Pre-Conference Booklet

ANNUAL CONFERENCE SERIES SECOND EDITION on RULE OF LAW 20-28 FEBRUARY 2021 Contents ABOUT THE CONFERENCE 2 CONFERENCE PROGRAM OVERVIEW 8 SPEAKER BIOGRAPHIES 14 SESSION BRIEFS 44 THEMATIC SESSIONS 44 TOPICAL CONVERSATIONS 63 CURTAIN-RAISER WEBINAR REPORT 74 NOTES FROM THE DESK 86 ORGANIZING TEAM 119 1 ABOUT THE CONFERENCE 2 About the Conference Indian Democracy at Work Annual Conference Democracy is self-correcting and demands constant vigilance. As a relatively young democracy, India has much to celebrate. Judged by Myron Weiner's postulates of a functional democracy, we as a nation have stood the test of times. However, over the years, many of the institutions critical to the functioning of democracy are weakening. Skewed priorities, lack of accountability, diminished rule of law, centralisation of power, and many more deleterious afflictions dominate the democratic discourse threatening the long-term progress of our country. In an effort to contribute and to shape the democratic discourse, Foundation of Democratic Reforms (FDR), Bharti Institute Of Public Policy (Indian School of Business) and Department of Political Science (University of Hyderabad) have come together form a platform named “Indian Democracy at work”. Amongst other things, an annual conference series is organized on pressing issues facing the nation. The first of the series was conducted in January 2020 on "Money Power in Politics’ inviting eminent people from spheres of politics, administration, academia, media, civil society, etc to deliberate and bring forth plausible solutions to curb the influence of money power in politics. The first conference was a resounding success with wide and diverse participation that culminated into the ‘Hyderabad Declaration’. Theme 2021: Rule of Law The theme for the second edition of the Indian Democracy at Work annual conference is ‘Rule of Law’. Rule of law is the bedrock of constitutional governance and democratic society. Maintenance of public order while preserving constitutional liberties is at the heart of a harmonious society and democratic system. Fair, speedy and efficient settlement of disputes at an affordable cost is critical for mutual trust and economic 3 growth. In a rapidly urbanizing society, control of crime and maintenance of public order are critical. The social controls that regulated human behavior in small rural communities become weak and ineffective in urban communities with impersonal lives. Increasing urbanization will inevitably lead to more civil disputes and crime. If might becomes right and crime and a “grammar of anarchy” dominate, economic activity and wealth creation will be undermined. Protection of individual property rights, fair and equitable contract enforcement, creation and enforcement of just labour laws and provision of access to opportunity for all sections of society, creates a culture where commerce and business can flourish and grow. Rule of law and economic growth are strongly interrelated and mutually reinforcing. While we have normative rule of law in India, in practice there are serious, and often crippling distortions. Independent, accountable and efficient crime investigation unaffected by partisan pressures and populist impulses is a critical requirement in ensuring justice. Strong, independent and efficient prosecution driving investigation and securing just punishment of wrongdoers is vital for the criminal justice system to act as a deterrent. Speedy, accessible, efficient trials in courts – both civil and criminal – are the foundations of rule of law. In all these critical areas, our institutions of rule of law are deficient in a variety of ways. The police forces have multifarious duties and are stretched to the limit. The number of policemen per unit population remains low by global standards despite rapid urbanisation and rise in crime. Political control of police personnel undermines credibility of crime investigation and erodes public trust. The high degree of centralization of functions in a single police force is a serious impediment to the efficient discharge of their duties. Public pressure and political control sometimes compel the police to resort to unwholesome methods like third degree and extra-judicial punishments to produce short term results to appease the public sentiment. 