JUDICIAL PERFIDIES-14

 

Take a break. The thread of this series just got entangled with some current events. No doubt, the judiciary is the topic of discussion here too.

 

On 20 March 2022 a celebrity artist, Dr Neena Prasad, conveyed her agony, through a facebook post, on how her dance program at a book release function, the previous day, had been interrupted and had to be abandoned midway on the orders of a District Judge staying close to the venue. The venue was a Government Lower Primary School, where such programs, and even noisier ones, had been organized frequently in the past. Many judges had occupied the official quarters nearby and some had even gone on to be judges of higher courts too.

 

Legally speaking, the organizers had all the necessary permissions, including the use of loud speakers, to have the program till 9:30 pm, well ahead of the deadline permitted for use of loudspeakers.

 

She had posed a very pertinent question too: should artists perform based on the unjust and unacceptable personal whims of judges and bureaucrats? Poor lady, I must say, how far removed is she from the realities of everyday life in India.

 

A few more pertinent questions that arise are:

1.      Was it an official order issued by the District Judge that was enforced with such alacrity?

2.      Did the District Judge follow the procedure which any citizen has to follow to pursue a complaint of nuisance due to sound of loud speakers?

3.      Did the police follow the procedure they are required to follow on receipt of such a complaint, given that it was they who had sanctioned the use of loudspeakers for the program?

4.      Did the police ever warn the organizers that the sound level was more than what was permitted?

 

Malayalees all over the world came to know of this atrocious incident through online media on 22 March 2022 (https://www.onmanorama.com/news/kerala/2022/03/22/police-stop-dance-performance-noise-complaint-palakkad-neena-prasad.html). By evening, of the same day, English media too posted reports of the incident at their online sites (https://www.thehindu.com/news/national/kerala/judge-draws-flak-for-stopping-mohiniyattam-show/article65246666.ece and https://www.indiatoday.in/india/story/row-in-kerala-as-police-stops-traditional-dance-after-judge-takes-offence-to-loud-music-1928550-2022-03-23)

 

A silver lining in the whole despicable episode was the condemnation of the interference by the judge by not only fellow artists and political leaders but also by the members of the bar.

 

A report of 25 March 2022 at https://youtu.be/4HslmDRm8xk informed its viewers that the judge had explained that it was not he who had objected to the program but his staff. But even the reporter could not help expressing how it lacked credibility. The question also arises as to who were this ‘staff’ working in the residence of the judge at 8 o’clock in the night.

 

Interestingly, this judge is the brother of a retired high court judge, who had been going around delivering provocative speeches against the Citizenship Amendment Act. The video of one of his speeches, in Malayalam, can be seen at https://youtu.be/80rIASpi-Oc. I had, on 06 Jul 2021, sent an e mail to the Chief Justice of the Kerala High Court bringing it to his notice. For those who do not the language here are the main points he had made:

At 2.20 minutes he can be heard saying, in the context of a question on whether the anti CAA agitation would end if the apex court gave a ruling on it, that this is not a matter to be decided by the court but it is an emotional subject and the protest should continue till the Act is withdrawn. (My note: doesn’t it sound familiar? Remember Shaheen Bagh, the Farmers’ Protest? And now, some comments after the Hijab verdict of the Karnataka High Court?)

At 5.30 minutes he says that the aim of the Bill (sic) is to give a false assurance to Hindus, Sikhs, Buddhists, Jains, Parsi and Christians that the government is with them and to give muslims, an unwanted class (according to him), that they are nobody. In effect, to create polarisation based on religion.

At 11.30 he says that the inner line permit is being used to divide the country by the current Union Government, (My observation: the inner line permit has been in existence long before the BJP had come to power in the Centre).

At 15.00 he blatantly lies that the government has said that they will decide who amongst those who claim to be citizens are actual citizens.

 

This is not an aberration. Another report, dated 11 February 2022, again in Malayalam, of this former high court judge speaking at a function organized by Indian Muslims in Riyadh, Saudi Arabia is available at https://youtu.be/buz3tYHa1q0. The topic was ‘The role of Koran in Legal System’. He can be seen explaining the concept of taqiyyah and how and why to use it to mislead non-Muslims in societies where Muslims are minorities.

 

Before I narrate one of my experiences there is a need to recapitulate a bit of related history.

 

The Kerala High Court had rightly banned bandhs long back as it infringed on the rights of the public to move freely and carry on with their lives without being held to ransom by the protestors. The apex court had also upheld this order and it had become the law of the land. However, the perpetrators continued with the same bandh by simply referring to it as hartal. The courts have remained mere spectators.

 

Some reports in the media indicate there have been on an average 300 hartals per year in Kerala, mostly localized but enough at the state level. Going by experience, even mere strike at the national level gets enforced effectively only in Kerala. There was one last year even when the nation was reeling under Covid. There was one, panimudakku (or boycotting work) on 28-29 March 2022.  While in the rest of India it did not adversely affect normal life, in Kerala there were plenty of instances of violence by the protesters and evidences are available in the video clips posted by citizens on social media. Of course, we need not discuss the validity of the court orders as we have seen how the apex court dealt with the anti CAA protests and farmers’ agitation.

 

But in Kerala, the High Court, while doing nothing against the violation of their orders holding bandhs illegal, went one more step ahead and held that holding meetings on road sides or processions on roads was also illegal. Thankfully, the court had also ordered that places should be earmarked for protestors to vent their grievances publicly, which has not been complied with till date. On this, a politician commented that the judge was a dimwit and got 6 months in prison for contempt of court.

 

However, what has been implemented is a procedure to seek permission to hold meetings and use loudspeakers. But how it has been implemented is even more questionable. One has to submit an application with a prescribed fee to the local police authorities almost a fortnight in advance. Mostly no response will be received and the organizers can go ahead with their program without much ado. If anything goes wrong the organizers will be hauled up for not taking due permission. And here is where my experience begins.

