JUDICIAL PERFIDIES-23

 

30 August 2022 has to be a Grey Letter Day in the history of free India’s judiciary.  That is the day when a three member bench of the apex court closed the contempt of court case against Adv Prashant Bhushan and journalist, Tarun Tejpal. The case was simple. The acclaimed crusader for judicial reforms had, in an interview given to Tehelka, in 2009, alleged that 8 Chief Justices of India were corrupt. Later in an affidavit submitted to the court he had named them and explained his reasons for making such an allegation.

 

The case had been hanging fire over the two for over 13 years, while the nation itself had been wondering whether it will ever be decided in their life time. The case had been listed many times and partly heard by many judges, the last of which was a bench headed by Arun Mishra in 2020, after a gap of eight years.

 

During that hearing, Bhushan had said “In my interview to Tehelka in 2009, I have used the word corruption in a wide sense meaning lack of propriety. I did not mean only financial corruption or deriving any pecuniary advantage. If what I have said caused hurt to any of them or to their families in any way, I regret the same”.

 

When the bench did not accept the regrets, Bhushan had asked the three judges to send the case to a Constitution Bench and suggested five issues that it could be asked to rule on. The important among the five was: “Whether the expression of a bona fide opinion about the extent of corruption in any section of the judiciary would amount to contempt of court.” And If yes, “Whether the person who expresses such opinion…is obliged to prove that his opinion is correct or whether it is enough to show that he bona fide held that opinion.” (‘Supreme Court closes 2009 contempt case against Prashant Bhushan, Tarun Tejpal’, Aug 30, 2022 at https://www.hindustantimes.com/india-news/supreme-court-closes-2009-contempt-case-against-prashant-bhushan-tarun-tejpal-101661868144791.html)

 

Arun Mishra did not decide the case. But in another contempt case on two tweets, the same judge went on to award a fine of Re 1/- to the same contemnor. While the judge might have placed such a low cost for criminal contempt, it cannot be said of the tax payer.

 

The recent verdict by the 3 judges’ bench, headed by Indira Banerjee, indicates that the regrets were finally accepted after senior advocate Kapil Sibal informed the bench that an apology has been tendered. (‘Supreme Court closes contempt case against Prashant Bhushan, Tarun Tejpal’, August 31, 2022 at https://indianexpress.com/article/india/supreme-court-contempt-case-prashan-bhushan-tarun-tejpal-8120346/)

 

Incidentally, the copy of the judgment could not be accessed at the apex court’s website even though searches were made based on date of verdict, judge name and free text.

 

For one who has been demanding the abrogation of the contempt of court provisions of the Constitution simply because it is anathema in a democracy, this judgment hardly merited rejoicing. The scepticism was born out of my own observations of the functioning of our courts which had been succintly captured by Radha Rajan, in an article ‘High Court and Supreme Court ‘jallikattu’ the PCA Act’, published on 21 February 2012 at http://www.vijayvaani.com/FrmPublicDisplayArticle.aspx?id=2195. She had written: '...for judges of the Madras High Court and the Supreme Court, the PCA Act is a dog is a monkey is a bear is an elephant; intriguingly, a dog is also not a dog on another day.' I normally refer to such series of judgments as judicial flip flops. In this case my thoughts were also influenced by the quip Let the dogs bark, the caravan will move on… which paraphrased for our context could well be let the mango people criticize, we, the judges, couldn’t care less..

 

And vindication has not been long in coming.

 

 M.A. Shaikh, Vice President of ‘Indian Lawyers and Human Rights Activists' Association’ had recently filed a petition before the apex court seeking to disqualify CJI designate D Y Chandrachud, from assuming office on 09 November 2022. The allegations include misuse of power by Justice D.Y. Chandrachud in discriminating between ‘Senior and Junior Lawyers’ and ‘rich and poor litigants’ and passing contrary orders in the similar cases. The instances show that Justice Chandrachud granted relief to rich people and Senior advocates and dismissed the request of poor people and junior advocates.

 

The blog, dated 27 Oct 2022, at https://rashidkhanvaccineblog.blogspot.com/2022/10/important-justice-chandrachud.html also informed its readers that Supreme Court Advocate Anand Jondhale is going to represent the petitioner and around 70 counsels from Indian Lawyers Association are going to assist him.

 

While a bench headed by CJI Lalit had dismissed the plea on 02 November 2022, after an impromptu hearing, the redeeming fact is that the petitioner has neither been penalized for wasting the court’s time nor hauled up for contempt. May I say that Indira Banerjee judgment in Prashant Bhushan case has survived this one time?

 

The petition was listed post haste on 02 November and dismissed by a 3 member bench, headed by the outgoing Chief Justice himself, with the observation that the entire petition was "misconceived.  While we should be thankful that the apex court did not repeat the faux paus as in the case of a former Chief Justice of India accused of molesting a woman, I find there are reasons to go a little deeper into the matter than swallow, hook, line and sinker, whatever the reasons for the dismissal, as given by the court.

 

One of the allegations, in the 764 pages writ, which is available at FINAL WRIT FOR UPLOAD.pdf - Google Drive , is as follows:

 

For hearing a case where he is disqualified because of two reasons:

 

(a) His son Adv. Abhinav Chandrachud appeared for the one of accused before High Court for the same connected FIRs. [Writ Petition (Cri) No. 3199/ 2021 order dated 20.09.2021]

 

(b) Because in the impugned order before him Adv. Nilesh Ojha appeared as a counsel who, on  earlier occasions also in 2018 acted as a counsel for complainant when a complaint is filed against Justice D. Y. Chandrachud and his son Adv. Abhinav Chandrachud [Case No. PRSEC/ E/2018/21401]

 

This allegation is simple to understand and validate.

