JUDGES
REVOLT: CAN OUR JUDICIARY BE SAVED?
“To allow the chief justice
practically a veto upon the appointment of judges is really to transfer the
authority to the chief justice which we are not prepared to vest in the
President or the government of the day. I, therefore, think that is also a
dangerous proposition,“- Dr B R Ambedkar, Constituent Assembly debates
"The justice delivery system has
reached its nadir"- Y. K. Sabharwal, former CJI
We urgently need three Judicial
Commissions at the national and provincial levels: an Appointments Commission,
a Performance Commission and a Punitive Scrutiny Commission. They should have the power
even to terminate services in cases of gross judicial misconduct.- V R Krishna
Iyer, former judge, Supreme Court of India, ‘The patchy Indian judicial record’
, The Hindu, 06 Sep, 2007
'Judges appointing judges is bad
enough in itself; judges judging judges is worse.'- E.M.S Natchiappan, heading
the Parliamentary Standing Committee of the Ministry of Law and Justice
To answer
the question, can our judiciary be saved?, Texas style: no! Definitely not the
way things are at present. Just imagine the audacity (and equally probable
brainlessness!) of Kurian Joseph, one to the four judges who held the press
conference to cast aspersions on the CJI, going back to the press the next day
and stating ‘we do not want any external interventions’! Of course, the
immediate need to retain that iota of credibility that the judiciary has been
enjoying for a long time now is to prosecute these four judges and send them to
jail, a la Karnan.
Having said
that, one can only analyse what all are needed to have a justice delivery
system that works to deliver what it is expected to deliver-justice! Here there
are two options: one, to go on a quoting spree that implicitly suggests some of
the remedies. For example, Natchiappan’s observation, quoted above, readily
suggests that there should be a body not having judges as members, to judge
judges. In fact an online petition, initiated on 31 May 2005 and posted at http://www.PetitionOnline.com/jrandac1/petition.html, appealing to the President and PM
of India to constitute a National Judicial Commission to try and punish judges
as per laws applicable to citizens, had been signed by 429 citizens, none with
vested interests but all stakeholders, nonetheless! (The PetitionOnline site
has subsequently gone off cyberspace but the contents of the petition and the
comments of the supporters are posted at https://www.scribd.com/document/347897272/310505-the-Petition-to-constitute-a-National-Judicial-Commission and https://www.scribd.com/document/347898072/310505-the-Petition-to-constitute-a-National-Judicial-Commission-Signatures1-to-429 ) And Krishna Iyer has suggested how
many bodies are required for dealing with the various aspects involving judges.
The other
option is straight forward and based on first principles. For example, if there
is delay, is it only due to deficiency in the number of judges? If yes, then
certainly there is a case for increasing the number of judges. But what about
other obvious reasons like less dockets per judge (compared to the US of A, for
details see Part 1 of this series of critiques ‘JUDGES REVOLT-the last nail on
the coffin of judicial credibility-190118 available at http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4562), the preposterously large number of
cases listed per day, the unwarranted adjournments etc wasting much of the
precious time of our courts and worse, judges going on vacation as in colonial
times? As per reports appearing in media/social networks, the higher courts
work only for around half the number of days in a year!
To begin
with, all quasi judicial organizations should be converted to regular courts
with specialization and should be headed by appropriately qualified citizens
and definitely not by retired judges or bureaucrats. (Isn’t it obnoxious that
the apex court that rubbished the National Judicial Appointment Act has not
found anything wrong with re employment of retired judges in quasi judicial
organizations like human rights commissions and consumer ‘courts’ when Article 124 (7) of the Constitution of
India states that: "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." Similarly, Article 220 for permanent
judges of high courts not to plead or act in any court or before any authority except before the Supreme Court and other
high courts.)
And when
bureaucrats, who are required to do much more routine and mundane jobs have to
retire at 60 there is no reason why judges, at all levels, should not be
retired at this age if not lesser, given that the mental prowess required to
analyze complicated cases would certainly require a young and more dynamic
brain.
The above
two suggestions together would at once remove dead wood and apple polishers
while blunting the virtual judge to population ratio argument.
Then, if a
judge can hear only 5 to 10 cases in a day there should be only maximum 15
cases listed. And these cases should be continuously listed till they are
disposed off one by one, adding as many cases to the list as are disposed off the
previous day. Even while listing these cases, they should be divided into four
parts-fore noon 1st half and 2nd half and afternoon 1st
half and 2nd half- so that litigants are required to be present only
for those durations and do not have to waste their complete days for each
attendance. The argument that the time of the judge will be wasted is baseless
as the judge can easily use the intervening breaks, if any, as per the dictates
of the cases pending before him.
