from: Ravindran
P M <raviforjustice@gmail.com>
to: supremecourt@nic.in
date: Aug 17,
2021, 8:22 AM
subject: CJI's
comments on Parliament- a case of pot calling the kettle black?
Mr Chief Justice of the Supreme Court of India,
This has reference to the report 'It’s a sorry state of
affairs in Parliament, there’s no clarity in laws, CJI Ramana says' at
https://theprint.in/judiciary/its-a-sorry-state-of-affairs-in-parliament-theres-no-clarity-in-laws-cji-ramana-says/715558/
I was appalled by your observations about our Parliament,
considered the sanctum sanctorum of our democratic society.
Of course there is a lot desired in the functioning of
our elected representatives. But I once did an analysis based on first
principles of the functioning of the three organs on our Constitution and these
are my conclusions:
Law-makers without any prescribed qualifications,
qualities or experience, law enforcers with all the scope for distorting and
manipulating data required to aid decision making and justifying wrong actions,
without any accountability and the law interpreters with all the leeway for
making whimsical and wayward decisions without even the fear of being
questioned sums up the gifts of our Constitution.
Among these three organs of our Constitution the
law-makers are (theoretically, at least) controlled by the people, bureaucracy
(yes, bureaucracy, because without the active support of the bureaucracy no
politician can do any wrong!) and finally the judiciary; the law-enforcers are
also controlled by the law-makers and the judiciary. And then there are the
ears and eyes of the people- the media- waiting to sensationalise every news
involving the misdemeanour of these authorities. In spite of such strict
supervision and control all that we can hear these days are about
politician-bureaucrat-underworld nexus even though the fact remains that none,
worth the name, from this unholy nexus have ever been punished by the
holier-than-thou judiciary.
So now think how bad a system can be which is not only
NOT subject to supervision but also kept beyond critical observation. Well
isn’t our judiciary just that? And do I need to recapitulate that quip: power
corrupts and absolute power corrupts absolutely?
Way back in 2002, I had written an article 'Democracy?
East is East and West is West...' and under Crumbling Pillars of our
Constitution I had written:
Legislature and Executive. To blame the politician alone
will be unfair. In fact, I, for one, still consider him a shade better than the
members of the other two organs of our democracy- the executive and the
judiciary. Theoretically speaking, all these organs are supposed to be
independent and expected to provide necessary checks and balances in wielding
power. However, though the politician has practically succeeded in making his
will prevail over the other two, he remains the only one with some
accountability for his actions too. At least once in five years he has to get
back to the people and explain to them his conduct and contributions to
society. The head of the executive, The
President of the Union, is almost dismissed as a rubber stamp! And the
administrators under him have been reduced to being His Masters’ Voices! Or is
it so? When Mr Ram Jethmalani was a Union Minister he went ahead and ordered
that the records in his ministry be made available to the public for scrutiny
and also that they could get a copy for a nominal fee. This happened long after
the Right to Information Act was first discussed and, as usual with such laws
that tend to bring transparency and accountability in the administration, was
silently put in cold storage. It was reported in the press that the Minister’s
orders were left confined to the paper it was written on because his Secretary
got the Cabinet Secretary to issue directions that the minister’s orders need
not be complied with till the Right to Information Act was passed! Yes, our
bureaucrats in administration are not all that innocent. In fact, they are
having the best of both worlds. Authority without accountability, power without
responsibility! Their mindset is still the same as that of the government
employee of the colonial era, but they now have the added advantage of
remaining in the shadows of their political bosses and pulling the strings from
behind, to serve their own selfish ends. There are exceptions like Alphonse
Kannanthanam, Sukumar Oommen, and Arun Bhatia. But they remain exceptions. The
very fact that they have risen to the positions where they are today should be
seen as the Lord Almighty’s small little mercies for the oppressed of this
country. The system certainly is with the devil.
