By Sujit Bhar
Chief Justice of India DY Chandrachud recently made a statement that hit a very critical nail on the head. The comment is about one of the most contentious issues of the justice system in India today: bail.
While speaking at the 11th annual conference of Berkeley Centre for Comparative Equality and Anti-Discrimination Law, hosted by National Law School of India University at Bangalore International Centre, the chief justice said that it was time that trial court judges stop playing it safe and decide on the issue of granting bail with a “sense of robust common sense”. He urged the lower court judges to not “play it safe” and be bold in deciding bail issues.
Justice Chandrachud elaborated on how each bail denied by the trial courts resulted in the defendant moving a higher court, ultimately reaching the Supreme Court, wasting the time of several courts in the process. These created several choke points that further added to the mountain of pendency that India suffers from.
The chief justice observed that trial court judges often simply play it safe by not granting bail on important criminal issues and this is often justified by just labelling or even re-labelling a crime as serious, without looking into the details of the case and where exactly the defendant fits into the larger picture.
To illustrate this, the chief justice gave a very interesting example of a narcotics haul from a truck. Explaining that it was necessary to go deeper into the issue to understand the possible role of the person in the case, he said that some critical questions needed to be answered: “When you have an accused in a narcotics case, you look at the finer points of the case: What was he doing? Was he a cleaner in the truck? Was he a driver in the truck? Was he the owner of the truck? Was he the person who was really the main person behind the trade which is taking place? Unless we separate the wheat from the chaff in criminal jurisprudence, it’s very unlikely that we’ll have just solutions,” he said. Finally, the chief justice said that trial court judges should fulfil their duties without fear of distrust, ensuring fair and timely justice.
The chief justice’s comments were of great importance and needs adhering to. However, considering the dismal situation of India’s rickety justice system, mostly snowed down by political pressure plus through no small degree of incompetence, courage for a trial court judge will probably be limited to his/her home.
In 2022, Additional Sessions Judge Ravi Kumar Diwakar had ordered a videography survey of the Gyanvapi complex. Soon he started getting “malicious calls and death threats from international numbers”. That was what the judge told Uttar Pradesh police.
Then there was the comment by former Chief Justice of India NV Ramana, who said the Central Bureau of Investigation (CBI) and other probe agencies “do not respond” when lower court judges complain about threats. His comments had come in the backdrop of a Jharkhand judge’s murder case. The then CJI went on to say that these agencies “do not help at all” when judges complain and that the “CBI has shown no change in its attitude”.
Threats over social media are common for a judge, and while the probe agencies simply don’t seem to care, the government has not come forward with a comprehensive plan for ensuring the security of these lower court judges either.
Till a judge enters the hallowed portals of a High Court or the Supreme Court, he is no more than a mere cog in the vast, lethargic wheel of what goes by “justice” in this country.
Lower court judges often travel on public transport, live in places where there is little or no security, are not paid enough to let them ensure their own security, and yet are expected to deliver at the highest level.
It is not just the growing pendency that is of concern for these lower court judges, but it is a more basic factor of feeling secure in their jobs, of being sure that the government and all law enforcing agencies are solidly behind their backs. It is clear that this is not the case.
Justice Chandrachud’s comments were in good faith and carries great foresight. But on the ground, it is unlikely that it will have much effect on the lethargic justice system of our country.