Those who have followed
this series should not be having any doubt that our judiciary is a failure from
the three fundamental principles of jurisprudence, viz:
Justice
delayed is justice denied,
Justice
should not only be done but seen to be done and
Capital
punishment should be given in the rarest of rare cases.
There are many reasons for
such failures, as claimed by those who try to defend them. These have been
covered in the earlier parts, like the brazenly illogical judge to population
ratio as a cause for delay. It has been countered with the factual judge to
docket ratio. Then there are the unwarranted holidays, short working hours and
the most ubiquitous and legally untenable adjournments, ad infinitum.
I have with me the calendar
of holidays announced by the apex court for the year 2022. There are only 230
working days. There is a summer vacation from 22 May to 10 July, Dushera
holidays from 02-09 October, Diwali holidays from 23-30 October and Christmas
vacation from 18-31 December. I know that even in America there are offices
that do not have a holiday even for Christmas. These summer and winter (read
Christmas) vacations are a vestige of colonial times when the judges used to
retire to hill stations in summer and head home to England for Christmas. Of
course, the Dushera and Diwali holidays must be our addition post independence.
But can you think of any other public offices having such long vacations? Come
to think of it, when police works 24X7, shouldn’t our judiciary be also
available 24X7?
The Lokpal, which had just
been constituted in 2019, too has only 207 working days, 146 holidays and 12
restricted holidays. Of the 146 holidays, 12-25 June is summer vacation, 25-30
September is Puja (?) holidays, 01-05 October is Dushera holidays, 22-30
October is Diwali holidays and 24-31 December is Christmas holidays. Interestingly,
this is applicable only for the Chairperson and members of the Lokpal. Just for
the record, they have nothing published in terms of disclosures under Section
4(1)(b) of the RTI Act.
There was this interesting
case of a President of the Kerala State Consumer Disputes Redressal Commission
having declared holidays for the Commission in line with the holidays declared
by the Kerala High Court. A consumer organization, Consumer Vigilance Centre,
took up the matter with the High Court and this President, a former judge of
the same high court, submitted a false affidavit that he had not made any such
declaration. Unfortunately records proved otherwise. And the judge who decided
the case just noted in his verdict that this former judge had misled the court
and closed it.
Where justice is not seen
being done, the failure is invariably attributed to the failures of the
investigating officers and/or advocates in presenting the facts correctly and
completely.
Here, I am reminded of a
quip which goes like this: anybody can make a right decision, given enough
facts; a reasonable man can make a right decision given sufficient facts and it
requires a genius to make a right decision in perfect ignorance.
We should presume that
reasonable men are appointed as our judges.
Field Marshal Manekshaw had
said the same thing is the context of army officers. That is, anybody can make
a decision and statistically he has a 50 percent chances of being right. The
process of selection improves the chances of him being right by another 50
percent. His training increases it by another fifty percent. The dedication and
competence of the troops he commands will take care of the rest.
Unfortunately, what we see
in the judiciary are preposterous assertions like: 'courts have jurisdiction to
decide right or to decide wrong and even though they decide wrong, the decrees
rendered by them cannot be treated as nullities' (Ittavira Vs Varkey (A 1964 SC
907) and 'there can be no interference in revision merely because the decision
is erroneous in law or in fact where there is no error pertaining to
jurisdiction' Misrilal Vs Sadasiviah (A 1965 SC 553). Incidentally, these were case laws quoted by the
respondents, represented by a law firm with adequate clout in judicial circles,
in a consumer case that I had pursued from a district forum to the national
commission more than a decade and a half back.
Yes, the Consumer Protection Act had been enacted in 1986 only.
That’s not all. Even in
the interpretation of the provisions of this law, there have been
inconsistencies created, purely due to lop sided logic.
In Jancy Joseph vs Union of India (1999 (1)
KLT 422), the question of applicability of Section 56 of the Civil Procedure
Code (CPC), 1908, while ordering arrests under the provisions of Section 27 of
the Consumer Protection Act (CPA), 1986 was considered by the Kerala High Court.
