Misuse of law -a challenge to Indian judiciary

VK Bahuguna

September 23, 2021, 14:01:18   

(The writer is Chairman of Centre for Resource management and Environment)

Efficient implementation of law is a pre-requisite for a stable and peaceful society and democracy is the torch bearer for a vibrant people centric governance. Democratic fabric of a nation compliments the jurisprudence in ensuring the lawful governance. Over the years the judicial activism through the Public Interest Legislations (PIL) has ensured that the derailment of rule of law is prevented and the socially vulnerable sections of the society have immensely benefited from the concept of PIL. The PIL concept was introduced by Justice PN Bhagwati to secure public interest and created opportunity of justice to socially-disadvantaged groupsby providingrelaxation on the traditional rule of locus standi. Ever since its enunciation in 1980ies judiciary has used it for the course correction of executive’s functions and several landmark judgements have provided reliefs to affected citizens. 

However, of late a serious problem of misuse of law is cropping up in the country and threatening the jurisprudence. This writer has been a witness to such several misuse of law both by the common citizens as well as people in power. He has recently written a book “Quest for Civility-an insight into Indian Babudom” on misuse of power by people in authority. Thesubversion of rule of law if not checked is going to explode in some way or the other. Recently, the trigger for this article came from a newspaper report about challenging the appointment of Mr Rakesh Asthana as the Delhi Police Commissioner under a PIL filed by a few non- government organizations opposed to the present dispensation at the Centre. Mr Asthana has challenged it as misuse of law. Now let us discuss it, how his appointment was made and under what rule. The All India Service officers IAS, IPS and IFS (forests) are recruited by the Central Government and it is up to the sweet will of the government to utilize them anywhere in the country or abroad in public interests. They can be granted extension in service or transferred from one cadre to another if need be depending upon their service records and the opinion of the government. It is akin to the way Supreme Court Collegium transfers High Court Judges from one state High Court to other. Such actions of the Central government in utilizing its officers is absolutely in its power and cannot be challenged. There may be several reasons for the appointment for the government as well as several reasons of dissatisfaction for the officers who were affected by the appointment and if affected officers had gone to the Central Administrative Tribunal it would have been justified and decided on merit but how could a party unaffected can challenge the power of government and if the country allows such wastage of time on things based purely on ulterior motives or at the instigation of political leaders to regularly bring such matters in courts it would put the entire country’s administration as well as security to peril. 

There are many other instances of misuse of powers however, which need attention of the Supreme Court, High Courts and lower courts as well as legislatures rather than wasting time and energy on frivolous matters. The crimes against women are attracting the attention of the judiciary with stringent provisions but surveys had shown that most of the provisions of section 354 of IPC and the Dowry Prevention Law (Section 498A/ 406 of IPC) are routinely  misused provisions of law in India and yet no modifications seem to have been made in it over the year. The provision was enacted to protect the dignity of a woman has become a widely misused weapon by them and is used to harass and blackmail their husband and his family. Once an FIR is filed under 498A/406 (IPC) it becomes a tool in the hands of the police to harass the husband and all his relatives named in the FIR without an intrinsic worth or preliminary investigation.According to a survey conducted by Fight against Misuse of Dowry law has revealed that 98% of the cases filed under section 498A is false.One senior officers of Ladhak administration is facing a false dowry case and his father himself a retired senior officer of 71 years running from pillar to post.  Similarly the section 354 is massively used to harass men deliberately to settle property and other disputes. More than half of such cases ultimately prove false and no real punitive action is taken against the complainant. This writer knows one such case in Delhi’s Gagan Vihar area in which one builder in connivance with a police constable has put a scheming family of dubious character with an in house advocate in a flat which exchanged hands without proper payment of stamp duty at two levels to grab the property of an 84 year old army veteran. As soon as the family came to live the quarrelling started as they refused to pay the maintenance charges and a report to police did not help much. In order to corner the old man the daughter of the new flat owner started filing a false case of pushing her around. A similar case of misuse of law was witnessed in a case of gifting a property. A false case of gift was prepared by the sister-in-law of a women to disposes her from property of her parents. The case is going on for past two years in Saket court in Delhi.The Schedule Caste and Scheduled Tribe Atrocities Act is another frequently misused Act in the country. In a study in Rajasthan more than 40 % of cases were proved false and the situation is same elsewhere. 

The country need to bring transparency in implementation of law. There is a need to bring in a law to make stringent provisions for misuse of law and if once a case is not proved the complainant as well as other involved in investigation and false witnesses must be punished simultaneously as per the provisions of relevant law without any need to file damage suits. Only then the country’s judiciary as well as police and other agencies would be spared of such wastage of time and at the same time the law protecting citizens would be implemented well. The new Chief Justice of Supreme Court has been concerned about reforms in judiciary and hope he will take note of this suggestion of the author. After all let not a single innocent person be tortured on false ground and a system that ensures this is the hallmark of a sound judiciary.

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