I had read this anecdote
long back. It is about the Japanese love for fish and how they wanted it always
fresh. Frozen fish was certainly out. They tried keeping them live in tanks,
which were too small and ponds, which did provide space but the fish remained
sluggish, and consequently, not tasty. Then they released a small shark in the
pond and found that the little shark could keep the other fish on their toes,
nay fins. And the problem was solved.
I remembered this anecdote
when I was thinking of introducing this last part of this series of critiques
about our judiciary and the word sloth struck me without even thinking.
A chain is supposed to be
as weak as its weakest link. In our system of governance too, the judiciary has
proved to be the weakest link. But our judiciary is claimed to be the most
powerful judiciary in the world. So where is the problem? It is not sloth alone
that has made it weak. Add to that incompetence, indifference, lack of
accountability, absence of checks and balances, whims and fancies of the
judges, syndromes like ‘uncle judges’, bench/ docket hunting, self
aggrandizement, outright arrogance and corruption. Examples to highlight each
of these characteristics have been provided throughout the series. Hence, even
though it would have been better to avoid repetition, it cannot be avoided. So,
to avoid clutter, they are listed briefly in an appendix to this critique.
There is no denying that
the need to reform the judiciary to make it transparent, accountable, effective
and efficient is of utmost importance and urgency. To my mind, Pakistan and
China can wait (the armed forces are there to take care of them) but judicial
reforms cannot.
A collective of lawyers, litigants
and public, interested in the subject of transparency and accountability of the
judiciary, under the banner of National Lawyers Campaign for Judicial
Transparency and Reforms, have listed their objectives at https://nlc.org.in/objectives/ and I have analyzed it from an activist’s perspective
in Judicial Perfidies-28 and shared with justice.dychandrachud@sci.nic.in on 23 Sep 2023. There can hardly be any difference of
opinion other than from those who are beneficiaries of the corrupt system.
Without going into further
details, here is a bucket list that is required to be urgently implemented
before the judiciary throws the country into violent chaos, if not a civil war.
The rumblings are already there, for all those who care to feel.
There was a Judicial Standards
and Accountability Bill pending in the Parliament since 2010. It had lapsed,
or, been given a quite burial. Though it provided for investigating complaints
against judges it was more or less only an effort to put in place a system for
impeachment of tainted judges of the higher judiciary. However, after the
National Judicial Appointments Commission Act had been trashed by a few judges
of the Supreme Court, a watered down Judicial Standards and Accountability Bill
had been introduced in the Lok Sabha in 2022. This was to put into effect the “Restatement
of Values of Judicial Life” adopted at a full court meeting of
the Supreme Court on 07 May 1997. Even that should be considered lapsed now
after the life of the Lok Sabha ended in May 2024.
Given the urgency of these
reforms the issue is dealt with in two parts- for the short and long terms.
Before I list them it is
required to understand one basic fact. That is, it is only the Parliament and
State Legislatures that are constitutionally competent to make laws. The duty
of the courts is only to apply the laws to given contexts, logically and
fairly. And here are two quotes that are relevant to understand the power of
the judiciary: Alexander Hamilton once said that “The judiciary . . . has no influence over either the sword or the
purse; no direction either of the strength or of the wealth of the society, and
can take no active resolution whatever.
It may truly be said to have neither Force nor Will but merely judgment…”
The other one is attributed to Felix Frankfurter, a Judge of the US Supreme
Court. It is: ‘Judges as persons or Courts as institutions are entitled to no
greater immunity from criticism than other persons or institutions. Just because
the holders of Judicial Office are identified with the interests of Justice,
they may forget their common human frailties.'
The short term
requirements are obviously in the nature of surgical strikes.
1. Abrogate Contempt of Court Act and also the provision
for impeachment of judges of the higher judiciary. For long, we, the citizens,
were given to believe that the only punishment that could be meted out to
tainted judges was impeachment, which anybody with common sense can see is an
unwarranted and ludicrous process. That is until a high court judge, Karnan,
was sent to jail for 6 months for contempt of court. Does it mean that contempt of court is the
most serious crime that one can commit in this country? I am sure that nobody,
except the affected judges, will buy it.
