JUDGES REVOLT: CAN OUR JUDICIARY BE SAVED?
“To allow the chief justice practically a veto upon the appointment of judges is really to transfer the authority to the chief justice which we are not prepared to vest in the President or the government of the day. I, therefore, think that is also a dangerous proposition,“- Dr B R Ambedkar, Constituent Assembly debates
"The justice delivery system has reached its nadir"- Y. K. Sabharwal, former CJI
We urgently need three Judicial Commissions at the national and provincial levels: an Appointments Commission, a Performance Commission and a Punitive Scrutiny Commission. They should have the power even to terminate services in cases of gross judicial misconduct.- V R Krishna Iyer, former judge, Supreme Court of India, ‘The patchy Indian judicial record’ , The Hindu, 06 Sep, 2007
'Judges appointing judges is bad enough in itself; judges judging judges is worse.'- E.M.S Natchiappan, heading the Parliamentary Standing Committee of the Ministry of Law and Justice
To answer the question, can our judiciary be saved?, Texas style: no! Definitely not the way things are at present. Just imagine the audacity (and equally probable brainlessness!) of Kurian Joseph, one to the four judges who held the press conference to cast aspersions on the CJI, going back to the press the next day and stating ‘we do not want any external interventions’! Of course, the immediate need to retain that iota of credibility that the judiciary has been enjoying for a long time now is to prosecute these four judges and send them to jail, a la Karnan.
Having said that, one can only analyse what all are needed to have a justice delivery system that works to deliver what it is expected to deliver-justice! Here there are two options: one, to go on a quoting spree that implicitly suggests some of the remedies. For example, Natchiappan’s observation, quoted above, readily suggests that there should be a body not having judges as members, to judge judges. In fact an online petition, initiated on 31 May 2005 and posted at http://www.PetitionOnline.com/jrandac1/petition.html, appealing to the President and PM of India to constitute a National Judicial Commission to try and punish judges as per laws applicable to citizens, had been signed by 429 citizens, none with vested interests but all stakeholders, nonetheless! (The PetitionOnline site has subsequently gone off cyberspace but the contents of the petition and the comments of the supporters are posted at https://www.scribd.com/document/347897272/310505-the-Petition-to-constitute-a-National-Judicial-Commission and https://www.scribd.com/document/347898072/310505-the-Petition-to-constitute-a-National-Judicial-Commission-Signatures1-to-429 ) And Krishna Iyer has suggested how many bodies are required for dealing with the various aspects involving judges.
The other option is straight forward and based on first principles. For example, if there is delay, is it only due to deficiency in the number of judges? If yes, then certainly there is a case for increasing the number of judges. But what about other obvious reasons like less dockets per judge (compared to the US of A, for details see Part 1 of this series of critiques ‘JUDGES REVOLT-the last nail on the coffin of judicial credibility-190118 available at http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4562), the preposterously large number of cases listed per day, the unwarranted adjournments etc wasting much of the precious time of our courts and worse, judges going on vacation as in colonial times? As per reports appearing in media/social networks, the higher courts work only for around half the number of days in a year!
To begin with, all quasi judicial organizations should be converted to regular courts with specialization and should be headed by appropriately qualified citizens and definitely not by retired judges or bureaucrats. (Isn’t it obnoxious that the apex court that rubbished the National Judicial Appointment Act has not found anything wrong with re employment of retired judges in quasi judicial organizations like human rights commissions and consumer ‘courts’ when Article 124 (7) of the Constitution of India 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." Similarly, Article 220 for permanent judges of high courts not to plead or act in any court or before any authority except before the Supreme Court and other high courts.)
And when bureaucrats, who are required to do much more routine and mundane jobs have to retire at 60 there is no reason why judges, at all levels, should not be retired at this age if not lesser, given that the mental prowess required to analyze complicated cases would certainly require a young and more dynamic brain.
The above two suggestions together would at once remove dead wood and apple polishers while blunting the virtual judge to population ratio argument.
Then, if a judge can hear only 5 to 10 cases in a day there should be only maximum 15 cases listed. And these cases should be continuously listed till they are disposed off one by one, adding as many cases to the list as are disposed off the previous day. Even while listing these cases, they should be divided into four parts-fore noon 1st half and 2nd half and afternoon 1st half and 2nd half- so that litigants are required to be present only for those durations and do not have to waste their complete days for each attendance. The argument that the time of the judge will be wasted is baseless as the judge can easily use the intervening breaks, if any, as per the dictates of the cases pending before him.