 

We are aware of Bar Council rules that forbid relations of judges from appearing before them. But like Prashant Bhushan’s definition of corruption, today the definition of relation also has a wide connotation. Here, let me quote from a report ‘Judge Dread’, published on 08 November 2004 at http://www.outlookindia.com/article/Judge-Dread/225624.

 

"It is true that the solution suggested is unusual, but unusual situations which pervert the judicial system require unusual and unorthodox remedies." -Eminent jurist H.M.Seervai in his book, Constitutional Law of India

 

This was the very quote that Binod Kumar Roy, Chief Justice of the Punjab and Haryana High Court, used to justify his five-page administrative directive restricting relatives of certain  judges from appearing before them. The Bar Council rule is clear that lawyers can't appear before their own kin. Roy's directive identified a dozen judges whose relatives are advocates (see All in the Family) and forbade them from appearing before any of these 12. This ensured that a judge cannot help even a fellow judge's kin.

 

Within a month of this directive, the SC collegium recommended his transfer to the Patna High Court.

 

It is ironic that the axe is falling not on the transgressor but on the one who cracked the whip against transgression," states a memorandum signed by 1,001 lawyers of the high court. It was sent to the President this week, urging him to send the file regarding Justice Roy's transfer back to the collegium for reconsideration.

 

The first time differences between him and the judges came out into the open was last December when 19 judges refused in writing to do administrative work, including inspection of subordinate courts in the districts allotted to them.

 

When Justice Roy issued notices to the two judges, it united all the others against him and led to an unprecedented strike on April 19 this year.

 

Given the developments in communication technology and the prevalence of the Global Village concept, one can very well imagine the (ir)relevance of geographical boundaries, even in the context of the court complexes.

 

Does anyone recollect the scam involving the relations of the then CJI K G Balakrishnan?

 

As per a report at http://www.business-standard.com/article/news-ians/sc-moved-for-balakrishnan-s-removal-as-nhrc-chief-113080201258_1.html (‘SC moved for Balakrishnan's removal as NHRC chief’, August 2, 2013) NGO Common Cause has sought direction to the government that it should make a reference to the apex court under Section 5(2) of the Protection of Human Rights Act for holding an inquiry against Justice Balakrishnan for his alleged acts of misbehaviour during his tenure as CJI.

 

The NGO, in its PIL, alleged that during the tenure of Justice Balakrishnan, his close relatives including his daughters and sons-in-laws acquired assets disproportionate to their known sources of income.

 

A later report, at https://economictimes.indiatimes.com/news/politics-and-nation/former-cji-k-g-balakrishnans-relatives-hid-crores-of-income-reveals-i-t-probe/articleshow/57162253.cms (‘Former CJI K G Balakrishnan’s relatives hid crores of income, reveals I-T probe’, Feb 15, 2017) states: Bhushan, appearing for NGO Common Cause, said 21 properties were bought by Balakrishnan's relatives whose source of income was limited. He also produced sales deeds of the properties.

 

Although the Centre contended that the I-T department had given a clean chit to Balakrishnan and his family members for allegedly amassing disproportionate and benami assets, it admitted that some of the properties were undervalued by them but they had now paid taxes as per market value.

 

The Centre's contention was opposed by advocate Prashant Bhushan who told a bench headed by Justice Dipak Misra that the "shocking revelations" must be probed by an independent agency. AG Mukul Rohatgi had earlier told the SC that the I-T wing had conducted a probe but it failed to find any evidence of DAs against them.

 

Income as per ROI of his son-in-law P V Sreenijan in 2009-10 was Rs 26.61 lakh but the assessed income was found to be around Rs 1.64 crore. Similarly, his income was shown as Rs 47.47 lakh in 2010-11, but was assessed at Rs 2.11 crore. He had to pay Rs 1.02 crore as tax and interest.

 

In case of his other son-in-law M J Benny, the report says his income as per ROI was Rs 28.94 lakh in 2010-11, but assessed income was Rs 1.79 crore and he had paid Rs 97.73 lakh as interest and tax.

 

The report says income of his daughter K B Sony was Rs 38.69 lakh as per ROI but was assessed at Rs 1.67 crore and she had paid Rs 38.74 lakh as interest and tax in 2010-11.

 

Why this case became relevant here is due to the fact that even if the figures of RoI and assessment are studied cursorily, it would show how relevant was Prashant Bhushan’s demand of a probe by an independent agency.

 

Veteran journalist Kajal Basu, writing on ‘The cost of criminalising criticism’ (

https://www.newindianexpress.com/opinions/2022/aug/10/the-cost-of-criminalising-criticism-2485883.html) concludes by stating Until trust is re-established through transparently dependable judgements, there is no point in shutting out or even criminalising criticism (personal-political though it may be)—criticism that, as in the best democracies, can only aid in the improvement of judgements and judges alike.

 

For decades now, in the US, for instance, the extrajudicial preferences of judges have been openly debated. Their judgements are almost invariably put through the media mill, and what contributed to the judgements lit up in neon.

 

In the UK, judicial accountability is a media free for-all—admittedly, mostly, but not solely, in the contumacious tabloids—unfettered by protestations, such as in India, from judges (because it is sweepingly accepted that there exists substantial political interference at the trials stage).

 

In Tamil Nadu a You Tuber, Savukku Shankar, is facing trial for contempt of court and he has maintained that he stood by his statement that the entire judiciary is riddled with corruption. (https://www.livelaw.in/news-updates/madras-high-court-youtuber-savukku-shankar-stands-by-his-statement-in-court-contempt-case-208080) A reader commented: Savukku is right judiciary is highly corrupt but I would like to remind him that politicians, bureaucracy, business, media are equally or more corrupt than the judiciary. My only question is: How can politicians, bureaucracy, business, media be more corrupt when they can all be hauled up before the judiciary? And you can't haul up judges before anybody!

