One of the first things
that I did while settling to a retired life, almost a quarter century ago, was
to buy an annotated copy of The Constitution of India, supposedly the most
voluminous book on the subject in the world. I have always had this gut feeling
that the fruits of sacrifices of the millions, during the freedom struggle that
lasted almost a century, had been whisked away by one family. Some crumbs had
been thrown to its courtiers, functioning as government employees, but the
masses have certainly been left out.
Winston Churchill while
opposing grant of freedom to our country had said: “Power will go to the hands
of rascals, rogues, freebooters; all Indian leaders will be of low caliber
& men of straw. They will have sweet
tongues & silly hearts. They will
fight amongst themselves for power & India will be lost in political
squabbles. A day would come when even
air & water would be taxed in India.” While Churchill had certainly underestimated
the core strength of this nation and its people, his successor Clement Atlee
cannot be blamed for not trying to make it prophetic by handing over the reins
of power to Jawaharlal Nehru, the one who usurped the Prime Minister’s office
after losing badly to Sardar Vallabhai Patel, through the first electoral
manipulation in the nation’s history.
It did not need very long
for me to realize the incongruities between what has been promised in the
Preamble and what has actually been provided in the main text. It really set me
wondering whether it was simple incompetence or a deliberate mash up by those
who had written it and approved it. In fact, even the apex court had not
accepted the Preamble as part of the Constitution initially and had accepted it
after 12 years holding its first decision wrong. Then one had just passed it
off as one of the flip flops that one is used to hearing about judicial
verdicts. Thereafter, my perspective changed and I wouldn’t blame the judiciary
for its initial conclusion because that is the extent of incongruities between
what has been promised in the Preamble and what has been delivered through the
details. And, it has been worse when translating words into actions.
It was much later that I
read the revelation by none other than the acclaimed architect of the
Constitution, Dr B R Ambedkar himself. On 2nd September 1953, he made a
confession in the Rajya Sabha that “People
always keep on saying to me, so you are the maker of the Constitution. My
answer is I was a hack. What I was asked to, I did much against my will. I am
quite prepared to say that I shall be the first person to burn it. It does not
suit anybody.”
But, even before that, in
the Constituent Assembly of India on 19 November 1949, Seth Damodar Swarup had said,
'this Constitution may be the biggest and
bulkiest constitution in the world, may even be the most detailed one, it may
be heaven for the lawyers, and may even be the Magna Carta for the capitalists
of India, but so far as the poor and the tens of millions of toiling, starving
and naked masses of India are concerned, there is nothing in it for them. For
them it is a bulky volume, nothing more than waste paper.'
History has proved Seth
Damodar Swarup true. It is only after a former tea seller gained access to the
most powerful office of the land that things have started to look up at least
for the poor and the tens of millions of
toiling, starving and naked masses of India. But it is certainly a long
haul, what with Narendra Damodardass Modi having to work with the rusted tools-
the bureaucracy and judiciary- he has inherited with his office.
Since this critique is
about judicial perfidies we will leave the bureaucracy for now. But it needs to
be asserted that this series cannot be complete without mentioning how the clerks
have been exploiting and continues to exploit the failure of the judiciary, to
the hilt.
We are all used to blaming
our politicians for everything going wrong in this country and it is rightly
so, given that we are touted as a democracy and the people we elect, through
periodical elections, have to be ultimately held responsible for the overall
governance. The politician-bureaucrat-criminal nexus has even been the subject
of official studies. The Vohra Committee Report of 1993, post the Mumbai serial
bomb blasts, is available at
https://adrindia.org/sites/default/files/VOHRA%20COMMITTEE%20REPORT_0.pdf.
More recently, in December
2020, the apex court dismissed a plea seeking a Lokpal-monitored investigation
into the "criminal-political nexus"
as flagged in the 1993 Vohra Committee report, saying the prayers are all "utopian". By the way, Lokpal is a
judiciary- headed, judiciary-heavy (the chairperson is a retired Supreme Court
judge, half of the eight members are either retired Supreme Court judges or
Chief Justices of High Courts) anti-corruption authority at the national level since
March, 2019. But has anybody heard of any result of its activities? Or, of the
Lokayuktas in the states, which have been in existence for a much longer
period?
Before proceeding further,
here in a nut shell is what I have concluded from a study, from first
principles, of the Constitution and the performance of its three organs over
the years.
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 (by
the law makers), 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.
However, of all the people
constituting the three organs, the law maker, politician, is the only one who, at
least once in a couple of years, actually comes to the people and presents a
balance sheet to them. It is for the people to evaluate their candidate
objectively and choose the right one. How the people in the other two organs
have failed the voting population in accessing the data that would facilitate
informed decision making shall be covered separately. However, even after being
elected, the fact remains that NO politician can be corrupt, or do anything
wrong, without the active support of a bureaucrat. Then there is the media
always on the prowl looking for news to slander the politicians. And ultimately
the politician can always be hauled up before a court even by any citizen.