The limits of adjournment are specified in most laws but are not followed. They should be enforced ruthlessly. The penalty imposed on the defaulting party should be deterrent.
Ideally advocates should not represent any party in any courts and affected parties should be encouraged to argue their cases in person. This will put an end to the games played by advocates at the cost of litigants. Fali S Nariman, in his book 'India's Legal system: Can it be saved? , had asserted thus: 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. (Incidentally, the illustrious lawyer has not given any suggestions what so ever for saving India’s Legal System. His book concludes with the following poser: In this country of ours, the Judiciary is the salt of the earth. My wish for the third millennium is that if it please God, there be no occasion when it is said that the salt has lost its flavour, because as the Bible warns us: if the salt ever loses its flavour, then wherewith shall it be salted?)
To allay the fears of all the advocates being jobless and more importantly to make the first level of grievance redressal available at the door step what can and needs to be done is that every advocate should be given licence as an arbitrator and allowed to hear disputes between aggrieved parties and give decision. The licence should include their subject of specialisation and an accreditation status provided by the bar council. Their fees should be regulated like that of doctors. Only if the decision of this first level redressal system is not acceptable should the matter go to a formal court. The decision as well as the satisfaction level of the parties concerned should be communicated to the bar council for compiling the performance profile of the advocate.
The party aggrieved by the decision may consult any other advocate and get a formal petition prepared including the charge sheet but the filing in the court has to be done by the party only and not the advocate, though the details of the advocate preparing the petition should be on record to enable assessment of his competence later (this concept, in a very rudimentary form, is already followed by the Income Tax Department which tracks the tax practitioners filing IT returns on behalf of third parties.) But no advocate should be allowed to appear in any court representing any of the parties. This court may summon the parties or witnesses who had deposed before the advocate during the 1st stage. This may be done only once and in very rare cases twice. The court's decision should be communicated not only to the parties but also to the bar council which should use the data to grade the judge as well as the advocates-both the one who had acted as arbitrator and the one who had prepared the petition. This grading should be reflected in the accreditation status and the fees payable to the advocate and they should be renewed every three years. This certificate should be displayed in the office of every advocate in a manner that it will be visible to every visitor.
The final appeal, except in cases where the punishment is death or life imprisonment, should be to a bench of two judges at the district level.
The high court should take the final call in cases of death and life imprisonment sentences. Otherwise it should deal with issues of law referred to it by the district courts and intra-govt disputes. The quality of the references from district judges should be evaluated to grade and appraise them and their compensation including scope for continued employment and promotion, should also be linked to this.
The apex court should only be involved in vetting the laws made by the parliament and the state legislative assemblies and enforcing correction.
A website, having all case laws related to specific crimes should be maintained by the bar council and monitored by the high courts and apex court. It should be accessible to all. It may be necessary at this juncture to hold as void all case laws older than, say, 25 years.
Delivering the keynote address on ‘The Case for Delivering Better Justice to Women: A view from the Judge’s Chair’ at the 4th annual Women’s Day event organized by Moneylife Foundation, Sujata Manohar, former judge of the Supreme Court, said: “The first problem with the Indian justice system is that the laws can’t be properly understood. We need laws that take into account the needs of society. Once this is done, they need to be implemented. There are several other things we need. Just punishing wrongdoers, giving jail-time isn’t enough. We need community service provisions, we need compensatory provisions.”
Have you ever thought why all the under trials are poor and languishing in jail for the best part of their lives, if not their whole lives, when the likes of Kanimozhi and D Raja could approach the apex court repeatedly for bail even during their short term in jail, pending framing of charges? The condition for granting bail is simple- the surety must produce the latest receipt for having paid land tax!
And do you know that in our courts, a copy of the order is issued to the accused only if he is convicted and not if he is acquitted? If acquitted, he has to apply for a copy of the order for his records! (Providing another opportunity for the advocate to fleece him!)
Can’t a judiciary that could trash the National Judicial Appointments Commission Act amend these, considering how far it will go to undo the injustice to the poor under trials? Or to the citizens who have been viciously dragged through preposterous court procedures due to the malevolence of some public servants?