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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