Sunday, 25 September 2022

JUDICIAL PERFIDIES-21

 

The edifice of our justice delivery system in India is built on two major fault lines in our Constitution- the absence of accountability of our judges and the preposterous, undemocratic contempt of court provisions. Not that these are the only two fault lines in our Constitution. The more you try to understand it, the more you will realize that these fault lines are like the potholes on our roads, one has to really look for the road amidst the potholes over which one has to navigate, even as a pedestrian, leave alone driving a vehicle.

 

I am sure we are all given to believe that we are a democracy and a constitutional democracy at that. The Preamble of the Constitution unambiguously proclaims that We, the People, do adopt, enact and give unto ourselves this Constitution.

 

The other day, N V Ramana, the then Chief Justice of India, while speaking at a private reception in the United States of America, had pompously announced that the judiciary is accountable only to the Constitution of India. To me it sounded just an inanity, with even the person saying it not knowing what he meant. Because, given that we are a democracy and have given to ourselves this Constitution, there cannot be any doubt on who should be accountable to whom. But he did not state the obvious.

 

One is reminded of what Winston Churchill said about the western understanding of the Soviet Union - a riddle wrapped in a mystery inside an enigma. And this is the attribute on which our judiciary seems to thrive, when the fact is that for rule of law to survive, the law should not only be easily understood by those affected, its interpretation should be such that justice is not only done but seen to be done.

 

So, who should the judiciary be accountable to? We, the People; no doubt. But, is it? Definitely not. Worse, it is the one organ that treats the people, approaching them for the constitutionally mandated services due from them, in the shabbiest manner possible. Ask any litigant how many times he had presented himself in a court and had to return after completely wasting his precious time there, day after day after day. Not to mention the fees paid to the advocate every time. 

 

The other day, D Y Chandrachud, judge of our apex court had reportedly said “We spent so much of our time reading these files and then advocates come and tell us they need adjournment in the case. This is unfair" (‘No more tareekh-pe-tareekh; need to curtail adjournments: Justice Chandrachud’, at https://www.indiatoday.in/law/story/no-more-tareekh-pe-tareekh-need-to-curtail-adjournments-justice-chandrachud-1998429-2022-09-09). He is due to be the next Chief Justice of India and hope he succeeds in walking his talk.

 

Here are some facts brought on record by none other than the Attorney General of India (‘With over 42 lakh cases pending, Attorney General asks judges for possible solutions to cut down pendency’ at https://www.indiatoday.in/law/story/attorney-general-k-k-venugopal-judges-solutions-pendency-chief-justices-high-court-nv-ramana-1943614-2022-04-29):

 

Ø  75 per cent of undertrials are in custody and most of whom are poor, and who can’t afford means.

Ø  A large number of cases which are pending are more than 30 years old.

Ø  There are 24,000 judge posts in the trial courts and the pendency is 42 lakh cases with 5000 posts vacant.

 

Another report ‘Cases stagnate in SC as Constitution Bench hearings remain pending for decades’ (https://www.indiatoday.in/law/story/cases-pending-supreme-court-constitution-benches-1913234-2022-02-15) states that At least 35 cases are pending before the various Constitution Benches of the Supreme Court, many of which would have serious consequences for the legal system of the country, according to a report published by Legal research group Vidhi Center for Legal Policy. These include issues involving the interpretation of tax laws, powers of the court to consider matters relating to religion, reservation policy etc.

 

All the pending cases also have hundreds of connected matters, which means that the final decision in several hundred cases depends on the decision of the Constitution Bench.

 

The oldest case before a Constitution Bench is the case of Central Board of Dawoodi Bohra Community v. State of Maharashtra which has been pending since February 28, 1986 (13,135 days) before a five-judge bench. The case also has one tagged matter that has been pending for over 31 years.

 

A report in Hindustan Times (‘After 30-year battle, Supreme Court grants Faridkot Maharaja’s properties to daughters’ at https://www.hindustantimes.com/india-news/after-30-year-battle-supreme-court-grants-faridkot-maharaja-s-properties-to-daughters-101662574246439.html) informed its readers on 08 September 2022 that The Supreme Court on Wednesday upheld the Punjab and Haryana high court’s order awarding the majority share of the estate of the erstwhile maharaja of Faridkot, Sir Harinder Singh Brar, estimated to be worth ₹20,000 crore, to his daughters –Amrit Kaur and the late Deepinder Kaur – and dissolved the Maharawal Khewaji Trust, which was looking after the properties.

 

Amrit Kaur had initiated the judicial process by filing a civil suit in a district court in 1992. It had ruled in her favor in 2013. This decision was upheld by the High Court in 2020 and has now been upheld by the apex court. Deepinder Kaur had, meanwhile, passed away in 2018.

 

Now just compare this with a decision of a consumer ‘court’ reported at https://timesofindia.indiatimes.com/city/chennai/arrange-seva-darshan-or-pay-rs-45-lakh-compensation-to-devotee-consumer-court-tells-tirupati-tirumala-devasthanam/articleshow/93971746.cms  on 03 September 2022 (‘Arrange seva darshan or pay Rs 45 lakh compensation to devotee, consumer court tells Tirupati Tirumala Devasthanam’)

 

As per this report a devotee had booked a Seva at Tirupati temple 16 years back by paying Rs 12,250/- in June 2006. The slot allotted to him was in 2020 and due to the pandemic the temple was closed and the Seva could not be held. He was offered a refund or another VIP darshan. However the devotee approached the consumer ‘court’ which ordered the TTD to give a fresh date for the Seva within a year or pay a compensation of Rs 45 lakhs for deficiency in service and mental agony. It also ordered TTD refund the Rs 12,250/- paid along with an annual interest of 6%.