Though it is the President
of India who is the Head of State and the Executive, but, unfortunately, it has
been reduced, practically, to a ceremonial office. It is the bureaucrat who is
the main stay of the Executive. While he provides continuity in governance and
is responsible for delivering government services to the people, he is actually
a behind the scene operator and the real power broker. By twisting facts and
laws he can actually make the politician policymaker, a puppet. Of course, he
can be seen using the same ploy for not performing himself. But, officially at least,
he is supervised by the politician, the courts and the media!
Coming to the judiciary,
judges enjoy a lot of immunity. In the case of higher judiciary it goes to the
preposterous extent of absolute immunity! I need not highlight this further as
the media is so full of reports about the crimes committed by judges and the
existing system looking helplessly on! P D Dinakaran, Soumitra Sen etc cases
have been covered in an earlier part of this series. The provision of
impeachment is a fraud. It is as good as promising free medical aid on the moon
to any poor patient who can transport himself there, at his own cost! Nowhere
is the truism 'power corrupts, absolute power corrupts absolutely' more evident
than in our judiciary.
While being taught about
the Constitution and its three organs in school, we had been told, that there
are enough checks and balances between the various organs. But a cursory
reading of the Constitution will reveal that it is not so.
My study tells me that
Articles 129 and 215 of the Constitution are the most obnoxious provisions that
can be imagined in a document that lays down the frame work for a democratic society
with rule of law as its cardinal principle. These articles are reproduced for
ease of understanding:
129. The Supreme Court shall be a court
of record and shall have all the powers of such a court including the power to
punish for contempt of itself
215. Every High Court shall be a court
of record and shall have all the powers of such a court including the
power to punish for contempt of itself
The
short and crisp provisions may only have been intended to be a deterrent for
those likely to take the verdicts of the courts lightly. But still, the prosecutor and judge being the same is not
only anathema to the concept of justice but also questionable for its very rationale.
As James Madison, often referred to as the Father of the Constitution in the U S of A, put it, No
man is allowed to be a judge in his own cause; because his interest will
certainly bias his judgment, and, not improbably, corrupt his integrity. With
equal, nay greater reason, a body of men are unfit to be both judges and
parties at the same time.
The Contempt of Court Act,
1971 aggravated the situation by defining contempt with a broad brush in the
following manner:
2. Definitions.—In this Act, unless the
context otherwise requires,—
(a) “contempt of court” means civil contempt
or criminal contempt;
(b) “civil contempt” means wilful
disobedience to any judgment, decree, direction, order, writ or other process
of a court or wilful breach of an undertaking given to a court;
(c) “criminal contempt” means the
publication (whether by words, spoken or written, or by signs, or by visible
representations, or otherwise) of any matter or the doing of any other act
whatsoever which—
(i) scandalises or tends to scandalise, or lowers or
tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere
with, the due course of any judicial proceeding; or
(iii)
interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner;
As far as civil contempt
is concerned it is more or less catered for under Sec 188 of Indian Penal Code
which deals with Disobedience to order
duly promulgated by public servant.
Interfering
with and obstructing judicial proceedings or administration of justice is
beyond the scope of anybody other than advocates and judges. That leaves the
issue of scandalizing and/or lowering the authority of any court. Here again,
strictly speaking, it is only the conduct of the judges and advocates that can
scandalize or lower the dignity of the courts.
When four judges get together to address a press conference, that too
during working hours when they should have been in their respective courts, and
casts aspersions of the then Chief Justice of India himself, literally
questioning his very integrity, without even substantiating them and knowing
well that there was nothing that the public could do about their allegations,
and they get away with it, that is when the courts are scandalized and their authority
is lowered.
The courts were
scandalized even when an advocate in Kerala was arrested for misbehaving with a
woman in public, the advocates united to protest, manhandled media persons and
even locked up the press room in the High Court complex for a prolonged period.
We
are aware that our jurisprudence is based on some premises like even if a thousand criminals escape one
innocent shall not be punished and capital
punishments are awarded in the rarest of rarest cases. In spite of this the
Supreme Court itself had admitted in 2009 that it had wrongly sentenced 15
people to death in 15 years. In 2012, 14 retired judges wrote to the President,
pointing out that since 1996 the Supreme Court had erroneously given the death
penalty to 15 people, of whom two were hanged. (‘You were wrong, My Lords’, 02
August 2015, https://www.telegraphindia.com/7-days/you-were-wrong-nbsp-my-lords/cid/1314002) Did the judges offer any apology? Was any
compensation offered to the families of the victims? No? Haven’t those judges scandalized
and lowered the authority of the courts?
