JUDICIAL PERFIDIES-8

 

How the quip power corrupts and absolute power corrupts absolutely fits our judiciary to the T was supposed to be the topic of this part of this series of critiques. But then a couple of reports that appeared recently in the media necessitated a detour.

 

As a prelude, here is an anecdote from the life of Adi Sankaracharya, the saint who revived Hinduism with his Advaita philosophy. He did not do this through subterfuge or by holding a sword at anybody’s neck. He did this by travelling throughout the country and engaging in debates with the best of the brains in the lands he visited.

 

During one such debate he became so used to countering his opponent that even before the opponent had finished his argument he would counter it, beginning with a ‘No, no…’. The opponent finally tried to use this against the Acharya and stated that Sankarachaya’s mother was… and promptly came the acharya’s counter with a No, no. The opponent concluded…a chaste woman. The audiences were shocked and they believed that Sankaracharya will have to accept defeat. But the acharya continued…in our society there is this habit of offering the bride to the local deity symbolically first and hence his mother could not be considered chaste. Needless to say he carried the day.

 

Why I narrated this quip here is because I seem to have got into the habit of criticizing the judiciary whenever any report appears that tend to suggest that the judiciary is doing a good work.

 

The first of these reports appeared at https://www.ndtv.com/india-news/make-a-model-scheme-to-fight-hunger-supreme-court-to-centre-2714531 (Make A Model Scheme To Fight Hunger: Supreme Court To Centre, January 18, 2022). The comments I posted online are:

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

 

Will the court dispose of its mountain of pending cases before telling our elected representatives what and how they should do things that people expect them to do?

 

After the ADM Jabalpur case where the court had held that even right to life is not a fundamental right during the Emergency of the 1970s, inviting criticism that the judiciary crawled when required to bend, and beginning with usurping the powers of the Executive in appointing judges to higher judiciary, the trend to encroach on Executive space by the judiciary cannot be missed. And this certainly is at the cost of using its precious time for disposing of the cases, piling up for ages, before it.

 

Coming to the report referred to above, needless to say, it is not for the centre to frame laws on this. We know even the ration system is handled by the States and the Centre has been only supporting the states whenever needed, as has been amply seen during the pandemic. In fact, in Kerala, it is popularly believed that Pinarayi Vijayan got elected consecutively for a second term by repacking the ration items provided by the Centre and passing it on as a free kit till the elections were over.  But that is not what is going to be discussed now. It’s about a case of murder that happened in Kerala, God’s own Country, touted as comparable with developed countries on development indices and what not.

 

Madhu, a mentally challenged adivasi youth was killed by a group of people at Attappady in Palakkad, Kerala on 22 February 2018. He had been accused of stealing some food items and beaten to death by people who are reportedly local (settlers). As per reports he was not even caught red handed stealing the times but pulled out from his cave like abode 4 kms away in the forest.  (The Forest Department was investigating how they had entered the buffer zone of the Silent Valley National Park without permission. But there has been no report on the result of those investigations have been seen in the media.) 

 

The case was investigated by a Deputy Superintendent of Police, supervised by an Inspector General of Police and the charge sheet had been filed against 16, for murder and offences under the SC/ST (Prevention of Atrocities) Act), as per a report dated 23 May 2018.  The horror of the crime can be imagined from the fact that the accused had filmed the assault and posted it on social media.

 

The charge sheet mentions 15 injuries on Madhu’s body. The police obtained as evidence eight mobile phones the accused had used to shoot the photos and videos of the lynching. Visuals from three CCTV cameras at Mukkali Junction and five vehicles used by the accused have also been obtained as evidence. Statements of 165 people of the locality had been recorded and 119 had been made witnesses.

 

The trial has not yet started in the Mannarkkad SC/ST Special Court in Palakkad district.

 

As per the report, dated 14/03/2019, of a Fact Finding Committee of NGOs (available at http://adivasiresurgence.com/2019/03/14/fact-finding-report-on-the-murder-of-madhu-an-adivasi-of-attapadi/),

There has been a systematic expropriation of indigenous lands of Attapadi tribes/ adivasis since the 1940s by the settlers from the plains. The land reforms and Kerala Forest Act have not in any way protected the interests of Tribal. Now, 90% tribal land has been illegally amassed by the settlers who have changed the traditional nativity of the tribal land and devastated forest lands.

The crime against adivasis from in the last decades have been on the increase and many such instances go unnoticed as there are not mechanisms to complain and seek justice.

There is a well-knit nexus between the government agents like Forest and Revenue Department and Police Department and the settlers who illegally appropriate the forest land and produces and unleashing extraordinary levels threat, fear and legal violence against the adivasis.

 

Meanwhile two reports (https://keralakaumudi.com/en/news/news.php?id=646750&u=shamsuddin-accused-in-madhu-murder-case-named-cpm-branch-secretary-revokes-decision-later-646750 of 26/11/2021 and  https://english.mathrubhumi.com/news/kerala/trial-of-madhu-murder-case-extended-again-mother-disappointed-attappadi-madhu-murder-case-trial-1.6214261 of 15/01/2022) inform us that at least one of the accused is an active member of the ruling Communist Party of India (Marxist) and the Special Public Prosecutor appointed by the Government has resigned on medical grounds. There has been no report of a new SPP being appointed.

