Tuesday, 28 February 2012


Note: This is the Report I had sent to the then President of India, Dr A PJ Abdul Kalam, who was slated to inaugurate the seminar on 'Access to Justice' organised by the Supreme Court Advocates on Record Association. In response to it the President's Secretary had written to me to participate in the seminar and I could approach the President, SCAORA for an invitation. I got an invitation to participate in the inaugural and valedictory functions. The fee for participating in the seminar itself was Rs 5000/- which in my view was wasteful expenditure. I participated in the functions for which I had got invitations. But that itself was educative enough for the troubles I had taken.Then that's another story.


(26th  & 27th April, 2003, Vigyan Bhawan, New Delhi)

Yes, I am a stake holder if only because I am a citizen of this Sovereign, Socialist, Secular, Democratic Republic. In a society supposedly ruled by law every citizen has an absolute right to justice. It is part of his/her right to life itself. Unfortunately, in this, my country, this right to justice is a promise that not been fulfilled even to a modest extent. And the onus for this failure is squarely with the judiciary.

The Brochure for this seminar has mentioned three things:

“India’s justice system is based on the fundamental premise that it is accessible to all persons.  

Article 14 mandates that the State shall not deny to any person equality before law or equal protection of the laws. 

Article 39 A of the Directive Principles of State Policy provides that the State shall secure that the operation of the legal system promotes justice on the basis of equal opportunity, and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen.”

As I study the implications of those premises/provisions there is every reason for me to be righteously indignant about the way the system has failed the large majority of its citizens- not only the otherwise socially underprivileged and voiceless!

While the executive and the judiciary alike may cry hoarse about the lack of resources in enforcing the rule of law there are ample instances to show that the excuses by the judiciary are singularly devoid of logic and substance. Before I go on to quote examples to prove how incompetence, indifference and bloated egos of those people sitting in judgement over disputes and criminal cases alike, have wrecked havoc with our justice delivery system, let me do a comparison of the functions of the three institutions of our constitution: the legislature, executive and the judiciary.

It is unfortunate that by not laying down certain minimum qualifications and experience for our law-making representatives, the architects of our Constitution did a great disservice to our country. In any case it is not humanly possible to envisage all the contingencies in which a particular law has to be applied and the gray areas, of necessity, have to be covered by the people trained to interpret the laws in any given context but conforming to the spirit of the law itself. And here begins the actual failure of our judiciary: its inability to comprehend its basic role itself, that of covering the gray areas of law in given contexts keeping in mind the spirit of the law itself!

The failure of the executive may be justified, to some extent, by the lack of resources. For example if a criminal gang is operating in a place and they number about 10 in strength, of necessity the police have to have at least 30 personnel to confront them. A very crude example but a striking one, of course.

While the judiciary may also quote resource constraints for their shortcomings and lapses there is enough evidence to prove that even the existing resources are not properly used/managed. And the failure in this regard is actually criminal.

Without getting bogged down with instances where the courts may reasonably palm off some delays and failures to the executive/investigating and prosecuting agencies, let me quote three examples from my own experience.