 

Anti Corruption Movement Kerala had a young and dynamic secretary, who had submitted an application, well in time, for holding an event in a public place (not road side) after paying the prescribed fee, for using mikes, in the treasury. 5 days before the event he went to collect the sanction letter. He was informed that the application was missing and advised to submit a fresh one. He took me along to pay the prescribed fee in the treasury and submitted the application afresh. On the day of the scheduled event he went to the police office to collect the sanction letter. He was told that the file was with the Deputy Superintendent and that since the officer wasn’t available in the office, he could go ahead with the program. Left with no alternative he went about organizing the event.

 

I was an invitee as a speaker. Presence of two police officers raised my hackles. I walked up to them and enquired if there was any problem. I was told that since the organizer had earlier created a scene in a function attended by the then Chief Minister, the youth of the party were agitated and there was a need to ensure nothing untoward happened.

 

As soon as the function was over, two police personnel in mufti walked over to the secretary and asked him if he had permission to use mike. He explained the situation. As if preplanned, they then took the mike set to the police station, followed by the mike set provider and the secretary. Another participant and I followed them. After making us wait, the mike set was released by evening and all of us left for our homes. Months later it was only when the secretary received summons from the court, for all three of us, that we realized that the episode was not over.

 

The court case carried on for about 4 years before we were acquitted.

 

Meanwhile I pursued the issue of sanction with the police authorities under the Right to Information Act. The copy of the file noting I received shocked me. The application had been rejected on the ground that the applicant was an accused in another case (of protesting at the venue of the function attended by the Chief Minister). Interestingly, the same civil society organization had been given permission earlier when the applicant had been another functionary.

 

Another report that attracted my attention recently was a post on Facebook. It said : 31 years later, killed Kashmiri Pandit’s family moves court against Bitta Karate. The family of Satish Tickoo, believed to be one of the first Kashmiri Pandits murdered by separatist Farooq Ahmad Dar alias Bitta Karate, moved Srinagar court for status report on FIRs registered against Karate. The court criticized J&K government for its inaction in last 31 years. In a 1991 interview, Karate admitted to killing several Kashmiri Pandits.

 

A quick search on Google revealed a few more reports. The one at https://www.business-standard.com/article/current-affairs/sc-rejects-plea-to-probe-genocide-of-kashmiri-pandits-in-valley-in-1989-90-117072400316_1.html was titled ‘SC rejects plea to probe genocide of Kashmiri Pandits in Valley in 1989-90’. The reason reported was that almost 27 years have passed and it will be very difficult to gather evidences in cases of murder, arson and looting which had led to mass exodus of Kashmiri Pandits from the Valley. The court did not miss the opportunity to castigate the petitioner organization ‘Roots of Kashmir’ in so many words: You (petitioner) sat over it for last 27 years.

 

Possibly, encouraged by the success of the movie Kashmir Files, Roots of Kashmir has filed a curative petition in the apex court, as per the report at https://www.tribuneindia.com/news/j-k/kashmiri-pandit-organisation-moves-supreme-court-seeking-probe-into-1990-massacres-380373 and  a Public Interest Litigation has been filed by ‘We the Citizens’, as per the report at https://www.tribuneindia.com/news/nation/pil-in-sc-seeks-sit-to-identify-those-responsible-for-genocide-of-hindus-sikhs-in-j-k-381286.

 

Interestingly, the dismissal of the original plea of Roots of Kashmir on 27 April 2017 due to presumed difficulty in gathering evidence had forced the petitioner to quote a Delhi High Court order of 2018 in the matter of Sajjan Kumar, convicted in a case related to the 1984 Sikh genocide in the national capital. The court had said: It’s important to assure those countless victims waiting patiently that despite the challenges, truth will prevail and justice will be done...

 

One of these report also informed the readers that the case against Yasin Malik for alleged gruesome murder of four officers of Indian Air Force on January 25, 1990 is still pending before a CBI court. Other pertinent information culled from these reports is:

215 first information reports (FIRs) had been lodged relating to the murder of over 700 Kashmiri Pandits and none of the cases have reached a logical conclusion.

Hundreds of FIRs on murders of Kashmiri Pandits during 1989-90, 1997 and 1998, are lying un-investigated by J&K Police even after expiry of 26 years.

Need to transfer all such FIRs pertaining to murders of Kashmiri Pandits, from J&K to some other state, preferably Delhi, so that the witnesses, reluctant to approach police or courts in view of their safety concerns, can freely and fearlessly depose before probe agencies and courts.

 

Let me conclude this part by quoting what I had written, in 2002, in an article titled ‘Democracy?… East Is East And West Is West!’:

 

Rule of Law not Rule of Judges. The mainstay of any civilized society, leave alone a democracy, is the rule of the law. For any law to be effective it should, first of all, be simple, clear and unambiguous. The affected people should understand it and imbibe it in letter and spirit. The need to go to courts to get interpretations for each and every clause certainly doesn’t speak well of the competence of our legislators. And worse, when the judiciary interprets the same law to mean different, sometimes even contradictory, things under different contexts, the public can only get confused and confounded, as they are now. In this context it would be worth recalling that confusion had prevailed even in recognising the preamble of our Constitution as an integral part of it! In 1961, the Supreme Court had observed that ‘the preamble is not part of the Constitution’, but in 1973, it held that ‘the preamble of the Constitution was part of the Constitution and the observations to the contrary in Berubari Union case were not correct’! Our present Union Minister for Disinvestment, Mr Arun Shourie, has done yeomen service in compiling a number of intriguing cases in a book titled ‘Courts and their judgments’. At the function held to release the book he also made a tongue-in-cheek suggestion: that there should be a group of scholars reviewing all sensitive rulings of the higher courts so that the judges were also careful that their judgments were subjects to scrutiny!

 

P M Ravindran/raviforjustice@gmail.com/310322

 

JUDICIAL PERFIDIES-13

 

Those who have followed this series should not be having any doubt that our judiciary is a failure from the three fundamental principles of jurisprudence, viz:

Justice delayed is justice denied,

Justice should not only be done but seen to be done and

Capital punishment should be given in the rarest of rare cases.