 

It is said of crime and punishment that it is the promptness and certainty of punishment that acts as the deterrent and not the severity. And we know how the judiciary is a failure on that account.

 

Here is the data on pending cases with our courts published by Moneylife on 02 December 2021, based on data available at Supreme Court web site and the National Judicial Data Grid:

Supreme Court                              : 70, 038 as on 08/11/2021

High Courts                                   : 56, 42, 858 as on 29/11/2021 and

District and subordinate courses  : 3, 79, 42, 466 as on 29/11/2021

A report in The Hindu, dated 11 September 2020, informs us that 70% prisoners are under trials, their number has been only increasing over the years, about 28% of them are illiterate, around 40% are below Class X, about 10% are graduates/diploma/post graduates and about 2% have been in prison for more than 5 years, 3% for more than 3 years and 25% for more than one year.

Analyzing the problem, Commonwealth Human Rights Intiative, an NGO, has quoted the apex court from their judgment in Moti Ram and Ors. V. State of Madhya Pradesh (AIR 1978 SC 1594):

“The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”

And here is some data extracted from what had been obtained by an RTI activist from Uttar Pradesh in 2010 about inmates in jail:

Capacity                                        Lucknow          Kanpur             Meerut            Ghaziabad

Male                                        1920                1143                1485                1546

Female                                                180                  42                    123                  94

Non adults                               240                  60                    99                    64

Convicts (Sidhadosh)

Male                                        426                  413                  378                  455     

Female                                                0                      14                    5                      19

Non adults                               18                    6                      4                      13

Vicharadheen (under trials)

Male                                        2418                1753                1950                3461

Female                                                0                      66                    72                    108

Non adults                               100                  120                  157                  285

If you just compare the figures, particularly the ones that have been highlighted, one can observe two facts: one, the capacity vs occupancy and two, the number of convicts vs under trials. Both, to say the least, are grave injustices.  While for crowding, the executive needs to take responsibility, there cannot be any doubt about who should be held responsible for the high number of under trials being in jail (judicial custody, of course).

 

Sec 436A of the Criminal Procedure Code has specified the maximum period for which an under trial prisoner can be detained under any law, not being an offence for which the punishment of death has been specified as one of the punishments. For implementing this, a review mechanism has been set up with the following features:

Composition - The jurisdictional Magistrate/ Judicial Magistrate/ Sessions Judge will have the authority to review undertrial prisoners for purposes of implementation of Section 436A.

 Frequency - The concerned authority shall hold one sitting every week in each jail for two months, commencing from 1st October 2014.

 Function - The concerned judicial officer will identify under trial prisoners who have spent half of their maximum sentences in jail or the maximum period of imprisonment provided for the said offence under the law. The judicial officer will pass an order in the jail itself for the release of such undertrial prisoners who fulfill the requirement of Section 436A..

 Monitoring Mechanism – The report of each sitting will be forwarded to the Registrar General of the concerned High Court, and at the end of two months, the Registrar General of each High Court will submit the report to the Secretary General of the Supreme Court. The Jail Superintendent has to provide all necessary facilities for holding the court sittings.

 

But still we do get to read reports like ‘I was framed for being a Dalit, 6 years of my life were taken away from me’ (https://indianexpress.com/article/cities/delhi/dalit-identity-false-case-pocso-7495353/, September 8, 2021). Apart from the gross criminal violation of Sec 436 A of the CrPC , some parts of the report are worth a relook:

He was arrested on May 18, 2015, when the alleged incident took place.

On August 7, (2021) a Delhi court acquitted him, observing that he had been “falsely framed due to prejudicial disposition of the parents towards the accused, who belongs to the Dalit community”. 

The complainant was found to have filed a false case after the 55-year-old objected to his dog defecating outside his house in outer Delhi district.

In a rare instance, it also ordered the state to pay a compensation of Rs 1 lakh to the accused within two months, observing that this was a “symbolic amount and without prejudice to his legal rights and contentions.”

 

What needs to be relooked in the above facts are:

Why the court did not take suo moto cognizance of the crime under SC/ST (Preventions of Atrocities) Act against those who falsely framed this 55 year old man?

Why should the state (read tax payer) pay compensation, instead of those who false framed the victim and those specific public servants who investigated and prosecuted him?

What was the role of the public servant responsible for the review mechanism of under trial prisoners?

The court has stated that the symbolic amount will not prejudice the acquitted man’s legal right and contentions. Does it remind one of Pilot of biblical notoriety who washed his hands after sentencing Jesus Christ to be crucified and stated that he has no role in the sin (of convicting Christ)?

I am by no means against taking care of the poor and the government is duty bound to take care of all citizens of this country. And for a change, we are seeing positive steps being taken, since 2014, by the Union Government in alleviating poverty in the country.

