Is a Constitutional Coup d’etat Possible in India?

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

In the light of what was attempted by the then Prime Minister Indira Gandhi in June 1975 by declaration of Emergency and references to the same by contemporary politicians, it is pertinent to examine whether the Indian Constitution is strong enough to prevent the imposition of authoritarian and totalitarian rule on India, or whether there are loopholes in the Constitution which an unscrupulous person can perhaps exploit.

Our neighbour, Pakistan, has had a number of military led coup d’etat in which the Constitution has either been bypassed, amended or even scrapped and then reconstructed. Pakistan started with the same administrative, legislative and judicial framework as India and with the same political philosophy which provided for a democratic polity. India continued to strengthen its democratic roots and institutions, whereas Pakistan chose the path of military dictatorship interspersed with some form of civilian government from time to time. In fact, the ouster of Gen. Pervez Musharraf, the establishment of civilian government in which Asif Ali Zardari became the President and the peaceful succession of Nawaz Sharif as Prime Minister is a record in Pakistan because it is for the first time that transfer of power has occurred through a process of election. However, whenever Pakistan has had a military coup, the Supreme Court of that country has stoically refused to intervene judicially by quoting what it referred to as “the doctrine of necessity ”, That such a doctrine does not exist in Anglo Saxon Jurisprudence is conveniently forgotten.

In Germany, the weakness of the Weimar Republic and the post First World War collective humiliation of Germany and its people did create a yearning for strong government. Hitler and the Nazi Party came to power in 1933 or the basis of an election in which the party won only forty four percent of the votes, but claimed power as the single largest party. With great reluctance an increasingly senile President, Field Marshal Hindenburg, agreed to invite Hitler to be Chancellor, that is, Prime Minister. Because Hitler was desperate for absolute power he arranged for a magnificent opening of Parliament, the Reichstag, by the President in which he spared no effort to massage Hindenburg’s ego. Immediately thereafter on 5th March 1933, Hitler asked Parliament to enact the “Gesetz zur Behebung der Not von Volk und Reich”. Its English translation is “The Law For Removing The Distress of The People And the Reich”. In popular parlance it came to be known as “The Enabling Act”. This is an amazing piece of legislation in that Parliament handed over all its constitutional duties and powers to the Chancellor and the Reich Cabinet. Under this Act, laws were to be prepared by the Chancellor and could deviate from the Constitution. The budget, treaties with foreign powers, constitutional amendments were all to be within the exclusive jurisdiction of the Chancellor and cabinet. In other words, all legislative powers now passed to the Executive which, in practical terms, meant Hitler. Parliament virtually ceased to exist, though it was never formally abolished. On 9^th March 1933, the Laender, or States, were abolished. In May 1933, trade unions were abolished and in July 1933 the Nazi Party became the sole political party in Germany. The transition to a single party dictatorship was thus completed, ostensibly under a law enacted by Parliament and within the framework of the Constitution. Hitler thus used the Constitution to abolish the Constitution itself.

The question remains whether this frightening scenario can ever be repeated in India. The Constitution is very strong and one of immutable parts of the Constitution, the Preamble, defines India as a “Sovereign Socialist Secular Democratic Republic”. But is the Preamble really immutable? Prior to the Forty-second Amendment of the Constitution in 1976, the wording was “Sovereign Democratic Republic”. During the Emergency the words “Socialist Secular” were added. If the Preamble is a part of the basic features of the Constitution, how could it be amended? The fact that it was and that it has not been challenged raises doubts whether other features of the Constitution can similarly be amended.

