One can continue to write
about judicial perfidies till cows come home but it will be only repeating the
same narratives with change in the names of the characters. The plot cannot
change. It will remain the denial of justice by those who are tasked, empowered
and paid to provide it. So, while the critiques can and will continue, there is
a need to come to terms with the fact that one has only one life to live. Hence
there is this need to wind up this series with a quick recap of the
defects/deficiencies that have been brought out so far. And that should lead us
to the solutions, implicitly or, if need be, explicitly.
We
are already familiar with these fundamentals of jurisprudence:
Ø Justice delayed is justice denied
Ø Justice should not only be done but seen to be done
Ø Not a single innocent person shall be punished even if
a hundred criminals are allowed to go free and
Ø Capital punishment shall be awarded in the rarest of
rare cases.
But
there are two even more fundamental principles that are not often spoken about:
Ø Your liberty ends where my nose begins and
Ø Justice implies two aspects: punishing the guilty and
compensating the victim.
My first
experience with a court of law was neither as a complainant nor as a respondent
to a complaint. It was merely for a court of wards permission to mortgage an
ancestral plot of land on which I was constructing a house. But at the end of 4
years when I withdrew the application, the lessons I carried home were of the
incompetence and arrogance of the judge and the lack of professionalism and
servility of the advocate. My subsequent experiences with the judiciary have
taught me that it is the judges who have made it so.
Then I got
stuck with a consumer complaint where I had got a favorable verdict from the
District Consumer Disputes Redressal Forum (as it was then, now it is also a Commission).
The opposite party had taken up the matter with the appellate body, the State
Commission quoting a preposterous judgment of the Kerala High Court in Jancy Joseph Vs Union of India (1999 (1) KLT
422). There a single judge had ruled that women could not be arrested in cases
involving recovery of money. This was a gender based discrimination and against
the Constitution. It was done by applying Section 56 of the Civil Procedure
Code (of 1908 vintage) to Section 27 of the Consumer Protection Act, 1986. But
he had aggravated the discrimination by ruling that others (read, men) could be
arrested even if they had no means to pay, which was against the provision of
the same Section 56 of the CPC.
Since I was
now a victim of this totally unjudicious verdict, I had to pursue another case
in the High Court of Kerala, questioning the decision in Jancy Joseph. It took
the High Court a year and half to dismiss this petition with a curt 2 sentence
verdict: ‘This matter had been decided in Petition Number xxxx/yyyy and held against
the appellant. Hence this petition is dismissed.’ My advocate while providing
me copy of the order did not provide me the copy of the order quoted therein.
The court had refused to provide a copy of the same even under the Right to
Information Act, saying that it is part of judicial proceedings and cannot be
provided as per the High Court’s RTI Rules. Some justice and transparency
there!
The appeals
and revision petitions by the opposite party in the State Commission were also
dismissed and after reverting to the District Forum the verdict was again given
in my favor but with much reduced refund of cost and compensation without any
valid reason. The total litigation lasted 11 years and it had cost me 4 times
more than what I had lost as per my complaint.
Later, I
came to know that a division bench of the same court in Mary Chacko vs Jancy
Joseph (2005 (3) KLT 925), in the context of application of the same Section 56
of the CPC to SARFAESI Act had taken a different stand and ordered that women can be arrested because 'there is a
clear basis for treating the public dues different from the purely private'.
Since then I
have been left wondering under which law it is permitted to cheat ordinary
citizens of justice.
Meanwhile, in 2002, in an
article - ‘Democracy? East is East and West is West…’- I first wrote about the
need to have rule of law instead of rule of judges. The article is available at
http://suchnaexpress.blogspot.com/2011/01/democracyeast-is-east-and-west-is-west.html. Much water has flown down our rivers but the need
for a total overhaul of our judiciary has only got reinforced and reached a
stage where citizens have begun to perceive the judiciary as a threat to rule
of law and democracy.
My letter to the Chief
Justice of the Kerala High Court on 18 Nov 2004 had dealt with the following
issues afflicting the judiciary: contempt of court (anathema in a democracy),
judicial accountability and the need for a National Judicial Commission to try
judges (for all omissions and commissions under laws applicable to all
citizens), judicial accessibility, judicial process, listing of cases, personal
appearance of litigants and representatives, involvement of advocates,
citizens’ charter and working hours, grading of advocates and norms for fees
and irrationality and unfairness of decisions. The contents of the letter are
available at http://raviforjustice.blogspot.com/2011/02/reforming-our-justice-delivery-system.html.
