Judicial Reforms-to CJI JSKehar-120317

P M Ravindran

2/18, 'Aathira', Sivapuri, Kalpathy-678003

Tele: 0491-2576042; E-mail: raviforjustice@gmail.com

 

File:Pers/jud-cji jsk-reforms-120317                                                                         12 Mar 2017

Mr J S Kehar,                                                                                                            

Further to my letter, Pers/jud-cji jsk-reforms-310117 dated 31 Jan 2017, ( I hope you got to read it!)

When I wrote to you about the need for a National Judicial Accountability Commission, which can try complaints against the omissions and commissions of judges as per ordinary laws applicable to ordinary citizens, I did not expect you to put it in practice begining with a high court judge, Karnan! NJAC be damned, I know that our apex court has the power to make laws to fill in the voids where they exist. Take it further, why should the taxpayer’s money be wasted on such an elaborate system of electing representatives to law making bodies who have no qualifications whatsoever required for such an important subject (just to refresh your memory,  the Kerala High Court has decided that journalists who can report court proceeding should be qualified in law! Well, a petition to remove the bar on media in the courts of kerala is pending in the apex court, as has been reported by the media! While on the rights of the media to report whatever they feel like reporting, I must compliment the judges of the apex court who have refused to entertain a petition seeking prosecution of some journalists who had allegedly taken money to write favourably for the accused firm in the infamous VVIP hepter scam!)

Having said that, judge Karnan’s case also is seen as sending only the wrong signals! You may ask how? Well, the begining of it all happens to be his allegations against some of his colleagues in the Chennai High Court, isn’t it? Have those allegations been investigated formally and finally disposed of? While the general nature of the allegations have been reported by the media there have been no such reports about any investigations done or any of the allegations being proved right or wrong. So the contempt proceedings and the present warrant for arrest are all aptly summed up by the proverb ‘putting the cart before the horse‘, isn’t it?

I shall conclude with a few relevant quotes:

“Already citizens are frustrated with the justice delivery system and only less than 10% of the litigants who have disputes are approaching the court," Justice Kirubakaran observed.    -Rise in contempt of court cases irks Madras high court, A Subramani, TNN | Feb 24, 2013, 03.45 AM IST available at  http://timesofindia.indiatimes.com/india/Rise-in-in-contempt-of-court-cases-irks-Madras-high-court/articleshow/18651932.cms?intenttarget=no.

“An extra constitutional, unannounced and invisible emergency is being imposed through our courts and civil society has to be alert to this and react effectively.“- Adv Kaleeswaram Raj, ‘Vidhi prathilomakaram thanne‘, Mathrubhumi of 10 Nov 2011.

“The only obstacle in the way of drastic civil service reform — like the one pursued by the present government at the Centre — is the judiciary that overturns or stays every administrative action against an erring senior officer. Courts would earn the admiration of a harassed public if they stopped interfering in disciplinary matters once they are satisfied that prescribed procedures had been followed in a case coming up before them and there is no malice writ large on a decision. Judicial overstepping, while correcting unjust action against a few honest civil servants, unwittingly promotes the cause of many unscrupulous elements. The track record of administrative tribunals in the country is a matter of great concern to those looking for a balanced and objective bureaucracy. There is need here for an immediate corrective by the Union Law Ministry.“- R.K. Raghavan ( former CBI Director), ‘ Dealing with the deadwood‘, JANUARY 23, 2017 00:15 IST at http://www.thehindu.com/opinion/op-ed/Dealing-with-the-deadwood/article17078468.ece?homepage=true

“Despite issuing interim orders as early as in 2013 making the securing of the Aadhaar card optional, the court has failed to adequately enforce its directions — seemingly every day the government and its various agencies appear to extend the use of the unique ID linking it with the provision of a number of essential services. The court can be excused for failing to haul up the government for contempt of its orders were it to expedite its hearing of the basic challenge to the UID scheme. But the Constitution Bench established to determine whether India’s citizens have a fundamental right to privacy, which the Aadhaar policy quite clearly appears to contravene, is yet to hear concrete arguments on the issue.“- ‘2016: The Supreme Court’s report card‘, Suhrith Parthasarthy (Advocate at the Madras High Court) DECEMBER 31, 2016 00:15 IST at http://www.thehindu.com/opinion/lead/2016-The-Supreme-Court%E2%80%99s-report-card/article16965545.ece

