It’s been a long break since the last part of this series of critiques was authored on 20 December 2022. Not that there has been dearth of material to write on. Believe it or not, it had actually been a surfeit of information on the subject that had diverted my attention and kept me commenting on social media rather than pursuing this series. Of course, there was also this thought that I had presented enough material to prove my contention that the judiciary is not just the worst of the three organs of our Constitution but a totally failed one. As a follow up on this thinking was the realization of the need to logically end this series and publish it as a book for posterity to read and understand in brief the history of our judiciary in the third quarter of the first century of the nation’s freedom.
This report of 15 Sep
2023, ‘CJI DY Chandrachud Rebukes Lawyer For Saying That Supreme Court Should
Hear Ordinary Cases Instead Of Constitution Bench Matters’ at https://www.livelaw.in/top-stories/cji-dy-chandrachud-rebukes-lawyer-for-saying-that-supreme-court-should-hear-ordinary-cases-instead-of-constitution-bench-matters-237878, appeared a Godsent. My comment posted on Facebook is
reproduced below:
Sorry, Mr CJI, I can't believe that an
advocate of Mr Nedumpara's experience would make such an allegation like 'the
apex court is wasting time hearing Constitution bench matters and are not
hearing matters affecting the common man'. I do not even know whether you have
been rightly quoted in the report. It is more likely that Adv Nedumpara might
have rightly said that the apex court is wasting time on matters like Art 370.
It is not only Nedumpara's views but shared by many right thinking citizens of
this country. The basic fact of the matter is that J&K was singled out for
unwarranted privileges through a constitutional amendment which has explicitly
stated that it is a temporary provision. That itself should have settled the
matter once and for all. On the ground too, the changes in J&K, post the
abrogation of Art 370, are tremendous on the positive side. That should have also
sealed the issue.
The apex court has wasted 16 long days
in adjudicating the matter for nothing. The questions that arise are: can or
should the court abrogate the abrogation? And what will be the consequences?
Worse, as per statistics presented in
the Parliament that are 5 cases pending before 9 member judges, the oldest
being of 1999; there are 6 cases pending before 7 member benches, the oldest
being of 1994; there are 18 cases pending before 5 member benches, the oldest
being of 1992. Just imagine the gross injustice of it all. Makes one wonder
whether we need such a judiciary at all?
Adv Mathews J Nedumpara
has been practicing law for almost 40 years now and has been campaigning for
judicial accountability and reforms for 20 years. That makes us, Nedumpara and
me, two birds of the same feather, except that one is a lawyer and the other
just an ordinary citizen who believes that law is nothing but enforceable code
of conduct in the society.
Nedumpara’s NGO, National
Lawyers Campaign for Judicial Transparency and Reforms, has listed out its
objectives at https://nlc.org.in/objectives/. They are immensely logical and need to be pursued by
everyone concerned with rule of law in the society. They are copied below for
ease of understanding. Some points to ponder are provided in context.
1.
Abolition of
Collegium system of appointment and transfer of judges and the substitution of
the same by an independent judicial appointments commission where neither the
executive nor the judiciary will have a primacy. The NJAC (National Judicial
Appointments Commission) shall advertise the vacancies and invite applications
from all eligible candidates;
The Collegium of the Supreme Court is no
doubt an unconstitutional body. It has been constituted through a series of
calibrated illegal decisions of the apex court itself by giving an unheard of
meaning to the term ‘consultation’ used in Article 124(2) of the Constitution
and when weak coalition governments were in power at the Centre.
Many legal luminaries have themselves
criticized it for promoting nepotism, if nothing else.
Even a judiciary-headed, judiciary-heavy
National Commission to review the working of the Constitution had decided to
recommend an NJAC headed by the Vice President and with the Union Law Minister
as member. However, in the final report it actually replaced the VP with the
CJI as chairman and in lieu introduced an eminent person from the public as yet
another member. This subterfuge was exposed thanks to one of the minority
members in the Commission.
