If anybody asked me which
is the most covetable job in my country I can say without even batting an
eyelid- a judge! And the next best? An advocate, for sure! Let me explain.
In any case before a judge
there are always two parties- the complainant/prosecutor and the
respondent/defendant. Both the parties will of course present some facts and
quote some laws including some case laws too. It is then left to the judge to
take the final call on who should get the favorable judgment. And I dare say
that he can do it by just tossing a coin. Thereafter all that he has to do is
pick up the appropriate lines from the arguments of the concerned party and add
his decision. The procedure too is so weird and antithetic to the very concept
of transparency, accountability and ultimately to the very concept of justice
itself. To illustrate, just consider the case of adjournments and the delays is
announcing decisions even after arguments are closed. Tariq pe tariq is such a hall mark of our judicial system that it
should not need elaboration but probably not so well known is the delays in
passing orders even after the final arguments are over. For the sake of the
uninitiated I shall use an example from a complaint taken up with the Palakkad
District Consumer Disputes Redressal Forum. In
OP 282/99 (OP No 85/95 transferred
from Malappuram), the opposite party had produced interim stay order from the
Kerala High Court on 28/10/99 and
the stay was vacated only on 8/6/2005 but throughout this period the
case was listed 58 times and adjourned! It was finally posted for orders on
6/7/07 but was opened for re-hearing suo moto on 15/2/08 and went on an adjournment spree from 3/3/08 to
31/5/2010. During this spree it was adjourned 17 times, including 5 times for
want of members/President and 10 times
for orders only! It was dismissed when an application was submitted under
the RTI Act to find out the status! Now, if this is the state of affairs in
a consumer ‘court’, constituted under the Consumer Protection Act, in the form
of a jury (and the implied high cost to the exchequer) to dispose of routine
consumer related complaints fast and free (it was free to begin with but later
a fee was introduced to even file the complaints) one can well imagine the
affairs of regular courts.
The National Commission to
review the working of the Constitution, headed by a non-tainted former Chief
Justice of India, M N Venkatachaliah and whose 5 of the 10 other members were
from the judiciary had reported '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.'
That nobody can have the
cake and eat it too is a common refrain. If there is any exception it has to be
our judges. They can always blame the shoddy investigation and shoddy
prosecution for miscarriage of justice. What about the competence and
motivation of the judges? To even question them would invite prosecution under
the Contempt of Court Act where the prosecutor, jury and hangman are all
combined in one man- the same judge whose credentials are being questioned.
The second most covetable
is that of an advocate, if only because his is a job that does not need to
produce any guaranteed results. And the fees? Incredible! Didn’t Ram Jethmalani
claim that his fees for just a conference is Rs 1 Crore? And now the apex court
itself is possessed of the exorbitant fees charged, upto Rs 50 lakhs per
hearing, by senior advocates. Imagine, even a cardiologist who does beating heart
surgeries is paid only a fraction, almost negligible fraction, of such amounts.
It has been mentioned
earlier that the judge can always blame it on shoddy investigations and
prosecution for miscarriages of justice. But isn’t it just half truth? What was
the role of the investigators and prosecutors in the infamous case under the
Right to Information Act where the then Chief Justice of India, K G
Balakrishnan, himself claimed that his office was out of purview of the law
enacted to contain corruption and to hold
Governments and their instrumentalities accountable to the governed?
Less than a year back the
nation witnessed a sitting high court judge being sent to six months in prison,
under the contempt of court laws for making some categorical allegations about
some brother judges. Even before he was out from jail we also saw the same
judges who convicted him making some vague allegations against the Chief
Justice himself and specifically questioning his integrity itself. But then the
contempt laws seems to have vanished into thin air.
