JUDICIAL PERFIDIES-14

 

Take a break. The thread of this series just got entangled with some current events. No doubt, the judiciary is the topic of discussion here too.

 

On 20 March 2022 a celebrity artist, Dr Neena Prasad, conveyed her agony, through a facebook post, on how her dance program at a book release function, the previous day, had been interrupted and had to be abandoned midway on the orders of a District Judge staying close to the venue. The venue was a Government Lower Primary School, where such programs, and even noisier ones, had been organized frequently in the past. Many judges had occupied the official quarters nearby and some had even gone on to be judges of higher courts too.

 

Legally speaking, the organizers had all the necessary permissions, including the use of loud speakers, to have the program till 9:30 pm, well ahead of the deadline permitted for use of loudspeakers.

 

She had posed a very pertinent question too: should artists perform based on the unjust and unacceptable personal whims of judges and bureaucrats? Poor lady, I must say, how far removed is she from the realities of everyday life in India.

 

A few more pertinent questions that arise are:

1.      Was it an official order issued by the District Judge that was enforced with such alacrity?

2.      Did the District Judge follow the procedure which any citizen has to follow to pursue a complaint of nuisance due to sound of loud speakers?

3.      Did the police follow the procedure they are required to follow on receipt of such a complaint, given that it was they who had sanctioned the use of loudspeakers for the program?

4.      Did the police ever warn the organizers that the sound level was more than what was permitted?

 

Malayalees all over the world came to know of this atrocious incident through online media on 22 March 2022 (https://www.onmanorama.com/news/kerala/2022/03/22/police-stop-dance-performance-noise-complaint-palakkad-neena-prasad.html). By evening, of the same day, English media too posted reports of the incident at their online sites (https://www.thehindu.com/news/national/kerala/judge-draws-flak-for-stopping-mohiniyattam-show/article65246666.ece and https://www.indiatoday.in/india/story/row-in-kerala-as-police-stops-traditional-dance-after-judge-takes-offence-to-loud-music-1928550-2022-03-23)

 

A silver lining in the whole despicable episode was the condemnation of the interference by the judge by not only fellow artists and political leaders but also by the members of the bar.

 

A report of 25 March 2022 at https://youtu.be/4HslmDRm8xk informed its viewers that the judge had explained that it was not he who had objected to the program but his staff. But even the reporter could not help expressing how it lacked credibility. The question also arises as to who were this ‘staff’ working in the residence of the judge at 8 o’clock in the night.

 

Interestingly, this judge is the brother of a retired high court judge, who had been going around delivering provocative speeches against the Citizenship Amendment Act. The video of one of his speeches, in Malayalam, can be seen at https://youtu.be/80rIASpi-Oc. I had, on 06 Jul 2021, sent an e mail to the Chief Justice of the Kerala High Court bringing it to his notice. For those who do not the language here are the main points he had made:

At 2.20 minutes he can be heard saying, in the context of a question on whether the anti CAA agitation would end if the apex court gave a ruling on it, that this is not a matter to be decided by the court but it is an emotional subject and the protest should continue till the Act is withdrawn. (My note: doesn’t it sound familiar? Remember Shaheen Bagh, the Farmers’ Protest? And now, some comments after the Hijab verdict of the Karnataka High Court?)

At 5.30 minutes he says that the aim of the Bill (sic) is to give a false assurance to Hindus, Sikhs, Buddhists, Jains, Parsi and Christians that the government is with them and to give muslims, an unwanted class (according to him), that they are nobody. In effect, to create polarisation based on religion.

At 11.30 he says that the inner line permit is being used to divide the country by the current Union Government, (My observation: the inner line permit has been in existence long before the BJP had come to power in the Centre).

At 15.00 he blatantly lies that the government has said that they will decide who amongst those who claim to be citizens are actual citizens.

 

This is not an aberration. Another report, dated 11 February 2022, again in Malayalam, of this former high court judge speaking at a function organized by Indian Muslims in Riyadh, Saudi Arabia is available at https://youtu.be/buz3tYHa1q0. The topic was ‘The role of Koran in Legal System’. He can be seen explaining the concept of taqiyyah and how and why to use it to mislead non-Muslims in societies where Muslims are minorities.

 

Before I narrate one of my experiences there is a need to recapitulate a bit of related history.

