"What Are The Judicial Academies Doing?": Justice Madan Lokur On Bombay High Court's Skin-To-Skin Judgment In POCSO Case

Mehal Jain

28 Jan 2021 2:26 PM GMT

  • What Are The Judicial Academies Doing?: Justice Madan Lokur On Bombay High Courts Skin-To-Skin Judgment In POCSO Case

    "There are judicial academies, what are they doing? Is it not the job of the judicial academies?", remarked Justice Madan B. Lokur on Thursday.Speaking at the launch of the second edition of Tata Trusts' 'India Justice Report', the former Supreme Court judge was responding to a query seeking his views on a recent judgment of the Bombay High Court holding that direct skin to skin touch...

    "There are judicial academies, what are they doing?  Is it not the job of the judicial academies?", remarked Justice Madan B. Lokur on Thursday.

    Speaking at the launch of the second edition of Tata Trusts' 'India Justice Report', the former Supreme Court judge was responding to a query seeking his views on a recent judgment of the Bombay High Court holding that direct skin to skin touch was necessary to constitute 'sexual assault' under POCSO and that where the accused had groped the breasts of a 12 year old girl without removing her clothes was only an instance of 'outraging of modesty' under section 354 of the IPC. The judgment has invited criticism from all quarters. Finally, it came to be stayed by the apex court on a mention by the AG, who expressed the inclination to challenge it.

    "The same judge has also rendered another decision...which is equally bad, if not worse", he said, hinting at another judgment of the same judge of the High Court, declaring that the act of holding hands with a minor girl or pulling down the zip of the pants is not 'sexual assault' or the purpose of POCSO but 'Sexual Harassment' Under Section 354A IPC.

    "Moreover, the judge who has delivered both these judgements happened to be the Deputy Director of a Judicial Academy! I am wondering what training she must have imparted to the judges!", Justice Lokur comment

    Recently AG K. K. Venugopal submitted before Supreme Court that all judges must undergo training for gender sensitisation (when his assistance was sought by the top court in connection with the furore over the Madhya Pradesh High Court granting bail to a molestation accused on the condition of getting 'rakhi' tied by the victim). 

    Justice Lokur emphasised on the need to conduct social audits, describing the India Justice Report as the 'roadmap' for both High Courts and States-

    "The purpose of the information is not to indicate which state is the best – it is to identify where there is a call for action. For example, it shows that while Maharashtra has a strong legal aid system, its police pillar is weak. On the contrary, Karnataka has a strong police pillar, but its legal aid system is lacking. While Punjab has a robust judicial system, its police pillar is weak. At the same time, the situation of Rajasthan is vice-versa"

    "The point of the report is to convey to each state what to concentrate on and what needs to be strengthened", he explained.

    He was of the view that Judicial academies can contribute greatly towards the dispensation of justice and that social audits play a significant role in this. He cited an example where a social audit of the Supreme Court legal services committee revealed that SLPs do not come to be filed for as long as 12 to 14 years. "In some cases, the sentence of life imprisonment is for 12 years. So there are people who have undergone life incarceration and still not appealed to the Supreme Court!"

    "So transparency is the need of the hour. And for this, social audits are indispensable", voiced Justice Lokur.

    He elaborated on the distinct circumstances of the north-eastern states which call for different treatment and a different course of action- he cited how the appointment of additional judges in Mizoram had resulted in the individual judges now not having sufficient work.

    "Once, a lawyer from Manipur had told me that he had only two cases in hand, one of which had got compromised and the other was also about to be settled. 'I don't have any work', he said", narrated Justice Lokur.

    "There was this other lawyer who told me that she appears in legal aid cases and that she is the only lawyer to do so. When I enquired who argues from the opposite side, she replied that she only does", told the retired judge.

    Justice Lokur reiterated the need for social audit in all spheres – the judiciary, the prosecutions, the police and the prisons. He pointed out that as per a social audit, 50% of the cases before the Supreme Court legal services committee are redundant, either on account of the passing away of the parties or because they have engaged private lawyers or for other reasons. He pointed out that it was the suggestion of the 13th Finance Commission to appoint court managers, but this concept never saw the light of the day

    "The pandemic has taught us to focus on certain things-health and justice delivery", said Justice Lokur.

    "42% of the judicial posts are lying vacant. 33% of the vacancies are in the High Courts. That is too high! Why is it so? Can we not do anything about it?", he pressed, adding that while diversity is important, merit is a more important consideration in filling up the vacancies.

    Justice Lokur emphasised on the need for planned and realistic budgeting- "What the judiciary needs is a cost-benefit analysis. We have spent only 20% of the budget received in the past five years. We don't know where or how to spend the money!"

    "Are we spending enough on the prisons, their upkeep, the inmates?...On court infrastructure? If there is a dingy courtroom, the judges, the staff and even the lawyers will not want to work in it...there are court premises without the basic facility of toilets...", he commented.

    As regards the pendency of cases, Justice Lokur expressed that a few years ago, with the backlog accumulating as high as 2 crore cases, the fingers were reaching out to the "panic button" already. "At present, the finger is very much at the panic button, and the pandemic has not helped matters. How are we going to tackle this pendency? And these numbers will keep rising!", he remarked.

    "Technology, case management and training- all have to be put into action. This is where this report comes in – to tell us where to do what. We have to make justice accessible, through the police, legal aid, the judiciary and the prison administration', he continued.

    He narrated that how upon perusal of the report, he was shocked to find that only 60% of the jails have installed video conferencing units – "I asked them that money has been provided for all jails so where are the other units? I was told that while the states and the High Courts were given the money to purchase the videoconferencing units, several of them did not do so. And this was money as back as 2017-18! So for three years, so many jails have not bought video conferencing units!"

    Besides, he pointed out that there are other problems which exist on the ground and have to be dealt with. For example, while every courtroom has a computer system which also comes with an inbuilt camera, sometimes, on account of bandwidth or connectivity issues, it is not a utilitarian. He explained that only the jails procuring video conferencing units will not serve the purpose unless the courts also have such functional units.

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