This was followed by a one
man satyagraha in front of the High Court which was disrupted by the police on
the direction of the concerned official of the court. Some respect for freedom
of expression which is tom-tommed by our judges who have flip-flopped even in
the context of bandhs/hartals which have been bringing normal life to a
standstill. Once it was rightly held that they are illegal because it affected
the fundamental rights of other citizens but they retracted later. Even thereafter a judge made road side
meetings illegal leading to a politician rightly calling him a dimwit. And for
this comment he was punished for contempt of court with imprisonment for six
months.
On 31 May 2005 an online
petition was initiated addressed to the President and Prime Minister of India
to constitute a National Judicial Commission to try and punish judges as per
laws applicable to ordinary citizens but with twice the severity in punishment.
This petition was posted at http://www.PetitionOnline.com/jrandac1/petition.html which is now defunct. However, copy of the petition and the
list, including the comments, of 429 citizens who had supported it are posted
at https://www.slideshare.net/raviforjustice/310505-the-petition-toconstituteanationaljudicialcommission and https://www.slideshare.net/raviforjustice/310505thepetitiontoconstituteanationaljudicialcommissionsignatures1to429
respectively.
It is evident that the
failure begins with the Constitution that has created this institution without
any systemic checks and worse, provided armor to it through a blasphemously
anti-democratic contempt powers. Imagine an employer of a company being made
liable to punishment for calling out a non-performing employee. Did the
architect(s) of our Constitution forget the very meaning of the term democracy?
While a detailed
analysis- ‘Report of the NCRWC- a Citizens Review’- can be read at http://raviforjustice.blogspot.com/2011/03/report-of-ncrwc-citizens-review.html, the following notes, by one of the two
of the non-judicial members of the National Commission to Review the Working of
the Constitution, are relevant:
Dr Subash
Kashyap, former Secretary General of Lok Sabha, had noted: 'While
no comments are being made on what went wrong in the procedure, priorities and
perspective, it may be put on record that several of the recommendations now
forming part of the report go directly counter to the clear decisions of the
Commission on which the unanimously adopted draft report of the Drafting and
Editorial Committee was based'.
Also,
'The
Chapter 7 of the Report is titled 'The Judiciary'. This chapter particularly is seriously flawed
and distorted. The much needed Judicial Reform issues have not been even touched
or these got deleted in the final draft'?
Shouldn’t this suffice to
overhaul our judiciary, lock, stock and barrel? Right from the format of
petitions to the complete process from registering a case to its conclusion,
every aspect of our judicial functions needs to be reworked.
The first issue that comes
in the context of format of petitions is the content and details.
Given that the petitioner is a layman and the
judge is a qualified lawyer, shouldn’t it suffice if the petitioner just
narrates the facts of the complaint in the petition? Shouldn’t it be the
responsibility of the judge to evaluate it in the context of the laws, get
clarifications if any (on the facts only) from the respondent and the
petitioner and give a fair verdict? I read somewhere that both the parties to
litigation know the facts, it is the judge who is on trial. How true. So, if
the judge gives a verdict which is not only fair but also seen to be fair, it
can be assured that there are no further appeals.
This also brings us to the
issue of having advocates representing parties and costs.
For the simple reason that
the judges are legally qualified persons, the need for advocates representing
parties should be banned. This is
mandatory for providing a level playing field. Fali S Nariman, a reputed
Constitutional lawyer, in his book 'India's Legal system: Can it be saved?’, had
rightly written that ‘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.’
(I will request my law
qualified friends not to take umbrage at this suggestion. The need is to have
law qualified people practicing law as doctors practice health care.
