Administration of Justice in Kashmir State, Note by Bhag Ram, Judicial Member of the Council November 18, 1889
I will avoid making any allusions to faulty procedure and technical drawbacks, instances of which are too numerous to mention, but I feel bound to state that, so far as my experience goes, the presiding officers of the Courts are as a class, generally, far from upright. Holding their appointments during. the pleasure of the Chief, they not uncommonly gave way to influence, in fact the dominant influence of the Maharaja’s servants had so powerful an effect over the Courts, that on one occasion nearly three weeks after my arrival, Mian Sawal Singh sent word to me through a big official, asking me to let off a person sentenced to imprisonment by one of my Subordinate Judges. This however, was the first and the last attempt so far as I was concerned, as I took the opportunity then and there to announce publicly, that I shall be compelled to take very serious notice if such perversion of justice was again attempted. I had reason to believe that my action did not meet with the approbation of the Maharaja, and on a second occasion when His Highness himself spoke to me in regard to another criminal case, I told him that I could only decide cases. according to the dictates of my own conscience.
The presiding officers of Courts and judicial work performed by their clerks, and it has been with great difficulty that I have partially succeeded in getting them to record their proceedings in their hand. There are still a number of ignorant and illiterate Tehsildars and other officers, owing their employment to strong official influence, who would not and could not carry out by instructions.
I have come across cases, nay criminal trials in which a single line in the form of a judgement had never been recorded while instances have repeatedly come to my notice of Courts, neglecting the rudest principles of equity and jurisprudence, and putting suitors to all sorts of annoyance. Having had the honour to showing to the Resident a number of my decisions, bearing out the views expressed above, I hardly think it necessary to encumber this note with detailed particulars.
Judicial cases against private persons or State servants, interested in politics, or in the intrigues at Court, are as a rule kept pending or adjourned sine die, such postponement having the two-fold object of keeping the culprit in awe and chestising him on occurrence of a suitable opportunity.
During the ministry of Diwans Lachman Dass and Anant Ram, Judicial Courts could not work with a grain of independence or self-respect. Judges blindly disposed of cases, as required by the Ministers in power, without any reference to the merits, and not infrequently received written orders dictating decisions which were to be given.
Judicial officers, from corrupt motives, or to suit the interest of their employers, sometimes destroyed important papers and depositions, replacing them by false proceedings adapted to their judgements. To such an extent had the Courts lost public confidence that no party to a suit would credit them with original documents, and the pettiest case found its way to the highest Court, swelling law charges to the extent of double or triple of the amount claimed.
A curious custom prevailed, enabling private persons to make money by laying information exposing the conduct of State servants. Such complaints were called “Khair-Khwai” and were entertained by the Criminal Courts without any reference to the department in which the accused was employed. The officials, in a body, being addicted to misappropriation of monies received by them in the course of official duty, easily avoided investigation by bribing the informers, and the Darbar itself, not being well prepared to check corruption, or recover monies embezzled by its servants, such misappropriations were committed with impunity, so that as the present day there is hardly an official who, if a proper enquiry was instituted, would not have to account for his misconduct.
Receipts on account of unclaimed deposits and unclaimed property, as also fines and penalties, in certain cases, were seldom paid into the State Treasury. Judges of Sadar Adalats spent large sums without any reference to higher authority. The other day I found that tile Nazir of tile Jammed Court has c large of items aggregating Rs.2500, extending over several years past, without having been brought to book in the finance accounts of the State. The same practice prevailed with greater impunity in other departments; the whole being due to the absolute want of a proper system of audit and control.
Tehsildars and other Revenue officers are known to be in the habit of imposing fines without recording any proceeding, and appropriating the receipts to themselves.
Execution of decree is tedious, and, as no civil case is held to be finally decided until it is confirmed in appeal by the highest tribunal, which generally takes seven to ten years, execution is generally stayed till then.
I will here say a few words regarding the laws in force. There is a Penal Code, but there is no Code of Criminal Procedure.
Similarly, there is a Code of Civil Procedure, but there is no substantive code of civil law, nor is there any law of limitation.
The stamp and registration laws are grossly imperfect.
My critical review of the State Penal Code was submitted to the Resident at Gulmarg. It is sufficient to show that the penal law is a wretched specimen of barbarity and oppression. It gives the Courts power to entertain complaints against witches and sorcerers, on payment of a fee of Rs.50. The cow is held in the highest veneration, and no punishment is spared, however faulty the evidence may be. When a person is shown to have put a cow to death, his lands and property are confiscated, houses are brunt, permanent exile is ordered, and whole families are ruined. If the charge is proved by evidence, the culprit is sentenced to imprisonment for life. A person is bound to be sent to jail if he happens to yoke a cow to the plough, or otherwise take excessive hard work from that animal. It is a penal offence to kill animals for food or sell meat on certain days in each month. Adultery with a widow is punished with great severity, particularly if the woman is related to the adulterer, and a complaint of adultery may be lodged by any person, whether he is or is not in any way connected with her.
There is clause in the Penal Code under which a Magistrate could take cognizance of an act or omission not specified therein, if such act or omission appears to him to be objectionable in the cause of society, and he may sentence the accused to a fine of Rs.25. This gives Tehsildars and Revenue officers ample opportunities of punishing people for disobedience of order, contempt of authority, and other supposed offenses.
A State defaulter is considered a criminal, he is kept in irons in the criminal jail on reduced diet, and is deported to distant and unhealthy stations, if he is unable to bride the officials.