JUDICIAL PERFIDIES-20

 There was a report at https://timesofindia.indiatimes.com/india/we-are-answerable-to-the-constitution-and-constitution-alone-cji/articleshowprint/92615487.cms?val=3728  (We are answerable to the Constitution and Constitution alone: CJI;    Jul 2, 2022)

 

It really was shocking for two reasons: the first, of course, was denigrating the democratically elected government in foreign soil because the CJI was speaking at a felicitation organized by the Association of Indian Americans in San Francisco; and two, the stupidity evident in the assertion ‘We are answerable to the Constitution and Constitution alone’. And for the Chief Justice of India to expose his ignorance like this is unpardonable.

 

This is what he had said, as per the report:

 

-> With the change in government, policies do change, however no sensible government would alter the policies to slow down the growth of its own territory. Unfortunately, we do not come across such sensibility and maturity in India too often, whenever there is a change in government.

-> We still haven't learnt to appreciate wholly the roles and responsibilities assigned by the Constitution to each of the institutions. The party in power believes that every governmental action is entitled to judicial endorsement, and the Opposition expects the judiciary to advance their political positions and causes.

-> It is the vigorously promoted ignorance among the general public which is coming to the aid of such forces whose only aim is to run down the only independent organ, .i.e. the judiciary.

-> Principle of inclusivity is universal. It needs to be honored everywhere in the world, including in India.

Now, the following questions arise:

1.      What did the CJI mean by altering polices to slow down the growth of its own territory? Growth of territory has only one implication- aggression.  Is there anyway one can interpret what he has said to mean growth of the people of the country? I have heard of Dr Rajendra Prasad, first President of India, having made an observation that a country is not its land, its hills or rivers or its deserts and forests, but its people. When the fact is so simple why did the CJI opt for such a term that has a totally different meaning the way he has used it? Can it be attributed to lack of knowledge of English and dismissed?

2.      Hearing the CJI taking about sensibility and maturity of the people in government was preposterous. He is heading an institution where judges have been availing unwarranted holidays oblivious to the cases piling up every day, and flouting even the laws that limit adjournments leading to citizens languishing in jails as under trials for periods longer than the periods for which they would have been sentenced if convicted and some getting acquitted after decades of such incarceration (when even those convicted of murder get a maximum of 14 years, unless, of course, the victim is a judge!). Isn’t it a case of charcoal calling the cheese black?

3.      Does every party in power believe that every governmental action needs judicial endorsement? I was, and still am, under the impression that it is the judiciary that has been claiming that every act of the government is subject to judicial review. And we have seen how the judiciary had usurped the power of the Executive to appoint judges (coincidentally, when there were weak coalition governments at the Centre) and constituted an unconstitutional collegium of judges to appoint them. The nepotism ushered in thereafter is now the talk of the town, with even judicial pundits demanding a change. Even a constitutionally enacted National Judicial Appointments Commission Act was trashed by these very judges, with at least one of them dissenting.

4.      And here comes one of the biggest bloomers- It is the vigorously promoted ignorance among the general public…. Coming from the head of an organ that has been in the forefront of subverting even the Right to Information Act, I can only ask: what cheeks!

5.      The Right to Information Act was enacted with the explicit purpose of promoting transparency and accountability in the working of every public authority but the judiciary has, through the rules promulgated by the Chief Justice(s), officially kept its judicial functions out of purview of this law. Worse, it introduced a fee of Rs 500/- as application fee (when it is only Rs 10/- for every other public authority) and Rs 5/- per page of photostatted information (against Rs 2/- by other public authorities). And there was even a fee for appeal. Though these have been changed thereafter, it is still to comply with the mandated proactive disclosure of certain information specified in Section 4(1)(b) of the Act. I leave it to the readers to access the information, pertaining to judges, that are disclosed against Section 4(1)(b)(x) of the Act.  For ease of understanding this is reproduced here: the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations. It is pertinent to state here that this information pertaining the remaining officers and employees (What is the difference between them? Aren’t the officers employees?) is available at the web site of the apex court in a reasonable format, though not exactly as is expected. But even that is not the case with some high courts.

6.      And, what should one make out of …such forces whose only aim is to run down the only independent organ, .i.e. the judiciary? Can any institution of governance (and there should not be any doubt that the judiciary is very much an institution of governance with specific tasks assigned to it by We, the People, through a written Constitution) be absolutely independent, the way N V Ramana has made it out to be? Doesn’t he know the meaning and import of the term democracy? In any case, the National Commission to review the Constitution (a judiciary-headed, judiciary-heavy body), in its report submitted in 2002, had unambiguously stated that the highest office in a democracy is that of the citizen.

7.      On the pontification about inclusivity I shall repeat just one question, posed earlier by Dr A P J Abdul Kalam, when he was the President of this country: why is it that when all the scams reported in the media are of the order of crores of rupees, all the under trials in the jails are from the poor and marginalized sections of the society?