The actual NJAC constituted by the
competent authority, through a constitutional amendment in 2014 which involved
not just a majority in Parliament but also the majority in the majority of
state legislatures, being dumped by a majority of judges in a bench
constituting of 5 members is nothing by subversion of democracy. I have heard
people calling it the tyranny of the unelected too.
The concept of Basic Structure of the
Constitution and independence of the judiciary as propounded by the judiciary
are frauds on the Constitution itself and the sovereign citizens of the
democratic nation.
The fact that India is a democracy
itself implies that the only sovereign entities are the citizens of this
country. To facilitate governance, We, the People, elect (read appoint people
through a selection process known as election) our people in government. But
even all these elected people do not constitute the government. At the national
level the government constitutes the President and the Cabinet of Ministers.
The President is the alter ego of the sovereign citizens and is indirectly
elected by the elected representatives of both the Parliament and state
legislatures. The Cabinet of Ministers constitutes of the elected members of
the majority party or the coalition of parties having the majority in the
Parliament. The rest of the elected members of the Parliament constitute the
eyes and ears of the people and contribute to the law making process. (This
part requires more explanation which is beyond the scope of the context). The
gist of it is that the sovereign People share a bit of their sovereignty with
their directly and indirectly elected representatives. The other public
servants, the bureaucracy to assist the Executive and the judges to adjudicate
in disputes, are just employees of the employees of the People.
The absolute independence of the
judiciary, as claimed by it, is a myth and obnoxious in a democracy. There is the requirement of mandatory checks
and balances. And if the judiciary can adjudicate even in disputes involving
the Executive and Legislature/Parliament there cannot be any doubt that the Executive
and Parliament will have their roles cut out to include the judiciary too in
their tasking. It is not a mere hypothesis being postulated by me. It is very
much part of the Constitution as in the cases of appointing judges and removing
them from office too.
It is actually a failure of the
Constitution that it has not provided double checks on the judicial functions,
which is so much based on discretion of judges. The failure has been aggravated
by providing contempt powers also to courts. The law enacted by the same
Parliament- The Contempt of Courts Act- which covers even criticism of the
judges, can be said to be the first nail on the coffin of democracy and the
first step toward kritocracy.
No wonder, the much acclaimed architect
of the Constitution, Dr B R Ambedkar, is on record having said that he would be
the first one to burn it.
2.
Creation of a
Judicial Ombudsman to deal with the complaints of corruption and malpractices
against judges;
Considering the performance of ombudsmen
appointed in other fields, like local self governing bodies, banks etc,
including the Lok Ayuktas and Lok Pal, this cannot be a satisfactory solution
to the problems prevailing in and due to the judiciary. There is a Judicial
Accountability and Disciplinary Commission Bill pending with the Parliament for
over a decade now. It was passed by the Lok Sabha on 29 Mar 2012.
There is sufficient information
available in public domain on the subject. Some interesting links are:
https://prsindia.org/billtrack/the-judicial-standards-and-accountability-bill-2010
https://blog.ipleaders.in/need-stronger-judicial-accountability/
https://blog.forumias.com/judicial-accountability-in-india/
Looks like the issue of independence of
the judiciary being compromised in case anybody from outside the judiciary is
included in any body constituted to deal with any aspect of judiciary,
including administration, appointment, transfer and discipline of judges, is
what is making this a touch me not subject. Nothing can be more reprehensible
in a democracy than this argument.
In this context I want to make a
comparison with the management of Hindu religious institutions by the
government. The violation of Article 26 in the act of the government managing
Hindu religious institutions only not withstanding even in this management the
courts have allowed non-Hindus also to administer temples on the logic that the
administration is different from the religious rituals practiced in the
temples. So how can the courts follow a different logic with respect to
management of the courts? Isn’t administration different from judicial
functions?
In any case it would be specious for any
public servant to claim immunity from any laws applicable for ordinary citizens.
The fact is that they are all subject to all laws applicable to every citizen
plus the laws that are applicable to them in the matter of responsibility for
providing the services required to be provided by them and the authority to
perform those tasks.
