At the cost of harping,
let me repeat one fact that I am totally convinced about: our judiciary is not
merely the most failed organ of our Constitution it is an absolutely failed
organ. And this has led to the other organs also failing the citizens blatantly
and with impunity.
In an earlier part of this
series I had compared the three organs-legislature/Parliament, Executive and
judiciary- from first principles to establish that our judiciary is the best
example of the truism that power corrupts and absolute power corrupt
absolutely.
Here I shall expose why I
consider it to be an absolutely failed organ too.
There is an online
petition at https://www.change.org/p/a-citizen-s-plea-to-the-indian-judiciary-expedite-court-hearings-deliver-justiceontime
which had the support of 12,431 citizens as at 7:23
PM on 01 Mar 2022 IST. This petition was initiated by a US based friend of a
senior citizen, Anil Gidwani, 63 years old, who is on a fast unto death at Azad
Maidan, Mumbai, since 26 January 2022. That is, he is completing 35 days as I
write this. His demand, as per the online petition is that his judicial
hearings be expedited. Gidwani has property cases pending in court for over 23
years and, during the course of these 23 years, he has also invited two
contempt of court cases. These cases are pending for the last four years and he
is demanding that these should be disposed of in a time bound manner. Not
today, not tomorrow but just in a time bound manner, including a tentative date
by which the verdicts would be given. Now, may I ask: is that too much for a
litigant to expect?
I have already exposed the
falsehood of the claim of the judiciary that it is the shortage of the judges
that is leading to delays. Senior Advocate K T S Tulsi had explicitly stated,
way back in 2004, that it is not the law, not the procedure, not the paucity of
judges but sheer mismanagement that has led to cases piling up and the
consequent delays. Let me elaborate this further.
We are all familiar with
the expression tariq pe tariq or endless adjournments in our courts.
Here are two observations
made by H D Shourie ('How long before justice comes?' The New Indian Express of
04 Dec 2004):
'It is not possible for a judge to
seriously hear and decide more than two or three cases a day....no judge should
have more than 30 matters listed before him/her on a given day.'
And, 'Lawyers are accused of employing
delaying methods, but no lawyer can succeed if the court refuses an
adjournment.'
Now, even the figure 30 is
disputable, given the fact that if only two or three cases can be heard in a
day, it should not be more than 4 or 5 cases that should be listed. Of course
this will vary depending on the nature of the case but then there is no
gainsaying that even with these differences a certain number can be decided as
a thumb rule to be adopted so that not only the time of the court but the time
of the litigants are also not wasted. And when I say time of the court, I mean
just the productive time of the court because the time of the judge in the
court is not to be considered wasted.
Anil Gidwani has led the
way in quantifying the cost of his time wasted in courts due to tariq per
tariq. He had imposed a fine of Rs
2,20,000 for 22 adjournments due to various reasons, such as board
mismanagement, papers not supplied to Advocate General or the respondent,
judges absent, judges get up early, paucity of time etc. Now there may be
dispute as far as the amount of Rs 10,000/- per adjournment is concerned. But
here I need to list two facts/case laws.
One, even the Consumer
Protection Act, 1986, as amended had provided for compensating the opposite
party if any adjournment was demanded by one party and granted by the
Forum/Commission. (It is a different matter that even this specific mandate is
not complied with by the consumer courts, as they are popularly referred to,
because I had got only Rs 750/- after 3 such adjournments and persistent
demands, when the prescribed amount was Rs 500/- per adjournment.)
The next is that, in the
matter of paying compensation to the victims of the air crash at Mangalore in
2010, the carrier was initially directed to pay a flat rate to each victim. But
the courts had, irrationally and unfairly, linked it to the income levels of
the victims. I reiterate, irrationally
and unfairly, because, all the victims had paid the same fare and the fare had
not been linked to the income levels of the passengers. It, of course, implies
different compensation for different classes of passengers but not different
compensation for the same class of passengers.
I can vouch, from personal
experience, that in the lower courts, around 100 cases are listed and almost half
the limited time of the court is spend in mustering when cases are called out,
attendance of the litigants/advocates are confirmed and simply adjourned. And
that too by months, as if the litigants have nothing to do except attend the
court, once they have a case in a court.
These over-spaced
adjournments do have a serious adverse effect on the quality of the hearings
themselves, which nobody seems to recognize or at least pretend not to
recognize. It is the coherence of arguments and understanding. You may ask all
those who are stuck with some or the other serials telecast by our TV channels,
whether they would like to have them telecast every day, once in a week or once
in a month. I know of people fidgeting when there is break during just the
weekends.