The limits
of adjournment are specified in most laws but are not followed. They should be
enforced ruthlessly. The penalty imposed on the defaulting party should be
deterrent.
Ideally
advocates should not represent any party in any courts and affected parties
should be encouraged to argue their cases in person. This will put an end to
the games played by advocates at the cost of litigants. Fali S Nariman, in his
book 'India's Legal system: Can it be saved? , had asserted thus: 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. (Incidentally, the illustrious
lawyer has not given any suggestions what so ever for saving India’s Legal
System. His book concludes with the following poser: In this country of ours, the Judiciary is the salt of the earth. My
wish for the third millennium is that if it please God, there be no occasion
when it is said that the salt has lost its flavour, because as the Bible warns
us: if the salt ever loses its flavour, then wherewith shall it be salted?)
To allay the
fears of all the advocates being jobless and more importantly to make the first
level of grievance redressal available at the door step what can and needs to be
done is that every advocate should be given licence as an arbitrator and
allowed to hear disputes between aggrieved parties and give decision. The
licence should include their subject of specialisation and an accreditation
status provided by the bar council. Their fees should be regulated like that of
doctors. Only if the decision of this first level redressal system is not
acceptable should the matter go to a formal court. The decision as well as the
satisfaction level of the parties concerned should be communicated to the bar
council for compiling the performance profile of the advocate.
The party
aggrieved by the decision may consult any other advocate and get a formal
petition prepared including the charge sheet but the filing in the court has to
be done by the party only and not the advocate, though the details of the
advocate preparing the petition should be on record to enable assessment of his
competence later (this concept, in a very rudimentary form, is already followed by the Income Tax
Department which tracks the tax practitioners filing IT returns on behalf of
third parties.) But no advocate should be allowed to appear in any court
representing any of the parties. This court may summon the parties or witnesses
who had deposed before the advocate during the 1st stage. This may be done only
once and in very rare cases twice. The court's decision should be communicated
not only to the parties but also to the bar council which should use the data
to grade the judge as well as the advocates-both the one who had acted as
arbitrator and the one who had prepared the petition. This grading should be
reflected in the accreditation status and the fees payable to the advocate and
they should be renewed every three years. This certificate should be displayed
in the office of every advocate in a manner that it will be visible to every
visitor.
The final
appeal, except in cases where the punishment is death or life imprisonment,
should be to a bench of two judges at the district level.
The high
court should take the final call in cases of death and life imprisonment
sentences. Otherwise it should deal with issues of law referred to it by the
district courts and intra-govt disputes. The quality of the references from
district judges should be evaluated to grade and appraise them and their
compensation including scope for continued employment and promotion, should
also be linked to this.
The apex
court should only be involved in vetting the laws made by the parliament and
the state legislative assemblies and enforcing correction.
A website,
having all case laws related to specific crimes should be maintained by the bar
council and monitored by the high courts and apex court. It should be
accessible to all. It may be necessary at this juncture to hold as void all
case laws older than, say, 25 years.
Delivering
the keynote address on ‘The Case for Delivering Better Justice to Women: A view
from the Judge’s Chair’ at the 4th annual Women’s Day event organized by Moneylife
Foundation, Sujata Manohar, former judge of the Supreme Court, said: “The first
problem with the Indian justice system is that the laws can’t be properly
understood. We need laws that take into account the needs of society. Once this
is done, they need to be implemented. There are several other things we need.
Just punishing wrongdoers, giving jail-time isn’t enough. We need community
service provisions, we need compensatory provisions.”
Have you
ever thought why all the under trials are poor and languishing in jail for the
best part of their lives, if not their whole lives, when the likes of Kanimozhi
and D Raja could approach the apex court repeatedly for bail even during their
short term in jail, pending framing of charges? The condition for granting bail
is simple- the surety must produce the latest receipt for having paid land tax!
And do you
know that in our courts, a copy of the order is issued to the accused only if
he is convicted and not if he is acquitted? If acquitted, he has to apply for a
copy of the order for his records! (Providing another opportunity for the
advocate to fleece him!)
Can’t a
judiciary that could trash the National Judicial Appointments Commission Act
amend these, considering how far it will go to undo the injustice to the poor under
trials? Or to the citizens who have been viciously dragged through preposterous
court procedures due to the malevolence of some public servants?
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