 

There are many reasons for such failures, as claimed by those who try to defend them. These have been covered in the earlier parts, like the brazenly illogical judge to population ratio as a cause for delay. It has been countered with the factual judge to docket ratio. Then there are the unwarranted holidays, short working hours and the most ubiquitous and legally untenable adjournments, ad infinitum. 

 

I have with me the calendar of holidays announced by the apex court for the year 2022. There are only 230 working days. There is a summer vacation from 22 May to 10 July, Dushera holidays from 02-09 October, Diwali holidays from 23-30 October and Christmas vacation from 18-31 December. I know that even in America there are offices that do not have a holiday even for Christmas. These summer and winter (read Christmas) vacations are a vestige of colonial times when the judges used to retire to hill stations in summer and head home to England for Christmas. Of course, the Dushera and Diwali holidays must be our addition post independence. But can you think of any other public offices having such long vacations? Come to think of it, when police works 24X7, shouldn’t our judiciary be also available 24X7?

 

The Lokpal, which had just been constituted in 2019, too has only 207 working days, 146 holidays and 12 restricted holidays. Of the 146 holidays, 12-25 June is summer vacation, 25-30 September is Puja (?) holidays, 01-05 October is Dushera holidays, 22-30 October is Diwali holidays and 24-31 December is Christmas holidays. Interestingly, this is applicable only for the Chairperson and members of the Lokpal. Just for the record, they have nothing published in terms of disclosures under Section 4(1)(b) of the RTI Act.

 

There was this interesting case of a President of the Kerala State Consumer Disputes Redressal Commission having declared holidays for the Commission in line with the holidays declared by the Kerala High Court. A consumer organization, Consumer Vigilance Centre, took up the matter with the High Court and this President, a former judge of the same high court, submitted a false affidavit that he had not made any such declaration. Unfortunately records proved otherwise. And the judge who decided the case just noted in his verdict that this former judge had misled the court and closed it.

 

Where justice is not seen being done, the failure is invariably attributed to the failures of the investigating officers and/or advocates in presenting the facts correctly and completely.

 

Here, I am reminded of a quip which goes like this: anybody can make a right decision, given enough facts; a reasonable man can make a right decision given sufficient facts and it requires a genius to make a right decision in perfect ignorance.

 

We should presume that reasonable men are appointed as our judges. 

 

Field Marshal Manekshaw had said the same thing is the context of army officers. That is, anybody can make a decision and statistically he has a 50 percent chances of being right. The process of selection improves the chances of him being right by another 50 percent. His training increases it by another fifty percent. The dedication and competence of the troops he commands will take care of the rest.

 

Unfortunately, what we see in the judiciary are preposterous assertions like: 'courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities' (Ittavira Vs Varkey (A 1964 SC 907) and 'there can be no interference in revision merely because the decision is erroneous in law or in fact where there is no error pertaining to jurisdiction' Misrilal Vs Sadasiviah (A 1965 SC 553).  Incidentally, these were case laws quoted by the respondents, represented by a law firm with adequate clout in judicial circles, in a consumer case that I had pursued from a district forum to the national commission more than a decade and a half back.  Yes, the Consumer Protection Act had been enacted in 1986 only.

 

That’s not all. Even in the interpretation of the provisions of this law, there have been inconsistencies created, purely due to lop sided logic.

 

 In Jancy Joseph vs Union of India (1999 (1) KLT 422), the question of applicability of Section 56 of the Civil Procedure Code (CPC), 1908, while ordering arrests under the provisions of Section 27 of the Consumer Protection Act (CPA), 1986 was considered by the Kerala High Court.

 

Section 56 of the CPC states that, 'the court shall not order arrest or detention in the civil prison of a woman in execution of a decree for payment of money; regarding recovery of money from others, arrest can be ordered if it is found that the person concerned have means to pay'.

 

The judge had ruled that 'I quash Ext P5 in so far as it holds that woman can be arrested for recovery of money under Sec 27 of the (Consumer Protection) Act and that means of judgement debtor need not be considered when the power under S 27 is exercised for recovery of money'.

 

Of course, between 1908 and 1986 we had given to ourselves a Constitution that promised justice, liberty and equality, irrespective of caste, creed, religions, sex, place of birth etc. But granting that the CPC, 1908 is still being followed, the question that can be validly raised is the judge’s discretion to aggravate the discrimination on grounds of sex by asserting that the means of the judgment debtor need not be considered when power under S 27 of the CPA is exercised.

 

Given that, as per CPA, every decision, favorable to the complainant consumer would involve recovery of money, whether in terms of refund of costs and/or compensation, this judgment actually exempted half the population of the country- women- from the penal provisions of the law. In other words, women could cheat with impunity and get away with it.  I can state this with authority as I became a victim when a woman, with her husband in tow, acted as an agent of a non-existent firm that undertook to develop a lawn in front of my house and defaulted. (I wasted more than Rs 25,000/-, pursuing this complaint for almost a decade beginning 2000, in the district consumer forum/state consumer commission, for refund of Rs 14000/-)

 

The injustice did not stop there.

 

In Mary Chacko vs Jancy Joseph (2005 (3) KLT 925), a division bench headed by the then Chief Justice of Kerala considered the issue of the applicability of the same Sec 56 of CPC while enforcing the orders under Recovery of Debts Due to Banks and Financial Institutions Act 1993 and ordered that women CAN be arrested because 'there is a clear basis for treating the public dues different from the purely private'.

 

Now this raises a genuine doubt whether the Constitution of India, by which all these luminaries swear by, mention anywhere that justice can be denied to individual citizens? As I see it, or as any man in his senses would see it, it is a big NO! Doesn't it suggest that our judges should read the Preamble to the Constitution every time they opened a case file?

 

As well as the Gandhi Talisman (Recall the face of the poorest and the weakest man [woman] whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him [her].) for added effect.

