YAKUB MEMON AND THE CLERKS WHO RULE INDIA
Yakub Memon was sent to the gallows in the early hours 30 Jul 2015 for his involvement in a crime that killed 257 innocent citizens and left more than 1000 wounded in serial blasts that rocked the commercial capital of India, Mumbai, in 1993! The judiciary in India is of course notorious for its denial of justice through preposterous delays. And it was only a couple of years earlier that the very same court had given a ruling of far reaching consequences- that a convict who has been in death row for unduly long periods is entitled to get his death sentence commuted to life term. But when, on the basis of this verdict, the Tamilnadu Government decided to release the convicts in Rajiv assassination case, that has been stayed too. Of course the rule ‘there are no rules without exceptions’ apply everywhere! But suffice to say that Memon had exhausted every opportunity to save his life including multiple hearings at the apex court and mercy pleas to the President. And as one report in the media said the apex court held an ‘Unprecedented 90-Minute Hearing in Middle of the Night’ on 29-30 Jul 2015 to consider ‘the final plea against the execution of Yakub Memon’! On Wednesday evening, that is 29 Jul 2015, President Pranab Mukherjee had rejected Memon's mercy petition that he had received earlier in the day. And a Deputy Registrar, Prof. Anup Surendranath, reportedly resigned and went to social media saying in a Facebook post that ‘I have been contemplating this for a while now for a variety of reasons, but what was played out this week at the Supreme Court was the proverbial final nail - I have resigned from my post at the Supreme Court to focus on death penalty work at the University.’ The court issued a clarification that it was not a resignation but just a return to parent organization after completing his tenure in the apex court!
However debates continue unabated till date. Arguments vary from the philosophical ‘since man cannot give life he has no right to take life’ to the more rational ‘death penalty is barbaric and has not been able to reduce crime’. But the fact remains that very few countries in the world have abolished the capital punishment. So it is indeed time for the public at large to participate in a meaningful debate on the issue and arrive at more acceptable decisions on the shape and nature of a justice delivery system relevant to our times. Here is my two pence worth of thoughts.
Our current justice delivery system is more than a total failure viewed from the simple concept of jurisprudence that justice delayed is justice denied. There are possibilities for failure right from investigation to presenting the facts before courts to the competence, honesty and moral values of the judges. Even while our jurists keep harping that in our justice delivery system even if a thousand criminals escape even one innocent will not be punished’, the adversarial system followed in our criminal courts does allow hard core criminals to escape but does not necessarily allow the innocents to go unpunished. The judiciary itself cannot hide the fact that most of the under trials in our prisons are from the poor and marginalized sections of the society and many of them have been in prisons for periods more that they would had to spent there had they been convicted for the offences they have been charged with! Two quotes are worth recollecting here. Arundhati Roy is on record saying ‘In India, everybody knows that as far as the legal system is concerned, the process is part of the punishment.’ And the renowned expert in Constitutional law, Fali S Nariman said: ‘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 skillful (which tends to become also the more costly), will invariably win.’ And if anybody wants it from official sources here is what the National Commission to review the working of the Constitution (NCRWC) has reported: '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'. Having said earlier that ‘the adversarial system followed in our criminal courts does allow hard core criminals to escape’ it is interesting to note that the Supreme Court itself had admitted in 2009 that it had wrongly sentenced 15 people to death in 15 years! In 2012, 14 retired judges had reportedly written to the President, pointing out that since 1996 the Supreme Court had erroneously given the death penalty to 15 people, of whom two were hanged!
In our college laboratories during experiments an error in the result up to 10 percent is acceptable. But whether such percentages of errors in judgment are acceptable is for the society to decide. But one thing that is certainly obnoxious in a democratic society is the contempt of court provisions in the Constitution and the laws enacted to implement them. One may admit it to the limited extend of ensuring that the orders of the courts are complied with but how many such cases can one recollect where the parties who have not complied with a judgment have been hauled up for contempt? The only instance I can recollect in my 17 years of ‘judiciary watch’ is the case of enforcement of helmet on two wheeler riders by the High Court of Kerala threatening the Director General of Police with prosecution for contempt of court! But there have been cases where even ministers have been hauled up under the provisions of the Contempt of Court Act for even stating in public that it required loads of money to get justice from our courts!
This is what Sec 2 of the Contempt of Court Act says about criminal contempt:
Criminal contempt means 'the publication of (whether by words spoken or written or by signs or by visible representations or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court or (ii) prejudices or interferes or tends to interfere with, the due course of any judicial proceedings; or (iii) interferes with or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner.
Now you decide if saying 20 percent judges are corrupt should invite prosecution for criminal contempt! But a Chief Justice of India said exactly that and got away with it! Like most of you I am wondering how much one should be carried away with grand standing like ‘be you ever so high, the law is above you’! Ok, there was no contempt proceeding against him, but was there any follow up action? Were anyone amoung those 20 percent ever prosecuted? Was any action taken to prevent such corruption? No, nothing ever happened in those lines!
