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!
Yours truly,
P M Ravindran
Sri Narendra
Modi, Prime Minister- through email, pmindia@pmindia.nic.in
Copy to:
Mr R M Lodha,
CJI- through e mail, supremecourt@nic.in
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