Whereas in India we do not recognise the doctrine of necessity as part of our jurisprudence, the Supreme Court headed by Justice A.N. Ray came dangerously close to ruling along these lines during the Emergency. A full bench of the Supreme Court, which included Justice P.N. Bhagwati, ruled that during the Emergency not only did the fundamental rights stand suspended but even a citizen’s right to life itself was not guaranteed. Virtually this meant that if the State arbitrarily decreed the death of a citizen he had no legal remedy. This was the darkest hour in the history of our Supreme Court, redeemed only by the landmark dissenting opinion of Justice H.R. Khanna in which he totally disagreed with the majority that the fundamental rights could be suspended. Nevertheless the majority opinion of the Supreme Court was in favour of executive arbitrariness, which is the essence of totalitarian rule. Fortunately we have had High Courts such as Delhi High Court under the Chief Justiceship of Justice Tatachar who, in the Bhim Sen Sachar case, ruled that even if writ jurisdiction under Article 226 was suspended, the inherent powers of the High Court under section 482 Cr.P.C. were not and could not be suspended and, therefore, the High Court ordered the release of Bhim Sen Sachar, Kuldip Nayar and others. Put another way, the judiciary in India does have a very important role in ensuring that a constitutional coup d’etat does not occur.

The scheme of the Constitution provides for a separation of powers so that at no time can excessive power be concentrated in the hands of one wing of the State. But in a Westminster type of democracy, where the formation of government is dependent upon a majority in the House, there is a form of concentration of power in the Prime Minister and his Council of Ministers. Parliament is independent of the Executive, but in effect legislation depends on what the Prime Minister decides because with a majority in Parliament, by issue of a whip, the Prime Minister and the Council of Ministers can push any legislation through Parliament. Here the Legislature works at the beckoning of the Executive, provided that the Prime Minister is strong. If the Prime Minister is weak then legislation can come to a halt because government itself has to make compromises in order to survive. We thus have a piquant situation in which if the Prime Minister is strong Parliament becomes subservient and if he is weak government becomes ineffective and legislation cannot be pushed through Parliament. Both are highly tragic scenarios and bode no good for the country.

Does that mean that it is possible to make Parliament enact a law similar to the Enabling Act? Suppose a Prime Minister as strong as Indira Gandhi were to have Parliament enact such a law. To come on the statute book such a law would require the assent of the President who, under Article 74 of the Constitution, is bound to act in accordance with the advice of the Prime Minister and the Council of Ministers. A Bill to which the President refuses to give assent under Article 111 does not become law, unless the President returns the Bill and Parliament, after considering it, resubmits the Bill for assent. On this, the President cannot withhold assent, which would be as true of a normal Bill, a Money Bill or even the equivalent of the Enabling Act. What the President, however, can do is something which Giani Zail Singh chose to do with the Postal Bill. He neither gave his assent nor returned the Bill to Parliament, Instead he sat on the Bill and because there is no time limit given in Article 111 for the examination of a Bill by the President, he continued to delay it till the House was dissolved and the Bill lapsed. The President could do something similar to legislation of the Enabling Act type and this is one of the safeguards we have against constitutional dictatorship. Of course if the President is like Fakruddin Ali Ahmed we might end up with an Enabling Act being enacted and brought on the statute book.

Let us move to a hypothetical situation in which the President of India dissolves the House of the People. Of course in order to do so he would need the advice of the Prime Minister, but in case government loses the confidence of the House, then the President as per our conventions does not have to heed the advice of the Prime Minister. He may decide to continue with the House, invite an alternative party to form the government, or dissolve the House. Under these circumstances, because Parliament has to meet within six months of its last session under Article 85 of the Constitution, dissolution of the House has to be followed by election within the next six months. During this interregnum, the President is bound to call upon a person to be Prime Minister, albeit a caretaker Prime Minister, because the Constitution does not permit the imposition of President’s rule at the level of the Union. Supposing the President invites a person who is not a politician but is, say, the Chief of Army Staff or anyone else whom the President trusts and who would give the President the advice that he desires. Because Parliament would not be in session Article 123 would give the President the power to promulgate Ordinances which would have the effect of an Act. Article 368 provides for the amendment of the Constitution and the powers of Parliament in this behalf. The question is whether by Ordinance the President can exercise the power of Parliament to amend the Constitution. Articles 123 and 368 nowhere categorically state that the Constitution cannot be amended by an Ordinance and the legislative powers of the President do not extend to legislating for amendment of the Constitution. Perhaps the saving grace is that Article 368(2) states, “An amendment of this Constitution may be initiated only by introduction of a Bill for this purpose in either House of Parliament…” By any construction or interpretation this would rule out amendment by Ordinance, but because Article 123 is silent in this behalf, is this enough? An Ordinance requires that the President is satisfied that immediate action is necessary. Can a major security concern not call for immediate action, including amendment of, say, the Union List of the Seventh Schedule, empowering Parliament to legislate on police and law and order?

