The other day when I
brought home some stuff from the street corner shop I noticed an interesting
report- of you claiming that you are proud to be called a champion of gender
equality. It reminded me of the king who believed that he was wearing a cloak
which only the wise could see until a boy innocently asked why is the king
naked. And the rest you know is what moral stories are made of.
The verdict on Sabarimala
by the bench headed by you just reminds me of another scenario- of a person who
has covered himself with hornet repellants throwing stones at a hornet’s nest
in a crowded place. For now, I will only
assert that the Contempt of Court Act is a totally anti democratic law and is
the basic, if not the only, reason for the abysmal failure of our judiciary in
performing its assigned task of delivering justice.
This is what the National
Commission to review the working of the Constitution- a judiciary headed (the
Chairman was a former CJI, Mr M N Venkatachaliah), judiciary heavy (six of the
11 members were from the judiciary)-had stated about our judiciary in their
report that was submitted in 2002:
'Judicial system has not been able to
meet even the modest expectations of the society. Its delays and costs are frustrating, its
processes slow and uncertain. People are
pushed to seek recourse to extra-legal methods for relief. Trial system both on the civil and criminal
side has utterly broken down.' Also, 'Thus we have arrived at a situation in
the judicial administration where courts are deemed to exist for judges and
lawyers and not for the public seeking justice'.
The Commission’s approach
to the judiciary itself has been exposed by Dr Subhas Kashyap, a bureaucrat
member (former Secretary General of Lok Sabha) through his notes. The relevant
extract is:
'While no comments are being made on
what went wrong in the procedure, priorities and perspective, it may be put on
record that several of the recommendations now forming part of the report go
directly counter to the clear decisions of the Commission on which the
unanimously adopted draft report of the Drafting and Editorial Committee was
based'.
And one example is:
Attention is also invited to the
decision taken by the Commission at its 14th Meeting held on 14-18 December,
2001. Para 16 of the minutes records
that "There shall be a National Judicial Commission for making
recommendation as to the appointment of a Judge of the Supreme Court (other
than the Chief Justice of India), a Chief Justice of a High Court and a Judge
of any High Court."
"The composition of the National
Judicial Commission would be as under:
a)
The Vice-President of India
b)
The Chief Justice of India
c)
Two senior-most Judges of the Supreme Court, next to the Chief Justice
d)
The Union Minister for Law & Justice."
However the composition of the NJC as
recommended by the Commission in its Final Report is:
The National Judicial Commission for
appointment of judges of the Supreme Court shall comprise of:
(1) The Chief Justice of India :Chairman
(2) Two senior most judges of the
Supreme Court : Member
(3) The Union Minister for Law and
Justice : Member
(4) One eminent person nominated by the
President
after consulting the Chief Justice of
India : Member
And we know what happened
to the National Judicial Appointments Commission Act, duly enacted by the
constitutional process. This is when the appointments are the least of the
problems. It can be compared with
transferring elephantiasis from one foot to the other!*1 The more
important need is for a National Judicial Accountability Commission,
constituted in the form of a jury, with just one member from the judiciary to
guide the proceedings (like in military court martials, where a law qualified
member of the Judge Advocate General’s branch act as the legal guide, but
unlike them in that the members should be from the public). This r commission
should have powers to try and punish delinquent judges with twice the severity
of the punishment that an ordinary citizen would invite for a similar offence. In
this context your attention is invited to an online petition I had hosted in
2005 and which is reproduced as a blog at https://www.slideshare.net/raviforjustice/310505-the-petition-toconstituteanationaljudicialcommission. The signatories and their comments are at https://www.slideshare.net/raviforjustice/310505thepetitiontoconstituteanationaljudicialcommissionsignatures1to429. 429 informed citizens have signed it and their
comments are worth perusing by anyone interested in the rule of law and
dispensation of justice.
And Ms Sumitra Kulkarni,
the only woman member of the Commission and a politician, had summed up the
performance of the Commission thus:
1. I believe in a Unified and truly
Secular India. However, the Commission
debates seemed often to reduce the Constitution to being a platform for
divisiveness and not unification.
2. The Commission did not initiate or
promote sincere debate in the public with regards to the issues that it was
contemplating. The efforts was more to
"evade and defer" instead of to "identify issues, table them for
debate and to deal with them".
And to know that none of
the judicial members of the Commission were tainted in any manner! (If it
reminds you of the allegations by Chelameswar led group of judges, it is just
incidental. By the way, I had hosted an online petition then too. Not that I
believed them to be wrong but because after sending Karnan, whose allegations
had been more substantial and specific, to prison for six months, there was no
way the allegations of these judges could be condoned. It is available at https://www.change.org/p/the-president-of-india-and-the-prime-minister-judges-revolt-contempt-of-court and has been supported by 285 informed citizens so
far.)
I continue to believe that
the judiciary is an indispensable part of any system of governance with
emphasis on rule of law. Its duties are no doubt onerous because ultimately its
failure to perform can be disastrous for the society. But whether our judiciary
measures up to the expectations of the people who have constituted, tasked,
empowered and pays a heavy cost to sustain it, is a question that needs to be
asked, firstly, by the judges themselves. To a layman in the society it remains
a behemoth that is best kept away from. Wisdom through the ages say it is a
blessing to pass through this life without entering a police station and a
court!
09 Oct 2018
*1. There is an anecdote
in Kerala about a mystical figure called Naranatthu branthan. Branthan means
mad. He got that suffix to his name because he used to roll up a big boulder up
a hill with great effort and then roll it down and laugh seeing it going down
with great momentum on its own. It is said to have a philosophical connotation-
of how difficult it is to up and easy to fall down. The story related to
elephantiasis is that Narantthu branthan had elephantiasis on his left foot.
One day while he was cooking his food over the fire of a pyre at midnight the
goddess of the cremation ground appeared in all her ferocity. But Naranatthu
was not moved. Ultimately the goddess asked him to seek any boon. He replied
‘make me immortal’. The goddess expressed helplessness. So he asked ‘make me
die a second after or before I am due to die’. The goddess again expressed
helplessness. Ultimately, in disdain, Naratthu asked the goddesss to transfer
the elephantiasis from his left foot to the right. The goddess readily agreed
and left happily.
*2. Since I do not have
your contact details, this letter is being sent to you by registered post to
your former official address with a request that it to be redirected to your
current address. Being an open letter it is being circulated to the media also
and published as a blog at https://www.slideshare.net/raviforjustice/ The URL
will be available only on posting.
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