 

Again, I am against doling out freebies from tax payers money. But then free LPG, rations for sustaining life etc can be considered exceptions. They can be justified in the name of bridging the disparity. But ultimately real bridging will occur only when people are made capable of standing on their own feet and it is not an act that can be done in a jiffy. And it needs resources.

 

The judiciary has been touting a brainless judge to population ratio to justify the mountain of pending cases. It doesn’t need Einstein’s brains to figure out that the population has nothing to do with the number of cases filed. So the only logical figure is the judge to docket ratio. And here is some data from a power point presentation on ‘Justice delayed
 in India’, made by Adv K T S Tulsi on 24 August 2004 at the Supreme Court Bar Association:

Cases filed in One Year (1999):   

India              13.6 Million,    USA      93.81 Million (689% more cases with less than 25% population)

Docket’s per Judge

India           987                  USA      3235 (327% more compared to Indian judges)

I would declare anybody touting the judge to population ratio unfit to be a judicial officer on account of lack of reasoning ability, a primary requirement towards logical deductions and fair judgments. It also needs to be asserted that the performance of the judiciary needs to be assessed only on the basis of how cases are handled and disposed of by the judges. (More on this, later.) Whereas this logic does not apply to the Executive which can certainly be constrained by resources. For example, you cannot assign a group of 10 policemen to control a (violent or at least unpredictable) mob of 100. Not even 50 with lathis.

 

KTS Tulsi has unequivocally asserted that the primary causes of delay are:

Ø  Not the law

Ø  Not the procedure

Ø  Not the paucity of judges

Ø  Sheer question of (mis)management

 

The second of the reports I had mentioned at the beginning of this part is ‘Hate speech a criminal act; ruling party endorsing it: Former Supreme Court judge Justice Rohinton Nariman’ of 19 January,2022 available at https://www.mid-day.com/news/india-news/article/hate-speech-a-criminal-act-ruling-party-endorsing-it-former-suprem-court-judge-justice-rohinton-nariman-23210323.

 

The comments I had posted is:

Worse than hate speeches by fringe elements of the society are judges who do not know the law they are supposed to interpret logically and convincingly and those who spread lies.

Rohington Nariman was part of the bench that delivered the controversial Sabarimala judgement in the matter of entry of women of all age groups. The fact is that it was not a gender based discrimination as made out by Rohington Nariman. If any it was only age based, because not only are women allowed they are allowed irrespective of their caste, creed or religion. For that matter long before the judiciary recognized the rights of LGBT communities, there had been no ban on entry of even those of these communities in Sabarimala. Worse, when the apex court decided to look at gender based discrimination prevailing in all religions, Rohington was the first to murmur in disapproval.

And now he is also lying about the top echelons of the ruling party endorsing hate speeches. If he has proof he should go back to court and prosecute those whom he is castigating in public. By the way, his father, world renowned lawyer, has authored two books- one is 'India's Legal System: Can it Be Saved?' and the other is 'God Save the Hon'ble Supreme Court'

 

Sabarimala verdict and similar judgments will be discussed in detail subsequently. But Fali Nariman’s books, just the titles by themselves, are sufficient to question the credibility of the judiciary as a whole, the apex court being no exception.

 

I had purchased and read India's Legal System: Can it Be Saved? with great expectation and was certainly disappointed in not finding a definite conclusion or even suggestions to rectify the perceived and experienced wrongs. The only value for money I got was a quotable quote: 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. But any litigant who had approached a court for justice would have learnt this sad and horrible truth from his own experience.

 

In fact, not only have the courts themselves failed in their assigned task of dispensing justice, they have also provided ground for other unscrupulous elements in the other organs of the Constitution to exploit the unsuspecting, hapless, ordinary citizens. The quasi judicial organizations are typical examples of such institutions that have also grossly failed the people they are tasked to serve. Here, one is reminded of Schopenhauer's Law of Entropy. It states that If you put a spoonful of wine in a barrel full of sewage, you get sewage. If you put a spoonful of sewage in a barrel full of wine, you get sewage.

 

As a layman, but a fairly alert one at that, one is conscious of many elements within the country working against its interests. But when former judges, especially of the apex court, start casting aspersions on the ruling dispensation, based on their warped perceptions of history and legality, then they take the credibility and integrity of the judiciary itself to new lows. The potential harm it can do to the rule of law can well be imagined.

 

A Lord Chancellor of England has been quoted as “Gentlemen are required in the judiciary and some knowledge of law is an advantage”.

 

Amen to that and wish that the judges recollected this quote every time they opened a case file.

 

P M Ravindran/raviforjustice@gmail.com/230122

JUDICIAL PERFIDIES-7

 

I had concluded Judicial Perfidies-6 by listing some suggestions I had submitted to the then President of India and the Prime Minister, in 2005, through an online petition, to constitute a National Judicial Commission to try and punish guilty judges as per laws applicable to ordinary citizens. Incidentally, 2005 had been declared the Year of excellence in Indian Judiciary by the then Chief Justice of India.