 

P M Ravindran/ raviforjustice@gmail.com                                                          04 Nov 2022

 

JUDICIAL PERFIDIES-22

 

Let me begin this critique by quoting from a report of 23 Sep, 2022 - ‘Kerala High Court initiates suo motu case against PFI bandh in Kerala’ (https://www.mid-day.com/news/india-news/article/kerala-high-court-initiates-suo-motu-case-against-pfi-bandh-in-kerala-23247140 :

Kerala High Court on Friday initiated a suo motu case against Popular Front of India (PFI) leaders who called for a strike in the state against the arrest of its members by the National Investigation Agency.

Notably, as per a Kerala HC order on January 7, 2019, nobody can call for a bandh in the state without prior notice of seven days.

According to the police, stone-pelting incidents were reported at various places in the state.

Two police officers were attacked earlier today by the hartal supporters at Pallimukku in the Kollam district.

The first issue that comes to mind is the preposterousness of somebody deciding that a bandh can be enforced on the public at large with 7 days notice. Where is the rationale, forget about sense of justice, in someone bloodying your nose with 7 days notice? Isn’t it the most fundamental principle of jurisprudence that your liberty ends where my nose begins? The right to protest is certainly a safety valve for aggrieved persons and almost a fundamental right in a democracy. But how can that extend to violating somebody else’s equally fundamental right not to protest?

I have mentioned in an earlier part of this series how the same court had declared bandhs illegal long back and the apex court had upheld that decision. Thereafter, the same means of protest has continued to be perpetrated by calling it hartal.

My effort to get copies of the two court orders, to find out if it was the term bandh that was held illegal or the activities that went with it, was also thwarted by the Public Information Officer of the High Court who denied it claiming that it was part of judicial proceedings and it was exempted from disclosure as per the High Court Rules on the RTI Act. 

Even the extract of the report above, exposes the confusion prevailing about the brazen violation of the fundamental right of the majority of citizens that follows a call for hartal, aka bandhs. That it disrupts normal lives and causes untold misery to the general public goes without saying. What about destruction of property, public as well as private? And when police personnel are injured in the violence unleashed by the mobs, the plight of helpless individuals can well be imagined.

There was another report that the Kerala State Road Transport Corporation has filed for damages to their buses to the tune of Rs 5 crores. But the poor police personnel? Will they be able to seek compensation too? Or is it just a part of their job description?

That brings me to another preposterous decision by the apex court- of registering FIRs in cases of civilian deaths in counter insurgency areas.

Jay Bhattacharjee, working in the areas of Corporate Law and Finance, has written about this in his widely read book, Resurgent Bharat and Other Issues- An anthology of Essays.  In the essay ‘Our armed forces severely handicapped when fighting terror’, on the decision of the apex court in criminal writ petition 129/2012, he has written that the SC virtually made our armed forces run a one legged race and compelled our military to fight the enemy with one hand tied behind its back.

Let me take a detour here to place some relevant facts on record.

This is what K R Naryanan, former President, had written, long before he occupied that highest office of the nation, in an article Fragile Chimera, published in the Illustrated Weekly of India (6-12/09/1987):

A historian once remarked- few men are so disinterested as to prefer to live in discomfort under a government that they hold to be right rather than in comfort under one which they hold to be wrong. In politics and administration it is not enough to be right. It is imperative that the goods are delivered to the people, there is law and order and a general sense of comfort and above all a common sense of unity in the country and society.

We all know that the majority of the people want to live a comfortable, peaceful and happy life. Taking to violent means of protest is the last step that any ordinary human being would think of. But to reach that level he must have face gross disappointments with all the means available for redressal of his grievances, the ultimate being the judiciary. So, insurgencies are a sign of the total failure of the government as a whole but specifically of the judiciary, ultimately.  It is at this stage that the government depends on its sword arm for succor.

The military, obviously, lives on the ethos: do or die.  They are fed on the diet that there are no runners up in war. Though politically it may not be correct to refer to counter-insurgency operations as war, the fact is it is worse than war for the soldiers. In war, at least there is a known enemy.  In counter insurgency operations the enemy is not distinctly identified. There have been many cases reported of soldiers who, while leaving buildings/ areas after cordon and search operations, have been shot in their back by women whom they had refused to identify as insurgents or collaborators of insurgents.

There is no denying that there are bound to be mistakes when troops operate in insurgency affected areas, with their own lives on the line. And that is why the Armed Force Special Powers Act is invoked when army is launched in such operations. This, and only this, is the armour that protects from witch hunting later. And it is this armour that was rendered useless by the apex court bench of Madan Lokur and U U Lalit in Jul 2016.

As far as mistakes are concerned, given the army’s obsession with its image, more often than not, even minor mistakes are taken seriously and those involved punished in exemplary manner. Case in point: the Sukhna land scam.  A Lt General, then Military Secretary, was dismissed from service for showing undue interest in transferring land near a military establishment to a private party to establish an educational institution.

Again, just for the records, the babus, playing around with files, have a law that is invoked quite often and without much ado- obstructing a public servant in the discharge of his functions.

Section 186 of the Indian Penal Code reads as: Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

And we have the preposterous, undemocratic Contempt of Court Act, at the disposal of our judges, who have opposing parties presenting some facts, some laws and some case laws leaving the judge with all the freedom to decide in favour of any one of them, again without much ado.

This brings me to the report ‘Retired CJIs, SC judges to get lifetime domestic help, chauffeur’ at https://www.freepressjournal.in/india/retired-cjis-sc-judges-to-get-lifetime-domestic-help-chauffeur. As per this report:

Ø  A Chief Justice of India will now get a domestic help, a chauffeur, and a secretarial assistant for lifetime from the day he or she demits office.