The need to make the judiciary transparent and accountable is not in dispute. But even the NCRWC recommended only a ‘National Judicial Commission (NJC) for making recommendation as to the appointment of a Judge of the Supreme Court (other than the Chief Justice of India), a Chief Justice of a High Court and a Judge of any High Court.’ The Constitution of the Commission as recommended by the NCRWC was:
(1) The Chief Justice of India : Chairman
(2) Two senior most judges of the Supreme Court : Member
(3) The Union Minister for Law and Justice : Member
(4) One eminent person nominated by the President
after consulting the Chief Justice of India : Member
Now the behind the scene acts were brought in public domain by none other than Subhash Kashyap, former Secretary General of the Lok Sabha and a member of the NCRWC, who in his notes to the Report of the NCRWC, stated that the Commission at its 14th Meeting held on 14-18 December, 2001 had decided that the NJC would have the following composition:
a) The Vice-President of India : Chairman
b) The Chief Justice of India : Member
c) Two senior-most Judges of the Supreme Court, next to the Chief Justice : Member
d) The Union Minister for Law & Justice : Member
He had also written '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'. Anybody curious to know the composition of this Commission, I mean the NCRWC? In short, it was a judiciary-headed and judiciary heavy Commission with 6 of the 11 members being from judiciary- 4 (M.N. Venkatachaliah, 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 advocates. The rest 5 were from diverse fields: 2 (P.A.Sangma and Sumitra G. Kulkarni) were political nominees, 2 (Dr.Subhash C. Kashyap and Dr. Abid Hussain) had been bureaucrats and just one (C.R. Irani) was from the media!
My 17 years of judiciary watch has helped me discern a pattern in the orders of the most venerated judges: the introduction is invariably grand standing with quotes from Bhagvad Gita, Bible or Koran or even the should-have-been truisms like ‘be you ever high, the law is above you’. The facts are there, indisputable! (The only dispute could be whether all the facts have been recorded or not!) Then the deductions! Are they logical? Do they flow from the facts? Well,…eeemmm…! And finally the decision! These days I am not at all surprised to find them to be bolts from the blue!
Apart from a National Judicial Appointments Commission the need of the hour is to have a National Judicial Accountability Commission which can try judges for various crimes of omissions and commissions that are applied to ordinary citizens. Needless to say, this Commission should be constituted on the lines of military courts. Apart from a legally qualified member to guide the proceedings, the jury should be from all walks of life. One could not have agreed more with the Parliamentary Standing Committee on the Ministry of Law and Justice, headed by Rajya Sabha member E.M.S Natchiappan, who had said 'Judges appointing judges is bad enough in itself; judges judging judges is worse.' It is pertinent to recollect the fact that the judiciary’s credibility as the ultimate arbitrator on justice is dependent on just one factor: its neutrality as an independent third party in all disputes presented before it! It has been amply proved how impeachment is not a practical process and it is high time that such tomfoolery is done away with!
Democracy itself means that it is the masses who are bosses. So what we have in democracy is the rule of law and governance by those elected, tasked, empowered, equipped and paid to do it! By these criteria can we say that we are a democracy? Is periodical casting of votes enough to be deemed a democracy? Rule of law itself implies one rule for the whole society or, in other words, all laws are applied equally and firmly to all citizens. Does it happen in our country? Definitely NO! A popular refrain about our laws is ‘show me the parties, I will tell you the law’! The police and judiciary are the most corrupt institutions in this country, as per survey results published by Transparency International! But even before TI came out with such surveys it was commonly believed that it was a blessing to pass through this life without entering a court or police station!
However bad the police maybe there is one advantage- any citizen can approach them in any emergency! But with our courts it is not so. Even consumer ‘courts’ (officially forums at district level and commissions at state and national levels), established under the Consumer Protection Act, need a fee of Rs 100/- to accompany every complaint! The disturbing thing is that it was not so to begin with. It was supposed to be a jury system tasked to resolve consumer disputes in a free and fast manner, without getting bogged down in lengthy court room procedures! One could simply send a written complaint and within three months one would get a decision without even having to go to the ‘court’ once! But all that was changed through amendments that can easily be seen to be retrograde! Not only have fees been introduced but presence of the parties or their advocates have also been made mandatory. Today these ‘courts’ are no different from regular courts where tariq pe tariq (adjournments) is the norm, and often even at the end of unacceptable delays justice is denied!
A particular case dealt by the consumer ‘court’ at Palakkad was listed 58 times and adjourned in a span of 6 years! It was finally posted for orders after another two years but was opened for re-hearing suo moto and went on an adjournment spree for yet another two years. 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! Today the Consumer Protection Act has been turned practically into a Consumer Persecution Act!
Similar is the fate of the much touted Right to Information Act. But there is one good thing about this law. It is simple, and unambiguous and can be rightly interpreted by even a person who has passed 5th standard. So if you get the information you seek it is good. If you do not get it then teh process automatically exposes certain public servants as idiots or traitors! So when K G Balakrishnan, then Chief Justice of India, claimed that his office was out of purview of the Right to Information Act, there was no doubt in the mind of anybody, conversant with the Act, as to which category he belonged to! Just for the records, the Central Information Commission and two benches of the Delhi High Court have held his claim wrong!
