WHEN A CHIEF JUSTICE OF INDIA DEMITS OFFICE

 ‘Men may come and men may go, but I go on forever’ asserted Lord Tennyson’s Brook in 1886. A hundred and thirty eight years down the line, Dhananjay Yeshwant Chandrachud, Chief Justice of India, on the eve of demitting office wondered publicly how history would evaluate him. I leave it to the readers to view, and more importantly, read the comments posted by viewers too, at https://www.youtube.com/watch?v=pPbNTbyb-Vg. 

 

I remember an episode of Aap ki Adalat, on a TV channel, featuring Ram Jethmalani, erudite lawyer and politician rolled into one. One specific response of his that I recollect vividly is of him stating bluntly that he would not have employed Rahul Gandi (spelling changed to differentiate this usurpers of the surname, Gandhi, of the one revered as the Father of the Nation) even as a peon in his office. Wish the eminent lawyer was alive to share his view on Chandrachud’s concern.

 

But here is my take on it.

 

DY Chandrachud was part of the bench that gave the majority judgment, on 28 Sep 2018 in WP (C) 373/2006, favoring women’s entry in Sabarimala.  As a layman I was shocked. But being literate, I looked up the Constitution itself and learnt to my horror how the Constitution had been misinterpreted to give this faulty verdict.  I wondered why the matter was decided under Article 25(2)(b) without the judges asking why this article pertained to only Hindus and Hindu religious and charitable institutions. Fortunately, some of such issues have found mention in the order dated 14 Nov 2019 in the review petitions filed.  But these have to be considered by a bigger bench and that is where it stands.

 

On a more detailed analysis at http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4849 (‘Nero fiddles while Rome burns’, 04 Nov 2018) a reader had commented: It is the judiciary that is really on trial. It seems to be controlled by the Deep State of unelected groups that are pushing the agenda of the defeated Left-Liberals patronized by the Congress. They will not go away soon.

 

Interestingly, D Y Chandrachud castigated his father’s judgment in the notorious ADM Jabalpur case, where it had been held that even right to life was not a fundamental right during Emergency. Obviously such castigation, after almost half a century of the gross injustice meted out to the then victims, can have only academic value.  But, importantly, it is worth noting that Chandrachud Jr had not said anything about the Supreme Court bench, of which his father was again a member, exonerating Mrs Indira Gandi in the election malpractices case. Wasn’t the exoneration, based on a constitutional amendment pushed through by the convict with retrospective effect, the most heinous crime that a court could commit? Here is the relevant extract from a report in the New York Times of 08 November 1975:

The verdict in favor of the Prime Minister, handed down by a special panel of five judges, was based not on any new interpretation of the facts of the case against her, but rather on a change in the law under which she had been convicted of two electoral improprieties.

In language specifically tailored to the circumstances of her case, the amendment provided, in effect, that the things the Prime Minister was found to have done during the‐ election campaign of 1971 were no longer illegal.

 

At https://en.wikipedia.org/wiki/Dhananjaya_Y._Chandrachud there are some ‘important’ cases of D Y Chandrachud listed with a brief description too. They deal with right to privacy (Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors), free speech (Indibility Creative Pvt Ltd v State of West Bengal), personal liberty (Arnab Goswami’s bail plea), gender justice (Sabarimala, adultery, permanent commission for women in armed forces, sexual harassment at work places), environment (Hanuman Laxman Aroskar vs Union of India), labor (protections under Factories Act), constitutional issues (ordnances, Governor Vs Chief Minister, NCT, floor test in assemblies, doctrine of legitimate expectation, issues pertaining to the availability of oxygen supply, essential drugs and modalities for vaccination during Covid 19, affirmative action,  disability rights, commercial, insurance and insolvency laws, access to and transparency in judiciary) and a few more.

 

A cursory reading reminded me of the story of a student in Kerala narrated by one of his teachers. The year was when the student was in the 10^th Standard and Hindi had been made compulsory. Finding the going tough, the student did what he could do best. He learnt a paragraph by rote and reproduced it as answer to all the questions during the examination.

Yes, Chandrachud’s judgments are full of terms like liberty, equality, transparency etc etc. But how far did he walk the talk?

 

Just take the case of transparency in the judiciary.  Here is an extract from the details given about the Supreme Court ruling in Central Public Information Officer (of the Supreme Court) v. Subhash Chandra Agarwal:

Chandrachud also delivered a concurring opinion in the case of the Central Public Information Officer v. Subhash Chandra Agarwal where he agreed with the majority that the office of the chief justice of India is a public authority and falls within the ambit of the Right to Information Act 2005. Chandrachud's opinion was widely discussed for evolving jurisprudence around the balancing of the right to privacy and the public interest. His opinion was also commented upon for expanding the ambit of the phrase 'public interest' to include information 'on the adequate performance of public authorities' which includes 'information on the selection of judges to the higher judiciary which must be placed in the public realm'. While the majority and the other concurring opinion applied the proportionality test to balance the right to privacy and public interest, Chandrachud expanded the application of the proportionality test to balance the rights of privacy and information. (Emphasis added)

It is surprising how the issue of the office of the Chief Justice of India not being a public authority itself arose. Neither the Right to Information Act, nor its rules give rise to even an iota of doubt on this score. The fact is that the applicant, Subhash Agarwal, had just sought information on the implementation of a decision taken collectively by the judges of the apex court, a decade earlier, about judges submitting their asset returns to the Chief Justice on assuming office.  The claim of the CPIO had simply been that the information is not held by him but by the CJI. The only question to be answered by the CPIO was whether he had sought the information from the CJI to be provided to the applicant. If he had not sought it from the CJI then the CPIO becomes the defaulter. If he had sought and the CJI had not provided it, then the CJI becomes the defaulter and it liable to be penalized @ Rs 250/- per day of delay beyond the 30 days permitted to provide the information. Mind you, the penalty on the CJI would have been in his administrative capacity and not judicial capacity.

Further, when the returns of all other public servants are published in the respective websites of the government, where does the question of privacy for judges alone arise?

Incidentally, the remuneration paid to public servants is required to be disclosed by the public authorities, suo moto. Even this has not been done in the matter of the judges of the Supreme Court, for which the CJI, in his administrative capacity, is responsible directly.

And horror of horrors, what has not been mentioned here is that the order had provided discretion to the Public Information Officers to demand the reasons for seeking the information. This, when Section 6(2) of the Right to Information Act has explicitly stated that ‘An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.’

 

I am among those who are convinced that DY Chandrachud had taken our judiciary to new lows in matters of reliability, credibility and integrity.

 

It began with a petition filed in the Supreme Court against the appointment of D Y Chandrachud as the Chief Justice of India. A report is available at https://swarajyamag.com/news-brief/plea-to-restrain-justice-chandrachud-from-taking-oath-as-next-cji-dismissed-by-sc-heres-what-the-petition-argued. It was dismissed by a bench headed by the then CJI who had recommended Chandrachud as his successor. Without going into any details, while the judge who recommended his successor hearing a petition against it is morally wrong in itself, going by the truism in the dictum that Caesar’s wife shall be above board, at least Chandrachud could have ‘recused’ himself from taking over the appointment.

 

DY Chandrachud assumed office of the Chief Justice of India on 09 November 2022. A report in The Hindu of 17 December 2022 informed its readers that ‘The oral announcement (of there being no vacation benches for winter vacation) came a day after Law Minister Kiren Rijiju reportedly criticised the "long vacations" of the court and the inconvenience it caused to litigants.’ To be realistic, the law minister was simply conveying the growing demand of the people for prompt disposal of cases and the delay caused by long vacations, which even students do not enjoy these days. If anything, the incidence exposed the new CJI’s contempt for the people and their elected representatives.

 

Fairly early in my pursuit of judicial reforms, I had discerned one fact about judgments. Quite often they begin with grandstanding, quoting scriptures and thought leaders, then facts are recorded almost correctly, deductions become hazy and conclusions, including decisions, are out of the world. Take the cases of Electoral Bonds and the appointment of the Election Commissioners.