This is a lacuna which needs to be studied and, if the constitutional experts feel that there is a loophole here which needs to be plugged, let it be plugged immediately, lest a President unduly influenced by the example of Hitler decides to be adventurist and explore the possibilities of Article 123 being used to negate Parliament itself. I know that many will consider me alarmist for referring to something which is unlikely ever to happen, but we have had the case of Justice Ramaswamy against whom thirteen charges of corruption and misuse of office were found proved by a tribunal of the Supreme Court under Article 124, but who continued in office because through political manoeuvring he was able to persuade that the Congress Party abstain and the absolute majority needed to be mustered under Article 124 (4) for impeachment of a judge did not come through. The makers of the Constitution had never dreamt that a judge could ever do what Ramaswamy did and, therefore, let us not be complacent about the power of mischief of a renegade President, exercised under Article 123.

Of course the question still remains whether anyone would accept the validity of the equivalent of the Enabling Act. Would the courts rule such an Act to be constitutionally valid? Theoretically possible but in practice completely unlikely. Would the Civil Service acquiesce in the imposition of the dictatorship? Most probably yes, but during the Emergency we have had officers such as Y.N. Chaturvedi, D.M. Rewa and K.K. Chakraborty, D.M. Satna in Madhya Pradesh who refused to sanction the detention of Opposition Leaders under MISA because they ruled that they were not satisfied that there was any reason to do so. I myself wrote to all the editors of newspapers that so far as my departments were concerned censorship would not apply and they were free to give objective news coverage of all our activities. This means that there are elements in the Civil Service who would not carry out orders which are patently unconstitutional, though cloaked in the garb of a law. Still, I would hesitate to confidently and categorically state that the Executive as a whole would resist authoritarian rule.

This brings us to the real life situation of June 1975. Indira Gandhi, the Prime Minister, after a ruling of the Allahabad High Court that her election to Parliament was vitiated by electoral corrupt practices and, therefore, was set aside, should have resigned. In a democratic polity such a ruling has to be accepted with grace and the person ruled against must immediately demit office and step down. But if a person is imperious like Indira Gandhi what does that person do? He or she takes shelter under Article 352 of the Constitution which permits the President to proclaim a State of Emergency and thereafter virtually take over the Government of India. Indira Gandhi resorted to such a proclamation and under it assumed powers to rule absolutely. It is under such a proclamation that the fundamental rights were suspended by recourse to Articles 358 and 359. In this behalf I would like to recall certain words of Article 359, sub clause 1 of which reads , “Where a proclamation of Emergency is in operation, the President may by order declare that the right to move a court for enforcement of such of their rights conferred by Part VIII (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order” .

In 1975 this was interpreted as a suspension of fundamental rights because Article 359 was read with Article 358. Article 358 merely states that nothing in Article 19 will restrict the power of the State to make any law or to take any executive action which the State would, but for the provisions contained in that Part, be competent to make or to take. As soon as the word ‘law’ is used, even if the letter and spirit of Article 19 does not apply, the State does not acquire the power of arbitrariness and, therefore, Article 19 would continue to be the guiding factor subject to legal restrictions which would neutralise the enemies of the State. The purpose of Articles 352, 358 and 359 is to protect the security of India, especially by war or external aggression, but none of these Articles are aimed at Indian citizens at large, nor do they permit the Executive to exercise arbitrary powers against citizens who do not constitute any threat to India. Indira Gandhi’s interpretation of these Articles and the shameful surrender of the Supreme Court in this behalf will always stand out as a huge black mark against both of them in their attempt to extinguish democracy from India.