Somebody had rightly quipped that India is ruled by its clerks. And this category range from Lower Division Clerks to the Cabinet Secretary! Even the Prime Minister of this country cannot do anything other than sign on the line dotted by these clerks. Governance ( as different from rule) requires continuity. While the ultimate decision makers are elected by the people periodically, continuity is provided by these clerks. They are responsible for documentation- compilation of data and information, storing and retrieving them whenever required, to facilitate decision making.
The tragedy of ‘our democracy‘ is that there are no qualities or qualifications or experience prescribed for being elected as a decision maker. Anybody who is of 25 years of age and above can even be elected to the highest office of the land! So it is not surprising that most of them can only sign on the dotted line of any document placed before them by the clerks! And what are the qualifications and qualities required for these clerks? The best of them, grouped under the category Indian Administrative Service, require only skills acquired in upper primary schools- making briefs and answering comprehension questions! The selection process, though, is more like buying a lottery ticket! Like somebody asked what is the need to know the name of the President of America to be a clerk in the Village Office? Competence and honesty apart, at least as a system shouldn‘t it mandate accountability for those who have such a simple but important role in decision making in government? There have been many official studies carried out at considerable cost to the exchequer on the politician-bureaucrat-underworld nexus. But what has happened to the much needed reforms? 57 years after the country supposedly got freedom, we were given a Right to Information Act with the preamble stating ‘...whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed.... it is expedient to provide for furnishing certain information to citizens who desire to have it.‘ A cursory study of the manner in which this simple, unambiguous law has been subverted right from the word go itself will be sufficient to brand these clerks as idiots or traitors (of course subject to the universal rule of exceptions)! Some specific cases are available in a series of blogs ‘RTIA-Exposing the idiots sand traitors amoung public servants ..‘ at http://raviforjustice.blogspot.in.
It has been reported that the government is a party in 80 percent of the cases pending with the courts all over the country. Unfortunately, a lot of tax payers‘ money is wasted in prosecuting or defending these cases apart from wasting the time and resources of the courts too. And public servants filing cases against citizens for practically no reason is also quite common because once a cases is filed the citizen is harassed like hell through the frustrating procedures of the courts. He has to waste not only his precious time and resources but the public servant doesnot suffer any consequences even if the final decision goes against him! So there is simple solution to prevent this. That is, any case being prosecuted or defended by a public servant should be done at the individual level. Or in other words, the public servant will have to appear in court, availing leave when required, and pay the advocates as if it was a personal case being prosecuted or defended by him. And if the final verdict is in his favour he should be compensated to the extent of 50 percent of the gains from the litigation. If the verdict is against him the loss must accrue to him only. This, of course, is not a new fangled idea. Rarely though, even courts are seen directing the government to recover the cost from the public servant concerned. And the RTI Act mandates that the penalty for not providing or for delay in providing the information sought , is to be imposed on the defaulting public servant. In the case of public servants approaching courts against the order of the information comissioners, teh Punjab nad Haryana High Court has made it clear that it has to be done by the public servant at his cost!
India got independence just two years after Japan was reduced to rubbles at the end of the 2nd World War! With no resources, except for a hard working population, it is today one of the major economic powers of the world. In the case of India it can easily be said that there is no resource it doesn’t have. The only bane is the people in government. Shortly after independence a one man commission was appointed to study the extent of corruption in government offices. While submitting the report he is said to have commented that his study has made him believe in God because it was surprising that with so much corruption the masses still seemed to be happy! But down the years, things havee changed. ‘Every time I deal with Indian officials I become so depressed that I almost need therapy.‘, wrote Tavleen Singh (‚India’s bureaucratic albatross‘: Tavleen Singh, Posted online: Sunday , Feb 21, 2010 at http://www.indianexpress.com/story-print/582409/) A report by the Political and Economic Risk Consultancy based in Hong Kong blames India’s ‘suffocating bureaucracy’ for us falling behind countries like Vietnam, Bangladesh, Bhutan and Myanmar in providing our people with minimal standards of healthcare, sanitation and education. T. N. Seshan speaking at theInstitute of Management Technology (IMT) at Ghaziabad on wed 6 Mar 13, had said "They have no moral fibre; from the Chief Secretary down to the Patwari in the village, no one is impartial". The experience with the Right to Information Act proves beyond doubt that these clerks ruling India have made governance synonymous with not only corruption but also treason! Doing nothing they should be doing and doing everything they should not be doing!
The only hope for a better furture is in people getting to know the truth that exposes these corrupt traitors in government for what they are and working together for the much needed change. It is in this context that the question arises whether most of our public servants deserve the punishment meted out to Yakub Memon. At least one judge in our apex court had once told an accused ‘criminals like you should be hung from the nearest lamp post as an example to others. But I do not have the power to do it.‘ This is the thought ruling the minds of most right thinking citizens in this country!
P M Ravindran
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