Ø  A retired CJI will also be entitled to a security cover round-the-clock at their residence along with a 24X7 personal security guard for five years from the date of retirement.

Ø  If a retired CJI or a retired judge of the top court is already provided a 'higher grade' security on the basis of threat perception, 'the higher grade security already provided shall continue'

Ø  The benefits of the amended rules will now be extended to all living former CJIs and retired Supreme Court judges.

Ø  "The post-retirement benefits under this rule shall be admissible to the retired Chief Justice (of India) or the retired Judge (of SC) if no such facilities are availed from any High Court or from any other government body where the retired Chief Justice or a retired Judge has taken up any assignment after retirement,"

Just look at the wanton abuse of authority or can it be dismissed as mere placating? Though in this case it cannot be directly blamed on the judges, there was a report, dated 07 August 2021 titled ‘Chief Justice of India N V Ramana seeks special force for protecting judges’ (https://economictimes.indiatimes.com/news/india/chief-justice-of-india-n-v-ramana-seeks-special-force-for-protecting-judges/articleshow/85119242.cms). But one should certainly acknowledge the glaring unfairness of soldiers deployed in counter insurgency areas being subjected to prosecution when those sitting in judgment in air conditioned rooms, are being provided security cover not only while in service but also after retirement.

Coming back to Jay Bhattacharjee, he has written: Without apologizing for mixing metaphors, this writer would say that the judges poured vinegar on raw wounds and threw the ball back to the Union Government’s court, saying that the latter should take steps to protect the legitimate concerns of soldiers and this was not the job of the court.

Meanwhile there has been an interesting development. The 2009 criminal contempt of case against Adv Prashant Bhushan has been dismissed. The case involved Prashant Bhushan alleging that 8 Chief Justices of India were corrupt, in an interview with Tehelka and which was published by Tehelka. The editor was also facing contempt charges. 12 years after initiation of proceeding by a three member bench, it was dismissed on 30 Aug 2022 by another three member judge. The reason as reported at https://www.livelaw.in/top-stories/supreme-court-closes-2009-contempt-case-against-prashant-bhushan-tarun-tejpal-207860 is : "In view of the explanation/apologies made by the contemnors, we don't deem it necessary to continue matter". Senior Advocate Kamini Jaiswal appearing for Bhushan submitted that he has given an explanation for his statement. Senior Advocate Kapil Sibal, appearing for Tarun Tejpal, the editor of Tehelka Magazine, submitted that he has apologized. As per the Hindu (https://www.thehindu.com/news/national/supreme-court-drops-contempt-case-against-prashant-bhushan-for-corruption-remarks-in-tehelka/article65828997.ece) it had brought to the fore several cardinal issues, including the right to criticise the judiciary in a public forum and whether a person who expressed an bonafide opinion about judicial corruption was obliged to prove it or whether it was enough to show that he bonafide had held that opinion.

Just for the records, the copy of the order could not be accessed at https://main.sci.gov.in/judgments.

 

P M Ravindran/ raviforjustice@gmail.com                                                             29 Sep 2022

JUDICIAL PERFIDIES-21

 

The edifice of our justice delivery system in India is built on two major fault lines in our Constitution- the absence of accountability of our judges and the preposterous, undemocratic contempt of court provisions. Not that these are the only two fault lines in our Constitution. The more you try to understand it, the more you will realize that these fault lines are like the potholes on our roads, one has to really look for the road amidst the potholes over which one has to navigate, even as a pedestrian, leave alone driving a vehicle.

 

I am sure we are all given to believe that we are a democracy and a constitutional democracy at that. The Preamble of the Constitution unambiguously proclaims that We, the People, do adopt, enact and give unto ourselves this Constitution.

 

The other day, N V Ramana, the then Chief Justice of India, while speaking at a private reception in the United States of America, had pompously announced that the judiciary is accountable only to the Constitution of India. To me it sounded just an inanity, with even the person saying it not knowing what he meant. Because, given that we are a democracy and have given to ourselves this Constitution, there cannot be any doubt on who should be accountable to whom. But he did not state the obvious.

 

One is reminded of what Winston Churchill said about the western understanding of the Soviet Union - a riddle wrapped in a mystery inside an enigma. And this is the attribute on which our judiciary seems to thrive, when the fact is that for rule of law to survive, the law should not only be easily understood by those affected, its interpretation should be such that justice is not only done but seen to be done.

 

So, who should the judiciary be accountable to? We, the People; no doubt. But, is it? Definitely not. Worse, it is the one organ that treats the people, approaching them for the constitutionally mandated services due from them, in the shabbiest manner possible. Ask any litigant how many times he had presented himself in a court and had to return after completely wasting his precious time there, day after day after day. Not to mention the fees paid to the advocate every time. 

 

The other day, D Y Chandrachud, judge of our apex court had reportedly said “We spent so much of our time reading these files and then advocates come and tell us they need adjournment in the case. This is unfair" (‘No more tareekh-pe-tareekh; need to curtail adjournments: Justice Chandrachud’, at https://www.indiatoday.in/law/story/no-more-tareekh-pe-tareekh-need-to-curtail-adjournments-justice-chandrachud-1998429-2022-09-09). He is due to be the next Chief Justice of India and hope he succeeds in walking his talk.

 

Here are some facts brought on record by none other than the Attorney General of India (‘With over 42 lakh cases pending, Attorney General asks judges for possible solutions to cut down pendency’ at https://www.indiatoday.in/law/story/attorney-general-k-k-venugopal-judges-solutions-pendency-chief-justices-high-court-nv-ramana-1943614-2022-04-29):

 

Ø  75 per cent of undertrials are in custody and most of whom are poor, and who can’t afford means.

