File: Pers/pm-judiciary-sug-230714 23 Jul 2014
Dear Mr Prime Minister,
There goes Mr Lodha, CJI, again! And now he is exposing his ignorance and incompetence by simply blaming you for not providing adequate infrastructure and number of judges which are apparantly the only reasons, according to him, why the judiciary is drawing flake from the public for the preposterous delays and all around failure in delivering justice!
I had been shocked earlier when he castigated the Government headed by you, in the matter of not recommending the name of a tainted advocate for appointment as a judge of the apex court. To say the least, it was unbecoming conduct on the part of the CJI. In fact, specifically about R M Lodha, people like me are shocked how such people, without apparantly even the basic knowledge of law, forget the bigger issue of justice, have been appointed as judges in our courts! It was a bench, of which he was a member, that put a big question mark on the competence of our apex court judges by not delivering justice even in the matter of a simple case like that of the date of birth. This bench of judges even forgot that the petitioner being a Chief of Army Staff the whole nation was looking out for the final verdict!
Of course you will be getting the best possible legal advice available in the country but ordinary folks like me who are adequately literate are also competent to read and understand the provisions of the Constitution. Art 124(2) of the Constitution is reproduced below:
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
Now where does the Collegium come in? It has even been made out in the media that had the ‘Government’ returned the recommendation to the Collegium and the Collegium stuck by its earlier recommendation the ‘Government’ had no choice but to accept it! It is true that the appointing authority of the Executive had at some point of time been usurped by the apex court. It is time that the Parliament restored it to the rightful authority.
Strongly disapproving the all-judge composition of the National Judicial Commission, a Parliamentary Standing Committee of the Ministry of Law and Justice, headed by Rajya Sabha member E.M.S Natchiappan, had said 'Judges appointing judges is bad enough in itself; judges judging judges is worse.'
And that brings us to the efficacy and accountability of the judiciary.
That our judiciary is an outright failure is evident when we consider the fact that justice delayed is justice denied. And when you look at the final judgements and see that justice is not delivered even after the preposterous delays the very need to sustain such an establishment becomes questionable. Here are two relevant quotes:
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.
-'Needed high speed legal redressal'-Aravind Kumar, Jurist and lawyer, Pioneer, Kochi,01 Aug 2006
When we transformed from subjects to citizens, we forfeited our rights it seems, since what happens in our country now in the name of law is often rank injustice.
-'Human rights, the genesis of justice is from religion' under 'faith line' by Renuka Narayanan, The New Indian Express of 20 Dec 2004.
And if you want it from better authorities here is what the National Commission to Review the working of the Constitution has stated in its report, submitted to the then government in 2002:
'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'
Why I said better authority is because the 11 member Commission, was headed by a former Chief Justice of India, M.N. Venkatachaliah, and of the remaining ten 3 (B.P. Jeevan Reddy, R.S. Sarkaria and Kottapalli Punnayya) were judges of the Supreme Court/High Courts and 2 (Soli J. Sorabjee and K. Parasaran) were lawyers! Only 2 (P.A.Sangma and Sumitra G. Kulkarni) were political nominees and 2 (Dr.Subhash C. Kashyap and Dr. Abid Hussain) were bureaucrats. Just one (C.R. Irani) represented the masses from the media!
Even Prashant Bhushan who has alleged that eight of the earlier 16 Chief Justices of India were corrupt holds Mr Venkatachaliah in high esteem. After indicting the very system which he himself had headed one might tend to agree with Prashant Bhushan. But the fact again lies elsewhere. In his notes to the Report, Dr.Subhash C. Kashyap has mentioned the following: 'The Chapter 7 of the Report is titled 'The Judiciary'. This chapter particularly is seriously flawed and distorted. The much needed Judicial Reform issues have not been even touched or these got deleted in the final draft.'
Finally, it was left to Ms Kulkarni to drive-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".
Why I have quoted these is because my observation tells me that this Report is very much like a court order: high moral standing through eloquent quotes, reasonably correct recording of facts, shaky deductions and outrageously wrong decisions!
I am amoung those who are convinced that this nation cannot develop peacefuly unless the judiciary is overhauled lock, stock and barrel.
The judiciary has been complaining about lack of adequate infrastructure and shortage of judges for the high pendency and delays. While it looks true on the face of it the fact is otherwise. To begin at the lower court, most of the time of the court is wasted in a process called mustering where hundreds of cases listed for the day are called out, the presence of the parties ascertained and the cases are adjourned. 30 to 50 percent of the time is wasted in this. It is not the judge‘s or advocate’s time that is wasted. While one is paid by the tax payer, the other is paid by the litigant! Now this is what HD Shourie wrote in 'How long before justice comes?' (The New Indian Express of 04 Dec 2004) : 'It is not possible for a judge to seriously hear and decide more than two or three cases a day....no judge should have more than 30 matters listed before him/her on a given day.' And, 'Lawyers are acused of employing delaying methods, but no lawyer can succeed if the court refuses an adjournment.'
Regarding the judge to population ratio, another distorted logic not applicable in the Indian context (for reasons that shall be clarified), Senior Advocate KTS Tulsi has reportedly revealed the following statistics:
Cases filed in one year (1999):
India : 13.6 Million (1,36,68,073); USA: 93.81 Million.
Docket’s per Judge: India : 987; USA: 3235.
Now considering that the population of India 4 to 5 times that of the US of A and the cases filed there is seven times that filed in India, how does the judge to population ratio apply here? If the CJI is not aware of these hard facts, again it can only be considered gross incompetence on his part!