Judiciary. But even the administration is a shade better
when compared to our judiciary! ‘Justice delayed is justice denied’ is a maxim
that one learnt in primary school. So imagine the state of affairs when even
under-trials are left languishing in jails for 30 or more years. When even a
life-convict is expected to be kept in jail for only 14 years or less, just
imagine the horror of spending so many years in jail as an under-trial in a
case where the maximum punishment could be just a few months! Here is a report
by Swaminathan A Aiyer –‘Three liquidation cases in the Calcutta High Court
remained pending for more than 50 years. And India can boast of the longest
legal dispute in history- a land dispute in Maharashtra lasted 650 years! If no
new cases at all are registered, says Debroy, the courts will take 324 years to
dispose of the backlog at the current rate of clearance.’ And this, when only
50 percent of the population is literate and the majority of the population is
simply worried where their next meal is going to come from! Agreed that, as
usual, resources needed are far more than what is available. But to accept that
and rest the case would be nothing but a fraud. And this is what Justice V R
Krishna Iyer has written in ‘Justice and Beyond’: ‘Why, in Gandhian India, are
sentencing provisions and practices sadistic and retributive, judges and
administrators dismissing as hawkish muck therapeutic and corrective
alternatives? When do we hope to modernize, humanise and democratise our legal
system and tune it up to to Third World conditions?’
Rule of Law not Rule of Judges. The mainstay of any
civilized society, leave alone a democracy, is the rule of the law. For any law
to be effective it should, first of all, be simple, clear and unambiguous. The
affected people should understand it and imbibe it in letter and spirit. The
need to go to courts to get interpretations for each and every clause certainly
doesn’t speak well of the competence of our legislators. And worse, when the
judiciary interprets the same law to mean different, sometimes even
contradictory, things under different contexts, the public can only get
confused and confounded, as they are now. In this context it would be worth
recalling that confusion had prevailed even in recognising the preamble of our
Constitution as an integral part of it! In 1961, the Supreme Court had observed
that ‘the preamble is not part of the Constitution’, but in 1973, it held that
‘the preamble of the Constitution was part of the Constitution and the
observations to the contrary in Berubari Union case were not correct’! Our
present Union Minister for Disinvestment, Mr Arun Shourie, has done yeomen
service in compiling a number of intriguing cases in a book titled ‘Courts and
their judgements’. At the function held to release the book he also made a
tongue-in-cheek suggestion: that there should be a group of scholars reviewing
all sensitive rulings of the higher courts so that the judges were also careful
that their judgements were subject to scrutiny! And this is what Ms Arundhati
Roy, Booker-prize winner, has said: ‘the process of the trial and all that it
entails, is as much, if not more of a punishment than the sentence itself’.
Subsequently, in 2004, I wrote to the Chief Justice of
Kerala High Court. Therein I had dealt with the following issues: Contempt of
Court Act – anathema to the very concept of democracy, Judicial accountability
and the National Judicial Commission, Judicial Accessibility, Listing of cases,
Personal appearance of litigants/representatives, Involvement of advocates,
Citizens’charter and working hours, Grading of advocates and establishing norms
for fees and Irrationality and unfairness of decisions. Copy of this letter was
endorsed to the then CJI also among others like the President of India and the
Prime Minister.
In 2005 I had posted an online petition at
http://www.PetitionOnline.com/jrandac1/petition.html. It was addressed to the
President of India and the Prime Minister and essentially sought to constitute
a National Judicial Commission to try and punish guilty judges as under:
The Commission should have powers to receive complaints
against judges from any citizen of this country.
The Commission should have judicial powers but should
have only one member from the legal profession as in army court-martials.
The Commission should have total powers and resources to
investigate the allegations independently.
The Judge against whom allegations have been made should
be deemed suspended once investigations have been initiated.
The trial should be concluded within three months of
initiating the investigations.
The punishment should be a deterrent. It should have at
least twice the severity as would be applicable for a non-legal person
convicted for the same offences.
The only appeal permitted should be to the President of
India who will dispose of it on the advice of the Vice-President, PM, Speaker
of the Lok Sabha and the Leaders of the Opposition in Lok Sabha and Rajay
Sabha.
429 citizens had supported it.
Today, with almost 20 years behind me, espousing the
cause of judicial reforms, I can state with total conviction that I am
continuing to look for a judgement that would pass the litmus test based on the
following principles of jurisprudence:
One, your liberty ends where my nose begins
Two, justice delayed is justice denied
Three, justice should not only be done but seen to be
done.
To conclude, let me quote from the report of the National
Commission to review the working of the Constitution (a judiciary headed- a
former CJI was the head, judiciary heavy- of the 11 members 6 were from the
judiciary, body.) It has unambiguously stated that '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 examples to substantiate
it are plenty.
Will the judiciary set its own house in order before
casting aspersions on everything around them?
Yours truly,
P M Ravindran
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