Thursday, 25 January 2018



In a democracy, the people are supreme, and therefore they are the superior entity, while all State authorities (including Judges) are inferior entities, being the servants of the people.-  Markandey Katju, former judge of the Supreme Court of India

If anybody asked me what is wrong with our judiciary I wouldn’t reply with ‘please do not ask me what is wrong, ask me what is right; it will be a shorter list’. Because, in both the cases I can reply with single words: everything and nothing!

The problems start with articles 129 and 215 of the Constitution which empower the apex court and high courts to punish for contempt of those courts and subordinate courts. These, no doubt, are provisions anathema in a democratic society where the sovereign power rests with the people. And all functionaries of the government, and let us have no doubt that judges are also part of the government, are public servants with clearly identifiable tasks and empowered and equipped to fulfill those tasks and appropriately compensated for accepting and fulfilling those tasks.

We are well aware that our Constitution has divided these functions of government into three parts- the law making, the law enforcing and law interpreting. While all three are supposed to be independent in their own areas of jurisdiction, there are supposed to be checks and balances also between all three. As far as the citizen is concerned his liberty is circumscribed by the quip ‘your liberty ends where my nose begins’. And we also know that the ultimate refuge of a citizen seeking justice is the judiciary. So the responsibility for the ultimate denial of justice should also lie at the door steps of none other than the judiciary.

Writing in the New Indian Express of 20 Dec 2004 ('Human rights, the genesis of justice is from religion’), columnist Renuka Narayan stated that 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! And Aravind Kumar, Jurist and lawyer, writing in the Pioneer, Kochi, of 01 Aug 2006 ('Needed high speed legal redressal') had stated ‘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.’

And to quote myself from an article (‘Democracy? East is East and West is West…!’) written in 2002 and available at

 Judiciary. But even the administration is a shade better when compared to our judiciary! Justice delayed is justice denied is a maxim that one learnt in the primary school. So imagine the state of affairs when even under-trials are left languishing in jails for 30 or more years. When even a life-convict is expected to be kept in jail for only 14 years or less, just imagine the horror of spending so many years in jail as an under-trial in a case where the maximum punishment could be just a few months! Here is a report by Swaminathan A Aiyer. Three liquidation cases in the Calcutta High Court remained pending for more than 50 years. And India can boast of the longest legal dispute in history- a land dispute in Maharashtra lasted 650 years! If no new case at all is registered, says Debroy, the courts will take 324 years to dispose of the backlog at the current rate of clearance. And this, when only 50 percent of the population is literate and the majority of the population is simply worried where their next meal is going to come from! Agreed that, as usual, resources needed are far more than what is available. But to accept that and rest the case would be nothing but a fraud. And this is what Justice V R Krishna Iyer has written in Justice and Beyond: Why, in Gandhian India, are sentencing provisions and practices sadistic and retributive, judges and administrators dismissing as hawkish muck therapeutic and corrective alternatives? When do we hope to modernize, humanise and democratise our legal system and tune it upto to Third World conditions?

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 judgments. 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 judgments 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.

People who do not understand even the relevance of the Preamble of the Constitution are not only bound to create such faux pauses but should be viewed as dangerous enough to subvert the laws themselves. For the benefit of those who may find it difficult to understand this logic here are some illustrations.

In Ittavira Vs Varkey (A 1964 SC 907) the apex court had ruled that 'courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities'.

Subsequently, in Misrilal Vs Sadasiviah (A 1965 SC 553) the apex court had ruled that 'there can be no interference in revision merely because the decision is erroneous in law or in fact where there is no error pertaining to jurisdiction'.

Now what does a combined reading of these two judgments mean? A court with jurisdiction can pass any absurd, patently unfair, unjust order and the litigant will have to lump it? And mind you, these case laws were quoted by some eminent lawyers while defending an appeal under the Consumer Protection Act of 1986!

Similarly, in Jancy Joseph Vs Union of India (1999 (1) KLT 422), the question of applicability of Section 56 of the Civil Procedure Code while ordering arrests under the provisions of Section 27 of the Consumer Protection Act was considered by the Kerala High Court. Under Section 56 of the CPC, 'the court shall not order arrest or detention in the civil prison of a woman in execution of a decree for payment of money; regarding recovery of money from others, arrest can be ordered if it is found that the person concerned have means to pay'.

The judge had ruled that ‘ woman cannot be arrested for recovery of money under Sec 27 of the (Consumer Protection) Act but the means of judgement debtor need not be considered when the power under S 27 is exercised for recovery of money'.