 

The Kerala High Court had rightly banned bandhs long back as it infringed on the rights of the public to move freely and carry on with their lives without being held to ransom by the protestors. The apex court had also upheld this order and it had become the law of the land. However, the perpetrators continued with the same bandh by simply referring to it as hartal. The courts have remained mere spectators.

 

Some reports in the media indicate there have been on an average 300 hartals per year in Kerala, mostly localized but enough at the state level. Going by experience, even mere strike at the national level gets enforced effectively only in Kerala. There was one last year even when the nation was reeling under Covid. There was one, panimudakku (or boycotting work) on 28-29 March 2022.  While in the rest of India it did not adversely affect normal life, in Kerala there were plenty of instances of violence by the protesters and evidences are available in the video clips posted by citizens on social media. Of course, we need not discuss the validity of the court orders as we have seen how the apex court dealt with the anti CAA protests and farmers’ agitation.

 

But in Kerala, the High Court, while doing nothing against the violation of their orders holding bandhs illegal, went one more step ahead and held that holding meetings on road sides or processions on roads was also illegal. Thankfully, the court had also ordered that places should be earmarked for protestors to vent their grievances publicly, which has not been complied with till date. On this, a politician commented that the judge was a dimwit and got 6 months in prison for contempt of court.

 

However, what has been implemented is a procedure to seek permission to hold meetings and use loudspeakers. But how it has been implemented is even more questionable. One has to submit an application with a prescribed fee to the local police authorities almost a fortnight in advance. Mostly no response will be received and the organizers can go ahead with their program without much ado. If anything goes wrong the organizers will be hauled up for not taking due permission. And here is where my experience begins.

 

Anti Corruption Movement Kerala had a young and dynamic secretary, who had submitted an application, well in time, for holding an event in a public place (not road side) after paying the prescribed fee, for using mikes, in the treasury. 5 days before the event he went to collect the sanction letter. He was informed that the application was missing and advised to submit a fresh one. He took me along to pay the prescribed fee in the treasury and submitted the application afresh. On the day of the scheduled event he went to the police office to collect the sanction letter. He was told that the file was with the Deputy Superintendent and that since the officer wasn’t available in the office, he could go ahead with the program. Left with no alternative he went about organizing the event.

 

I was an invitee as a speaker. Presence of two police officers raised my hackles. I walked up to them and enquired if there was any problem. I was told that since the organizer had earlier created a scene in a function attended by the then Chief Minister, the youth of the party were agitated and there was a need to ensure nothing untoward happened.

 

As soon as the function was over, two police personnel in mufti walked over to the secretary and asked him if he had permission to use mike. He explained the situation. As if preplanned, they then took the mike set to the police station, followed by the mike set provider and the secretary. Another participant and I followed them. After making us wait, the mike set was released by evening and all of us left for our homes. Months later it was only when the secretary received summons from the court, for all three of us, that we realized that the episode was not over.

 

The court case carried on for about 4 years before we were acquitted.

 

Meanwhile I pursued the issue of sanction with the police authorities under the Right to Information Act. The copy of the file noting I received shocked me. The application had been rejected on the ground that the applicant was an accused in another case (of protesting at the venue of the function attended by the Chief Minister). Interestingly, the same civil society organization had been given permission earlier when the applicant had been another functionary.

 

Another report that attracted my attention recently was a post on Facebook. It said : 31 years later, killed Kashmiri Pandit’s family moves court against Bitta Karate. The family of Satish Tickoo, believed to be one of the first Kashmiri Pandits murdered by separatist Farooq Ahmad Dar alias Bitta Karate, moved Srinagar court for status report on FIRs registered against Karate. The court criticized J&K government for its inaction in last 31 years. In a 1991 interview, Karate admitted to killing several Kashmiri Pandits.

 

A quick search on Google revealed a few more reports. The one at https://www.business-standard.com/article/current-affairs/sc-rejects-plea-to-probe-genocide-of-kashmiri-pandits-in-valley-in-1989-90-117072400316_1.html was titled ‘SC rejects plea to probe genocide of Kashmiri Pandits in Valley in 1989-90’. The reason reported was that almost 27 years have passed and it will be very difficult to gather evidences in cases of murder, arson and looting which had led to mass exodus of Kashmiri Pandits from the Valley. The court did not miss the opportunity to castigate the petitioner organization ‘Roots of Kashmir’ in so many words: You (petitioner) sat over it for last 27 years.