Ø  A large number of cases which are pending are more than 30 years old.

Ø  There are 24,000 judge posts in the trial courts and the pendency is 42 lakh cases with 5000 posts vacant.

 

Another report ‘Cases stagnate in SC as Constitution Bench hearings remain pending for decades’ (https://www.indiatoday.in/law/story/cases-pending-supreme-court-constitution-benches-1913234-2022-02-15) states that At least 35 cases are pending before the various Constitution Benches of the Supreme Court, many of which would have serious consequences for the legal system of the country, according to a report published by Legal research group Vidhi Center for Legal Policy. These include issues involving the interpretation of tax laws, powers of the court to consider matters relating to religion, reservation policy etc.

 

All the pending cases also have hundreds of connected matters, which means that the final decision in several hundred cases depends on the decision of the Constitution Bench.

 

The oldest case before a Constitution Bench is the case of Central Board of Dawoodi Bohra Community v. State of Maharashtra which has been pending since February 28, 1986 (13,135 days) before a five-judge bench. The case also has one tagged matter that has been pending for over 31 years.

 

A report in Hindustan Times (‘After 30-year battle, Supreme Court grants Faridkot Maharaja’s properties to daughters’ at https://www.hindustantimes.com/india-news/after-30-year-battle-supreme-court-grants-faridkot-maharaja-s-properties-to-daughters-101662574246439.html) informed its readers on 08 September 2022 that The Supreme Court on Wednesday upheld the Punjab and Haryana high court’s order awarding the majority share of the estate of the erstwhile maharaja of Faridkot, Sir Harinder Singh Brar, estimated to be worth ₹20,000 crore, to his daughters –Amrit Kaur and the late Deepinder Kaur – and dissolved the Maharawal Khewaji Trust, which was looking after the properties.

 

Amrit Kaur had initiated the judicial process by filing a civil suit in a district court in 1992. It had ruled in her favor in 2013. This decision was upheld by the High Court in 2020 and has now been upheld by the apex court. Deepinder Kaur had, meanwhile, passed away in 2018.

 

Now just compare this with a decision of a consumer ‘court’ reported at https://timesofindia.indiatimes.com/city/chennai/arrange-seva-darshan-or-pay-rs-45-lakh-compensation-to-devotee-consumer-court-tells-tirupati-tirumala-devasthanam/articleshow/93971746.cms  on 03 September 2022 (‘Arrange seva darshan or pay Rs 45 lakh compensation to devotee, consumer court tells Tirupati Tirumala Devasthanam’)

 

As per this report a devotee had booked a Seva at Tirupati temple 16 years back by paying Rs 12,250/- in June 2006. The slot allotted to him was in 2020 and due to the pandemic the temple was closed and the Seva could not be held. He was offered a refund or another VIP darshan. However the devotee approached the consumer ‘court’ which ordered the TTD to give a fresh date for the Seva within a year or pay a compensation of Rs 45 lakhs for deficiency in service and mental agony. It also ordered TTD refund the Rs 12,250/- paid along with an annual interest of 6%.

 

While the refund of the amount paid with interest is the norm, the order asking for a fresh date to be given within one year or the Rs 45 lakh compensation is ridiculous and preposterous. Given the delay between booking and allotment of slot, it is reasonable to presume that the Seva would have been booked at least till 2035 by now and there is no way that TTD could have found a slot before that for allotting to this devotee. Further, where does the case for deficiency in service arise when the temple had been closed on government orders during a pandemic?

I have quoted this case only to ask one question: how much would our courts be required to pay as compensation for deficiency in service and mental agony of the litigants?

 

The last week of August saw change of guard in our apex court. CJI N V Ramana relinquished office handing over the baton to U U Lalit who will carry it for just 74 days. Even while I was wondering whether this appointment of a CJI for 74 days was in public interest or personal interest, my attention was brought to a report ‘Judiciary does not find adequate reflection in media: Outgoing CJI NV Ramana’ on 26 August 2022 at https://www.timesnownews.com/india/judiciary-does-not-find-adequate-reflection-in-media-outgoing-cji-nv-ramana-article-93803612.

 

While the claim of the outgoing CJI about judiciary not finding adequate reflection in media shall be dealt with subsequently, the more important information in this report was the framework  of the work he intends to do by the new CJI. The report quotes the CJI as:

 

"Let me place some parts I intend to do in my next innings of 74 days: 3 areas - 1) We'll strive hard to make the listing as simple, clear and transparent as possible, 2) You'll have a clear-cut regime where any urgent matters can freely be mentioned before respective courts, 3) Listing of matters before the Constitution Benches and matters which are specially referred to Benches of three judges...We will strive hard to say that yes we will always have at least one Constitution Bench functioning all throughout the year,"

 

The last one about having a Constitution bench functioning throughout the year merits mention not only from the point of pending cases before constitution benches mentioned earlier, but also the fact that during Ramana’s tenure of 16 months the highest constitutional court had not set up even a single constitutional bench.

 

In ‘Assessing CJI NV Ramana’s legacy through three key numbers: 0, 163 and 71,411’ at https://indianexpress.com/article/opinion/columns/cji-n-v-ramana-supreme-court-of-india-8113487/ Alok Prasanna Kumar wrote: Zero is the number of Constitution Benches set up to hear substantial questions of interpretation of the Constitution or the law. Appeal in the hijab case has been kept pending for 163 days. 71,411 is the number of cases pending before the Supreme Court as of August 14, 2022.

