Tuesday, 10 May 2011

Lokpal or not-the judiciary needs to be disciplined first


It is indeed a great achievement for Anna Hazare and all those who have supported his India against Corruption crusade that the people in government who have dragged their feet for over 40 years in enacting the Lokpal Bill have finally been made to sit up and do something. Typical of those who have treacherously managed to exploit their offices for personal gains at public cost had let loose their first salvo by trying to discredit the members of the civil society who have been co-opted to draft an effective law to check corruption. Even the media proved that they are one with the corrupt by tom-tomming these unsubstantiated allegations. Only Tehelka had the honesty to pursue further and come out with corrections. (‘The smears. And the facts about the Bhushans’ can be read at http://www.tehelka.com/story_main49.asp?filename=Ne070511SMEARS.asp) But there have been more worrisome news coming. The worst, to my mind, is the suggestion to exempt the Prime Minister and the judiciary from the purview of Lokpal. It is my considered opinion that except for the President of India, who in any case is seen only as rubber stamp, no public servant should  be exempted from the purview of Lokpal/Lokayuktha. it would be futile to constitute the Lokpal if the Prime Minister is exempted from its jurisdiction as recent history itself proves that most of the Prime Ministers, starting with Indira Gandhi, were not overboard. While Indira Gandhi had been accused of election malpractices and convicted, Rajiv Gandhi was involved in the Mother of all Scandals- the Bofors’ case. The case continues with no one convicted till date though there is no doubt in any one’s mind that the crime had been committed. Narasimha Rao, as Prime Minister, had to appear as an accused in three cases- the Pickle tycoon case, JMM bribery case and the St Kitts case. That he was not convicted in any of them is no argument to prove his innocence, given the fact that the accused was more directly than indirectly was the prosecutor himself. But these cases, in themselves prove one thing- that even the current system has, in principle atleast, the means for bringing even the Prime Minister to book. But when it comes to the judiciary the fact remains that the high court and supreme court judges are well above law or in other words a law unto themselves! The only means available to punish them is impeachment which is as useless as declaring that BPL patients will be given free treatment on the moon if they can reach there on their own! And the crimes of the judiciary aren’t negligible either. No, not merely the high court and supreme court judges who enjoy the immunity afforded by a ludicrous process called impeachment but also by the lower judiciary and even the quasi judicial organizations which use the incompetence or/and indulgence of the higher judiciary to perpetuate crimes which have to be seen to be believed. Before I go on to illustrate some cases to substantiate my statement this is what the National Commission to Review the Working of the Constitution (NCRWC) has stated in their report:
'Judicial system has not been able to meet even the modest expectations of the society.  Its delays and costs are frustrating, its processes slow and uncertain.  People are pushed to seek recourse to extra-legal methods for relief.  Trial system both on the civil and criminal side has utterly broken down.'
Also, 'Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice'.
The cases against P D Dinakaran, Soumitra Sen, Nirmal Yadav etc have occupied adequate media space to need repetition here. But K G Balakrishnan needs to be quoted even if it means repetition. When the Right to Information Act was enacted, KGB as the then Chief Justice of India had requested the Prime Minister to exempt judiciary from the purview of the Act. That this request was not acceded to is now part of history. So what did KGB do? Abused his office to declare his office to be out of purview of the transparency law! This contention has been held illegal by the final authority on the law- that is the Central information Commission and that too by a full bench of the commissioners! It has been subsequently upheld by both a single judge and division bench of the Delhi High Court also and now the matter is pending with the apex court- by itself a travesty of justice! Adding insult to injury of the tax payer, the Executive not only failed to impeach him for proven incompetence, if not for treason, but rewarded him with another plum appointment on retirement!
Next, I shall narrate the essence of another case which has baffled me ever since the apex court acquitted five of the six sentenced to death in a murder case. The murder of Jayakrishnan, a primary school teacher in northern Kerala, was done in broad daylight in front of his students. The trail court sentenced six of the accused to death. This was upheld by the high court also. But in the apex court five of those sentenced to death were acquitted and the sentence of one was commuted to life imprisonment! Considering that we have heard a lot about our jurisprudence being based on the principle that even if a thousand criminals are let off not one innocent will be punished and that capital punishment is awarded only in the rarest of rarest case, isn’t it shocking that the trial court had sentenced five innocents to death and the high court had upheld it?
Cut to a couple of quasi judicial organizations. Firstly, the fora/commissions set up under the Consumer Protection Act (CPA). The Act mandates that every complaint has to be disposed off within 3 months. As per data collected under the RTI Act, as on 31/5/2010 there were 15 cases that have been pending for more than 3 years, 37 pending for more than 1 year and 109 pending for more than 3 months! As claimed by the public authority itself one case is decided per day and the Forum hold sittings for 2 hours every day. From personal experience I can state that the Forum sits only for less than one hour every day and that too irregularly. The sittings sometimes commence as late as 11.30 am when the working hours are from 10 to 5!
The picture above is that of a case list of the Forum and anybody who has been to any forum or court can imagine how long it would have taken to transact the above business. But do they do justice even during the negligible hours they work for the fat pay packets they take home at the end of every month? Case No 282/99 is typical of how waywardly and whimsically the complaints/ complainants are treated. This case of medical negligence was initially filed on 6/4/1995 at Malappuram but transferred to Palakkad and the first hearing was held on 4/8/99. It was stayed by the high court on 28/10/99 and the stay vacated on 8/6/05. It was 1st posted for orders on 6/7/07 but suo moto reopened for hearing on 15/2/08 and then posted for orders again on 28/2/09. It had been adjourned 11 times thereafter and orders had not been issued till 31/5/2010 when the information was provided. It is typical of the harassment meted out by the justice delivery system (eloquently stated by Arundhati Roy as  ‘the process is part of the punishment’) that even when the case had remained stayed by the high court for almost six years, scheduling and adjourning had continued regularly almost every month!