 

But, in 2014 itself, I had sent a letter to the Chief Justice of Kerala on the subject of ‘Reforming our Justice Delivery System’. It 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

>The Judicial process.

- Listing of cases.

- Personal appearance of litigants/representatives.

- Involvement of advocates.

> Citizens’ charter and working hours.

> Grading of advocates and establishing norms for fees.

> Irrationality and unfairness of decisions.

On Judicial accountability and the National Judicial Commission, I had written:

A former CJI is on record that 20% judges are corrupt. Another CJI moaned that there is pressure on the Hawala Bench. Yet another one expressed helplessness in tackling an instance of mass leave by high court judges. Some CJsI, after demitting office, have even gone abroad and advised foreign governments to avoid taking issues to Indian courts since the delays are preposterous. One CJI, shortly after retiring, came to Kerala and passed some comments which, had it been made by anybody else, would have landed him/her behind bars for contempt of court. Then of course there are the Mysore, Rajasthan and Delhi cases reportedly involving the judges of the high courts there. Suffice to say that the need for a National Judicial Commission to try judges has been amply established. When even the President of India has asked his office to be brought under the purview of the Lok Ayukt (sic, Lokpal), it is disconcerting that the judiciary has not responded positively to this need of ensuring transparency in its functions and integrity of conduct of its members.

This was followed by a one man protest in front of the high court to take the message to the people at large, the real sovereign entities in the democracy. (The Constitution Review Commission had unequivocally stated, if at all such an affirmation was required, that the highest office in a democracy is that of the citizen.) Unfortunately the media failed to cover the issues that was sought to be discussed by the citizens at large. But, why? The answer lies in the fear of the media to report issues that project the judiciary in poor, though real, light.

The Mysore Sex Scandal hit the headlines in 2002. It was reported that 3 judges of the Karnataka High Court were found in a Mysore resort with some women who were from lower rungs of the same fraternity (‘Sex scam: Govt seeks report from Mysore police chief’, Nov 9, 2002; https://timesofindia.indiatimes.com/city/bengaluru/sex-scam-govt-seeks-report-from-mysore-police-chief/articleshow/27794260.cms) Based on the report by the Chief Justice of Karnataka High Court, the Chief Justice of India constituted a committee of 2 sitting Chief Justices of High Courts and another high court judge to probe the matter. Not unexpectedly, the committee gave a clean chit to the judges.

But the media reports also did bring out certain facts like there were 5 judges in Mysore during that time, one had gone to his village to meet relations and another had gone to meet colleagues to invite them for a function. The judges had not informed the court or the police of their move outside their place of work, which was required as per rules.

At a meeting of about 600 lawyers, one of them had suggested that the three judges should not be allowed to sit on the bench till the Supreme Court-constituted inquiry committee completes its investigation. This was followed by violence during which journalists covering the event were roughed up and the matter had been reported to the police.

The State Women’s Commission had sought a report from the police. Later, Adv Indira Jaisingh had petitioned the apex court to release the judges’ committee report in public. The outcome is not known.

The last I remember of this episode is that there was a report that the journalists/media houses were hauled up for contempt of court for conspiring and publishing reports to diminish the image of the judiciary.

After all the sound and fury, everything had died down.

But Shameet Mukherjee, acting judge of Delhi High Court was not so lucky. At the first hint of the DDA scam, when some of his official papers had been found with an accused, he resigned quoting personal reasons. And once he had resigned, it was easy to get permission for prosecuting him. He was arrested, remanded and granted bail for one month after one week. His attempt to withdraw his resignation subsequently was not successful as the then President, Dr Abdul Kalam, had promptly accepted it and it became final.

And that was the last that was heard of this scandal.

These events had even led the Bar Council of India to demand that the provision for impeachment of judges of the higher courts must be done away with and replaced with a suitable mechanism whereby judges accused of corruption can be tried and punished if found guilty. Its chairman had added "Since impeachment of judges is a cumbersome process it has lost its relevance" and "High courts have the power to punish lower court judges if they indulge in corruption. As far as we are concerned, high court and Supreme Court judges must not have immunity if they violate the law." (‘Punish erring judges, says Bar Council’, May 05, 2003; https://www.rediff.com/news/2003/may/05bar.htm)

But nothing has moved forward. If any, things have only gone from bad to worse.

Adv Prashant Bhushan had alleged that 8 of the 16 Chief Justices of India had been corrupt. He had put up their list along with his justification in public domain too. But instead of any inquiry or prosecution what we have is a contempt of court case pending against him (the messenger? Or, whistle blower?) since 2009.

And there are other cases that made it to head lines of newspapers too.

