Wednesday 26 January 2022

JUDICIAL PERFIDIES-8

 

How the quip power corrupts and absolute power corrupts absolutely fits our judiciary to the T was supposed to be the topic of this part of this series of critiques. But then a couple of reports that appeared recently in the media necessitated a detour.

 

As a prelude, here is an anecdote from the life of Adi Sankaracharya, the saint who revived Hinduism with his Advaita philosophy. He did not do this through subterfuge or by holding a sword at anybody’s neck. He did this by travelling throughout the country and engaging in debates with the best of the brains in the lands he visited.

 

During one such debate he became so used to countering his opponent that even before the opponent had finished his argument he would counter it, beginning with a ‘No, no…’. The opponent finally tried to use this against the Acharya and stated that Sankarachaya’s mother was… and promptly came the acharya’s counter with a No, no. The opponent concluded…a chaste woman. The audiences were shocked and they believed that Sankaracharya will have to accept defeat. But the acharya continued…in our society there is this habit of offering the bride to the local deity symbolically first and hence his mother could not be considered chaste. Needless to say he carried the day.

 

Why I narrated this quip here is because I seem to have got into the habit of criticizing the judiciary whenever any report appears that tend to suggest that the judiciary is doing a good work.

 

The first of these reports appeared at https://www.ndtv.com/india-news/make-a-model-scheme-to-fight-hunger-supreme-court-to-centre-2714531 (Make A Model Scheme To Fight Hunger: Supreme Court To Centre, January 18, 2022). The comments I posted online are:

Justice is an intrinsic human need. We suffer much privation but we cannot suffer being wronged. Absence of justice, we must not forget, is one of the causes of crime.

-'Needed high speed legal redressal'-Aravind Kumar, Jurist and lawyer, Pioneer, Kochi, 01 Aug 2006

 

Will the court dispose of its mountain of pending cases before telling our elected representatives what and how they should do things that people expect them to do?

 

After the ADM Jabalpur case where the court had held that even right to life is not a fundamental right during the Emergency of the 1970s, inviting criticism that the judiciary crawled when required to bend, and beginning with usurping the powers of the Executive in appointing judges to higher judiciary, the trend to encroach on Executive space by the judiciary cannot be missed. And this certainly is at the cost of using its precious time for disposing of the cases, piling up for ages, before it.

 

Coming to the report referred to above, needless to say, it is not for the centre to frame laws on this. We know even the ration system is handled by the States and the Centre has been only supporting the states whenever needed, as has been amply seen during the pandemic. In fact, in Kerala, it is popularly believed that Pinarayi Vijayan got elected consecutively for a second term by repacking the ration items provided by the Centre and passing it on as a free kit till the elections were over.  But that is not what is going to be discussed now. It’s about a case of murder that happened in Kerala, God’s own Country, touted as comparable with developed countries on development indices and what not.

 

Madhu, a mentally challenged adivasi youth was killed by a group of people at Attappady in Palakkad, Kerala on 22 February 2018. He had been accused of stealing some food items and beaten to death by people who are reportedly local (settlers). As per reports he was not even caught red handed stealing the times but pulled out from his cave like abode 4 kms away in the forest.  (The Forest Department was investigating how they had entered the buffer zone of the Silent Valley National Park without permission. But there has been no report on the result of those investigations have been seen in the media.) 

 

The case was investigated by a Deputy Superintendent of Police, supervised by an Inspector General of Police and the charge sheet had been filed against 16, for murder and offences under the SC/ST (Prevention of Atrocities) Act), as per a report dated 23 May 2018.  The horror of the crime can be imagined from the fact that the accused had filmed the assault and posted it on social media.

 

The charge sheet mentions 15 injuries on Madhu’s body. The police obtained as evidence eight mobile phones the accused had used to shoot the photos and videos of the lynching. Visuals from three CCTV cameras at Mukkali Junction and five vehicles used by the accused have also been obtained as evidence. Statements of 165 people of the locality had been recorded and 119 had been made witnesses.

 

The trial has not yet started in the Mannarkkad SC/ST Special Court in Palakkad district.

 

As per the report, dated 14/03/2019, of a Fact Finding Committee of NGOs (available at http://adivasiresurgence.com/2019/03/14/fact-finding-report-on-the-murder-of-madhu-an-adivasi-of-attapadi/),

There has been a systematic expropriation of indigenous lands of Attapadi tribes/ adivasis since the 1940s by the settlers from the plains. The land reforms and Kerala Forest Act have not in any way protected the interests of Tribal. Now, 90% tribal land has been illegally amassed by the settlers who have changed the traditional nativity of the tribal land and devastated forest lands.

The crime against adivasis from in the last decades have been on the increase and many such instances go unnoticed as there are not mechanisms to complain and seek justice.

There is a well-knit nexus between the government agents like Forest and Revenue Department and Police Department and the settlers who illegally appropriate the forest land and produces and unleashing extraordinary levels threat, fear and legal violence against the adivasis.