Now what are the rules
governing adjournments?
The procedure and traits
of an adjournment is given under Rule 1 of Order XVII of the Civil Procedure
Code. Some of the relevant clauses are:
Court may grant time and adjourn
hearing, for reasons to be recorded in writing, provided that no such
adjournment shall be granted more than three times to a party;
The court shall make such orders as to
costs occasioned by the adjournment or such higher costs as the court deems
fit;
The hearing shall be continued from
day-to-day;
No adjournment shall be granted at the
request of a party, except where the circumstances are beyond the control of
that party;
The fact that the pleader of a party is
engaged in another Court, shall not be a ground for adjournment.
Similarly, the power to
postpone or adjourn proceedings as per Criminal Procedure Code is given in
Section 309. They are more or less the same as in Rule 1 of Order XVII of the
CPC. However, for ease of understanding, they are:
-the proceedings shall be continued from day-to-day until all the
witnesses in attendance have been examined, unless the Court finds the
adjournment of the same beyond the following day to be necessary for reasons to
be recorded;
-when witnesses are in attendance, no adjournment or postponement shall
be granted, without examining them, except for special reasons to be recorded
in writing;
-no adjournment shall be granted at the request of a party, except
where the circumstances are beyond the control of that party;
-the fact that the pleader of a party is engaged in another Court,
shall not be a ground for adjournment
And as per Anil Gidwani,
the two contempt cases against him are the results of:
One,
during the hearing of a
partition suit (2017) the judge did not give him a chance to argue his case
in a Notice of Motions, and began dictating the order. When he objected, the judge
threatened to call the police. It was countered with: “go ahead”. He did, and
also filed contempt against him.
Two, on the final day of execution proceedings in an eviction suit (2018), the
defendant tenant, who had never appeared in the matter, again failed to appear.
The judge
rescheduled the matter to the
afternoon session and the defendant suddenly appeared and obtained a stay. The
next date, Anil told the judge that he hoped that there will not be any need to
reschedule the matter. The judge got angry and he filed contempt.
Now, how many reports have
we read of judges talking from roof tops on the fundamental right to freedom of
expression? And what do these two contempt cases say of the fundamental right
of a citizen to express himself in a court while seeking justice? And let us not
make any mistakes about this, the court procedures, at the least, should
facilitate the litigants to bring their facts on record and protect their
rights guaranteed by the laws. It is not for nothing that the laws mandate that
all witnesses should be heard in the presence of the accused. Again, from
personal experience, I can vouch for the fact that even this is ensured by the
courts only in a superficial manner where the accused/defendants are kept at
the farthest end of the court while the witnesses are heard by the judge at
closer quarters.
The judges may claim that
unruly behavior cannot be permitted in the courts and decorum has to be
maintained. This obviously is not disputable. In fact, based on ground
realities, it should be recognized that it applies more to judges than to
litigants because whether petitioner or defendant, they are in the unenviable
position of almost begging for the right decision. In this context, it is pertinent to recollect
that Booker Prize winning author Arundhati Roy was punished for contempt of
court on the ground that the language used in her affidavit submitted in court
was not proper. This is what Roy had written on 02 Mar 2002 at http://www.narmada.org/sc.contempt/aroy.stmt.mar7.2002.html:
I stand by what I have said in my
Affidavit and I have served the sentence which the Supreme Court imposed on me.
Anybody who thinks that the punishment for my supposed 'crime' was a symbolic
one day in prison and a fine of two thousand rupees, is wrong. The punishment
began over a year ago when notice was issued to me to appear personally in
Court over a ludicrous charge which the Supreme Court itself held should never
have been entertained. In India, everybody knows that as far as the legal
system is concerned, the process is part of the punishment.
Shortly thereafter a high
court judge, S M Daud, had reportedly denounced her punishment (‘Arundhati's
conviction was wrong: HC judge’, PTI Mar 24, 2002; http://articles.timesofindia.indiatimes.com/2002-03-24/india/27131899_1_arundhati-roy-hc-judge-conviction). The relevant paragraph of the report reads:
Mangalore: Noted writer Arundhati Roy,
who was convicted by the Supreme Court for contempt of court, has got support
from an unexpected quarter with a high court judge saying the conviction was
"wrong". "Arundhati Roy was wrongly convicted," Justice S M
Daud, a judge of the Bombay High Court, said. The courts should accept the
criticism by the citizens, he told reporters here on Saturday. The highest
court should also be open to scrutiny by the public, he said, adding that the
courts can either refute it or justifies their actions. He also suggested that
the courts should cut down the vacation periods and working hours should be
increased to expedite the clearance of the pending cases. Roy was recently
convicted by the Supreme Court on charges of contempt of court and sentenced to
a one-day "symbolic imprisonment" and slapped Rs 2000 fine for
criticising the courts.