The Case of the Court of Wards

Firstly, I had approached a branch of the HDFC at New Delhi for a loan while constructing a house in a plot of ancestral land at Palakkad in the name of my wife. They agreed to give the loan but I had to deposit the title documents of the land with them. Unfortunately, the document had, in different sections, adjacent plots of land in the name of my children too. So HDFC asked me to get the permission of the Court of Wards to ‘mortgage’ the land. The very thought of going to a court made my heart sink. The delays and the effort and cost factors were proverbial. But the officials assured me that it was only a formality and could be got done within a month. So I entrusted an advocate in my hometown with the task. NOTHING HAPPENED FOR THE TWO YEARS WHEN I CONTINUED TO BE IN SERVICE, except that an ‘advertisement’ was taken out in a nondescript local newspaper. When I reached home after retirement and began running after the advocate, a hearing was scheduled. I attended and when the case was called the lady judge made some remark and the advocate gave a reply. Sensing something amiss I tried to intervene but was shot down with a remark by the judge: you may be the parent, but you are responsible only for producing the children, it is our responsibility to protect their interests. I was shocked even to respond. Later, my advocate consoled me: she is that type. At the next hearing, my statement was recorded and another date was given for recording the statement of my wife. When my wife appeared, the judge asked: why? I told the advocate that I wanted to speak to the judge. His answer was: Okay, Major, you may speak to her; but we have to appear before her again. If you are going to speak to her then I am withdrawing from the case. I gave up my effort. Fortunately I had received my terminal benefits by then. I paid off the loan! But the question haunts me: BETWEEN THE JUDGE AND THE ADVOCATE WEREN’T THEY SUPPOSED TO KNOW THE CONDITIONS UNDER WHICH THE PERMISSION SOUGHT COULD BE GIVEN and if the laid down conditions weren’t being met wasn’t it the duty of the advocate to educate me on it? And if, according to the advocate, the conditions were being fulfilled then I had every reason to know why the judge wasn’t giving it. If there was any need to grease palms then I certainly was living in a fool’s paradise with no plans of getting out either! But definitely I gave up my plans to add an LLB to my qualifications!

A Case of Criminal Cheating by a woman with a Licence to Cheat given by our Courts.

Next is the case of a woman indulging in criminal cheating. She came to me posing as an agent of a firm, later proved to be non-existent, and took orders for developing a lawn in front of my house. Though she was accompanied by her husband always it was she who claimed to be the agent and signed the documents. When she defaulted after taking payment, the matter was taken up with the District Consumer Disputes Redressal Forum. She never accepted the notice sent by the Forum nor the orders passed ex-parte. Pursuing an Execution Petition with great effort and getting her arrested once, she got bail only to approach the State Commission quoting AN ORDER FROM THE KERALA HIGH COURT THAT WOMEN CANNOT BE ARRESTED IN CASES INVOLVING RECOVERY OF MONEY! This order, in Jancy Joseph Vs State of Kerala, published in KLT 1999 is a classic case of the subversion of justice by the judiciary itself. The reasons are as follows:

(a)       The Consumer Protection Act of 1986 is a period legislation catering for cheap and speedy disposal of consumer disputes. The only teeth  provided by the Act is the threat of arrest under Section 27 of the Act for enforcing the orders of the authorities under the Act. 

(b)       When the Act says that provisions of the CPC (Sec 56) will be followed while ordering arrest, logically it will be unsound to accept the provisions in toto to the extent that the purpose of the new Act will itself be defeated. In other words, if the CPC says that women cannot be arrested in cases involving recovery of money then that provision will at once render all women exempt from the penal provisions of the CPA itself because under the CPA all penalties will involve only recovery of money. The logical application can thus only be to the extent of accepting the procedures for execution of the orders.

(c)       Obviously any interpretation of any provisions of the Constitution or any other law that gives a blanket licence to women or any sections to cheat other law-abiding citizens can only be a fraud on justice.

(d)      Worse, the judge who had decreed that Sec 56 of the CPC will be applicable while ordering arrest under Sec 27 of the CPA, went one step further to turn the next part of the provision on its head. The next part of Sec 56 of the CPC says that ‘in case of others arrest can be ordered only if it is established that they have sufficient means to pay’. The Hon’ble Judge, went on to overrule this ‘softening’ clause to decree that ‘in case of others, means need not be taken into account while ordering arrest’!

Of necessity, I had to challenge the ruling in Jancy Joseph case. The petition in this regard was filed before the High Court of Kerala through an advocate who had earlier been a District Judge himself. Two years and umpteen postponements later, a single judge ruled that the petition is dismissed. He had mentioned that the facts of this case had been considered in a similar case earlier and there was no need to interfere! My advocate has neither been able to give me a copy of the review petition he claims to have filed for consideration by a division bench nor the copy of the order that has been referred to in the judgement on my original petition! Again a case of a citizen seeking simple justice being taken for a ride by ?

The Case of  Mobilgas

This case also had its beginning in a Consumer Disputes Redressal Forum. It is typical of how (over)smart goods/service providers try to take the consumers for a ride and the quasi-judicial forums, presided by retired judges, play fiddle to them .