 

Meanwhile two reports (https://keralakaumudi.com/en/news/news.php?id=646750&u=shamsuddin-accused-in-madhu-murder-case-named-cpm-branch-secretary-revokes-decision-later-646750 of 26/11/2021 and  https://english.mathrubhumi.com/news/kerala/trial-of-madhu-murder-case-extended-again-mother-disappointed-attappadi-madhu-murder-case-trial-1.6214261 of 15/01/2022) inform us that at least one of the accused is an active member of the ruling Communist Party of India (Marxist) and the Special Public Prosecutor appointed by the Government has resigned on medical grounds. There has been no report of a new SPP being appointed.

 

It is said of crime and punishment that it is the promptness and certainty of punishment that acts as the deterrent and not the severity. And we know how the judiciary is a failure on that account.

 

Here is the data on pending cases with our courts published by Moneylife on 02 December 2021, based on data available at Supreme Court web site and the National Judicial Data Grid:

Supreme Court                              : 70, 038 as on 08/11/2021

High Courts                                   : 56, 42, 858 as on 29/11/2021 and

District and subordinate courses  : 3, 79, 42, 466 as on 29/11/2021

A report in The Hindu, dated 11 September 2020, informs us that 70% prisoners are under trials, their number has been only increasing over the years, about 28% of them are illiterate, around 40% are below Class X, about 10% are graduates/diploma/post graduates and about 2% have been in prison for more than 5 years, 3% for more than 3 years and 25% for more than one year.

Analyzing the problem, Commonwealth Human Rights Intiative, an NGO, has quoted the apex court from their judgment in Moti Ram and Ors. V. State of Madhya Pradesh (AIR 1978 SC 1594):

“The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”

And here is some data extracted from what had been obtained by an RTI activist from Uttar Pradesh in 2010 about inmates in jail:

Capacity                                        Lucknow          Kanpur             Meerut            Ghaziabad

Male                                        1920                1143                1485                1546

Female                                                180                  42                    123                  94

Non adults                               240                  60                    99                    64

Convicts (Sidhadosh)

Male                                        426                  413                  378                  455     

Female                                                0                      14                    5                      19

Non adults                               18                    6                      4                      13

Vicharadheen (under trials)

Male                                        2418                1753                1950                3461

Female                                                0                      66                    72                    108

Non adults                               100                  120                  157                  285

If you just compare the figures, particularly the ones that have been highlighted, one can observe two facts: one, the capacity vs occupancy and two, the number of convicts vs under trials. Both, to say the least, are grave injustices.  While for crowding, the executive needs to take responsibility, there cannot be any doubt about who should be held responsible for the high number of under trials being in jail (judicial custody, of course).

 

Sec 436A of the Criminal Procedure Code has specified the maximum period for which an under trial prisoner can be detained under any law, not being an offence for which the punishment of death has been specified as one of the punishments. For implementing this, a review mechanism has been set up with the following features:

Composition - The jurisdictional Magistrate/ Judicial Magistrate/ Sessions Judge will have the authority to review undertrial prisoners for purposes of implementation of Section 436A.

 Frequency - The concerned authority shall hold one sitting every week in each jail for two months, commencing from 1st October 2014.

 Function - The concerned judicial officer will identify under trial prisoners who have spent half of their maximum sentences in jail or the maximum period of imprisonment provided for the said offence under the law. The judicial officer will pass an order in the jail itself for the release of such undertrial prisoners who fulfill the requirement of Section 436A..

 Monitoring Mechanism – The report of each sitting will be forwarded to the Registrar General of the concerned High Court, and at the end of two months, the Registrar General of each High Court will submit the report to the Secretary General of the Supreme Court. The Jail Superintendent has to provide all necessary facilities for holding the court sittings.

 

But still we do get to read reports like ‘I was framed for being a Dalit, 6 years of my life were taken away from me’ (https://indianexpress.com/article/cities/delhi/dalit-identity-false-case-pocso-7495353/, September 8, 2021). Apart from the gross criminal violation of Sec 436 A of the CrPC , some parts of the report are worth a relook:

He was arrested on May 18, 2015, when the alleged incident took place.

On August 7, (2021) a Delhi court acquitted him, observing that he had been “falsely framed due to prejudicial disposition of the parents towards the accused, who belongs to the Dalit community”. 

The complainant was found to have filed a false case after the 55-year-old objected to his dog defecating outside his house in outer Delhi district.

In a rare instance, it also ordered the state to pay a compensation of Rs 1 lakh to the accused within two months, observing that this was a “symbolic amount and without prejudice to his legal rights and contentions.”

 

What needs to be relooked in the above facts are:

Why the court did not take suo moto cognizance of the crime under SC/ST (Preventions of Atrocities) Act against those who falsely framed this 55 year old man?

Why should the state (read tax payer) pay compensation, instead of those who false framed the victim and those specific public servants who investigated and prosecuted him?

What was the role of the public servant responsible for the review mechanism of under trial prisoners?