 

While the refund of the amount paid with interest is the norm, the order asking for a fresh date to be given within one year or the Rs 45 lakh compensation is ridiculous and preposterous. Given the delay between booking and allotment of slot, it is reasonable to presume that the Seva would have been booked at least till 2035 by now and there is no way that TTD could have found a slot before that for allotting to this devotee. Further, where does the case for deficiency in service arise when the temple had been closed on government orders during a pandemic?

I have quoted this case only to ask one question: how much would our courts be required to pay as compensation for deficiency in service and mental agony of the litigants?

 

The last week of August saw change of guard in our apex court. CJI N V Ramana relinquished office handing over the baton to U U Lalit who will carry it for just 74 days. Even while I was wondering whether this appointment of a CJI for 74 days was in public interest or personal interest, my attention was brought to a report ‘Judiciary does not find adequate reflection in media: Outgoing CJI NV Ramana’ on 26 August 2022 at https://www.timesnownews.com/india/judiciary-does-not-find-adequate-reflection-in-media-outgoing-cji-nv-ramana-article-93803612.

 

While the claim of the outgoing CJI about judiciary not finding adequate reflection in media shall be dealt with subsequently, the more important information in this report was the framework  of the work he intends to do by the new CJI. The report quotes the CJI as:

 

"Let me place some parts I intend to do in my next innings of 74 days: 3 areas - 1) We'll strive hard to make the listing as simple, clear and transparent as possible, 2) You'll have a clear-cut regime where any urgent matters can freely be mentioned before respective courts, 3) Listing of matters before the Constitution Benches and matters which are specially referred to Benches of three judges...We will strive hard to say that yes we will always have at least one Constitution Bench functioning all throughout the year,"

 

The last one about having a Constitution bench functioning throughout the year merits mention not only from the point of pending cases before constitution benches mentioned earlier, but also the fact that during Ramana’s tenure of 16 months the highest constitutional court had not set up even a single constitutional bench.

 

In ‘Assessing CJI NV Ramana’s legacy through three key numbers: 0, 163 and 71,411’ at https://indianexpress.com/article/opinion/columns/cji-n-v-ramana-supreme-court-of-india-8113487/ Alok Prasanna Kumar wrote: Zero is the number of Constitution Benches set up to hear substantial questions of interpretation of the Constitution or the law. Appeal in the hijab case has been kept pending for 163 days. 71,411 is the number of cases pending before the Supreme Court as of August 14, 2022.

 

On 29 August 2022, I was glad to read (‘Supreme Court constitutes two constitution benches to hear 8 cases tomorrow’ at https://www.barandbench.com/news/supreme-court-constitutes-two-constitution-benches-hear-8-cases-tomorrow) that the new CJI had constituted 2 constitution benches of five judges each and distributed 8 cases between them.  While I was disappointed to note that the information about the dates from which these cases have been pending in the apex court was not reported, the shock came from one of the cases being taken up:  Plea regarding whether the criteria for selection can be altered by the authorities concerned in the middle or after the process of selection has started. Really? Is it a matter to be decided by a constitution bench of the apex court? If you are not shocked, please read the case description again.  

 

Coming to the observation of N V Ramana that about judiciary not finding adequate reflection in media, you have seen how many reports have been quoted in this critique itself. And it is just a fraction of the reports that have appeared in the media in the last couple of weeks. And here are some more.

 

In a report published on 9 Sep, 2022 (https://www.barandbench.com/news/litigation/just-because-some-big-lawyers-come-and-argue-supreme-court-comes-down-on-madras-high-court-in-sp-velumani-case) Judge Ajay Rastogi had remarked:  "What kind of orders are being passed? We certainly have a lot to say. No application of mind, just because some big lawyers come and argue...Procedures followed speaks a lot about the High Court".

 

Another report dated 4 Sep, 2022 at https://www.barandbench.com/news/litigation/cji-uu-lalit-addressed-me-sir-bombay-high-court-chief-justice-dipankar-dcji-uu-lalit-atta informed its readers that, at an event in Nagpur, CJI Lalit had said that there are three important attributes to be a successful lawyer: know the facts, know the law and more important than first two, know the judge. I had heard a different version long back: good lawyers know the law, successful lawyers know the judge.

 

A report ‘CJI recalls lawyers’ contribution in drafting Constitution, freedom struggle, says their percentage in Parliament declining’ on 4 September, 2022 at https://theprint.in/india/cji-recalls-lawyers-contribution-in-drafting-constitution-freedom-struggle-says-their-percentage-in-parliament-declining/1116163/ states: “All the talent is at the top level, while, unfortunately, in the mid and lower levels, talented youngsters and lawyers are not coming. We must have a bottom-heavy pyramid of the judicial structure,” the CJI asserted.

 

Also, “Our country has seen and benefitted from legal talents, right from its freedom struggle. A lawyer normally has been exposed to the correct way of thinking on how to find solutions for social problems or constitutional issues. He is better equipped than others to deal with situations facing society,” the CJI said.

 

I will just quote Dr Ambedkar and Seth Damodar Swarup to prove the hollowness of the latter claim.

 

On 2nd September 1953, by making a statement in the Rajya Sabha (Parliament) Dr Ambedkar stated that “People always keep on saying to me, so you are the maker of the Constitution. My answer is I was a hack. What I was asked to, I did much against my will. I am quite prepared to say that I shall be the first person to burn it. It does not suit anybody.”

 

On 19 November 1949, Seth Damodar Swarup stated in the Constituent Assembly itself, that 'this Constitution may be the biggest and bulkiest constitution in the world, may even be the most detailed one, it may be heaven for the lawyers, and may even be the Magna Carta for the capitalists of India, but so far as the poor and the tens of millions of toiling, starving and naked masses of India are concerned, there is nothing in it for them. For them it is a bulky volume, nothing more than waste paper.'

