January 04, 2013
Effectiveness of India's 'Fast-Track' Courts Questioned
India has set up a so-called "fast-track" court to try the men accused of the gang-rape and murder of a 23-year-old girl in New Delhi whose case has prompted nationwide protests and public demands for swifter justice for sexual assault victims. The fast-track court is one of five being set up in New Delhi, ominously known by some as the "rape capital of India." The courts will hear cases of sexual assault and other crimes against women in an effort to bypass India's overwhelmed regular court system, where cases often take many years to be resolved.
Colin Gonsalves, a senior advocate of the Supreme Court of India and the director of the New Delhi-based Human Rights Law Network, said he does not think the fast-track courts are an effective way to fix the problem.
Q: Just how back-logged and overburdened is the Indian judicial system?
"India has roughly 12 judges per million in the population, as compared to America, which has 50 or 55 judges per million. And it is generally estimated that for large, developing countries, you need roughly 60 judges per million, which means India has one-fifth the number of judges it ought to have.
"So if you have one-fifth the number of judges, a case that would have taken one year will take five years. Because a judge has on his schedule every day five times the number cases that he ought to have, the judges are adjourning four-fifths of all the cases and dealing only with one-fifth."
Q: Before the latest case that prompted a public outcry, how was the government dealing with this problem?
"Instead of tackling this issue, the government said it would create certain fast-track courts to deal with this problem of arrears. This was started sometime in 2007. And even though it didn't address the issue fundamentally - it was a piecemeal approach, an ad hoc, knee-jerk reaction - it was welcomed because at least it meant the appointment of judges.
"By 2010 or 2011, the government back-tracked and said that it's too expensive, we don't want to spend all this money on fast-track courts, and began withdrawing funding and the fast-track courts were wound up in many states. Overall, the central government and state governments have decided to disband the fast-track courts because they are too expensive - it involves money which they don't want to spend on the judiciary."
Q: What is the performance of these fast-track courts up until this point?
"People who have worked in the fast-track courts are generally very upset by the declining standards of these courts and have defined it as 'fast-track injustice.' These courts are given unrealistic targets of cases to finish. They have been told they ought not get involved in too much technicality, and that broadly if they get a feeling that a person is guilty, then declare him guilty and if he is innocent, then declare him innocent. But that's not how the criminal justice system works. It requires care and attention. Decisions are not made on the basis of hunches and guess work, which is what the fast-track courts turned out to be. Judges (were) cutting down on evidence, not allowing full cross-examinations, proceeding in the absence of lawyers in many cases. It was in many respects not a very satisfactory system for delivering justice."
Q: Is there any indication the latest attempt at establishing fast-track courts for rape victims will be any more successful than these previous efforts?
"I don't think so. Because you see the approach is not overall, the approach is not fundamental. You see, the approach is only in Delhi, where they immediately go and start some fast-track courts and make a great show of things. It's part of our Indian government's reaction to crises by offering palliatives. You know, not really addressing the issue, but hoping the movement will die down by this pretense that they are doing something about it. It's nothing more than that."
Q: In your estimation, what is the way to fix this in a more comprehensive manner?
"It's very simple. The chief justice has set out what budget is required. We need the money. It's simple, we have a democratic country, we have laws, you have to implement those laws. We have to increase the number of judges five times, and make the courts able to function, give them staff and so on, and spend money on the judiciary. The arrears will be wiped out overnight. I'm absolutely sure with all my experience as a lawyer, I've practiced 25 years and 12 years in the supreme court, that if you have even three times the judges that we have today, the arrears would come down dramatically.
"But there's one more thing. [There are now] fast-track courts for rape cases, right? But what about fast-track courts for domestic violence cases? What about fast-track courts for matrimonial cases, where women are in divorce proceedings and maintenance and custody proceedings for their children for 10 years? What about tribal displacement cases? What about slum demolition cases? What about labor cases? When you make the pretense of fast-tracking one type of case, you are taking away the resources of the system generally, and what will happen to all the other cases of all the other poor people in society? So when the prime minister said, 'I feel your pain,' I don't believe he actually felt that pain. And we don't want him to feel our pain, we want him to empty his pockets - that would be the best gesture."