//In India's Creaky Court System, Some Wait Decades for Justice

In India's Creaky Court System, Some Wait Decades for Justice

82-Year-Old Man Still Fighting Charges Dating to 1963

Washington Post Foreign Service

Sunday, March 2, 2003; Page A27

NEW DELHI — As criminal offenses go, the charge that landed Kedar Nath Gupta in a dingy municipal courtroom last month was a minor one, involving allegations that Gupta and three accomplices had conspired to evade customs duties on thousands of imported watches and other items.

There was, however, a complication. The case dates to 1963.

That was when Gupta, then 42, was arrested on suspicion of violating the Customs Act. In the four decades since, his three co-defendants have all died, along with his original lawyer and, presumably, many if not most of the 88 witnesses named in the original case. Gupta, who says he is innocent, is now 82 and suffered a minor stroke last year.

But the plodding elephant of Indian justice apparently knows no time limits.

"There should be rigorous imprisonment," Satish Aggarwala, the prosecutor in the case, said in an interview before last month's court proceeding. "Why shouldn't he be sent to jail? He was involved in an economic offense."

Such is the pace of justice in India, where the legal needs of more than a billion people are bumping against the limitations of a chaotic, overburdened court system that is at once a proud and decrepit legacy of British rule. The limitations are most apparent in an epic backlog of cases — 23.5 million at last count, according to the South Asia Human Rights Documentation Center — that has slowed the pace of judicial proceedings to a crawl.

The main reason for the backlog, Indian and foreign experts agree, is a mismatch of resources and needs. According to the World Bank and other sources, India has just 13 judges for every 1 million people, compared with between 41 and 107 judges per million in Australia, Britain, Canada and the United States.

Other problems include "under-equipped courts . . . cumbersome court procedures, perverse incentives to prolong litigation and a vast body of nontransparent laws . . . many of them archaic and serving no purpose," according to a 2000 World Bank study.

Even routine commercial matters can drag on for years. A survey cited in the study, for example, found that 59 percent of corporate liquidation proceedings in state high courts took more than 10 years; 32 percent took more than 20 years. Some civil and criminal cases have been pending in Indian courts since the early 1950s.

The inefficiencies are particularly glaring in the realm of criminal justice. Because of judicial delays, 73 percent of the country's jail population is made up of people on trial or awaiting trial, according to a report last year by India's Parliamentary Standing Committee on Home Affairs. Yet the rate of conviction for serious crimes is less than 7 percent — which means that 93 percent of those arrested on serious charges ultimately go free.

As a result, said V.S. Malimath, a former chief justice in the state of Kerala who chairs a national commission charged with streamlining criminal justice procedures, "crime is becoming a profitable business for many people, and their fear of law enforcement is diminishing."

Among other remedies, Malimath said, the commission is considering a proposal to introduce plea bargaining, an alien concept in Indian courts that would help cut down on the number of trials. The panel is due to present its findings at the end of the month.

It would hardly be the first such attempt to address the problem of "judicial arrears." In 1999, for example, Parliament passed a civil procedure act that sought to reduce court workloads by limiting opportunities for appeal and providing for mandatory arbitration in certain types of cases. State governments have set up hundreds of special "fast-track" courts to work through the backlog of criminal cases. The status of cases pending before some higher-level courts can now be tracked on the Internet.

"If you go into the history of backlog, it has been there since the time of Greek and Roman empires," said M. Jagannatha Rao, a former Supreme Court justice who chairs India's law commission. "Every country is bothered about the increases in litigation. It's not peculiar to India."

But the challenge is particularly acute in India because of the decentralized nature of the court system, which is largely administered by the country's 28 states. Many states have serious budget problems and have resisted federal directives to hire more judges and upgrade their facilities, legal experts say.

One consequence is monumental delay.

As described in old court documents, the case that landed Gupta in court last month began when customs agents uncovered a smuggling scheme involving the Polish Embassy here. It seems that certain individuals — whether they were employed by the embassy is unclear — were using the embassy's postal address to evade customs duties on the import of consumer goods such as jewelry and watches. (Embassies are exempt from such levies.)

Eventually, the agents tracked one shipment to an apartment, where, on April 20, 1963, they arrested Gupta and two other men, according to the government's version of events. A fourth man, described by prosecutors as "the brain behind the whole conspiracy," was arrested several months later in Bombay.

Gupta declined to speak to a reporter. But his attorney, Ajay Digpaul, disputed the government's account. He said that Gupta was not in the apartment at the time of the raid and that the agents' statements to that effect were "a fabrication." In fact, Digpaul said, Gupta was not arrested until several days after the raid, and then only on the basis of additional false statements by the "co-accused."

In any event, Gupta was freed the same day on bail and resumed his career as a small-time trader of electronics and other goods. The case moved slowly. It wasn't until 1972 that Gupta and the other men were formally charged. Then, in 1982, a judge dismissed charges against two of Gupta's co-defendants, citing insufficient evidence.

A year later, another judge dismissed the charges against Gupta, and he and his family assumed they had heard the last of the matter, according to Digpaul. But though the case was then 20 years old, the Customs Department was unwilling to let the matter drop, and appealed the judge's decision to the Delhi High Court.

Another 18 years passed. Finally, on April 20, 2001 — 38 years to the day after the customs raid — the High Court ruled that the lower court had erred in dismissing the charges against Gupta. It ordered the case against him reinstated.

Gupta was never informed of the appeal or of the High Court decision, according to Digpaul and family members, and was therefore flabbergasted when he learned of its outcome just last month. "A summons is being issued after 40 years?" said one of his sons, a 46-year-old businessman who accompanied his father to last month's hearing and asked not to be named. "Our whole world has turned upside down."

Unlike the deliberations it followed, the hearing itself was mercifully short. Gupta, a frail, grizzled man in a gray wool scarf, wore a bewildered expression as he shuffled to the front of the courtroom.

In a colloquy with Magistrate V.K. Maheshwari, Aggarwala, the prosecutor, seemed to soften toward the accused. He suggested that he might be willing to forgo the trouble and expense of a trial if Gupta were to plead guilty and agree to a fine.

But Maheshwari cut him off. "In India there is no plea-bargaining," he said, and set a tria
l date for Tuesday.