 

A report at https://www.ndtv.com/india-news/delay-in-communication-of-bail-orders-affects-liberty-needs-redressal-at-war-footing-sc-judge-2597974 (Delay In Communicating Bail Order Serious Flaw: Justice DY Chandrachud; November 03, 2021). This was in the context of Aryan Khan, son of Bollywood superstar Shahrukh Khan, spending an extra day inside the Arthur Road jail in Mumbai, despite securing bail from the Bombay High Court in the drugs-on-cruise case. Chandrachud had termed the delay in communicating bail orders to prison authorities as a "very serious deficiency" and stressed the need to address it on "war footing" as it touches the "human liberty" of every under-trial prisoner.

 

And, there was this report at https://timesofindia.indiatimes.com/india/can-less-heinous-offence-cases-be-dropped-asks-sc/articleshow/89463808.cms (Can less heinous offence cases be dropped, asks SC; Feb 10, 2022) where the apex court  decided to examine whether the pending criminal cases, involving less heinous offences, and in which the accused have already spent substantial part of the sentence, be dropped by the prosecuting agency to ease the burden on the courts for expeditious disposal of serious cases involving heinous offences and also to prevent accused from languishing in jail and to reduce overcrowding in jail. Forget about the gross injustice in holding somebody as an under trial in judicial custody for such prolonged periods, what about the horror of living forever under a cloud of doubt for the person acquitted and the equally disconcerting state of the aggrieved that he had not been given justice?

 

Equally important is the question: can the law makers, including the judiciary, give exemption to the police from investigating criminal cases, involving less heinous offences? Of course, the issues of defining less heinous offences and substantial part of the sentence will have to be addressed too. Yes, these are not as simple as they appear. Even in the Right to Information Act the term substantial appearing in the definition of a public authority has led to many questionable decisions by the adjudicating authorities.

 

Meanwhile, Anil Gidwani, 63 year old alumni of IIT Mumbai and a software engineer had to fast for 37 days before he could get an order from Mumbai High Court in the following terms:

1.      The alleged contemnor in person submits that he is seeking only a tentative date for fixing the matter for hearing and completion of the contempt proceedings. He has humbly submitted that he is not expecting any time limit for fixation of the date.

2.      Hence, as far as possible, the contempt proceeding shall commence after six months and be completed, as far as possible, within three months.

3.      Stand over to 01/09/2022.

 

Only time will tell to what extent this commitment will be honored. The qualifier ‘as far as possible’ (used twice in the same sentence), notwithstanding, even the term completed cannot be taken to mean what it usually means. To presume that the proceedings will end with a verdict will be delusional. I do not know if the courts have data on cases where verdicts are pending long after the final arguments are over. But I do know that this delay can be more than even five years and the judge might have even gone on transfer or retired, leaving the parties high and dry. The agony of the aggrieved can well be imagined.

 

Here is an extract from a report ‘India’s huge backlog of court cases is a disgrace – but Covid-19 has provided solutions’ (https://scroll.in/article/998458/indias-huge-backlog-of-court-cases-is-a-disgrace-but-covid-19-has-provided-solutions; Jun 28, 2021):

 

The E-Committee of the Supreme Court has been in existence since 2005. It has made two outstanding recommendations which are not being followed:

 

1) E-filing in all courts: The committee has made detailed standard operating procedures on how petitions, affidavits, payment of fees can all be done electronically without lawyers or litigants having to travel to the courts. This has been implemented in small ways and often in absolutely perverse and wasteful ways. Many High Courts have insisted that the petitions must be filed by email and then the paper copies must be submitted. To make this more wasteful and interesting, the paper copies are scanned and the “digitised” images are not used anywhere.

 

A lot of travel and expense would be saved for lawyers and litigants. It would also save a lot of space in the courts and make them cleaner and smart. A rough calculation indicates that the courts of India require about 12,500 tonnes of paper that requires the destruction of about 3 lakh trees.

 

2) Virtual hearings: Virtual hearings have been held by courts for about two decades in a few cases. But this has been done as an exception. The Covid-19 crisis led to the demand to conduct virtual hearings. Whereas some courts did hold some hearings selectively, the disposals fell dramatically, since many judges worked for less than 50% of the time even on virtual hearings and some did not work at all.

 

Again, just for the record, when the pandemic struck in March 2020, directives were issued for lockdown and which all services will be affected fully or partly. We saw that essential services were exempted. The health workers and police were stretched to the maximum. While some minimal additions were provided to the health staff, the police had to do with the existing staff. The electricity, water, telephone, media and such services were also provided without serious problems.

 

When it came to courts, the call was taken by the judiciary itself. I am not aware whether the decision was taken considering it to be an essential service or not. But as per another report (https://scroll.in/article/971860/covid-impact-cases-disposed-by-high-courts-drop-by-half-district-courts-by-70; Sep 04, 2020) cases disposed of by High Courts dropped by half and district courts by 70%. The Supreme Court’s website showed only the number of pending cases. On March 1, the Supreme Court had 60,469 cases pending. On July 1, the latest data available, the figure stood at 60,444.

 

P M Ravindran/raviforjustice@gmail.com/230322

JUDICIAL PERFIDIES-12

I had concluded Judicial Perfidies-11 with a billion rupee question: will the reasons for the Mumbai High Court reversing the judgment of the trial court and the reasons for the dismissal of the next two appeals be investigated and the responsibility fixed?  Also, will those responsible for the miscarriage of justice be punished, even if they are dead, for the sake of record and acting as a deterrent for the future?

 

From the data provided through tweets it is amply clear that Sopan Narsinga Gaikwad is a victim of a fraud perpetrated by the seller of the property. The only extenuating circumstance could be that the seller had informed Sopan of the mortgage and Sopan had accepted that liability too. But it had to be on record. Also, with the title deed of the mortgaged property being with the lending bank how was the sale deed registered? So the only task before the trial court judge was to verify these documents. Since he had given a verdict in favour of Sopan we should presume that the judge had gone through the process of validating all these. So that leaves the high court judges who reversed the verdict and dismissed the appeals in the dock. Also in the dock should be the advocate whose failure led to the last appeal being dismissed for delayed filing and default in appearance.