Section 56 of the CPC
states that, 'the court shall not order arrest or detention in the civil prison
of a woman in execution of a decree for payment of money; regarding recovery of
money from others, arrest can be ordered if it is found that the person
concerned have means to pay'.
The judge had ruled that 'I quash Ext P5 in so far as it holds that
woman can be arrested for recovery of money under Sec 27 of the (Consumer
Protection) Act and that means of judgement debtor need not be considered when
the power under S 27 is exercised for recovery of money'.
Of course, between 1908
and 1986 we had given to ourselves a Constitution that promised justice,
liberty and equality, irrespective of caste, creed, religions, sex, place of
birth etc. But granting that the CPC, 1908 is still being followed, the
question that can be validly raised is the judge’s discretion to aggravate the
discrimination on grounds of sex by asserting that the means of the judgment
debtor need not be considered when power under S 27 of the CPA is exercised.
Given that, as per CPA,
every decision, favorable to the complainant consumer would involve recovery of
money, whether in terms of refund of costs and/or compensation, this judgment
actually exempted half the population of the country- women- from the penal
provisions of the law. In other words, women could cheat with impunity and get
away with it. I can state this with
authority as I became a victim when a woman, with her husband in tow, acted as
an agent of a non-existent firm that undertook to develop a lawn in front of my
house and defaulted. (I wasted more than Rs 25,000/-, pursuing this complaint
for almost a decade beginning 2000, in the district consumer forum/state
consumer commission, for refund of Rs 14000/-)
The injustice did not stop
there.
In Mary Chacko vs Jancy
Joseph (2005 (3) KLT 925), a division bench headed by the then Chief Justice of
Kerala considered the issue of the applicability of the same Sec 56 of CPC
while enforcing the orders under Recovery of Debts Due to Banks and Financial
Institutions Act 1993 and ordered that women CAN be arrested because 'there is a clear basis for treating the
public dues different from the purely private'.
Now this raises a genuine
doubt whether the Constitution of India, by which all these luminaries swear
by, mention anywhere that justice can be denied to individual citizens? As I
see it, or as any man in his senses would see it, it is a big NO! Doesn't it
suggest that our judges should read the Preamble to the Constitution every time
they opened a case file?
As well as the Gandhi
Talisman (Recall the face of the poorest and the weakest man [woman]
whom you may have seen, and ask yourself, if the step you contemplate is going
to be of any use to him [her].) for added effect.
A report at https://www.ndtv.com/india-news/delay-in-communication-of-bail-orders-affects-liberty-needs-redressal-at-war-footing-sc-judge-2597974 (Delay In Communicating Bail Order Serious Flaw:
Justice DY Chandrachud; November 03, 2021). This was in the context of Aryan Khan, son of Bollywood superstar
Shahrukh Khan, spending an extra day inside the Arthur Road jail in Mumbai,
despite securing bail from the Bombay High Court in the drugs-on-cruise case.
Chandrachud had termed the delay in communicating bail orders to prison
authorities as a "very serious deficiency" and stressed the need to
address it on "war footing" as it touches the "human
liberty" of every under-trial prisoner.
And, there was this report
at https://timesofindia.indiatimes.com/india/can-less-heinous-offence-cases-be-dropped-asks-sc/articleshow/89463808.cms (Can less heinous offence cases be dropped, asks SC; Feb
10, 2022) where the apex court decided to examine whether the pending
criminal cases, involving less heinous offences, and in which the accused have
already spent substantial part of the sentence, be dropped by the prosecuting
agency to ease the burden on the courts for expeditious disposal of serious
cases involving heinous offences and also to prevent accused from languishing
in jail and to reduce overcrowding in jail. Forget about the gross
injustice in holding somebody as an under trial in judicial custody for such
prolonged periods, what about the horror of living forever under a cloud of
doubt for the person acquitted and the equally disconcerting state of the
aggrieved that he had not been given justice?