In the matter of courts, specifically
the higher judiciary, Articles 124 (4) provides for removing a judge of the higher
judiciary but that no where states that they can only be removed, in other
words there is no provision in the constitution that exempts them from the laws
applicable to ordinary citizens. In the case of public servants there are
procedures specified for removing them and the courts have jurisdiction to
decide if the procedure, and only the procedure, has been adhered to or not by
the competent authority in any case that is taken up with them. But Article
124(4) makes only such procedures inapplicable to removing judges of the
Supreme Court. Article 228 extends the same procedure for removing High Court
judges also.
Now, here is the extract of my online
petition addressed to the President of India and the Prime Minister, posted on
31 May 2005, for constituting a National Judicial Commission to try and punish
guilty judges as per laws applicable to ordinary citizens:
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 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 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.
429 citizens from all over the country had supported the petition
then when social networks and smart phones were not very popular.
3.
Audio/video-recording
of proceedings of all Courts and Tribunals and access to such records to the
litigants, lawyers and public;
This would of course curb misbehavior of
judges in court rooms, nothing more, nothing less. But, as a refrain goes,
something is better than nothing.
4.
Reintroduction of
the policy of transfer of 1/3rd of judges out of their parent High Court as a
panacea for the pernicious practices of the kith and kin of judges practicing
in the very same court, nay, the “Uncle Judges Syndrome”;
This is a theoretical solution because the
definition of kith and kin, as it existed earlier, does not hold good anymore.
And space certainly is not a factor at all.
The case of Punjab and Haryana High
Court Chief Justice ordering a dozen or so advocates, who were related to the
judges in that court, not to appear before any one of them is an example of how
mutual help is extended and availed. Incidentally this Chief Justice was
transferred as the judges reportedly resorted to non-cooperation resulting in a
stalemate in the court’s functions.
5.
Abolition of the
practice of designation of Advocates as Senior Advocates by the judges, so too
abolition of AOR;
This practice, though looks innocuous,
is really quite dangerous as can be seen from some ‘celebrity’ lawyers
garnering court’s time for frivolous and vexatious litigation at the cost of
important constitutional matters. In fact, it is high time that the apex court,
for one, started disposing of cases on first come, first served basis and
treating all advocates at par. Unfortunately there is a hitch, all advocates
are not at par when it comes to knowledge of law, articulation and competence.
So what is required is a system of accrediting advocates on a one to five star
scale, based on periodic tests and feedback from litigants. It is Fali S
Nariman who has written that what advocates play is a game of skill and the
more skilful invariably wins and hence are costly too. Nothing can be more
harmful to delivery of justice than this uneven playing field.
6. Abolition of the concept of Contempt of Courts by
scandalization
In fact, the whole contempt provisions
need to be abrogated as it is anathema is a democracy. Section 186 of the IPC
provides for punishing anybody obstructing a public servant in discharge of his
public functions and it is a sufficient deterrent for anybody interfering with
the functions of judges too.
7.
Enactment of laws
to ensure that Public Prosecutors/ Govt. Pleaders/ Standing Counsel for Central
Government and statutory Authorities are appointed in a Transparent manner.
This
is of course a non debatable requirement. But I would like to add that the
practice of engaging the services of other advocates to represent the
government should be stopped forthwith. I have come across many reports of the
Government of Kerala engaging ‘celebrity’ lawyers to represent them in cases
like appeal against the order of the High Court to have CBI inquiry into a
murder case or even seeking advice on the legality and the procedure to remove
the Governor of the State as the Chancellor of Universities. These are unwarranted
and exorbitant cost to the exchequer.
8.
Restoration of
the pristine glory of the civil courts as the court of record of plenary
jurisdiction empowered, competent and duty bound to embark upon any dispute of
a civil nature including the constitutionality of a statute as it was the case
prior to independence.
Given the need for doorstep delivery of
justice (I have heard such phrases being touted even by some judges), this is a
valid requirement.
So what will be the role of the Supreme
Court? Adjudicate in disputes between states and suo moto review decisions of
high courts on important subjects, and advice the government on framing laws.
That will put to rest the need for establishing regional benches of the Supreme
Court too, which is being resisted by the apex court. There are many cases
being reported of conflicting orders by different courts on the same subject. One
example is the issue of marriage age.