Quite a sane judge, a rare
breed, I must say. He not only acknowledged one basic fact of democracy but
also slammed the judiciary for its hypocrisy in the matter of availing long holidays
and short working hours when cases are piling by the day.
There is a video that has
been widely circulated on social media. It is about a judge, Kazim Ali, in
Pakistan explaining how he cut out the delays. The essence of what he said is
this:
When he reached
Gujranwala, there were murder cases pending for more than 10 years. He met the
advocates in the Bar Room and requested them for co operation to dispose of the
cases. He told them that once the trial in a case had commenced he would give
adjournment only under three conditions-one, if the judge dies, two, if the
advocate dies and three, if the accused dies. The result was within 12 months
600 murder cases were disposed of. Similarly he held a meeting with the police
officials also and explained what he expected of them. Like Senior Advocate K T
S Tulsi had asserted, this judge can also be seen asserting that the primary
causes for the backlog and delays are not the law, not the procedure, not the
paucity of the judges but is a sheer question of mismanagement.
Another interesting video
report I viewed recently on judiciary was at https://www.wionews.com/videos/gravitas-plus-3-in-4-people-in-indias-jails-are-under-trials-454641. (Gravitas Plus: 3 in 4 people in India’s jails are
under-trials, Feb 19, 2022, 08:05 PM(IST) by Palki Sharma)
One of the sample cases
she mentioned was that of Sopan Narsinga Gaikwad, a 108 year old man who died
after waiting in vain for justice for 50 years. I had the read the report at https://www.indiatoday.in/india/story/108-year-old-maharashtra-man-dies-just-before-sc-admits-land-dispute-plea-1831108-2021-07-22 and https://www.independent.co.uk/asia/india/india-oap-court-case-1968-b1888627.html but both the reports misses the crunch issues which
had been tweeted by Maheshwer Peri on 22 Jul 2021 at https://twitter.com/maheshperi/status/1418077171617202179.
Here are the tweets
(emphasis added):
This is the story of Sopan Narsinga
Gaikwad
1968: Sopan, aged 55 years, hailing from
rural Maharashtra, purchased a plot of
land through a registered sale deed. Soon he came to know that it was already mortgaged to a bank in lieu
of a loan taken by the original owner.
1969: The bank issues a notice to him on
default of loan by original owner. Sopan approaches the courts to enforce his
rights.
1982 (14 years after purchase): A trial court issues a decree in his favour.
Original owner moves court. Sopan is now 69 years old.
1987 (19 years after purchase): High court reverses the decree that favored
him. Sopan is 74 years old.
1988 (20 years after purchase): Sopan moves High court against the HC order.
Sopan is 75 years old.
2015 (47 Years after purchase and 27
years after appeal): Bombay High Court
dismisses the appeal. Sopan appeals to a larger bench. Sopan is 102 years
old.
2019 (51 years after purchase): Bombay HC dismisses the second appeal too
for delayed filing and default for non appearance. Sopan never knew his
lawyers did not appear in court. Sopan hails from Rural Maharashtra and is 106
years old now.
2021 (53 years after purchase): Sopan appeals in the Supreme Court
against the HC order. Sopan is 108 years old.
12 July 2021 (53 years after purchase):
SC agrees to hear Sopan's appeal. Sopan is 108 years old.
12 July 2021: The lawyer of Sopan
informs the court that his client has died. The information from Rural
Maharashtra took time to reach the advocate. Sopan died aged 108 years.
Sopan bought land when he was 55. He
died 53 years after he bought the land at age 108. He still doesn't have ownership
of his land and the court is still deciding his ownership.
This is the story of Sopan Narsinga
Gaikwad.
Or is it the story of Indian Judicial
system?
The case will now be
continued by the legal heirs of Sopan Narsinga Gaikwad.
But the billion rupee
question is will the reasons for the Mumbai High Court reversing the judgment
of the trial court and the reasons for the dismissal of the next two appeals be
investigated and the responsibility fixed?
And, will those responsible for the miscarriage of justice be punished,
even if they are dead, for the sake of record and acting as a deterrent for the
future?
To be continued….
P M Ravindran/
raviforjustice@gmail.com/ 01 March 2022
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