A cash packet of Rs. 15 Lakhs was delivered to Judge Nirmal jit Kaur, of Punjab and Haryana High Court. She reported the matter to the police and it was revealed that the cash was for Judge Nirmal Yadav (having same first name.) Three independent enquiries by local police, CBI and in-house judges’ panel concluded that charges of corruption are valid prima facie against Nirmal Yadav. The case seems to have been buried and closed (HT 18/01/2010) and Yadav was posted to Uttarakhand High Court. Law Ministry refused to disclose information on the recommendations by CJI, says a power point presentation by Mission Justice, Mumbai.

A M Bhattacharjee, Chief Justice of Bombay High Court had to resign in 1995 after allegedly receiving US$ 800,000 as royalty.

Aurn Madan, judge of Rajasthan HC had to resign in 2003 after being indicted by a committee of judges for corruption. There was also an allegation of sexual harassment of a woman doctor.

In what is popularly known as the Ghaziabad Provident Fund scam, involving Rs 7 Crores, there were allegations against thirty six judges, including one sitting Supreme Court judge, 11 judges of Allahabad and Uttarakhand High Courts and 24 District Court judges. A report dated 28 November 2013 in Times of India informed readers that a CBI court had framed charge sheets against 6 retired judges, including 3 from high courts. Another report, dated 05 October 2015 in Economic Times, stated that They(approvers) alleged that the judicial process was being subverted by recording partial statements and that they were being forced to depose only against retired and not sitting judges. The Central Bureau of Investigation was also not producing all the evidence seized in the case, they said through lawyer Prashant Bhushan. And there it rests till date.

Another interesting case reported in the media was of a court in Gujarat issuing non-bail able warrants against the then President Dr Abdul Kalam and the then Chief Justice of India, in a sting operation. There was a flurry of activities like suspending the judge, confiscating the documents, inquiry etc. But the last report on the subject was that the judge was exonerated because he has to sign many documents in the course of his duties and he cannot be held responsible for such mistakes. It was also reported that the journalists who carried out the sting operation and the media that published the report were being prosecuted for contempt of court, the outcome of which is still awaited.

There was also this case of a judge of a Mumbai High Court seeking the help of the underworld to get the tenants evicted from his personal property. The police had stumbled on the telephone conversation between the judge and an underworld don while investigating some other case. The usual inquiries followed, including forensic test of the recorded conversation but the judge was exonerated on the statement of his Personal/Confidential Assistant that the judge’s voice could not be recognized.

In Judicial Perfidies 5, I had quoted Binod Kumar Roy, then Chief Justice of Punjab and Haryana High Court, who had issued an administrative order identifying 12 judges of his court who had relations practicing as advocates practicing in the same court and barring these advocates from appearing before any of them. While the Bar Council rules forbade advocates related to judges from appearing before those (related) judges, Roy’s order extended the scope by barring all relations of all the 12 judges from appearing before anyone of them.

To illustrate this further, let us say A and B are two judges of a court. X is the son of A and Y the daughter of B, both advocates, practicing in the same court. While Bar Council rules barred X from appearing before A and Y from appearing before B, there was no bar on X appearing before B and Y appearing before A. This is popularly known as uncle judge syndrome in legal circles. It was a scourge in the judiciary. Advocates who did not have uncle judges were certainly at a disadvantage. The scope for corruption in such a situation can well be imagined. What Roy’s order did was to break this unethical nexus.

 

K G Balakrishnan, who had been the Chief Justice of Gujarat /Tamil Nadu High Courts between July 1998 and June 2000 and Chief Justice of India from January 2007 to May 2010, had invited allegations when his family members had reportedly failed to disclose crores of rupees in their Income Tax Returns. They had reportedly paid the dues with penalty and closed the cases. Some salient points from these reports are:

For Adv P V Sreenijin, his son in law, the income shown in the Return of Income, income assessed for tax, tax with penalty paid and the year are as follows:

26.61 lakhs, 1.64 cr, -, 2009-10;

47.47 lakhs, 2.11 cr, -, 2010-11;

22.06 lakhs, 1.04 cr, 1.02 Cr, 2011-12(?)

For M J Benny, another son in law, it was 28.94 lakhs, 1.79 cr, 97.73 lakhs for 2010-11.

For his daughter, Soni, it was 38.69 lakhs, 1.67 cr, 38.74 lakhs for 2010-11.

The reports are available at https://economictimes.indiatimes.com/news/politics-and-nation/former-cji-k-g-balakrishnans-relatives-hid-crores-of-income-reveals-i-t-probe/articleshow/57162253.cms and https://www.ndtv.com/india-news/ex-cjis-balakrishnans-son-in-law-pv-sreenijan-resigns-from-youth-congress-444080.

Those who would prefer to dismiss it as routine things should peruse the data of his son-in-law, P V Sreenijin, who is currently a CPI(M) MLA in Kerala, at https://myneta.info/Kerala2021/candidate.php?candidate_id=169.

The tip of the ice berg shows that Adv P V Srinijin and his spouse, another advocate practicing in the Kerala High Court, have between them almost Rs 12 crores of assets, none of them inherited and their sources of income is from their legal profession only.

