Khairpur Khairabad, Ghaziabad: Four courts, two stints in overcrowded jails and a lifetime seeking legal relief — Vijendra Singh, 66, has felt the full weight of the high case pendency that bogs down the Indian judiciary.
The offence Singh was arrested for in 1980 carried a minimum sentence of six months and a fine of Rs 1,000.
For nearly four decades, Singh desperately attempted to fight the charge that he sold adulterated milk. It was only on 31 July this year that the Supreme Court finally acquitted Singh of the charge — 39 years after the case was filed.
“I kept filing appeals with the hope that the court would see I was right,” says Singh, lying on a cot and wheezing after smoking too many beedis. “I’m just grateful the headache is gone, even if it’s after 40 years.”
Singh, who owns three bighas of land and farms to earn a living, is one among countless other examples of India’s poor who have fallen through the cracks in a legal system that struggles to deliver timely justice. A system buckling under the weight of high case pendency, a dearth of judges and the unregulated conduct of lawyers.
“Whatever the matter, 40 years is a really long time, according to me,” says Delhi-based criminal lawyer Ajay Verma. “Given that he has been on bail, running from court to court for 40 years can be very stressful. So many resources go to waste. He should have been compensated as he faced the stigma for all these 40 years.”
The case of ‘adulteration’
In 1980, a 25-year-old Singh was delivering milk to houses on Achhapalagarhi road, Ghaziabad, when food inspector R.C. Kansal confronted him and asked if he was a licensed seller.
“It wasn’t even my milk. I was delivering it for someone else but he didn’t ask and it was not recorded,” Singh says. “So the case was directly filed against me.”
Kansal drew a sample from the milk Singh was carrying, said to be in front of an independent witness as prescribed by law, and proceeded to get it checked by a laboratory.
A case was filed against him after the sample, which tested for buffalo milk, was found to be adulterated, albeit by a small margin. Around 20 days later, Singh was sent the test report.
Advocate Richa Kapoor, who was amicus in the case in Supreme Court, says the difference was negligible — a 0.7 per cent deviation in fat solids and 2.4 per cent in non-fat solids.
“Plus, the report didn’t account for the fact that different animals have different levels of fat, and can throw up different percentages,” she says. “So, a reading can seem like an anomaly, but if checked against the fat contents of another animal, it could be normal.”
It was on the basis of this report that the Hapur district court found Singh guilty in 1987, seven years after the case was filed, and ordered him to serve his sentence in the nearby Dasna jail.
The district court dismissed the fact that the food inspector’s witness, who was to make sure the sample was collected properly, denied having been a witness at all. Nor did it consider that Singh was sent the report 20 days, as opposed to 10 days, after the case was filed against him, making it more susceptible to incorrect readings.
“I spent around 20 days in jail after the district court sentenced me. I was young, I was scared,” Singh says. “I had sleepless nights, and the jail was just awful. I worried about how my wife and children, young at the time, would manage without me.”
Singh says he was wedged between the 150-200 people in a barrack roughly measuring 60 by 20 feet.
For meals, he says, were half-cooked vegetables that hadn’t even been peeled properly. “The food they serve isn’t fit for anyone. Even the poorest of the poor won’t eat it, but we were all forced because there was no other option.”
Singh appealed to the sessions court in Ghaziabad in 1988 but his conviction was upheld. He then approached the Allahabad High Court, where the case remained, collecting dust, for 26 years.
Singh is surprisingly forgiving of the wait. “The courts must have taken that long because there were more urgent cases or not enough judges. Must have been something like that.”
But in 2014, when the high court judgment finally arrived, it was not kind.
Singh, a 60-year-old then, was found guilty for the third time, and was sent back to jail. The Allahabad High Court judge, Justice Sudhir Agarwal, ruling on the basis of the previous two judgments, said non-cooperation of the witness deposing for the inspector was not sufficient to lead to a failure of prosecution. The court also argued that Singh, after having received the report, hadn’t exercised his right to have the sample retested.
“I didn’t know that it was within my rights to do that,” Singh says. “No one had told me.”
Between a second two-month stint in jail, a revision petition and the time it took for the Supreme Court to deliver its verdict in July, Singh had lost sight of the case, and the lawyer fighting on his behalf.
“I spent at least Rs 2.5 lakh on this case between bail, lawyer fees, and travel to and from courts. It’s a lot of money for a small-time farmer trying to raise a family,” Singh says, adding he had to take loans to keep afloat between trials.
His three sons, grown-up by the time Singh was sent to jail for the second time, pitched in by donating the money they earned from the sweet shop they run. His wife Bimla, he says, starved for four days, in part out of worry, but also with the hope to save household expenditure.
Over time, Singh says he has managed to pay back his loans and stabilise his income.