 

Here is another report: ‘False charges by litigants after adverse order tend to demoralise judges: SC’ at https://www.tribuneindia.com/news/nation/false-charges-by-litigants-after-adverse-order-tend-to-demoralise-judges-sc-430475. Since the title of the report itself is self explanatory, let me place my comment on record:

 

For long our judges have taken refuge in the fact that one party to a case will always be aggrieved by the decision of the courts. So, the touchstone of jurisprudence-justice should not only be done but seen to be done-was given the by, blatantly and with impunity. But like another proverb goes-you cannot fool all the people all time- judges are now being criticized even by non-litigants who get to read about court proceedings and decisions from mainstream media as well as citizen reporters, through social media. This obviously cannot be appreciated by our judges. But unless the judges walk the talk there cannot be any reprieve. Even lawyers appear to have lost confidence in our courts, going by the way they have been taking to streets and protesting like political parties. There have been no dearth of judges criticizing the system either.

 

Also, judges may have their own logic and reasons but so do the citizens while judging judges. Judging is an innate habit of every human being and not a proprietary quality given to judges only.

 

Let us for a moment keep aside the cases of litigants affected by adverse verdicts. Take the case of ISRO scientist Nambi Narayanan who was falsely implicated in an espionage case, involving women, and who suffered badly in many ways- physical and mental torture, loss of job, reputation etc. Even after his acquittal by the apex court, he had been given only a pittance of compensation. Worse, the perpetrators are yet to be punished too, if ever they will be punished.

 

Fast forward to a former judge of the apex court who sued a news channel for Rs 100 crores for defamation for displaying his photo while reporting another judge involved in a scam. It was a genuine mistake as anybody conversant with digital libraries will understand. No loss of job, no torture, nothing. While millions may have watched the news report one doesn't know how many would have linked the name used in the report with the photo displayed. But still a compensation of Rs 100 Crores for defamation?

 

To conclude, let me quote some judges:

"Corruption in the judiciary is a big problem. Nothing can be worse for the legal system," Mr. Venkatachala (then Lokayukta) said at a function organised by the Federation of Bar Associations in Karnataka to felicitate him.

Former Chief Justice of India, Y. K. Sabharwal: "The justice delivery system has reached its nadir"

“Already citizens are frustrated with the justice delivery system and only less than 10% of the litigants who have disputes are approaching the court," Justice Kirubakaran (of Madras High Court) observed.

Supreme Court judges in India, Justices S. B. Sinha and Markandeya Katju, are of the opinion that " … everywhere, we have corruption. Nothing is free from corruption. Everybody wants to loot this country. The only solution for this menace is to hang some people in the public so that it acts as a deterrent on others."

Judges B. N. Agarwal and G. S Singhvi have expressed the same sentiments, "for the bureaucracy in the country to work without corruption, these bureaucrats need to be flogged."

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

“In this connection we wish to say that the reputation of an institution is damaged and its image sullied when some of its members pass shocking orders and behave in a totally unacceptable manner.” -Markandey Katju and Gyan Sudha Misra

 

 

P M Ravindran/ raviforjustice@gmail.com                                                   12 Sep 2022              

JUDICIAL PERFIDIES-20

 There was a report at https://timesofindia.indiatimes.com/india/we-are-answerable-to-the-constitution-and-constitution-alone-cji/articleshowprint/92615487.cms?val=3728  (We are answerable to the Constitution and Constitution alone: CJI;    Jul 2, 2022)

 

It really was shocking for two reasons: the first, of course, was denigrating the democratically elected government in foreign soil because the CJI was speaking at a felicitation organized by the Association of Indian Americans in San Francisco; and two, the stupidity evident in the assertion ‘We are answerable to the Constitution and Constitution alone’. And for the Chief Justice of India to expose his ignorance like this is unpardonable.

 

This is what he had said, as per the report:

 

-> With the change in government, policies do change, however no sensible government would alter the policies to slow down the growth of its own territory. Unfortunately, we do not come across such sensibility and maturity in India too often, whenever there is a change in government.

-> We still haven't learnt to appreciate wholly the roles and responsibilities assigned by the Constitution to each of the institutions. The party in power believes that every governmental action is entitled to judicial endorsement, and the Opposition expects the judiciary to advance their political positions and causes.

-> It is the vigorously promoted ignorance among the general public which is coming to the aid of such forces whose only aim is to run down the only independent organ, .i.e. the judiciary.

-> Principle of inclusivity is universal. It needs to be honored everywhere in the world, including in India.

Now, the following questions arise:

1.      What did the CJI mean by altering polices to slow down the growth of its own territory? Growth of territory has only one implication- aggression.  Is there anyway one can interpret what he has said to mean growth of the people of the country? I have heard of Dr Rajendra Prasad, first President of India, having made an observation that a country is not its land, its hills or rivers or its deserts and forests, but its people. When the fact is so simple why did the CJI opt for such a term that has a totally different meaning the way he has used it? Can it be attributed to lack of knowledge of English and dismissed?

2.      Hearing the CJI taking about sensibility and maturity of the people in government was preposterous. He is heading an institution where judges have been availing unwarranted holidays oblivious to the cases piling up every day, and flouting even the laws that limit adjournments leading to citizens languishing in jails as under trials for periods longer than the periods for which they would have been sentenced if convicted and some getting acquitted after decades of such incarceration (when even those convicted of murder get a maximum of 14 years, unless, of course, the victim is a judge!). Isn’t it a case of charcoal calling the cheese black?