Nitty-gritties can be worked out)
It is seen that quite
often petitions are made bulkier by listing cases laws, most of which may not
even have any bearing on the issues relevant to the case. In fact I have read
at least one advocate, Mathew J Nedumpara, explaining tirelessly that verdict
of a particular case apply only to the parties involved in the case (res
judicata) and it is the principles on which decisions are made that make for
precedents (stare decisis). It cannot be that principles keep changing with
every other case. To begin with, case laws, older than 5 years should be
declared invalid. Today, with advocates on both sides presenting some facts,
some laws and some case laws, it appears that judges can easily toss a coin and
decide whom to favor with his verdict.
On the subject of principles on which decisions are made, it is interesting to note the flip flops in the court decisions. One of them ended with the establishment of a blasphemous basic structure theory. Here is an interesting report (‘Basic structure of the Constitution revisited’) at http://www.thehindu.com/2007/05/21/stories/2007052103301000.htm.
It was followed by the
constitution of an unconstitutional Collegium for the appointment of judges. This
was done by resorting to a never heard of interpretation of the meaning of a
common English word ‘consultation’. That it got entrenched through a series of judgments when the Executive
at the Centre was weak cannot be mere coincidence.
Coming to costs, there is
no reason why this should not be free as rule of law is as important, if not
more, than education and health which are practically free in government
schools and health care centers.
Regarding the conduct of
trials and verdict, it is of utmost importance that cases are disposed of on
first come first served basis. Of course it will apply only to similar type of
cases. So time frames have to be laid down for each category of cases and
enforced. Some flexibility can be provided like giving, say, 10 percent extra
time for 10 percent cases, on a case by case basis, by a superior court. Any
default should be dealt with seriously and severe or repeated default should
result in termination of the services of the judge.
The need for day to day
trials, once charge sheet is submitted, cannot be overemphasized. Not only are
the facts fresh in the minds of the parties and witnesses, it is also easy for
the judge to correlate them and come to rational and fair conclusions.
I have read of the apex
court mandating that verdicts should be delivered within 6 months of the
conclusion of arguments. But I know of high court judges being elevated to the
apex court even when they have failed to deliver judgment for 4 years after
final arguments and moved to the higher court without delivering it, leaving
the litigant in the lurch.
Even at the end of
preposterously prolonged trials it can be seen that the verdicts are not seen
to be fair. There are many cases where trial courts have sentenced the guilty
to death and the apex court exonerating them or reducing the sentence to life
imprisonment after the convict has already spent a life term or more as an
under trial. With all sentences ordered to be running concurrently the convict
is soon out as a free bird to get back to his vocation as a criminal.
The other day I was
reading a report, ‘US: 54-year-old man rapes a 14-year-old girl multiple times,
sentenced to 50 years in jail and physical castration’ (29 April, 2024, https://www.opindia.com/2024/04/usa-louisiana-rape-castration-minor/).
I wonder why and under
what laws are our courts prescribing that all punishments should run
concurrently when the investigating authorities and prosecuting authorities
have worked day and night to prove every charge from conspiracy through
planning to executing a crime of murder?
Incidentally, in the case
of a judge who died in an accident the trial court itself had sentenced the
guilty to life imprisonment till death. One report is at https://www.dnaindia.com/india/report-dhanbad-judge-murder-court-says-culprits-must-remain-in-jail-till-end-of-life-2976352. Interestingly the report does not mention any motive
or previous history of conviction in any crime for those sentenced.
Contrast this with the
case of murder of a primary school teacher in Kerala in front of his students
by a mob and six of the accused being sentenced to death. Even after the High
Court upheld the verdict, years later, the apex court acquitted 5 of them and
commuted death to life imprisonment for the sixth. Just imagine the plight of
those acquitted living with the threat of death for more than a decade. Did the
apex court act against the judges who sentenced them to death? Did the court
order action against the investigating officers and prosecutors? Did the court
order apprehension of the others involved?
My study of the
performance of our judiciary over the last 25 years has made me doubt not only
the competence of our judges but even their integrity.
The instances of misuse of
power are plenty but the situation is worse now what with 85 percent of the
judges in the Supreme Court being kith and kin of former judges or senior
judicial officers, as per a list released by National Lawyers’ Campaign for
Judicial Transparency and Reforms.
