JUSTICE IS DUE – A Call For Judicial Reforms (#AtulSubhash)
Introduction
I woke up with a call on my mobile from my friend and as I picked it up, still in a sleepy mood, he said “Rajeeva, got to know? Atul committed suicide yesterday night”. For a moment, I could not believe what I heard and as if to affirm my disbelief I asked “You mean to say he attempted?” “No. He’s no more” came the answer.
By now this news is well, all over the social media, mainstream media, being discussed, debated. Some accounts belittled, even abused Atul for taking out his own life. There have been various demands from netizens ranging from calls to punish those who have been accused in his dying note – his wife and her relatives, the Principal Family Court Judge, Jaunpur who laughed at his situation when his wife asked him to commint suicide in open court. Some fringe radicals even were seen urging him to commit crime in harming the false accuser instead of committing suicide.
Time and again we come through cases where fathers commit suicide where they get separated from their children (Remember Syed Maqdoom’s suicide video?[1]) let’s admit it. The issue is not just about mothers not letting their children have some quality time with their fathers, but the active participation of the courts in institutionalized denial. Nor will #AtulSubhash be the last to face estrangement of his child as the situation is going to worsen before it starts to improve. Though the FIR has now been filed against all the names in Atul’s suicide note, with the exception of the judge, we know well they will likely get bail, and in a few years mostly acquitted for “want of evidence” mostly as a repeat of Syed Maqdoom’s case and others.
The deeper malaise
Atul’s suicide note brings out a plethora of problems in our judicial system, which is not just limited to Atul’s case. About 140000 cases of 498a are registered every year and are pretty high in some states like UP, Rajasthan & West Bengal.
Some inherent problems seen perusing Atul’s suicide note:
Issue of filing false cases
False cases ruining the lives of men and his family are not limited to marital discords. People who do not enter the wedlock and prefer a live-in relationship thinking at least their families cannot be implicated in a 498a case – they get rape cases filed against them instead. India should probably the only country in the world where refusal to marry after having consensual sex is considered rape. Earlier it was filed under IPC375 (Rape). BNS has a separate section 69 explicitly criminalizing non-marriage even after “consensual” sex. Forced marriages due to threat of rape is quietly, but quickly becoming the new norm. What does society expect in such marriages, where the man was forced to marry despite the relationship having broken down? Does society or the legal system think that once they marry they will have a “Happy married life” ?
Then there is issue of POSH (Prevention of sexual harassment at workplace). It’s not long ago that VP of Genpact Swaroop committed suicide[2]. One unsubstantiated allegation at office is sufficient to destroy the entire career of a man (and his life too in some cases).
Even young boys are not spared from this menace. A 14 year old boy Manav, jumped from 11th floor after allegations of sexual harassment on instagram.[3] Many times, we see minor or just major boys and girls who explore sex without being aware of its ramifications. In such cases the boy is arrested under POCSO even if the girl is older[4]. With the amendment of the juvenile justice act, the minor boy is tried as an adult and might get lodged in adult prisons too! What are the chances this minor boy might come out of an adult prison after serving his sentence as a hardcore criminal, considering his contacts in adult prisons.
The issue of filing false cases is not even limited to personal relationships or people you might have an acquaintance with. A completely random woman can accuse a man of sexual misconduct and act with impunity as witnessed in Sarvajit’s case[5] or a molestation case as in Rohtak Sisters case[6]. In the latter case, the young men who intended to join the army were debarred from sitting for the written exam and when they finally got acquitted, they had crossed the age bar !
The process itself is the harassment
In particular, litigations related to marital cases can have what I wish to term “multi-tiered litigation”. Multiple cases can be filed and they are tried in different courts. E.g criminal cases in JMFC courts, civil disputes related to divorce/custody in family courts and in many cities domestic violence under traffic courts (Did I say traffic courts for domestic violence cases? Its true !!! ). Add the complications if these cases are in various cities. One at the place where either the man or the woman belong to, one where they got married and one at the place they lived after marriage. All these cases can have different dates. In criminal cases, one date of non-appearance of a man can lead to issuance of NBW (Non-bailable warrant) while the woman (the accuser) need not attend the court dates for years. Keeping in mind that the man has to mandatorily attend the criminal cases, he needs to apply for leave at the workplace for every date. (40 dates in Atul’s case while he was entitled to 23 leaves in his company !). Not to forget additional time he needs to travel to a different state. Ok. One reaches the court. What happens on that date? You get a new date and this whole cycle has to be repeated every time !! Adjournments have become the norm in our courts, popularly called as #TareeqPeTareeq in the legal fraternity.