 

Without going into the specifics of the Electoral Bonds, one can easily presume that it is all about transparency. While election reforms are a subject by itself, election funding had been identified as a hotbed of corruption. So, to the layman, electoral bonds were better than the earlier anonymous and unaccounted system of funding of election. In fact, there was this case under the Right to Information Act where some political parties were ordered to provide information about their accounts but apparently did not get implemented. Some important information is available at https://adrindia.org/content/political-parties-under-rti#roadmap. An order, dated 16 March 2015, by a bench of three information commissioners has recorded the following :

the respondents are not in compliance with the Commission’sorder of 03.06.2013 and the RTI Act. The respondents, as public authorities, have not implemented the directions contained in the Commission’s order and there is no evidence of any intention to do so;

 

But more interestingly, a report, dated 03 April 2024,  at https://timesofindia.indiatimes.com/india/what-tax-exemptions-do-political-parties-enjoy/articleshow/108989036.cms informs us that the Congress Party had received three notices under the Income Tax Act totaling up to a demand of Rs 3,567 crores.  There is one dating back to assessment year 1994-95 (FY1993-94), where the exemption was denied and a tax demand of around Rs 25 crore was raised. During subsequent appeals, the demand came down to around Rs 11 crore and a challenge is currently pending in Supreme Court. With interest, the demand now adds up to Rs 53 crore. Cases of BSP and Janata Party (Subramanian Swamy merged it with BJP in 2013) are also clubbed with this case where a decision is pending since 2016.

 

In the case of appointment of election commissioners, a constitution bench of 5 judges heard the matter. Those who wondered why the Chief Justice of India did not head this important bench would have got their answers when the judgment was delivered. Yes, the order directed that the election commissioners be appointed on the recommendation of a committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India. One did not know whether to laugh or cry at the attempt of the judiciary, read the Supreme Court, to usurp more powers of the Executive. From Kesavananda Bharati, through the Judges cases, to Namit Sharma the efforts were many and most of them were successful too, to the detriment of democracy. Fortunately, the government woke up in time and legislated against this decision, which has been challenged in the Supreme Court but no stay has been granted.

 

The credibility, reliability and integrity of the apex court touched a new low when the CJI constituted two benches back to back, on a holiday evening, to grant bail to Teesta Setalvad. For a CJI, who has been seen as most loquacious and vociferous about equality and liberty, this was an unforgivable act of abuse of authority given the fact that lakhs of litigants are languishing as under trials in overcrowded prisons. The opposing verdicts of the first bench of two judges had me asking why then should the decision not be in favour of the high court judgment itself. How right the former Law Minister Kiren Rijiju was when he had said that the politics of the politicians was more transparent that those of the judges.

 

Suffice to say that the judiciary is not only the most failed organ of the State but also an absolutely failed one. D Y Chandrachud had a good 2 year tenure to do some good for making the judiciary more accessible, efficient and transparent. But he has failed on all scores. It was a lot of talk and zero matching action. And people are aware. Social media is the real liberator. Here are two screen shots of two tweets, one of 23 Jul 23 and the other of 19 Apr 2022:

  

God save our country from its judiciary.

 

P M Ravindran, raviforjustice@gmail.com                                                   08 Nov 2024 

JUDICIAL PERFIDIES-33

 

I had read this anecdote long back. It is about the Japanese love for fish and how they wanted it always fresh. Frozen fish was certainly out. They tried keeping them live in tanks, which were too small and ponds, which did provide space but the fish remained sluggish, and consequently, not tasty. Then they released a small shark in the pond and found that the little shark could keep the other fish on their toes, nay fins.  And the problem was solved.

 

I remembered this anecdote when I was thinking of introducing this last part of this series of critiques about our judiciary and the word sloth struck me without even thinking.

 

A chain is supposed to be as weak as its weakest link. In our system of governance too, the judiciary has proved to be the weakest link. But our judiciary is claimed to be the most powerful judiciary in the world. So where is the problem? It is not sloth alone that has made it weak. Add to that incompetence, indifference, lack of accountability, absence of checks and balances, whims and fancies of the judges, syndromes like ‘uncle judges’, bench/ docket hunting, self aggrandizement, outright arrogance and corruption. Examples to highlight each of these characteristics have been provided throughout the series. Hence, even though it would have been better to avoid repetition, it cannot be avoided. So, to avoid clutter, they are listed briefly in an appendix to this critique.

 

There is no denying that the need to reform the judiciary to make it transparent, accountable, effective and efficient is of utmost importance and urgency. To my mind, Pakistan and China can wait (the armed forces are there to take care of them) but judicial reforms cannot.

 

A collective of lawyers, litigants and public, interested in the subject of transparency and accountability of the judiciary, under the banner of National Lawyers Campaign for Judicial Transparency and Reforms, have listed their objectives at https://nlc.org.in/objectives/ and I have analyzed it from an activist’s perspective in Judicial Perfidies-28 and shared with justice.dychandrachud@sci.nic.in on 23 Sep 2023. There can hardly be any difference of opinion other than from those who are beneficiaries of the corrupt system.

 

Without going into further details, here is a bucket list that is required to be urgently implemented before the judiciary throws the country into violent chaos, if not a civil war. The rumblings are already there, for all those who care to feel.

 

There was a Judicial Standards and Accountability Bill pending in the Parliament since 2010. It had lapsed, or, been given a quite burial. Though it provided for investigating complaints against judges it was more or less only an effort to put in place a system for impeachment of tainted judges of the higher judiciary. However, after the National Judicial Appointments Commission Act had been trashed by a few judges of the Supreme Court, a watered down Judicial Standards and Accountability Bill had been introduced in the Lok Sabha in 2022. This was to put into effect the “Restatement of Values of Judicial Life” adopted at a full court meeting of the Supreme Court on 07 May 1997. Even that should be considered lapsed now after the life of the Lok Sabha ended in May 2024.   

 

Given the urgency of these reforms the issue is dealt with in two parts- for the short and long terms.

 

Before I list them it is required to understand one basic fact. That is, it is only the Parliament and State Legislatures that are constitutionally competent to make laws. The duty of the courts is only to apply the laws to given contexts, logically and fairly. And here are two quotes that are relevant to understand the power of the judiciary: Alexander Hamilton once said that “The judiciary . . .  has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.  It may truly be said to have neither Force nor Will but merely judgment…” The other one is attributed to Felix Frankfurter, a Judge of the US Supreme Court. It is: ‘Judges as persons or Courts as institutions are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of Judicial Office are identified with the interests of Justice, they may forget their common human frailties.'

 

The short term requirements are obviously in the nature of surgical strikes.

 

1.      Abrogate Contempt of Court Act and also the provision for impeachment of judges of the higher judiciary. For long, we, the citizens, were given to believe that the only punishment that could be meted out to tainted judges was impeachment, which anybody with common sense can see is an unwarranted and ludicrous process. That is until a high court judge, Karnan, was sent to jail for 6 months for contempt of court.  Does it mean that contempt of court is the most serious crime that one can commit in this country? I am sure that nobody, except the affected judges, will buy it.

2.      Amend the Constitution to submit judges also to all the laws applicable to every citizens of this country. And given that they are law qualified and cannot be treated as equal to laymen, the punishment for them should be more severe than prescribed under the laws for ordinary citizens. Typically it should be 2 or three times more severe.

3.      Prescribe time frames for disposal of cases by classifying them based on the charges. To begin with it could be three-simple, serious and severe. The times frames should be based on day to day hearing and should be enforced. Exceptions may be permitted by a superior authority in, say, 10 percent of the cases.

4.      Cases should be taken up on first come, first served basis and lapses should be noted for guidance, warning and punitive action. 

5.      Litigants should present only facts, chronologically and precisely. There should be no reference to case laws.

6.      Judges may cite cases laws in their judgments but they should not be older than 5 years. To indicate their relevance the context of such cases should also be narrated precisely.

