JUDICIAL PERFIDIES-1-100921

 

JUDICIAL PERFIDIES-1

 

The other day I came across a letter on social media which forms the raison d'être for this analysis. It was initiated by the Secretary of Joint Consultative Machinery for Central Government Employees and is addressed to The Secretary, Department of Pension and Pensioners’ Welfare. The subject was enhancement of Pension due to Central Government Employees from 80 years of age and additional enhancements due on attaining 85, 90, 95 and 100 years of age. The addressee has been requested to issue orders to enhance the pension of all central government pensioners as per the orders, dated 15/03/2018, of the Gauhati High Court in WP(C) 4224/2016 and upheld by the Supreme Court on 08/07/2019 in SLP (Civil) Diary Number 18133/2019.

 

Before we go into the analysis per se, it is necessary to understand the genesis of the decision.

 

Enhanced pension for central government employees on attaining the ages of 80, 85, 90, 95 and 100 was introduced with effect from 01 Jan 2006, based on the recommendations of the 6^th Central Pay Commission (CPC), headed by a former judge of the Supreme Court, Sri Krishna. Here, what is to be noted is the expression ‘on attaining the age of…’. The relevant extract of the recommendation is given below:

   ......require a better deal because their needs, especially those relating to health, increase with age. Accordingly, the Commission recommends that quantum of pension available to the old pensioners should be increased as follows:- 

 On attaining age of         Additional quantum of pension 

 80 years                     -     20% of basic pension 

 85 years                     -     30% of basic pension 

 90 years                     -     40% of basic pension 

 95 years                     -     50% of basic pension 

 100 years                   -     100% of basic pension 

Now the question arises: when does one attain 80 years of age?

 

For a person born on 30/07/1936, he becomes one year old (or, in other words, attains the age of one year) on 30/07/1937, 60 years on 30/07/1996 and 80 years on 30/07/2016. If you ask: what is his age on 01/01/2016, you are bound to reply that he is 79 years and 5 months. And his age on 01/01/2017 would, similarly, be 80 years and 5 months.

 

What is his age on 29/07/1937? Though one may casually say he is one year, precisely he is on his 365^th day of birth.   It will be only on 30/07/1937 that he will be one year old, that is, enter 1 year of age. And that is how we celebrate our birthdays, wedding anniversaries etc, isn’t it? While, in the case of wedding anniversaries there is no ambiguity, we do mix up birthdays and birth anniversaries, not making a considered distinction between them, though the distinction is very much there. With the day one is born, being one’s first birthday, the second birthday is actually the first birth anniversary, though one is used to hearing the first birth anniversary being celebrated as the first birthday.  This confusion is perhaps at the root of the current issue. But, when it comes to legally resolving such an issue, there should not be any such confusion.

 

The current case is that one Mr Virendra Dutt Gyani, who had retired from the Gauhati High Court as Acting Chief Justice on 29-07-1998, on attaining the age of superannuation i.e., 62 years. On 30/07/2015, he celebrated his 79^th birth anniversary. So, he claimed that he had entered into his 80^th year on that day and was eligible for the first enhancement of pension.

 

Now here is a pertinent question: the judge, born on 30/07/1936 would have celebrated his 62^rd birth anniversary on 30/07/1998, or, as per his claim in the matter of enhanced pension, entered 63 years of age on that day. So, did he serve for one extra year? The question is pertinent because, as per Section 14 of The High Court Judges (Salaries and Conditions of Service) Act, 1954, he should have retired on attaining the age of 62 years. The relevant extract is given in the screenshot below (refer 14(b)):

 14. Pension payable to Judges.—Subject to the provisions of this Act, every Judge shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part I of the First Schedule: 

Provided that no such pension shall be payable to a Judge unless— 

(a) he has completed not less than twelve years of service for pension; or 

(b) he has attained the age of 2 [sixty-two years, and, in the case of a Judge holding office on the 5th day of October, 1963, sixty years]; or 

(c) his retirement is medically certified to be necessitated by ill-health:

 

Or, let me put the question in a different manner: how can a man who attained the age of 62 years on 29/07/1998, attain the age of 80 years on 30/07/2015?

 

We can empathize with a man of around 80 years of age. After all that is an age when senility cannot be ruled out. But look at the facts that neither occurred to the judges who constituted the division bench in the Gauhati High Court nor brought on record by the counsels:

 

One, this enhanced pension has been provided to the beneficiaries-all central government pensioners- with effect from 01/01/2006. And nobody had found any anomaly in providing it to them from the month in which they celebrated their 80^th birth anniversary or 81^st birthday.