2.
Amend the
Constitution to submit judges also to all the laws applicable to every citizens
of this country. And given that they are law qualified and cannot be treated as
equal to laymen, the punishment for them should be more severe than prescribed
under the laws for ordinary citizens. Typically it should be 2 or three times
more severe.
3.
Prescribe time
frames for disposal of cases by classifying them based on the charges. To begin
with it could be three-simple, serious and severe. The times frames should be
based on day to day hearing and should be enforced. Exceptions may be permitted
by a superior authority in, say, 10 percent of the cases.
4.
Cases should be
taken up on first come, first served basis and lapses should be noted for
guidance, warning and punitive action.
5.
Litigants should
present only facts, chronologically and precisely. There should be no reference
to case laws.
6.
Judges may cite
cases laws in their judgments but they should not be older than 5 years. To
indicate their relevance the context of such cases should also be narrated
precisely.
7.
In cases
involving public servants the concerned public servant(s) should attend the
proceedings as party in person, if the other party is attending as party in
person.
8.
The verdict
should include punishing the guilty and compensating the victim, including the
cost of pursuing the case in terms of time, effort and money invested and
should be made good from the judgment debtor.
9.
A system of
feedback from litigants about the conduct of the proceedings should be
collected through computerized systems for evaluation by team of lawyers and
management experts for facilitating performance assessment of the judge(s).
10. The relation between judges, advocates and litigants
is nothing like employer-employee, superior officer-subordinate officer or
teacher-student. So the mode of addressing judges by advocates and/or litigants
should be only the perfunctory Mr/Ms abc or xyz. There have been enough
discussions and directives issued by the Bar Council of India that the judges
should be addressed as Sir only. Even that is unwarranted as the judges are
only another lot of public servants employed by the government to deal with
grievances, legally. Interestingly, a
Gram Panchayat –Mathur, in Palakkad, Kerala- had issued a directive authorities
shortly before the 75th anniversary of independence of the nation, that
citizens should not use Sir in applications addressed to the Gram Panchayat. Isn’t
it interesting to learn that at least a handful among the most, rightly or
wrongly, maligned lot of public servants has understood the essence of
democracy.
11. All judges should retire at 60 years. It is confounding
that citizens doing the same job have different age limits in the judiciary.
For the long term, the
following actions need to be taken to enable the judiciary to mature into an
institution befitting a democracy.
1.
First and
foremost, to ensure a level playing field, advocates must be barred from
appearing in courts. I shall reduce the justification for this to two quotes.
One, by the renowned constitutional expert Fali S Nariman. In his book 'India's
Legal system: Can it be saved?’ has asserted 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.’ The other is by the then President Dr APJ Kalam.
He had openly asked ‘why is it that when the scams that are reported in the
media are in crores of rupees, the inmates in our jails are all from the poor
and marginalized sections of the society?’
2. The next is to rationalize the employment of law
qualified persons to obtain optimal results. For this there should be
empanelment of lawyers through aptitude cum entrance examinations, based on
their qualifications and experience, at six levels- Judicial Officers Level 1 to
6. Level 1 will be Certified Primary Litigation Officers (CPLOs, like general
medical practioners), Level 2 will be Certified Specialist Litigation Officers
(CSLOs, like specialists in Medical field) and Judicial Officers (JOs) Level 3
will be at a taluk level or cluster of, say 3 to 5, local self governing
bodies, Level 4 should be for a cluster of 5 to 10 Level 3 JOs and Level 5 for
a cluster of 10-15 Level 4 JOs. Level 6 should be only one at the national
level.
3. The certification, appointment, monitoring and
discipline should be done by a National Judicial Commission, comprising of
legal, social science, psychology and subject matter experts. Empanelment and appointment for each stage
should be only for 3 years at a time, with provision for re-empanelment at the
same level or next higher level for another three years.
4. The Certified Litigation Officers should provide
service based on payment at prescribed rates. Some of them may be employed by
the government to provide free service to the marginalized sections of the
society at Primary Litigation Centres which may be co-located with Police
Stations or Local Self Governing bodies. Each Litigation Centre may have 3-5
CPLOs and 1-2 CSLOs.