7.      In cases involving public servants the concerned public servant(s) should attend the proceedings as party in person, if the other party is attending as party in person.

8.      The verdict should include punishing the guilty and compensating the victim, including the cost of pursuing the case in terms of time, effort and money invested and should be made good from the judgment debtor.

9.      A system of feedback from litigants about the conduct of the proceedings should be collected through computerized systems for evaluation by team of lawyers and management experts for facilitating performance assessment of the judge(s).

10.  The relation between judges, advocates and litigants is nothing like employer-employee, superior officer-subordinate officer or teacher-student. So the mode of addressing judges by advocates and/or litigants should be only the perfunctory Mr/Ms abc or xyz. There have been enough discussions and directives issued by the Bar Council of India that the judges should be addressed as Sir only. Even that is unwarranted as the judges are only another lot of public servants employed by the government to deal with grievances, legally.  Interestingly, a Gram Panchayat –Mathur, in Palakkad, Kerala- had issued a directive authorities shortly before the 75th anniversary of independence of the nation, that citizens should not use Sir in applications addressed to the Gram Panchayat. Isn’t it interesting to learn that at least a handful among the most, rightly or wrongly, maligned lot of public servants has understood the essence of democracy.

11.  All judges should retire at 60 years. It is confounding that citizens doing the same job have different age limits in the judiciary.

 

For the long term, the following actions need to be taken to enable the judiciary to mature into an institution befitting a democracy.

 

1.      First and foremost, to ensure a level playing field, advocates must be barred from appearing in courts. I shall reduce the justification for this to two quotes. One, by the renowned constitutional expert Fali S Nariman. In his book 'India's Legal system: Can it be saved?’ has asserted that ‘For more years than I can imagine we lawyers have been using our lawyering skills not in a profession but in a game, in which the more skilful (which tends to become also the more costly), will invariably win.’ The other is by the then President Dr APJ Kalam. He had openly asked ‘why is it that when the scams that are reported in the media are in crores of rupees, the inmates in our jails are all from the poor and marginalized sections of the society?’

2.      The next is to rationalize the employment of law qualified persons to obtain optimal results. For this there should be empanelment of lawyers through aptitude cum entrance examinations, based on their qualifications and experience, at six levels- Judicial Officers Level 1 to 6. Level 1 will be Certified Primary Litigation Officers (CPLOs, like general medical practioners), Level 2 will be Certified Specialist Litigation Officers (CSLOs, like specialists in Medical field) and Judicial Officers (JOs) Level 3 will be at a taluk level or cluster of, say 3 to 5, local self governing bodies, Level 4 should be for a cluster of 5 to 10 Level 3 JOs and Level 5 for a cluster of 10-15 Level 4 JOs. Level 6 should be only one at the national level.

3.      The certification, appointment, monitoring and discipline should be done by a National Judicial Commission, comprising of legal, social science, psychology and subject matter experts.  Empanelment and appointment for each stage should be only for 3 years at a time, with provision for re-empanelment at the same level or next higher level for another three years.

4.      The Certified Litigation Officers should provide service based on payment at prescribed rates. Some of them may be employed by the government to provide free service to the marginalized sections of the society at Primary Litigation Centres which may be co-located with Police Stations or Local Self Governing bodies. Each Litigation Centre may have 3-5 CPLOs and 1-2 CSLOs.

5.      The JOs will have original jurisdiction over specified matters, appellate jurisdiction for the immediate lower level and will be the disciplining authority for the JOs two levels below, that is Level 3 JOs will be disciplining authority for Level 1 (CPLOs) and so on. Level 5 will have original jurisdiction over interstate disputes and in all cases where public servants are accused. Level 6 will be at national level dealing with only constitutional matters. It should have only 5 JOs with a term of 5 years.  The maximum age upto which these JOs can be employed should be only 60 years. Discipline of JOs at level 5 and 6 should be dealt with by a jury, constituted with only one law qualified person to guide the proceedings and 5 others from different fields.

6.      All JOs, including the certified ones, should be empowered to summon the parties and after confirming the delivery of summons, if any party is absent without giving reasons in advance, except in circumstances beyond one’s control, decisions given ex parte can only be challenged before the appellate authority. Such appellants should bear the cost of the opposite party at the appellate stage. All orders should include compensation for the victim in terms of cost of pursuing the litigation and effort.

7.      At every level litigants should provide feedback on their experience based on parameters like promptness in registering complaints/grievances, guidance provided, scheduling and abiding by the schedule, courteous behavior, satisfaction with the decision etc. This should be through user friendly computerized terminals or applications. The system should be able to track the performance of each judicial officer by consolidating the feedback on a quarterly/half yearly/ annual basis which should be communicated to the concerned JOs as well as the disciplining JO.

8.      There should be only one appeal permitted in any one case.

9.      Verdicts reversed or modified at appellate level should be quantified for appropriate action against the concerned JO. The guiding principle should be that all laws applicable to ordinary citizens would apply to the JOs and the severity of the punishments should be at least 2 or three times more than for ordinary citizens.

10.  The system of laying down law by courts, including referring matters to bigger benches, should be banned. If the judges find any need to change laws they must refer the matter to the legislating bodies giving detailed reasons. Whatever changes are approved should be notified for implementation. And all changes should be available to the public through a website to be maintained by the Ministry of Law and Justice.

11.  All quasi judicial bodies should be done away with.

 

The above are almost conceptual requirements and nitty gritties will have to be done with more deliberation.

 

Law makers without any prescribed qualifications, qualities or experience, law enforcers with all the scope for distorting and manipulating data required to aid decision making, without any accountability and the law interpreters with all the leeway for making whimsical,  wayward and even treacherous decisions without even the fear of being questioned sums up the gifts of our Constitution.

 

Among the three organs of our Constitution the law-makers are (theoretically, at least) controlled by the people, bureaucracy (yes, bureaucracy, because without the active support of the bureaucracy no politician can do any wrong!) and finally the judiciary; the law-enforcers, that is, the Executive, are also controlled by the law-makers (at least in principle) and the judiciary. And then there are the ears and eyes of the people- the media- waiting to sensationalize every news involving the misdemeanor of these authorities.

In spite of such strict supervision and control all that we can hear these days are about politician-bureaucrat-underworld nexus even though the fact remains that none, worth the name, from this unholy nexus have ever been punished by the holier-than-thou judiciary.

 

So now think how bad a system can be which is not only NOT subject to supervision but also kept beyond critical observation. Well isn’t our judiciary just that? And do I need to recapitulate that quip: power corrupts and absolute power corrupts absolutely?

 

Thanks to technology, specifically in the area of communications, information is accessible to the masses almost live. So the ability to shove things under the carpet and pontificate without walking the talk is becoming next to impossible. And those who fail to recognize these changes are bound to be thrown into the dustbins of history. We have a report, dated 09 Oct 2024 at https://www.youtube.com/watch?v=pPbNTbyb-Vg, providing an overview of the performance of the CJI, D Y Chandrachud. The comments posted by viewers are worth reading and understanding. While criticism of the judges was earlier restricted to closed door discussions, the public, having decided that enough is enough, are openly venting their frustrations and views in public domain, accessible to anybody in any corner of the world.

 

Here is a message that has gone viral on social media.

 

I request the doctors, with folded hands, that whenever a judge falls ill, instead of giving him medicine, given him a next date. The justice system of the country will improve automatically. Makes sense to me. It can also be extended to all service providers to expedite the process.

 

P M Ravindran/ raviforjustice@gmail.com                                                              21 Oct 2024

 

 

 

EXAMPLES TO ILLUSTRATE JUDICIAL PERFIDIES BROUGHT OUT IN THIS SERIES

 

1.      13 years after independence and 10 years after we adopted a Constitution, the Apex Court had ruled, in Berubari  Union & Exchange of Enclaves (AIR 1960 SC 845, 856), that the Preamble is not part of the Constitution and, 13 years later, in Kesavananda Bharati Vs State of Kerala, ruled that the Preamble of the Constitution was part of the Constitution and the observations to  the contrary in  Berubari Union case was not correct (AIR 1973SC 146). Did any facts or law change change during the intervening period? No.

