In election season, let’s talk of access to justice and judicial infrastructure

Upendra Baxi
Effective programmes for action should engage all political parties as a matter of people's basic human rights, not as acts of political largesse or grandstanding.

Now that the "festival of democracy" - the schedule for the 17th general elections to Lok Sabha - is announced and the season of manifesto drafting has begun, is it not the solemn duty of all citizens to advance their suggestions for meaningful changes in the administration of justice? Effective programmes for action should engage all political parties as a matter of people's basic human rights, not as acts of political largesse or grandstanding.

Manifestoes will do well to acknowledge the paramount constitutional governance obligation as per Directive Principle Article 38-A, providing a fundamental obligation of the state to "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 disabilities".

Far from being a provision only for legal aid, this Article guarantees a basic human right to a just social and political order under the Constitution. And "other disabilities" go beyond economic disability and also need to be fully deciphered lest, as Justice Krishna Iyer memorably used to say, the administration of criminal justice become criminal administration of justice.

Access to justice now also means access to judicial infrastructure. The Supreme Court in 2012 has held that "it is the constitutional duty of the government to provide the citizens of the country with judicial infrastructure and means of access to justice" so that "every person is able to receive an expeditious, inexpensive, and fair trial". And it rules that "financial limitations or constraints" may not be urged to defeat this right.

Already, a leading national party is reported as considering deletion of the offence of sedition (Section 124-A of the IPC) - a colonial legal provision wholly at odds with the values and rights under the Constitution. Surely, sedition as a way of governance is opposed to the Constitution and may itself be regarded as seditious. One hopes that a review of similar colonial laws (like the Officials Secrets Act) will find a place in all manifestoes.

Adjudicatory polices on bail and some procedures that allow long periods of pre-trial detention also need a close review; the present position where suspects are arrested and detained in jails for a long time only to be acquitted after a decade or more is simply unconstitutional because co-citizens have a fundamental right of access to justice, well recognised by the Constitution and the Supreme Court. Locking up suspects and throwing away the keys evades the constitutional discipline on power.

As a first step, we should reiterate the basic assumptions of a civilised criminal justice system that maintains a few self-evident truths: One, one is sent to jail as punishment and not for punishment; two, the difference between prosecution and persecution is civilisationally precious; the law is not a programme of revenge but a tableau of legal punishments for well-defined crimes; three, a custodial inmate, or a prisoner has all the rights (save freedom of movement) of a citizen, person and human being not to be taken away by degrading, cruel and inhumane punishment or treatment; four, presumption of guilt should never rule or replace the presumption of innocence; and five, no one should be allowed to forget that the accused, defendant, or the convict has a right to be, and to remain, fully human.

Second, the miscarriage of justice even under the rarest of rare situations has been highlighted by the Supreme Court as late as 2019. Ankush Shinde, Rajya Shinde, Raju Shinde, Ambadas Shinde, Bapu Shinde and Surya were acquitted and ordered to be released from Yerawada Central Prison by the Supreme Court on March 5 after having spent most of their jail time of 16 years on death row. Three courts - Nashik Sessions Court, Bombay High Court and Supreme Court - between June 2003 and April 2009 had found them guilty and sentenced them to death. On a reappraisal of the evidence, they were acquitted and an inquiry against the investigating officer was ordered, Anup Surendranath (IE, March 12), commenting on this "indescribable tragedy" and "a deep scar on our humanity", concluded that "such a grave error must trigger the moral honesty to accept that we are playing with fire by keeping the death penalty".

While the Supreme Court's auto-critique and self-correction must be applauded, we may note its rarity as well. Competitive populism at the hustings must flag off a concern, still, by mandating a constitutional amendment requiring that the Supreme Court shall sit as a full Court and with unanimity decide on the award of death penalty till the next Parliament's considered abolition. Already, 160 state members of the United Nations have done so, under the Optional Protocol to the International Covenant on Civil and Political Rights, 1989, and one hopes that the Indian exceptionalism knows some limits.

Third, election-eve manifestoes may not any longer turn a Nelson's eye at the widespread practice of torture in custodial institutions, euphemistically called "third degree methods". A poignant example was provided as recently as March 6, when Gufran Alam and Taslim Ansari were reportedly picked up by the police from Ramdiha village (Bihar), in connection with a motorcycle theft case. In the evening, they were found dead and their bodies returned the next day. The family discovered on the bodies marks of nailing on hands and legs. An inquiry has been ordered and an FIR has been made against unknown persons and probably some ad hoc compensation will be awarded.

Perhaps, the Supreme Court may expedite its directions to the executive, as urged by Ashwani Kumar in his anti-torture petition. But given 70 years of not so benign neglect of custodial and investigative torture, would it be unreasonable of the people to expect that there will be an all-round consensus towards priority legislative action against torture in the next Parliament?

This article first appeared in the print edition on March 21, 2019, under the title ‘Justice and the manifesto’. The writer is professor of law, University of Warwick,and former vice chancellor of Universities of South Gujarat and Delhi.