The issue before us, however, is whether there can be a constitutional coup d’etat. Our institutions over time have struck deep democratic roots and it is unlikely that the country would accept a subversion of the Constitution by constitutional authorities themselves. At the same time one cannot altogether rule out some mad man, fortunate enough to be elected and projected to power, from trying to be adventurous. Constitutional experts must advise on whether or not the Constitution itself needs to be strengthened so that there are no provisions in it which can be misused to destroy the Constitution. For this purpose we must review the checks and balances in the Constitution and if there is any imbalance, then it must be corrected. In this behalf let me recommend what Article 20(4) of the German Constitution states, “All Germans shall have the right to resist any person or persons seeking to abolish the constitutional order, should no other remedy be possible”. This has a constitutional appeal to the people not to accept anything which hurts the Constitution and gives them the right to individually or collectively resist it. Perhaps we need not go that far in India, but the time has come for us to collectively build into our Constitution safeguards which would prevent any would-be dictator, political adventurist, or buccaneer from attempting to take over the State.

The Justice System

Dr M N Buch, Dean, 

Centre for Governance and Political Studies

The justice system in India is passing through an extremely difficult period, for which there are a number of reasons. Let us start with the basics, that is, the separation of powers. In this a very special position is given to the Judiciary which makes it totally independent of the Executive. This is most praiseworthy, but it would be futile to deny that the system is under stress. As the Executive fails to perform its functions of governing, as people develop a feeling that they cannot expect fairness, impartiality and efficiency from the Executive, recourse to the courts has increased substantially and in matters in which the Executive should have taken a decision the Judiciary is being forced to intervene so that people receive their due, especially in terms of delivery of services. Because it is impossible to maintain an absolutely fine-tuned balance when one constituent of the State is forced to order another, equal constituent to act in a particular way or desist from acting in another way, there are bound to be complaints that the Judiciary is intervening in executive matters. Looked at from the citizens’ point of view this is just fine because he is interested in his legitimate work being done. That, however, is not how the Executive views it. There have also been instances of clashes between the Judiciary and the Legislature, but fortunately the stand-off has never reached the point of irreversible crisis. However, the Executive must begin to govern and its lowliest functionary must being to do his duty as mandated by law, rules or executive order. If that happens people will find it unnecessary go to the Judiciary for remedy and courts can then go back to their main function of deciding issues between adversaries.

One of the areas of conflict is in the appointment of judges of the Supreme Court and the High Courts. Article 124 of the Constitution states how a judge of the Supreme Court may be appointed. Article 217 provides for the appointment of High Court judges. The operative part of Article 124 (2) reads, “Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five : Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted”. Under Article 217 for the appointment of a judge of a High Court the President is the appointing authority and he is required to decide on such appointment in consultation with the Chief Justice of India, Governor of the State and, in the case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court concerned”. The Supreme Court has ruled that consultation with the Chief Justice of India establishes the primacy of the Chief Justice in determining who shall or shall not be appointed a judge of the Supreme Court or a High Court. The Supreme Court has further ordered that it is a collegium of judges, to be selected by the Chief Justice which will help the Chief Justice to determine what advice should be rendered to the President regarding the appointment of a judge.

I have serious objection to the concept of a collegium of judges which limits the power of the President to consult such judges of the Supreme Court and the High Courts as he deems necessary, which is what Article 124 (2) states. I do not think that the Supreme Court can thus limit the authority of the President regarding consultation which vests in him through the Constitution, though the Chief Justice of India would be free to set up a collegium to advise him on the recommendations to be made on consultation. The question still remains about how a conflict will be resolved where the collegium advises the Chief Justice in a particular way and the judges whom the President consults give some other advice. The third player would be the Council of Ministers, whom the President is bound to consult before taking a decision because under the Constitution he is bound by the advice of the Council. This would apply to the Governor of a State also who, when consulted by the President about appointment of a High Court judge, would naturally have to abide by the advice given to him by his Council. In other words, the present provisions of the Constitution and their interpretation by the Supreme Court do leave open the gates of disagreement and even conflict because whereas the President may not appoint a judge whom the Chief Justice of India and the collegium have found unfit, he need not appoint a person recommended by the Chief Justice. In fact many vacancies in the High Courts and the Supreme Court have not been filled on account of such conflict.

