PERFIDY: ISN’T THY OTHER NAME GOVERNANCE IN INDIA?

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

http://raviforjustice.blogspot.com/2011/02/justice-delivery-system-faqs.html

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

http://raviforjustice.blogspot.com/2011/03/who-will-judge-judges.html

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

http://raviforjustice.blogspot.com/2011/04/crime-of-non-governance-and-quasi.html

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

http://raviforjustice.blogspot.com/2011/06/judges-no-sermons-please.html

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

http://raviforjustice.blogspot.in/2012/06/ravis-laws-of-criminality.html

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)