 

On 29 August 2022, I was glad to read (‘Supreme Court constitutes two constitution benches to hear 8 cases tomorrow’ at https://www.barandbench.com/news/supreme-court-constitutes-two-constitution-benches-hear-8-cases-tomorrow) that the new CJI had constituted 2 constitution benches of five judges each and distributed 8 cases between them.  While I was disappointed to note that the information about the dates from which these cases have been pending in the apex court was not reported, the shock came from one of the cases being taken up:  Plea regarding whether the criteria for selection can be altered by the authorities concerned in the middle or after the process of selection has started. Really? Is it a matter to be decided by a constitution bench of the apex court? If you are not shocked, please read the case description again.  

 

Coming to the observation of N V Ramana that about judiciary not finding adequate reflection in media, you have seen how many reports have been quoted in this critique itself. And it is just a fraction of the reports that have appeared in the media in the last couple of weeks. And here are some more.

 

In a report published on 9 Sep, 2022 (https://www.barandbench.com/news/litigation/just-because-some-big-lawyers-come-and-argue-supreme-court-comes-down-on-madras-high-court-in-sp-velumani-case) Judge Ajay Rastogi had remarked:  "What kind of orders are being passed? We certainly have a lot to say. No application of mind, just because some big lawyers come and argue...Procedures followed speaks a lot about the High Court".

 

Another report dated 4 Sep, 2022 at https://www.barandbench.com/news/litigation/cji-uu-lalit-addressed-me-sir-bombay-high-court-chief-justice-dipankar-dcji-uu-lalit-atta informed its readers that, at an event in Nagpur, CJI Lalit had said that there are three important attributes to be a successful lawyer: know the facts, know the law and more important than first two, know the judge. I had heard a different version long back: good lawyers know the law, successful lawyers know the judge.

 

A report ‘CJI recalls lawyers’ contribution in drafting Constitution, freedom struggle, says their percentage in Parliament declining’ on 4 September, 2022 at https://theprint.in/india/cji-recalls-lawyers-contribution-in-drafting-constitution-freedom-struggle-says-their-percentage-in-parliament-declining/1116163/ states: “All the talent is at the top level, while, unfortunately, in the mid and lower levels, talented youngsters and lawyers are not coming. We must have a bottom-heavy pyramid of the judicial structure,” the CJI asserted.

 

Also, “Our country has seen and benefitted from legal talents, right from its freedom struggle. A lawyer normally has been exposed to the correct way of thinking on how to find solutions for social problems or constitutional issues. He is better equipped than others to deal with situations facing society,” the CJI said.

 

I will just quote Dr Ambedkar and Seth Damodar Swarup to prove the hollowness of the latter claim.

 

On 2nd September 1953, by making a statement in the Rajya Sabha (Parliament) Dr Ambedkar stated that “People always keep on saying to me, so you are the maker of the Constitution. My answer is I was a hack. What I was asked to, I did much against my will. I am quite prepared to say that I shall be the first person to burn it. It does not suit anybody.”

 

On 19 November 1949, Seth Damodar Swarup stated in the Constituent Assembly itself, that 'this Constitution may be the biggest and bulkiest constitution in the world, may even be the most detailed one, it may be heaven for the lawyers, and may even be the Magna Carta for the capitalists of India, but so far as the poor and the tens of millions of toiling, starving and naked masses of India are concerned, there is nothing in it for them. For them it is a bulky volume, nothing more than waste paper.'

 

Here is another report: ‘False charges by litigants after adverse order tend to demoralise judges: SC’ at https://www.tribuneindia.com/news/nation/false-charges-by-litigants-after-adverse-order-tend-to-demoralise-judges-sc-430475. Since the title of the report itself is self explanatory, let me place my comment on record:

 

For long our judges have taken refuge in the fact that one party to a case will always be aggrieved by the decision of the courts. So, the touchstone of jurisprudence-justice should not only be done but seen to be done-was given the by, blatantly and with impunity. But like another proverb goes-you cannot fool all the people all time- judges are now being criticized even by non-litigants who get to read about court proceedings and decisions from mainstream media as well as citizen reporters, through social media. This obviously cannot be appreciated by our judges. But unless the judges walk the talk there cannot be any reprieve. Even lawyers appear to have lost confidence in our courts, going by the way they have been taking to streets and protesting like political parties. There have been no dearth of judges criticizing the system either.

 

Also, judges may have their own logic and reasons but so do the citizens while judging judges. Judging is an innate habit of every human being and not a proprietary quality given to judges only.

 

Let us for a moment keep aside the cases of litigants affected by adverse verdicts. Take the case of ISRO scientist Nambi Narayanan who was falsely implicated in an espionage case, involving women, and who suffered badly in many ways- physical and mental torture, loss of job, reputation etc. Even after his acquittal by the apex court, he had been given only a pittance of compensation. Worse, the perpetrators are yet to be punished too, if ever they will be punished.

 

Fast forward to a former judge of the apex court who sued a news channel for Rs 100 crores for defamation for displaying his photo while reporting another judge involved in a scam. It was a genuine mistake as anybody conversant with digital libraries will understand. No loss of job, no torture, nothing. While millions may have watched the news report one doesn't know how many would have linked the name used in the report with the photo displayed. But still a compensation of Rs 100 Crores for defamation?

 

To conclude, let me quote some judges:

"Corruption in the judiciary is a big problem. Nothing can be worse for the legal system," Mr. Venkatachala (then Lokayukta) said at a function organised by the Federation of Bar Associations in Karnataka to felicitate him.

Former Chief Justice of India, Y. K. Sabharwal: "The justice delivery system has reached its nadir"

“Already citizens are frustrated with the justice delivery system and only less than 10% of the litigants who have disputes are approaching the court," Justice Kirubakaran (of Madras High Court) observed.

Supreme Court judges in India, Justices S. B. Sinha and Markandeya Katju, are of the opinion that " … everywhere, we have corruption. Nothing is free from corruption. Everybody wants to loot this country. The only solution for this menace is to hang some people in the public so that it acts as a deterrent on others."