The court has stated that the symbolic amount will not prejudice the acquitted man’s legal right and contentions. Does it remind one of Pilot of biblical notoriety who washed his hands after sentencing Jesus Christ to be crucified and stated that he has no role in the sin (of convicting Christ)?

I am by no means against taking care of the poor and the government is duty bound to take care of all citizens of this country. And for a change, we are seeing positive steps being taken, since 2014, by the Union Government in alleviating poverty in the country.

 

Again, I am against doling out freebies from tax payers money. But then free LPG, rations for sustaining life etc can be considered exceptions. They can be justified in the name of bridging the disparity. But ultimately real bridging will occur only when people are made capable of standing on their own feet and it is not an act that can be done in a jiffy. And it needs resources.

 

The judiciary has been touting a brainless judge to population ratio to justify the mountain of pending cases. It doesn’t need Einstein’s brains to figure out that the population has nothing to do with the number of cases filed. So the only logical figure is the judge to docket ratio. And here is some data from a power point presentation on ‘Justice delayed
 in India’, made by Adv K T S Tulsi on 24 August 2004 at the Supreme Court Bar Association:

Cases filed in One Year (1999):   

India              13.6 Million,    USA      93.81 Million (689% more cases with less than 25% population)

Docket’s per Judge

India           987                  USA      3235 (327% more compared to Indian judges)

I would declare anybody touting the judge to population ratio unfit to be a judicial officer on account of lack of reasoning ability, a primary requirement towards logical deductions and fair judgments. It also needs to be asserted that the performance of the judiciary needs to be assessed only on the basis of how cases are handled and disposed of by the judges. (More on this, later.) Whereas this logic does not apply to the Executive which can certainly be constrained by resources. For example, you cannot assign a group of 10 policemen to control a (violent or at least unpredictable) mob of 100. Not even 50 with lathis.

 

KTS Tulsi has unequivocally asserted that the primary causes of delay are:

Ø  Not the law

Ø  Not the procedure

Ø  Not the paucity of judges

Ø  Sheer question of (mis)management

 

The second of the reports I had mentioned at the beginning of this part is ‘Hate speech a criminal act; ruling party endorsing it: Former Supreme Court judge Justice Rohinton Nariman’ of 19 January,2022 available at https://www.mid-day.com/news/india-news/article/hate-speech-a-criminal-act-ruling-party-endorsing-it-former-suprem-court-judge-justice-rohinton-nariman-23210323.

 

The comments I had posted is:

Worse than hate speeches by fringe elements of the society are judges who do not know the law they are supposed to interpret logically and convincingly and those who spread lies.

Rohington Nariman was part of the bench that delivered the controversial Sabarimala judgement in the matter of entry of women of all age groups. The fact is that it was not a gender based discrimination as made out by Rohington Nariman. If any it was only age based, because not only are women allowed they are allowed irrespective of their caste, creed or religion. For that matter long before the judiciary recognized the rights of LGBT communities, there had been no ban on entry of even those of these communities in Sabarimala. Worse, when the apex court decided to look at gender based discrimination prevailing in all religions, Rohington was the first to murmur in disapproval.

And now he is also lying about the top echelons of the ruling party endorsing hate speeches. If he has proof he should go back to court and prosecute those whom he is castigating in public. By the way, his father, world renowned lawyer, has authored two books- one is 'India's Legal System: Can it Be Saved?' and the other is 'God Save the Hon'ble Supreme Court'

 

Sabarimala verdict and similar judgments will be discussed in detail subsequently. But Fali Nariman’s books, just the titles by themselves, are sufficient to question the credibility of the judiciary as a whole, the apex court being no exception.

 

I had purchased and read India's Legal System: Can it Be Saved? with great expectation and was certainly disappointed in not finding a definite conclusion or even suggestions to rectify the perceived and experienced wrongs. The only value for money I got was a quotable quote: 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. But any litigant who had approached a court for justice would have learnt this sad and horrible truth from his own experience.

 

In fact, not only have the courts themselves failed in their assigned task of dispensing justice, they have also provided ground for other unscrupulous elements in the other organs of the Constitution to exploit the unsuspecting, hapless, ordinary citizens. The quasi judicial organizations are typical examples of such institutions that have also grossly failed the people they are tasked to serve. Here, one is reminded of Schopenhauer's Law of Entropy. It states that If you put a spoonful of wine in a barrel full of sewage, you get sewage. If you put a spoonful of sewage in a barrel full of wine, you get sewage.

 

As a layman, but a fairly alert one at that, one is conscious of many elements within the country working against its interests. But when former judges, especially of the apex court, start casting aspersions on the ruling dispensation, based on their warped perceptions of history and legality, then they take the credibility and integrity of the judiciary itself to new lows. The potential harm it can do to the rule of law can well be imagined.

 

A Lord Chancellor of England has been quoted as “Gentlemen are required in the judiciary and some knowledge of law is an advantage”.

 

Amen to that and wish that the judges recollected this quote every time they opened a case file.

 

P M Ravindran/raviforjustice@gmail.com/230122

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