3.      Does every party in power believe that every governmental action needs judicial endorsement? I was, and still am, under the impression that it is the judiciary that has been claiming that every act of the government is subject to judicial review. And we have seen how the judiciary had usurped the power of the Executive to appoint judges (coincidentally, when there were weak coalition governments at the Centre) and constituted an unconstitutional collegium of judges to appoint them. The nepotism ushered in thereafter is now the talk of the town, with even judicial pundits demanding a change. Even a constitutionally enacted National Judicial Appointments Commission Act was trashed by these very judges, with at least one of them dissenting.

4.      And here comes one of the biggest bloomers- It is the vigorously promoted ignorance among the general public…. Coming from the head of an organ that has been in the forefront of subverting even the Right to Information Act, I can only ask: what cheeks!

5.      The Right to Information Act was enacted with the explicit purpose of promoting transparency and accountability in the working of every public authority but the judiciary has, through the rules promulgated by the Chief Justice(s), officially kept its judicial functions out of purview of this law. Worse, it introduced a fee of Rs 500/- as application fee (when it is only Rs 10/- for every other public authority) and Rs 5/- per page of photostatted information (against Rs 2/- by other public authorities). And there was even a fee for appeal. Though these have been changed thereafter, it is still to comply with the mandated proactive disclosure of certain information specified in Section 4(1)(b) of the Act. I leave it to the readers to access the information, pertaining to judges, that are disclosed against Section 4(1)(b)(x) of the Act.  For ease of understanding this is reproduced here: the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations. It is pertinent to state here that this information pertaining the remaining officers and employees (What is the difference between them? Aren’t the officers employees?) is available at the web site of the apex court in a reasonable format, though not exactly as is expected. But even that is not the case with some high courts.

6.      And, what should one make out of …such forces whose only aim is to run down the only independent organ, .i.e. the judiciary? Can any institution of governance (and there should not be any doubt that the judiciary is very much an institution of governance with specific tasks assigned to it by We, the People, through a written Constitution) be absolutely independent, the way N V Ramana has made it out to be? Doesn’t he know the meaning and import of the term democracy? In any case, the National Commission to review the Constitution (a judiciary-headed, judiciary-heavy body), in its report submitted in 2002, had unambiguously stated that the highest office in a democracy is that of the citizen.

7.      On the pontification about inclusivity I shall repeat just one question, posed earlier by Dr A P J Abdul Kalam, when he was the President of this country: why is it that when all the scams reported in the media are of the order of crores of rupees, all the under trials in the jails are from the poor and marginalized sections of the society?

 

We recently had the horror of two judges of the Supreme Court throwing a petitioner to the wolves and making off the record comments that can be seen as only insane. Nupur Sharma, then a spokesperson for the ruling party at the Centre, was provoked, on a talk show, by a Muslim participant, to retorting with quotes from the holy books of Islam. Another Muslim, a journalist at that, edited the video and spread it on social media with a false assertion that she had spoken blasphemously. It was enough to flare up communal passions and many threats, including on Nupur’s life, were issued both from within the country and without.  There were many First Information Reports filed all over India too against the petitioner and the petitioner’s only plea was to combine all of them and transfer them to a court in Delhi, where the first case had been filed. When the law itself is clear that an accused cannot be punished for the same offence more than once, it was a reasonable requirement and with precedences galore, it should have been disposed off within 15 minutes. But that was not to be. Not only was the petition dismissed but the comments made by the judges had literally, to my mind, dug the last nails on the coffin of judicial reliability and credibility.

 

Meanwhile, in the case of Zubair, the Muslim journalist who caused the communal flare up which resulted even in a few murders in different parts of the country and had different cases in different parts of the country, was given the benefit of getting all the cases clubbed and transferred to Delhi.

 

Interestingly, I haven’t come across any report against the one who had provoked Nupur by talking blasphemously about Lord Shiva and other Hindu gods.

 

Radha Rajan, a political thinker and author, writing on ‘High Court and Supreme Court ‘jallikattu’ the PCA Act’ (http://www.vijayvaani.com/FrmPublicDisplayArticle.aspx?id=2195; 21 Feb 2012) has stated that '...for judges of the Madras High Court and the Supreme Court, the PCA Act is a dog is a monkey is a bear is an elephant; intriguingly, a dog is also not a dog on another day.'

 

Whenever we talk of judiciary in India it is invariably about delays, tariq pe tariq (adjournments, ad infinitum) arbitrariness, lack of transparency and, accountability, pending piles of cases, summer, winter and festival holidays, uncle judges, bench hunting, docket hunting,. And the judges have only one blasphemously illogical judge to population ratio to blame for all these shortcomings/evils prevailing in the system.

 

It is my experience that every facet of judicial functions needs to be revisited.

 

To begin at the beginning, one need to ask when judges are supposed to know the law and the litigants the facts, why should there be advocates, as middle men, in our courts? As renowned constitutional expert Fali S Nariman stated in his book ‘India’s legal system: Can it be saved?’: 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. The requirement of a level playing field is ab initio violated.

 

Ban on advocates in courts would also reduce the need for avoidable adjournments. HD Shourie, writing in the New Indian Express on 04 December 2004, had stated: 'Lawyers are accused of employing delaying methods, but no lawyer can succeed if the court refuses an adjournment.'

 

Law qualified citizens need not fear unemployment because they should be given licenses to act as arbitrators/mediators, which should be the first level of resolution of any dispute that are not serious offences needing professional investigation. Escalation should follow a system generally followed in the medical field. The intricacies need to be worked out by a composite team of experts in the fields of law, management, computer technology and Artificial Intelligence. But it should definitely involve grading the arbitrators/mediators based on client/consumer experience.

 

Next, once the charges have been framed the trial should commence with least delay and should continue on a day today basis. This has the advantage of the evidences being presented and countered when they are fresh and also the judge can focus on the case much better to arrive at better conclusions.