I had taken a 17 Kg cylinder connection of Mobilgas for using in my car. I was carried away by their advertisement claiming ‘Famous in 120 countries, gas connection from an American company!’. Three months after becoming a consumer of Mobilgas I got the first shock: the dealer refused to door-deliver refills saying that they do not door-deliver refills for those consumers using the refills in their vehicles. Since I was paying the same price as any other customer using the same type refill and who were getting them door-delivered, I took up the matter with the District Consumer Disputes Redressal Forum. After six months and five-six scheduled hearings later, I was shocked to receive the orders saying that the complainant has not produced any documents to prove that he has paid for door-delivery or that the cost was inclusive of door delivery charges. That the cost was inclusive of door-delivery charges was the substance of the complaint and had not even been denied by the dealer materially.

A detour is required here. The LPG market had been opened to private parties only in the recent past. Earlier the PSUs had the monopoly of the market and they used to issue a one-figure bill. This included door-delivery because no extra money had to be paid when the delivery boys delivered the refills at home or wherever the place of use. IN FACT I HAD COME ACROSS ATLEAST IN SOME SHOW ROOMS OF THE DEALERS OF PSU LPG THAT A PARTICULAR AMOUNT WILL BE GIVEN AS A REBATE ON THE (ONE-FIGURE) BILL IF DOOR-DELIVERY WAS NOT EFFECTED BY THE DEALER. (Considering that the information leaflet has been issued by the PSUs and is required to be displayed in the showrooms of the dealers, the failure of the majority of the dealers to display it would itself attract the penal provisions of the CPA! Well, that is a different story by itself). Now, the dealer of the private LPG has adopted the same one-figure bill system of the dealer of PSU LPG. So, obviously, he had to door–deliver the refills too as is being done by the PSU LPG dealer. But, with the terms and conditions of service being taken for granted and not specified, he find s a loop hole to save on the cost of door-delivery by denying the service to a section of his customers by bringing in unwarranted end-use conditions. The user does not even have a free choice of going to another dealer, because he will get only a fraction of the amount deposited with the dealer as security for the cylinder and regulator!

Anyhow, with the order in hand, the only option was to go on appeal to the State Commission. The affairs of the State Commission has been worse and I had already complained about it to the President, a number of times earlier. But this time around, apart from the three times I had to send the appeal by post (registered/under certificate of posting), when finally I was given a date for hearing I was in for a ruder shock: the appeal was called and dismissed without even any hearing! And thereafter it took almost 5 months to get a copy of the less-than-200-words-order!

Again, I was left with no option but to approach the National Commission, where even greater shocks awaited me. For one thing, I was called ALL THE WAY TO DELHI FROM KERALA FOR A HEARING TO DECIDE IF NOTICE SHOULD BE SENT TO THE OPPOSITE PARTIES. During that hearing I was told to produce the authority for using LPG in vehicles. It is pertinent to point out that the matter was not a subject of the complaint nor was it within the jurisdiction of the Commission. However I did have with me a newspaper report informing the public that the Centre had permitted the use of LPG in vehicles. But no, I had to produce the government orders on the subject. Where does a layman from one end of the country and practically new to Delhi go? I managed to get a copy of the orders on the emission norms for LPG driven vehicles. It was decided to issue notice to the opposite parties. But I did not realize that it was to be more of a punishment. I got the responses from the opposite parties and replied to them too. The response from an ISO certified lawyer’s firm, acting on behalf of the Company, was, if nothing else, educative on the frauds being perpetuated in the name of justice. I came across two rulings of the apex court which would be worth reproducing here. In Ittavira Vs Varkey (A 1964 SC 907) the august court had ruled that 'COURTS HAVE JURISDICTION TO DECIDE RIGHT OR TO DECIDE WRONG AND EVEN THOUGH THEY DECIDE WRONG, THE DECREES RENDERED BY THEM CANNOT BE TREATED AS NULLITIES' and in Misrilal Vs Sadasiviah (A 1965 SC 553) the court had reportedly ruled that 'THERE CAN BE NO INTERFERENCE IN REVISION MERELY BECAUSE THE DECISION IS ERRONEOUS IN LAW OR IN FACT WHERE THERE IS NO ERROR PERTAINING TO JURISDICTION'. So there it is, in disputes before courts, facts and laws do not matter, only jurisdiction matters! With the knowledge of these two rulings what is the need for one to pursue a degree in law? Wouldn’t it be enough to quote these wherever and whenever possible and use clout to get the judgement that one desires. Whither justice? Whither the majesty of law?