 

(The beneficiary is eligible for the enhanced pension with effect from the month in which he celebrates his 80^th birth anniversary. This has been brought out clearly in para 8, 11 and 12 of the Order itself, quoting the affidavits filed by/on behalf of Respondents 2 (The Central Pension Accounting Office, Govt. of India), 3 (Accountant General, Assam) and 4 (Registrar, High Court, Gauhati). However, while the respondents have mentioned 30/07/2016 as the date from which the enhanced pension would be applicable for the petitioner, a careful reading of para 8 would show that he would be eligible for it from 01/07/2016.)

 

Two, all central government pensioners are beneficiaries of this enhanced pension, including the judges of the high courts and the Supreme Court, who had superannuated before this petitioner, and, now, of course, after this petitioner too. Have any of them been given pension with effect from their 80^th birthday or 79^th birth anniversary?

 

Three, this interpretation of entering a particular year of age on the day when you celebrate that year’s birthday ( 80^th year of age on 80^th birthday and not on 80^th birth anniversary) has very far reaching ramifications, not only  in the matter of enhanced pensions but even on the age of retirement for all those who have to retire on attaining a specified age.

 

And, here are the contradictions that are on record but sidestepped or neglected.

 

In para 7 of the order, it is stated that the Respondent 4 had written to the Respondent 1 that the petitioner had attained 80 years of age on 30-07-2015 and therefore he would be entitled to additional quantum of 20 % of basic pension w.e.f. 30-07- 2015 as per Section 17B of the Act.

 

However, in para 12 of the order, the same Respondent 4 had submitted in his affidavit-in-opposition, that ‘according to the petitioner himself, his date of birth is 30-07-1936. If that be so, petitioner would attain the age of 80 years only on 30-07-2016 and therefore, he would be entitled to 20% of additional quantum of basic pension w.e.f. 01-08- 2016 and not from 01-08-2015.’

 

And, here are the questionable inferences drawn by the bench.

 

In para 18 of the order, the bench has noted that Petitioner had retired from service on attaining the age of superannuation on 29-07- 1998. His date of birth is 30-07-1936. Therefore, on 29-07-2015 he completed 79 years of age.

 

This, as has been brought out at the beginning, is wrong. On 29/07/2015 he had completed only 78 years of age. He celebrates his 79^th birthday on 30/07/2015. Till 29/07/2016 he is in this 79^th year, as can be discerned from the fact that through out the year-from 30/07/2015 to 29/07/2016 he will be 79 years plus some months and some days old only and never 80 years. In other words, he only entered his 79^th year of age on 30/07/2015.

 

Whatever reasoning and logic have been applied in paras 19 to 29of the order of the High Court, including the quote attributed to Winston Churchill are irrelevant. The simple fact is that the Central Government introduced a new benefit for its aged pensioners with effect from 01/01/2006 and all those who became eligible on attaining 80, 85, 90, 95 and 100 years of age have benefitted by it. It applied to even judges of the high courts and apex court. And I am sure that none of them had been paid the enhanced pension when they ‘entered’ 80^th, 85^th, 90^th, 95^th and 100^th years of age as interpreted by the petitioner and accepted by the bench.

 

But what is even more questionable is that the court not looking beyond the case of this one former judge even when it notes as follows in para 25.4 and 25.5 of the order:

 

As has been brought out earlier, this interpretation of entering an age has very far reaching ramifications, not only in the matter of enhanced pensions but even on the age of retirement for all those who must retire on attaining a specified age. The letter from the Secretary of Joint Consultative Machinery for Central Government Employees addressed to the Secretary, Department of Pension and Pensioners’ Welfare is just the beginning of many long-haul litigations.