 

Only one level of appeal should be provided and the highest court of the land should only deal with constitutional issues and inter-state issues. It is quite disheartening to see rich people approaching even the apex court for bail just because they can afford to pay the preposterous fees charged by lawyers practicing there.

 

While all essential services provided by the Executive organ is free or comes with nominal cost, it is again frustrating that one cannot approach courts without money. Even approaching a consumer court has proved to be a costly affair, mainly, of course, due to involvement of advocates. In fact when the Consumer Protection Act was sought to be amended mandating the respondent to engage an advocate only if the complainant has engaged one, there was such a hue and cry from the Bar that it was dropped like a plate of hot potato. Isn’t it obnoxious that when open heart surgeries can be done in this country for a couple of lakhs of rupees, advocates can charge in lakhs for a simple conference or attending a hearing?

 

I have seen Public Relations Officers in the offices of the Motor Vehicle Department and even in police stations to freely guide citizens on the procedures followed there. Most of the forms are available even on their websites. Why can’t the judiciary have a team of law qualified persons to man a cell in court complexes for guiding litigants free of cost? And have formats for various types of petitions available for downloading from their websites?

 

The Kerala Government had, a few years back, uploaded a series of formats for land registration documents which citizens can download freely, fill up and register their transaction at rates prescribed by the government and totally avoid document writers who had been exploiting the public by charging for their services in terms of percentage of the value of the land being registered (not any different from the fees charged by advocates).

 

The need to cut out the foreboding environment in court rooms cannot be overemphasized. The judges need to behave like human beings and not like someone out there dispensing favors.

 

Chief Justice of US Supreme Court, John Marshall, had once said: "Power of Judiciary lies not in deciding cases, nor in Imposing sentences nor in punishing for contempt, but in the trust, faith and confidence of the common man".

 

Our judiciary has a long way to go to earn the trust, faith and confidence of the masses. The judiciary may claim that the mountain of pending cases is a testimony to the faith of the common man in the judiciary. Nothing could be far from the truth. In an institutionalized system of justice delivery the common man has no other options. In fact the failure of the judiciary is being exploited by the other organs to shirk work, harass the citizens and drive them to taking law into their own hands.

 

To conclude this part, let me quote Aravind Kumar, Jurist and lawyer from a report ('Needed high speed legal redressal') in the Pioneer of 01 August 2006: 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.

 

 

P M Ravindran/ raviforjustice@gmail.com                                                             23 Aug 2022

JUDICIAL PERFIDIES-19

 

‘Every time I deal with Indian officials I become so depressed that I almost need therapy.’ wrote Tavleen Singh in ‘India’s bureaucratic albatross’ (Posted online: Sunday , Feb 21, 2010 at http://www.indianexpress.com/story-print/582409/)

 

I do not know what she would have written had she ever visited a court in our country. To my mind, it can only be worse. One visit to the court, whether as applicant (like me seeking a court of ward’s permission to avail a housing loan by mortgaging a piece of ancestral land in the name of my children, which I had to withdraw after 4 years) or a petitioner or a respondent (as millions would vouch for) our courts evoke only negative emotions like disgust, frustration, anger etc, either one at a time or in combination, including all of them together.

 

No institution has been treating litigants as shabbily as our courts. Summoning someone, even under threat of arrest, and then adjourning the matter without progressing it one step further, is a criminal trait peculiar to our judiciary though we are used to referring to it disgustedly as tariq pe tariq.

 

The National Commission to Review the Working of the Constitution, which had submitted its report in 2002, has asserted that 'the crucial failure is the innate resistance in governments and governmental processes to the fundamental article of democracy, viz. that all power and all authority flows from the people and that all public institutions are meant solely to serve the public interest. The assurance of the dignity of the individual enshrined in the preamble of the Constitution has remained unredeemed; From this fundamental breach of the constitutional faith flow almost all our present ills.  The first and the foremost need is to place the citizens of this country at center-stage and demonstrate this prioritization in all manifestation of governance'. To be sure, we need to acknowledge that the judiciary is very much part of this governmental processes. And, from my experience and view, it is the worst.

 

I have written earlier of how our judiciary is a failure when viewed from all the 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 rarest cases. All the 18 parts of this series have been posted to the Chief Justice of India, between 10 Sep 2021 and 28 Apr 2022, at his email id (cji.office@sci.nic.in) available on the apex court’s website. I have even quoted senior advocates of our courts to trash the only reason-judge to population ratio- touted by our judges for the mounting pendency. The unconstitutional Collegium, nepotism and favoritism, the undemocratic and widely (mis)used contempt of court laws, miscarriages of justice even after the preposterously inordinate delays have all been analyzed from a law abiding ordinary citizen’s point of view.

 

The current Chief Justice of India, Mr N V Ramana, is due to retire on 26 August 2022. On 16 Aug 2022 there was report in the Hindustan Times (Rise in pendency in top court due to Covid-19 restrictions: CJI Ramana; https://www.hindustantimes.com/india-news/rise-in-pendency-in-top-court-due-to-covid-19-restrictions-cji-ramana-101660585339010.html) where in he has tried to blame the rise in pendency on Covid restrictions.  What a futile effort to wash the sense guilt in public. Of course Covid did create fear of the unknown. But then health workers (who were directly affected and subject to the worst form of threat) were working on overdrive and without even any additional compensation. So with the police. The Executive orders were clear- all essential service will continue to work. While the health workers and police worked overtime most other government services were delivered with 25 percent to 50 percent employees working regularly but in shifts. As was the wont with the Executive, here also the discretion of providing their services was left to judiciary. And the judiciary, forgetting the mountain of backlog and the criticism that it had been inviting from the public, did what they are good at- set up ‘vacation’ like bench(es) and went home.