Why judiciary alone? Even the quasi judicial organisations- the consumer ‘courts‘, ombudsmen, commissions like the information commissions- have taken the wrong example of the judiciary and are harassing the day lights out of justice seekers! Here are some statistics of a complaint decided by the Consumer Disputes Redressal Forum, Palakkad, Kerala:
In OP 282/1999 (OP No 85/1995 transferred from Malappuram), the opposite party had produced interim stay order on 28/10/1999 and the stay was vacated only on 8/6/2005 but through out this period the case was listed 58 times and adjourned! It was finally posted for orders on 6/7/2007 but was opened for re-hearing suo moto on 15/2/2008 and went on an adjournment spree from 3/3/2008 to 31/5/2010. During this spree it was adjourned 17 times, including 5 times for want of members/President and 10 times for orders only! It was dismissed when an application was submitted under the RTI Act to find out the status!
This and other complaints against the Forum and State Commission, to the Minister for Consumer Affairs and the Chief Minister of Kerala have not produced any desired changes. Copy of the complaint submitted to the CM during his Public Contact Program is available at http://raviforjustice.blogspot.com/2011/11/chief-ministers-contact-program.html and the response of the President, Consumer Forum is at http://www.slideshare.net/raviforjustice/complaint-cm-contpgmconsumerreply011211.
To cut the complaint short, I shall list out certain mandatory changes needed in our justice delivery system.
1. The judiciary should be reorganised like the medical profession- private practitioners/small clinics/primary health centers, referal centres, tertiary care, superspeciality centres. These could be comparable with arbitrators, lower courts, high courts and apex court.
2. No lawyers in courts. It will ensure that the playing field is level at least to some extent. This is what eminent jurist Fali S Nariman wrote in his book 'India's Legal system: Can it be saved?‘: For more years than I can imagine we lawyers have been using our lawyering skills not in a profession but in a game, in which the more skilful (which tends to become also the more costly), will invariably win.
3. Like general and specialist doctors practising independently, all the lawyers should be classified based on their qualifications and specialisation and their fees regulated through a regulator headed by a human rights activist, supported by a legal advisor and a finance advisor. A data base of such legal practitioners should be maintained by the regulator and the regulator should be able to update the status of the legal practitioner based on litigant feedback.
4. Aggrieved parties should approach a proper arbitrator who should be empowered to summon respondent(s) and advise them on a solution. At the end of the day, whether the problem is solved or not, both the parties should send a feedback, including a grading on a 10 point scale, to the regulator.
5. If any of the parties are not happy then they can appeal to a lower court. The decision of the lower court should be final. If both the parties are unhappy and file appeals with different courts a designated court should be empowered to transfer both the cases to a third court convenient to both parties. Again appropriate feedback should be provided to the regulator.
6. Serious crimes like murder, rape, corruption, complaints against public servants should be heard initially itself by the lower courts and the appellate authority should be the high court. As usual feedback from both parties should be provided to the regulator.
7. The apex court should only take up interstate disputes and issues involving interpretation of the Constitution.
8. All orders, without exception, of high courts and the Supreme Court should be published in a centralised website which can be searched based on court, judge, petitioner, respondent, subject, law and section under which charged (example Sec 217 of the IPC), punishment awarded, compensation awarded to aggrieved party (could be the petitioner or the respondent who has been acquitted!). (I have highlighted without exception because right now it is the judge who decides whether an order has to be uploaded/published and there is obvious shortcoming in this process!)
9. Follow up data-like date and place of commencement of imprisonment, payment of cost/compensation etc- should also be updated against the same case, based on mandatory inputs to be provided by the authority implementing the order to the authority responsible for updating the data (should be under the same regulator compiling feedbacks and grading advocates, judges).
10. Cases involving public servants should be contested by the concerned public servant in his own capacity and at his own cost. Compensation/punishment should follow as for any ordinary litigant.
11. All quasi judicial organisations should be discontinued.
12. A Contempt of Citizen (Prevention of ) Act should be enacted and even judges summoning litigants and adjourning without conducting any hearing effectively, should be under it purview.
While the foregoing suggestions would apply to long term reforms, for the immediate future the following should be taken up on war footing:
1. No judge should list more than two times the cases s/he can effectively hear in a day. And these also should be divided into forenoon and afternoon sessions, necessitating litigants to spare time only in the forenoon or afternoon.
2. The list of cases taken up for the day should be displayed on a notice board and the serial number of the case in progress should be displayed on a counter or a TV screen.
3. No litigant should be required to appear in a case on more than three occassions in minor cases, six times in somewhat serious cases and 12 times in very serious cases.
4. An attendence slip should be provided to every litigant, who has been summoned and attended court, as proof of attendence.
5. Minor cases should be disposed of within 3 months and very serious cases withn one year.
6. Contempt of court cases should be restricted to cases where those responsible for complying with the orders fail to do so.
7. In every case the ‘victim‘ (whether it is the complainant or the acquitted accused) should be compensated approppriately by the other party.
8. Public servants involved in cases even in their official capacity should be considered as ordinary litigants without the support of the official machinary and should initiate / contest cases on their own. While the punishment/compensation will also be suffered/ enjoyed by them as ordinary citizens, they can be given additional incentives by the government if there is some gain accrued to the public.
Hope this long letter will of help in appreciating the frustration and disgust of the public with the present justice delivery system. You, being in the driver‘s seat of the national bus and empowerd to take it to its destination, are expected to do the needful. After the power of the vote it is now the power of our prayers that we hope will help you steer right to the correct destination!
P M Ravindran
Sri Narendra Modi, Prime Minister- through email, firstname.lastname@example.org
Mr R M Lodha, CJI- through e mail, email@example.com