Government has been trying to set up a National Judicial Commission, to be headed by the Chief Justice of India and with adequate representation of the Supreme Court and High Courts. The Commission, as envisaged, would have the Law Minister, the Leader of the Opposition of one of the two Houses of Parliament and an eminent jurist nominated by the President as members. Justice J.S. Verma, Justice V.N. Khare, Justice V.R. Krishna Iyer and Justice M.N. Venkatachalliah are all opposed to the collegium system. Perhaps the issue could be resolved if the proposed National Judicial Commission could have a majority of judicial members, with the Chief Justice having a veto power and if the eminent jurist is nominated by the Chief Justice of India rather than the President. Suitable constitutional and legal arrangement could be made for the advice of the National Judicial Commission being final, with neither the President nor the Prime Minister being authorised to overrule it. Without bringing the Executive into the process for the appointment of judges of the Supreme Court and High Courts, such an arrangement would widen the scope of the required consultation with the Chief Justice and by bringing the government, the opposition and the Bar on board through an eminent jurist, the system of appointment of judges could be made more broad based and more credible.

An independent judiciary is a sine qua non of a true democracy. However, the only system of governance in which authority does not go hand in hand with accountability is a dictatorship of the type established by Hitler or Stalin. This means that the more independent the judiciary the more should it be accountable. Accountability which does not lead to penalty for failure to discharge accountability satisfactorily is no accountability. Under Article 227 courts and tribunals located within the jurisdiction of a High Court work under the superintendence of the High Court and in exercise of the power of superintendence the High Court can call the court or tribunal to account. Under Chapter 6 of Part VI of the Constitution the District and Sessions Courts and the Courts of Magistrates and Civil Judges are termed as subordinate courts and under Article 235 control over subordinate courts vests fully in the High Courts. The Constitution, therefore, provides for High Courts to decide how subordinate courts will function, to prescribe measures to ensure accountability and to punish for failure to render account, in terms of finance, efficiency, judicial competence, etc. But what about the High Courts and the Supreme Court? Their judicial pronouncements are open to appeal, revision and review, but administrative and personal conduct are not subject to the superintendence, supervision or control of any judicial authority. If a judge does little or no work, is not regular in attendance, delays judicial pronouncements, does not promote efficient judicial process in his own court or in subordinate courts the maximum that can happen is that under Article 222, on the advice of the Chief Justice of India, the President may transfer a judge from one High Court to another. If there is serious misconduct the procedure laid down in Article 124 (4), it would be applicable. For High Court judges Article 218 would apply, which means that a Supreme Court or High Court judge can only be removed through impeachment proceedings. There is no other penalty prescribed, but as the Justice Ramaswamy case has proved, if equations in Parliament are such that the necessary majority cannot be mustered, a judge found guilty of misconduct by a tribunal constituted under Article 124 (4 and (5) the judge may still escape removal. Carried one step further, if a judge is found guilty in a criminal trial, convicted and given a jail sentence, the impeachment proceedings can still fail and the convict would continue to be a judge of a High Court or the Supreme Court. This may happen in the case of a lady judge of the Punjab and Haryana High Court who has been accused of taking a bribe. Government, Parliament and the Supreme Court must realise that what could never be dreamt of when the Constitution was drafted, that is, a judge of a High Court or Supreme Court committing a criminal misdemeanor, can no longer be ignored and, therefore, we must have a constitutional provision whereby in such cases, while taking great care to ensure that the independence of the judiciary is not thereby compromised, such a judge can be made to demit office.