Way back in 2002, in an article ‘Democracy?…East Is East And West Is West!’ (available at https://www.scribd.com/document/341637658/East-is-East-and-West-is-West-030602 ) I myself had written:

Rule of Law not Rule of Judges. The mainstay of any civilized society, leave alone a democracy, is the rule of the law. For any law to be effective it should, first of all, be simple, clear and unambiguous. The affected people should understand it and imbibe it in letter and spirit. The need to go to courts to get interpretations for each and every clause certainly doesn’t speak well of the competence of our legislators. And worse, when the judiciary interprets the same law to mean different, sometimes even contradictory, things under different contexts, the public can only get confused and confounded, as they are now. In this context it would be worth recalling that confusion had prevailed even in recognising the preamble of our Constitution as an integral part of it! In 1961, the Supreme Court had observed that ‘the preamble is not part of the Constitution’, but in 1973, it held that ‘the preamble of the Constitution was part of the Constitution and the observations to the contrary in Berubari Union case were not correct’! Our present Union Minister for Disinvestment, Mr Arun Shourie, has done yeomen service in compiling a number of intriguing cases in a book titled ‘Courts and their judgements’. At the function held to release the book he also made a tongue-in-cheek suggestion: that there should be a group of scholars reviewing all sensitive rulings of the higher courts so that the judges were also careful that their judgements were subjects to scrutiny! And this is what Ms Arundhati Roy, Booker-prize winner, has said: ‘the process of the trial and all that it entails, is as much, if not more of a punishment than the sentence itself’.

Yours sincerely,

Sri J S Kehar

CJI, Supreme Court of India

New Delhi

Judicial reforms-letter to CJI J S Kehar dated 31012017

P M Ravindran

2/18, 'Aathira', Sivapuri, Kalpathy-678003

Tele: 0491-2576042; E-mail: raviforjustice@gmail.com

 

File:Pers/jud-cji jsk-reforms-310117                                                                          31 Jan 2017

Mr J S Kehar,                                                                                                            

Please permit me to introduce myself as one amoung a billion plus, to be precise one amoung the 99 percent of our population, living with the frustrating and disgusting realisation that it is futile to even seek justice in this country! That our judiciary is an absolute failure by the fundamental concept of justice delayed is justice denied is a fact that even you cannot deny. And then when it comes to whetting the decisions on the touch stone of the principle that justice should not only be done but seen to be done it will have to be admitted that our judiciary is in fact a real threat to rule of law itself.

Before I proceed further let me place on record three actions taken by you that gives one the hope that all is not lost yet.

The first one is your decision to introduce additional benches for the summer vacation. It is indeed the first step of a long journey that is required to finally get the judiciary to work like any other institution of governance!

The next is to do away with (gender) biases while deciding cases. Here the question arises : will you be able to rewrite the laws themselves. I invite your attention to the following decisions of the Kerala High Court: Jancy Joseph Vs Union of India (1999 (1) KLT 422) and Mary Chacko vs Jancy Joseph (2005 (3) KLT 925) which have dealt with the applicability of Sec 56 of CPC to Sec 27 of Consumer Protection Act. The injustice should be obvious to anyone who has any sense of justice! To put it bluntly one might ask where is it written that individuals can be denied justice?

The third is your direction to take up cases on a first come first served basis.

At this point of time I can’t also forget that you headed the bench that quashed the National Judicial Appointments Commission Act, on the ground that it was unconstitutional. I must say that it was an absolutely unconstitutional and  illegal judgement. Those of us who have been observing the introduction and consolidation of the collegium system know only too well how the judiciary took advantage of minority governments at the centre to perpetrate this unconstitutional system. But for a layman like me this legislation or its quashing did not make any difference. The credibility of the executive in the matter of appointments to various quasi judicial bodies from National Human Rights Commission to state information commissions and the various ombudsmen leave much to be desired. Having said that, the need for the more seriouly important and urgent National Judicial Accountability Commission which can try complaints against the omissions and commissions of judges as per ordinary laws applicable to ordinary citizens cannot be over emphasised.  