 

Possibly, encouraged by the success of the movie Kashmir Files, Roots of Kashmir has filed a curative petition in the apex court, as per the report at https://www.tribuneindia.com/news/j-k/kashmiri-pandit-organisation-moves-supreme-court-seeking-probe-into-1990-massacres-380373 and  a Public Interest Litigation has been filed by ‘We the Citizens’, as per the report at https://www.tribuneindia.com/news/nation/pil-in-sc-seeks-sit-to-identify-those-responsible-for-genocide-of-hindus-sikhs-in-j-k-381286.

 

Interestingly, the dismissal of the original plea of Roots of Kashmir on 27 April 2017 due to presumed difficulty in gathering evidence had forced the petitioner to quote a Delhi High Court order of 2018 in the matter of Sajjan Kumar, convicted in a case related to the 1984 Sikh genocide in the national capital. The court had said: It’s important to assure those countless victims waiting patiently that despite the challenges, truth will prevail and justice will be done...

 

One of these report also informed the readers that the case against Yasin Malik for alleged gruesome murder of four officers of Indian Air Force on January 25, 1990 is still pending before a CBI court. Other pertinent information culled from these reports is:

215 first information reports (FIRs) had been lodged relating to the murder of over 700 Kashmiri Pandits and none of the cases have reached a logical conclusion.

Hundreds of FIRs on murders of Kashmiri Pandits during 1989-90, 1997 and 1998, are lying un-investigated by J&K Police even after expiry of 26 years.

Need to transfer all such FIRs pertaining to murders of Kashmiri Pandits, from J&K to some other state, preferably Delhi, so that the witnesses, reluctant to approach police or courts in view of their safety concerns, can freely and fearlessly depose before probe agencies and courts.

 

Let me conclude this part by quoting what I had written, in 2002, in an article titled ‘Democracy?… East Is East And West Is West!’:

 

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 judgments’. 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 judgments were subjects to scrutiny!

 

P M Ravindran/raviforjustice@gmail.com/310322

 

JUDICIAL PERFIDIES-13

 

Those who have followed this series should not be having any doubt that our judiciary is a failure from the three fundamental principles of jurisprudence, viz:

Justice delayed is justice denied,

Justice should not only be done but seen to be done and

Capital punishment should be given in the rarest of rare cases.

 

There are many reasons for such failures, as claimed by those who try to defend them. These have been covered in the earlier parts, like the brazenly illogical judge to population ratio as a cause for delay. It has been countered with the factual judge to docket ratio. Then there are the unwarranted holidays, short working hours and the most ubiquitous and legally untenable adjournments, ad infinitum. 

 

I have with me the calendar of holidays announced by the apex court for the year 2022. There are only 230 working days. There is a summer vacation from 22 May to 10 July, Dushera holidays from 02-09 October, Diwali holidays from 23-30 October and Christmas vacation from 18-31 December. I know that even in America there are offices that do not have a holiday even for Christmas. These summer and winter (read Christmas) vacations are a vestige of colonial times when the judges used to retire to hill stations in summer and head home to England for Christmas. Of course, the Dushera and Diwali holidays must be our addition post independence. But can you think of any other public offices having such long vacations? Come to think of it, when police works 24X7, shouldn’t our judiciary be also available 24X7?

 

The Lokpal, which had just been constituted in 2019, too has only 207 working days, 146 holidays and 12 restricted holidays. Of the 146 holidays, 12-25 June is summer vacation, 25-30 September is Puja (?) holidays, 01-05 October is Dushera holidays, 22-30 October is Diwali holidays and 24-31 December is Christmas holidays. Interestingly, this is applicable only for the Chairperson and members of the Lokpal. Just for the record, they have nothing published in terms of disclosures under Section 4(1)(b) of the RTI Act.

 

There was this interesting case of a President of the Kerala State Consumer Disputes Redressal Commission having declared holidays for the Commission in line with the holidays declared by the Kerala High Court. A consumer organization, Consumer Vigilance Centre, took up the matter with the High Court and this President, a former judge of the same high court, submitted a false affidavit that he had not made any such declaration. Unfortunately records proved otherwise. And the judge who decided the case just noted in his verdict that this former judge had misled the court and closed it.