5. The JOs will have original jurisdiction over specified
matters, appellate jurisdiction for the immediate lower level and will be the
disciplining authority for the JOs two levels below, that is Level 3 JOs will
be disciplining authority for Level 1 (CPLOs) and so on. Level 5 will have
original jurisdiction over interstate disputes and in all cases where public
servants are accused. Level 6 will be at national level dealing with only
constitutional matters. It should have only 5 JOs with a term of 5 years. The maximum age upto which these JOs can be
employed should be only 60 years. Discipline of JOs at level 5 and 6 should be
dealt with by a jury, constituted with only one law qualified person to guide
the proceedings and 5 others from different fields.
6. All JOs, including the certified ones, should be
empowered to summon the parties and after confirming the delivery of summons,
if any party is absent without giving reasons in advance, except in
circumstances beyond one’s control, decisions given ex parte can only be
challenged before the appellate authority. Such appellants should bear the cost
of the opposite party at the appellate stage. All orders should include
compensation for the victim in terms of cost of pursuing the litigation and
effort.
7. At every level litigants should provide feedback on
their experience based on parameters like promptness in registering
complaints/grievances, guidance provided, scheduling and abiding by the
schedule, courteous behavior, satisfaction with the decision etc. This should
be through user friendly computerized terminals or applications. The system
should be able to track the performance of each judicial officer by
consolidating the feedback on a quarterly/half yearly/ annual basis which
should be communicated to the concerned JOs as well as the disciplining JO.
8. There should be only one appeal permitted in any one
case.
9. Verdicts reversed or modified at appellate level
should be quantified for appropriate action against the concerned JO. The
guiding principle should be that all laws applicable to ordinary citizens would
apply to the JOs and the severity of the punishments should be at least 2 or
three times more than for ordinary citizens.
10. The system of laying down law by courts, including
referring matters to bigger benches, should be banned. If the judges find any
need to change laws they must refer the matter to the legislating bodies giving
detailed reasons. Whatever changes are approved should be notified for
implementation. And all changes should be available to the public through a
website to be maintained by the Ministry of Law and Justice.
11. All quasi judicial bodies should be done away with.
The
above are almost conceptual requirements and nitty gritties will have to be
done with more deliberation.
Law
makers without any prescribed qualifications, qualities or experience, law
enforcers with all the scope for distorting and manipulating data required to
aid decision making, without any accountability and the law interpreters with
all the leeway for making whimsical, wayward
and even treacherous decisions without even the fear of being questioned sums
up the gifts of our Constitution.
Among
the three organs of our Constitution the law-makers are (theoretically, at
least) controlled by the people, bureaucracy (yes, bureaucracy, because without
the active support of the bureaucracy no politician can do any wrong!) and
finally the judiciary; the law-enforcers, that is, the Executive, are also
controlled by the law-makers (at least in principle) and the judiciary. And
then there are the ears and eyes of the people- the media- waiting to sensationalize
every news involving the misdemeanor of these authorities.
In
spite of such strict supervision and control all that we can hear these days
are about politician-bureaucrat-underworld nexus even though the fact remains
that none, worth the name, from this unholy nexus have ever been punished by
the holier-than-thou judiciary.
So
now think how bad a system can be which is not only NOT subject to supervision
but also kept beyond critical observation. Well isn’t our judiciary just that?
And do I need to recapitulate that quip: power corrupts and absolute power
corrupts absolutely?
Thanks
to technology, specifically in the area of communications, information is
accessible to the masses almost live. So the ability to shove things under the
carpet and pontificate without walking the talk is becoming next to impossible.
And those who fail to recognize these changes are bound to be thrown into the
dustbins of history. We have a report, dated 09 Oct 2024 at https://www.youtube.com/watch?v=pPbNTbyb-Vg, providing an overview of the performance of the CJI,
D Y Chandrachud. The comments posted by viewers are worth reading and
understanding. While criticism of the judges was earlier restricted to closed
door discussions, the public, having decided that enough is enough, are openly
venting their frustrations and views in public domain, accessible to anybody in
any corner of the world.
Here
is a message that has gone viral on social media.
