The edifice of our justice
delivery system in India is built on two major fault lines in our Constitution-
the absence of accountability of our judges and the preposterous, undemocratic
contempt of court provisions. Not that these are the only two fault lines in
our Constitution. The more you try to understand it, the more you will realize
that these fault lines are like the potholes on our roads, one has to really
look for the road amidst the potholes over which one has to navigate, even as a
pedestrian, leave alone driving a vehicle.
I am sure we are all given
to believe that we are a democracy and a constitutional democracy at that. The
Preamble of the Constitution unambiguously proclaims that We, the People, do
adopt, enact and give unto ourselves this Constitution.
The other day, N V Ramana,
the then Chief Justice of India, while speaking at a private reception in the
United States of America, had pompously announced that the judiciary is
accountable only to the Constitution of India. To me it sounded just an
inanity, with even the person saying it not knowing what he meant. Because,
given that we are a democracy and have given to ourselves this Constitution, there
cannot be any doubt on who should be accountable to whom. But he did not state
the obvious.
One is reminded of what
Winston Churchill said about the western understanding of the Soviet Union - a
riddle wrapped in a mystery inside an enigma. And this is the attribute on
which our judiciary seems to thrive, when the fact is that for rule of law to
survive, the law should not only be easily understood by those affected, its
interpretation should be such that justice is not only done but seen to be
done.
So, who should the judiciary be accountable to? We, the
People; no doubt. But, is it? Definitely not. Worse, it is the one organ that
treats the people, approaching them for the constitutionally mandated services
due from them, in the shabbiest manner possible. Ask any litigant how many
times he had presented himself in a court and had to return after completely
wasting his precious time there, day after day after day. Not to mention the
fees paid to the advocate every time.
The other day, D Y Chandrachud, judge of our apex court had
reportedly said “We spent so much of our
time reading these files and then advocates come and tell us they need
adjournment in the case. This is unfair" (‘No more tareekh-pe-tareekh;
need to curtail adjournments: Justice Chandrachud’, at https://www.indiatoday.in/law/story/no-more-tareekh-pe-tareekh-need-to-curtail-adjournments-justice-chandrachud-1998429-2022-09-09). He is due
to be the next Chief Justice of India and hope he succeeds in walking his talk.
Here are some facts brought on record by none other than the
Attorney General of India (‘With over 42 lakh cases pending, Attorney General
asks judges for possible solutions to cut down pendency’ at https://www.indiatoday.in/law/story/attorney-general-k-k-venugopal-judges-solutions-pendency-chief-justices-high-court-nv-ramana-1943614-2022-04-29):
Ø 75 per cent
of undertrials are in custody and most of whom are poor, and who can’t afford
means.
Ø A large
number of cases which are pending are more than 30 years old.
Ø There are
24,000 judge posts in the trial courts and the pendency is 42 lakh cases with
5000 posts vacant.
Another report ‘Cases stagnate in SC as Constitution Bench
hearings remain pending for decades’ (https://www.indiatoday.in/law/story/cases-pending-supreme-court-constitution-benches-1913234-2022-02-15) states
that At least 35 cases are pending before
the various Constitution Benches of the Supreme Court, many of which would have
serious consequences for the legal system of the country, according to a report
published by Legal research group Vidhi Center for Legal Policy. These include
issues involving the interpretation of tax laws, powers of the court to
consider matters relating to religion, reservation policy etc.
All the
pending cases also have hundreds of connected matters, which means that the
final decision in several hundred cases depends on the decision of the
Constitution Bench.
The oldest
case before a Constitution Bench is the case of Central Board of Dawoodi Bohra
Community v. State of Maharashtra which has been pending since February 28,
1986 (13,135 days) before a five-judge bench. The case also has one tagged
matter that has been pending for over 31 years.
A report in Hindustan Times (‘After 30-year battle, Supreme
Court grants Faridkot Maharaja’s properties to daughters’ at https://www.hindustantimes.com/india-news/after-30-year-battle-supreme-court-grants-faridkot-maharaja-s-properties-to-daughters-101662574246439.html) informed
its readers on 08 September 2022 that The
Supreme Court on Wednesday upheld the Punjab and Haryana high court’s order
awarding the majority share of the estate of the erstwhile maharaja of Faridkot,
Sir Harinder Singh Brar, estimated to be worth ₹20,000 crore, to his daughters
–Amrit Kaur and the late Deepinder Kaur – and dissolved the Maharawal Khewaji
Trust, which was looking after the properties.
Amrit Kaur had initiated the judicial process by filing a
civil suit in a district court in 1992. It had ruled in her favor in 2013. This
decision was upheld by the High Court in 2020 and has now been upheld by the
apex court. Deepinder Kaur had, meanwhile, passed away in 2018.
