A foot-long reform agenda

The courts see and hear falsehoods uttered before them daily, as witnesses are coerced or tampered with. Yet these acts of perversion of the process go unpunished. A judge sentencing anyone to imprisonment for perjury is virtually unheard of.

The law clearly allows for stiff sentences for acts of perjury. An entire chapter (XI) of the Indian Penal Code(Sections 191-229) minutely details crimes and penalties concerning “False Evidence and Offences against Public Justice”. Section 191 stipulates that “Whoever, being legally bound by an oath or by an express provision of law to state the truth…makes any statement which is false, and which either he knows to be false or does not believe to be true, is said to give false evidence”.

Section 192 similarly deals with fabrication of evidence in records and documents. Section 193 lays down that uttering or fabricating false evidence during a judicial proceeding “shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.

Why does the judiciary largely ignore the lies uttered by witnesses in court and the false documents presented in court? One of the rationalisations by the legal fraternity is that strict punishment of perjurers may lead to witnesses becoming even more reluctant to appear in court. Another excuse is that judgesdo occasionally pass contempt-of-court sentences to discipline perjurers.

These excuses are inadequate. It seems that the judiciary has through long inertia come to accept perjury as part of the legal system much as the public has accepted monetary corruption and nepotism as a part of the system. Perjury is corruption and upright judges must begin to fight it as boldly as other forms of corruption.

Sections 217 to 223 of the Indian Penal Code specifically deal with crimes by public servants to pervert or obstruct justice by omission or commission. These sections have been deliberately subverted by politicians and civil servants who have provided large escape-hatches for themselves by bringing in legal procedures which stipulate that certain classes of public servants can only be prosecuted after getting the permission of the state.

Section 197 of the Criminal Procedure Code specifies that “no court shall take cognisance of such offences except with the previous sanction” of central or stategovernments. “Such offences” refers to crimes allegedly committed by public servants in the discharge of their official duties. Section 197 effectively negates Sections 217 to 223 and other sections of the Indian Penal Code as not surprisingly governments routinely refuse to sanction prosecution of their officials.

Equality before the law and equal protection of the law are the bedrock of democracy. They are the touchstones by which citizens measure and retain their faith and loyalty to democracy, buttressed by the belief that justice will be rendered without fear or favour. These touchstones are more important for democratic functioning than elections every few years.

It is incumbent on a vigilant Supreme Court to question the entire concept of exceptional legal lacunae for public servants which allow them to get away just because the state can — and often does — withhold permission to prosecute erring police officers, bureaucrats and ministers.

Another, more recent, legal trend which requiresself-correction by the judiciary is that of public interest litigations (PILs). Sections of the judiciary are being swayed by mass appeal and away from their primary duty of administering even-handed and speedy justice to each defendant and litigant who comes before them. PILs are often foisted on the courts by relatively wealthy social busybodies and publicity seekers who divert the precious time and mental resources of senior judges from their basic task of providing justice to harried and humble individuals.

Judicial pronouncements on public issues do not always help in solving complicated social and environmental problems. To take just one example: the Supreme Court order of July 8, 1996, directing the relocation or closure of 168 hazardous and noxious factories to save Delhi from growing pollution, resulted in 50,000 workers being thrown out of their jobs. Two years later, most of them remain unemployed and without compensation, despite judicial directions to factory owners to recompense their formeremployees. Thousands of ruined families have been reduced to semi-starvation.

Desperate teenage male children of some of these workers have taken to burglary and robbery. The recent alarming rise in petty crime in Delhi can be partly accounted for by the Court order which led to throwing thousands of families on the streets of the capital. Some of the workers have found employment at minimal wages in hazardous, slum-yard metal foundries and units for recycling plastic waste, adding to Delhi’s pollution problems. Judges ought to be more cautious about striding into labyrinthine alleyways which even environmental and social angels fear to tread.

The Supreme Court and high courts should be wary of political petitioners who are out to involve them in messy political disputes such as which factions constitute a true majority in a legislature or whether a state government has been rightly dismissed. It is for politicians to clear their own garbage. Judges must not allow themselves to be used as municipalsweepers for other people’s rubbish heaps.

The writer was with Amnesty International’s Research Department in London.