INDIA- A DEMOCRACY OR KRYTOCRACY?

INDIA- A DEMOCRACY OR KRYTOCRACY? 

P M Ravindran, raviforjustice@gmail.com 

Let me begin by answering the above question bluntly- India is a Krytocracy (also spelt as kritocracy) and an unacceptable one at that.

On 03 Mar 2020 there was a cryptic report in the Janmabhumi Daily that I came across. It shared the concern of the Chief Justice of India, Mr S A Bobde, on how the judiciary was stressed by media reports criticizing the judiciary. It was made in the context of an advocate arguing for considering the petitions, against some allegedly inflammatory speeches made by some BJP leaders, on priority. The CJI had also gone on to remark that the judiciary does not have any control over events when it was happening, and it could intervene only once the event is over.

I was reminded of old time movies where the police arrived on the scene just immediately after the hero had bundled up the villains, read criminals, whom he had fought throughout the movie single handedly, or may be with a Sancho Panza by his side. 

The same day, The Indian Express had carried an article by an advocate, Dushyant Dave (https://indianexpress.com/article/opinion/columns/delhi-riots-high-court-fir-kapil-mishraanurag-thakur-hate-speech-firs-against-bjp-leaders-6296121/). It was a typical argument by an advocate in a court. But his main point of contention, as summarized in the report itself was: 

Judiciary should have acted with greater alacrity in cases involving hate speech. Providing the government time to file FIRs “at an appropriate time” is deeply disturbing. The Court being the guardian of the Constitution and parens patriae of citizens of Delhi was bound to have acted with alacrity.

The context was the Delhi High Court acceding to the Centre’s argument that “the time was not conducive to file FIRs related to the alleged hate speeches as the priority right now is to ensure peace” and adjourning the hearing to as late as April 13. There was a snide remark about the transfer of judge Muralidhar of the said court too:

Coming on the heels of the questionable transfer of Justice S Muralidhar — his bench had ordered registration of FIRs on hate speeches within 24 hours — the division bench presided over by Chief Justice Patel ought to have handled the matter more carefully.

The learned advocate, as the judges would have addressed him, seems to have forgotten that long before the Delhi High Court judges did what they did, the apex court had adjourned as many as 60 petitions seeking to declare the Citizenship Amendment Act as illegal for as inordinately a period as the PIL against hate speeches had been adjourned by the Delhi High Court. And worse, the CAA had become law and it was not an event that was happening, it was an event that was over, even granting the CJI his excuse quoted earlier. 

Preceding the Indian Express article was a more reasoned article in the The Swarajya Magazine on 27 Feb 2020 (https://swarajyamag.com/politics/delhi-pays-for-indulgingshaheen-bagh-recalcitrance-not-just-police-and-netas-courts-too-responsible). The subtitle said it all:

Delhi Pays For Indulging Shaheen Bagh Recalcitrance; Not Just Police And Netas, Courts Too Responsible.

 The report added:

The Delhi communal riots, which could have easily been predicted after two-and-a-half months of Muslim-led protests over the Citizenship Amendment Act (CAA) 2019, which included blockage of arterial roads in the national capital and incendiary speeches against the Bharatiya Janata Party (BJP) government that bordered on Hinduphobia, shows how the law and order system has rotted to the core.

I had commented on this article as follows:

Why Courts Too Responsible? In my view it is ONLY the courts that are responsible for the mayhem in the country today. They have dumped laws duly legislated by the competent body (National Commission for appointment of Judge Act), they have ordered FIRs against soldiers operating in insurgency prone areas under the Armed Forces Special Powers Act, when civilian death occurs, forcing 400 odd soldiers, including officers, to petition the court itself to clarify whether they should  obey their superiors or flaunt the court orders when confronted with anti-national elements; they order prosecution of police officers involved in maintaining law and order  when the law breakers are lawyers and victims are the police personnel themselves (as it happened in Delhi a few months ago and in Chennai High Court premises a few years ago). It is time that judges led actions against criminals from the front along with soldiers in internal security duties and police personnel in routine law and order maintenance.

To recapitulate, let us understand the basic tenets of jurisprudence. Three of them that comes to mind are:

- Your liberty ends where my nose begins - Justice delayed is justice denied and - Justice should not only be done but seen to be done.

That the apex court has been wavering in acknowledging the first tenet can easily be seen in the way it has handled litigation on bandhs/hartals and blocking roads. 

More than a decade or a decade and a half back it had upheld a verdict of the Kerala High Court holding bandhs illegal. I also remember a report in the media which informed the readers that the Mumbai High Court had penalized two political parties Rs 10 lakhs each for declaring a bandh in Mumbai after that. But bandhs have continued to disrupt normal life in Kerala even after that verdict. Only thing is they are being perpetrated in the name of hartals. 

Wanting to clear certain doubts I had sought the copies of the court orders from the Home Minister’s office in Kerala, under the RTI Act. The application was transferred to the Law Department, who in turn transferred it to the High Court itself. And horror of horrors, the High Court denied it claiming that the High Court rules forbade providing such information as it was part of judicial proceedings. 