 

We recently had the horror of two judges of the Supreme Court throwing a petitioner to the wolves and making off the record comments that can be seen as only insane. Nupur Sharma, then a spokesperson for the ruling party at the Centre, was provoked, on a talk show, by a Muslim participant, to retorting with quotes from the holy books of Islam. Another Muslim, a journalist at that, edited the video and spread it on social media with a false assertion that she had spoken blasphemously. It was enough to flare up communal passions and many threats, including on Nupur’s life, were issued both from within the country and without.  There were many First Information Reports filed all over India too against the petitioner and the petitioner’s only plea was to combine all of them and transfer them to a court in Delhi, where the first case had been filed. When the law itself is clear that an accused cannot be punished for the same offence more than once, it was a reasonable requirement and with precedences galore, it should have been disposed off within 15 minutes. But that was not to be. Not only was the petition dismissed but the comments made by the judges had literally, to my mind, dug the last nails on the coffin of judicial reliability and credibility.

 

Meanwhile, in the case of Zubair, the Muslim journalist who caused the communal flare up which resulted even in a few murders in different parts of the country and had different cases in different parts of the country, was given the benefit of getting all the cases clubbed and transferred to Delhi.

 

Interestingly, I haven’t come across any report against the one who had provoked Nupur by talking blasphemously about Lord Shiva and other Hindu gods.

 

Radha Rajan, a political thinker and author, writing on ‘High Court and Supreme Court ‘jallikattu’ the PCA Act’ (http://www.vijayvaani.com/FrmPublicDisplayArticle.aspx?id=2195; 21 Feb 2012) has stated that '...for judges of the Madras High Court and the Supreme Court, the PCA Act is a dog is a monkey is a bear is an elephant; intriguingly, a dog is also not a dog on another day.'

 

Whenever we talk of judiciary in India it is invariably about delays, tariq pe tariq (adjournments, ad infinitum) arbitrariness, lack of transparency and, accountability, pending piles of cases, summer, winter and festival holidays, uncle judges, bench hunting, docket hunting,. And the judges have only one blasphemously illogical judge to population ratio to blame for all these shortcomings/evils prevailing in the system.

 

It is my experience that every facet of judicial functions needs to be revisited.

 

To begin at the beginning, one need to ask when judges are supposed to know the law and the litigants the facts, why should there be advocates, as middle men, in our courts? As renowned constitutional expert Fali S Nariman stated in his book ‘India’s legal system: Can it be saved?’: 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. The requirement of a level playing field is ab initio violated.

 

Ban on advocates in courts would also reduce the need for avoidable adjournments. HD Shourie, writing in the New Indian Express on 04 December 2004, had stated: 'Lawyers are accused of employing delaying methods, but no lawyer can succeed if the court refuses an adjournment.'

 

Law qualified citizens need not fear unemployment because they should be given licenses to act as arbitrators/mediators, which should be the first level of resolution of any dispute that are not serious offences needing professional investigation. Escalation should follow a system generally followed in the medical field. The intricacies need to be worked out by a composite team of experts in the fields of law, management, computer technology and Artificial Intelligence. But it should definitely involve grading the arbitrators/mediators based on client/consumer experience.

 

Next, once the charges have been framed the trial should commence with least delay and should continue on a day today basis. This has the advantage of the evidences being presented and countered when they are fresh and also the judge can focus on the case much better to arrive at better conclusions.

 

Only one level of appeal should be provided and the highest court of the land should only deal with constitutional issues and inter-state issues. It is quite disheartening to see rich people approaching even the apex court for bail just because they can afford to pay the preposterous fees charged by lawyers practicing there.

 

While all essential services provided by the Executive organ is free or comes with nominal cost, it is again frustrating that one cannot approach courts without money. Even approaching a consumer court has proved to be a costly affair, mainly, of course, due to involvement of advocates. In fact when the Consumer Protection Act was sought to be amended mandating the respondent to engage an advocate only if the complainant has engaged one, there was such a hue and cry from the Bar that it was dropped like a plate of hot potato. Isn’t it obnoxious that when open heart surgeries can be done in this country for a couple of lakhs of rupees, advocates can charge in lakhs for a simple conference or attending a hearing?

 

I have seen Public Relations Officers in the offices of the Motor Vehicle Department and even in police stations to freely guide citizens on the procedures followed there. Most of the forms are available even on their websites. Why can’t the judiciary have a team of law qualified persons to man a cell in court complexes for guiding litigants free of cost? And have formats for various types of petitions available for downloading from their websites?

 

The Kerala Government had, a few years back, uploaded a series of formats for land registration documents which citizens can download freely, fill up and register their transaction at rates prescribed by the government and totally avoid document writers who had been exploiting the public by charging for their services in terms of percentage of the value of the land being registered (not any different from the fees charged by advocates).

 

The need to cut out the foreboding environment in court rooms cannot be overemphasized. The judges need to behave like human beings and not like someone out there dispensing favors.

 

Chief Justice of US Supreme Court, John Marshall, had once said: "Power of Judiciary lies not in deciding cases, nor in Imposing sentences nor in punishing for contempt, but in the trust, faith and confidence of the common man".

 

Our judiciary has a long way to go to earn the trust, faith and confidence of the masses. The judiciary may claim that the mountain of pending cases is a testimony to the faith of the common man in the judiciary. Nothing could be far from the truth. In an institutionalized system of justice delivery the common man has no other options. In fact the failure of the judiciary is being exploited by the other organs to shirk work, harass the citizens and drive them to taking law into their own hands.

 

To conclude this part, let me quote Aravind Kumar, Jurist and lawyer from a report ('Needed high speed legal redressal') in the Pioneer of 01 August 2006: 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.

 

 

P M Ravindran/ raviforjustice@gmail.com                                                             23 Aug 2022