The major problem with our subordinate courts from District and Sessions Courts down to a Magistrate First Class cum Civil Judge Class Two is that cases drag on for years. Formerly civil litigations were considered to be very lengthy and time consuming, but now unfortunately even the criminal justice system has become subject to inordinate delay. I have perhaps quoted this case else where, but it bears repetition. In Mach 1983 shortly before I left the Service we trapped a lady who was trying to bribe a Deputy Secretary. He had already reported that such an attempt was being made and we arranged a trap, catching the lady red handed. My evidence was proforma, but necessary because the bribe was being offered for expeditious processing of a case in which the accused person’s application to me had been forwarded by me to the Deputy Secretary for examination. It took eleven years for my evidence to be recorded because every time I went for a hearing the accused, by absence, by subterfuge, by downright lies was able to obtain adjournments. The case was finally decided fifteen years after the event. What is the deterrent effect of such proceedings? How can witnesses be expected to remember an event which happened several years earlier and give testimony which could withstand cross examination, the purpose of which is to discredit the witness? This was a simple case with only three or four witnesses, but imagine what happens in a serious case in which a heinous offence has been committed and there are a large number of witnesses. No wonder we have such a miserable record of convictions.

I have been trying to understand why cases are delayed. I am not even attempting to look at civil cases because that will require several volumes. In a criminal trial the first delay occurs at the stage of investigation. The available clues may be either so few as to be almost nonexistent, witnesses may not be available, the forensic tests may be inconclusive, the investigating officer may be overburdened and can give only limited time to a particular offence, the accused and the witnesses or even the complainant may come to some compromise or there could be sheer inefficiency. This is where superior police officers have a major role to play to ensure that investigation is consistent, sustained and done with intelligence. Forensic and other support must be made available freely to the investigating team. The legal niceties of investigation must also be taken care of. The submission of the challan must be accompanied by full documentation so that the charge-sheet is complete in itself. This has to be followed up by proper representation of the prosecution in court, with the public prosecutor and his assistants applying due diligence to the case. If the public prosecutor is wide awake and proactive many of the delays in court can be avoided.

One reason for delay is in the serving of process. The court moharrir, who would generally be from the police, or the reader of the magistrate or judge, would be responsible for issue of process which, in criminal cases, would generally be served by the police. The arrangement is not satisfactory and most courts report that service of process is tardy and very often summons and warrants are just not served in collusion with the accused or the witnesses. Surely, with modern means of communications, with speed post, courier service, SMS texting and the internet the High Courts can work out a system whereby service of process becomes efficient and cannot be used as an excuse for delay in court proceedings. Our courts cannot function in the eighteenth century when the twenty-first century gives such exciting and innovative means of communication, or are they waiting for that happy day when science evolves a means of apparatus-less communication of thought process whereby what the judge thinks is communicated to the witness or accused by a para-psychic process? Coming to the trial proper, defence counsels are prone to pleading for adjournments, especially in those cases where the defence case is weak. Adjournments must be avoided because whereas an adjournment which is unavoidable is given, in most cases adjournment is denied. It is for learned counsel to adjust their cause list in such a way that appearance in one court cannot be offered as an excuse for nonappearance in another court. There is no reason for a judge to give an adjournment only for the sake of convenience of counsel. Every defence counsel is an officer of the court and it is his duty to assist the court in speedy disposal of a case. A counsel who acts otherwise fails in his duty and should be treated as such.