 

I remember the case of Major Dhanapalan who went to court on the issue of Rank Pay introduced for officers of the armed forces by the 4^th Central Pay Commission with effect from 01/01/1986. This had been practically denied through subterfuge. Then Captain Dhanapalan is on record, having stated in an interview to The Week (Sep 23, 2012), that he had brought this to the notice of then then Chief of Army Staff, General K Sundarji but not pursued. The extract from The Week is given below:

 

                                                   */The picture could not be attached/*

Given the lack of access to courts, Dhanapalan waited for more than a decade, till he got posted to Kochi, to file a petition in the High Court of Kerala there. He got a favorable verdict and the appeal was also dismissed by the apex court. Thereafter, groups of officers mobilized and filed petitions in high courts all over the country. The apex court then pulled all these petitions from the high courts and gave a collective decision in favor of the petitioners. But revision, review, SLP followed and the court finally relented, more than a decade after Major Dhanapalan set the ball rolling and allowed the government to pay the dues only with effect from 01/01/2006. Being a disciplined body, the soldiers, both serving and veterans, accepted it but not without despair. As I understand there are many such class action cases of the soldiers pending with the apex court for many, many years now. The cases for One Rank, One Pension (OROP) and Non-Functional Financial Upgradation (NFFU) are two of them. Weird as it is, both concept wise and implementation wise, the NFFU, had been granted to members of the IAS and IPS since 01/01/2006 and other Group 1 Cadres from 01/01/2016. That is, all, except the officers of the armed forces.

 

The crisp 2 sentence order of the apex court, dismissing the SLP on 08/07/2019 brings to mind what the National Commission to review the working of the Constitution had reported: 'Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice'. Just for the record, this Commission was headed by a former Chief Justice of India and had three more judges of the apex/high courts as members. Of the remaining seven members, two were lawyers, two were politicians, two were retired bureaucrats and one was a journalist.

 

 

The aim of this paper was only to analyze the judgments of the Gauhati High Court and the apex court. The case of armed forces officers was brought in only to highlight the way cases are argued and decided arbitrarily by our courts, including the highest court of the land.

 

This was a case of a judge getting a weird notion about his age, applying one yardstick for his retirement and another for getting enhanced pension. And both had been accepted by two courts of record, including the highest court of the land.

 

The court even quoted- the services rendered by the judges demands the highest qualities of learning, training and character- a former Prime Minister of England, Winston Churchill to suggest that judges were a special class of service providers. But I have read that the same Winston Churchill had opposed the granting of freedom to India saying:

 

“Power will go to the hands of rascals, rogues, freebooters; all Indian leaders will be of low caliber & men of straw.  They will have sweet tongues & silly hearts. They will fight amongst themselves for power & India will be lost in political squabbles.  A day would come when even air & water would be taxed in India.”

 

This statement shows that he had no special appreciation for the judges in India, though it may be small consolation that the Indian leaders he had referred to does not include judges. And, evidently, it is the actions of the very political leaders that he had condemned, who have prevented this country going the way this racist had predicted.

 

(Interestingly, statues of Winston Churchill installed in public places, had been vandalized by citizens in 2020 during the Black Lives Matter protests that had spread like wild fire in the US of A and many European countries in 2020.)

 

The precedence quoted of the Karnataka High Court judgement (Siddangouda Shivabasanagouda Ayyangoudra –Vs- Principal Accountant General (A & E), decided on 03- 09-2014) could not be verified since the date of birth of the petitioner and the details of the earlier court order, referred to therein have not been provided, nor could be accessed.  It stands to reason that if the logic followed is the same, then the question also remains whether it had been contested or quietly complied with, without extending the benefits to similarly placed beneficiaries.

 

To conclude, suffice to say that the letter from the Secretary of Joint Consultative Machinery for Central Government Employees to The Secretary, Department of Pension and Pensioners’ Welfare is an indication of the legal battles that would follow. Of course, the Supreme Court has in it to decide the final fate of the petitioners at its own convenience. Given the age of the beneficiaries, it remains to be seen how many will live to enjoy their dues, if at all their Lordships turn reasonable within any reasonable time.

 

So, for now, let me do the only thing I can: wishing many lawyers good hunting and plenty of windfalls!

 

 

P M Ravindran

10 Sep 2021

E-mail: raviforjustice@gmail.com

 

JUDICIARY-SUPREME COURT OF INDIA-CJI ON PARLIAMENT-LETTER TO CJI-170821

 

from:     Ravindran P M <raviforjustice@gmail.com>

to:          supremecourt@nic.in

date:     Aug 17, 2021, 8:22 AM

subject: CJI's comments on Parliament- a case of pot calling the kettle black?

 

Mr Chief Justice of the Supreme Court of India,

 

This has reference to the report 'It’s a sorry state of affairs in Parliament, there’s no clarity in laws, CJI Ramana says' at https://theprint.in/judiciary/its-a-sorry-state-of-affairs-in-parliament-theres-no-clarity-in-laws-cji-ramana-says/715558/

 

I was appalled by your observations about our Parliament, considered the sanctum sanctorum of our democratic society.

