I
happened to see the video clip of your address on the Constitution Day. Since I
could not download the video from https://www.bloombergquint.com/in-the-news/chief-justice-of-india-on-constitutional-morality#gs.Z_N8nhk I just downloaded the text from the website of the
apex court. Your exhorting on Constitutional morality actually reminded of two
quips: the devil quoting scripture and prostitutes talking of chastity. What
with 3 crores cases pending with our courts and our judges enjoying holidays
like in colonial times!
May
I also ask why do aggrieved parties need to approach courts through advocates
when the judges are expected to be conversant with the laws and the parties are
conversant with the facts? I know that legally a litigant can approach the
court in person. But I have personal experience of how complainants appearing
in person even in consumer ‘courts’ are treated. (The obnoxious functioning of
quasi legal authorities shall be touched upon later.) And don’t advocates
disturb the level playing field available to litigants when they themselves
have to present the facts before law qualified judges?
Fali S Nariman in his book 'India's Legal system: Can
it be saved? Has stated that ‘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.’
Coming to costs, particularly the fees of advocates,
isn’t it obnoxious that when beating heart surgeries cost less than 10 lakhs as
a package, advocates charge even Rs 1 crore just for conference? Just recollect
the recent case of Arun Jaitley charging Aravind Kejriwal of defamation and the
latter paying about Rs 2 crore plus to Ram Jethmalani from public funds for
defending him. When the matter of public funds being wasted for defending
someone in what was purely a personal case, was, rightly, taken up with the
Delhi High Court it was reportedly dismissed.
Leaving
aside the assistance being provided by the Legal Aid cells to the weaker
sections, what action has the judiciary taken to regulate the fees of advocates
and ensure its compliance? Is it even insisted that advocates issue receipts to
their clients for the fees received by them? I can state from personal
experience that walking upto an advocate to represent you in a case in any
court is like walking into a trap. The moment you have signed the vakkalath you
are literally at the mercy of the advocate and liable to fleeced to penury. The
then Union Minister for Law, Ravi Shankar Prasad, had illustrated this with an
example during his address at the concluding session of a seminar on ‘Access to
Justice’ organized by the Supreme Court Advocate on Record Association. He had said that at the beginning of the
litigation the client came to the court in a car and the advocate was on a
bicycle. By the time the case was over, the client was on a bicycle and the
advocate in a car.
And,
if at any stage you want to change him there is a, possibly unwritten,
requirement of getting a no objection certificate from that advocate before
your case can be handed over to a new advocate.
Your
predecessor, Mr Dipak Misra, had said that the Indian judiciary is the most
powerful in the world. He was right. We are well aware of how judges who had
even held that right to life did not exist during the Emergency had upset the
checks and balances, believed to have been provided in the Constitution between
the three organs, and rendered even the legislature and executive redundant, as
was evident in the manner in which even a constitutionally legislated National
Judicial Appointments Commission Act was trashed.
Let
me highlight the failures of the judiciary, as perceived by a citizen, through
some pertinent questions in some illustrative cases.
Jayakrishnan
Master was murdered in front of his primary school students in a class room on
1999, December 1. The trial court had convicted and sentenced to death 6 of the
accused. The decision was upheld by the High Court of Kerala. But the apex
court actually acquitted 5 of them and reduced the death sentence of one to
life term. By this time all of them had completed about 14 years in jail and
were released immediately or shortly thereafter. Soon one of them was involved
in another gruesome (political) murder. T P Chandrasekhar was murdered with 52
wounds on his body. And we were shocked when the former convict in Jayakrishnan
Master murder case disclosed that actually only he had been involved in that
murder from amoung those who had been convicted earlier.
The
pertinent questions:
1.
Isn’t it true
that our jurisprudence is based on the premises that even if a hundred
criminals escape not a single innocent one should be punished and that capital
punishment is given in the rarest cases?
2.
Then how come 5
innocent persons were convicted by the trial court?
3.
How come the
learned judges of the high court did not find out the error?
4.
How come the apex
court even while acquitting all but one of the convicts, did not find any
reason to bring the rest of those involved in the gruesome crime to book?
5.
Why no action had
been taken against the investigators and the prosecutors who had successfully
got 5 innocent persons sentenced to death in the trial court and got it upheld
in the high court?
The
next case I would like to take up is that of the air accident in the Mangalore
Airport more than a decade back. When the compensation was to be distributed to
the victims/next of kin it was initially ordered that they will all be
uniformly paid. On appeal by the insurance company, the apex court had directed
that it needs to be paid only in proportion to their income.
The
pertinent questions here are:
1.
Had the carrier
taken the income levels into account when charging for the tickets? Or, were
the fares based on the income levels?
2.
Was the insurance
provided free of cost?
3.
Even if it had
been advertised as free (there is no indication of any such claims though),
could it have been really free?
4.
Could any service
have been free when the carrier was making profit equally from all the tickets
sold?
5.
Wasn’t it gross
discrimination against the passengers who had all paid equal fares (except in
the cases of different fares paid based on the class of travel) and weren’t
they entitled to equal treatment?