I have talked to a number of judges and magistrates about why they are not strict in the matter of adjournment. Under Article 21 of the Constitution every person, including one accused of a heinous offence, is still entitled to be tried by due process before being deprived of his life or personal liberty. Under Article 22 a person who is arrested and detained in custody has the right to be informed of the grounds for arrest, he has the right to consult and be defended by a legal practitioner and he cannot be detained in police custody beyond twenty-four hours of arrest without the orders of a magistrate. Under Article 39 (A) every citizen is entitled to equal justice. This is enforceable by the provisions of Articles 139 and 226 which confer writ jurisdiction on the Supreme Court and the High Courts. The Code of Criminal Procedure prescribes the process of trial in criminal cases. Chapters XVI and XIX of Cr.P.C. state how proceedings shall be conducted before a Magistrate and Chapter XVIII does the same for trial before a court of session. Under sections 231 and 233 Cr.P.C. an accused person has the right to cross examine the prosecution witnesses and to enter upon his own defence and adduce evidence in this behalf. Suppose an accused person deliberately delays the taking of evidence for the prosecution and indefinitely defers his own defence. Should the court indulge him and go on giving adjournments indefinitely, as happened in the bribery case to which I have earlier referred? Under Indian law a person is deemed to be innocent till proved guilty but there is no provision of law which says that an accused and his counsel can go on creating obstruction so that the trial is indefinitely delayed. In other words, an opportunity, a manifestly fair opportunity, must be given to the accused on trial to present his case, but when the accused tries to indefinitely delay the matter the court need not succumb. Under section 309 Cr.P.C. the provision is, “In every enquiry or trial the proceedings shall be held as expeditiously as possible and, in particular, when the examination of witnesses has once begun, the same shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded”. The proviso to this section states that any trial relating to an offence under section 376 and 376(D) of IPC (sexual offence amounting to rape) must be completed within a period of two months from the date of commencement of the examination of witnesses. The scheme of Cr.P.C. is very clear, the accused is entitled to a fair trial, but he is not thereby entitled to indefinite delay.

I have spoken to some judges about why they so readily give adjournments. Even the most conscientious of them state that if they do not give an adjournment there are many defence lawyers who indulge in making complaints against the judge and, by and large, the High Courts tend to be more sympathetic to defence counsel than to their own judges. Rather than face such complaints many judges take the easy way out and adjourn the case. One of the things which many judges have forgotten is that bail is also a form of custody in which instead of physically holding the accused the court permits enlargement on bail, whereby surety of appearance is substituted for physical custody. If the accused person deliberately delays proceedings by non appearance or such other tactics it would be legitimate for the court to hold the person in physical custody and to proceed with the case on a day-to-day basis. The Supreme Court and the High Courts must try and move the courts in this direction. Greater adoption of evidence through video conferencing and other means of electronic recording of evidence would also help in expediting cases.

There are some recent developments which are causing me worry. The first is that recent rape cases have certainly shaken the nation, with the Chief Justice of India going as far as to say that he would have personally liked to participate in the public protest. Perhaps he was ill advised to make this statement because in a way he thus pre judges even the specific case under mention, which means that no trial court in India would hereafter readily acquit a person in such matters unless no case at all is made out and this could lead to mistrial of rape cases and denial of justice to the accused persons. We have seen a whole spate of very speedy trials, some lasting only for ten days, in which the accused has been sentenced to death. Murder, whether or not accompanied by rape, is the ultimate crime because it irreversibly deprives a person of his life. The accused also faces possible judicial termination of his life at the end of the trial and, therefore, courts have to be extra careful to ensure that the accused has full and fair opportunity to represent his or her case and that there is no miscarriage of justice through haste. The Supreme Court and the High Courts for years have ruled that there should be extreme caution in awarding the death penalty and that, too, only in the rarest of rare cases. In sharp contrast in at least half a dozen cases in the last two or three months rapists have been awarded the death penalty after trials which smack of the summary. The judiciary cannot swing between two extremes because our politicians, civil servants and the so-called civil society are already doing this. Certainly the judiciary should enforce the law with great strictness and there should be no misplaced and pseudo philanthropic attitude towards crime. At the time same justice has to be done because two principles of Anglo Saxon Jurisprudence that we follow are :- (1) An accused is presumed to be innocent till proved guilty, with the burden of proof of guilt resting on the prosecution. (2) It is better that a hundred guilty people go free rather than that one innocent person be punished. It is for the judiciary to ensure that the balance is maintained, the innocent are protected and at the same time the guilty are brought to justice in the shortest possible time.