Much later, the apex court had dismissed a petition questioning the declaration of a bandh in Tamil Nadu claiming that protesting was a democratic right and it could not be curbed. 

There is no doubt that the right to protest must be protected in a democracy. If nothing else, it is certainly serving as a safety valve to let up pent up emotions against injustice
being perpetrated by the government. But the important question that cannot be neglected is: why should someone protest in a manner that impinges on another citizen’s right not to protest on the issue? 

Despite failing to prevent the rights of most citizens to lead their lives in their routine manner being violated by some, the Kerala High Court issued another order- prohibiting public meetings on road sides. There being no venues earmarked for staging protests, the Kerala Government did the next best thing. In partial compliance with the court order they issued an order to regulate such meetings by necessitating the permission of the police for organizing them.  And what does the police do? They accept applications, would not give receipts or permission and allow the event to pass. And if there is trouble at the scene the organizers would have it. 

About justice being denied through denial, even the courts dare not deny it. But what we see is that the courts, read judges and advocates, only keep touting an irrelevant judge to population ratio (instead of a realistic judge to docket ratio) to palm off the blame to the Executive. They have done nothing about the tariq pe tariq (adjournments at the drop of a hat) syndrome that has become a joke among the public, or the colonial legacy of vacations that only the judiciary enjoys among public institutions even after 70 years of shedding off the yoke of slavery and the equally objectionable docket management. While the first two are self-explanatory, the last one may need some explanation. It is the procedure whereby 100s of cases are listed before every magistrate everyday and almost 90 percent of them are adjourned after mustering, that is checking the presence of the parties to the cases. 

No wonder Arundhati Roy had commented that the process in our courts is part of the punishment. Unfortunately, it is so not only for the accused (who as per law is deemed innocent till convicted finally) but also for the aggrieved/complainant/petitioner. But it was H D Shourie who had observed correctly that 'Lawyers are accused of employing delaying methods, but no lawyer can succeed if the court refuses an adjournment.' ('How long before justice comes?', The New Indian Express of 04 Dec 2004.)

Coming to the last issue of Justice being seen to be done, I must admit that such cases are becoming rarer if not extinct already. Does anybody remember any judgment that they understood to be fair and just? I do not. And that is from an observer of the performance of our judiciary for over two decades now. 

The judges always have the investigation officer, the prosecution etc to blame for their verdicts going awry. But let me ask one simple question: who is responsible for the failure of the judiciary to deliver justice in the case where a former Chief Justice of India decided that his office was not under the purview of the RTI Act? It had taken almost a decade before the apex court finally disposed of the case holding that the office of the CJI was within the purview of the Act. Who is responsible for the delay and who was the accused who was punished? We have heard of courts imposing stiff penalties on some litigants for wasting its time on ‘frivolous’ matters and dismissing their petitions. But no penalties in a case that dragged on for almost a decade in the apex court only? Just for the information of the uninitiated, the RTI Act provides for imposing a maximum penalty of Rs 25,000/- on a Public Information Officer who fails to provide the information sought even after 30 days @ Rs 250/- per day of delay. If the custodian fails to provide the information to the PIO, the Act has also declared the custodian as the PIO for imposing penalty. 

I had bought a book by the renowned jurist Fali S Nariman. It was the title that had lured me: 'India's Legal system: Can it be saved? Unfortunately, the internationally reputed lawyer disappointed me totally with no suggestions whatsoever to save our legal system. 

While I can publish a book on the quotes I have compiled about the judiciary it is my considered opinion that the failure of our judiciary has not only wreaked havoc with the rule of law in our country but it has also led to the failure of the other organs also in the matter of providing the services due to the public. Two relevant quotes are: 

Judges B. N. Agarwal and G. S Singhvi had suggested that "for the bureaucracy in the country to work without corruption, these bureaucrats need to be flogged."

Judges S. B. Sinha and Markandeya Katju, were more severe and had opined that "the only way to rid the country of corruption is to hang a few of you on the lamp post. The law does not permit us to do it but otherwise we would prefer to hang people like you at the lamppost … 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."

As an activist using the RTI Act extensively to realize the import of the law-to contain corruption and to hold Governments and their instrumentalities accountable to the governed, as set forth in its preamble- I can say for sure that if only I could have approached the courts to prosecute the information commissioners under Sec 219 of the Indian Penal Code most of the information commissioners would be behind bars not only for the rest of their lives but also for their next seven lives, @ seven years per wrong decision in a second appeal. But I dare not. Why? 

This is what the National Commission to review the working of the Constitution has 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.' 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'.

And this leads me to my worst fear. And that is the ever-widening schism between the public and public servants.  It is almost us (public) vs them (the public servants) and it certainly does not bode well for the future of the country. 

Tailpieces: 1. The apex court had promptly dismissed a petition seeking to declare CAA as legal with a snub that it was for the first time the court was confronted with a petition to declare a duly enacted law as legal. 2. In Kerala, a District Collector had charged a doctor under Sec 505 of IPC and 120 of the Kerala Police Act on a report by the District Medical Officer that the doctor had spoken on a visual media platform that she had reported about a suspected corona virus infected person to the ADMO and no action was taken by the department.

12 Mar 2020