I
request the doctors, with folded hands, that whenever a judge falls ill,
instead of giving him medicine, given him a next date. The justice system of
the country will improve automatically. Makes sense to me. It can also be
extended to all service providers to expedite the process.
P
M Ravindran/ raviforjustice@gmail.com 21 Oct 2024
EXAMPLES
TO ILLUSTRATE JUDICIAL PERFIDIES BROUGHT OUT IN THIS SERIES
1.
13 years after
independence and 10 years after we adopted a Constitution, the Apex Court had
ruled, in Berubari Union & Exchange
of Enclaves (AIR 1960 SC 845, 856), that the Preamble is not part of the
Constitution and, 13 years later, in Kesavananda Bharati Vs State of Kerala,
ruled that the Preamble of the Constitution was part of the Constitution and
the observations to the contrary in Berubari Union case was not correct (AIR
1973SC 146). Did any facts or law change change during the intervening period?
No.
2. The same Kesavananda Bharati judgment was used to
introduce a weird concept of basic structure of the Constitution. The basic
structure of the Constitution is taught in high schools and simply stated it is
that the Constitution has provided three organs- for law making, for law
enforcement and for law interpretation (in cases of dispute) and all of them
are to work within the frame work laid down by the Preamble. But the judgment itself
has not defined this basic structure and in practice it has been reduced to the
judiciary usurping all the powers of all the organs and keeping itself as an
unaccountable, self serving entity. Literally, it was murder of democracy
itself. There is an interesting
exposition of this judgment at https://nlc.org.in/nothing-is-more-laughable-and-contrary-to-the-elementary-principles-of-jurisprudence-than-the-so-called-basic-structure-theory-based-on-which-the-supreme-court-has-rendered-hundreds-of-judgements-an-5/.
3. The third blasphemous judgment is what is known as the
ADM Jabalpur case. It was during the dark days of Emergency that the Supreme
Court held that even right o life would not be a fundamental right during the
Emergency. This led to critics castigating the judges by declaring that the
judges crawled when required to bend. One of the judges, Y V Chandrachud, later
went on to become the longest serving Chief Justice of India. More than four and a half decades later, his
son, D Y Chandrachud, as the Chief Justice of India, admitted that that
judgment was wrong. Did it make any difference to all those who suffered by
that judgment? Did it help in changing the system for the better?
4. Worse was still to come. Indira Gandhi, then Prime
Minister, had been convicted by the Allahabad High Court on 12 June 1975, for
election malpractices. She
challenged the High Court's decision in the Supreme Court. Vacation bench of V R Krishna Iyer, on 24 June
1975, upheld the High Court judgment and ordered all privileges Gandhi received
as an MP be stopped, and that she be debarred from voting. However, she was allowed to continue as Prime Minister pending the
resolution of her appeal. On 25
June 1975 Indira Gandhi declared the Emergency and introduced a Constitutional
amendment with far reaching effects and unheard of in the annals of
jurisprudence. The 39th amendment to the Constitution, of 06 August 1975, made
with almost all the opposition leaders in jail, even exempted the Prime
Minister from all punitive actions in cases of allegations of election
malpractices with retrospective effect. And, based on this amendment,
she was acquitted by the apex court on 07 November 1975. Y V Chandrachud was a
member of this bench too, which was headed by the then CJI A N Ray, who had
been appointed as CJI, on 26 April 1973, superseding three others, who had been
dissenting judges in the Kesavanada Bharati case.
5. Thereafter history is replete with whimsical,
preposterous and obnoxious judgments which have contributed to the failure of
rule of law in this country in a big way. Here are some more examples.
6. The apex court failed to deliver a fair judgment even
in the case of the date of birth of a Chief of Army Staff. The law on the
subject is clear. The birth certificate or the school leaving certificate are
considered authentic proofs for date of birth for any citizen in India. Gen V K
Singh’s proof- his school leaving certificate- was foolproof. But more than 30
years into serving in the army and having risen to a rank one notch below the
Chief, he was asked to sign an undertaking that he was prepared to accept the
date of birth wrongly entered in the application
form for admission to the National Defence Academy. His petition to the
Supreme Court was dismissed on an unheard
of argument by the government counsel about a line of succession being disturbed. Nobody asked why a Lt General
had to sign an undertaking of the nature Gen VK Singh was made to sign on the
eve of his appointment as an Army Commander.