2.      The same Kesavananda Bharati judgment was used to introduce a weird concept of basic structure of the Constitution. The basic structure of the Constitution is taught in high schools and simply stated it is that the Constitution has provided three organs- for law making, for law enforcement and for law interpretation (in cases of dispute) and all of them are to work within the frame work laid down by the Preamble. But the judgment itself has not defined this basic structure and in practice it has been reduced to the judiciary usurping all the powers of all the organs and keeping itself as an unaccountable, self serving entity. Literally, it was murder of democracy itself.  There is an interesting exposition of this judgment at https://nlc.org.in/nothing-is-more-laughable-and-contrary-to-the-elementary-principles-of-jurisprudence-than-the-so-called-basic-structure-theory-based-on-which-the-supreme-court-has-rendered-hundreds-of-judgements-an-5/.

3.      The third blasphemous judgment is what is known as the ADM Jabalpur case. It was during the dark days of Emergency that the Supreme Court held that even right o life would not be a fundamental right during the Emergency. This led to critics castigating the judges by declaring that the judges crawled when required to bend. One of the judges, Y V Chandrachud, later went on to become the longest serving Chief Justice of India.  More than four and a half decades later, his son, D Y Chandrachud, as the Chief Justice of India, admitted that that judgment was wrong. Did it make any difference to all those who suffered by that judgment? Did it help in changing the system for the better?

4.      Worse was still to come. Indira Gandhi, then Prime Minister, had been convicted by the Allahabad High Court on 12 June 1975, for election malpractices. She challenged the High Court's decision in the Supreme Court. Vacation bench of V R Krishna Iyer, on 24 June 1975, upheld the High Court judgment and ordered all privileges Gandhi received as an MP be stopped, and that she be debarred from voting. However, she was allowed to continue as Prime Minister pending the resolution of her appeal. On 25 June 1975 Indira Gandhi declared the Emergency and introduced a Constitutional amendment with far reaching effects and unheard of in the annals of jurisprudence. The 39th amendment to the Constitution, of 06 August 1975, made with almost all the opposition leaders in jail, even exempted the Prime Minister from all punitive actions in cases of allegations of election malpractices with retrospective effect. And, based on this amendment, she was acquitted by the apex court on 07 November 1975. Y V Chandrachud was a member of this bench too, which was headed by the then CJI A N Ray, who had been appointed as CJI, on 26 April 1973, superseding three others, who had been dissenting judges in the Kesavanada Bharati case. 

5.      Thereafter history is replete with whimsical, preposterous and obnoxious judgments which have contributed to the failure of rule of law in this country in a big way. Here are some more examples.

6.      The apex court failed to deliver a fair judgment even in the case of the date of birth of a Chief of Army Staff. The law on the subject is clear. The birth certificate or the school leaving certificate are considered authentic proofs for date of birth for any citizen in India. Gen V K Singh’s proof- his school leaving certificate- was foolproof. But more than 30 years into serving in the army and having risen to a rank one notch below the Chief, he was asked to sign an undertaking that he was prepared to accept the date of birth wrongly entered in the application form for admission to the National Defence Academy. His petition to the Supreme Court was dismissed on an unheard of argument by the government counsel about a line of succession being disturbed. Nobody asked why a Lt General had to sign an undertaking of the nature Gen VK Singh was made to sign on the eve of his appointment as an Army Commander.

7.      The issue of date of birth again figured in the case of Virendra Dutt Gyani, a former Acting Chief Justice of Guwahati High Court who had retired on 29 July 1998. Born on 30 July 1936, there was no doubt he had attained 62 years of age on 30 July 1998. After the Central Government introduced enhancement in pension in 2006 for pensioners attaining 80 years of age and above in various stages, Virendra Dutt Gyani became eligible for 20 percent hike in pension from Jul 2016. However, he claimed that he had entered 80 years of age in July 2015 itself and claimed the enhanced pension. The concerned authorities declined it rightly. But a division bench, comprising judges Ujjal Bhuyan (he is now a judge of the Supreme Court) and Nelson Sailo of the Guwahati High Court granted his demand. A three member bench of the Supreme Court, headed by the then CJI Gogoi and judges Deepak Gupta and Aniruddha Bose, dismissed the Special Leave Petition of the Union Government with this 4 line observation: Having heard learned counsel for the petitioners and on perusing the relevant material, we are not inclined to interfere. The special leave petition is accordingly dismissed.

8.      The cases of Rank Pay of armed forces officers and the Sahara India case have similar contrast in the way judges apply logic to cases before them. In the former, Rank Pay, introduced in 1986 for the officers was denied to them through subterfuge. The new basic pay was calculated and the rank pay was reduced from it before fixing the revised basic pay. Major (then Captain) Dhanapalan observed this while he was involved in revising the pay of the civilian employees of the Military Engineering Service. He brought it to the notice of the then Chief of Army Staff, General K Sundarji. But nothing happened thereafter.  Finally, Major Dhanapalan approached the High Court of Kerala in 1998-99 and got relief. Even when the Supreme Court upheld the decision of the High Court it did not apply the order to all similarly placed beneficiaries leading to many beneficiaries approaching the courts in groups. A sad state of affairs for courts reeling under mountains of pending cases. Finally, more than a decade later, the Supreme Court ordered the government to pay the dues to all affected officers; but, accepting the government’s claim of financial problems, the officers were deprived of the arrears of 20 years. Nobody paid for the subterfuge. In contrast, in one petition filed by the Securities and Exchange Board of India, Sahara India was ordered to refund the deposits of all the depositors, amounting to Rs 25,000 Crores in a few months. The company could not pay it within the specified period as the money had been invested in various projects. Its CEO, Subroto Roy, spent a few years in prison before he died.

9.      Coming to the mountain of pending cases, the only argument I have heard from judges is the shortage of judges based on an irrational judge to population ratio. It doesn’t require Einstein’s brains to understand that it is not the population that matters but the number of cases filed. Adv K T S Tulsi had proved with statistics that it is the judge to docket ratio that matters and that it is in favor of Indian judges.  Here are the statistics he had quoted in 1999:

Cases Filed in One Year    : India 13.6 Million (1,36,68,073), USA 93.81 Million

Dockets Per Judge             : India 987 per Judge, USA 3235 per Judge

Shockingly, the colonial legacies of holidays during summer, winter and festivals, short working hours and adjournments ad infinitum have never figured among the reasons. CJI D Y Chandrachud took the cake for not establishing even a vacation bench during the holidays for Christmas in 2022, shortly after he took over as CJI. If somebody thought that it meant that there was no use of the Supreme Court in the day to day affairs of the country, I am sure, he cannot be faulted.

10.  As per reports published by India Today on 16 November 2019, 68 percent of inmates in our jails are under trials and 65 percent of them belong to the marginalized sections of the society. As per a report in Times of India on 02 July 2023, within 11 hours of the Gujarat High Court denying bail to Teesta Setalvad, two benches were constituted by the Supreme Court on a holiday, while the Chief Justice of India was attending a cultural program, and granted bail by a three member bench.  In between a two member bench was divided leading to the constitution of the three member bench. Ever since then, I have kept wondering whether the divided verdicts of the two member bench shouldn’t have given finality to the High Court order itself.

11.  And then there are cases involving the high and mighty, like Lavlin (involving Pinarayi Vijayan, the Chief Minister of Kerala since 2016) being adjourned 40 times in the Supreme Court, as per a report, dated 03 May 2024, at https://www.onmanorama.com/news/kerala/2024/05/02/supreme-court-lavalin-case-adjourn-final-hearing.html. So is the case with National Herald, involving Sonia Gandi and Rahul Gandi.

