Judges revolt: Can our Judiciary be saved?
by P M Ravindran on 10 Feb 2018 1 Comment

“To allow the chief justice practically a veto upon the appointment of judges is really to transfer the authority to the chief justice which we are not prepared to vest in the President or the government of the day. I, therefore, think that is also a dangerous proposition,”- Dr B.R. Ambedkar, Constituent Assembly debates


“The justice delivery system has reached its nadir.”- Y. K. Sabharwal, former CJI


“We urgently need three Judicial Commissions at the national and provincial levels: an Appointments Commission, a Performance Commission and a Punitive Scrutiny       Commission. They should have the power even to terminate services in cases of gross judicial misconduct”. – V.R. Krishna Iyer, former judge, Supreme Court of India, ‘The patchy Indian judicial record’ , The Hindu, 6 Sept., 2007


“Judges appointing judges is bad enough in itself; judges judging judges is worse.”- E.M.S. Natchiappan, head, Parliamentary Standing Committee of Ministry of Law and Justice


To answer the question, can our judiciary be saved by shooting from the hip, Texas style? Of course not! Definitely not the way things are at present. Just imagine the audacity of Kurian Joseph, one to the four judges who held the press conference to cast aspersions on the Chief Justice of India, going back to the press the next day and stating ‘we do not want any external interventions’!


One can only analyse what is needed to have a justice delivery system that works to deliver what it is expected to deliver-justice! Here there are two options: one, to go on a quoting spree that implicitly suggests some remedies. For example, Natchiappan’s observation, quoted above, suggests there should be a body without judges as members, to judge judges.


In fact, an online petition, initiated on 31 May 2005, appealing to the President and Prime Minister to constitute a National Judicial Commission to try and punish judges as per laws applicable to citizens, had been signed by 429 citizens, none with vested interests.


(The PetitionOnline site has subsequently gone off cyberspace but the contents of the petition and comments of the supporters are posted at

https://www.scribd.com/document/347897272/310505-the-Petition-to-constitute-a-National-Judicial-Commission and

https://www.scribd.com/document/347898072/310505-the-Petition-to-constitute-a-National-Judicial-Commission-Signatures1-to-429 )

Krishna Iyer has suggested how many bodies are required for dealing with various aspects involving judges.


The other option is straightforward and based on first principles. For example, if there is delay, is it only due to deficiency in the number of judges? If yes, then certainly there is a case for increasing the number of judges. But what about other obvious reasons like less dockets per judge (compared to the US), the preposterously large number of cases listed per day, the unwarranted adjournments etc wasting much precious time of our courts and worse, judges going on vacation as in colonial times? As per reports appearing in media/ social networks, the higher courts work only for around half the number of days in a year.

(SEE http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4562)


To begin with, all quasi judicial organizations should be converted to regular courts with specialization and should be headed by appropriately qualified citizens and definitely not by retired judges or bureaucrats. It is obnoxious that the apex court that rubbished the National Judicial Appointment Act has not found anything wrong with re-employment of retired judges in quasi-judicial organizations like human rights commissions and consumer ‘courts’ when Article 124 (7) of the Constitution of India states that: “No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.”


Similarly, Article 220 for permanent judges of high courts directs that they should not plead or act in any court or before any authority except before the Supreme Court and other high courts. When bureaucrats have to retire at 60 there is no reason why judges, at all levels, should not be retired at this age.


These two suggestions would at once remove dead wood and blunt the virtual judge-to-population ratio argument.


Then, if a judge can hear only 5 to 10 cases in a day, a maximum of 15 cases should be listed. These cases should be continuously listed till they are disposed off one by one, adding as many cases to the list as are disposed off the previous day. While listing, the cases should be divided into four parts - fore noon first half and second half and afternoon first half and second half – so that litigants are required to be present only for those durations and do not have to waste the complete day.


The limits of adjournment are specified in most laws, but are not followed. They should be enforced ruthlessly. The penalty imposed on the defaulting party should be a deterrent.


Ideally, affected parties should be encouraged to argue their cases in person. This will put an end to the games played by advocates at the cost of litigants. Fali S Nariman, in his book ‘India’s Legal system: Can it be saved?’ asserted: 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.


