Comments: The legal system in India does not address the needs of ordinary citizens. Litigation is highly expensive in terms of attorney fees, court fees and opportunity cost.

In practice, do judgments in the criminal system follow written law?

75: In practice, do judgments in the criminal system follow written law?

Score:

100

Comments: It normally does follow written laws, procedures and precedents.

References: www.supremecourtofindia.nic.in;

www.lawmin.nic.in

In practice, are judicial decisions enforced by the state?

76: In practice, are judicial decisions enforced by the state?

Score:

100

Comments: By and large court judgments are enforced by the state even when those judgments go against high state authorities. In recent times, the Supreme Court has intiated contempt proceedings against senior officials for having wilfully disregarded the directives of the court. It can be argued that authorities often seek refuge under the provisions of some procedural loophole or limitation to delay action.

References: www.lawmin.nic.in;

www.humanrights.in

Is the judiciary able to act independently?

77a: In law, the independence of the judiciary is guaranteed.

Score:

YES

Comments: The independence of the judiciary is guaranteed in terms of the manner of the appointment of judges, the protection of the service conditions and a removal by a process of impeachment (High Court and Supreme Court judges). Many would still argue that the judiciary is not fully insulated from the political process and judges at times appear to be sensitive to political cues. But overall, the independence of the judiciary is generally accepted as a positive element of the system.

References: Articles 121, 124,125 and 146 of the constitution

77b: In practice, national-level judges are protected from political interference.

Score:

100

Comments: On the face of it, there is not much evidence that goes to show that judges are susceptible to political pressures. There have been a few complaints that judges are being subjected to undue and intense political pressures. There are also apprehensions that they are falling prey to such pressures. This is not spoken about in the open often because of fears of violation of `privilege` and contempt of the court. It is in this context that there is a demand for the establishment of a National Judicial Commission to oversee the functioning of the judiciary and to `guard the guardian`.

References: Articles 121, 124,125 and 146 of the constitution.

77c: In law, there is a transparent and objective system for distributing cases to national-level judges.

Score:

YES

Comments: This is determined by court procedures laid down by the chief justice.

References: www.supremecourtofindia.nic.in

77d: In law, national-level judges are protected from removal without relevant justification.

Score:

YES

Comments: There are detailed provisions for impeaching a judge. The method also ensures that the provisions are not misused. A judge can be impeached on grounds of proved misbehavior or professional incompetence. The procedure eensure that the concerned judge is given a fair hearing. In the last six decades, there was an attempt to impeach only one judge (for his actions as the chief justice of a High Court) and this fell through at quite an advanced stage of the proceedings.

References: Article 124 of the constitution

Are judges safe when adjudicating corruption cases?

78a: In practice, in the last year, no judges have been physically harmed because of adjudicating corruption cases.

Score:

YES

Comments: No judge has been harmed for adjudicating a corruption case. Ther have been cases of judges having been allegedly transferred for adjudicating cases involving corruption of those in influential positions. The case of Justice Shethna of the Gujarat High Court who resigned in protest can be cited in this regard. Justice B J Shethna, in his letter to the president, reportedly stated that he was shocked by his transfer and said he was being "victimised for exposing corruption in higher judiciary".

References: www.timesofindia.indiatimes.com/articleshow/1889253

78b: In practice, in the last year, no judges have been killed because of adjudicating corruption cases.

Score:

YES

$Scoring Criteria :: YES: A YES score is earned if there were no documented cases of judges being killed related to their involvement in a corruption case during the study period. YES is a positive score. NO: A NO score is earned if there were any documented cases where a judge was killed because of his/her participation in a corruption trial. The relationship between a mysterious death and a judge\'s involvement in a case may not be clear, however the burden of proof here is low. If it is a reasonable assumption that a judge was killed in relation to his or her work on corruption issues, then the indicator is scored as a NO. Corruption is defined broadly to include any abuses of power, not just the passing of bribes.$

Comments: No judge has been reportedly killed for having investigated a corruption case.

References: www.supremecourtofindia.nic.in;

www.nhrc.nic.in

Do citizens have equal access to the justice system?

79a: In practice, judicial decisions are not affected by racial or ethnic bias.

Score:

100

Comments: By and large decisions have not been affected by caste/religious considerations. There is a feeling among the socially underprivileged that the legal system has not been fully fair to them. More recently in the aftermath of communal riots in the state of Gujarat, the minority community (Muslims) did express apprehensions of being given justice by the lower courts in view of the political pressures they would be subjected to and pleaded for a trial outside the state. The National Human Rights Commission has often intervened on these matters.

References: www.supremecourtofindia.com;

www.nhrc.nic.in

Peer Review Comments: While the higher judiciary may be held as free from such sectarian biases by and large (though there are instances, even here, of caste prejudices arising such as the observations by judges against the government's initiative to implement reservations to the OBCs in institutions of higher learning), the lower judiciary, particularly the sessions courts, are ridden with caste and other sectarian prejudices.

79b: In practice, women have full access to the judicial system.

Score:

100

Comments: Generally, women have less frequently than men approached the courts. It may be linked to the social system and the continued male-dominated nature of power relationships within the family and society. Women's organizations have often argued that women are at a disadvantage in judicial proceedings especially when it involves cases of dowry harassment/ dowry death/ rape. The National Women's Commission has been taking up such cases.

References: www.ncw.nic.in;

www.nhrc.nic.in

79c: In law, the state provides legal counsel for defendants in criminal cases who cannot afford it.

Score:

YES

Comments: It is mandatory on the part of the state to provide legal support.

References: www.supremecourtofindia.nic.in

79d: In practice, the state provides adequate legal counsel for defendants in criminal cases who cannot afford it.

Score:

100

Comments: While the state does provide legal aid to those who cannot afford to defend themselves, two points need to be made. Firstly, the quality of the help provided may not be of the high standards. Secondly, if the prosecution team is able to afford it, they may require the services of the best lawyers which places the defendant at an unfair disadvantage.

References: www.nhrc.nic.in;

www.supremecourtofindia.com

79e: In practice, citizens earning the median yearly income can afford to bring a legal suit.

Score:

100

References: www.vmslaw.edu;

www.legalserviceindia.com

79f: In practice, a typical small retail business can afford to bring a legal suit.

Score:

100

Comments: The judicial process is costly and painstakingly slow. It is often not the preferred means of seeking justice. As a result, it is often those with substantial financial means who approach the court system. The costs of a legal suit are quite high and the delays in decision-making discourage people from filing a suit.

References: www.vmslaw.edu;

www.legalserviceindia.com

79g: In practice, all citizens have access to a court of law, regardless of geographic location.

Score:

100

Comments: There seems to be more limited access to the judicial system to those living in rural areas as compared to those living in the cities. Further, the informal local justice system (which takes into account local traditions, customs and practices) appears more popular and prevalent in many parts.

References: www.nhrc.nic.in