Saturday 20 October 2018

COURTING CONTROVERSIES-021018

If anybody asked me which is the most covetable job in my country I can say without even batting an eyelid- a judge! And the next best? An advocate, for sure! Let me explain.

In any case before a judge there are always two parties- the complainant/prosecutor and the respondent/defendant. Both the parties will of course present some facts and quote some laws including some case laws too. It is then left to the judge to take the final call on who should get the favorable judgment. And I dare say that he can do it by just tossing a coin. Thereafter all that he has to do is pick up the appropriate lines from the arguments of the concerned party and add his decision. The procedure too is so weird and antithetic to the very concept of transparency, accountability and ultimately to the very concept of justice itself. To illustrate, just consider the case of adjournments and the delays is announcing decisions even after arguments are closed. Tariq pe tariq is such a hall mark of our judicial system that it should not need elaboration but probably not so well known is the delays in passing orders even after the final arguments are over. For the sake of the uninitiated I shall use an example from a complaint taken up with the Palakkad District Consumer Disputes Redressal Forum. In OP 282/99 (OP No 85/95 transferred from Malappuram), the opposite party had produced interim stay order from the Kerala High Court on 28/10/99 and the stay was vacated only  on 8/6/2005 but throughout 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! Now, if this is the state of affairs in a consumer ‘court’, constituted under the Consumer Protection Act, in the form of a jury (and the implied high cost to the exchequer) to dispose of routine consumer related complaints fast and free (it was free to begin with but later a fee was introduced to even file the complaints) one can well imagine the affairs of regular courts.

The National Commission to review the working of the Constitution, headed by a non-tainted former Chief Justice of India, M N Venkatachaliah and whose 5 of the 10 other members were from the judiciary had 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.'

That nobody can have the cake and eat it too is a common refrain. If there is any exception it has to be our judges. They can always blame the shoddy investigation and shoddy prosecution for miscarriage of justice. What about the competence and motivation of the judges? To even question them would invite prosecution under the Contempt of Court Act where the prosecutor, jury and hangman are all combined in one man- the same judge whose credentials are being questioned.
The second most covetable is that of an advocate, if only because his is a job that does not need to produce any guaranteed results. And the fees? Incredible! Didn’t Ram Jethmalani claim that his fees for just a conference is Rs 1 Crore? And now the apex court itself is possessed of the exorbitant fees charged, upto Rs 50 lakhs per hearing, by senior advocates. Imagine, even a cardiologist who does beating heart surgeries is paid only a fraction, almost negligible fraction, of such amounts.

It has been mentioned earlier that the judge can always blame it on shoddy investigations and prosecution for miscarriages of justice. But isn’t it just half truth? What was the role of the investigators and prosecutors in the infamous case under the Right to Information Act where the then Chief Justice of India, K G Balakrishnan, himself claimed that his office was out of purview of the law enacted to contain corruption and to hold Governments and their instrumentalities accountable to the governed?

Less than a year back the nation witnessed a sitting high court judge being sent to six months in prison, under the contempt of court laws for making some categorical allegations about some brother judges. Even before he was out from jail we also saw the same judges who convicted him making some vague allegations against the Chief Justice himself and specifically questioning his integrity itself. But then the contempt laws seems to have vanished into thin air.

A couple of years back Times Now, a visual news channel, telecast for a few seconds the picture of a retired Supreme Court judge inadvertently while reporting a scam in which another judge with a similar name was alleged to be involved. The media promptly tendered apologies but the judge felt that it was not sincere. He claimed for defamation and was awarded Rs 100 crores as compensation. Appeals to the high court and apex court was not even heard but dismissed with the remarks to first deposit Rs 20 Crores and issue ban guarantee for Rs 80 Crores. In contrast, more than 25 years back a top scientist from ISRO was framed in a sleazy scandal. The conspirators were many and with different motives. He and a couple of his colleagues, working on a project of national importance, were arrested, tortured, imprisoned and had to live through horror for many years. He was finally acquitted by the apex court four years later. And since then he had been a litigant demanding prosecution of the conspirators and perpetrators as well as for compensation of a mere Rs 1 Crore. While the latter case is still pending in the Kerala High Court the former has been decided in his favour with the constitution of a one judge committee to investigate the allegations and an award of Rs 50 lakhs as compensation. If this doesn’t remind one of Animal Farm where all animals are equal but some are more equal than the others, then it is futile to continue to claim this to a democracy having rule of law where be you ever so high, the law is above you. In fact our judges are not just above law but a law unto themselves. The trashing of the National Judicial Appointment Commission Act also proves this, if ever proof was needed.

The recent spate of judgments by the outgoing CJI, Dipak Mishra, has also given reason to question the competence, motives and prudence of our judges. The judgments in the matter of Adhaar, entry of women in Sabarimala and adultery have raised more questions than those addressed by the judges in the respective cases.
In the matter of Adhaar, the lead petition was filed in 2012, by a former judge of a high court. During the six years the court sat on it, the executive had had a free run making it compulsory for almost every activity in the life of a citizen, from getting admission for children in schools, to reservations in railways to even pension. And now the court has circumscribed its use and ‘permitted’ citizens to demand removing the linking of Adhaar to many facilities that it has been already linked with. And there is also a ban on private parties demanding Adhaar validation when Reliance Jio has provided its services to almost 300 million customers based only on Adhaar validation.

In the matter of entry of women in Sabarimala the majority has over ruled the sane voice of its only woman member in the bench. There is quip: he who can smile when things go wrong has already thought of someone he can blame it on. Sabarimala is a seasonal pilgrim destination and the crowd has been swelling every year and become unmanageable in recent years. Even the police, deployed on security duties, have been asking for limiting the number of pilgrims visiting the shrine and extending the virtual queue management (through web booking) to 100 percent pilgrims. And now even the communist government of the State, which had supported women’s entry, is praying that the number of women will not swell during the forthcoming season in a few months. We don’t have to wait for too long to learn what a disaster bomb has fallen into hands of the state government which is already facing criticism from all quarters for its disastrous management of the recent disaster in the form of floods.

Apart from the logistics involved in Sabarimala, there is also the question how is it that the judiciary which is so active in interfering adversely with all matters affecting hindus and their faith and rituals (Jallikattu, dahi handi, fireworks etc) is pretending to be blind to questionable faith and rituals of the minority communities. Cyber space is rife with information that of the 25 lakh temples in India there are only 6 that do not allow men and 5 that do not allow women but there are over 3 lakh mosques where women are not allowed entry at all or not allowed to pray with the men. Even a former Supreme Court judge, K T Thomas, has written that in the pulpit area of the church no women are allowed even now.

The judgment on adultery is even more shocking. But the redeeming factor is it is not restricted to any particular denomination. And without going into an analysis of its sociological implications let me recollect two instances narrated in the Bible. The first is of course the Garden of Eden where Adam and Eve were living a life of bliss. And then came the devil in the form of snake and temptation. The rest as they say they say is history. The second one is of Jesus addressing a mob about to stone Mary of Magdalene to death for prostitution. Jesus told them ‘let the one who has not sinned throw the first stone’ and everybody dropped their stones. Though these instances raise their own questions in the present context, the one that I would ask, to conclude this article, is: will only the judges who have not sinned sit in judgment in our courts?



02 Oct 2018

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