THE LAST NAIL ON THE COFFIN OF JUDICIAL CREDIBILITY?
Law makers without any prescribed qualities, qualifications or experience, their men Fridays (popularly known as bureaucrats, who are required to help them in decision making by collecting and collating data and maintaining records) without any accountability and a judiciary which has the scope for the most whimsical decision making being held not only without accountability and beyond criticism but also protected by a totally illogical and weird armor called contempt of court, are the essential features of our Constitution, the Bible for our governance!
Amoung the three organs of our Constitution the law-makers are controlled by the people, bureaucracy (yes, bureaucracy, because without the active support of the bureaucracy no politician can do any wrong!) and finally the judiciary; the law-enforcers are also controlled by the law-makers and the judiciary. And then there are the ears and eyes of the people- the media waiting to sensationalise every news involving the misdemeanor of these authorities. In spite of such strict supervision and control all that we can hear these days are about politician-bureaucrat-underworld nexus even though the fact remains that none, worth the name, from this unholy nexus have ever been punished by the holier-than-thou judiciary.So now think how bad a system can be which is not only NOT subject to supervision but also kept beyond critical observation. Well isn’t our judiciary is just that? And do I need to recapitulate that quip: power corrupts and absolute power corrupts absolutely?
First things first. So the answer to that question in the title is a big NO. The judges revolt is only the last but one nail on that coffin. So what will be the last nail? Just wait to read through this whole critique.
Even as a child one had heard elders exclaiming that it is a blessing to pass through this life without entering a police station or a court. Though one was too young then to understand what it meant it was in the first decade of this millennium that Transparency International came out with their survey results which clearly indicted the police and judiciary to be the most corrupt institutions in India. And I understand that TI is facing contempt of court proceedings for publishing that report!
Even by its own admission the judiciary is a failure in our country based on the principle of justice delayed is justice denied. And the only reason the ‘learned’ judges are seen suggesting is the poor judge to population ratio which any rational human being can see is meaningless. The population figures, particularly in our country where a significant percentage is living below poverty line and are even illiterate, are irrelevant and what matters is the number of cases filed and this is significantly low leading to a fairly high judge to docket ratio. Sample data for U S of A vis a vis India is as follows:
Cases filed in one year (1999): India - 13.6 Million; USA- 93.81 Million
Dockets per judge: India - 987; USA- 3235
One doesn’t need these statistics to prove this point. One needs to just visit any court to see how poor the docket management is, leading to criminal waste of time in everyday functioning of the courts. Almost half the time is wasted in a process called mustering where hundreds of cases listed for the day are called out and, after ensuring that the concerned parties are present, most of them are adjourned without even being taken up for any hearing! Here are two observations 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.'
'Lawyers are accused of employing delaying methods, but no lawyer can succeed if the court refuses an adjournment.'
In this context it needs to be highlighted that no institution treats the free citizens so shabbily like our judges because they summon you, even under threat of arrest, and then order you to come back on a later date without progressing your case even by a minute step! Taareeq pe taareeq is the hall mark of our judicial process!
Even at the end of preposterous delays do the justice seeker get justice? Even here the answer is a big NO, when whetted on the touchstone of ‘justice should not only be done but seen to be done’! And this is what the National Commission to review the working of the Constitution, a judiciary-headed, judiciary-heavy body, has stated in its Report submitted in 2002:
'Judicial system has not been able to meet even the modest expectations of the society. Its delays and costs are frustrating, its processes slow and uncertain. People are pushed to seek recourse to extra-legal methods for relief. Trial system both on the civil and criminal side has utterly broken down.'
Also, 'Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice'.
The Supreme Court itself had admitted in 2009 that it had wrongly sentenced 15 people to death in 15 years! In 2012, 14 retired judges had reportedly written to the President, pointing out that since 1996 the Supreme Court had erroneously given the death penalty to 15 people, of whom two were hanged! –‘You were wrong, My Lords’ http://www.telegraphindia.com/1150802/jsp/7days/story_34917.jsp#.VcJWsjNH27x.facebook
And if this is the case in the matter of capital punishments where it is awarded in the rarest of rarest cases in a country which unequivocally states that even if a thousand criminals escape one innocent shall not be punished, does one need to elaborate further?