The apex court decisions in Jayakrishnan Master murder case and the more recent Soumya murder case sends shivers down one’s spine  due to the grossness of the injustice perpetrated! In the former, where a school teacher in Kerala was murdered in front of the students of his primary class, five or six persons were convicted and sentenced to death by the trial court. It was uphled by the Kerala High Court too. The apex court acquitted all of them except one, whose sentence was commuted to life imprisonment. But even this convict was soon walking free, only to be accused in another murder case and arrested! Interestingly this person made a revelation through the media: that is, all those who had been let off by the apex court in the earlier case had actually been framed by the police! His revelation notwithstanding, the fact remains that it was a mob that attacked and killed the teacher in broad daylight in his class room, in front of his students! Then how is it that the police failed to nab the real murderers and successfully got innocent men convicted? And why did even the apex court fail to pursue the case to its logical end not only to punish the other members of the gang involved in the murder but also punish the cops involved in framing innocents? And what about compensating those who had suffered the long years of agony in custody and pursuing the case till being acquitted?

Talking of framing innocents, there is this case of a top scientist, Nambi Narayanan, of ISRO who was framed in what is known as the ISRO spy case. He not only lost his job but had to suffer torture and all other agonises connected with pursuing justice in this country. The apex court acquitted him too and he has been fighting for a compensation of a mere Rs 1  crore for the last decade plus. And compare it with the expeditious manner in which a former apex court judge was awarded a compensation of Rs 100 crores for a media inadvertantly telecasting his photo for a minute or less while reporting a crime involving another judge with a similar sounding name!

This narrative would be endless. But suffice to say that court decisions that uphold the principle of justice not only being done but seen to be done are becoming rarer by the day, if not missing altogether.

I wouldn’t waste my time reproducing whatever I have been writing about the need for judicial reforms for the last decade and a half. But some of these have been posted as blogs and you may go through them if you are interested. Of particular relevance would be:

Is the judiciary taking citizens for a ride? at http://blogs.rediff.com/scripts/blog_form-edit.phtml?handle=pmravindran@rediffmail.com&sessionId=1K1KSKxegwidZ1EgswLqbOxhhVDU&blogId=1043020674

Reforming our justice delivery system at

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

Who will judge the judges? at http://raviforjustice.blogspot.com/2011/03/who-will-judge-judges.html

Parliamentary Standing Committee on Judicial Reforms at http://raviforjustice.blogspot.com/2011/03/parliamentary-standing-committee-on.html

Report of the NCRWC- a Citizens Review at

http://raviforjustice.blogspot.in/2011/03/report-of-ncrwc-citizens-review.html

Justice Delivery System- FAQs at

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

Indian judiciary-who said what at

http://raviforjustice.blogspot.com/2011/05/indian-judiciary-who-said-what.html

Access to Justice-A Stake holder’s Report

http://raviforjustice.blogspot.in/2012/02/access-to-justice-stake-holders-report.html

Democracy? East is East and West is West at http://www.articlesbase.com/politics-articles/democracyeast-is-east-and-west-is-west-4287828.html

The (Late) RTI Act at http://rithica2016.blogspot.in/2016/10/the-rti-act-is-dead.html

And there are more...

To cut this communication short, here are a few things which the judiciary must do urgently before it becomes irrelevant and throws the nation into a civil war like situation:

1. Ensure timely disposal of cases.

1.1.For this the first requirement if of course having competent judges. This will involve specialisation in subject specific laws. Though this is the principle underlying the constitution of various tribunals and commissions, in practice their performance have been worse than regular courts.

