P M Ravindran
2/18, 'Aathira', Sivapuri, Kalpathy-678003
Tele: 0491-2576042; E-mail: firstname.lastname@example.org
File:Comp/akp-sk-scorder-ic appt-170912 17 Sep 2012
Mr A K Patnaik and Mr Swatanter Kumar, Judges
Supreme Court, New Delhi
JUDGES SUBVERTING THE LAW: ORDER IN WRIT PETITION (CIVIL) 210/2012
'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, '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'.
- Report of the National Commission to Review the Working of the Constitution(NCRWC)
Not that I had to wait till your order in the above WP to realise the truism of the above observation. In fact even the Report of the NCRWC is a clear example of the judiciary arrogating to itself, or atleast wanting to arrogate to itself, all the functions of the government. And this is what two non-judicial members have placed on record in the Notes to the Report.
Dr Subash Kashyap has written about the report itself: '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'.
And Ms Sumitra G. Kulkarni, the only woman member in the judiciary-headed, judiciary-heavy Commission had driven-in the last nails, thus:
1. I believe in a Unified and truly Secular India. However, the Commission debates seemed often to reduce the Constitution to being a platform for divisiveness and not unification.
2. The Commission did not initiate or promote sincere debate in the public with regards to the issues that it was contemplating. The efforts was more to "evade and defer" instead of to "identify issues, table them for debate and to deal with them".
But first lesson that this frog learnt after it got out of the well that was the Indian Army, was that the judge-advocate nexus would beat the much bandied politician-bureaucrat-underworld nexus hollow. So began the study and analysis of which was the worst organ under the Indian Constitution. The gist of my analysis is given below.
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 in a few 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 do any wrong 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 operator is actually the real power broker. By 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 unmerited immunity. In the case of higher judiciary it goes to the preposterous extent of absolute immunity! I need not highlight this further as the media is so full of reports about the crimes committed by judges (Dinakaran, Soumitra Sen etc) and the existing system looking helplessly on! The provision of impeachment is a fraud. It is as good as promising free medical aid if the patient can be transported to the moon! Nowhere is the truism in the saying 'power corrupts, absolute power corrupts absolutely' more evident than in our judiciary.
Now coming to your order specifically. The allegation that non-judicially trained citizens are not competent to sit in judgement is one of the biggest frauds that can be imagined. Forget about non-judicial citizens performing the duties of executive magistrates and district magistrates, the question needs to be asked what is the message that the judiciary itself has been sending out about its own competence to dispense justice? Where is the RTI case of judges‘ assets involving the former Chief Justice of India, K G Balakrishnan? And where was the justice in the apex court’s decision in the simple case of the date of birth of the Nation’s Chief of Army Staff? To cut it short, let me place it on record that my own experiences with the judiciary and quasi-judicial organisations like the consumer ‘courts‘, human rights commission, ombudsmen and the information commissions - being shaped into a book titled ‘Courts of Injustice‘- would be more voluminous than the Mahabharatha. And yes, all these organisations have failed miserably not only because they are mostly headed by former judges but also because they have been emulating the judiciary as much as they can. If the judiciary alone has not been able to identify thaareeq pe thaareeq as the hallmark of our judiciary and the most blatant way of subversion of justice and has not done anything about it, is there anything more needed to condemn the judicially trained minds of our country in the harshest terms possible?
Without going into details let me place it on record that this order is a very good example of the warped judicial mind and warrants the law-makers to amend the constitutional provisions that gives the judiciary a pre-eminent place in the scheme of administration of justice. Not only will the provisions of the Constitution regarding contempt of court have to be amended but laws will also have to be amended to restrict its application to cases of disobedience of orders of courts only. Similarly, impeachment provisions will have to be dumped to make way for more practical ways to exemplarily punish judges who act arbitrarily, whimsically and corruptly. And most importantly, there is a need to enact a Contempt of Citizen (Prevention of) Act and ensuring that even judges who summon litigants and do not proceed with the case are made liable to being prosecuted. And here what the Parliamentary Standing Committee on the Ministry of Law and Justice, headed by Rajya Sabha member E.M.S Natchiappan stated has to be borne in mind: 'Judges appointing judges is bad enough in itself; judges judging judges is worse.' And doesn’t that also nail the lie about the need to have judicially trained persons to sit in judgement over every judicial and quasi judical cases?
Before concluding, I would like you to exercise your judicial minds and understand that the task of an information commissioner is simpler than that of a munsif and Sections 13(5)(a) and (b) and 16(5)(a) and (b) of the RTI Act granting them the status, pay and perks of (Chief) Election Commissioners and Chief Secretaries is questionable extravagance and violates the principle of equal pay for equal work. Now, prove me wrong if I believe, and propagate my belief, that these sections will never be abrogated by the judges who want these plum icings on the cake to remain as they make a grab for it!
(P M Ravindran)
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