AN OPEN
LETTER TO THE CHIEF JUSTICE OF INDIA-
PERFIDY: ISN’T
THY OTHER NAME GOVERNANCE IN INDIA?
Major (Retd)
P M Ravindran, ‘Aathira’, Kalpathy-678003; raviforjustice@gmail.com
To write or not to write- the eternal dilemma! To
write is to waste precious time and effort; but, not to write is to fail to
fulfill a citizen’s responsibility in a democracy! So once again responsibility
wins!
Ask me which is the worst organ under the Constitution
of India? Or, which is the best example of ‘power corrupts and absolute power
corrupts absolutely’? Or, which is the institution that treats the Indian
citizen most shabbily? The answer is the same- the Indian judiciary! Why? In
the train that is the democratic society the politician is certainly in the
driver’s seat but the guard is certainly the judge!
Of course, all the organs are rotten to the core. Much
has been written on the politician-bureaucrat-underworld nexus. But
unfortunately not much has been written on the judge-advocate nexus in our
judiciary. The first quotable quote on this I came across in the Report of the
National Commission to review the working of the Constitution, a judiciary-headed
(the Chairman was M N Venkatachaliah, a former Chief Justice of India!),
judiciary-heavy (six out of the 11 members were from the judiciary!) Commission
that submitted its report to the Prime Minister in 2002! And here it is-'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'! And that’s not all. The report also states '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 this what Aravind Kumar, Jurist and lawyer, who, in 'Needed
high speed legal redressal' (Pioneer, Kochi, 01 Aug 2006) wrote: 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.
Does that explain the growth of naxalism and maoism in the most backward of all
regions in the country? And the deployment of armed forces, with the cover of
the much misunderstood and much maligned AFSPA, in quite a few others?
Before I proceed further, it may also be
pertinent to do an analysis, on the basis of first principles, of which is the
worst organ of our Constitution. Amoung these three organs of our Constitution
the law-makers are 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 are also controlled by the
law-makers and the judiciary. And then there are the ears and eyes of the
people- the media, waiting to sensationalise every news involving the
misdemeanour of these authorities. Inspite 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 is just that? And do I need to
recapitulate that quip: power corrupts and absolute power corrupts absolutely?
The judges, by the very nature of their
task, have a lot of discreetion in deciding the outcome of a case. The absence
of a system to check that this discretion is not misused is the most
confounding shortcoming of our justice delivery system. While it may be argued that
there is whole lot of processes known as appeals, review, revision etc all of
them, at the most, can only undo the ultimate damage of the first wrong decision. The issue of how
such a wrong decision came to be delivered finally is relegated to irrelevance.
And given the eternity it takes to get a decision from one level of the
judiciary, ultimately what gets perpetrated is nothing but injustice! I need
not quote those quips like ‘justice delayed is justice denied‘, do I? While
getting a fair decision is a herculean task for those who can afford to enter
the premises of a court in search of justice it is another fact of life that in
the Indian context atleast the majority just cannot afford it, forget about the
even greater majority who cannot even think about justice! (Remember Maslow’s
Law of Heirarchial Needs? And the fact that public servants who have spent
millions of tax payer’s money on smart toilets in their offices have the
audacity to declare that a person can
survive happily with Rs 30/- in this country!)
A picture, it is said, speaks better than
a thousand words. So does examples. So, just to illustrate what has been said
in the last paragraph here are a few examples.
The first of course has to be K G
Balakrishnan’s stand as the CJI that his office was out of purview of the RTI
Act. And recently we had this report about the just retired CJI, Altamas Kabir,
reliquishing office with a bang, ruling that a common entrance exam for
professional colleges would adversely affect minority rights! The list can be
endless but hope these examples suffice to demonstrate how wayward even
decisions of the ultimate authority on law in the country can be! One more
example is required to prove beyond any iota of doubt how our justice delviery
system has failed the citizens of this country. There are two principles of
jurisprudence that is widely known: one, that even if thousand criminals escape punishment one
innocent citizen shall not be punished
and two, capital punishment is awarded in only the rarest of rarest cases. Now
here is one case that proves that even these basic principles go for a toss in
our judiciary. A primary school teacher was murdered in broad daylight by a
group of assailants in his classroom before the tiny tots who where his
students. The trial court sentenced four (or was it five?) to death. The High
Court of Kerala upheld that decision. The apex court commutted the sentence of
one to life and acquitted the rest. The one who had been sentenced to life was
also set free soon, without obviously undergoing the full life term. And then
soon he was arrested in another prominent murder case! And it is now in public
domain that he had been the only one actually involved in the earlier murder
case where three or four others had also been sentenced to death! While I am
amazed at how, at the highest court, the correct culprit had been identifed and
punished, it drives me mad to think how the trial court and the Kerala High
Court sentenced innocent citizens to death in the first place! And worse, what
about the others who had participated in the crime? Who was the investigating
officer who framed the innocent citizens so effectively as to get them capital
punishment? Who were the prosecutors and the judges who could not see the
shortcomings that could be discerned by the apex court? And, what about
compensating the innocent citizens who had to live in confinement with the fear
of death during the best years of their lives?