 

The question has always rattled me- was the judiciary affected by Covid as much as the Executive organ of the Constitution? The answer has been a definite no. The interaction, both in terms of volume and proximity, by those manning executive positions in government, with the public is any day much, much more than in the case of judge/advocate-litigant interactions. While, even during normal times, there is the need for judiciary to work like the police, round the clock, there was nothing stopping the judiciary from working regularly even during the Covid times.

 

In fact it was a golden opportunity to streamline the docket management to practical levels. What we find during normal times is preposterous. The list of cases for the day is too long and almost 90 percent of the cases listed (at least in the lower courts) are adjourned during the mustering itself. The loss of court’s time and harassment the litigants suffer can easily be imagined by any rational human being.

 

The other day there was a message being circulated through social media by a litigant, a senior citizen, about to be an octogenarian, with much physical debility, whose fault was he had turned a whistle blower and exposed serious corruption in a high profile organization in which he had worked towards the end of his service. The salient points are:

-> 15 years have elapsed since the FIR, charge sheet and complaint were filed u/s 5 of the Official Secrets Act 1923.

-> 14 years back a petition was filed in a high court to quash the FIR

- > Arguments in this case were closed and judgment reserved five years back

- > After 18 months, the case was listed again for clarification.  Since then hearings are being held on technical matters.

 

And this is not an isolated case. I know the plight of another citizen who has been litigating for the pension he is entitled to. He had quit service after 18 years, with a clean record, but has been denied not only pension but even gratuity like terminal benefits only on the ground that he had resigned. His case had been tossed between the Central Administrative Tribunal and the High Court a few times and the final arguments were concluded in the high court five years back. The advocate who had been representing him had then only handed over the case file to him and asked him to wait for the judgment. And he is still waiting. Meanwhile the judge has moved to the apex court without delivering the judgment and without any qualms.  On the advice of the advocate he had written to the registrar of the high court but not got any response either. The litigant is at a loss as to how to pursue the matter further.

 

Another report of the same day states ‘Supreme Court bench of Justices DY Chandrachud, AS Bopanna sits till 6:40 pm’ (https://www.barandbench.com/news/supreme-court-bench-justices-dy-chandrachud-as-bopanna-sits-till-640-pm) Possibly remembering the old quip ‘when a dog bites a man it is no news, but when a man bites a dog it becomes news’, Chandrachud was prompt to assert, as per the report, that ‘when judges sit beyond usual court hours to hear cases, it eats into their time in chambers normally spent for research and writing judgments, and not into their family time.

While I am inclined to question the extent, if not the veracity of this claim of time spent on research and writing judgments,  I will restrict now just stating that I will believe this claim only when it is supported by data or at least on the usual time a judge reaches the court complex and leaves it.  It definitely has to be data that has been compiled and which can be verified by citizens themselves.

 

We have heard of how a trial court, in the defamation case filed by a former supreme court judge, ordered Rs 100 crores to be paid by a video news channel. The gist of the case was that while reporting about a scam involving a judge the channel telecast the photo of the petitioner. The channel, on realizing the mistake, offered apologies but the judge felt that it was not sincere. And so the case was filed. Both, the high court and apex court, refused to consider the appeals unless a certain percentage of the amount, a hefty amount, was deposited by the channel. Nothing has been heard of the final outcome though it is almost a decade since the first report appeared in the media.

 

Now here is a case where a lower court judge died in an accident, alleged to be a murder. The report at https://www.dnaindia.com/india/report-dhanbad-judge-murder-court-says-culprits-must-remain-in-jail-till-end-of-life-2976352 does not state anywhere that there was any motive for murder, if it was one. The auto driver and another person have been convicted under Sec 302 (Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine) and 201 (Causing disappearance of evidence of offence, or giving false information to screen offender) of the Indian Penal Code. Both have been sentenced to rigorous imprisonment for life without any remission and commutation till the last breath. It is pertinent to note that there was no conspiracy that was alleged or proved or punished for.

 

In any case murder cases are not uncommon in our country and unless punished with hanging till death, it is usually life imprisonment and even if life imprisonment is awarded in multiple charges in the same case they are allowed to be run concurrently. That is the maximum punishment that a convict will undergo is 14 years of imprisonment, including the time spent in jail prior to the punishment.

 

I remember the case of a school teacher in northern Kerala who was murdered in broad daylight in a class room, in front of his primary school students. The trial court had sentenced six of the accused to death. The High Court had upheld the verdict. Years later, the apex court acquitted all except one and even in his case the death sentence was commuted to life imprisonment. Meanwhile the convicts had spent almost the same time in jail and only the one whose sentence was commuted had to spent a few years more as a mere prisoner.

 

Incidentally Section 194 of the IPC provide for punishment for Giving or fabricating false evidence with intent to procure conviction of capital offence. I have not come across any report of any prosecution under this section.

 

Yes, cases have come to light even where innocents have been executed in this country, where we are told that not only capital punishment is awarded in rarest of rare cases but that even if a 100 criminals go unpunished not one innocent shall be punished.

 

Relevant extracts of a report (https://timesofindia.indiatimes.com/india/19-years-on-supreme-court-frees-man-jailed-as-minor/articleshow/93530867.cms ) dated 13 Aug 2022 are reproduced here.

 

After spending almost 19 years in jail, that too after being declared a juvenile nine years ago, the Supreme Court Friday granted a prison inmate relief and ordered his release forthwith on bail saying he could not be kept in detention any further.

 

Taking note of the Juvenile Justice Board order declaring him juvenile way back in 2014, a bench of Justices Indira Banerjee and V Ramasubramanian said a juvenile cannot be detained in custody beyond three years as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, which was in force at the material time when the incident took place, and granted him bail.