9.
Simplification of
procedures of all courts and tribunals and, in particular, implementation of
the E-courts project on a war footing;
In fact there is a need to merge all
quasi judicial organizations with the judiciary. As of now these are waste of
taxpayers’ money, with most of them being used as rehabilitation centers for
retired public servants, of the blue eyed variety.
As far as their oversight is concerned
neither the government nor the courts seem responsible. I can vouch for it from
my experiences of taking up issues related to Consumer Disputes Redressal
Commissions (CDRC) and Information Commissions with the state government/
Central Government and in the matter of State CDRC, with the National CDRC
also. I have also taken up consumer cases up to the High Court and Supreme
Court. While the High Court judgment took almost 5 years and was absolutely
disappointing, the apex court case was returned by the registry after 6 months
with a note that it has to be filed in person at the registry or through an
advocate on record. (These cases have been dealt with in detail in the earlier
parts of this series.)
Simplification is a sine qua non. In
fact the first step is to permit litigants to present their cases themselves, at
least at the trial stage, devoid of technicalities. This allows a level playing
field.
The courts are also wasting a lot of its
time, at taxpayers cost, when they list 100s of cases per day when a judge
cannot hear more than five to ten matters in a day. It would be prudent to list
only one or two more cases per day than what the judge can actually hear and do
justice to. Also, a case once taken up should be heard continuously till orders
are delivered.
I am seriously for adopting the health
care model of private practioners, both general n specialists, and the
hospitals where serious cases are treated as in-patients. The nitty-gritty
details can be worked out once the principle is accepted.
10.
Abolition of
Tribunals except involving highly technical subjects which require non lawyer
Members on the Bench and equal opportunity of selection to lawyers qua those
from judicial services;
See comments to para 9.
To add to this specific issue I am aware
of a case where a central government employee resigned with 18 years of
service. He was denied not only pension but even gratuity. When he came to know
that employees with even 10 years of service were eligible for pension and even
those dismissed form service were entitled to some pension he took up the
matter with the CAT. The tribunal dismissed it on the ground that it was time
barred. The matter went to high court and was returned to the tribunal with the
observation that pension matters are never time barred. The question that
arises is shouldn’t the tribunal members be aware of this basic issue of law?
Suffice to say that the tribunal then came up with the issue of resignation and
those who resigned forfeiting all their service and hence eligibility for
pension under Rule 26(1) of C C S(P) 1972. (Shouldn’t one be shocked that such
patently unfair rules are also there in our rule books?) The matter went back
to the high court. After hearing the matter for a prolonged period of time the
judge sat on the verdict for over 4 years and went on to become a judge of the
apex court without giving the verdict.
Viewed in the context of Virendra Dutt
Gyani judgement (the catalyst for this series of critiques) this case also
exposes the double standards followed by the judiciary in human rights (read
pension) issues of judges and the laity.
11.
Repeal the
Articles 226, 32 of the constitution because the said jurisdiction is
pronouncedly absolutely discretionary or make it function as a court of plenary
jurisdiction which will act on law and least on its discretion, will allow the
litigants to adduce evidence on disputed facts, frame issues and hear the
parties on all issues and pass a speaking order.
Of course, the primary issue is whether
the court is competent to do it. But going by the manner in which it has
usurped of power to appoint judges and introduced the fundamentally flawed
concept of basic structure only to empower itself as the most wayward and
whimsical court in the whole world, we can presume that even this is possible.
But then the question also arises if there a need to repeal them. The courts
need to only simply refuse to entertain petitions under these articles. My support
for leaving it redundant is because I have never seen any instance of it being
used positively or with positive outcomes.
12.
Make it mandatory
that no judge of the SC shall be eligible for appointment of any office until
the expiry of at least two years since retirement.
This is a very important requirement. Fortunately,
these provisions exist in the Constitution: Articles 124(7) and 220. They are
reproduced here for ease of reference.