 

Where justice is not seen being done, the failure is invariably attributed to the failures of the investigating officers and/or advocates in presenting the facts correctly and completely.

 

Here, I am reminded of a quip which goes like this: anybody can make a right decision, given enough facts; a reasonable man can make a right decision given sufficient facts and it requires a genius to make a right decision in perfect ignorance.

 

We should presume that reasonable men are appointed as our judges. 

 

Field Marshal Manekshaw had said the same thing is the context of army officers. That is, anybody can make a decision and statistically he has a 50 percent chances of being right. The process of selection improves the chances of him being right by another 50 percent. His training increases it by another fifty percent. The dedication and competence of the troops he commands will take care of the rest.

 

Unfortunately, what we see in the judiciary are preposterous assertions like: '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' (Ittavira Vs Varkey (A 1964 SC 907) and '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' Misrilal Vs Sadasiviah (A 1965 SC 553).  Incidentally, these were case laws quoted by the respondents, represented by a law firm with adequate clout in judicial circles, in a consumer case that I had pursued from a district forum to the national commission more than a decade and a half back.  Yes, the Consumer Protection Act had been enacted in 1986 only.

 

That’s not all. Even in the interpretation of the provisions of this law, there have been inconsistencies created, purely due to lop sided logic.

 

 In Jancy Joseph vs Union of India (1999 (1) KLT 422), the question of applicability of Section 56 of the Civil Procedure Code (CPC), 1908, while ordering arrests under the provisions of Section 27 of the Consumer Protection Act (CPA), 1986 was considered by the Kerala High Court.

 

Section 56 of the CPC states that, '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 judgement debtor need not be considered when the power under S 27 is exercised for recovery of money'.

 

Of course, between 1908 and 1986 we had given to ourselves a Constitution that promised justice, liberty and equality, irrespective of caste, creed, religions, sex, place of birth etc. But granting that the CPC, 1908 is still being followed, the question that can be validly raised is the judge’s discretion to aggravate the discrimination on grounds of sex by asserting that the means of the judgment debtor need not be considered when power under S 27 of the CPA is exercised.

 

Given that, as per CPA, every decision, favorable to the complainant consumer would involve recovery of money, whether in terms of refund of costs and/or compensation, this judgment actually exempted half the population of the country- women- from the penal provisions of the law. In other words, women could cheat with impunity and get away with it.  I can state this with authority as I became a victim when a woman, with her husband in tow, acted as an agent of a non-existent firm that undertook to develop a lawn in front of my house and defaulted. (I wasted more than Rs 25,000/-, pursuing this complaint for almost a decade beginning 2000, in the district consumer forum/state consumer commission, for refund of Rs 14000/-)

 

The injustice did not stop there.

 

In Mary Chacko vs Jancy Joseph (2005 (3) KLT 925), a division bench headed by the then Chief Justice of Kerala 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'.

 

Now this raises a genuine doubt whether the Constitution of India, by which all these luminaries swear by, mention anywhere that justice can be denied to individual citizens? As I see it, or as any man in his senses would see it, it is a big NO! Doesn't it suggest that our judges should read the Preamble to the Constitution every time they opened a case file?

 

As well as the Gandhi Talisman (Recall the face of the poorest and the weakest man [woman] whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him [her].) for added effect.

 

A report at https://www.ndtv.com/india-news/delay-in-communication-of-bail-orders-affects-liberty-needs-redressal-at-war-footing-sc-judge-2597974 (Delay In Communicating Bail Order Serious Flaw: Justice DY Chandrachud; November 03, 2021). This was in the context of Aryan Khan, son of Bollywood superstar Shahrukh Khan, spending an extra day inside the Arthur Road jail in Mumbai, despite securing bail from the Bombay High Court in the drugs-on-cruise case. Chandrachud had termed the delay in communicating bail orders to prison authorities as a "very serious deficiency" and stressed the need to address it on "war footing" as it touches the "human liberty" of every under-trial prisoner.