 

The life convict had to pass through a very difficult phase with 19 years in jail. He had to spend seven years in the shadow of death as he was awarded the death sentence in 2005 but it was commuted to life imprisonment in 2012 by the President. He was convicted by a trial court and awarded death sentence in the 2003 murder case. The lower court order was upheld by Allahabad HC and finally the Supreme Court. Being illiterate and not aware about law, he did not raise the defence of juvenility and neither did his lawyer at any stage of court proceedings.

 

His juvenility came to light when the Allahabad HC directed Juvenile Justice Boards to examine prisoners in jails in UP, while hearing a PIL.

 

Of course many important information is missing from the report like what was the age of the convict when he committed the crime, what was his motive, did he commit the crime alone etc etc. Still there are a number of public servants involved in getting/awarding him the capital punishment. And one thing should be clear: almost all legally binding documents begin with details including the age of the parties involved. For example, XYZ, son/daughter of ABC, age…., residing at….. So, one can see how many public servants have defaulted. But

is anybody being held responsible and punished?

 

And here is an equally bizarre instance, reported by Bar and Bench (https://www.barandbench.com/news/litigation/bombay-high-court-expresses-displeasure-at-lawyers-attempt-to-change-judicial-order-by-going-to-judges-personal-secretary).

 

In Siddhi Real Estate Developers v. State of Maharashtra & Anr, the Mumbai High Court had refused to entertain the request of the petitioner to allow deposit of 50% of the total demand raised. The petitioner’s lawyer then approached the personal secretary of one of the judges and persuaded him/her to include in the order a direction for a 50% deposit. The matter was brought to the notice of the judges and the matter was heard in open court the next day. The bench of two judges, even while observing that it was a sharp (whatever that means legally) practice, chose just to remind the lawyer that he was first and foremost an officer of the court but refrained from taking any stricter action.

 

I am reminded of a high profile case in Delhi where lawyers of the opposing parties colluded to subvert the due process of law and when caught they were just barred from appearing in the court for six months.

 

Let me conclude for now with a quip: those who can smile while things go wrong have already thought of whom to blame it on. In the case of our judges they can blame the investigators, prosecutors, the executive, the legislatures and everybody else except own responsibility for their own failures.

 

P M Ravindran / raviforjustice@gmail.com                                                       18 August 2022

Monday, 9 May 2022

JUDICIAL PERFIDIES-18

 

This series was triggered by two questionable court orders-one, by the Gauhati High Court,  dated 15/03/2018 in WP(C) 4224/2016, and two, the apex court order, 08/07/2019, upholding the same in SLP (Civil) Diary Number 18133/2019. What better way to dovetail the break in the main thread due to current events and get back to the main thread, than by updating on the status of implementation of those orders.

 

Let us quickly recapitulate what has been narrated in detail in Judicial Perfidies 1. The issue before the Gauhati High Court was raised by one of its former Acting chief Justices, whose date of birth was 30/07/1936, retired on 29-07-1998 on the eve of his attaining the age of 62 years (1936+62= 1998), demanded enhanced pension, due to pensioners on attaining the age of 80, with effect from 30/07/2015 when by the logic of his retirement age itself, he would have attained 80 years only on 30/07/2016 (1936+80= 2016). His claim was that he had entered 80 years of age on 30/07/2015. The High Court accepted his argument and ordered the government to pay him enhanced pension. The apex court dismissed the Special Leave Petition filed by the Central Government simply stating that they did not want to interfere with the orders of the High Court. It became law.

 

What the courts did not reckon with are the following facts:

The scheme of enhanced pension was introduced in 2006 by the 6th Central Pay Commission.

It applied to all central government pensioners, as much as to the judges of our high courts and apex court.

Thousands of central government pensioners and hundreds of high court/supreme court judges would have attained 80 years of age and got the enhanced pension between 01 Jan 2006 and 2015 and none of them had raised such a ludicrous claim for obvious reasons. So this verdict becomes applicable to all of them as well as to all those entering 80 years of age on their attaining the age of 79 years itself.

Well, the same logic of entering and attaining an age, should extend to the retirement age also and hence employees who have to retire on attaining 60/62/65 years of age will now have to retire on entering those ages one year in advance.

 

And, as was expected, a central government employees union wrote, on 26 August 2021, to the Central Government to extend this to all pensioners and circulated that letter on social media. That was when this instance of a special dispensation came into public domain.

 

An application, dated 02 Sep 2021, under the Right to Information Act was delivered to the Ministry of Law and Justice on 06 September 2021, seeking the following information:

 1. Have the orders been complied with?

 2. If enhanced pension has been granted to the petitioner with effect from 30/07/2015, along with interest due, provide copies of the relevant file notes and the order granting the same.

3. The date on which payment as per para 2.2 has been made and the arrears paid. The arrears and interest paid should be shown separately.

4. Has the relief been granted to similarly placed pensioners?

5. If the relief has been granted to similarly placed pensioners, provide copies of the relevant file notes and the order.

6. If the order has not been complied with, provide copies of the Contempt of Court petition filed, if any, by the decree holder, the counter filed, the case number and its present status.

 

The reply, dated 30 September 2021 but posted only on 05 October 2021, by the Public Information Officer (PIO) provided the following information:

-that the sanction was issued by the Accountant General Assam and hence the application was forwarded to that public authority

-Department of Justice does not sanction additional quantum of pension to retired judges.

-No contempt petition has been filed

Now, the PIO was required to send copies of the application or its relevant extracts to concerned public authorities for providing information not held with the public authority to whom the application was addressed. This was to be done within 5 working days of receipt of the application and the same had to be intimated to the applicant. This was not done. It had been done only on 5 October along with the copy of the reply provided to me.