Judges B. N. Agarwal and G. S Singhvi have expressed the same sentiments, "for the bureaucracy in the country to work without corruption, these bureaucrats need to be flogged."

“Thus, corruption in judiciary is the greatest enemy to the Constitution and judiciary must also initiate drastic measures in order to control corruption in various forms,” Justice Subramaniam added.

“In this connection we wish to say that the reputation of an institution is damaged and its image sullied when some of its members pass shocking orders and behave in a totally unacceptable manner.” -Markandey Katju and Gyan Sudha Misra

 

 

P M Ravindran/ raviforjustice@gmail.com                                                   12 Sep 2022              

JUDICIAL PERFIDIES-20

 There was a report at https://timesofindia.indiatimes.com/india/we-are-answerable-to-the-constitution-and-constitution-alone-cji/articleshowprint/92615487.cms?val=3728  (We are answerable to the Constitution and Constitution alone: CJI;    Jul 2, 2022)

 

It really was shocking for two reasons: the first, of course, was denigrating the democratically elected government in foreign soil because the CJI was speaking at a felicitation organized by the Association of Indian Americans in San Francisco; and two, the stupidity evident in the assertion ‘We are answerable to the Constitution and Constitution alone’. And for the Chief Justice of India to expose his ignorance like this is unpardonable.

 

This is what he had said, as per the report:

 

-> With the change in government, policies do change, however no sensible government would alter the policies to slow down the growth of its own territory. Unfortunately, we do not come across such sensibility and maturity in India too often, whenever there is a change in government.

-> We still haven't learnt to appreciate wholly the roles and responsibilities assigned by the Constitution to each of the institutions. The party in power believes that every governmental action is entitled to judicial endorsement, and the Opposition expects the judiciary to advance their political positions and causes.

-> It is the vigorously promoted ignorance among the general public which is coming to the aid of such forces whose only aim is to run down the only independent organ, .i.e. the judiciary.

-> Principle of inclusivity is universal. It needs to be honored everywhere in the world, including in India.

Now, the following questions arise:

1.      What did the CJI mean by altering polices to slow down the growth of its own territory? Growth of territory has only one implication- aggression.  Is there anyway one can interpret what he has said to mean growth of the people of the country? I have heard of Dr Rajendra Prasad, first President of India, having made an observation that a country is not its land, its hills or rivers or its deserts and forests, but its people. When the fact is so simple why did the CJI opt for such a term that has a totally different meaning the way he has used it? Can it be attributed to lack of knowledge of English and dismissed?

2.      Hearing the CJI taking about sensibility and maturity of the people in government was preposterous. He is heading an institution where judges have been availing unwarranted holidays oblivious to the cases piling up every day, and flouting even the laws that limit adjournments leading to citizens languishing in jails as under trials for periods longer than the periods for which they would have been sentenced if convicted and some getting acquitted after decades of such incarceration (when even those convicted of murder get a maximum of 14 years, unless, of course, the victim is a judge!). Isn’t it a case of charcoal calling the cheese black?

3.      Does every party in power believe that every governmental action needs judicial endorsement? I was, and still am, under the impression that it is the judiciary that has been claiming that every act of the government is subject to judicial review. And we have seen how the judiciary had usurped the power of the Executive to appoint judges (coincidentally, when there were weak coalition governments at the Centre) and constituted an unconstitutional collegium of judges to appoint them. The nepotism ushered in thereafter is now the talk of the town, with even judicial pundits demanding a change. Even a constitutionally enacted National Judicial Appointments Commission Act was trashed by these very judges, with at least one of them dissenting.

4.      And here comes one of the biggest bloomers- It is the vigorously promoted ignorance among the general public…. Coming from the head of an organ that has been in the forefront of subverting even the Right to Information Act, I can only ask: what cheeks!

5.      The Right to Information Act was enacted with the explicit purpose of promoting transparency and accountability in the working of every public authority but the judiciary has, through the rules promulgated by the Chief Justice(s), officially kept its judicial functions out of purview of this law. Worse, it introduced a fee of Rs 500/- as application fee (when it is only Rs 10/- for every other public authority) and Rs 5/- per page of photostatted information (against Rs 2/- by other public authorities). And there was even a fee for appeal. Though these have been changed thereafter, it is still to comply with the mandated proactive disclosure of certain information specified in Section 4(1)(b) of the Act. I leave it to the readers to access the information, pertaining to judges, that are disclosed against Section 4(1)(b)(x) of the Act.  For ease of understanding this is reproduced here: the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations. It is pertinent to state here that this information pertaining the remaining officers and employees (What is the difference between them? Aren’t the officers employees?) is available at the web site of the apex court in a reasonable format, though not exactly as is expected. But even that is not the case with some high courts.

6.      And, what should one make out of …such forces whose only aim is to run down the only independent organ, .i.e. the judiciary? Can any institution of governance (and there should not be any doubt that the judiciary is very much an institution of governance with specific tasks assigned to it by We, the People, through a written Constitution) be absolutely independent, the way N V Ramana has made it out to be? Doesn’t he know the meaning and import of the term democracy? In any case, the National Commission to review the Constitution (a judiciary-headed, judiciary-heavy body), in its report submitted in 2002, had unambiguously stated that the highest office in a democracy is that of the citizen.

7.      On the pontification about inclusivity I shall repeat just one question, posed earlier by Dr A P J Abdul Kalam, when he was the President of this country: why is it that when all the scams reported in the media are of the order of crores of rupees, all the under trials in the jails are from the poor and marginalized sections of the society?

