JUDGES
REVOLT:
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
Great information dear sir
ReplyDelete