 

Of course there is a lot desired in the functioning of our elected representatives. But I once did an analysis based on first principles of the functioning of the three organs on our Constitution and these are my conclusions:

 

Law-makers without any prescribed qualifications, qualities or experience, law enforcers with all the scope for distorting and manipulating data required to aid decision making and justifying wrong actions, without any accountability and the law interpreters with all the leeway for making whimsical and wayward decisions without even the fear of being questioned sums up the gifts of our Constitution.

 

Among these three organs of our Constitution the law-makers are (theoretically, at least) controlled by the people, bureaucracy (yes, bureaucracy, because without the active support of the bureaucracy no politician can do any wrong!) and finally the judiciary; the law-enforcers are also controlled by the law-makers and the judiciary. And then there are the ears and eyes of the people- the media- waiting to sensationalise every news involving the misdemeanour of these authorities. In spite of such strict supervision and control all that we can hear these days are about politician-bureaucrat-underworld nexus even though the fact remains that none, worth the name, from this unholy nexus have ever been punished by the holier-than-thou judiciary.

So now think how bad a system can be which is not only NOT subject to supervision but also kept beyond critical observation. Well isn’t our judiciary just that? And do I need to recapitulate that quip: power corrupts and absolute power corrupts absolutely?

 

Way back in 2002, I had written an article 'Democracy? East is East and West is West...' and under Crumbling Pillars of our Constitution I had written:

 

Legislature and Executive. To blame the politician alone will be unfair. In fact, I, for one, still consider him a shade better than the members of the other two organs of our democracy- the executive and the judiciary. Theoretically speaking, all these organs are supposed to be independent and expected to provide necessary checks and balances in wielding power. However, though the politician has practically succeeded in making his will prevail over the other two, he remains the only one with some accountability for his actions too. At least once in five years he has to get back to the people and explain to them his conduct and contributions to society.  The head of the executive, The President of the Union, is almost dismissed as a rubber stamp! And the administrators under him have been reduced to being His Masters’ Voices! Or is it so? When Mr Ram Jethmalani was a Union Minister he went ahead and ordered that the records in his ministry be made available to the public for scrutiny and also that they could get a copy for a nominal fee. This happened long after the Right to Information Act was first discussed and, as usual with such laws that tend to bring transparency and accountability in the administration, was silently put in cold storage. It was reported in the press that the Minister’s orders were left confined to the paper it was written on because his Secretary got the Cabinet Secretary to issue directions that the minister’s orders need not be complied with till the Right to Information Act was passed! Yes, our bureaucrats in administration are not all that innocent. In fact, they are having the best of both worlds. Authority without accountability, power without responsibility! Their mindset is still the same as that of the government employee of the colonial era, but they now have the added advantage of remaining in the shadows of their political bosses and pulling the strings from behind, to serve their own selfish ends. There are exceptions like Alphonse Kannanthanam, Sukumar Oommen, and Arun Bhatia. But they remain exceptions. The very fact that they have risen to the positions where they are today should be seen as the Lord Almighty’s small little mercies for the oppressed of this country. The system certainly is with the devil.

 

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 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 cases at all are 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 up to 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 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 subject 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’.

 

Subsequently, in 2004, I wrote to the Chief Justice of Kerala High Court. Therein I had dealt with the following issues: Contempt of Court Act – anathema to the very concept of democracy, Judicial accountability and the National Judicial Commission, Judicial Accessibility, Listing of cases, Personal appearance of litigants/representatives, Involvement of advocates, Citizens’charter and working hours, Grading of advocates and establishing norms for fees and Irrationality and unfairness of decisions. Copy of this letter was endorsed to the then CJI also among others like the President of India and the Prime Minister.

 

In 2005 I had posted an online petition at http://www.PetitionOnline.com/jrandac1/petition.html. It was addressed to the President of India and the Prime Minister and essentially sought to constitute a National Judicial Commission to try and punish guilty judges as under:

 

The Commission should have powers to receive complaints against judges from any citizen of this country.

 

The Commission should have judicial powers but should have only one member from the legal profession as in army court-martials.

 

The Commission should have total powers and resources to investigate the allegations independently.

 

The Judge against whom allegations have been made should be deemed suspended once investigations have been initiated.