Incidentally, the apex
court that had illegally trashed the duly enacted National Judicial
Appointments Commission Act, had, during the Emergency days, used an amendment
to the Constitution (39th amendment to the Constitution, 10 Aug
1975) to exonerate the then Prime Minister Indira Gandi who had been earlier convicted
in an electoral malpractice case by the Allahadbad High Court (State of Uttar Pradesh v. Raj Narain, 1975 SCR (3) 333). Imagine the horror of it. A convict
allowed to amend the Constitution in her favour and the apex court accepting
that amendment to exonerate her. If this is not turning law on its head then
what could it be? Of course such cases cannot happen routinely but what about
the principle of conviction being based on the laws existing at the time of
occurrence?
Whether it
was a Chief of Army Staff’s date of birth or an employee seeking pension that
had been denied to him or the entry of women in Sabarimala, incompetence of the
judges is writ large on the verdicts.
When the
School Leaving Certificate is the accepted proof of date of birth I cannot
understand how a court can accept an error in an application form to be
authentic and not accept the date in the School Leaving Certificate produced as
supporting document. And the court never asked why a Lt General, on the eve of
his promotion to a higher office in the same rank, had to sign an undertaking
that he was accepting his date of birth in the application as true and not the
one in his School Leaving Certificate. The press and visual media went to town
stating that the General, then Chief of Army Staff, was selfishly trying to get
advantage of one more year in that office. He was even threatened with
prosecution for contempt of court when, while answering media persons, he had
responded that he did not feel justice had been done to him.
If that was
in the case of a Chief of Army Staff, which the whole nation was watching
eagerly, the cases of lesser mortals can well be imagined.
There is
this gentleman who served with the Central Government for 18 years and resigned
for personal reasons. He was denied pension and all terminal benefits merely
because he had resigned. Subsequently, on learning of a Supreme Court order saying that pension is not charity but deferred wages
he applied to Central Administrative Tribunal for his entitled pension. The
ignoramuses in CAT dismissed his petition saying it was time barred. On appeal,
the High Court referred it back to CAT stating that there is no time bar for
pay and pension related issues. The case shuttled between the CAT and High
Court another 3 times before, against all principles of natural justice, the
High Court dismissed the last case, after 6 years, by quoting Rule
26(1) of CCS (P) Rules 1972. As per this rule an employee forfeits all his previous service if he resigns. While this, by itself, is obnoxious Rule 40 of the same CCS Rules provides for
payment of pension and gratuity to government servants compulsorily
retired from service as a penalty. Wondering how
the justice seeker could retain his sanity all through.
In contrast is the case of
a former acting chief justice of a high court being granted enhanced pension,
due to him on attaining 80 years of age, on his attaining 79 years of age
itself on the plea that he had entered 80 years then. Weird as this claim was,
the court added its own justifications like the profession of a judge being a noble one and pension being a
welfare measure etc. (Orders,
dated 15/03/2018, of the Gauhati High Court in WP(C) 4224/2016 and upheld by
the Supreme Court on 08/07/2019 in SLP (Civil) Diary Number 18133/2019)
The judgment,
on women’s entry in Sabarimala temple, dated 28 September 2018 in WP (C) No. 373 OF 2006, is another one of its
class where four of the five judges of the apex court proved their incompetence
in interpreting the provisions of the Constitution. Articles 25 and 26 deal
with freedom of religion. 25(2)(b) is restrictive and discriminatory in so far
as it provides for opening of only Hindu religious
institutions of a public character to all classes and sections of Hindus. It is
this discrimination, based on religion, that should have been addressed rather
than misinterpreting it as a gender based discrimination because women of a particular
age group only are banned from entering the temple. This by any stretch of
imagination can only be a reasonable restriction as propounded in the many
articles on fundamental rights.
In contrast, there is absolute ban on women
entering their places of worship in other religions. Worse, as per a report,
dated April 13, 2021 (‘Supreme Court junks ‘frivolous’ plea to remove 26 Quran
verses’ at https://indianexpress.com/article/india/supreme-court-waseem-rizwi-plea-removal-of-quran-verses-7270090/
) the apex court
imposed Rs 50,000 as cost on the petitioner, Syed Wasim Rizvi, former chairman
of Uttar Pradesh Shia Central Waqf Board who had prayed for regulation of
Madrassa education on the ground that children should not be indoctrinated and
to ensure steps are taken to avoid literal teaching of verses advocating
violence.