In
Jancy Joseph vs State of Kerala (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 'I quash Ext P5 in
so far as it holds that woman can be arrested for recovery of money under Sec
27 of the (Consumer Protection) Act and that means of judgment debtor need not
be considered when the power under S 27 is exercised for recovery of money'.
The
pertinent questions:
1.
Even presuming
that nothing had changed from 1908 to 1986, and the preamble of the Consumer
Protection Act did not mean anything, how did the judge increase the
discrimination in Sec 56 CPC by rendering void the issue of means in the case
of ‘others’?
2. How come the judge dumped Article 14 of the
Constitution which mandates equality before
the law or the equal protection of the laws when the law makers themselves had strictly abided by Article 15 which
forbids discrimination against any citizen
on grounds only of religion, race, caste, sex, place of birth or any of them?
In
Mary Chacko vs Jancy Joseph (2005 (3) KLT 925), a division bench headed by the
then CJ of Kerala High Court 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'.
And
here are the important questions:
1.
Which article of
the Constitution, or the laws made under it, provide for such discrimination?
2.
Which is the
article of the Constitution that has empowered a judge to discriminate between Consumer
Protection Act and Recovery of Debts Due to Banks and Financial Institutions
Act which themselves have not discriminated between defaulters on any grounds?
In
Ittavira Vs Varkey (A 1964 SC 907) the apex court has 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'. And in Misrilal Vs Sadasiviah (A 1965 SC
553) the apex court has reportedly 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'.
Here
the questions are:
1.
Where does that
leave the ordinary mortals?
2.
Can’t a court
with jurisdiction pass any absurd, patently unfair, unjust order?
3.
What is the use
of any litigant pursuing appeals?
4.
Even in the cases
where appeals and revisions are allowed what is action taken on the erring
judge(s) and for compensating the victims?
Supreme
Court had held in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India
(UOI, (2005) 6 SCC 344) that “…grant of any adjournment let alone the first,
second or third adjournment is not a right of a party. The grant of adjournment
by a court has to be on a party showing special and extraordinary circumstance.
It cannot be routine. While considering prayer for adjournment, it is necessary
to keep in mind the legislative intent to restrict grant of adjournments.”
The
question: Why is it that the courts continue to be notorious for their tareeq pe tareeq syndrome?
It
was a serving CJI who admitted that 20 percent of the judge are corrupt.
Here
the questions are:
1.
Did he commit
contempt of court?
2.
If what he said
was true what action had been taken to identify and punish them under the
Prevention of Corruption Act?
3.
How many judges
have been punished in corruption related cases?
Given
that accepting money is not the only form of corruption, what actions have been
taken in the following scams reportedly involving judges:
1.
The Mysore sex
scandal.
2.
The Karnataka
housing plots allotment scam.
3.
The Rajasthan sex
for verdict scam.
4.
The case of a
judge of the Mumbai High Court who he had reportedly sought the help of the
underworld to get the tenants of his flat evicted.
5.
Cash at doorstep
of one judge meant to be for another judge of similar name.
6.
P D Dinakaran
land encroachment scam
7.
The case of non
bailable warrant issued against the then President of India and the CJI by a
lower court judge.
This
is just a random recollection of some media reports.
When the Right to Information Act had been enacted
there were many reports of judges claiming how they had actually being pioneers
in upholding the right to information under the fundamental right to freedom of
speech and expression. But the fact remains that when framing rules, the Chief
Justices as competent authorities, had introduced prohibitive fees both for the
application and additional fees towards cost of copies of documents. Worse, it
was only the judiciary that had introduced a fee for even the 1st
appeal which was merely an additional opportunity given to the public authority
to correct any shortcomings in the reply by the public information officer.
While these issues have been rationalized the issue of still holding the
judicial part of court functions out of purview of disclosure under the RTI Act
remains. This is an important issue because there are cases where even after final
arguments are concluded decisions are not announced even after a couple of
years and the advocates express helpless and known to advice their clients to
write to the judge(s) directly. Of course there is also the fear that even if
is permissible the possibility of a favorable verdict in the offing may go
adverse!
The
judiciary still has not completely complied with the provision for suo moto
disclosures under Section 4(1)(b). At least I have not been able to locate the
information about the monthly remuneration received by each of its judges either
in the web site of the apex court or the Kerala High Court under the
‘RTI-disclosures under Sec 4(1)(b)’ option.
Even an application for such information had been thwarted with the
reply that one can refer to the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958
as amended
from time to time when the need was to
provide the copy of the latest amendment applicable. Also an application for the copy/extract of the
relevant law/rules where by judges of the higher courts are permitted to use
Justice as prefix to their names got the response that ‘It is beyond the jurisdiction and scope of the duties of the CPIO,
Supreme Court of India under the Right
to Information Act, 2005 to interpret the Iaw, judgments/orders of this Hon'ble
Court or of any other Court, to glve explanation, opine, comment or advise on
matters. Your request is not covered under Section 2 (f) of the Right to
Information Act - 2O05’
Of course, the judges have the freedom of blaming
shoddy investigation and prosecution for miscarriage of justice. But then the
question remains ‘who is responsible for the then CJI K G Balakrishnan claiming
that the office of the CJI is out of purview of the RTI Act? ‘ And as of now
there is also the question: what has happened to the appeal filed by the
Supreme Court in the Supreme Court against the verdict of the division bench of
the Delhi High Court in that matter?