 

The trial should be concluded within three months of initiating the investigations.

 

The punishment should be a deterrent. It should have at least twice the severity as would be applicable for a non-legal person convicted for the same offences.

 

The only appeal permitted should be to the President of India who will dispose of it on the advice of the Vice-President, PM, Speaker of the Lok Sabha and the Leaders of the Opposition in Lok Sabha and Rajay Sabha.

 

429 citizens had supported it.

 

Today, with almost 20 years behind me, espousing the cause of judicial reforms, I can state with total conviction that I am continuing to look for a judgement that would pass the litmus test based on the following principles of jurisprudence:

 

One, your liberty ends where my nose begins

 

Two, justice delayed is justice denied

 

Three, justice should not only be done but seen to be done.

 

To conclude, let me quote from the report of the National Commission to review the working of the Constitution (a judiciary headed- a former CJI was the head, judiciary heavy- of the 11 members 6 were from the judiciary, body.) It has unambiguously stated that '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.' Also, 'Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice'. And examples to substantiate it are plenty.

 

Will the judiciary set its own house in order before casting aspersions on everything around them?

 

Yours truly,

 

P M Ravindran

JUDICIARY-SUPREME COURT OF INDIA-DELAYS AND FRIVOLOUS CASES-MAIL TO CJI-030621

 

from:     Ravindran P M <raviforjustice@gmail.com>

to:          cji.office@sci.nic.in

date:     Jun 3, 2021, 5:54 AM

subject: Frivolous litigation, delays and docket management

 

Comp-cji-delays n frivolous litigation-030621 Date: 03 Jun 2021

 

 

For the personal attention of the Chief Justice of India

 

 

1. My personal experiences with the judiciary and quasi judicial organisations have convinced me that if only the judiciary performed 10 percent satisfactorily there are enough right thinking citizens in this country who would have ensured that  the law and order situation in the country would have been comparable to the best of countries that boast the rule of law as the hallmark of their governance. 

 

2. Before I narrate my grievance, let me reproduce a few quotes pertaining to the judiciary.

 

2.1. 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.

-'Needed high speed legal redressal'-Aravind Kumar, Jurist and lawyer, Pioneer, Kochi,01 Aug 2006

 

2.2. 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.

-'Human rights, the genesis of justice is from religion' under 'faith line' by Renuka Narayanan, The New Indian Express of 20 Dec 2004

 

2.3.'Lawyers are accused of employing delaying methods, but no lawyer can succeed if the court refuses an adjournment.'

-'How long before justice comes?' by HD Shourie, The New Indian Express of 04 Dec 2004.

 

2.4. 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.

- Fali S Nariman in his book 'India's Legal system: Can it be saved?

 

2.5. “Thus, corruption in judiciary is the greatest enemy to the Constitution and judiciary must also initiate drastic measures in order to control corruption in various forms,”

- Justice Subramaniam, 'Corrupt public servants must be declared anti-nationals: High Court' The Hindu of MARCH 29, 2019

 

2.6. The judicial system of the country, far from being an instrument for protecting the rights of the weak and oppressed, has become an instrument of harassment of the common people of the country.

-People's Convention of Judicial Reforms and Accountability held at ISI, New Delhi on 10-11 Mar 2007.(http://www.judicialreforms.org/)

 

1.7. 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 (Malayalam Daily) of 10 Nov 2011

 

1.8. '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.' Also, 'Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice'.

-Report of The National Commission to Review the Working of The Constitution

 

3. Of late, particularly during the pandemic wrecking havoc, in India, as in the rest of the world, some interferences by the higher judiciary have become questionable. It has been questioning the Union Government on almost all aspects of covid management starting with oxygen supply, hospital bed availability, distribution and pricing of vaccines, care of poor citizens, orphaned children  etc. Needless to say that the pandemic that is raging now has no precedence and every government in every part of the world is doing its best on a trial and error basis. And it is a matter of pride as an Indian that the current government under Narendra Modi has been the best in managing the crisis. Please see the Global Leader Approval Tracker at https://morningconsult.com/form/global-leader-approval/. For your convenience a screenshot of the graph taken at 5 am on 3/6/2021 is attached.