In the Mangalore air crash, while the high
court granted same compensation to all those who died, the apex court revised
it, and based it on the income of the victims. One is flabbergasted on what
role the passenger’s income has got to do with the compensation when he had
bought his tickets at the same price as the rest. One could understand if
different compensations were paid based on the different classes of passengers
and the fares paid by them.
The above examples should suffice to conclude
that no common sense, no principles and no rationale apply to our judges and
their judgments. No wonder somebody commented that ‘we do not get justice in
our courts, what we get in our courts is called justice‘. The important
question is whether citizens of a democracy should accept this as a gospel?
The politicians are often criticized for
attempts to subvert the Constitution but the fact is that the architects of the
Constitution themselves had subverted it given that the contents are not in
synch with the objectives outlined in the Preamble. This had led to the apex
court first declaring, in Berubari Union Case (1960), that the Preamble is not
part of the Constitution and cannot be enforced in a court of law and then correcting
it after more than a decade in Kesavanada Bharathi (1973) stating that it was
part of the Constitution but cannot be amended under Article 368. But then we
saw the terms ‘Socialist Secular’ and ‘and integrity’ being inserted in the
Preamble on 03 Jan 1977, during the dark age of Emergency from 25 Jun 1975 to
21 Mar 1977. And the courts did nothing
about it.
We have seen how the judiciary had let down even
the armed forces, held by the people as a symbol of national pride along with
the national flag and national anthem, by their insane verdict in the date of
birth case of the Chief of Army Staff. But that was not the first or last in
the series of patently wrong judgments of the apex court affecting soldiers. In
what is known as The Rank Pay Case, the armed forces officers had been cheated
of their Rank Pay introduced in 1986. But the first petitioner, Major
Dhanapalan got relief in early 2000. But the court did not extend justice to
similarly placed officers. It forced a large number of officers to pursue cases
in different groups, all over the country. It took over a decade before these
cases were disposed of but only after denying them the dues of 20 years, from
01 Jan 1986 to 31 Dec 2005. Worse, those who had perpetrated the fraud on the
gullible officers were not punished.
The injustice should be obvious because it was
around the same time that Subroto Roy of Sahara went to jail because he could
not refund almost Rs 25000 crores to his investors as directed by the court
within a specified period. I doubt if all the investors had approached the
court for this relief. (For details see https://en.wikipedia.org/wiki/Sahara_India_Pariwar_investor_fraud_case.)
I cannot blame those who ask in subdued tones if any judges were there among
the investors.
More recently, in the One Rank, One Pension
(OROP) case too, the apex court let down the soldiers by turning the definition
of OROP- two personnel from the armed forces
in the same rank and with the equal length of service should get the same
pension irrespective of their dates of retirement and any future enhancement in
the rates of pension must be automatically passed on to past pensioners-
itself on its head. Consequently, while the anomalies are gross, the case of
Major Generals drawing less pension than Brigadiers, who are junior in rank and
years of service, had been highlighted in the order itself. But this has only
been mitigated, but not corrected, by raising the Major General’s pension to
that of the Brigadier.
Interestingly, OROP has been in existence for
judges, MPs, MLAs bureaucrats and even the Chiefs of the armed forces since
long. Only thing is the format has been different. For MPs and MLAs it is minimum
pension beginning with one day of service and a regular pension after 5 years
of service. Thereafter there is a fixed increment for every additional year of
service. For the babus, at the top two levels they have a fixed amount as pay,
and pension being 50 percent of that, every retiree, irrespective of his date
of retirement gets the same pension. It applies to the Chief of armed forces
who hold the rank of General and equivalent and to Lt Generals and equivalents
who are Vice Chiefs and Army Commanders. Other Lt Generals who retire in the
same rank and service have, obviously, been left out.
