AN OPEN LETTER TO THE CHIEF JUSTICE OF INDIA

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 1^st 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