Sunday 25 September 2022

JUDICIAL PERFIDIES-19

 

‘Every time I deal with Indian officials I become so depressed that I almost need therapy.’ wrote Tavleen Singh in ‘India’s bureaucratic albatross’ (Posted online: Sunday , Feb 21, 2010 at http://www.indianexpress.com/story-print/582409/)

 

I do not know what she would have written had she ever visited a court in our country. To my mind, it can only be worse. One visit to the court, whether as applicant (like me seeking a court of ward’s permission to avail a housing loan by mortgaging a piece of ancestral land in the name of my children, which I had to withdraw after 4 years) or a petitioner or a respondent (as millions would vouch for) our courts evoke only negative emotions like disgust, frustration, anger etc, either one at a time or in combination, including all of them together.

 

No institution has been treating litigants as shabbily as our courts. Summoning someone, even under threat of arrest, and then adjourning the matter without progressing it one step further, is a criminal trait peculiar to our judiciary though we are used to referring to it disgustedly as tariq pe tariq.

 

The National Commission to Review the Working of the Constitution, which had submitted its report in 2002, has asserted that 'the crucial failure is the innate resistance in governments and governmental processes to the fundamental article of democracy, viz. that all power and all authority flows from the people and that all public institutions are meant solely to serve the public interest. The assurance of the dignity of the individual enshrined in the preamble of the Constitution has remained unredeemed; From this fundamental breach of the constitutional faith flow almost all our present ills.  The first and the foremost need is to place the citizens of this country at center-stage and demonstrate this prioritization in all manifestation of governance'. To be sure, we need to acknowledge that the judiciary is very much part of this governmental processes. And, from my experience and view, it is the worst.

 

I have written earlier of how our judiciary is a failure when viewed from all the 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 rarest cases. All the 18 parts of this series have been posted to the Chief Justice of India, between 10 Sep 2021 and 28 Apr 2022, at his email id (cji.office@sci.nic.in) available on the apex court’s website. I have even quoted senior advocates of our courts to trash the only reason-judge to population ratio- touted by our judges for the mounting pendency. The unconstitutional Collegium, nepotism and favoritism, the undemocratic and widely (mis)used contempt of court laws, miscarriages of justice even after the preposterously inordinate delays have all been analyzed from a law abiding ordinary citizen’s point of view.

 

The current Chief Justice of India, Mr N V Ramana, is due to retire on 26 August 2022. On 16 Aug 2022 there was report in the Hindustan Times (Rise in pendency in top court due to Covid-19 restrictions: CJI Ramana; https://www.hindustantimes.com/india-news/rise-in-pendency-in-top-court-due-to-covid-19-restrictions-cji-ramana-101660585339010.html) where in he has tried to blame the rise in pendency on Covid restrictions.  What a futile effort to wash the sense guilt in public. Of course Covid did create fear of the unknown. But then health workers (who were directly affected and subject to the worst form of threat) were working on overdrive and without even any additional compensation. So with the police. The Executive orders were clear- all essential service will continue to work. While the health workers and police worked overtime most other government services were delivered with 25 percent to 50 percent employees working regularly but in shifts. As was the wont with the Executive, here also the discretion of providing their services was left to judiciary. And the judiciary, forgetting the mountain of backlog and the criticism that it had been inviting from the public, did what they are good at- set up ‘vacation’ like bench(es) and went home.

 

The question has always rattled me- was the judiciary affected by Covid as much as the Executive organ of the Constitution? The answer has been a definite no. The interaction, both in terms of volume and proximity, by those manning executive positions in government, with the public is any day much, much more than in the case of judge/advocate-litigant interactions. While, even during normal times, there is the need for judiciary to work like the police, round the clock, there was nothing stopping the judiciary from working regularly even during the Covid times.

 

In fact it was a golden opportunity to streamline the docket management to practical levels. What we find during normal times is preposterous. The list of cases for the day is too long and almost 90 percent of the cases listed (at least in the lower courts) are adjourned during the mustering itself. The loss of court’s time and harassment the litigants suffer can easily be imagined by any rational human being.

 

The other day there was a message being circulated through social media by a litigant, a senior citizen, about to be an octogenarian, with much physical debility, whose fault was he had turned a whistle blower and exposed serious corruption in a high profile organization in which he had worked towards the end of his service. The salient points are:

-> 15 years have elapsed since the FIR, charge sheet and complaint were filed u/s 5 of the Official Secrets Act 1923.

-> 14 years back a petition was filed in a high court to quash the FIR

- > Arguments in this case were closed and judgment reserved five years back

- > After 18 months, the case was listed again for clarification.  Since then hearings are being held on technical matters.

 

And this is not an isolated case. I know the plight of another citizen who has been litigating for the pension he is entitled to. He had quit service after 18 years, with a clean record, but has been denied not only pension but even gratuity like terminal benefits only on the ground that he had resigned. His case had been tossed between the Central Administrative Tribunal and the High Court a few times and the final arguments were concluded in the high court five years back. The advocate who had been representing him had then only handed over the case file to him and asked him to wait for the judgment. And he is still waiting. Meanwhile the judge has moved to the apex court without delivering the judgment and without any qualms.  On the advice of the advocate he had written to the registrar of the high court but not got any response either. The litigant is at a loss as to how to pursue the matter further.

 

Another report of the same day states ‘Supreme Court bench of Justices DY Chandrachud, AS Bopanna sits till 6:40 pm’ (https://www.barandbench.com/news/supreme-court-bench-justices-dy-chandrachud-as-bopanna-sits-till-640-pm) Possibly remembering the old quip ‘when a dog bites a man it is no news, but when a man bites a dog it becomes news’, Chandrachud was prompt to assert, as per the report, that ‘when judges sit beyond usual court hours to hear cases, it eats into their time in chambers normally spent for research and writing judgments, and not into their family time.