But his case is emblematic of the demography of undertrials in the country who struggle with finances while shuttling between courts.
According to the Daksh Foundation’s ‘Access to Justice’ survey for 2015-2016, 39 per cent of the respondents in criminal cases had an annual income less than Rs 1 lakh, and 53 per cent of the respondents had an annual income between Rs 1 lakh and Rs 3 lakh. As against this, it found that criminal litigants incurred costs of Rs 902 per day due to loss of pay.
Also read: Video about milk adulteration in India actually shows technique to produce white phenyl
Lawyer abandoned the case
When the case went to the Supreme Court, Singh was oblivious of the fact that his lawyer had abandoned the case, despite having been paid to fight it.
“The lawyer from Allahabad recommended the next lawyer when the case was transferred to Delhi,” says Sanjeev, Singh’s younger brother. “We’d never met him, let alone know how he would handle our case.”
As is so happens in a majority of criminal cases, 82 per cent according to Daksh Foundation, Singh’s lawyers were sourced through word of mouth, with no way to vet their skills.
It was the Supreme Court that noticed his lawyer’s absence in three orders, spanning between September 2015 and May 2017.
In May 2017, the court finally requested the Supreme Court Legal Services Committee to appoint an advocate from the panel to act as an amicus curiae and argue the matter on merits.
When Richa Kapoor and her team took over the case pro bono, they changed its face entirely.
“Here you had three judgments that called this man guilty, even as they overlooked the most basic provisions to establish that guilt,” Kapoor says. “In this case, the submissions were the same in all the courts but the reasoning given by the judges was found to be faulty by the Supreme Court.”
But even with the legal aid services firmly in place since 1995, not everyone is lucky enough to have a court-appointed judge. The Daksh Foundation’s survey found that only 2 per cent of criminal cases were fought by court-appointed lawyers in the years since.
With litigants unaware of their rights, it is usually the courts that finally direct appointment of a legal aid lawyer if the prosecutor or the defence lawyer does not show up for hearings. In the meantime, precious time and money is lost.
“We kept on paying the fee,” Sanjeev says. “Our lawyer in Allahabad assured us that the case was being fought by the person he recommended. But we didn’t have a real way of knowing.”
The lawyer’s alleged abandonment of Singh’s case raises several ethical concerns. In cases where the consequences of the judgment are critical and the income and legal literacy of the litigant are low, relying on a lawyer’s professionalism could be the only hope for a fair trial.
Advocate-on-record Aparna Bhat, who has been on the legal aid panel for a while now, however, says the system has been working quite well. “Legal aid in Supreme Court works quite well. There is a district judge who is the secretary of legal aid and there’s a Supreme Court judge who is in-charge,” she says. “They call for applications where they interview and appoint lawyers. Matters are assigned to them on rotation. Sometimes, when they feel that the matter requires special attention, they look at the experience etc.”
“I’ve been a part of Supreme Court legal aid for a very long time. It’s one of the better legal services authority and the quality is always maintained,” Bhat adds. “There are multiple levels of scrutiny.”
BCI rules for lawyers
For practising lawyers in India, the Bar Council of India (BCI) regulates and represents the bar. In this regard, the BCI has framed “rules on professional standards” for lawyers, under Section 49(1)(c) of the Advocates Act, 1961.
Rule 2 of the chapter titled “Rules on Advocate’s duty towards the client” says an advocate “should not ordinarily withdraw from serving a client once he has agreed to serve them”. It adds that the lawyer should withdraw “only if he has a sufficient cause and by giving reasonable and sufficient notice to the client”. Upon withdrawal, he is supposed to refund a part of the fee that has not accrued to the client.
None of this was allegedly done by the lawyer who had been engaged by Singh. It is also clear from the Supreme Court orders that the case might have reached a conclusion much earlier if the case had not remained pending for a period of almost two years as the lawyer failed to appear for several hearings.
Bar Council of Delhi chairman K.C. Mittal says the body can only take action in case of a complaint. “The bar council takes action if a complaint is made according to rules. There is a power for suo motu action when some grave act comes to our notice,” he says. “As far as your question is concerned, it depends on the facts of each case. As and when any such complaint is received, the matter will be heard in open proceedings by a full house and if there is a prima facie case made out, it will be sent to the disciplinary committee for action as per law.”
Process becomes the punishment
As for Singh, he claims to have learnt a lot from his legal struggles. “Earlier we had no clue what to do… Now we are a lot more aware,” Singh says. “We know where the court is or what summons mean.”
He is also grateful for Kapoor’s help, even though he has never met her. “I did know that there are lawyers who fight cases for free,” he says. “The world still has good people left.”
But when a ‘not guilty’ charge is handed down after a long wait of four decades, it is the process which becomes the punishment.
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Our judicial system is so flexible which has given birth to bribe