Yes, the last word has not yet been said on this case yet. Because, the National Commission not only did not deliver justice but aggravated the crime by directing that the complainant/appellant pay Rs 1000.00 each to the opposite parties!

The appeal on the orders of the National Commission was sent to the Supreme Court in June 2002. It was returned in Apr 2003 with a direction that it should be filed in person or through a representative or through an advocate on record! How does a layman in one corner of the country get a representative or an advocate on record at Delhi? And what about the cost? The strongest desire to get justice has brought me to Delhi to file the petition in person, if I cannot get an advocate on record to do it for me at a cost that I, an army pensioner, can afford!

I am sure that the instances are illustrative enough to drive home the point that our justice delivery system is in shambles and the onus for it is squarely with the judiciary. With their blinkered visions and holier than thou attitude, brooking no criticism whatsoever, the effort needed to bring the judiciary around to perform effectively and efficiently is going to be very high. But like Dr Ambedkar said ‘we cannot any more blame the British for our failures and shortcomings’.

To conclude, I quote the National Commission for the Review of the Working of the Constitution: ‘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.’ And, ‘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’. Further, ‘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’.

Suggestions for Improvement

While I would suggest that the judiciary be totally overhauled to make it responsive to the needs of the litigants and accountable for its actions and omissions, I realize that it would be a tall order as of now. However the following measures, if implemented would go a long way in mitigating the misery of the litigants and help develop genuine respect for law amoung the citizens.

Firstly, there is no need to list 100s of cases before a judge on a single day. It should be practical and all cases listed for a particular day should be disposed off the same day, even if the judges have to overstay in the court for a few hours. If the litigants are ready, no case should be postponed without their mutual consent and even when postponed with mutual consent there should not be postponement for more than, say, three times.

Secondly, there should not be any need for the parties involved to present themselves before the court more than once, at worst two times. The cases should be studied from the written statements submitted and personal appearance should be insisted only once for  clarifications required, if any.

Thirdly, lawyers and judges should be rated by a competent authority based on qualifications, experience, judgements accepted without appeal, cases won/lost, number of appeals, number of appeals accepted/dismissed etc. They should also be categorized according to their specialization in particular branches of law. Thereafter, the judges and advocates should be paid by a central authority based on their category and rating. In any dispute/case needing advocates, both the parties should be provided advocates of the same caliber by the registry so that both the sides of the cases are presented well and justice is not only done but seen to be done.

Fourthly, the Supreme Court Rules 1966 have to be amended to make it more practical and relevant. The other day, to be precise on 10 Apr 2003, I received an appeal I had sent by registered post/acknowledgement due to the Chief Justice of India on 19 Jul 2002. Quoting  provisions of the above Rules, I have been told to SUBMIT THE APPEAL IN PERSON OR THROUGH A REPRESENTATIVE OR THROUGH AN ADVOCATE ON RECORD OF THE SUPREME COURT. What is the logic and where is the justice is asking a justice-seeker staying in Kerala to travel all the way to Delhi just to submit the document at the registry of the Supreme Court? Quite interestingly, it was reported in the press the other day, that the very Supreme Court has made arrangements to record evidence of a person located in the US of A, by video conferencing! I do not know when the SCR of 1966 was amended to accept this latest technology into its fold to suit people who can dictate terms even to our Supreme Court!

Lastly, contempt of court provisions should be repealed, as they have no place in a democracy. It may be important to enact a Contempt of Citizen Act to replace it.

A lot many such small practical steps, if taken, would go along way to improve the functions of our judiciary. It would really help to enhance the image of the judiciary more than any contempt of court case would.

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