What about visitation?
United Nations Convention on the Rights of the Child, which India has ratified on 11.12.1992, i.e., Article 7 of UNCRC: “the right to know and be cared for by their parents”.According to article 8,9,10 of the UNCRC 1989 every child has the right to maintain uninterrupted direct and personal relation & contact with both the parents even if the parents are separated. I do not understand how our country/judicial system could act so irresponsibly on this matter considering India having ratified the right of a child to maintain contact with its separated parent. Very many cases galore where parents separated when the child was still an infant, by the time a father secures access to “Visit” his own child, the innocent child does not even recognize its father. Some children have addressed their fathers as “Uncle”. Much worse, some mothers take undue advantage to vilify their father and as a consequence say “I hate you” when they see their father for the first time in years. We in SIFF come across many such fathers who have bitterly cried the night or lost sleep when these kinds of incidents happened in their lives. There is little psychologists can do in such cases. #AtulSubhash just happened to be one of them.
The issue of “settlement”
District courts: 43 million out of a total of 49 million cases
Subordinate courts: 44 million cases, a 38% increase from 2019
High courts: 6.1 million cases in 2023
Supreme Court: 83,000 cases pending
[7]
Considering the enormous number of cases that are in pending state, the courts came up with mediation centres or officially alternative dispute resolution (ADR) sometime in 2005. Now depending on the mutual agreement of the parties, they could “settle” the matter in court-annexed mediation Centre. The website of mediation centres list down the supposedly “benefits” to the litigants and the lawyers, reduce the burden of cases for courts.
While this mechanism has come in handy for litigants to get out of their cases, this mechanism can be effectively used by unscrupulous litigants to wreak havoc on the other party. Now an alimony that might get awarded though due process in courts, which might take years can be negotiated at will, while there is no upper limit on what a litigant “wants” to close the cases, nor does judiciary take any accountability for the extravagant demands asked by a litigant in the mediation process. The mediation centres have turned into institutionalized extortion centres and it’s not limited to marital disputes alone. Landlord-tenant, illegal occupation of empty land, descendants filing a claim on land after the sale of ancestral land, cheque bounces all cases now in one way or the other end up in mediation centres and the matter is “settled”.
This is now a huge problem. Not only can we NOT filter out genuine cases from the false cases, the statistics collected at NCRB includes mediation assisted settled cases as “acquitted”. This system now can not only be misused, but can be rampantly abused too. The modus-operandi is always to file a false case, extort money as settlement in the mediation center attached to the court and repeat the same cycle in other courts and cities. The accused, fearing their reputation tarnished or to avoid a complicated legal battle simply give in to extortion. Since the judicial system is lethargic and completely devoid of technological infrastructure, it can take ages to detect such a pattern and only comes out rare in catching such culprits.[8]
In the particular case of marital discord, a wife can literally file a plethora of cases against the husband and his family, in the cities she wishes to and use the mediation centres to extort at will, while she has literally nothing to lose – while not forgetting the use of children as tools for blackmail. In other cases, wait for the court to grant an interim maintenance and depending on the quantum ordered, raise the amount for alimony/settlement. In the zealous race to push litigants to go for a mediation and settle up the matter and get the pending cases out of their bucket, judges coerce, issue a veiled threat, or sometimes openly threaten dire consequences. And this is exactly what we see in Atul’s case. Pasting some snippets from his suicide note (Highlight is my emphasis):
Does the judiciary really not care?
At this point in time, it can be safely said that the judiciary, especially high courts and supreme courts, are simply not in a mood to give any relief to men. The parties who approached them to get some kind of relief or protection from such harassment in courts have either been punished with a fine or simply dismissed. No wonder public trended #JudiciaryHatesMen after Atul’s news came out.
The present situation reminds me of senior advocate Dushyant Dave arguing in favor of the National Judicial Appointments Commission (NJAC) lamented and below are his words.
“My Lords should wear a burqa and roam in the court corridors to hear the way lawyers talk about the judges of this court. You will get first-hand account of the rotting justice delivery system. The kind of lawyers who are being appointed as judges is a disgrace,”
That said, it is also the SC that stepped in, lamenting of misuse of provisions, the latest ironically yesterday[9]. However, in spite of these landmark judgments, the ground realities have not changed a bit for the better.While the courts often give sweeping directions – ones that get bold headlines, ones that raise hope among citizens – they do not as often follow these up to see whether the Executive has carried them out. If the officials concerned had not suffered in the least for not obeying the landmark judgment the Supreme Court itself delivered 20 years earlier, why would they follow the directives now? These directives have thus far remained on paper.
