JUDICIAL PERFIDIES-33

 

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 1^st appeal. With other public authorities this was just Rs 10/- with application and no fee for 1^st 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.