Some interesting details are: 113 acres of agricultural land purchased in 2013 for Rs 15 lakhs, currently valued at Rs 1.2 cr (800 percent appreciation in cost in 8 years), another 54.53 acres of agricultural land purchased in 2008 for 3.4 lakhs, currently valued at Rs 2.65 cr, non-agricultural land, 3.29 acres, purchased in 2015 for Rs 97 lakhs, currently valued at 1.26 cr, commercial properties purchased in ???? for Rs ???? but development cost of Rs 24 lakhs, currently valued at 62 lakhs and residential buildings at two locations, one purchased in ???? for Rs ???? but development cost of Rs 26 lakhs currently valued at 52 lakhs and the other  purchased in 2009 for Rs 17 lakhs, development cost of Rs 20 lakhs currently valued at Rs 2.11 cr.

His wife has non-agricultural land, 11.79 acres, purchased in 2005 for Rs 3.36 lakhs, currently valued at Rs 70 lakhs, commercial properties purchased in 2007 for Rs 15 lakhs  currently valued at Rs 53 lakhs and a residential building purchased in 2009 for Rs 17 lakhs and  development cost of Rs 28 lakhs currently valued at Rs 2.11 cr.

If anybody thinks nothing wrong in these or it is an isolated case, they are surely mistaken.  

The old quip is power corrupts and absolute power corrupts absolutely.

 

P M Ravindran/raviforjustice@gmail.com/160122

 

JUDICIAL PERFIDIES-6

 

A central government employee who retired at the age of 60, on the eve of his 61st birthday (60^th birth anniversary, date of birth+60 years) is eligible for 20 percent enhanced pension on attaining 80 years of age (81^st  birthday, 80^th birth anniversary, date of birth +80 years). If he claimed it on his 80^th birthday (79^th birth anniversary, date of birth +79 years) it would rightly be dismissed by his pension sanctioning authority. If he approached a court of law, his petition might even be dismissed with costs for wasting judicial time.

 

But not so if the petitioner is a former high court judge approaching the high court where he had been an Acting Chief Justice. Such a case had been the catalyst for this series and is analyzed in detail at Judicial Perfidies-1.

 

It cannot be overstated that the orders of the higher courts- judgment dated 15/03/2018 of the Gauhati High Court in case number WP(C) 4224/2016 and judgment dated 08/07/2019 of the apex court, in SLP (Civil) Diary Number 18133/2018- merely extended an undue favour to an individual petitioner who had retired as an Acting Chief Justice of Gauhati High Court.

 

If this is how judicial decisions are influenced by warped logic when it comes to deciding cases in favor of a petitioner judge one can imagine the extent to which logic can be buried when it comes to deciding cases where judges are respondents.

 

E.M.S Natchiappan, then Rajya Sabha member heading the Parliamentary Standing Committee on the Ministry of Law and Justice, had said: 'Judges appointing judges is bad enough in itself; judges judging judges is worse.'

 

It doesn’t need Einstein’s brains to acknowledge the truism in the above view expressed by the parliamentarian.

 

The foundation on which the credibility of the judiciary rests is that it is an (impartial) third party in any dispute brought before it for adjudication.

 

Let us consider the case of sexual harassment in which the then Chief Justice of India himself was the accused.

 

The Print, on 08 December 2021, carried a report ‘‘Was a mistake’: Ex-CJI Gogoi on being on bench hearing sexual harassment case against him’. (https://theprint.in/judiciary/was-a-mistake-ex-cji-gogoi-on-being-on-bench-hearing-sexual-harassment-case-against-him/778735/ )

 

The report begins with the statement ‘Former Chief Justice of India (CJI) Ranjan Gogoi has said that, in “hindsight”, he should not have been part of the bench that took suo motu cognisance of news reports on sexual harassment allegations against him.’

 

It goes on to add: “In hindsight, perhaps, I should not have been on the bench. But then what do you do, tell me, if your hard-earned reputation as one of India’s upcoming anchors, with all the hard work that you put in, is sought to be destroyed overnight (sic)?” Justice Gogoi said Wednesday.

 

“Do I expect that you would act with 100 per cent rationality? Do you think the Chief Justice of India is not human? Forty-five years of my reputation that I had built in the bar and bench, by one stroke of pen, is sought to be destroyed,” he added, speaking to India Today News Director Rahul Kanwal during the launch of his autobiography ‘Justice of the Judge’.

 

Of course, much water has flown down the Yamuna in Delhi, since somebody accused him of sexual misdemeanor, he took suo moto cognizance of the allegation, presided over the bench that considered the allegation etc till he retired and got a Rajya Sabha seat and is a Parliamentarian now, when this confession comes, when it is really meaningless and everybody involved have carried on with their lives. 

 

Or, is it? Isn’t there even a lesson to be taken home?

 

When the Bar Council rules forbid relations - father, grandfather, son, grand-son, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law- of judges  from appearing before them as advocates, just imagine the gross violation of someone sitting in judgment over allegations against himself.