In another case involving three complaints against the railways, the Forum, after 8 months of hearings and adjournments, dismissed the case, holding that the grievances were genuine but it would be within the jurisdiction of the Railway rates Tribunal (RRT) under Sec 38 of the Indian Railways Act, 1989. The Railway Rates Tribunal, Chennai quoted Sec 37 of the same Act to claim that it was not within the jurisdiction of the RRT! When the matter was taken up in appeal with the Kerala State Consumer Disputes Redressal Commission (KSCDRC)an application (or interim appeal-IA- as they call it) for condoning the delay was also filed. Though notice for the hearing in this IA was issued by the Commission (see Pic 1 below), when it dismissed the appeal the reason given was that the application for condoning the delay had not been submitted (see Pic 2 below)!
Pic 1-Notice for hearing in IA 568/08
Pic 2- Order of KSCDRC in FA 210/08
The next step was to go to the National Consumer Disputes Redressal Commission and there the matters are even worse. Even for filing the revision petition one has to appear for a hearing at the national capital. But still the fraud perpetuated by the State Commission could not be condoned and so instead of a revision petition against the decisions on the initial complaints, a formal complaint was submitted by post against the blatantly fraudulent order of the State Commission. And what should one get as response other than a routine advice to file the revision petition!
Experiences with the Human Right Commission or Ombudsmen for local self governing bodies and banks have not been any different. But to keep this simple and short I shall leave them out of my narrative. But the Information Commissions constituted under the Right to Information Act merits some exposure, given the simplicity, unambiguity and citizen friendliness of the law. It was not only K G Balakrishnan who abused his office and the law. The judiciary in general has been anti-RTI. While most public authorities have Rs 10/- as application fee the judiciary mostly has Rs 50/- or more. The Delhi High Court had initially prescribed Rs 500/- before reducing it to Rs 50/- While the cost of information in most public authorities is Rs 2/- per A4 size page, it is Rs 5/- in the judiciary (varies from high court to high court). And when the 1st appeal is only an opportunity given to the public authority to correct any mistakes of its Public Information Officer, the judiciary has introduced a fee for that also. Also Sec 23 of the RTI Act clearly states that ‘No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.’ But courts have not only been entertaining all kinds of petitions but have also imposed penalties and provided compensation which are purely within the jurisdiction of the information commissions. In WP (C) 3845/2007 the Delhi High Court imposed a penalty of Rs 25,000/- on the Public Information Officer of South Eastern Coalfields Ltd and also directed the public authority to compensate the petitioner to the extent of Rs 50,000/- Though both these come under the ambit of Sec 19 and 20 of the RTI Act since the CIC had failed to abide by the rule, the applicant/appellant was forced to petition the high court. While the high court did address the initial grievances of the petitioner, it had let the first respondent in the petition –the CIC- go scot free. (The information commissioners should have been charged under Sec 219 of the IPC and punished by the court. The punishment specified is imprisonment upto 7 years or fine or both!)
That justice delayed is justice denied is a simple truth. The judiciary has always been quoting the judge to population ratio and blaming it all on this irrelevant figure. Though it would appeal to the uninformed, the fact is that in a country like India where people are starving to death, the ratio of the litigating population to the overall population is very, very small. What matters really is the judge to docket ratio. This, as Adv K T S Tulsi of the apex court has pointed out is just 987 per judge in India against 3235 in the US of A! The number of cases filed in India in 1999, with a billion population, had been just 13.6 million against 93.81 million cases in the US of A with less than 25 percent of India’s population!
The judiciary in India is the best example for proving the truism that power corrupts and absolute power corrupts absolutely. of the three organs of the Constitution, the political organ is the best.  Of all the people constituting the three organs, the law maker, politician, is the only one who atleast once a couple of years actually comes to the people and presents a balance sheet to him. It is for the people to evaluate their candidate objectively and choose the right one. However, even after being elected, the fact remains that NO politician can swindle public resources without the active support of a bureaucrat. Then there is the media always on the prowl looking for news to slander the politicians. And ultimately the politician can always be hauled up before a court by any citizen. The bureaucrat, the behind the scene player is actually the real power broker. But twisting facts and laws he can actually make the politician a puppet. But officially atleast he is supervised by the politician, the media and also the courts! Coming to the courts, once a judge, the person enjoys a lot of immunity. In the case of higher judiciary it goes to the preposterous extent of practically absolute immunity! The provision of impeachment is a fraud. The NCRWC is also unambiguous when declaring that 'the crucial failure is the innate resistance in governments and governmental processes to the fundamental article of democracy, viz. that all power and all authority flows from the people and that all public institutions are meant solely to serve the public interest. The assurance of the dignity of the individual enshrined in the preamble of the Constitution has remained unredeemed; From this fundamental breach of the constitutional faith flow almost all our present ills.  The first and the foremost need is to place the citizens of this country at center-stage and demonstrate this prioritization in all manifestation of governance'. Viewed thus, the provisions in the Constitution that deal with impeachment and contempt of court are both anathema in a democratic society. And so long as the Constitution is not amended to correct these anti-democratic provisions there is no way the judiciary can be brought under the purview of Lokpal. It is not that the judiciary is not conscious of this fact. That is why time and again they have been heard harping that they have the powers even to review  constitutional amendments and that they will never allow the basic structure of the Constitution to be tampered with. Thus we have a Gordian knot to cut before an effective Lokpal is constituted. But there is no turning away from the challenge now. The first pro-democracy legislation-the RTI Act- is on ventilator right now. Such a fate should not befall the Lokpal.

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