If the above instances have gigantic
dimensions in themselves there are a few which have gained such proportions
because of the masses who are affected. Take the case of order of the Kerala
High Court holding bandhs illegal. This order was upheld by the apex court too.
And two political parties had been penalised Rs 10 lakhs each in Maharshatra on
the strength of this order. But nothing of that sort has happend in Kerala and
the High Court has remained a mute spectator though we have been having one
bandh per day on an average somewhere or the other in Kerala! And worse, the court has gone
ahead and held holding protests and
meetings on roadsides also illegal. Why worse? Though this order is under
review in the apex court, the police have started registering cases against
individuals and small groups trying to get their problems into public domain while
leaving the political parties and influential groups, like the merchants
association, free to hold the public to ransom!
Incidently, an order of the same
court mandating use of helmets has been enforced under threat of contempt of court
case against the DGP! But even here it has been reported in the media recently that
a film star had conducted a motorcylce rally with 100 Bullet motorbikes without
wearing a helmet and no case had been registered! To a query a responsible police
officer had reportedly responded that such a matter had not been noted by the
police! 100 youngsters on motorbikes holding a rally in the commercial capital
of Kerala and the police were pretending ignorance about it! A new episode for
Ripley’s Believe it or Not?
While on the subject of bandhs, protest
and courts, I had recently applied for a copy of the orders of the high court
and apex court from the Home Minister’s office in Kerala in the belief that
being responsible for enforcing the orders they would be having copies. But
horror of horrors! The application had
been transfered from one section to the other and there is no sign of the
orders yet! Well, one copy of the application had been sent to the Kerala High
Court too and the Public Information Officer of the court has written to say
that it is a document related to a judical proceeding and hence exempted from
disclosure under the Kerala High Court (RTI) Rules!
To cut this communication short, I shall
conclude by refering to some of my blogs related to this subject.
1.
Justice Delivery
System- FAQs at
2.
Reforming Our
Justice Delivery System at
http://raviforjustice.blogspot.com/2011/02/reforming-our-justice-delivery-system.html
3.
Report of the
NCRWC- a Citizens Review at http://raviforjustice.blogspot.in/2011/03/report-of-ncrwc-citizens-review.html
4.
Who will judge
the judges? at
5.
Parliamentary
Standing Committee on Judicial Reforms at
http://raviforjustice.blogspot.com/2011/03/parliamentary-standing-committee-on.html
6.
The crime of
non-governance and quasi judicial organisations (letter to CM, Kerala of 12 Jan
2010) at
7.
Obnoxious
functioning of consumer fora/commissions- letter to minister (of 8/1/11) at
http://raviforjustice.blogspot.com/2011/04/obnoxious-functioning-of-consumer.html
8.
Lokpal or not-
the judiciary needs to be disciplined first at
http://raviforjustice.blogspot.com/2011/05/lokpal-or-not-judiciary-needs-to-be.html
9.
Indian
judiciary-who said what at http://raviforjustice.blogspot.com/2011/05/indian-judiciary-who-said-what.html
10.
Judges! no
sermons please at
11.
Access to
Justice-A Stake Holder’s Report at
http://raviforjustice.blogspot.in/2012/02/access-to-justice-stake-holders-report.html
12.
Ravi's Laws of
Criminality at
13.
Judicial freedom
vs citizen's rights- an open letter to the CJI at
http://raviforjustice.blogspot.in/2012/08/judicial-freedom-vs-citizens-rights.html
14.
Judges Subverting
the Law: Order In Writ Petition (Civil) 210/2012 at http://raviforjustice.blogspot.in/2012/09/judges-subverting-law-order-in-writ.html
In conclusion, it cannot be denied that if the
judiciary is ultimately responsible for delivering justice it is also
responsible for the denial of it and the consequent growing crime rate. Dearth of resources may be a claim that may
be taken at face value by the ignorant but the judiciary needs to prove that
existing resources are being used optimally before it can demand more
resources. The judge to population ratio has been exploded as a myth not
relevant to the Indian context. The following statistics prove it. While India
with almost 5 times the population of US of A had only 13.6 million cases filed
in 1999; in the US of A itself 93.81 million cases –almost 7 times the number
filed in India-had been filed that year! And the docket’s per judge? India: 987
per Judge; USA: 3235 per Judge! Why, even a casual visit to any court will reveal
the gross mismanagement of time and resources and the torture the litigants are
subjected to in pursuing justice through our courts. Case studies have been given in some of the
blogs listed above and hence not being repeated here.
While I will not be surprised even if nothing happens
as a consequence of this letter I must admit that I have not lost all hope. It
is truly said, the person who tries to do something to correct what he
perceives as wrong is definitely someone who has more hope that the correction
can be made than one who simply curses and lives in frustration! And hope
arises from the fact that the apex court, and apex court only, seems to be able
to move the executive as seen in the alacrity with which the politicians have
acted to amend the RPA Act in the wake of the recent SC verdict barring
convicted politicians from holding the law maker’s post!
Regards and best wishes,
(P M Ravindran)