And now, on 18 January 2022, we get to read a
report at https://www.asianetnews.com/amp/india-news/bombay-hc-commutes-death-sentence-to-sisters-who-killed-children-r5wjzt according to which the Mumbai High Court has ruled that the indefinite delay in the mercy
petition could not be accepted at a time when communication was so fast due to
advances in technology but rejected the demand of the accused to be
released. The facts pertaining to the case are:
Renu
and Seema, two half-sisters, were arrested in 1996 in connection with the kidnapping of 13 children and the
murder of nine of them; their death sentence was upheld by the Supreme Court in
2006; mercy petition to the
President has been pending since then. Following the commutation of death
sentences of the convicts in Rajiv Gandhi assassination case, on grounds of
delay, in 2014, the convicted
sisters approached the High Court for reprieve which has now been partly granted.
Is
it some good (or bad) fall out of the letter written by 14 retired judges in
2012? Give me a reason for believing it is not. But what is striking is the
delay from award of death sentence by the trial court to its confirmation by
the apex court and even in disposing the petition for reprieve. Wasn’t this
issue of commutation of death due to delay in decision on mercy petition
another encroachment of executive jurisdiction by the judiciary? What we have to acknowledge here is another
simple fact- for the politician every decision has a political angle to it and
it is always guided by the assessment of how people will react to such
decisions. For the courts, it is not so. And that is what they have been
claiming too in public.
Contempt
of court for scandalizing and lowering the authority of the court is a
provision that has been used as a Damocles sword on the freedom of speech and
expression guaranteed under the Constitution. It has been used more than civil
contempt for disobeying the orders of the courts. But even here the waywardness
is evident when almost always ordinary citizens are hauled up and not everyone.
While Karnan’s case has proved that even sitting high court judges can be
punished, we have read enough reports of many members of the judicial fraternity
committing such offences and getting away with it.
Articles
124(4), 124(5) and 218 which provide for only removal of judges of Supreme Court
and high courts through impeachment and Articles 129 and 215 which provide for
contempt of court are surely against the principle of equality enshrined in the
Preamble of the Constitution and in violation of Articles 14 and 19 of the same
Constitution. It is interesting to note that Article 19 had been had been
amended for the first time in 1951 itself to restrict freedom of speech and
expression in the matter of contempt of court while its restriction in the
matter of sovereignty and integrity of India was included only in 1963. But there can be no doubt that the overall
effect has been to make our judges unaccountable and hence that much less
credible.
Writes
Jay Bhattacharjee in his book Resurgent Bharat:
“In a long and disjointed judgement, the
bench ordained that any criminal case against a Supreme Court or High Court
judge would be registered only after the President sanctions the prosecution,
after consulting the Chief Justice of India (CJI) and in accordance with his
advice. The overt logic for this decision was that the higher judiciary
required protection from any executive interference... Let’s be very clear. This was a veritable
coup against the Republic’s citizens.”
There is this case of Ajit
Kumar Sengupta, a judge of the Kolkatta High Court, to prosecute whom
permission was sought from the then Chief Justice of India, Venkatachaliah, who
was well known for his integrity. However, even Justice Venkatachaliah did not
give permission. The strength of the evidence can be gauged from the fact that Sengupta
was raided and arrested soon after he retired because after retirement,
permission of CJI was not required.
A report at https://www.business-standard.com/article/specials/a-calcutta-scandal-197050601041_1.html
((‘A Calcutta Scandal’, 27 Jan 2013) concludes with the following assertions:
Justice Senguptas career represents
only an extreme case of the freedom under which our judiciary functions. This
freedom was guaranteed by our Constitution to safeguard its integrity. But as
Justice Sengupta proved, the constitutional guarantee equally extends to
arbitrariness, and even to lack of integrity. The judiciary faces little
scrutiny from the media, which are mortally afraid of being charged with
contempt of court. No one outside has the power to discipline it, and its own
mechanisms of self-discipline are woefully inadequate. Only the judges can
reform the judicial system. They should make a beginning.
Is anybody aware
of any beginning being made? I am not. In fact I am not only aware but
convinced that even in the subversion of the Right to Information Act, the role
of the judiciary has been anything but commendable. Difficult to believe? Here is just one example.
The Right to
Information Act, 2005, which became law on 15 June 2005, mandates that all
public authorities disclose certain basic information of their organization as
per Section 4(1)(b). This was to be done within 120 days from the enactment of
the Act. I have been using compliance with its sub sections (ix) and (x) as a
yardstick to measure the transparency of common public authorities. These sub
sections require disclosure of
(ix) a directory
of its officers and employees;
(x) the monthly remuneration
received by each of its officers and employees, including the system of compensation
as provided in its regulations;
As on 09 April
2021 when I tried to access these details I could not find details for the
judges but the details of Secretary General and below were available under the Compliance under
Section 4(1)(b) of Right to Information Act, 2005 option.
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