Now just compare this with a decision of a consumer ‘court’
reported at https://timesofindia.indiatimes.com/city/chennai/arrange-seva-darshan-or-pay-rs-45-lakh-compensation-to-devotee-consumer-court-tells-tirupati-tirumala-devasthanam/articleshow/93971746.cms on 03 September 2022 (‘Arrange seva darshan
or pay Rs 45 lakh compensation to devotee, consumer court tells Tirupati
Tirumala Devasthanam’)
As per this report a devotee had booked a Seva at Tirupati
temple 16 years back by paying Rs 12,250/- in June 2006. The slot allotted to
him was in 2020 and due to the pandemic the temple was closed and the Seva
could not be held. He was offered a refund or another VIP darshan. However the
devotee approached the consumer ‘court’ which ordered the TTD to give a fresh
date for the Seva within a year or pay a compensation of Rs 45 lakhs for
deficiency in service and mental agony. It also ordered TTD refund the Rs
12,250/- paid along with an annual interest of 6%.
While the refund of the amount paid with interest is the
norm, the order asking for a fresh date to be given within one year or the Rs
45 lakh compensation is ridiculous and preposterous. Given the delay between
booking and allotment of slot, it is reasonable to presume that the Seva would
have been booked at least till 2035 by now and there is no way that TTD could
have found a slot before that for allotting to this devotee. Further, where
does the case for deficiency in service arise when the temple had been closed
on government orders during a pandemic?
I have quoted this case only to ask one question: how much
would our courts be required to pay as compensation for deficiency in service
and mental agony of the litigants?
The last week of August saw change of guard in our apex
court. CJI N V Ramana relinquished office handing over the baton to U U Lalit
who will carry it for just 74 days. Even while I was wondering whether this
appointment of a CJI for 74 days was in public interest or personal interest,
my attention was brought to a report ‘Judiciary does not find adequate
reflection in media: Outgoing CJI NV Ramana’ on 26 August 2022 at https://www.timesnownews.com/india/judiciary-does-not-find-adequate-reflection-in-media-outgoing-cji-nv-ramana-article-93803612.
While the claim of the outgoing CJI about judiciary not
finding adequate reflection in media shall be dealt with subsequently, the more
important information in this report was the framework of the work he intends to do by the new CJI.
The report quotes the CJI as:
"Let me
place some parts I intend to do in my next innings of 74 days: 3 areas - 1)
We'll strive hard to make the listing as simple, clear and transparent as
possible, 2) You'll have a clear-cut regime where any urgent matters can freely
be mentioned before respective courts, 3) Listing of matters before the
Constitution Benches and matters which are specially referred to Benches of
three judges...We will strive hard to
say that yes we will always have at least one Constitution Bench functioning
all throughout the year,"
The last one about having a Constitution bench functioning
throughout the year merits mention not only from the point of pending cases
before constitution benches mentioned earlier, but also the fact that during
Ramana’s tenure of 16 months the highest constitutional court had not set up
even a single constitutional bench.
In ‘Assessing CJI NV Ramana’s legacy through three key
numbers: 0, 163 and 71,411’ at https://indianexpress.com/article/opinion/columns/cji-n-v-ramana-supreme-court-of-india-8113487/ Alok
Prasanna Kumar wrote: Zero is the number
of Constitution Benches set up to hear substantial questions of interpretation
of the Constitution or the law. Appeal in the hijab case has been kept pending
for 163 days. 71,411 is the number of cases pending before the Supreme Court as
of August 14, 2022.
On 29 August 2022, I was glad to read (‘Supreme Court
constitutes two constitution benches to hear 8 cases tomorrow’ at https://www.barandbench.com/news/supreme-court-constitutes-two-constitution-benches-hear-8-cases-tomorrow) that the
new CJI had constituted 2 constitution benches of five judges each and
distributed 8 cases between them. While I
was disappointed to note that the information about the dates from which these
cases have been pending in the apex court was not reported, the shock came from
one of the cases being taken up: Plea regarding whether the criteria for
selection can be altered by the authorities concerned in the middle or after the process of selection has started. Really? Is it a
matter to be decided by a constitution bench of the apex court? If you are not
shocked, please read the case description again.
Coming to the observation of N V Ramana that about judiciary
not finding adequate reflection in media, you have seen how many reports have
been quoted in this critique itself. And it is just a fraction of the reports
that have appeared in the media in the last couple of weeks. And here are some
more.
In a report published on 9 Sep, 2022 (https://www.barandbench.com/news/litigation/just-because-some-big-lawyers-come-and-argue-supreme-court-comes-down-on-madras-high-court-in-sp-velumani-case) Judge Ajay
Rastogi had remarked: "What kind of orders are being passed? We
certainly have a lot to say. No application of mind, just because some big
lawyers come and argue...Procedures followed speaks a lot about the High Court".