 

4. The unfortunate thing is that those who have been spreading canards and fear mongering about vaccines, lying about the failure of the Union Government etc have not been taken to task. For example Rahul Gandi, Priyanka Vadra and Akhilesh Yadav had been criticising the quality of the vaccines Covishield and Covaxine. Arvind Kejriwal had been exposed for not utilising the funds allotted for oxygen plants in December 2020 by the Centre.

 

5. And now comes a bench of judges D Y Chandrachud and M R Shah claiming that they are unable to attend to important national issues like covid management due to a spate of frivolous litigation. As per media reports ('Frivolous cases making institution dysfunctional, delaying matters of national importance: SC', June 1, 2021 at https://www.thestatesman.com/india/frivolous-cases-making-institution-dysfunctional-delaying-matters-national-importance-sc-1502970282.html) As per the report, judge Chandrachud had stated that 95 percent of the cases listed were frivolous.

 

6. Now the grievance. Personally I can vouch for the fact that the majority of the citizens of this country cannot even approach even a lower court seeking justice because of the inordinate delay and unaffordable cost. For example, given the clarity of Sec 219 of the IPC, I know that most of the information commissioners can be sent to jail for 7 years for each of their wrong decisions. And it should not require more than one session of hearing  to pass the judgement. But I dare not venture on that path and have to perforce opt to see the law being subverted with impunity by those very public servants tasked, empowered, equipped and paid to enforce it. The same is my experience with the Consumer Protection Act. We always hear people talking of ignorance of laws being the cause of citizens being cheated but nobody talks of the experience of those who know sufficient law being cheated by the very public servants tasked, empowered, equipped and paid to enforce those laws.

 

7. In the instant case, judge Chadrachud's observation that 95 percent of the cases listed are frivolous is unacceptable. But, if it is to be accepted at face value, then it will necessarily follow that there is something drastically wrong with the docket management even at the level of the apex court. And that will lead to the conclusion that the apex court has to set its own house in order before preaching of effectiveness and efficiency of the Union Government in the management of a pandemic.

 

8. To conclude, let me list my own findings about the provisions of our Constitution:

 

Lawmakers without any prescribed qualifications, qualities or experience, law enforcers with all the scope for distorting and manipulating data required to aid decision making, without any accountability and the law interpreters with all the leeway for making whimsical and wayward decisions without even the fear of being questioned sums up the gifts of our Constitution.

 

Among these three organs of our Constitution the law-makers are (theoretically, at least) controlled by the people, bureaucracy (yes, bureaucracy, because without the active support of the bureaucracy no politician can do any wrong!) and finally the judiciary; the law-enforcers are also controlled by the law-makers and the judiciary. And then there are the ears and eyes of the people- the media waiting to sensationalise every news involving the misdemeanour of these authorities. In spite of such strict supervision and control all that we can hear these days are about politician-bureaucrat-underworld nexus even though the fact remains that none, worth the name, from this unholy nexus have ever been punished by the holier-than-thou judiciary.

 

So now think how bad a system can be which is not only NOT subject to supervision but also kept beyond critical observation. Well isn’t our judiciary just that? And do I need to recapitulate that quip: power corrupts and absolute power corrupts absolutely?

 

Yours truly

 

P M Ravindran

 

 

att: covid 19-global leader tracker-morningconsult-030621

JUDICIARY-30 QUESTIONS TO THE CHIEF JUSTICE OF INDIA

from: Ravindran P M <raviforjustice@gmail.com>

to: cji.office@sci.nic.in

cc: supremecourt@nic.in, registrarcc@yahoo.co.in

date: May 6, 2021, 10:36 AM

subject: 30 questions to the Chief Justice of India

I happened to go through a set of 10 questions that the apex court has asked the Union Government in the context of a pandemic that has struck the world like a bolt from the blue. It is an acknowledged fact that this government has done much better than even all the developed countries in the world in managing the situation for the last year plus. It is also evident, for a little better than casual observer like me, that over this period the Union Government has also taken the state governments along, guiding and providing all necessary help within the federal system under which we are given to believe that we are working. Of course some of these state governments have acted like renegades, causing avoidable loss of life and living to the masses.

Anyhow, I am not an advocate for the Union Government but an activist working for transparency and accountability in government, including our judiciary. In fact, my experiences, observations and studies have convinced me that it is the failure of the judiciary that has contributed in a major way for all that ills afflicting the governance of this democratic society, touted to be having rule of law and where citizens are the sovereign entities. So here are 30 questions (not exhaustive) that the judiciary needs to answer:

1. Who is responsible for the massive backlog of cases in our courts?

2. What is the relevance of judge to population ratio in the context of this piling up of cases?

3. Which of this is more rational: judge to population ratio or judge to docket ratio?

4. Which are the other countries in the world where judges appoint judges?

5. Which is the dictionary that defines consultation as the process where an expert gives an opinion and which opinion is held to be binding on the one who has sought the opinion?