In other words, the judge not only exempted 50 percent of the population from the penal provisions of a period legislation on the grounds of sex which is illegal as per the preamble of the Constitution but also aggravated the discrimination by ruling that judgment debtors, other than women, could be arrested even if they did not have means to pay!

But the sordid saga didn’t end there. in Mary Chacko vs Jancy Joseph (2005 (3) KLT 925), a division bench headed by the then CJ of Kerala considered the issue of the applicability of the same Sec 56 of CPC while enforcing the orders under Recovery of Debts Due to Banks and Financial Institutions Act 1993 and ordered that women CAN be arrested because 'there is a clear basis for treating the public dues different from the purely private'. Now this raises a genuine doubt whether the Constitution of India, by which all these luminaries swear by, mention anywhere that justice could/should be denied to individual citizens? As I see it, or as any man in his senses would see it, it is a big NO! Doesn't it suggest that these people read the Preamble to the Constitution, as well as the Gandhi Talisman for added effect,
every time they opened a case file? (For more reading go to

It is presumed that the above examples prove sufficiently how wayward and whimsical the decisions of our ‘learned’ judges are. But to cut the story short let me quote V R Krishna Iyer, a former judge of the apex court held in great esteem by the legal fraternity, from his article ‘The patchy Indian judicial record’ in the Hindu of 06 Sep 2007:

The tricolour flies high, but today the Indian judicial culture flags. …The British Crown had jettisoned India from the Empire, but colonial law and feudal justice has not been replaced or displaced by dynamic principles of socialist, secular, democratic justice meeting the raw realities of Indian life. Judicial jurisprudence has not possessed a       progressive √©lan or innovative and creative national commitment one would have expected from a system that was to administer social and economic justice in the context of penurious humanity, reflecting the preambular objectives….Litigation is now a terror and horror. It is never final and is ever perennial. It bankrupts both sides, shocks and shames socio-economic egalite….  
There are several thousand cases where judgments have not been delivered long years after arguments are over. Judicial officers adopt cover-up devices to hide this truth from the people. Sometimes judges of superior courts retire or secure transfers without pronouncing pending judgments. Thus the backlog may be partly blamed on the judges themselves who listlessly listen to hours of arguments, allow months and years of adjournments, on matters that would be disposed of in a fraction of that time period in the U.S. and the U.K. There are subordinate courts where adjournments are liberal and there are no cases to hear in the afternoons. On the contrary, I have seen in Delhi courts where a presiding judge hears two or three cases simultaneously, making the public trial of cases a farce or a scandal….We only hear about the clamour for the appointment of more judges, which can have negative results if Parkinson’s Law and the Peter Principle are true….We urgently need three Judicial Commissions at the national and provincial levels: an Appointments Commission, a Performance Commission and a Punitive Scrutiny Commission. They should have the power even to terminate services in cases of gross judicial misconduct.’

Cut to the implementation of the Right to Information Act. Immediately on its enactment judges could be heard speaking from every platform that the judiciary had always upheld this right as part of freedom of speech and expression. But on ground they started with subverting the Act by misusing the power under Sec 28 of the Act, in total negation of the proviso to Sec 7(5) of the Act, by demanding exorbitant fees towards application and cost. And they even introduced a fee for the 1st appeal which is intended to only provide an authority superior to the Public Information Officer of the public authority to correct any shortcomings in the responses of the PIO. And of course the case of the then CJI, K G Balakrishnan, claiming his office to be out of purview of the RTI Act is too well known to need a repetition here. But what has not been discussed by anybody so far is the fact that in that case, decided by all the information commissioners of the Central Information Commission sitting as one bench, the information commissioners had refrained from imposing the mandatory penalty under Sec 20 of the RTI Act on the CJI who was the de facto custodian of the information sought!

It may not be that the information commissioners had refrained from imposing the penalty on the CJI due to any reverence or extraneous considerations. But the fact remains that these extraneous considerations cannot be ruled out in other cases. And if you look at the cumulative loss to the exchequer due to failure of the information commissioners to impose the lawfully mandated penalty it may be more than the loss due to 2G and Coalgate scams put together. And worse, it has also resulted in the law itself being subverted with impunity! The same can be said of other quasi judicial organizations too.

To conclude, there is no denying the fact that the failure of the judiciary has resulted in the deterioration of law and order of the society and there are more criminals in our offices of governance than in our prisons!

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