12.  The Sabarimala verdict on women’s entry comes to mind as a case of wrong application of the provisions of the Constitution. It was decided on the basis of Article 25(2)(b). While the mandate of Article 25(2) (b) is to throw open Hindu religious institutions of a public character to all classes and sections of Hindus, rights under Article 26 is provided to every religious denomination. Now even hard core rationalists cannot deny that if any change had to be made, on the principle of gender equality, it was to be made for Article 25(2)(b) by making it non-religion specific. (A detailed analysis is available at https://www.vijayvaani.com/ArticleDisplay.aspx?aid=4849) The misery it unleashed on the unsuspecting devotees in 2018 had to be seen to be believed. Review petitions to reconsider the decision is pending before a 9 member bench so far. Well, as per information provided to the Lok Sabha on 28 July 2023, there were 5 cases pending before 9 member benches, 6 cases pending before 7 member benches and 18 cases pending before 5 member benches, the oldest dating back to 1992.

13.  In contrast, the apex court dismissed, with costs on the petitioner, a petition filed by a former chairman of Uttar Pradesh Shia Central Waqf Board, Syed Wasim Rizvi. The petitioner had prayed for deletion of 26 verses from the Quran on the ground that justifications given by Islamist terrorist groups for the attacks on non-beleivers/civilians emanate from the 26 verses/suras of the Islamic Holy book. The petition was dismissed as frivolous.

14.  The judiciary has even led the subversion of the Right to Information Act. It began with prescribing a fee of Rs 500 with the application and Rs 50/- for the 1^st appeal. With other public authorities this was just Rs 10/- with application and no fee for 1^st appeal. Even then the judiciary had kept its judicial functions out of purview of the Act which was meant to promote transparency and accountability in the working of every public authority and to contain corruption and to hold Governments and their instrumentalities accountable to the governed.

15.  The Supreme Court even claimed that the office of the Chief Justice of India was out of purview of the RTI Act to deny information held with the Chief Justice. Even after the competent authority, the Central Information Commissioner(s), decided against it and two benches of the Delhi High Court also upheld that decision the apex court took a decade to finally admit that the CJI’s office was very much within the purview of the RTI Act. But even then they introduced an illegal provision that the Public Information Officer may ask for the reasons for seeking the information. Illegal, because, the Act explicitly stated that An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.

16.  The apex court has not, in blatant violation of the law, even complied with the provisions of Section 4(1)(b) of the RTI Act which mandates disclosing of certain information suo moto. It includes the directory of its officers and employees and the monthly remuneration received by each of its officers and employees. While initially the details, including remuneration, of the employees were given the remuneration of judges was not provided. Instead, in the case of judges, the reference of the orders pertaining to their pay was provided. Of late, that is, as on 08 October 2024, even that is missing. Also, regarding remuneration of officers and employees, excluding judges, earlier the pay scales of employees were given category wise and the complete list of employees, category wise, had also been provided separately. Now the latter list is also missing. Apparently, the exposure of judge to employee ratio has something to do with it. 

17.  The Supreme Court judges also tried to take over the information commissions by ordering, in what is popularly known as Namit Sharma case, that information commissioners will decide cases in benches of two members one of whom should have been a judge. However, after creating chaos in the working of the commissions for about a year, the court recalled its verdict on 03 September 2013. 

 

JUDICIAL PERFIDIES-32

 

One can continue to write about judicial perfidies till cows come home but it will be only repeating the same narratives with change in the names of the characters. The plot cannot change. It will remain the denial of justice by those who are tasked, empowered and paid to provide it. So, while the critiques can and will continue, there is a need to come to terms with the fact that one has only one life to live. Hence there is this need to wind up this series with a quick recap of the defects/deficiencies that have been brought out so far. And that should lead us to the solutions, implicitly or, if need be, explicitly.

We are already familiar with these fundamentals of jurisprudence:

Ø  Justice delayed is justice denied

Ø  Justice should not only be done but seen to be done

Ø  Not a single innocent person shall be punished even if a hundred criminals are allowed to go free and

Ø  Capital punishment shall be awarded in the rarest of rare cases.

But there are two even more fundamental principles that are not often spoken about:

Ø  Your liberty ends where my nose begins and

Ø  Justice implies two aspects: punishing the guilty and compensating the victim.

 

My first experience with a court of law was neither as a complainant nor as a respondent to a complaint. It was merely for a court of wards permission to mortgage an ancestral plot of land on which I was constructing a house. But at the end of 4 years when I withdrew the application, the lessons I carried home were of the incompetence and arrogance of the judge and the lack of professionalism and servility of the advocate. My subsequent experiences with the judiciary have taught me that it is the judges who have made it so.

 

Then I got stuck with a consumer complaint where I had got a favorable verdict from the District Consumer Disputes Redressal Forum (as it was then, now it is also a Commission). The opposite party had taken up the matter with the appellate body, the State Commission quoting a preposterous judgment of the Kerala High Court in  Jancy Joseph Vs Union of India (1999 (1) KLT 422). There a single judge had ruled that women could not be arrested in cases involving recovery of money. This was a gender based discrimination and against the Constitution. It was done by applying Section 56 of the Civil Procedure Code (of 1908 vintage) to Section 27 of the Consumer Protection Act, 1986. But he had aggravated the discrimination by ruling that others (read, men) could be arrested even if they had no means to pay, which was against the provision of the same Section 56 of the CPC.

 

Since I was now a victim of this totally unjudicious verdict, I had to pursue another case in the High Court of Kerala, questioning the decision in Jancy Joseph. It took the High Court a year and half to dismiss this petition with a curt 2 sentence verdict: ‘This matter had been decided in Petition Number xxxx/yyyy and held against the appellant. Hence this petition is dismissed.’ My advocate while providing me copy of the order did not provide me the copy of the order quoted therein. The court had refused to provide a copy of the same even under the Right to Information Act, saying that it is part of judicial proceedings and cannot be provided as per the High Court’s RTI Rules. Some justice and transparency there!

 

The appeals and revision petitions by the opposite party in the State Commission were also dismissed and after reverting to the District Forum the verdict was again given in my favor but with much reduced refund of cost and compensation without any valid reason. The total litigation lasted 11 years and it had cost me 4 times more than what I had lost as per my complaint.

 

Later, I came to know that a division bench of the same court in Mary Chacko vs Jancy Joseph (2005 (3) KLT 925), in the context of application of the same Section 56 of the CPC to SARFAESI Act had taken a different stand and ordered that women can be arrested because 'there is a clear basis for treating the public dues different from the purely private'.

 

Since then I have been left wondering under which law it is permitted to cheat ordinary citizens of justice.

 

Meanwhile, in 2002, in an article - ‘Democracy? East is East and West is West…’- I first wrote about the need to have rule of law instead of rule of judges. The article is available at http://suchnaexpress.blogspot.com/2011/01/democracyeast-is-east-and-west-is-west.html. Much water has flown down our rivers but the need for a total overhaul of our judiciary has only got reinforced and reached a stage where citizens have begun to perceive the judiciary as a threat to rule of law and democracy. 

 

My letter to the Chief Justice of the Kerala High Court on 18 Nov 2004 had dealt with the following issues afflicting the judiciary: contempt of court (anathema in a democracy), judicial accountability and the need for a National Judicial Commission to try judges (for all omissions and commissions under laws applicable to all citizens), judicial accessibility, judicial process, listing of cases, personal appearance of litigants and representatives, involvement of advocates, citizens’ charter and working hours, grading of advocates and norms for fees and irrationality and unfairness of decisions. The contents of the letter are available at http://raviforjustice.blogspot.com/2011/02/reforming-our-justice-delivery-system.html.

 

This was followed by a one man satyagraha in front of the High Court which was disrupted by the police on the direction of the concerned official of the court. Some respect for freedom of expression which is tom-tommed by our judges who have flip-flopped even in the context of bandhs/hartals which have been bringing normal life to a standstill. Once it was rightly held that they are illegal because it affected the fundamental rights of other citizens but they retracted later.  Even thereafter a judge made road side meetings illegal leading to a politician rightly calling him a dimwit. And for this comment he was punished for contempt of court with imprisonment for six months.