7. The issue of date of birth again figured in the case
of Virendra Dutt Gyani, a former Acting Chief Justice of Guwahati High Court
who had retired on 29 July 1998. Born on 30 July 1936, there was no doubt he had
attained 62 years of age on 30 July 1998. After the Central Government
introduced enhancement in pension in 2006 for pensioners attaining 80 years of
age and above in various stages, Virendra Dutt Gyani became eligible for 20
percent hike in pension from Jul 2016. However, he claimed that he had entered
80 years of age in July 2015 itself and claimed the enhanced pension. The
concerned authorities declined it rightly. But a division bench, comprising
judges Ujjal Bhuyan (he is now a judge of the Supreme Court) and Nelson Sailo
of the Guwahati High Court granted his demand. A three member bench of the
Supreme Court, headed by the then CJI Gogoi and judges Deepak Gupta and
Aniruddha Bose, dismissed the Special Leave Petition of the Union Government
with this 4 line observation: Having
heard learned counsel for the petitioners and on perusing the relevant
material, we are not inclined to interfere. The special leave petition is
accordingly dismissed.
8. The cases of Rank Pay of armed forces officers and the
Sahara India case have similar contrast in the way judges apply logic to cases
before them. In the former, Rank Pay, introduced in 1986 for the officers was
denied to them through subterfuge. The new basic pay was calculated and the
rank pay was reduced from it before fixing the revised basic pay. Major (then
Captain) Dhanapalan observed this while he was involved in revising the pay of
the civilian employees of the Military Engineering Service. He brought it to
the notice of the then Chief of Army Staff, General K Sundarji. But nothing
happened thereafter. Finally, Major
Dhanapalan approached the High Court of Kerala in 1998-99 and got relief. Even when
the Supreme Court upheld the decision of the High Court it did not apply the
order to all similarly placed beneficiaries leading to many beneficiaries
approaching the courts in groups. A sad state of affairs for courts reeling
under mountains of pending cases. Finally, more than a decade later, the
Supreme Court ordered the government to pay the dues to all affected officers;
but, accepting the government’s claim of financial problems, the officers were
deprived of the arrears of 20 years. Nobody paid for the subterfuge. In
contrast, in one petition filed by the Securities and Exchange Board of India,
Sahara India was ordered to refund the deposits of all the depositors,
amounting to Rs 25,000 Crores in a few months. The company could not pay it within
the specified period as the money had been invested in various projects. Its
CEO, Subroto Roy, spent a few years in prison before he died.
9. Coming to the mountain of pending cases, the only
argument I have heard from judges is the shortage of judges based on an
irrational judge to population ratio. It doesn’t require Einstein’s brains to
understand that it is not the population that matters but the number of cases
filed. Adv K T S Tulsi had proved with statistics that it is the judge to
docket ratio that matters and that it is in favor of Indian judges. Here are the statistics he had quoted in 1999:
Cases Filed in One Year : India 13.6 Million (1,36,68,073), USA 93.81 Million
Dockets Per Judge :
India 987 per Judge, USA 3235 per Judge
Shockingly, the colonial legacies of holidays during
summer, winter and festivals, short working hours and adjournments ad infinitum
have never figured among the reasons. CJI D Y Chandrachud took the cake for not
establishing even a vacation bench during the holidays for Christmas in 2022,
shortly after he took over as CJI. If somebody thought that it meant that there
was no use of the Supreme Court in the day to day affairs of the country, I am
sure, he cannot be faulted.
10. As per reports published by India Today on 16 November
2019, 68 percent of inmates in our jails are under trials and 65 percent of
them belong to the marginalized sections of the society. As per a report in
Times of India on 02 July 2023, within 11 hours of the Gujarat High Court
denying bail to Teesta Setalvad, two benches were constituted by the Supreme
Court on a holiday, while the Chief Justice of India was attending a cultural
program, and granted bail by a three member bench. In between a two member bench was divided
leading to the constitution of the three member bench. Ever since then, I have
kept wondering whether the divided verdicts of the two member bench shouldn’t
have given finality to the High Court order itself.