 

I doubt if these failures will ever be investigated.

 

Our judges have the means to blame everybody from the petitioner, to the investigating officer (where involved) and the prosecution to the witnesses, for the verdicts going awry. But a simple look at the Right to Information Act case of Subhash Agarwal in the matter of disclosure of judges’ assets will reveal that the judges can also be at fault. (This shall be discussed in more detail subsequently.) And this is in keeping with the truism in the quip power corrupts and absolute power corrupts absolutely.

 

Palki Sharma in her report quotes the Bhopal Gas tragedy too. In the tragedy that struck in 1984, 5 lakhs people were affected, 15000 killed and only 7 were convicted with maximum 2 years punishment. Many of the victims are yet to get their full compensation. 

 

So, she rightly asks: Is the legal logjam defeating the very purpose of the judiciary?

 

She has listed the following data too.

Of the 44 million cases pending in courts, 73000 in apex court itself. 8 lakhs are pending for more than a decade, 1 lakh for more than 20 years, 2000 cases for more than 50 years.

There are 23 new cases being filed every minute.

76 pc of the prisoners are undertrials, and as of 2020, 1271 are eligible for release having completed 50% of the maximum period for which they could have been punished, if convicted.

While 0.08 pc of GDP is being spent on the courts, the loss to economy due to judicial delays is 0.5 pc of GDP, ie about Rs 50,000 cr per annum.

11 Finance Commission had recommended 1734 Fast Track Courts. But the performance of those established, leave much to be desired. Delhi FTC takes 122 days for disposing a case against 133 days for regular courts.

Of the 29000 cases resolved in 2019, 81 pc were on trial for at least 10 years. It was insulting human dignity.

 

A study by Vidhi Centre for Legal Policy conducted in Delhi HC found that in 91 pc cases delayed over 2 years, adjournments were sought and granted. She calls it luxurious litigation.

 

However, when it comes to solutions suggested, she has gone bookish. Fill vacancies and appoint more judges, use technology to streamline process to end bench fixing, use virtual courts, Alternate Disputes Redressal, central tribunals to be last resort et all are nothing but armchair solutions as we shall see from the facts listed in the following paragraphs.

 

The issue of judge to population or docket ratio has been discussed in detail before. Filling vacancies is a just need but then when the authorization itself keeps increasing there are bound to be vacancies. But beyond authorization and vacancies there is one factor that has never been considered or taken up for discussion. That is the throughput of judges or in other words, the efficiency of judges. While unwarranted holidays, short working hours etc continue to limit the output, the illegal adjournments (yes, illegal, when they are beyond the limits prescribed by the Civil and Criminal Procedure Codes) and consequent delays should be attributed only to the incompetence of the judges. 

 

When the pandemic struck the Government of India announced a lock down but exempted all essential services. So we had our electricity, water, newspapers, TV, grocery stores and vegetables, without any or minimal disruption. The courts, as usual, were left to decide for themselves. And what did they do? Locked down and worked with emergency benches. Of course,

 

Using technology and ending bench fixing though apparently independent are also inter-related. Technology will certainly speed up the administrative aspects of the judicial process. And by doing away with human intervention it can bring an end (?) to bench fixing (or, uncle judge syndrome as it is known in legal circles) as well as docket hunting (as was highlighted indirectly by the four senior most judges of the apex court when they held a controversial press conference to cast aspersions, without substantiating any, on the then Chief Justice of India) and corruption too. As per a report in Hindustan Times of 03 May 2014 (https://www.hindustantimes.com/punjab/every-third-hc-judge-is-uncle/story-emvLdM8SlnlknyCQ4A7uLM.html) every third high court judge is uncle.

 

Regarding virtual courts, the demand has been quite old. I had read a report of a court in Mysore hearing a witness, based abroad, through video conferencing more than a decade back. But it took a pandemic to make it the primary means to process cases.

 

Alternate disputes redressal is again not a new subject. There are a plethora of institutions from ombudsmen (for local self governing bodies, banks, insurance) through commissions like human rights, women’s, child rights, minorities, consumer disputes and information (both at the state and national levels), police complaints authorities at state and district levels and even Lokayuktas and Lokpal. Anybody who has ever approached any of these quasi judicial authorities can vouch for the totally wayward manner in which they function, merely burdening the tax payer and mostly acting as rehabilitation centers for retired public servants.

 

There was this report of a Chairman of the Kerala State Human Rights Commission, a former judge of the High Court, holding regular sittings on the 1^st of every Malayalam month at Guruvayur, a pilgrimage centre famous for the Lord Krishna (Guruvayurappan) Temple in Thrissur, Kerala. It was as if that was the centre for most of the human rights violations in the State. This was while most of the district headquarters were totally out of the list of locations for camp sittings of the Commission.

 

Since I shall be dealing with the consumer fora/commissions and information commissions in detail later, let me just cite the example of the Lokpal.

 

The Lokpal and Lokayuktas Act became law in 2013. The Lokpal provides for a chairman, who has been a judge of the Supreme Court, four judicial members who have been either judges of the apex court or a chief justice of a high court and four non-judicial members. The Lokpal was finally constituted in 2019 with full quorum and as of 07 Mar 2022, there are vacancies of two judicial members.

 

A report in The Print (‘Complaint not in right format? No problem, Lokpal will scrutinise it to spot genuine grievances’ dated 07 March 2022 at https://theprint.in/india/governance/complaint-not-in-right-format-no-problem-lokpal-will-scrutinise-it-to-spot-genuine-grievances/858567/) attracted attention for more than one reason.  Firstly this format is a big thing in our judicial scheme of things. A further reading of the report revealed showed a table having the following data:

Year                       Total Complaints received      Complaints in right format

2019-20                     1427                                        45

2020-21                     2355                                        110

2021-22                     4244                                        128

Live complaints as on 31 Jan 2022           -         36

Complaints in which probe ordered         -          03

 

So what happened to the complaints not in the right format?

And what of the rest of the complaints in the right format which are neither live nor being probed?

