Two year term and lack of accountability

The fast track court scheme envisages the appointment, for a tenure of two years, of ad hoc Judges from among retired sessions or additional sessions Judges, members of the Bar, and judicial officers who would be promoted on an ad hoc basis. The selection of Judges will be made by the High Courts. The Centre has directed the State governments to fill the vacancies that might arise in the wake of ad hoc promotions through a special drive. They did not foresee the problem of lack of accountability among the presiding officers because of the offer of short term in office after retirement.
There are genuine fears that litigants wielding influence at the district level could make use of the scheme in their favour to press for the expeditious disposal of cases they are interested in, which sometimes would result in the miscarriage of justice. The scheme leaves no scope for infusing fresh and young judicial talent, which is available in plenty.
The fast track courts scheme made no systemic changes in the judicial system. No new code of procedure has been created. Retired judges, who have a past but no future, are dispensing justice at a speed that is truly mind-boggling. What is interesting is that these same gentlemen never performed at even half the speed when they were in their regular careers. There are two reasons for this. One- the judges were cautious during their regular careers since they were subject to disciplinary proceedings. There can be no disciplinary proceedings for a person who has already retired and is serving on a short end-of-career tenure. This combines with a complete absence of accountability of a judge under Indian legal system. Two- some judges are viewing this tenure appointment as a last opportunity to make some hay while the sun shines. So there was extra effort at quick wheeling-dealing and disposal of the maximum number of cases.
Is it justified to have a mechanical adherence to the principle that "hundreds of criminals may escape, but one single innocent must not be punished" may result in adopting the easy course of acquitting the accused. Though it is universally acceptable proposition that not one single innocent must be punished, the courts are expected to be sensitive and cautious to ensure that no criminal should also escape. The viability of criminal justice system is tested in such cases. If not crimes will be unabated.
Best Bakery: the Worst Example of Fast Track InjusticeThe National Human Rights Commission, in its Special Leave Petition (SLP) in the Supreme Court against the verdict of the Fast Track Court of H.U. Mahida acquitting all the 21 accused in the Best Bakery case, relating to the murder of 14 Muslims in the communal violence in Vadodara on March 1, 2002.
In its petition, the NHRC brought to the notice of the Supreme Court that even as one witness after the other, including the principal eyewitnesses, turned hostile, Judge Mahida made no effort to ascertain why this was happening. Quoting from records the NHRC raised strong objection that there was no effective cross examination of Zahira Sheik and Lal Mohammad, who contradicted their earlier written propositions. "Thus, instead of making efforts to strengthen the prosecution case, it appears that the steps to the contrary were being taken," the NHRC petition noted. The NHRC also pointed out how the trial was reduced to a farce by doing away with a detailed cross-examination of the investigating officer who took the witness stand on June 21. On the same day, the Additional Sessions Judge, Fast Track Court No.1, Vadodara, completed the examination and recording of the statements of all the 21 accused persons under Section 313 of the Criminal Procedure Code (CrPC) and proceeded to hear arguments in part. The Fast Track Court, true to its name, delivered its judgment on June 27. The trial had begun on February 20. Was the trial court totally helpless in the face of lack of evidence before it? Apparently, the trial court was under the impression that it had no powers and jurisdiction to find and establish that if the accused were not guilty, then who was the real offender, or to order compensation from the government to the sufferer. "The court of justice is not a court of justice in the real sense, but it is a court of evidence," Judge Mahida had remarked in his judgment. The NHRC did not agree. It said that the trial court is not rendered helpless either under Cr.P.C. or the Constitution, it had enormous powers to defer the trial, hold it in camera, direct the prosecution to do better, and examine the reasons behind volte-face of all witnesses in a row.
As NHRC rightly observed failure to order further investigation in the case in order to arrive at the truth and uphold the cause of justice had vitiated the whole trial. There are provisions in the CrPC that can be invoked in order to enable witnesses to depose before the court in a fair and fearless manner, the NHRC pointed out. "Where one witness after the other is seen by the court to be resiling from the earlier statement made, it was incumbent upon the prosecution to apply to the court to have the trial conducted in camera under Section 9 (6) of CrPC. Even if the prosecution did not do so, the court was not powerless... to suggest that the trial should be held in camera," the NHRC pointed out. Under Section 309 of the CrPC, the trial court can, for reasons to be recorded in writing, postpone the trial in order to ensure that a safe atmosphere is created to enable witnesses to depose fearlessly. It is also possible under Section 311 to recall and re-examine any person already examined, particularly if his or her evidence appears to it to be essential to the just decision of the case. The Fast Track Court did not exercise these powers and preferred acquit them all.
On August 8, the Supreme Court Bench appeared to have agreed broadly with the thrust of the NHRC's petition. It directed the Centre and the Gujarat government to submit within two weeks whether any scheme had been formulated to revamp the criminal justice system.
Why not the system is strengthened?Unless systematic changes are brought in to eradicate delay, the poor litigants will futher suffer. There is no bar even under the present system to expedite the hearing of urgent cases by evolving formal court procedures rather than leaving it to chance or fast track courts. In the existing process decisions on applications for early hearing are routinely disposed of without considering the implications of any delay for poor litigants. It is highly probable that in the absence of a rational and sensible procedure to facilitate the expeditious disposal of cases, the fast track courts would make no difference to the huge backlog of cases.