11. And then there are cases involving the high and
mighty, like Lavlin (involving Pinarayi Vijayan, the Chief Minister of Kerala
since 2016) being adjourned 40 times in the Supreme Court, as per a report,
dated 03 May 2024, at https://www.onmanorama.com/news/kerala/2024/05/02/supreme-court-lavalin-case-adjourn-final-hearing.html. So is the case with National Herald, involving Sonia
Gandi and Rahul Gandi.
12. The Sabarimala verdict on women’s entry comes to mind
as a case of wrong application of the provisions of the Constitution. It was
decided on the basis of Article 25(2)(b). While the mandate of Article 25(2) (b) is to throw open Hindu
religious institutions of a public character to all classes and sections of
Hindus, rights under Article 26 is provided to every religious denomination.
Now even hard core rationalists cannot deny that if any change had to be made,
on the principle of gender equality, it was to be made for Article 25(2)(b) by
making it non-religion specific. (A detailed analysis is available at https://www.vijayvaani.com/ArticleDisplay.aspx?aid=4849) The misery it unleashed on the unsuspecting
devotees in 2018 had to be seen to be believed. Review petitions to reconsider
the decision is pending before a 9 member bench so far. Well, as per
information provided to the Lok Sabha on 28 July 2023, there were 5 cases
pending before 9 member benches, 6 cases pending before 7 member benches and 18
cases pending before 5 member benches, the oldest dating back to 1992.
13. In contrast, the apex court dismissed, with
costs on the petitioner, a petition filed by a former chairman of Uttar Pradesh
Shia Central Waqf Board, Syed Wasim Rizvi. The petitioner had prayed for
deletion of 26 verses from the Quran on the ground that justifications given by Islamist terrorist groups for the attacks on
non-beleivers/civilians emanate from the 26 verses/suras of the Islamic Holy
book. The petition was dismissed as frivolous.
14. The judiciary has even led the subversion of the Right
to Information Act. It began with prescribing a fee of Rs 500 with the
application and Rs 50/- for the 1st appeal. With other public
authorities this was just Rs 10/- with application and no fee for 1st
appeal. Even then the judiciary had kept its judicial functions out of purview
of the Act which was meant to promote
transparency and accountability in the working of every public authority and
to contain corruption and to hold
Governments and their instrumentalities accountable to the governed.
15. The Supreme Court even claimed that the office of the
Chief Justice of India was out of purview of the RTI Act to deny information
held with the Chief Justice. Even after the competent authority, the Central
Information Commissioner(s), decided against it and two benches of the Delhi
High Court also upheld that decision the apex court took a decade to finally
admit that the CJI’s office was very much within the purview of the RTI Act.
But even then they introduced an illegal provision that the Public Information
Officer may ask for the reasons for seeking the information. Illegal, because,
the Act explicitly stated that An
applicant making request for information shall not be required to give any
reason for requesting the information or any other personal details except
those that may be necessary for contacting him.
16. The apex court has not, in blatant violation of the
law, even complied with the provisions of Section 4(1)(b) of the RTI Act which
mandates disclosing of certain information suo moto. It includes the directory of its officers and employees
and the monthly remuneration received by
each of its officers and employees. While initially the details, including
remuneration, of the employees were given the remuneration of judges was not
provided. Instead, in the case of judges, the reference of the orders pertaining to their pay was provided. Of
late, that is, as on 08 October 2024, even that is missing. Also, regarding
remuneration of officers and employees, excluding judges, earlier the pay
scales of employees were given category wise and the complete list of
employees, category wise, had also been provided separately. Now the latter
list is also missing. Apparently, the exposure of judge to employee ratio has
something to do with it.
17. The Supreme Court judges also tried to take over the
information commissions by ordering, in what is popularly known as Namit Sharma
case, that information commissioners will decide cases in benches of two
members one of whom should have been a judge. However, after creating chaos in
the working of the commissions for about a year, the court recalled its verdict
on 03 September 2013.