6. Which are the countries where judges enjoy prolonged holidays?

7. Aren't there provisions in our Civil/Criminal Procedure Codes that limit the number of adjournments that can be given in any particular case and the circumstances under which they can be given?

8. If there are, are they being enforced and how?

9. If there aren't, why are they not being limited and enforced?

10. And who can limit them and enforce them?

11. If the Executive approves any legislation done by the appropriate authority will it be dismissed as interfering with the freedom of the judiciary?

12. What are the provisions for punishing judges as per laws applicable to other citizens?

13. If there are no laws to punish judges for corruption, misbehaviour etc shouldn't there be such laws and who is responsible for framing them?

14. Is impeachment a punishment?

15. If a judge is impeached, will s/he be entitled to any/all of the benefits that are provided on retirement?

16. What is the procedure adopted in our courts to assign priority to cases?

17. Why are some cases pending for decades and more when some are disposed of with considerable speed?

18. Who is responsible for the massive number of undertrials in our jails?

19. Has the judiciary instituted any process to identify the undertrials by nature of crime and prioritise the cases involving petty crimes and disposing them off at least before they complete, say, 10 percent of the term for which they will be punished, if convicted?

20. What is the procedure laid down to fulfil the task of the Central Authority under the The Legal Services Authorities

Act, 1987 as specified in Clause 4(n) of the said Act.

21. In the past one year, how much was the funds allotted/ expended for the functioning of the various bodies constituted under this Act?

22. In the past one year, how many poor litigants have benefitted by this Act? Benefit, in this context, applies only to those who have got ultimate final favourable decisions.

23. In any case, when the judges are expected to know the law and the litigants, the facts, what is the necessity of advocates as intermediaries between litigants and judges?

24. Renowned lawyer Fali S Nariman has said : '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.' So ultimately, aren't the poorer litigants the losers because they cannot afford the fees charged by the more competent lawyers?

25. Shouldn't the fee of lawyers be regulated only on the seriousness of the crime, or, in other words, based on the sections of the penal codes or other applicable laws under which the charges have been framed?

26. Is there any law that mandates lawyers to provide receipts for the fees charged by them from their clients?

27. As with the Direct Benefit Transfer, introduced by the Executive, in many cases, for transparency and accountability shouldn't the fees paid to lawyers be done electronically?

28. And, if a lawyer takes part payment electronically and part in cash, without providing any receipt, and if a litigant has to address this grievance and get relief, shouldn't there be a procedure which mandates that the lawyer should prove his innocence and not the litigant should prove his charge?

29. In this time of a pandemic, the Delhi Government has reportedly reserved 100 rooms in a five star hotel for the judges of the Delhi High Court. Is it ethically correct and morally acceptable?

30. There are High Courts demanding and getting post retirement perks from the respective states. Is it ethically correct and morally acceptable? 

Here are the questions the Supreme Court bench asked the Centre:

> What is being done to provide treatment to healthcare professionals who are contacting Covid-19?

> How much investment has the Centre made into the vaccine companies and given advances in the last year? What has been the financial contribution by the Union govt in research etc in the development of vaccines?

> Can a mechanism be developed to show real-time updates regarding the allocation of oxygen?

> How will the Centre ensure registration for vaccines for illiterate people and those without internet access as registration through Co-Win is mandatory in the third phase of vaccination?

> Will one state get priority access over another in getting the vaccines?

> How will the Centre ensure equity by private vaccine manufacturers when it is buying only 50 per cent of the doses?

> Has the centre considered invoking Section 92 of the patents act and issue compulsory licenses so that drugs can be manufactured while the royalty is sorted?

> Has the testing labs been directed to track the mutant variant of Covid-19?

> How is the Centre trying to regulate hospital charges? Is there a national policy?

> Why are we paying so much for this vaccine which AstraZeneca is providing at a far lower price to the US citizens?

(The report is available at https://www.hindustantimes.com/india-news/why-don-t-you-buy-100-of-covid-19-vaccines-supreme-court-s-10-questions-to-centre-101619775007715.html)