Another case in which the apex court has
failed soldiers is in what is known as the NFU (for Non-functional Financial
Upgradation) case. This obnoxious scheme was introduced in 2006 for the IAS and
IPS only, only to promotion incompetence but on the specious argument of
stagnation for promotion in their services. By this, if any member of the IAS
gets promoted anywhere in the country, the financial benefits would
automatically be passed on to all the members of the same batch. In a blatantly
discriminatory manner, the same benefit would be passed on to the members of
the same batch of IPS only after two years. Worse, the members of the other
Group A services like IFS, IRS etc were denied it initially. But they got them
after approaching the CAT. The ones who were more eligible, if not the only
ones who should have been eligible for such a scheme, the armed forces
officers, even after getting a favorable verdict from the Armed forces Tribunal
in 2016 are still waiting for it. An appeal filed by the Central Government
against this verdict has recently been withdrawn. See the table below for the
relative comparison of promotions in the armed forces vis a vis the civil
services.
The armed forces officers are not only lacking in promotion avenues but even the promotions come late. For example, an army officer gets promoted to the rank of Major General, considered equivalent to the Joint Secretary, on completing 26 years of service, whereas the babu gets promoted to Joint Secretary with just 14 years of service. Worse, it is not only promotion avenues that are lacking for armed forces officers but there is attrition also what with the majority of them getting superannuated as Colonels on attaining 54 years of service.
The above case has been
explained in some detail only to highlight how a case that should have been
disposed off in one hearing had dragged on for 9 years and then had to be
withdrawn by the appellants. Contrast this with the case of the high court
judge who had been given enhanced pension one year before it was due to him.
We have already seen how a
false concept of Basic Structure of the Constitution and an unconstitutional
Collegium has been thrust on the nation by the judges of our apex court. And we
had a situation when these judges were almost demanding that the President just
sign the appointment letters prepared by the Collegium.
Now let me walk through some
not so much discussed issues.
Firstly, let me begin with
the use of the honorific ‘Justice’ by judges of the higher judiciary. Article 124 (1) states that There shall
be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a
larger number, of not more than seven other Judges. That is the
appointment is as judges and the senior most is designated as the Chief Justice.
So the correct, and only, permissible use is Mr abc, Chief Justice of India,
Supreme Court of India or Ms xyz, Judge, Supreme Court of India. Similar logic
applies for judges of the High Court under Article 216 of the Constitution.
Interestingly, the judges in the subordinate courts do not use this honorific,
though they are also judges as per the Constitution and doing the same job.
Justice is what is supposed to be delivered by the judges. That brings us to
yet another question: why should a high court judge retire at 62 years of age
when the one in the Supreme Court retires only at 65? And why should judges
retire at 62 and 65 when the babus, file pushers, retire at 60? Quixotically,
the Chiefs of Army, Navy and Air force retire at 62 years of age and the Chief
of Defense Staff at 65.
As an aside it is
important to look at what judging is all about. Is it really a profession that
requires rigorous training and exercise? To my mind, it is one of the basic and
inherent qualities in every human, nay, living, being. All that our designated
judges are required to have is knowledge of the law and a commonsensical
approach in applying those to given circumstances. Though we have often heard a
quip ‘ignorance of law is not an excuse’ we have never questioned why judges
are never taken to task when their judgments are overturned by appellate courts.
Article 124(7) states that
No person who has held office as a Judge
of the Supreme Court shall plead or act in any court or before any authority
within the territory of India. Now this is essentially a bar on reemployment of
judges, for obvious reasons. Unfortunately, the language is not that obvious.
So let us look at the provision for judges of the high courts. Article 220 states that No person who,
after the commencement of this Constitution, has held office as a permanent
Judge of a High Court shall plead or act
in any court or before any authority in India except the Supreme Court and the other High Courts. Here obviously
there is no scope of any ambiguity.
In spite of this, apart
from the already provided re-employment in various tribunals and quasi judicial
bodies, the judges tried to usurp some more by ordering that chief information
commissions should be either a retired Chief Justice of a High Court or a judge
of the Supreme Court and that cases should be decided by a bench of two members
one of whom should the law qualified and preferably a retired high court judge.
(Reportedly the only Chief Information Commissioner who had been suspended from
that post was M A Khan, a former judge of the Allahabad High Court. He had been
suspended on 09 July 2008 by Governor T V Rajeswar Rao for ‘violating norms for recruiting employees in
the commission, financial irregularities, mistreating complainants and
non-cooperation with colleagues’. He had later committed suicide due to
depression.)