4 The brutal torture and murder of a father and son in Tamil Nadu by the police for violating the lockdown restrictions a few months ago is a horrific example of the arbitrary use of force and torture by the police forces in India. Given the poor delivery of services at the cutting edge level in government and the polarized and contentious public discourse, often the governance and political failures are converted into law and order problems imposing enormous burden on the police. Those in power relish the power over the police forces and often use it for partisan ends. Police are perceived often as tools of those in power, rather than the instrument of law enforcement. Delays have compounded the challenges to rule of law. When heinous crimes occur, public pressure and political diktats are making police resort to extra judicial killings of the suspects. This culture of mob justice needs to be countered by an efficient and credible system of crime investigation, prosecution and trial in a court of law. Or else, there is a danger that we will degenerate into a society in which might is right. Alarmingly, there are fewer prosecutors in India than judges. This clearly reflects the fact that despite the separation of prosecution from the police, the prosecution wing is still unable to drive the investigation. This, coupled with the many inadequacies of functioning of the police and courts has undermined the credibility of our rule of law institutions. As Nani Palkhiwala observed once, the progress of a civil suit in our courts of law is the closest thing to eternity we can experience. An independent and impartial judiciary, and a speedy and efficient justice system are the very essence of civilization. However, our judiciary, by its very nature, has become ponderous, excruciatingly slow and inefficient. The only sanction to ensure good conduct and to prevent bad behavior in society is swift punishment. In the absence of the state’s capacity to enforce law and to mete out justice, rule of law has all but collapsed. Our laws and their interpretation and adjudication led to enormous misery for the litigants and forced people to look for extra-legal alternatives, in the process, giving rise 5 to a private industry for administering rough and ready justice. Local hoodlums using strong-arm tactics to achieve the desired goals in almost all of our cities and towns have been increasingly gaining political legitimacy. In addition, the courts have tended to condone delays and encourage litigation and a spate of appeals even on relatively minor matters. Delays, procedural complexity, and use of English as the language of the courts escalate the costs of litigation enormously for most people, deterring them from seeking intervention of courts. Largely, there is a lack of trust in the efficacy of the judicial system in delivering justice. As a result of the enormous delays in courts, the prisons are overcrowded, with more than half of the prisoners being poor people incarcerated as under trial prisoners. Basic liberty being denied to the poor due to inefficiencies within the justice system is a fundamental failing of our democratic polity. This disconcerting situation calls for speedy remedial measures. These measures should be practical and effective while they are in consonance with the basic features of the Constitution. Reports of the Law Commission, Police Commission and Administrative Reforms Commission have eloquently made out a case for many specific and practical reforms to strengthen rule of law. However, little effort has been made to implement these recommendations. The second edition of the annual conference aims to delve deep into the challenges plaguing our judicial system with the hope of converting meaningful conversations into definitive action. A centralized and partisan police force, a feeble and inadequate prosecution, a slow and inefficient judiciary, and archaic and complex procedural laws that have collectively led to the failure of the Indian justice system will be the central themes to deliberate on in the conference. 6 Sub-Themes: 1. POLICE a. Separation of crime investigation from political interference b. Improvements in technology - mobility, communications, computerization, and forensics and training c. Recruitment and capacity building i. Improving morale, competence and public image of police d. Community policing 2. PROSECUTION a. Capacity enhancement of prosecution b. Independence of prosecution with competence c. Empowering the prosecution to drive investigation 3. PROCEDURAL LAW a. Code of Criminal Procedure, 1973 b. Code of Civil Procedure, 1908 c. The Indian Evidence Act, 1872 4. JUDICIARY a. Establishment of local courts to reduce the burden of trial courts b. Capacity enhancement i. Strength of judges ii. Physical infrastructure and technology iii. Court administration - support staff, case management system c. Clearing Pendency d. Indian Judicial Service e. National Judicial Standards and Accountability for higher judiciary f. Permanent Constitutional Bench 7 CONFERENCE PROGRAM OVERVIEW 8 Conference Program Overview Session Theme & Time Speakers WEEKEND 1 Day 1 - 20th February, 2021 Shri Justice M.N. Venkatachaliah,

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