Also, as per Section 21 of The High Court Judges (Salaries and Conditions of Service) Act, 1954, it is the President of India who is the competent authority to grant extraordinary pension to a judge.

Further, as per information disclosed under Sec 4(1)(b) of the RTI Act, under Allocation of Business Rules, 1961, it is the function of the Department of Justice to deal with the appointment, resignation and removal, etc. of Chief Justice and Judges of High Courts in States; their salaries, rights in respect of leave of absence (including leave allowances), pensions and travelling allowances.

Though these matters were raised in the first appeal under the RTI Act, submitted on 13 Oct 2021, there was no response from the appellate authority and the second appeal, filed on 31 December 2021 is pending with the Central Information Commission.

Subsequently, a letter, dated 10 January 2022, was received from the PIO of Principal Accountant General (A&E) Assam, informing the following:

-The Enhanced Pension Authority has been issued to PAO, CPAO, New Delhi

-The information sought at para 2 of the application is exempt as per Sec 8(1)(j) of the RTI Act

-Date of payment is not known to the office of the Principal Accountant General (A&E) Assam

-No relief has been granted to similarly placed pensioners

-A contempt of court petition had been filed and bears the number 635/2020.

The first appeal highlighting the deficiencies/defects in the above reply was filed on 08 March 2022 and there has been no response till date. Some of these are:

- Sec 8(1)(j) of the RTI Act exempts only those personal information which has no relationship to any public activity or interest. In this case both the court order and its compliance have public interest to the extent that it affects all pensioners of the central government and its consequent effect on the public exchequer.

-In the matter of information not known/held with the public authority, the PIO should have forwarded the application or relevant part of the application, to the one holding such information.

-Since the Contempt petition is of 2020, the date of compliance of the order is material and it has not been provided even though specifically sought.

It is also surprising that the PIO of Department of Justice had informed that no contempt of court case has been filed, though the Ministry of Law and Justice was one of the respondents along with Principal Accountant General (A&E) Assam in the original case decided by Assam High Court.

It should also be noted that most of the information has not been provided by the two PIOs.

 

Interestingly, I could get a copy of Bill No 144/2021 to amend the High Court Judges (Salaries and Conditions of Service) Act, 1954 and the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958 where by an explanation was inserted as “For the removal of doubts, it is hereby clarified that any entitlement for additional quantum of pension or family pension shall be, and shall be deemed always to have been, from the first day of the month in which the pensioner or family pensioner completes the age specified in the first column of the scale.".

 

Now the ages specified in the first column of the scale are as under:

From eighty years to less than eighty five years

From eight five years to less than ninety years

From ninety years to less than ninety five years, and

From ninety five years to less than hundred years.

Here, the question is whether this clarification was actually required or not. Because, given that you celebrate your first birthday when you are one year old, you will celebrate your 80th birthday when you are 80 years old or 80 years of age. So you add 80 to the year of your birth in your date of birth to get the date when you are 80 years of age. The illustration has already been given at the beginning of this part of the critique. And this happens to be the date on which you enter 80 years of age, because there after you continue to be 80 plus one day, two days, three days…till 80 plus 365 days when you will be 81 years of age. So you complete 80 years of age only on attaining 81 years of age or on your 81st birthday.

Anyhow, this looks like an effort to seek a simplistic solution to deny the benefit to similarly placed pensioners. But whether it will suffice to deny the benefit granted to an ex Chief Justice of a High Court by the same High Court, and upheld by the apex court, remains to be seen. For that we will have to await the disposal of the pending contempt of court case, which legally need not be concluded in any specific time frame.

Meanwhile here is an extract from a humorous piece written by a former member, Avay Shukla, of the Indian Administrative Service and has been in circulation on social media.

In the early eighties I was posted as a joint secretary in the finance department at Shimla. My duties involved approving claims for medical reimbursement. Those days contact lenses were deemed to be a cosmetic procedure and  their expenses were not reimbursable. One day I received a claim from a High Court judge who had contact lenses fixed. I promptly took the file to the finance secretary. The secretary looked at me with a cunning grin and said: “Approve it!”. I was aghast, just as Moses must have been when he saw the Israelites worshipping the golden calf.

“But the rules, sir ...” I blurted. And then the finance secretary explained: “Avay, you must understand the rules which govern rules. The most important rule in government is the rule of precedents. A precedent, once set, is sacrosanct, notwithstanding all other rules. Once you allow something for one person you cannot deny it to others. So let this judge have his bloody contact lenses—after all, how can a lowly finance secretary refuse a mighty High Court judge? And hereinafter all of us can also have contact lenses!” And that’s how contact lenses are now reimbursable. We now have more IAS officers adorned with the lenses than starlets in Bollywood.

And another one from a blog at http://indiamydreamland.blogspot.com/2010/12/indian-judiciary-dream-unfulfilled.html:

A budding lawyer working with his lawyer dad, exclaimed to his father. “Dad, Dad you must congratulate me on the first major success of my career, because today I have finally settled your 28 years old case, pending since, even before my birth”. The shocked father rebuked his happy son saying, you are a fool. This is the case which helped me, to bring you up from your childhood, and made you a lawyer. This case would have now helped me, to get you suitably married too. In my view you still need to learn a lot, to truly acquire the wisdom, intelligence and the system of functioning of a lawyer.

To conclude this part, the notings in File No A1-3141/2012 of the Kerala High Court on the subject of Post-retiral benefits to Honorable Judges-Government Orders-reg is attached. No comments are being added, except that this is the only information I have got from a court under the Right to Information Act. The ones that had been stonewalled shall be dealt with separately.

 

P M Ravindran/raviforjustice@gmail.com/280422