Article 124(7) reads as ‘No person who has held office
as a Judge of the Supreme Court shall plead or act in any court or before any
authority within the territory of India’
220. No person who, after the commencement of this
Constitution, has held office as a permanent Judge of a High Court shall plead
or act in any court or before any authority in India except the Supreme Court
and the other High Courts
Any scope for misinterpreting the terms plead or act
before any authority within (the territory of) India is ruled out by the
explicit provision in the case of High Court judges that they can plead or act
only before the Supreme Court or other High Courts.
It may be argued that being the Chairperson of the
Human Rights Commission or such other quasi judicial bodies does not involve
pleading or acting before any authority. While that may be legally right, in a
critical sense, the issue is of the spirit of the clauses. Equally, for
argument sake, it can be said that they are subordinate to and controlled by
non-judicial authorities.
For an ordinary citizen like me judges holding such
appointments after retirement are violating the spirit of the above provisions.
Worse, most of these appointments have only powers to recommend a particular
action. In fact, quite recently we had the case of the Kerala Government trying
to amend the Lok Ayukta Act to make even the decisions of the Lok Ayukta only
recommendatory in nature.
13.
Make Sec.92 and
Order 1 Rule 8 of the CPC applicable to PILs so that PIL is no longer an
instrument of tyranny and injustice where the public at large is bound by a
judgement of a case where they were not party and PIL is not abused as a
political weapon against the political Executive. At the same time Promote “pro
bono” litigation for the benefit of the poor.
That PILs are misused is a fact that is evident even
to ordinary citizens. I am aware of even orders affecting a class of people not
being made applicable to all members of that class until individuals and groups
of such classes litigate separately. Virendra Dutt Gyani judgement is one such
case. The Rank Pay case of military officers is another classic case.
Regarding pro bono litigation, I am left wondering why
justice delivery is not made free when that is the primary function of any
government. Justice is an intrinsic need. Maybe, even more intrinsic than literacy
and health.
14.
To bring an
appropriate legislation providing for at least one Forum of Appeal on facts and
law against all judicial pronouncements and in particular of the SC under
Articles 32, 129, 141,142 of the Constitution or under the Contempt of Court
Act
It has been brought out earlier that the
judiciary is only an appendix of the government. So the ultimate decision
makers will remain the government. We know that even in cases of capital
punishment awarded by courts the government has the powers to grant reprieve.
Further, there is also a need for checks and balances between the various
organs of the Constitution. While the government itself is subject to the
ultimate check by the citizens, the judiciary at the highest level also does
need to have a check by the government. This can be included in the tasking of
the National Judicial Accountability and Disciplinary Commission itself.
15.
Do away with the
immunity judges today enjoy even from penal offence because of the orders of
the SC that no FIR shall be registered against the judges of the SC and HC
without the permission of the CJI. The role of the brokers who meddle with the
affairs of the judiciary be investigated by CBI and ED.
This is yet another indisputable
requirement. It was in 2014 that the apex court struck down Section 6A of the
DSPE Act which mandated prior permission of the Government for CBI to
investigate public servants of the level of Joint Secretary and above.
But just read the report of cash at
judge’s door step scam at https://www.barandbench.com/columns/the-cash-at-judges-door-case-a-chronological-revisit. It was
first reported in 2008, there were controversies on getting CJI’s permission to
prosecute the accused high court judge, but the case is still pending.
Meanwhile the accused judge has retired (honorably?) and the prime witness, the
person who carried the money to the judge and wrongly delivered it has died and
few other witnesses have also turned hostile.
Interestingly, there was never a move to
impeach the accused judge.
16. Abolition of the concept of absolute judicial immunity
and instead immunity be limited where the judge acts bonafide as is the case
with any other public servant.
That this issue is being projected now
is itself a sign of the failure of the Constitution, the law makers and the
judiciary so fa, when all of them have been unanimous in crying hoarse that be
you ever so high the law is above you. The need for a National Judicial
Commission to try and punish guilty judges as per laws applicable to
ordinary citizens has already been explained under para 2. While I had suggested, in 2005, twice the
severity in punishment as applicable to ordinary citizens, I would now
recommend thrice the severity for judges and twice the severity for other
public servants. This is in conformity with the logic, commonly espoused by the
courts themselves, that unequals cannot be considered equals.