Another report dated 4 Sep, 2022 at https://www.barandbench.com/news/litigation/cji-uu-lalit-addressed-me-sir-bombay-high-court-chief-justice-dipankar-dcji-uu-lalit-atta informed
its readers that, at an event in Nagpur, CJI Lalit had said that there are three important attributes to be a
successful lawyer: know the facts, know the law and more important than first
two, know the judge. I had heard a different version long back: good
lawyers know the law, successful lawyers know the judge.
A report ‘CJI recalls lawyers’ contribution in drafting
Constitution, freedom struggle, says their percentage in Parliament declining’
on 4 September, 2022 at https://theprint.in/india/cji-recalls-lawyers-contribution-in-drafting-constitution-freedom-struggle-says-their-percentage-in-parliament-declining/1116163/
states: “All the talent is at the top
level, while, unfortunately, in the mid and lower levels, talented youngsters
and lawyers are not coming. We must have a bottom-heavy pyramid of the judicial
structure,” the CJI asserted.
Also, “Our country has
seen and benefitted from legal talents, right from its freedom struggle. A
lawyer normally has been exposed to the correct way of thinking on how to find
solutions for social problems or constitutional issues. He is better equipped
than others to deal with situations facing society,” the CJI said.
I will just quote Dr Ambedkar and Seth Damodar Swarup to
prove the hollowness of the latter claim.
On 2nd September 1953, by making a statement in the Rajya
Sabha (Parliament) Dr Ambedkar stated 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.”
On 19 November 1949, Seth Damodar Swarup stated in the
Constituent Assembly itself, that '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.'
Here is another report: ‘False charges by litigants after
adverse order tend to demoralise judges: SC’ at https://www.tribuneindia.com/news/nation/false-charges-by-litigants-after-adverse-order-tend-to-demoralise-judges-sc-430475. Since the
title of the report itself is self explanatory, let me place my comment on
record:
For long our judges have taken refuge in the fact that one
party to a case will always be aggrieved by the decision of the courts. So, the
touchstone of jurisprudence-justice should not only be done but seen to be
done-was given the by, blatantly and with impunity. But like another proverb
goes-you cannot fool all the people all time- judges are now being criticized
even by non-litigants who get to read about court proceedings and decisions
from mainstream media as well as citizen reporters, through social media. This
obviously cannot be appreciated by our judges. But unless the judges walk the
talk there cannot be any reprieve. Even lawyers appear to have lost confidence
in our courts, going by the way they have been taking to streets and protesting
like political parties. There have been no dearth of judges criticizing the
system either.
Also, judges may have their own logic and reasons but so do
the citizens while judging judges. Judging is an innate habit of every human
being and not a proprietary quality given to judges only.
Let us for a moment keep aside the cases of litigants
affected by adverse verdicts. Take the case of ISRO scientist Nambi Narayanan
who was falsely implicated in an espionage case, involving women, and who
suffered badly in many ways- physical and mental torture, loss of job,
reputation etc. Even after his acquittal by the apex court, he had been given
only a pittance of compensation. Worse, the perpetrators are yet to be punished
too, if ever they will be punished.
Fast forward to a former judge of the apex court who sued a
news channel for Rs 100 crores for defamation for displaying his photo while
reporting another judge involved in a scam. It was a genuine mistake as anybody
conversant with digital libraries will understand. No loss of job, no torture,
nothing. While millions may have watched the news report one doesn't know how
many would have linked the name used in the report with the photo displayed.
But still a compensation of Rs 100 Crores for defamation?
To conclude, let me quote some judges:
"Corruption
in the judiciary is a big problem. Nothing can be worse for the legal
system," Mr. Venkatachala (then Lokayukta) said at a function
organised by the Federation of Bar Associations in Karnataka to felicitate him.
Former Chief Justice of India, Y. K.
Sabharwal: "The justice delivery
system has reached its nadir"
“Already
citizens are frustrated with the justice delivery system and only less than 10%
of the litigants who have disputes are approaching the court,"
Justice Kirubakaran (of Madras High Court) observed.
Supreme Court judges in India,
Justices S. B. Sinha and Markandeya Katju, are of the opinion that " … everywhere, we have corruption. Nothing
is free from corruption. Everybody wants to loot this country. The only
solution for this menace is to hang some people in the public so that it acts
as a deterrent on others."
Judges B. N. Agarwal and G. S
Singhvi have expressed the same sentiments, "for
the bureaucracy in the country to work without corruption, these bureaucrats
need to be flogged."
“Thus,
corruption in judiciary is the greatest enemy to the Constitution and judiciary
must also initiate drastic measures in order to control corruption in various
forms,”
Justice Subramaniam added.
“In
this connection we wish to say that the reputation of an institution is damaged
and its image sullied when some of its members pass shocking orders and behave
in a totally unacceptable manner.” -Markandey Katju and Gyan Sudha
Misra
P M
Ravindran/
raviforjustice@gmail.com 12 Sep 2022
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