 

Here is the data on the disposal of complaints, as per the Annual Report for 2019-20:

   

              

The following facts are noteworthy:

*Annual Report of 2020-21 was not available at their website https://lokpal.gov.in/.

*Disclosures under Section 4(1)(b) of the RTI Act is not available at their website

*The copies of the orders are not available at their website and most importantly, the number of complaints which have been decided in favour of complainants and the action taken against the defaulters, that is, for example, cases being prosecuted in Special court(s), are not available even in their Annual Report. (Is there any reason why all courts and quasi judicial organizations should not use the same format as used by the Supreme Court for its website? Not that the apex court website meets all the requirements of transparency and accountability but still for the purpose of standardization and user friendliness it is still a good idea to begin with.)

*Budget allocation and Expenditure during 2019-20 has been as follows:

Budget Estimate               Rs 101,29,00,000

Revised Estimate             Rs   18,01,00,000

Actual Expenditure         Rs   16,40,73,000

*Sanctioned Strength- 144; In position- 84. A proposal for sanction of 447 posts has already been sent to the Government.

 

There is also this blog on ‘How the Indian judiciary can get out of the tareekh-pe-tareekh mode’ by popular author Chetan Bhagat at http://www.chetanbhagat.com/columns/how-the-indian-judiciary-can-get-out-of-the-tareekh-pe-tareekh-mode/. He writes:

‘…there is one huge bottleneck that prevents India’s economy from thrusting full steam ahead. This is our justice system and hence the need for judicial reforms.’ He is unduly optimistic when he asserts ‘If we could vaccinate a billion people, surely, we can also make our courts faster?’ His suggestions unfortunately are, again, bookish- more budgetary allocation, more court buildings and virtual courts, hiring more people, a separate paperwork and administrative assistance entity, and re-imagine the paperwork filing and hearing system.

 

My comments were:

More budgetary allocation, more court buildings, hiring more people etc are facile requirements, more in line with the judge to population ratio touted by judges and their apologists when what matters is the judge to docket ratio. In a presentation on ‘Justice delayed in India’, made by Adv K T S Tulsi on 24 August 2004 at the Supreme Court Bar Association, here are the statistics he had presented:

Cases filed in One Year (1999):

India 13.6 Million,  USA 93.81 Million (689% more cases with less than 25% population)

Docket’s per Judge:

India  987   USA  3235 (327% more compared to Indian judges)

 

He has also asserted in no uncertain terms that the primary causes of delay are:

 Not the law

 Not the procedure

 Not the paucity of judges

 Sheer question of (mis)management

 

I would declare anybody touting the judge to population ratio unfit to be a judicial officer on account of lack of reasoning ability, a primary requirement towards logical deductions and fair judgments.

Ok, there is shortage of infrastructure at the lower court level, but what about the high courts and the apex court? Why are cases pending there?

Hiring more people? I had, on many occasions, after the Right to Information Act came into force, looked up the apex court website to check their compliance with the basic information all public authorities are required to disclose suo moto. These are listed under Section 4(1)(b) of the Act. Sub sections 4(1)(b)(ix) and (x) pertain to a directory of its officers and employees and the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations respectively. I use this as a barometer for the transparency in the public authority itself.

At the apex court website I could find the directory of 2053 officers/employees from the Secretary General to the Canteen Attendant. The judges were not in this list, though there are 32, including the Chief Justice, as per the details available elsewhere. That makes it 64 officers/employees per judge.

 

The remuneration of these employees have been provided in terms of pay scale of their grades/classes. Again, the judges were missing from this table too.

 

The more interesting revelation from the directory, accessed on 25 Feb 2022 with data updated on 19 Jan 2022, is the classes of employees and their distribution. The major clusters are:

Registrars (all grades)                  - 109;   Branch Officer/Court Masters- 140

Court Assistants                            - 843;   Personal Assistants                 - 122

Court Attendants                           - 484;   Chamber Attendants               - 117

Usherers                                        - 46;    Chauffeurs                              - 88,

Jamadars (Farash/Safaiwala)       - 30;     Restorers                               - 68

 

I leave it to the readers to guesstimate which are the categories of officers/employees that are needed to be increased further, to enhance the disposal rate of cases pending with the apex court.

 

As had been brought out earlier, the issue with throughput is not related to budgetary allocation. It is related to optimizing use of available resources and efficiency of the judges. Judges need to know thoroughly the laws they are dealing with and the facts presented, either by the party in person or his representative. And that is all that is required to decide a case on its merits.

 

This series began with the case of a retired high court judge, demanding and getting enhanced pension, due to a pension on attaining the age of 80 years, when he had only attained 79 years of age (80^th birth day or 79^th birth anniversary). The court failed to ask the pertinent question: how can a man who attained 62 years of age on the eve of his 63^nd birthday while retiring, attain 80 years of age on his 80^th birthday to claim enhanced pension?

 

A doyen among judges, V R Krishna Iyer had stated that for more disposals…and inexpensive justice, the purposeful therapy is not judicial numbers but intelligent selection, result oriented technology and summary procedure. One capable judge with sound philosophy is a better instrument of justice than a dozen mediocre, indolent ignoramuses who will merely add to the adipose of the system. He had also suggested a powerful Performance Commission to investigate the delinquencies of judges.

 

P M Ravindran/raviforjustice@gmail.com/100322

  

JUDICIAL PERFIDIES-11

 

At the cost of harping, let me repeat one fact that I am totally convinced about: our judiciary is not merely the most failed organ of our Constitution it is an absolutely failed organ. And this has led to the other organs also failing the citizens blatantly and with impunity.

 

In an earlier part of this series I had compared the three organs-legislature/Parliament, Executive and judiciary- from first principles to establish that our judiciary is the best example of the truism that power corrupts and absolute power corrupt absolutely. 

 

Here I shall expose why I consider it to be an absolutely failed organ too.