 

And, there was this report at https://timesofindia.indiatimes.com/india/can-less-heinous-offence-cases-be-dropped-asks-sc/articleshow/89463808.cms (Can less heinous offence cases be dropped, asks SC; Feb 10, 2022) where the apex court  decided to examine whether the pending criminal cases, involving less heinous offences, and in which the accused have already spent substantial part of the sentence, be dropped by the prosecuting agency to ease the burden on the courts for expeditious disposal of serious cases involving heinous offences and also to prevent accused from languishing in jail and to reduce overcrowding in jail. Forget about the gross injustice in holding somebody as an under trial in judicial custody for such prolonged periods, what about the horror of living forever under a cloud of doubt for the person acquitted and the equally disconcerting state of the aggrieved that he had not been given justice?

 

Equally important is the question: can the law makers, including the judiciary, give exemption to the police from investigating criminal cases, involving less heinous offences? Of course, the issues of defining less heinous offences and substantial part of the sentence will have to be addressed too. Yes, these are not as simple as they appear. Even in the Right to Information Act the term substantial appearing in the definition of a public authority has led to many questionable decisions by the adjudicating authorities.

 

Meanwhile, Anil Gidwani, 63 year old alumni of IIT Mumbai and a software engineer had to fast for 37 days before he could get an order from Mumbai High Court in the following terms:

1.      The alleged contemnor in person submits that he is seeking only a tentative date for fixing the matter for hearing and completion of the contempt proceedings. He has humbly submitted that he is not expecting any time limit for fixation of the date.

2.      Hence, as far as possible, the contempt proceeding shall commence after six months and be completed, as far as possible, within three months.

3.      Stand over to 01/09/2022.

 

Only time will tell to what extent this commitment will be honored. The qualifier ‘as far as possible’ (used twice in the same sentence), notwithstanding, even the term completed cannot be taken to mean what it usually means. To presume that the proceedings will end with a verdict will be delusional. I do not know if the courts have data on cases where verdicts are pending long after the final arguments are over. But I do know that this delay can be more than even five years and the judge might have even gone on transfer or retired, leaving the parties high and dry. The agony of the aggrieved can well be imagined.

 

Here is an extract from a report ‘India’s huge backlog of court cases is a disgrace – but Covid-19 has provided solutions’ (https://scroll.in/article/998458/indias-huge-backlog-of-court-cases-is-a-disgrace-but-covid-19-has-provided-solutions; Jun 28, 2021):

 

The E-Committee of the Supreme Court has been in existence since 2005. It has made two outstanding recommendations which are not being followed:

 

1) E-filing in all courts: The committee has made detailed standard operating procedures on how petitions, affidavits, payment of fees can all be done electronically without lawyers or litigants having to travel to the courts. This has been implemented in small ways and often in absolutely perverse and wasteful ways. Many High Courts have insisted that the petitions must be filed by email and then the paper copies must be submitted. To make this more wasteful and interesting, the paper copies are scanned and the “digitised” images are not used anywhere.

 

A lot of travel and expense would be saved for lawyers and litigants. It would also save a lot of space in the courts and make them cleaner and smart. A rough calculation indicates that the courts of India require about 12,500 tonnes of paper that requires the destruction of about 3 lakh trees.

 

2) Virtual hearings: Virtual hearings have been held by courts for about two decades in a few cases. But this has been done as an exception. The Covid-19 crisis led to the demand to conduct virtual hearings. Whereas some courts did hold some hearings selectively, the disposals fell dramatically, since many judges worked for less than 50% of the time even on virtual hearings and some did not work at all.

 

Again, just for the record, when the pandemic struck in March 2020, directives were issued for lockdown and which all services will be affected fully or partly. We saw that essential services were exempted. The health workers and police were stretched to the maximum. While some minimal additions were provided to the health staff, the police had to do with the existing staff. The electricity, water, telephone, media and such services were also provided without serious problems.

 

When it came to courts, the call was taken by the judiciary itself. I am not aware whether the decision was taken considering it to be an essential service or not. But as per another report (https://scroll.in/article/971860/covid-impact-cases-disposed-by-high-courts-drop-by-half-district-courts-by-70; Sep 04, 2020) cases disposed of by High Courts dropped by half and district courts by 70%. The Supreme Court’s website showed only the number of pending cases. On March 1, the Supreme Court had 60,469 cases pending. On July 1, the latest data available, the figure stood at 60,444.

 

P M Ravindran/raviforjustice@gmail.com/230322