17. Bring an end to the ill treatment and harassment of
the ‘Party in Person’ and to provide them at least bare minimum facilities.
It is not only party in person who is
ill treated and harassed. I have seen advocates too in the same boat. Of
course, the party in person would need a bit of extra guidance on the procedure
at every step which is not available and aggravates his condition.
Here, let me narrate my experience in a
consumer ‘court’. I was the complainant in person and the opposite party was
demanding adjournment after adjournment for no rhyme or reason. But then a
provision had been introduced in the Consumer Protection Act that whenever a
party seeks adjournment the opposite party has to be paid Rs 500/- as
compensation. On the second adjournment sought I demanded this compensation. It
was not granted. This repeated again.
When it was about to be repeated the third time I casually mentioned
that I will have to report it to higher authorities. And, lo and behold, the
opposite party was asked to pay Rs 750/- as compensation!
I have seen Helpdesks in many public
offices, including motor vehicles department, income tax offices and even banks.
Why not have such a system in courts?
18.
So far as the
affairs of the judiciary is concerned, RTI is a dead letter, judges are no
longer declaring assets. Both to be made mandatory.
Not only the judiciary, it is a dead
letter for everybody. The unfortunate thing is that it was the judiciary that
has been in the forefront of subverting the law. Right from misusing the power
to make rules for the implementation of the Act to declare a court’s judicial
functions out of purview of the Act, to not complying with the mandate of
Section 4(1)(b) of the RTI Act to even absurdly denying copy of court orders
which should have been up there in the court’s website the violations have
become the law. Needles to say the other public authorities had followed suit
and now information commissions are merely rehabilitation centers for blue eyed
babus, post their retirement from regular employment. I can vouch for the fact
that if only the courts worked 10 percent as effectively as it is expected to
work, most, if not all, the information commissioners would be spending the
rest of their lives, including their next 7 lives, behind bars after conviction
under Section 219 of the IPC. And each conviction should not take more than 30
minutes of any court’s time.
19.
All cases
including Review Petition be heard in the open court, except cases which are
required to be heard ‘in-camera’ and no case shall be disposed of without a
speaking order.
No elaboration needed. Either this
should be done or at least the judges should stop pontificating on transparency
in public dealings. Not that this will eliminate corruption or improve
efficiency. But, like introducing telecasting of court proceedings, it will be something
better than nothing.
20.
Increase the
strength of judiciary at all levels including the SC and, in particular, the
subordinate judiciary; improve the infrastructure of subordinate courts which
is in an abysmal position today.
This is a facile suggestion. Or the
illogically bandied judge to population ratio expressed differently. This is what Adv Tulsi presented to the
Supreme Court Bar Association on 24 Aug 2004 on the subject Justice Delayed in
India:
The crucial question is the Judge - Docket Ratio and not Judge - Population Ratio
Cases Filed In One Year (1999) Docket’s Per Judge
INDIA 13.6
Million (1,36,68,073) 987
per Judge
USA 93.81
Million 3235 per Judge
*Note: India’s population is 4 to 5
times the population of the USA whereas the number of cases filed there is more
than 7 times that in India and dockets per judges is more than 3 times that of
a judge in India.
If that is not enough Tulsi has
explicitly stated that the primary causes of delay is not the law, not the
procedure, not the paucity of judges but sheer mismanagement.
21.
Financial
assistance to all lawyers irrespective of standing, particularly, from Banks
and Financial Institutions obligated by law.
I do not know if this is a red herring
introduced by Adv Nedumpara on the presumption that even if none of the earlier
requirements were met at least this one could pass muster because those who can
do it are not really bothered about the modus operandi of banking and financial
institutions. To my mind this requirement is illogical as these institutions
are commercial organizations and work for profit. They will certainly look into
the beneficiary’s repaying capacity before extending any assistance and that is
fair enough. And by this yardstick alone each individual will be provided
assistance on a case to case basis.
P M Ravindran/ raviforjustice@gmail.com 23 Sep 2023