 

And what about the Vishaka Guidelines, issued by the apex court itself in the matter of sexual harassment in work places? Oh, isn’t that for lesser mortals?

 

Wow, the CJI is also human. Thank God for acknowledging that. But, is it only when their own reputation is at stake that human beings behave irrationally? What about corruption, favoritism and nepotism?

 

It was a former CJI, SP Bharucha, who, when he was the CJI, had admitted that 20% judges in India were corrupt. This was in 2001. It had been covered widely by the media. In fact celebrated by both the media and the public as well, because it was something which was an open secret but none could openly comment for fear of prosecution for contempt of court. Interestingly, nothing had been reported on how the figure of 20% was arrived at or what he had done to eradicate corruption in the institutions that were under his charge. Equally interestingly, Bharucha was not hauled for contempt of court, for sure.

 

Many other judges had come out against corruption in the judiciary. Some of them have been quoted in the report at https://www.barandbench.com/columns/nine-former-judges-who-spoke-of-corruption-what-ag-kk-venugopal-hinted-prashant-bhushan-hearing.

 

I am reminded of the incidence when the editor of a Malayalam daily had presented himself in the High Court of Kerala on a stretcher and had been promptly hauled up for contempt. Former judge of the apex court, Krishna Iyer, a doyen among judges and a nonagenarian by then, had written to the concerned judge on this but he was also promptly threatened with prosecution for contempt of court. Krishna Iyer extricated himself by tendering apology which was accepted.

 

There is another interesting report at https://timesofindia.indiatimes.com/india/justice-karnan-had-termed-33-judges-corrupt-got-six-months-jail/articleshow/77317910.cms. It highlights the arbitrary manner in which even contempt of court provisions of the law is used arbitrarily by the judges. In general, all judges who had spoken of corruption in the judiciary had been condoned, except one Karnan, who should actually have been considered a whistle blower. Lawyers have been prosecuted selectively. And the most striking example is of Adv Prashant Bhushan. While a couple of tweets landed him with a case for contempt and a one rupee in 2020, another case of serious allegations, of 8 of 16 chief justices of the apex court being corrupt, has been pending against him for more than decade. For the tweets and how the case progressed please read https://www.hindustantimes.com/india-news/prashant-bhushan-criminal-contempt-case-how-the-case-progressed-in-sc/story-Cn7mKnM3gP8IBa8MxiIcxN.html and https://www.hindustantimes.com/opinion/bhushan-case-sc-sets-a-wrong-precedent/story-VZxBPzTBO7POEzuDsdYf1O.html.

 

Arun Shourie, an acclaimed journalist and a former minister in the Union Cabinet, had rightly said in an interview, ‘Judgments judges deliver, their conduct, determine public esteem, not a tweet’. (https://indianexpress.com/article/india/arun-shourie-interview-judgments-judges-deliver-their-conduct-determine-public-esteem-not-a-tweet-6563485/)

 

This part of the critique is not about contempt of court but about judges judging judges. Contempt of court cases had just crept in to highlight how even in prosecuting these cases the courts have not been using uniform yardsticks. (Contempt of court is anathema in a democracy and what democracy needs is Contempt of Citizen (Prevention of) Act is what has been the thrust in Judicial Perfidies-3)

 

While the greater issue of judgments delivered by our judges shall be dealt with later, here the focus shall be only on cases involving judges.

 

The first case that comes to mind is that of P D Dinakaran. He had been a judge with the High Court at Chennai before becoming the Chief Justice of Karnataka High Court. But it was when he was recommended for elevation to the Supreme Court that a spate of complaints against him became public. In this context, there was an interesting report in The Economic and Political Weekly (‘The Dinakaran Imbroglio: Appointments and Complaints against Judges’ available at https://www.jstor.org/stable/25663669) and I quote:

 

Normally, the secrecy and lack of transparency surrounding the appointment of judges of the higher judiciary ensures that citizens come to know of these appointments only after the presidential notification is issued, announcing the appointments. However, this time, The Hindu got wind of the five appointments recommended by the Supreme Court Collegium (five senior judges of the Supreme Court who have been assigned the power to select judges of the Supreme Court), which included the name of Justice Dinakaran.

 

Suffice to say, a three member committee, headed by a Supreme Ccourt judge with one high court judge and an eminent lawyer as members, had listed 12 charges against the judge.

 

Allegations listed in the impeachment motion against Justice Dinakaran included possessing wealth disproportionate to his known sources of income, unlawfully securing five housing board plots in the name of his wife and two daughters, entering into benami transactions, and acquiring and possessing agricultural holdings beyond ceiling limit.

 

Other allegations related to illegal encroachment on government and public property to deprive Dalits and poor of their livelihood, violation of human rights of Dalits and poor and destruction of evidence during official enquiry. (https://www.ndtv.com/india-news/dinakaran-skips-leave-defies-supreme-court-orders-414571)

 

At the end of the day, he never appeared before the committee, alleging lack of faith; did not proceed on leave as directed by the apex court but refrained from judicial functions as there was threat of boycott by advocates, and finally opted to resign before being impeached. However, he had not been denied any of the retirement benefits, including pension and no further action has been reported with respect to evicting him from encroached lands.  

