Death by Delay : The Clogged Legal System

The news that Justice Mohapatra probing the Kandmahal disturbances in Orissa has said up front that his enquiry would take a year or more even before he has started on the job is disturbing. Of course it is the norm in India for justice to crawl at the pace of a snail and for verdicts to be delivered at a glacial pace but in this instance; none can be blamed if they begin to suspect that here is a case where a kind of verdict has been delivered even before it has begun. For who knows what the political landscape will look like in a year’s time? General Elections would have been held by then and a new government would have come into power.

Is that what the Navin Patnaik government counting on? Hoping that the typical delays of Commissions of Enquiry coupled with a changed political climate would render the findings of the commission toothless? After all, the instances where enquiries have lingered are legion. The first Justice Nanavati Commission that probed the 1984 anti Sikh riots submitted its report in 2005 after 10 extensions. This was obviously years after the event when many key figures were dead or in oblivion. The Nanavati commission appointed to probe the Godhra train accident asked for 12 extensions and submitted its report six years after the accident, just weeks ago. The Liberhan commission has notched up 16 years of existence and earlier this month was given its 47th extension. There is no assurance that this would be the last.

Of course it is easy enough to exploit loopholes in the legal system, when in any case it is drowning and choking under inherent systemic flaws. The Supreme Court Registry reports that at the end of August 2008, close to 48,000 cases were awaiting a verdict from the highest court in the land. As on Jan 31, 2007, a total of 40,243 civil and criminal cases were pending there and according to statistics, the no. of such cases was around 29,000 in the start of the year 2006.

Further, as you go down the ladder, the situation gets more and more alarming. Available data shows that a total of 3,991,251 cases (3,287,037 civil cases and 704,214 criminal cases) were still pending in 21 high courts of the country till Dec 31, 2006. Pendency in subordinate courts had increased from 2.04 lakh in 1999 to 2.57 lakh in 2005. In 2006, the figure has slightly come down to 2.49 lakh. According to a rough and ready calculation, at the current speed, the lower courts, may take 124 years for clearing the cases, currently pending.

As legal education takes root in the country, it is only to be expected that litigation will slowly increase and it therefore important to ensure that alternate dispute resolution mechanisms be looked at and popularized. Some of course like the lok adalats and the consumer courts have gained some currency but their full potential is yet to be realized; a few others like arbitration have never been very popular except among corporate disputes. Many other traditional methods of arbitration and dispute resolution are outmoded and increasingly out of date. The typical reaction – to increase the number of courts, judges et al is only a partial solution as this route will only keep increasing the burden on the tax payer and the exchequer. Till that time, and till an alternate dispute resolution mechanism comes together, justice delayed will continue to be justice denied – whether it is in a politically motivated enquiry commission or the pettiest of cases in the small causes court.

India's tryst with abortion

When the Bombay High Court refused the plea of Niketa and Harish Mehta’s plea to be allowed to abort their unborn baby because of congenital defects in the fetus, they were of course merely stating the law. Perhaps the Mehtas were hoping that the court would interpret the law, which of course they did. But that has not solved the problem.

There are two aspects to abortion – moral and economic, and the Indian Medical Termination of Pregnancy Act of 1972 presumably attempts to address both and does so partially in both cases. Prior to 1972, abortion was illegal in the country and so if people needed one - and they often did - they went off to a quack and had one. Don’t forget that abortion was (and still is) used largely as a birth control measure in India to prevent unwanted pregnancies; mostly in situations where contraception was unavailable. So the MTP act recognized this reality and laid down a lakshman rekha within which pregnancies could be terminated. Pro-Life or not, this act had a role to play; in fact, pro-lifers should actually thank the government for this law – before the law was passed, in every abortion at a charlatan’s shack, both mother and child could have perished; after the act was passed, at least the mother was given a chance to live.

Having said this much, it is however imperative to recognize that the moral dimension of the argument is as important – is in fact sacred and sacrosanct. The sacredness and sanctity of life before and after birth is important to affirm and uphold. It is because this sacredness is neither affirmed nor preached nor practiced that we willfully and deliberately in many parts of the country abort - now that technology has made it possible – our female fetuses without batting an eyelid. After all, if a fetus is only a bunch of cells and has no spark of life in it; why keep it if it does not meet my tastes? One is free then to pick and choose as per one’s taste.

It is this same lack of sanctity for life that contributes to violence in society. Life is a continuum –it is not a before and after story. If life is sacred and valuable and worthy of the protection of the state, it is worthy of protection all the time and not just after birth. Those who are willing to kill before birth will have no compunctions in killing after birth too- so we abort female fetuses before birth and ill treat them and rape them after birth; the unfinished task of killing and maiming that remained unfinished is completed in the cradle and beyond. The Bombay High Court has done right by affirming the sanctity of life in the Mehta case; but the institutions of State need to be proclaiming the same sanctity of life every time a case is brought for trial where some one is trafficked – a human being is bought and sold like chattels, every time there is a rape offender brought up for trial; every time a murderer is tried for his offense- the sanctity of life is a holistic ; it originates before the cradle and ends only at the grave – it does not end even in extreme infirmity.

But as I said, there is an economic dimension to abortion too and that too needs recognition. Many parents simply do not have the economic means to bring up a child which will need prolonged medical or other social support – they just do not have the money. They may recognize the sacredness of life, they may shudder at the thought of aborting their unborn child; but given the dire circumstances of their life they really do not know what to do. In the Mehta case, one of the Bishops of the Catholic Church in Mumbai appealed to the Mehtas not to abort their child and offered an adoption possibility through church run child care institutions. This was a fine gesture but clearly in a country of India’s size and scale not an adequate enough response. Clearly the economic constraints of the situation are typically not taken care of and without providing safety nets through innovative schemes of involving insurance, social security and other support mechanisms that both government and the various arms of civil society can provide, clearly laying down the law and enforcing it mechanically is not enough.

The Bombay High Court has done well in interpreting the law the way it has; by reinforcing the sanctity of life. But clearly it would have done better had it also directed the state to apply its mind on the economic and emotional aspects of bringing up a child with multiple deformities which can drain the resources of many a brave heart