While I am inclined to question the extent, if not the veracity of this claim of time spent on research and writing judgments,  I will restrict now just stating that I will believe this claim only when it is supported by data or at least on the usual time a judge reaches the court complex and leaves it.  It definitely has to be data that has been compiled and which can be verified by citizens themselves.

 

We have heard of how a trial court, in the defamation case filed by a former supreme court judge, ordered Rs 100 crores to be paid by a video news channel. The gist of the case was that while reporting about a scam involving a judge the channel telecast the photo of the petitioner. The channel, on realizing the mistake, offered apologies but the judge felt that it was not sincere. And so the case was filed. Both, the high court and apex court, refused to consider the appeals unless a certain percentage of the amount, a hefty amount, was deposited by the channel. Nothing has been heard of the final outcome though it is almost a decade since the first report appeared in the media.

 

Now here is a case where a lower court judge died in an accident, alleged to be a murder. The report at https://www.dnaindia.com/india/report-dhanbad-judge-murder-court-says-culprits-must-remain-in-jail-till-end-of-life-2976352 does not state anywhere that there was any motive for murder, if it was one. The auto driver and another person have been convicted under Sec 302 (Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine) and 201 (Causing disappearance of evidence of offence, or giving false information to screen offender) of the Indian Penal Code. Both have been sentenced to rigorous imprisonment for life without any remission and commutation till the last breath. It is pertinent to note that there was no conspiracy that was alleged or proved or punished for.

 

In any case murder cases are not uncommon in our country and unless punished with hanging till death, it is usually life imprisonment and even if life imprisonment is awarded in multiple charges in the same case they are allowed to be run concurrently. That is the maximum punishment that a convict will undergo is 14 years of imprisonment, including the time spent in jail prior to the punishment.

 

I remember the case of a school teacher in northern Kerala who was murdered in broad daylight in a class room, in front of his primary school students. The trial court had sentenced six of the accused to death. The High Court had upheld the verdict. Years later, the apex court acquitted all except one and even in his case the death sentence was commuted to life imprisonment. Meanwhile the convicts had spent almost the same time in jail and only the one whose sentence was commuted had to spent a few years more as a mere prisoner.

 

Incidentally Section 194 of the IPC provide for punishment for Giving or fabricating false evidence with intent to procure conviction of capital offence. I have not come across any report of any prosecution under this section.

 

Yes, cases have come to light even where innocents have been executed in this country, where we are told that not only capital punishment is awarded in rarest of rare cases but that even if a 100 criminals go unpunished not one innocent shall be punished.

 

Relevant extracts of a report (https://timesofindia.indiatimes.com/india/19-years-on-supreme-court-frees-man-jailed-as-minor/articleshow/93530867.cms ) dated 13 Aug 2022 are reproduced here.

 

After spending almost 19 years in jail, that too after being declared a juvenile nine years ago, the Supreme Court Friday granted a prison inmate relief and ordered his release forthwith on bail saying he could not be kept in detention any further.

 

Taking note of the Juvenile Justice Board order declaring him juvenile way back in 2014, a bench of Justices Indira Banerjee and V Ramasubramanian said a juvenile cannot be detained in custody beyond three years as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, which was in force at the material time when the incident took place, and granted him bail.

 

The life convict had to pass through a very difficult phase with 19 years in jail. He had to spend seven years in the shadow of death as he was awarded the death sentence in 2005 but it was commuted to life imprisonment in 2012 by the President. He was convicted by a trial court and awarded death sentence in the 2003 murder case. The lower court order was upheld by Allahabad HC and finally the Supreme Court. Being illiterate and not aware about law, he did not raise the defence of juvenility and neither did his lawyer at any stage of court proceedings.

 

His juvenility came to light when the Allahabad HC directed Juvenile Justice Boards to examine prisoners in jails in UP, while hearing a PIL.

 

Of course many important information is missing from the report like what was the age of the convict when he committed the crime, what was his motive, did he commit the crime alone etc etc. Still there are a number of public servants involved in getting/awarding him the capital punishment. And one thing should be clear: almost all legally binding documents begin with details including the age of the parties involved. For example, XYZ, son/daughter of ABC, age…., residing at….. So, one can see how many public servants have defaulted. But

is anybody being held responsible and punished?

 

And here is an equally bizarre instance, reported by Bar and Bench (https://www.barandbench.com/news/litigation/bombay-high-court-expresses-displeasure-at-lawyers-attempt-to-change-judicial-order-by-going-to-judges-personal-secretary).

 

In Siddhi Real Estate Developers v. State of Maharashtra & Anr, the Mumbai High Court had refused to entertain the request of the petitioner to allow deposit of 50% of the total demand raised. The petitioner’s lawyer then approached the personal secretary of one of the judges and persuaded him/her to include in the order a direction for a 50% deposit. The matter was brought to the notice of the judges and the matter was heard in open court the next day. The bench of two judges, even while observing that it was a sharp (whatever that means legally) practice, chose just to remind the lawyer that he was first and foremost an officer of the court but refrained from taking any stricter action.

 

I am reminded of a high profile case in Delhi where lawyers of the opposing parties colluded to subvert the due process of law and when caught they were just barred from appearing in the court for six months.

 

Let me conclude for now with a quip: those who can smile while things go wrong have already thought of whom to blame it on. In the case of our judges they can blame the investigators, prosecutors, the executive, the legislatures and everybody else except own responsibility for their own failures.

 

P M Ravindran / raviforjustice@gmail.com                                                       18 August 2022

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