 

On 31 May 2005 an online petition was initiated addressed to the President and Prime Minister of India to constitute a National Judicial Commission to try and punish judges as per laws applicable to ordinary citizens but with twice the severity in punishment. This petition was posted at http://www.PetitionOnline.com/jrandac1/petition.html which is now defunct. However, copy of the petition and the list, including the comments, of 429 citizens who had supported it are posted at https://www.slideshare.net/raviforjustice/310505-the-petition-toconstituteanationaljudicialcommission and https://www.slideshare.net/raviforjustice/310505thepetitiontoconstituteanationaljudicialcommissionsignatures1to429 respectively.

 

It is evident that the failure begins with the Constitution that has created this institution without any systemic checks and worse, provided armor to it through a blasphemously anti-democratic contempt powers. Imagine an employer of a company being made liable to punishment for calling out a non-performing employee. Did the architect(s) of our Constitution forget the very meaning of the term democracy?

While a detailed analysis- ‘Report of the NCRWC- a Citizens Review’- can be read at http://raviforjustice.blogspot.com/2011/03/report-of-ncrwc-citizens-review.html, the following notes, by one of the two of the non-judicial members of the National Commission to Review the Working of the Constitution, are relevant:

Dr Subash Kashyap, former Secretary General of Lok Sabha, had noted: 'While no comments are being made on what went wrong in the procedure, priorities and perspective, it may be put on record that several of the recommendations now forming part of the report go directly counter to the clear decisions of the Commission on which the unanimously adopted draft report of the Drafting and Editorial Committee was based'.

Also, 'The Chapter 7 of the Report is titled 'The Judiciary'.  This chapter particularly is seriously flawed and distorted. The much needed Judicial Reform issues have not been even touched or these got deleted in the final draft'?

 

Shouldn’t this suffice to overhaul our judiciary, lock, stock and barrel? Right from the format of petitions to the complete process from registering a case to its conclusion, every aspect of our judicial functions needs to be reworked.

 

The first issue that comes in the context of format of petitions is the content and details.

 Given that the petitioner is a layman and the judge is a qualified lawyer, shouldn’t it suffice if the petitioner just narrates the facts of the complaint in the petition? Shouldn’t it be the responsibility of the judge to evaluate it in the context of the laws, get clarifications if any (on the facts only) from the respondent and the petitioner and give a fair verdict? I read somewhere that both the parties to litigation know the facts, it is the judge who is on trial. How true. So, if the judge gives a verdict which is not only fair but also seen to be fair, it can be assured that there are no further appeals.

 

This also brings us to the issue of having advocates representing parties and costs.

For the simple reason that the judges are legally qualified persons, the need for advocates representing parties should be banned. This is mandatory for providing a level playing field. Fali S Nariman, a reputed Constitutional lawyer, in his book 'India's Legal system: Can it be saved?’, had rightly written that ‘For more years than I can imagine we lawyers have been using our lawyering skills not in a profession but in a game, in which the more skilful (which tends to become also the more costly), will invariably win.’

 

(I will request my law qualified friends not to take umbrage at this suggestion. The need is to have law qualified people practicing law as doctors practice health care. Nitty-gritties can be worked out)

 

It is seen that quite often petitions are made bulkier by listing cases laws, most of which may not even have any bearing on the issues relevant to the case. In fact I have read at least one advocate, Mathew J Nedumpara, explaining tirelessly that verdict of a particular case apply only to the parties involved in the case (res judicata) and it is the principles on which decisions are made that make for precedents (stare decisis). It cannot be that principles keep changing with every other case. To begin with, case laws, older than 5 years should be declared invalid. Today, with advocates on both sides presenting some facts, some laws and some case laws, it appears that judges can easily toss a coin and decide whom to favor with his verdict.

 

On the subject of principles on which decisions are made, it is interesting to note the flip flops in the court decisions. One of them ended with the establishment of a blasphemous basic structure theory. Here is an interesting report (‘Basic structure of the Constitution revisited’) at http://www.thehindu.com/2007/05/21/stories/2007052103301000.htm.

 

It was followed by the constitution of an unconstitutional Collegium for the appointment of judges. This was done by resorting to a never heard of interpretation of the meaning of a common English word ‘consultation’. That it got entrenched through a series of judgments when the Executive at the Centre was weak cannot be mere coincidence.

 

Coming to costs, there is no reason why this should not be free as rule of law is as important, if not more, than education and health which are practically free in government schools and health care centers.

 

Regarding the conduct of trials and verdict, it is of utmost importance that cases are disposed of on first come first served basis. Of course it will apply only to similar type of cases. So time frames have to be laid down for each category of cases and enforced. Some flexibility can be provided like giving, say, 10 percent extra time for 10 percent cases, on a case by case basis, by a superior court. Any default should be dealt with seriously and severe or repeated default should result in termination of the services of the judge.

 

The need for day to day trials, once charge sheet is submitted, cannot be overemphasized. Not only are the facts fresh in the minds of the parties and witnesses, it is also easy for the judge to correlate them and come to rational and fair conclusions.

 

I have read of the apex court mandating that verdicts should be delivered within 6 months of the conclusion of arguments. But I know of high court judges being elevated to the apex court even when they have failed to deliver judgment for 4 years after final arguments and moved to the higher court without delivering it, leaving the litigant in the lurch.

 

Even at the end of preposterously prolonged trials it can be seen that the verdicts are not seen to be fair. There are many cases where trial courts have sentenced the guilty to death and the apex court exonerating them or reducing the sentence to life imprisonment after the convict has already spent a life term or more as an under trial. With all sentences ordered to be running concurrently the convict is soon out as a free bird to get back to his vocation as a criminal.

 

The other day I was reading a report, ‘US: 54-year-old man rapes a 14-year-old girl multiple times, sentenced to 50 years in jail and physical castration’ (29 April, 2024, https://www.opindia.com/2024/04/usa-louisiana-rape-castration-minor/).

 

I wonder why and under what laws are our courts prescribing that all punishments should run concurrently when the investigating authorities and prosecuting authorities have worked day and night to prove every charge from conspiracy through planning to executing a crime of murder?

 

Incidentally, in the case of a judge who died in an accident the trial court itself had sentenced the guilty to life imprisonment till death. One report is at https://www.dnaindia.com/india/report-dhanbad-judge-murder-court-says-culprits-must-remain-in-jail-till-end-of-life-2976352. Interestingly the report does not mention any motive or previous history of conviction in any crime for those sentenced.

 

Contrast this with the case of murder of a primary school teacher in Kerala in front of his students by a mob and six of the accused being sentenced to death. Even after the High Court upheld the verdict, years later, the apex court acquitted 5 of them and commuted death to life imprisonment for the sixth. Just imagine the plight of those acquitted living with the threat of death for more than a decade. Did the apex court act against the judges who sentenced them to death? Did the court order action against the investigating officers and prosecutors? Did the court order apprehension of the others involved?

 

My study of the performance of our judiciary over the last 25 years has made me doubt not only the competence of our judges but even their integrity.

 

The instances of misuse of power are plenty but the situation is worse now what with 85 percent of the judges in the Supreme Court being kith and kin of former judges or senior judicial officers, as per a list released by National Lawyers’ Campaign for Judicial Transparency and Reforms.

 

Incidentally, the apex court that had illegally trashed the duly enacted National Judicial Appointments Commission Act, had, during the Emergency days, used an amendment to the Constitution (39^th amendment to the Constitution, 10 Aug 1975) to exonerate the then Prime Minister Indira Gandi who had been earlier convicted in an electoral malpractice case by the Allahadbad High Court (State of Uttar Pradesh v. Raj Narain, 1975 SCR (3) 333). Imagine the horror of it. A convict allowed to amend the Constitution in her favour and the apex court accepting that amendment to exonerate her. If this is not turning law on its head then what could it be? Of course such cases cannot happen routinely but what about the principle of conviction being based on the laws existing at the time of occurrence?