However, the illustrious lawyer did not give any suggestions to save India’s legal system. His book concludes with the poser: In this country of ours, the Judiciary is the salt of the earth. My wish for the third millennium is that if it please God, there be no occasion when it is said that the salt has lost its flavour, because as the Bible warns us: if the salt ever loses its flavour, then wherewith shall it be salted?


To allay the fears of advocates being jobless and to make the first level of grievance redressal available at the door step, what needs to be done is that every advocate should be given licence as an arbitrator and allowed to hear disputes between aggrieved parties and give decisions. The licence should include their subject of specialisation and an accreditation status provided by the bar council. Their fees should be regulated like that of doctors. Only if the decision of this first level redressal system is not acceptable should the matter go to a formal court. The decision as well as the satisfaction level of the parties concerned should be communicated to the bar council for compiling the performance profile of the advocate.


The party aggrieved by the decision may consult an advocate and get a formal petition prepared, but filing in court should be done by the party only and not the advocate, though details of the advocate preparing the petition should be on record to enable assessment of his competence later (this concept, in a rudimentary form, is followed by the Income Tax Department which tracks the tax practitioners filing IT returns on behalf of third parties.) But no advocate should be allowed to appear in any court representing any of the parties.


The court may summon the parties or witnesses who had deposed before the advocate during the first stage. This may be done only once and in very rare cases twice. The court’s decision should be communicated not only to the parties but also to the bar council which should use the data to grade the judge as well as the advocates - both the one who acted as arbitrator and the one who prepared the petition. This grading should be reflected in the accreditation status and the fees payable to the advocate and should be renewed every three years. This certificate should be displayed in the office of every advocate in a manner that will be visible to every visitor.


The final appeal, except in cases where punishment is death or life imprisonment, should be to a bench of two judges at district level.


The high court should take the final call in cases of death and life imprisonment sentences. Otherwise it should deal with issues of law referred to it by the district courts and intra-government disputes. The quality of references from district judges should be evaluated to grade and appraise them and their compensation, including scope for continued employment and promotion, should also be linked to this.


The apex court should only be involved in vetting the laws made by the parliament and the state legislative assemblies and enforcing correction.


A website, having all case laws related to specific crimes should be maintained by the bar council and monitored by the high courts and apex court. It should be accessible to all. It may be necessary to hold as void all case laws older than, say, 25 years.


Delivering the keynote address on ‘The Case for Delivering Better Justice to Women: A view from the Judge’s Chair’ at the 4th annual Women’s Day event organized by Moneylife Foundation, Sujata Manohar, former judge of the Supreme Court, said: “The first problem with the Indian justice system is that the laws can’t be properly understood. We need laws that take into account the needs of society. Once this is done, they need to be implemented. There are several other things we need. Just punishing wrongdoers, giving jail-time isn’t enough. We need community service provisions, we need compensatory provisions.”


Have you ever thought why all under trials are poor and languishing in jail for the best part of their lives, when the likes of Kanimozhi and D Raja could approach the apex court repeatedly for bail even during their short term in jail, pending framing of charges? The condition for granting bail is simple - the surety must produce the latest receipt for having paid land tax!


And do you know that in our courts, a copy of the order is issued to the accused only if he is convicted and not if he is acquitted? If acquitted, he has to apply for a copy of the order for his record! This provides another opportunity for the advocate to fleece him.


Can’t a judiciary that could trash the National Judicial Appointments Commission Act amend these provisions and undo the injustice to poor under trials or citizens who have been viciously dragged through preposterous court procedures due to the malevolence of some public servants?


Finally, Parliament should amend the provisions of the Constitution and laws dealing with contempt of court to make contempt of court applicable only in cases of non-compliance with judicial orders. A Contempt of Citizen (Prevention of) Act should follow. And, in cases involving government as a petitioner/respondent, the concerned public servants should be made party to the case and be required to go through the procedure as any ordinary citizen who is a complainant or defender is required to go through. The number of cases would then crash along with gigantic egos.


The author is a military veteran and RTI activist; the views expressed are personal 

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