The way forward; What should common citizens do?
Of the four pillars in our democracy, there is some kind of accountability and cleanup in three of them. Journalists get demoted, politicians are elected out and bureaucracy face suspensions, raids, transfers to posts of lesser importance etc. However, the fourth pillar, the judiciary, has the least accountability. One reason is the tougher process to file complaints against judges which require the explicit permission of CJ’s. It’s compounded by the fact that the collegium system has appointed one of “their own” and complaints even if taken up could land up to a judge who is an acquaintance of the complained. While the present govt proposed NJAC bill, the govt chickened out after SC declared it unconstitutional. The citizens should pressurize the parliament to bring in some kind of judicial accountability and should be put in action.
Use technology as a measure to bring relief
#DigitalIndia is a well marketed campaign, while the courts today are in a state which cannot work without paper. Govt should infuse funds to make judiciary tech savvy. There should be no need for litigants to come every date physically to the courts. Courts should allow video conferencing as the default option and in exceptional cases like say cross, or to take an oath make physical appearance mandatory. That way, courts will be less crowded. The proceedings and filing applications, interim and responses, defense could be just uploaded to a digital platform. The history of the litigations a person was involved in should be captured in a database and strictly used to determine the conduct of a litigant.
It has to be noted that having cutting edge tech alone is not going to solve the problem without fixing process issues. What is the point of investing in tech if courts still give #TareeqPeTareeq? Adjournments should be limited to say three per litigant per case. Have a single-window court system for all cases between two litigants. Shared parenting should be the default norm and should be the first to get executed on ground, ensuring the relationship of the child is not broken with the non-custodial parent.
Most importantly, separate the seeds from chaff in the case filing stage. The courts need to put an end to taking up cases bereft of any evidence. If courts are getting burdened with pending cases, it is mostly due to the fearlessness of those who misuse and abuse the system, knowing fully well that courts do take up perjury cases rarely and the ease in which women can file such cases on vague allegations. If the courts are serious enough to tackle this issue, they should crack down on those who wantonly misused the provisions, lied to the court on oath of perjury. Action should be taken against lawyers who regularly use such tactics by, say , cancelling their bar license?
Finally on the issue of mediation centres and the issue of settlement. Mediation centres should discourage exorbitant demands and factor in elements like duration of the marriage, wife’s contribution to the marriage etc to see if the “settlement” demand is reasonable. In short, people approach courts to get justice. Today, the irony is that most cases ending up in settlement through mediation centres is seen as a “successful” model and not as inefficiency of the judicial system.
It is hoped that sacrifice of #AtulSubhash does not go waste and we as a society start to reform our institutions in a civilized manner.
The author is a techie by profession and tweets @rajeevmysore
[1] https://bangaloremirror.indiatimes.com/bangalore/others/separated-from-son-techie-hangs-himself/articleshow/22174260.cms [2] https://www.indiatoday.in/india/story/top-genpact-executive-commits-suicide-in-noida-over-accusations-of-sexual-harassment-1413409-2018-12-20 [3] https://www.freepressjournal.in/india/my-brother-is-not-a-rapist-sibling-of-gurugram-teen-who-committed-suicide-writes-emotional-note-says-not-related-to-bois-locker-room [4] https://zeenews.india.com/india/12-year-old-boy-booked-under-pocso-act-for-raping-impregnating-17-year-old-girl-in-tamil-nadu-2456161.html [5] https://www.indiatoday.in/india/story/complaint-doubtful-delhi-court-acquits-sarvjeet-singh-in-2015-sexual-harassment-case-1613088-2019-10-26 [6] http://www.ndtv.com/india-news/court-ends-case-against-3-rohtak-molesters-girls-may-appeal-order-1666224 [7] Image and data credits: https://doi.org/10.1080/21681376.2024.2425328 [8] https://www.indiatoday.in/cities/jaipur/story/woman-arrested-in-jaipur-for-filing-false-rape-complaint-for-extrotion-2541220-2024-05-20 [9] https://www.barandbench.com/news/section-498a-being-misused-force-husband-comply-wifes-unreasonable-demands-supreme-court