 

Whether it was a Chief of Army Staff’s date of birth or an employee seeking pension that had been denied to him or the entry of women in Sabarimala, incompetence of the judges is writ large on the verdicts.

 

When the School Leaving Certificate is the accepted proof of date of birth I cannot understand how a court can accept an error in an application form to be authentic and not accept the date in the School Leaving Certificate produced as supporting document. And the court never asked why a Lt General, on the eve of his promotion to a higher office in the same rank, had to sign an undertaking that he was accepting his date of birth in the application as true and not the one in his School Leaving Certificate. The press and visual media went to town stating that the General, then Chief of Army Staff, was selfishly trying to get advantage of one more year in that office. He was even threatened with prosecution for contempt of court when, while answering media persons, he had responded that he did not feel justice had been done to him.

 

If that was in the case of a Chief of Army Staff, which the whole nation was watching eagerly, the cases of lesser mortals can well be imagined.

 

There is this gentleman who served with the Central Government for 18 years and resigned for personal reasons. He was denied pension and all terminal benefits merely because he had resigned. Subsequently, on learning of a Supreme Court order saying that pension is not charity but deferred wages he applied to Central Administrative Tribunal for his entitled pension. The ignoramuses in CAT dismissed his petition saying it was time barred. On appeal, the High Court referred it back to CAT stating that there is no time bar for pay and pension related issues. The case shuttled between the CAT and High Court another 3 times before, against all principles of natural justice, the High Court dismissed the last case, after 6 years, by quoting Rule 26(1) of CCS (P) Rules 1972. As per this rule an employee forfeits all his previous service if he resigns.  While this, by itself, is obnoxious Rule 40 of the same CCS Rules provides for payment of pension and gratuity to government servants compulsorily retired from service as a penalty. Wondering how the justice seeker could retain his sanity all through.

 

In contrast is the case of a former acting chief justice of a high court being granted enhanced pension, due to him on attaining 80 years of age, on his attaining 79 years of age itself on the plea that he had entered 80 years then. Weird as this claim was, the court added its own justifications like the profession of a  judge being a noble one and pension being a welfare measure etc. (Orders, dated 15/03/2018, of the Gauhati High Court in WP(C) 4224/2016 and upheld by the Supreme Court on 08/07/2019 in SLP (Civil) Diary Number 18133/2019)

 

The judgment, on women’s entry in Sabarimala temple, dated 28 September 2018 in WP (C) No. 373 OF 2006, is another one of its class where four of the five judges of the apex court proved their incompetence in interpreting the provisions of the Constitution. Articles 25 and 26 deal with freedom of religion. 25(2)(b) is restrictive and discriminatory in so far as it provides for opening of only Hindu religious institutions of a public character to all classes and sections of Hindus. It is this discrimination, based on religion, that should have been addressed rather than misinterpreting it as a gender based discrimination because women of a particular age group only are banned from entering the temple. This by any stretch of imagination can only be a reasonable restriction as propounded in the many articles on fundamental rights.

 

In contrast, there is absolute ban on women entering their places of worship in other religions. Worse, as per a report, dated April 13, 2021 (‘Supreme Court junks ‘frivolous’ plea to remove 26 Quran verses’ at https://indianexpress.com/article/india/supreme-court-waseem-rizwi-plea-removal-of-quran-verses-7270090/ ) the apex court imposed Rs 50,000 as cost on the petitioner, Syed Wasim Rizvi, former chairman of Uttar Pradesh Shia Central Waqf Board who had prayed for regulation of Madrassa education on the ground that children should not be indoctrinated and to ensure steps are taken to avoid literal teaching of verses advocating violence.

 

In the Mangalore air crash, while the high court granted same compensation to all those who died, the apex court revised it, and based it on the income of the victims. One is flabbergasted on what role the passenger’s income has got to do with the compensation when he had bought his tickets at the same price as the rest. One could understand if different compensations were paid based on the different classes of passengers and the fares paid by them.

 

The above examples should suffice to conclude that no common sense, no principles and no rationale apply to our judges and their judgments. No wonder somebody commented that ‘we do not get justice in our courts, what we get in our courts is called justice‘. The important question is whether citizens of a democracy should accept this as a gospel?

 

The politicians are often criticized for attempts to subvert the Constitution but the fact is that the architects of the Constitution themselves had subverted it given that the contents are not in synch with the objectives outlined in the Preamble. This had led to the apex court first declaring, in Berubari Union Case (1960), that the Preamble is not part of the Constitution and cannot be enforced in a court of law and then correcting it after more than a decade in Kesavanada Bharathi (1973) stating that it was part of the Constitution but cannot be amended under Article 368. But then we saw the terms ‘Socialist Secular’ and ‘and integrity’ being inserted in the Preamble on 03 Jan 1977, during the dark age of Emergency from 25 Jun 1975 to 21 Mar 1977. And the courts did nothing about it.

 

We have seen how the judiciary had let down even the armed forces, held by the people as a symbol of national pride along with the national flag and national anthem, by their insane verdict in the date of birth case of the Chief of Army Staff. But that was not the first or last in the series of patently wrong judgments of the apex court affecting soldiers. In what is known as The Rank Pay Case, the armed forces officers had been cheated of their Rank Pay introduced in 1986. But the first petitioner, Major Dhanapalan got relief in early 2000. But the court did not extend justice to similarly placed officers. It forced a large number of officers to pursue cases in different groups, all over the country. It took over a decade before these cases were disposed of but only after denying them the dues of 20 years, from 01 Jan 1986 to 31 Dec 2005. Worse, those who had perpetrated the fraud on the gullible officers were not punished.

 

The injustice should be obvious because it was around the same time that Subroto Roy of Sahara went to jail because he could not refund almost Rs 25000 crores to his investors as directed by the court within a specified period. I doubt if all the investors had approached the court for this relief. (For details see https://en.wikipedia.org/wiki/Sahara_India_Pariwar_investor_fraud_case.) I cannot blame those who ask in subdued tones if any judges were there among the investors.

 

More recently, in the One Rank, One Pension (OROP) case too, the apex court let down the soldiers by turning the definition of OROP- two personnel from the armed forces in the same rank and with the equal length of service should get the same pension irrespective of their dates of retirement and any future enhancement in the rates of pension must be automatically passed on to past pensioners- itself on its head. Consequently, while the anomalies are gross, the case of Major Generals drawing less pension than Brigadiers, who are junior in rank and years of service, had been highlighted in the order itself. But this has only been mitigated, but not corrected, by raising the Major General’s pension to that of the Brigadier.

 

Interestingly, OROP has been in existence for judges, MPs, MLAs bureaucrats and even the Chiefs of the armed forces since long. Only thing is the format has been different. For MPs and MLAs it is minimum pension beginning with one day of service and a regular pension after 5 years of service. Thereafter there is a fixed increment for every additional year of service. For the babus, at the top two levels they have a fixed amount as pay, and pension being 50 percent of that, every retiree, irrespective of his date of retirement gets the same pension. It applies to the Chief of armed forces who hold the rank of General and equivalent and to Lt Generals and equivalents who are Vice Chiefs and Army Commanders. Other Lt Generals who retire in the same rank and service have, obviously, been left out.

 

Another case in which the apex court has failed soldiers is in what is known as the NFU (for Non-functional Financial Upgradation) case. This obnoxious scheme was introduced in 2006 for the IAS and IPS only, only to promotion incompetence but on the specious argument of stagnation for promotion in their services. By this, if any member of the IAS gets promoted anywhere in the country, the financial benefits would automatically be passed on to all the members of the same batch. In a blatantly discriminatory manner, the same benefit would be passed on to the members of the same batch of IPS only after two years. Worse, the members of the other Group A services like IFS, IRS etc were denied it initially. But they got them after approaching the CAT. The ones who were more eligible, if not the only ones who should have been eligible for such a scheme, the armed forces officers, even after getting a favorable verdict from the Armed forces Tribunal in 2016 are still waiting for it. An appeal filed by the Central Government against this verdict has recently been withdrawn. See the table below for the relative comparison of promotions in the armed forces vis a vis the civil services.