 

There is an online petition at https://www.change.org/p/a-citizen-s-plea-to-the-indian-judiciary-expedite-court-hearings-deliver-justiceontime which had the support of 12,431 citizens as at 7:23 PM on 01 Mar 2022 IST. This petition was initiated by a US based friend of a senior citizen, Anil Gidwani, 63 years old, who is on a fast unto death at Azad Maidan, Mumbai, since 26 January 2022. That is, he is completing 35 days as I write this. His demand, as per the online petition is that his judicial hearings be expedited. Gidwani has property cases pending in court for over 23 years and, during the course of these 23 years, he has also invited two contempt of court cases. These cases are pending for the last four years and he is demanding that these should be disposed of in a time bound manner. Not today, not tomorrow but just in a time bound manner, including a tentative date by which the verdicts would be given. Now, may I ask: is that too much for a litigant to expect?

 

I have already exposed the falsehood of the claim of the judiciary that it is the shortage of the judges that is leading to delays. Senior Advocate K T S Tulsi had explicitly stated, way back in 2004, that it is not the law, not the procedure, not the paucity of judges but sheer mismanagement that has led to cases piling up and the consequent delays. Let me elaborate this further.

 

We are all familiar with the expression tariq pe tariq or endless adjournments in our courts.

 

Here are two observations made by H D Shourie ('How long before justice comes?' The New Indian Express of 04 Dec 2004):

'It is not possible for a judge to seriously hear and decide more than two or three cases a day....no judge should have more than 30 matters listed before him/her on a given day.'

And, 'Lawyers are accused of employing delaying methods, but no lawyer can succeed if the court refuses an adjournment.'

 

Now, even the figure 30 is disputable, given the fact that if only two or three cases can be heard in a day, it should not be more than 4 or 5 cases that should be listed. Of course this will vary depending on the nature of the case but then there is no gainsaying that even with these differences a certain number can be decided as a thumb rule to be adopted so that not only the time of the court but the time of the litigants are also not wasted. And when I say time of the court, I mean just the productive time of the court because the time of the judge in the court is not to be considered wasted.

 

Anil Gidwani has led the way in quantifying the cost of his time wasted in courts due to tariq per tariq.  He had imposed a fine of Rs 2,20,000 for 22 adjournments due to various reasons, such as board mismanagement, papers not supplied to Advocate General or the respondent, judges absent, judges get up early, paucity of time etc. Now there may be dispute as far as the amount of Rs 10,000/- per adjournment is concerned. But here I need to list two facts/case laws.

 

One, even the Consumer Protection Act, 1986, as amended had provided for compensating the opposite party if any adjournment was demanded by one party and granted by the Forum/Commission. (It is a different matter that even this specific mandate is not complied with by the consumer courts, as they are popularly referred to, because I had got only Rs 750/- after 3 such adjournments and persistent demands, when the prescribed amount was Rs 500/- per adjournment.)

 

The next is that, in the matter of paying compensation to the victims of the air crash at Mangalore in 2010, the carrier was initially directed to pay a flat rate to each victim. But the courts had, irrationally and unfairly, linked it to the income levels of the victims.  I reiterate, irrationally and unfairly, because, all the victims had paid the same fare and the fare had not been linked to the income levels of the passengers. It, of course, implies different compensation for different classes of passengers but not different compensation for the same class of passengers.  

 

I can vouch, from personal experience, that in the lower courts, around 100 cases are listed and almost half the limited time of the court is spend in mustering when cases are called out, attendance of the litigants/advocates are confirmed and simply adjourned. And that too by months, as if the litigants have nothing to do except attend the court, once they have a case in a court.

 

These over-spaced adjournments do have a serious adverse effect on the quality of the hearings themselves, which nobody seems to recognize or at least pretend not to recognize. It is the coherence of arguments and understanding. You may ask all those who are stuck with some or the other serials telecast by our TV channels, whether they would like to have them telecast every day, once in a week or once in a month. I know of people fidgeting when there is break during just the weekends.

 

Now what are the rules governing adjournments?

 

The procedure and traits of an adjournment is given under Rule 1 of Order XVII of the Civil Procedure Code. Some of the relevant clauses are:

Court may grant time and adjourn hearing, for reasons to be recorded in writing, provided that no such adjournment shall be granted more than three times to a party;

The court shall make such orders as to costs occasioned by the adjournment or such higher costs as the court deems fit;

The hearing shall be continued from day-to-day;

No adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;

The fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment.

 

 

Similarly, the power to postpone or adjourn proceedings as per Criminal Procedure Code is given in Section 309. They are more or less the same as in Rule 1 of Order XVII of the CPC. However, for ease of understanding, they are:

-the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded;

-when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing;

-no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;

-the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment

 

And as per Anil Gidwani, the two contempt cases against him are the results of:

One, during the hearing of a partition suit (2017) the judge did not give him a chance to argue his case in a Notice of Motions, and began dictating the order. When he objected, the judge threatened to call the police. It was countered with: “go ahead”. He did, and also filed contempt against him.

Two, on the final day of execution proceedings in an eviction suit (2018), the defendant tenant, who had never appeared in the matter, again failed to appear. The judge

rescheduled the matter to the afternoon session and the defendant suddenly appeared and obtained a stay. The next date, Anil told the judge that he hoped that there will not be any need to reschedule the matter. The judge got angry and he filed contempt.

 

Now, how many reports have we read of judges talking from roof tops on the fundamental right to freedom of expression? And what do these two contempt cases say of the fundamental right of a citizen to express himself in a court while seeking justice? And let us not make any mistakes about this, the court procedures, at the least, should facilitate the litigants to bring their facts on record and protect their rights guaranteed by the laws. It is not for nothing that the laws mandate that all witnesses should be heard in the presence of the accused. Again, from personal experience, I can vouch for the fact that even this is ensured by the courts only in a superficial manner where the accused/defendants are kept at the farthest end of the court while the witnesses are heard by the judge at closer quarters.