Equally important is the
question: can the law makers, including the judiciary, give exemption to the
police from investigating criminal cases, involving less heinous offences? Of
course, the issues of defining less heinous offences and substantial part of the
sentence will have to be addressed too. Yes, these are not as simple as they
appear. Even in the Right to Information Act the term substantial appearing in the definition of a public authority has
led to many questionable decisions by the adjudicating authorities.
Meanwhile, Anil Gidwani,
63 year old alumni of IIT Mumbai and a software engineer had to fast for 37
days before he could get an order from Mumbai High Court in the following
terms:
1. The alleged
contemnor in person submits that he is seeking only a tentative date for fixing
the matter for hearing and completion of the contempt proceedings. He has
humbly submitted that he is not expecting any time limit for fixation of the
date.
2. Hence, as far
as possible, the contempt proceeding shall commence after six months and be
completed, as far as possible, within three months.
3. Stand over to
01/09/2022.
Only time will tell to
what extent this commitment will be honored. The qualifier ‘as far as possible’
(used twice in the same sentence), notwithstanding, even the term completed
cannot be taken to mean what it usually means. To presume that the proceedings
will end with a verdict will be delusional. I do not know if the courts have
data on cases where verdicts are pending long after the final arguments are
over. But I do know that this delay can be more than even five years and the
judge might have even gone on transfer or retired, leaving the parties high and
dry. The agony of the aggrieved can well be imagined.
Here is an extract from a
report ‘India’s huge backlog of court cases is a disgrace – but Covid-19 has
provided solutions’ (https://scroll.in/article/998458/indias-huge-backlog-of-court-cases-is-a-disgrace-but-covid-19-has-provided-solutions; Jun 28, 2021):
The E-Committee of the Supreme Court has
been in existence since 2005. It has made two outstanding recommendations which
are not being followed:
1) E-filing in all courts: The committee
has made detailed standard operating procedures on how petitions, affidavits, payment
of fees can all be done electronically without lawyers or litigants having to
travel to the courts. This has been implemented in small ways and often in
absolutely perverse and wasteful ways. Many High Courts have insisted that the
petitions must be filed by email and then the paper copies must be submitted.
To make this more wasteful and interesting, the paper copies are scanned and
the “digitised” images are not used anywhere.
A lot of travel and expense would be
saved for lawyers and litigants. It would also save a lot of space in the
courts and make them cleaner and smart. A rough calculation indicates that the
courts of India require about 12,500 tonnes of paper that requires the
destruction of about 3 lakh trees.
2) Virtual hearings: Virtual hearings
have been held by courts for about two decades in a few cases. But this has
been done as an exception. The Covid-19 crisis led to the demand to conduct
virtual hearings. Whereas some courts did hold some hearings selectively, the
disposals fell dramatically, since many judges worked for less than 50% of the
time even on virtual hearings and some did not work at all.
Again, just for the
record, when the pandemic struck in March 2020, directives were issued for
lockdown and which all services will be affected fully or partly. We saw that
essential services were exempted. The health workers and police were stretched
to the maximum. While some minimal additions were provided to the health staff,
the police had to do with the existing staff. The electricity, water,
telephone, media and such services were also provided without serious problems.
When it came to courts,
the call was taken by the judiciary itself. I am not aware whether the decision
was taken considering it to be an essential service or not. But as per another
report (https://scroll.in/article/971860/covid-impact-cases-disposed-by-high-courts-drop-by-half-district-courts-by-70; Sep 04, 2020) cases disposed of by High Courts dropped
by half and district courts by 70%. The Supreme Court’s website showed only the
number of pending cases. On March 1, the Supreme Court had 60,469 cases
pending. On July 1, the latest data available, the figure stood at 60,444.
P M Ravindran/raviforjustice@gmail.com/230322
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