The judiciary always has the following specious logic to justify its wayward decisions:
One, they can decide only on the facts and laws brought on record in the circumstances of the case; and
Two, since there are two contenders in any case and the verdict will be in favour of only one the other party will of course feel discontented!
I would like to counter this by highlighting the following issues.
In the Right to Information case involving judges’ assets, where the then Chief Justice of India had claimed that his office was out of purview of the RTI Act, what were the facts and laws that were needed to be brought on record? The law has been and is absolutely clear that the office of the Chief Justice is very much within the ambit of the law. And it has been upheld not only by all the information commissioners of the Central Information Commission but also by a single judge and division bench of the Delhi High Court! And why is the apex court sitting on this appeal for so long?
And even while claiming to be transparent in its functions merely because of the open court hearings it conducts why have the courts excluded the judicial functions of the courts from the purview of the RTI Act?
There are many cases reported in the media of serious crimes by judges (Mysore sex scandal, Rajasthan sex for favourable verdict, Non-bailable warrant against the then President and CJI etc) where not only the alleged offenders where not punished but the journalists had been hauled up for contempt of court! It is impossible for a rational citizen to believe that national media would publish such reports without any basis and with clear intention or even conspiracy to defame the judiciary. And what has happened to the case of illegal encroachment of land which led to P D Dinakaran being almost impeached? Of course he resigned at the last moment but was that sufficient punishment, if at all it could be considered punishment? Atleast has the encroached land been retrieved? Or should one presume that the judiciary has no responsibility to ensure that public trust is protected?
There are judges who while holding the office of the CJI or on retirement from that office have gone public with observations that 20 pc of judges are corrupt or even reportedly advised foreign governments not to file cases in India because it will take an unduly long time to get a verdict. Did they not amount to contempt of court?
Isn’t it also a fact that advocates who take to streets to protest are also proclaiming only one thing unambiguously: their lack of faith in the judiciary itself?
We, the people, are also aware of a senior advocate having submitted a list of 16 former CJsI, 8 of whom were allegedly ‘definitely corrupt’!
While a citizen like me has been holding the Contempt of Court provisions of the Constitution and the laws made under it to be totally anti democratic and the only context that justifies them to be cases where the orders of the courts are not complied with, what one has been noticing is the brazenness with which real contempt of court cases are not pursued, leading to litigants who have favourable decrees running from pillar to post to get them executed, and those who criticize the judiciary for genuine reasons being hauled up and dragged over the coals!
It was also appalling that a constitutionally enacted legislation like the National Judicial Appointments Commission has been arbitrarily thrown out by the apex court. The judges seem to forget that we, the people, the only sovereign entities in a democracy, have shared part of the sovereign powers-that of law making- only with our political representatives and the process laid down is fairly broad based to ensure objectivity that a few judges dumping it like so much trash can only be considered preposterous, to say the least! While checks and balances is a much bandied term what we see on the ground is the judiciary behaving like it is a god sent, or in other words god’s only gift, to the rest of the population!
So we come back to the four judges who have revolted against the person holding the highest office in the judiciary of the land. Obviously, it falls in the category of crime under the Contempt of Court Act, as it stands now. While judge Karnan’s case had merits in the allegations because they were more substantial and specific these judges have cast aspersions on the Chief Justice of India merely on perceived wrong doings. Do they mean to say that the CJI is so incompetent that he cannot even assign cases to the appropriate benches or are they alleging that he has biases and vested interests? As an ordinary human being with rationality still intact, I find their claim that the the CJI is only first amoung equals contradicting their own claim to decide certain cases simply because they are senior to the others!
And since judge Karnan’s case has set the precedence in that it is not only impeachment that is possible with judges of courts of records for their deviant behavior, there is the urgent need for the CJI to constitute a bench consisting of himself and any 6 judges of his choice to try these judges for criminal contempt. And the last nail on the coffin of judicial credibility will be the one if they are allowed to go scot free!
'The highest office in our democracy is the office of citizen; this is not only a platitude, it must translate into reality.’- National Commission to review the working of the Constitution