 

The judges may claim that unruly behavior cannot be permitted in the courts and decorum has to be maintained. This obviously is not disputable. In fact, based on ground realities, it should be recognized that it applies more to judges than to litigants because whether petitioner or defendant, they are in the unenviable position of almost begging for the right decision.  In this context, it is pertinent to recollect that Booker Prize winning author Arundhati Roy was punished for contempt of court on the ground that the language used in her affidavit submitted in court was not proper. This is what Roy had written on 02 Mar 2002 at http://www.narmada.org/sc.contempt/aroy.stmt.mar7.2002.html:

I stand by what I have said in my Affidavit and I have served the sentence which the Supreme Court imposed on me. Anybody who thinks that the punishment for my supposed 'crime' was a symbolic one day in prison and a fine of two thousand rupees, is wrong. The punishment began over a year ago when notice was issued to me to appear personally in Court over a ludicrous charge which the Supreme Court itself held should never have been entertained. In India, everybody knows that as far as the legal system is concerned, the process is part of the punishment.

 

Shortly thereafter a high court judge, S M Daud, had reportedly denounced her punishment (‘Arundhati's conviction was wrong: HC judge’, PTI Mar 24, 2002; http://articles.timesofindia.indiatimes.com/2002-03-24/india/27131899_1_arundhati-roy-hc-judge-conviction). The relevant paragraph of the report reads:

 

Mangalore: Noted writer Arundhati Roy, who was convicted by the Supreme Court for contempt of court, has got support from an unexpected quarter with a high court judge saying the conviction was "wrong". "Arundhati Roy was wrongly convicted," Justice S M Daud, a judge of the Bombay High Court, said. The courts should accept the criticism by the citizens, he told reporters here on Saturday. The highest court should also be open to scrutiny by the public, he said, adding that the courts can either refute it or justifies their actions. He also suggested that the courts should cut down the vacation periods and working hours should be increased to expedite the clearance of the pending cases. Roy was recently convicted by the Supreme Court on charges of contempt of court and sentenced to a one-day "symbolic imprisonment" and slapped Rs 2000 fine for criticising the courts.

 

Quite a sane judge, a rare breed, I must say. He not only acknowledged one basic fact of democracy but also slammed the judiciary for its hypocrisy in the matter of availing long holidays and short working hours when cases are piling by the day.

 

There is a video that has been widely circulated on social media. It is about a judge, Kazim Ali, in Pakistan explaining how he cut out the delays. The essence of what he said is this:

 

When he reached Gujranwala, there were murder cases pending for more than 10 years. He met the advocates in the Bar Room and requested them for co operation to dispose of the cases. He told them that once the trial in a case had commenced he would give adjournment only under three conditions-one, if the judge dies, two, if the advocate dies and three, if the accused dies. The result was within 12 months 600 murder cases were disposed of. Similarly he held a meeting with the police officials also and explained what he expected of them. Like Senior Advocate K T S Tulsi had asserted, this judge can also be seen asserting that the primary causes for the backlog and delays are not the law, not the procedure, not the paucity of the judges but is a sheer question of mismanagement.

 

Another interesting video report I viewed recently on judiciary was at https://www.wionews.com/videos/gravitas-plus-3-in-4-people-in-indias-jails-are-under-trials-454641. (Gravitas Plus: 3 in 4 people in India’s jails are under-trials, Feb 19, 2022, 08:05 PM(IST) by Palki Sharma)

 

One of the sample cases she mentioned was that of Sopan Narsinga Gaikwad, a 108 year old man who died after waiting in vain for justice for 50 years.  I had the read the report at https://www.indiatoday.in/india/story/108-year-old-maharashtra-man-dies-just-before-sc-admits-land-dispute-plea-1831108-2021-07-22 and https://www.independent.co.uk/asia/india/india-oap-court-case-1968-b1888627.html but both the reports misses the crunch issues which had been tweeted by Maheshwer Peri on 22 Jul 2021 at https://twitter.com/maheshperi/status/1418077171617202179.

 

Here are the tweets (emphasis added):

 

This is the story of Sopan Narsinga Gaikwad

1968: Sopan, aged 55 years, hailing from rural Maharashtra, purchased a plot of land through a registered sale deed. Soon he came to know that it was already mortgaged to a bank in lieu of a loan taken by the original owner.

 

1969: The bank issues a notice to him on default of loan by original owner. Sopan approaches the courts to enforce his rights.

 

1982 (14 years after purchase): A trial court issues a decree in his favour. Original owner moves court. Sopan is now 69 years old.

 

1987 (19 years after purchase): High court reverses the decree that favored him. Sopan is 74 years old.

 

1988 (20 years after purchase): Sopan moves High court against the HC order. Sopan is 75 years old.

 

2015 (47 Years after purchase and 27 years after appeal): Bombay High Court dismisses the appeal. Sopan appeals to a larger bench. Sopan is 102 years old.

 

2019 (51 years after purchase): Bombay HC dismisses the second appeal too for delayed filing and default for non appearance. Sopan never knew his lawyers did not appear in court. Sopan hails from Rural Maharashtra and is 106 years old now.

 

2021 (53 years after purchase): Sopan appeals in the Supreme Court against the HC order. Sopan is 108 years old.

 

12 July 2021 (53 years after purchase): SC agrees to hear Sopan's appeal. Sopan is 108 years old.

 

12 July 2021: The lawyer of Sopan informs the court that his client has died. The information from Rural Maharashtra took time to reach the advocate. Sopan died aged 108 years.

 

Sopan bought land when he was 55. He died 53 years after he bought the land at age 108. He still doesn't have ownership of his land and the court is still deciding his ownership.

 

This is the story of Sopan Narsinga Gaikwad.

 

Or is it the story of Indian Judicial system?

 

The case will now be continued by the legal heirs of Sopan Narsinga Gaikwad.

 

But the billion rupee question is will the reasons for the Mumbai High Court reversing the judgment of the trial court and the reasons for the dismissal of the next two appeals be investigated and the responsibility fixed?  And, will those responsible for the miscarriage of justice be punished, even if they are dead, for the sake of record and acting as a deterrent for the future?

 

To be continued….

 

P M Ravindran/ raviforjustice@gmail.com/ 01 March 2022