The recent decision of the apex court in the
Sabarimala issue is one of the most glaring examples of blatant violation of
the Constitution and subversion of justice. It doesn’t require any arguments to
acknowledge that the fundamental right to equality (Articles 14 and 15) is very
much different from the fundamental right to freedom of religion (Articles 25
and 26) And if the court had to interfere with Article 25 and 26 under Articles
14 and 15, it was to remove the limitation of Article 25(2)(b) to only Hindu
religious institutions of a public character. The closest that the bench which
gave the verdict came to recognizing the crux of the issue was in defining the
term denomination in Article 26. And
there the authority for defining it should have been the dictionary or
thesaurus and not the perception of the judges. It was a similar objectionable
act of defining the term consultation
in Article 124(2) that has led to the creation of a Collegium system of
appointing and transferring judges. Whatever be the perceptions of the
judiciary on this system ordinary citizens view it as upsetting the necessary
check and balances provided by the authors of the Constitution. Parliamentary
Standing Committee of the Ministry of Law and Justice, headed by Rajya Sabha
member E.M.S Natchiappan, referring to the judiciary's last word in appointment
of judges, said, 'Judges appointing judges is bad enough in itself; judges
judging judges is worse.'
The latest to criticize the Sabarimala
verdict of the apex court is the recently retired judge of the apex court,
Kurien Joseph. In his interview to Times of India, he had stated that there was
no need for the courts to interfere with religious practices. He had also gone
on to justify the controversial press conference casting aspersions on the then
Chief Justice of India. Inadvertently he had also exposed that there are some
sitting judges who are biased in their views.
In any case, whatever has been happening in
Kerala after the reopening of temple after the verdict, has been nothing less
than catastrophic and the responsibility squarely rests at the doors of the
apex court itself.
Writing in the Mathrubhumi of 10 Nov 2011 (‘Vidhi
prathilomakaram thanne’ that is, the verdict is heinous), Adv Kaleeswaram Raj
had stated that 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. The pity is that he has not expounded what form this
reaction can take.
Kaleeswaram Raj also reminds me of Montesquieu (The Spirit of the Laws) who had said “There is no greater tyranny than that which
is perpetrated under the shield of the law and in the name of justice.”
Justice
Katju had said that 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. And the National Commission to review the working of the
Constitution had also explicitly stated that the highest office in a democracy is that of the citizen. These
quotes are redundant to anyone who simply understands the meaning of the term
democracy.
In
the Indian context there is an urgent need to amend Articles 19, 129 and 215 of
the Constitution, repeal the Contempt of Court Act (Act No 70 of 71) and
restrict contempt of court to only such cases of willful non compliance with
court orders. There is also the equally important need to constitute a National
Judicial Accountability Commission with the powers to try and punish judges
under all laws applicable for ordinary citizens but with twice the severity,
being cases of professionals in law acting in violation of the law. Also,
propriety will demand that the Commission is composed of eminent citizens
nominated by various professional bodies, national award winners in various
fields and registered NGOs with only one member from the legal field to guide
the proceedings as in army court martials. Scope for appeal should be provided
to an appellate authority comprising the Vice President, Prime Minister and
Leader of the Opposition in the Lok Sabha.
What
is required in a democracy is a Contempt of Citizen (Prevention of) Act.
Of
course this is just a pointer to some issues concerning justice delivery which
is an important function of the State. Strictly speaking the changes required
extend to rewriting the Constitution itself as the very architect, Dr Ambedkar,
himself had reportedly said “People always keep on saying to me, so you are the
maker of the Constitution. My answer is I was a hack. What I was asked to, I
did much against my will. I am quite prepared to say that I shall be the first
person to burn it. It does not suit anybody.”
Another
member of the Constituent Assembly, Seth Damodar Swarup, had said, 'this
Constitution may be the biggest and bulkiest constitution in the world, may
even be the most detailed one, it may be heaven for the lawyers, and may even
be the Magna Carta for the capitalists of India, but so far as the poor and the
tens of millions of toiling, starving and naked masses of India are concerned,
there is nothing in it for them. For them it is a bulky volume, nothing more
than waste paper.' In retrospect we surely know that he was being prophetic.
To
conclude, let me quote William M. Windsor (‘How to Fight Judicial Corruption’,
Tuesday, 24 May 2011 available at http://www.lawlessamerica.com/index.php?option=com_content&view=article&id=379:how-to-fight-judicial-corruption&catid=109:legal-options&Itemid=105 )
When the
opposing party violated the Rules and the law, I filed motions. I quickly realized that the judges would
protect the opposing party and attorney no matter what, but I did not let that
stop me. Every time I filed a Motion for
Sanctions and the judge denied it for bogus reasons, I had more proof of
judicial corruption. I also had another
appeal. And when the appellate court
protected the corrupt judge and the corrupt attorney for the other party, I had
more proof of judicial corruption. My
goal will always be to obtain as much proof as possible of the corruption.
04
December 2018