A couple of years back
Times Now, a visual news channel, telecast for a few seconds the picture of a
retired Supreme Court judge inadvertently while reporting a scam in which
another judge with a similar name was alleged to be involved. The media
promptly tendered apologies but the judge felt that it was not sincere. He
claimed for defamation and was awarded Rs 100 crores as compensation. Appeals
to the high court and apex court was not even heard but dismissed with the remarks
to first deposit Rs 20 Crores and issue ban guarantee for Rs 80 Crores. In
contrast, more than 25 years back a top scientist from ISRO was framed in a
sleazy scandal. The conspirators were many and with different motives. He and a
couple of his colleagues, working on a project of national importance, were
arrested, tortured, imprisoned and had to live through horror for many years.
He was finally acquitted by the apex court four years later. And since then he
had been a litigant demanding prosecution of the conspirators and perpetrators
as well as for compensation of a mere Rs 1 Crore. While the latter case is
still pending in the Kerala High Court the former has been decided in his
favour with the constitution of a one judge committee to investigate the
allegations and an award of Rs 50 lakhs as compensation. If this doesn’t remind
one of Animal Farm where all animals are equal but some are more equal than the
others, then it is futile to continue to claim this to a democracy having rule
of law where be you ever so high, the law
is above you. In fact our judges are not just above law but a law unto
themselves. The trashing of the National Judicial Appointment Commission Act also
proves this, if ever proof was needed.
The recent spate of
judgments by the outgoing CJI, Dipak Mishra, has also given reason to question
the competence, motives and prudence of our judges. The judgments in the matter
of Adhaar, entry of women in Sabarimala and adultery have raised more questions
than those addressed by the judges in the respective cases.
In the matter of Adhaar,
the lead petition was filed in 2012, by a former judge of a high court. During
the six years the court sat on it, the executive had had a free run making it
compulsory for almost every activity in the life of a citizen, from getting
admission for children in schools, to reservations in railways to even pension.
And now the court has circumscribed its use and ‘permitted’ citizens to demand
removing the linking of Adhaar to many facilities that it has been already
linked with. And there is also a ban on private parties demanding Adhaar
validation when Reliance Jio has provided its services to almost 300 million
customers based only on Adhaar validation.
In the matter of entry of
women in Sabarimala the majority has over ruled the sane voice of its only
woman member in the bench. There is quip: he
who can smile when things go wrong has already thought of someone he can blame
it on. Sabarimala is a seasonal pilgrim destination and the crowd has been
swelling every year and become unmanageable in recent years. Even the police,
deployed on security duties, have been asking for limiting the number of
pilgrims visiting the shrine and extending the virtual queue management (through
web booking) to 100 percent pilgrims. And now even the communist government of
the State, which had supported women’s entry, is praying that the number of
women will not swell during the forthcoming season in a few months. We don’t
have to wait for too long to learn what a disaster bomb has fallen into hands
of the state government which is already facing criticism from all quarters for
its disastrous management of the recent disaster in the form of floods.
Apart from the logistics
involved in Sabarimala, there is also the question how is it that the judiciary
which is so active in interfering adversely with all matters affecting hindus
and their faith and rituals (Jallikattu, dahi handi, fireworks etc) is
pretending to be blind to questionable faith and rituals of the minority
communities. Cyber space is rife with information that of the 25 lakh temples
in India there are only 6 that do not allow men and 5 that do not allow women
but there are over 3 lakh mosques where women are not allowed entry at all or
not allowed to pray with the men. Even a former Supreme Court judge, K T
Thomas, has written that in the pulpit area of the church no women are allowed
even now.
The judgment on adultery
is even more shocking. But the redeeming factor is it is not restricted to any
particular denomination. And without going into an analysis of its sociological
implications let me recollect two instances narrated in the Bible. The first is
of course the Garden of Eden where Adam and Eve were living a life of bliss.
And then came the devil in the form of snake and temptation. The rest as they
say they say is history. The second one is of Jesus addressing a mob about to
stone Mary of Magdalene to death for prostitution. Jesus told them ‘let the one
who has not sinned throw the first stone’ and everybody dropped their stones. Though
these instances raise their own questions in the present context, the one that
I would ask, to conclude this article, is: will only the judges who have not
sinned sit in judgment in our courts?
02 Oct 2018
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