 

We recently had the horror of two judges of the Supreme Court throwing a petitioner to the wolves and making off the record comments that can be seen as only insane. Nupur Sharma, then a spokesperson for the ruling party at the Centre, was provoked, on a talk show, by a Muslim participant, to retorting with quotes from the holy books of Islam. Another Muslim, a journalist at that, edited the video and spread it on social media with a false assertion that she had spoken blasphemously. It was enough to flare up communal passions and many threats, including on Nupur’s life, were issued both from within the country and without.  There were many First Information Reports filed all over India too against the petitioner and the petitioner’s only plea was to combine all of them and transfer them to a court in Delhi, where the first case had been filed. When the law itself is clear that an accused cannot be punished for the same offence more than once, it was a reasonable requirement and with precedences galore, it should have been disposed off within 15 minutes. But that was not to be. Not only was the petition dismissed but the comments made by the judges had literally, to my mind, dug the last nails on the coffin of judicial reliability and credibility.

 

Meanwhile, in the case of Zubair, the Muslim journalist who caused the communal flare up which resulted even in a few murders in different parts of the country and had different cases in different parts of the country, was given the benefit of getting all the cases clubbed and transferred to Delhi.

 

Interestingly, I haven’t come across any report against the one who had provoked Nupur by talking blasphemously about Lord Shiva and other Hindu gods.

 

Radha Rajan, a political thinker and author, writing on ‘High Court and Supreme Court ‘jallikattu’ the PCA Act’ (http://www.vijayvaani.com/FrmPublicDisplayArticle.aspx?id=2195; 21 Feb 2012) has stated that '...for judges of the Madras High Court and the Supreme Court, the PCA Act is a dog is a monkey is a bear is an elephant; intriguingly, a dog is also not a dog on another day.'

 

Whenever we talk of judiciary in India it is invariably about delays, tariq pe tariq (adjournments, ad infinitum) arbitrariness, lack of transparency and, accountability, pending piles of cases, summer, winter and festival holidays, uncle judges, bench hunting, docket hunting,. And the judges have only one blasphemously illogical judge to population ratio to blame for all these shortcomings/evils prevailing in the system.

 

It is my experience that every facet of judicial functions needs to be revisited.

 

To begin at the beginning, one need to ask when judges are supposed to know the law and the litigants the facts, why should there be advocates, as middle men, in our courts? As renowned constitutional expert Fali S Nariman stated in his book ‘India’s legal system: Can it be saved?’: 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 requirement of a level playing field is ab initio violated.

 

Ban on advocates in courts would also reduce the need for avoidable adjournments. HD Shourie, writing in the New Indian Express on 04 December 2004, had stated: 'Lawyers are accused of employing delaying methods, but no lawyer can succeed if the court refuses an adjournment.'

 

Law qualified citizens need not fear unemployment because they should be given licenses to act as arbitrators/mediators, which should be the first level of resolution of any dispute that are not serious offences needing professional investigation. Escalation should follow a system generally followed in the medical field. The intricacies need to be worked out by a composite team of experts in the fields of law, management, computer technology and Artificial Intelligence. But it should definitely involve grading the arbitrators/mediators based on client/consumer experience.

 

Next, once the charges have been framed the trial should commence with least delay and should continue on a day today basis. This has the advantage of the evidences being presented and countered when they are fresh and also the judge can focus on the case much better to arrive at better conclusions.

 

Only one level of appeal should be provided and the highest court of the land should only deal with constitutional issues and inter-state issues. It is quite disheartening to see rich people approaching even the apex court for bail just because they can afford to pay the preposterous fees charged by lawyers practicing there.

 

While all essential services provided by the Executive organ is free or comes with nominal cost, it is again frustrating that one cannot approach courts without money. Even approaching a consumer court has proved to be a costly affair, mainly, of course, due to involvement of advocates. In fact when the Consumer Protection Act was sought to be amended mandating the respondent to engage an advocate only if the complainant has engaged one, there was such a hue and cry from the Bar that it was dropped like a plate of hot potato. Isn’t it obnoxious that when open heart surgeries can be done in this country for a couple of lakhs of rupees, advocates can charge in lakhs for a simple conference or attending a hearing?

 

I have seen Public Relations Officers in the offices of the Motor Vehicle Department and even in police stations to freely guide citizens on the procedures followed there. Most of the forms are available even on their websites. Why can’t the judiciary have a team of law qualified persons to man a cell in court complexes for guiding litigants free of cost? And have formats for various types of petitions available for downloading from their websites?

 

The Kerala Government had, a few years back, uploaded a series of formats for land registration documents which citizens can download freely, fill up and register their transaction at rates prescribed by the government and totally avoid document writers who had been exploiting the public by charging for their services in terms of percentage of the value of the land being registered (not any different from the fees charged by advocates).

 

The need to cut out the foreboding environment in court rooms cannot be overemphasized. The judges need to behave like human beings and not like someone out there dispensing favors.

 

Chief Justice of US Supreme Court, John Marshall, had once said: "Power of Judiciary lies not in deciding cases, nor in Imposing sentences nor in punishing for contempt, but in the trust, faith and confidence of the common man".

 

Our judiciary has a long way to go to earn the trust, faith and confidence of the masses. The judiciary may claim that the mountain of pending cases is a testimony to the faith of the common man in the judiciary. Nothing could be far from the truth. In an institutionalized system of justice delivery the common man has no other options. In fact the failure of the judiciary is being exploited by the other organs to shirk work, harass the citizens and drive them to taking law into their own hands.

 

To conclude this part, let me quote Aravind Kumar, Jurist and lawyer from a report ('Needed high speed legal redressal') in the Pioneer of 01 August 2006: Justice is an intrinsic human need. We suffer much privation but we cannot suffer being wronged. Absence of justice, we must not forget, is one of the causes of crime.

 

 

P M Ravindran/ raviforjustice@gmail.com                                                             23 Aug 2022