Interestingly Para 9 of
the order in WP(C ) 210/2012, states: The
appointment of the judicial members to any of these posts shall be made in consultation with the Chief Justice of
India and Chief Justices of the High Courts of the respective States, as the
case may be. Recollect the term ‘consultation’? Fraudulently and
dangerously given to mean as concurrence for justifying the unconstitutional
Collegium? Fortunately, almost one year
after this order a division bench of the court recalled the order but with
different directions. Of those this one is particularly relevant: ‘that the Committees under Sections 12(3) and 15(3) of the
Act while making recommendations to the President or to the Governor, as the
case may be, for appointment of Chief Information Commissioner and Information Commissioners
must mention against the name of each candidate recommended, the facts to
indicate his eminence in public life, his knowledge in the particular field and
his experience in the particular field and these facts must be accessible to
the citizens as part of their right to information under the Act after the appointment
is made.’
Now just think of applying
the same direction in the case of appointment of judges to the higher
judiciary. The bigotry should be obvious.
I am for all tribunals and
quasi judicial bodies being treated as specialist courts and should have a
common mode of recruitment. And it should not be left to be filled by retired
judges or bureaucrats.
My experiences with these
quasi judicial bodies have convinced me that they are worse than fly by night
operators and a waste of the tax payers’ money. A detailed study about the
Information Commissions has been done in three parts of this serious.
A Parliamentary Standing
Committee on the Ministry of Law and Justice, then headed by Rajya Sabha member
E.M.S Natchiappan, had commented that 'Judges appointing judges is bad enough
in itself; judges judging judges is worse.'
A former CJI had admitted
that 20 percent judges were corrupt. A Transparency International Report
revealed that the judiciary and police were the most corrupt institutions in
India. Adv Prashant Bhushan exposed that 8 CJIs were corrupt and though
contempt of court action was initiated his claim that corruption was used in
the wider sense of the term got him reprieve. As if such corruption was legal
and ethical. But, in spite of such revelations and admissions, the cause of
concern is that nothing has been done to control these crimes. But there are
even more serious crimes for which ordinary citizens would have been sent to
the coolers for life but judges have got away because of brothers in black
cloak judging them. Mysore sex scandal involving judges and women advocates and
illegal land allotment scam, involving
judges, both in Karnataka, cash at door step scam involving judges of Punjab
and Haryana High Court, P D DInakaran
case, involving multiple charges, are a few that easily comes to mind. While
the details can be got by searching on the internet here are three links that I
found very interesting:
Ø
a document corruption-in-indian-judiciary_1511777721 that can
be downloaded from https://wwjmrd.com.
Law Commission of India, then
headed by a former Supreme Court judge AR Lakshmana, had, in its Report No 230
of Aug 2009, dwelt on the issue of judicial reforms. It had admitted to the
failure of the Collegium and the need to revert to the old system, the need for
cutting short of vacations by 10-15 days, increasing the working hours by half
an hour per day, better use of court time etc. Even these symbolic changes have
not been implemented till date.
Unfortunately, it had also harped on the judge to population ratio which
is a farce. What matters is the judge to docket ratio. This, as per data
presented by K T S Tulsi, a senior advocate of the Supreme Court in 2004, was
highly in favor of the judges in India. They were handling only less than one
third the cases being dealt with by their counterparts in the US of A. People
who quote this false reason to cover up their incompetence and other
shortcomings should not be eligible, not only for holding the offices of judges
but even of any other public office.
Things have spiraled down so badly that we
have witnessed Supreme Court judges (verbally) convicting victims, not only
without trial but without even knowing the facts, as it happened in Nupur
Sharma Case. More recently we had another judge threatening to tear apart an
accused in a contempt of court case. Reading of such instances one is tempted
to ask: arrogance, is your other name a judge?
To conclude this
part, here are two quotes:
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.
('Needed high speed legal redressal'-Aravind
Kumar, Jurist and lawyer, Pioneer, Kochi,01 Aug 2006)
The judicial system of the country, far from being an instrument
for protecting the rights of the weak and oppressed, has become an instrument
of harassment of the common people of the country.
(People's Convention of Judicial Reforms and
Accountability held at ISI, New Delhi on 10-11 Mar 2007; http://www.judicialreforms.org/)
P M Ravindran/
raviforjustice@gmail.com / 12 Jun 2024