1.2.Even though the number of adjournments that can be given is specifed even in the Consumer Protection Act, they are all violated with impunity. Just to give an example, in OP 282/99 of Consumer Disputes Redressal Forum , Palakkad (OP No 85/95 transferred from Malappuram), the opposite party had produced interim stay order on 28/10/99 from the Kerala High Court 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 6/7/07 but was opened for re-hearing suo moto on 15/2/08 and went on an adjournment spree from 3/3/08 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!

1.3.The next is limiting the number of cases listed for hearing to pragmatic levels and ensuring that all the listed cases are heard and progressed to some meaningful extent. In lower courts more than a hundred cases are listed per day when actual hearings are conducted only in less than dozen. Most of the few working hours of the court is wasted in ‘mustering‘ only!

1.4.Cut out the holidays enjoyed by the judiciary exclusively. In fact there is a need for lower courts to work round the clock like police stations.

2. Ensure justice is done in every case. It is important not only for justice to be done but for justice to be seen to be done. Unfortunately what we find is the opposite. Whether it is the final decision in Jayakrishnan master murder case, Soumya murder case or the cases involving celebrities like Salman Khan there are many questions that create doubts about the credibility, reliabiltiy and intergrity of the judiciary.

3. Ensure transparency in the processes and functioning of the courts. In fact it is obnoxious that some cases linger on for decades when some, of the same category, are disposed off in a jiffy. List of cases under specific charges should be updated atleast once in a quarter, progress evaluated and re-prioratised, if necessary. Coming to transparency, it has to be noted that the claim of the then CJI, K G Balakrishnan, that his office did not fall under the purview of the RTI Act had taken the credibility, reliabiltiy and intergrity of the judiciary to new depths.
4. The so called independence of the judiciary is myth. Atleast one judge, who was appointed as Lokayukta of Gujarat, refused to accept the appointment stating that it would be impossible for him to perform his duties when the ‘executive‘ was not co-operative! We all know how it is a system of ‘I scratch your back, you scratch my back‘ that is the working model in our system of government. And that is why in spite of scams worth lakhs of crores surfacing nobody worth the name has been punished so far ever!

5. The total failure of the judiciary has led to a situation where everybody who is anybody in government or criminals with money or muscle power tend to drive every honest, hard working and simple citizen to the judiciary where they can simply ‘rest‘ their cases and wait for the good Lord of Death to embrace them! The need here is for even public servants to be treated as independent litigants and made to suffer the court processes and punished for failure to successfully prosecute/defend their cases. A system of rewards for  successfuly prosecuting/defending cases involving public interest should be introduced to provide incentive for honest public servants.  (Please note that in the RTI Act, the penalty is imposed on the delinquent public information officer as an individual and it has been clarifed by atleast some high courts that if the penalised PIO has to go on appeal he has to do so at his own expense! Unfortunatley the apex court has not reiterated it and hence it has not been implemented at the national level!)

6. The RTI Act also reminds one of how even the simplest of laws, absolutely clear and unambiguous, are voilated with impunity and that too by the very authorities appointed to enforce it. It has been reported in the media (‚More than 60 per cent CIC orders flawed: study at http://www.dnaindia.com/mumbai/report-more-than-60-per-cent-cic-orders-flawed-study-2299578) that 60 pc orders of the information commissioners are flawed. As an activist in this area I know that 100 pc of the orders of the information commissioners at the Central Information Commission and Kerala State Information Commission are flawed. In fact the task of an information commissioner is simpler than that of a munsif in our courts. But these commissioners who have been given the status and remuneration of Chief Election Commissioner/ Election Commissioner/ Chief Secretary have all but murdered the law they have been tasked, equipped and empowered to enforce. If only the much touted rule of law actually prevailed in this country each of them could be successfully prosecuted under Sec 219 of the IPC and would be marking their time in prison for a good 7 years! And to be sure there are enough right thinking citizens in this country still who would haul them up before our courts if only they had the confidence they would get justice within their life time

The above list is by no means exhaustive. But it should be sufficient to make one think where all you can intervene and help improve the situation. And this, I must say, is the purpose of this communication to you.

Yours sincerely,

Sri J S Kehar

CJI, Supreme Court of India

New Delhi