The armed forces officers are not only lacking in promotion avenues but even the promotions come late. For example, an army officer gets promoted to the rank of Major General, considered equivalent to the Joint Secretary, on completing 26 years of service, whereas the babu gets promoted to Joint Secretary with just 14 years of service. Worse, it is not only promotion avenues that are lacking for armed forces officers but there is attrition also what with the majority of them getting superannuated as Colonels on attaining 54 years of service.

 

The above case has been explained in some detail only to highlight how a case that should have been disposed off in one hearing had dragged on for 9 years and then had to be withdrawn by the appellants. Contrast this with the case of the high court judge who had been given enhanced pension one year before it was due to him.

 

We have already seen how a false concept of Basic Structure of the Constitution and an unconstitutional Collegium has been thrust on the nation by the judges of our apex court. And we had a situation when these judges were almost demanding that the President just sign the appointment letters prepared by the Collegium.

 

Now let me walk through some not so much discussed issues.

 

Firstly, let me begin with the use of the honorific ‘Justice’ by judges of the higher judiciary.  Article 124 (1) states that There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges. That is the appointment is as judges and the senior most is designated as the Chief Justice. So the correct, and only, permissible use is Mr abc, Chief Justice of India, Supreme Court of India or Ms xyz, Judge, Supreme Court of India. Similar logic applies for judges of the High Court under Article 216 of the Constitution. Interestingly, the judges in the subordinate courts do not use this honorific, though they are also judges as per the Constitution and doing the same job. Justice is what is supposed to be delivered by the judges. That brings us to yet another question: why should a high court judge retire at 62 years of age when the one in the Supreme Court retires only at 65? And why should judges retire at 62 and 65 when the babus, file pushers, retire at 60? Quixotically, the Chiefs of Army, Navy and Air force retire at 62 years of age and the Chief of Defense Staff at 65.

 

As an aside it is important to look at what judging is all about. Is it really a profession that requires rigorous training and exercise? To my mind, it is one of the basic and inherent qualities in every human, nay, living, being. All that our designated judges are required to have is knowledge of the law and a commonsensical approach in applying those to given circumstances. Though we have often heard a quip ‘ignorance of law is not an excuse’ we have never questioned why judges are never taken to task when their judgments are overturned by appellate courts.

 

Article 124(7) states that No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India. Now this is essentially a bar on reemployment of judges, for obvious reasons. Unfortunately, the language is not that obvious. So let us look at the provision for judges of the high courts. Article 220 states that No person who, after the commencement of this Constitution, has held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts. Here obviously there is no scope of any ambiguity.

 

In spite of this, apart from the already provided re-employment in various tribunals and quasi judicial bodies, the judges tried to usurp some more by ordering that chief information commissions should be either a retired Chief Justice of a High Court or a judge of the Supreme Court and that cases should be decided by a bench of two members one of whom should the law qualified and preferably a retired high court judge. (Reportedly the only Chief Information Commissioner who had been suspended from that post was M A Khan, a former judge of the Allahabad High Court. He had been suspended on 09 July 2008 by Governor T V Rajeswar Rao for ‘violating norms for recruiting employees in the commission, financial irregularities, mistreating complainants and non-cooperation with colleagues’. He had later committed suicide due to depression.)

 

Interestingly Para 9 of the order in WP(C ) 210/2012, states: The appointment of the judicial members to any of these posts shall be made in consultation with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be. Recollect the term ‘consultation’? Fraudulently and dangerously given to mean as concurrence for justifying the unconstitutional Collegium?  Fortunately, almost one year after this order a division bench of the court recalled the order but with different directions. Of those this one is particularly relevant:  ‘that the Committees under Sections 12(3) and 15(3) of the Act while making recommendations to the President or to the Governor, as the case may be, for appointment of Chief Information Commissioner and Information Commissioners must mention against the name of each candidate recommended, the facts to indicate his eminence in public life, his knowledge in the particular field and his experience in the particular field and these facts must be accessible to the citizens as part of their right to information under the Act after the appointment is made.’

 

Now just think of applying the same direction in the case of appointment of judges to the higher judiciary. The bigotry should be obvious.

 

I am for all tribunals and quasi judicial bodies being treated as specialist courts and should have a common mode of recruitment. And it should not be left to be filled by retired judges or bureaucrats.

 

My experiences with these quasi judicial bodies have convinced me that they are worse than fly by night operators and a waste of the tax payers’ money. A detailed study about the Information Commissions has been done in three parts of this serious.

 

A Parliamentary Standing Committee on the Ministry of Law and Justice, then headed by Rajya Sabha member E.M.S Natchiappan, had commented that 'Judges appointing judges is bad enough in itself; judges judging judges is worse.'

 

A former CJI had admitted that 20 percent judges were corrupt. A Transparency International Report revealed that the judiciary and police were the most corrupt institutions in India. Adv Prashant Bhushan exposed that 8 CJIs were corrupt and though contempt of court action was initiated his claim that corruption was used in the wider sense of the term got him reprieve. As if such corruption was legal and ethical. But, in spite of such revelations and admissions, the cause of concern is that nothing has been done to control these crimes. But there are even more serious crimes for which ordinary citizens would have been sent to the coolers for life but judges have got away because of brothers in black cloak judging them. Mysore sex scandal involving judges and women advocates and  illegal land allotment scam, involving judges, both in Karnataka, cash at door step scam involving judges of Punjab and Haryana High Court,  P D DInakaran case, involving multiple charges, are a few that easily comes to mind. While the details can be got by searching on the internet here are three links that I found very interesting:

Ø  https://www.indiatoday.in/india/story/law-intern-sexual-harrassement-judiciary-stares-at-morality-crisis-176475-2014-01-11

Ø  https://www.legalserviceindia.com/legal/article-5419-a-sneak-peek-into-the-corrupted-indian-judiciary.html  and

Ø  a document corruption-in-indian-judiciary_1511777721 that can be downloaded from https://wwjmrd.com.

 

Law Commission of India, then headed by a former Supreme Court judge AR Lakshmana, had, in its Report No 230 of Aug 2009, dwelt on the issue of judicial reforms. It had admitted to the failure of the Collegium and the need to revert to the old system, the need for cutting short of vacations by 10-15 days, increasing the working hours by half an hour per day, better use of court time etc. Even these symbolic changes have not been implemented till date.  Unfortunately, it had also harped on the judge to population ratio which is a farce. What matters is the judge to docket ratio. This, as per data presented by K T S Tulsi, a senior advocate of the Supreme Court in 2004, was highly in favor of the judges in India. They were handling only less than one third the cases being dealt with by their counterparts in the US of A. People who quote this false reason to cover up their incompetence and other shortcomings should not be eligible, not only for holding the offices of judges but even of any other public office.

 

Things have spiraled down so badly that we have witnessed Supreme Court judges (verbally) convicting victims, not only without trial but without even knowing the facts, as it happened in Nupur Sharma Case. More recently we had another judge threatening to tear apart an accused in a contempt of court case. Reading of such instances one is tempted to ask: arrogance, is your other name a judge?

To conclude this part, here are two quotes:

Justice is an intrinsic human need. We suffer much privation but we cannot suffer being wronged. Absence of justice, we must not forget, is one of the causes of crime.

('Needed high speed legal redressal'-Aravind Kumar, Jurist and lawyer, Pioneer, Kochi,01 Aug 2006)

The judicial system of the country, far from being an instrument for protecting the rights of the weak and oppressed, has become an instrument of harassment of the common people of the country.

(People's Convention of Judicial Reforms and Accountability held at ISI, New Delhi on 10-11 Mar 2007; http://www.judicialreforms.org/)

 

P M Ravindran/ raviforjustice@gmail.com / 12 Jun 2024