 

Another judge had who resigned before being impeached and continued to get all retirement benefits was Soumitra Sen who was accused of misappropriating public funds he had received as a receiver appointed by the High Court of Kolkatta. Again, the Rs 32 lakhs he had allegedly misappropriated and deposited in his personal account between 1993 and 1995 had been returned only in 2006 after he had been elevated to the High Court in Kolkatta in 2003.

 

However the first case where impeachment of a judge was taken up in the history of our judiciary since independence was that of V Ramswamy of the Supreme Court, for his  ostentatious expenditure on his official residence during his tenure as a Chief Justice of Punjab and Haryana. A committee composed of Justice P B Sawant of the Supreme Court, Chief Justice Prabodh Dinkarrao Desai of the Bombay High Court, and Justice O Chinnappa Reddy, retired judge of the Supreme Court investigated the affair and found him guilty of 11 out of 14 charges. But the impeachment motion was placed in the Lok Sabha for debate and voting on 10 May 1993. Of 401 members present in the Lok Sabha that day, there were 196 votes for removal and no votes against and 205 abstentions by ruling Congress and its allies. The motion which required two-thirds majority of members present and voting of that house and an absolute majority of its total membership of that house thus failed to pass.

Ramaswami therefore went on retire honorably in 1994.

 

The interesting thing is there was a 16-code charter called the “Restatement of Values of Judicial Life” adopted on May 7, 1997, by the Supreme Court and subsequently by all other courts (https://theprint.in/judiciary/supreme-court-crisis-these-are-the-16-values-of-judicial-life-our-judges-swore-to-uphold/229845/) and both Soumitra Sen and Dinakaran cases happened after that. So much for pontification.

 

What the cases of Ramaswami, Soumitra Sen and Dinakaran exposes is that judges are human and hence ought to suffer from human weaknesses, not only when their reputation is threatened but otherwise also. And the logical conclusion is that we need to try those accused of misdemeanor among them as per laws applicable to ordinary human beings.

 

We have been hearing even the judges speaking of: (a) be you ever so high, the law is above you and (b) that unequals cannot be treated as equals. And, the natural law is the higher you are the heavier you fall.

 

Given the above facts/views, there is certainly a need for (a) bringing even the judges under the purview of all laws applicable to every citizen of the country, (b) making the punishments for them at least double the severity as applicable for ordinary citizens and (c) there should be a National Judicial Commission consisting of members outside the judiciary, except, may be, one member to guide the proceedings. I reiterate, may be, because even that is not quite warranted given the vociferousness with which the judicial fraternity has been objecting to even the law minister as a member in the National Judicial Appointments Commission. (Judicial Perfidies-2 narrates how the unconstitutional Collegium for appointment of judges to the higher judiciary has been institutionalized and how the effort of the Executive, since the time of Man Mohan Singh as Prime Minister, to recover lost territory, ended with the National Judicial Appointments Commission Act being legislated by Narendra Modi led government in 2014 and dumped by the apex court in 2015 as ‘unconstitutional’.

 

The National Commission to review the working of the Constitution (popularly referred to as the Constitution Review Commission, CRC) had indeed recommended a National Judicial Commission for appointment of judges. (See Judicial Perfidies-2). But the more important need to have a Judicial Accountability and Disciplinary Commission was not even considered. What the CRC had reported in this context is this:

 

In appropriate cases the Chief Justice of the High Court or the Chief Justice of India, may withhold judicial work from the judge concerned after the inquiry committee records a finding against the judge.

In serious cases, ‘if the decision of the said committee of (seven) judges recommends the removal of the Judge, it shall be a convention that the judge promptly demits office himself.  If he fails to do so, the matter will be processed for being placed before Parliament in accordance with articles 124(4) and 217(1) Proviso (b).’

Now, these articles, referred to, deal with impeachment of the accused judges, which, as we know is ludicrous, to say the least. While the serious and non serious cases have not been identified specifically at least, with examples, the recommendation to just withhold judicial work from the judges after the inquiry committee records a finding against the judge without withholding his pay and perks is the kind of punishment that this judiciary headed, judiciary heavy commission could think of is testimony to the extent to which judges and judicial fraternity would go to keep themselves beyond accountability and scrutiny.  

However, way back in 2005, when my experience with the judiciary and quasi judicial organizations like the consumer fora/commissions established under the Consumer Protection Act was limited and studies were in a nacent stage I had submitted an online petition addressed to the President of India and the Prime Minister 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 allegation 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 deterrent. It should have atleast 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 it off on the advice of the Vice-President, PM, Speaker of the Lok Sabha and the Leaders of the Opposition in Lok Sabha and Rajya Sabha

It was supported by 429 citizens.

 

The issue of judges judging judges is so serious that it will have to continue in the next part too. So till then…signing off.

 

P M Ravindran/raviforjustice@gmail.com/090122