Courting Controversies
by P M Ravindran on 14 Oct 2018 3 Comments

If anybody asked me the most covetable job in India, I would say without batting an eyelid - a judge. And the next best - an advocate. In any case before a judge, there are always two parties - the complainant/prosecutor and the respondent/defendant. Both parties will present some facts and quote some laws, including case laws. It is then left to the judge to take the final call on who should get the favorable judgment. I dare say that he can do it by just tossing a coin.


Thereafter all he has to do is pick up appropriate lines from the arguments of the concerned party and add his decision. The procedure is so weird and antithetic to the very concept of transparency, accountability and ultimately to the concept of justice itself. To illustrate, consider the case of adjournments and delays in announcing decisions even after arguments are closed. Tariq pe tariq is such a hallmark of our judicial system that it should not need elaboration; probably not so well known is the delay in passing orders even after final arguments are over.


For the uninitiated, I shall cite a complaint taken up with the Palakkad District Consumer Disputes Redressal Forum. In OP 282/99 (OP No 85/95 transferred from Malappuram), the opposite party had produced an interim stay order from the Kerala High Court on October 28, 1999 and the stay was vacated only on June 8, 2005; but throughout this period the case was listed 58 times and adjourned. It was finally posted for orders on July 6, 2007 but was opened for re-hearing suo moto on February 15, 2008 and went on an adjournment spree from March 3, 2008 to May 31, 2010.


During this spree, it was adjourned 17 times, including five times for want of members / President and 10 times for orders only. It was dismissed when an application was submitted under the RTI Act to find out the status. Now, if this is the state of affairs in a consumer ‘court’, constituted under the Consumer Protection Act, in the form of a jury (and the implied high cost to the exchequer) to dispose of routine consumer related complaints fast and free (it was free to begin with but later a fee was introduced to even file complaints) one can well imagine the affairs of regular courts.


The National Commission to review the working of the Constitution, headed by a former Chief Justice of India, M.N. Venkatachelliah, whose five of ten other members were from the judiciary, reported that the “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”.


That no one can have his cake and eat it too is common knowledge. If there is any exception, it has to be our judges. They can always blame shoddy investigation and shoddy prosecution for miscarriage of justice. What about the competence and motivation of the judges? To even question them would invite prosecution under the Contempt of Court Act where the prosecutor, jury and hangman are combined in one person – the same judge whose credentials are being questioned.


The second most covetable job is that of an advocate, if only because his is a job that does not need to produce any guaranteed results. And the fees? Incredible. Didn’t Ram Jethmalani claim that his fees for just a conference is Rs one crore? And now the apex court itself is possessed of the exorbitant fees charged, up to Rs 50 lakhs per hearing, by senior advocates. Imagine, even a cardiologist who does beating heart surgeries is paid only a fraction, almost negligible fraction, of such amounts.


It has been mentioned that a judge can always blame shoddy investigations and prosecution for miscarriages of justice. That’s just half the truth. What was the role of investigators and prosecutors in the infamous case under the Right to Information Act where the then Chief Justice of India, K.G. Balakrishnan, claimed that his office was out of the purview of the law enacted to contain corruption and to hold Governments and their instrumentalities accountable to the governed?


Less than a year ago, the nation witnessed a sitting high court judge being sentenced to six months in prison under the contempt of court law for making allegations about some brother judges. Even before he was out of jail, we saw the same judges who convicted him making some vague allegations against the Chief Justice of India and specifically questioning his integrity. But the contempt law vanished into thin air.


Some years ago, Times Now, a television channel, inadvertently telecast for a few seconds the picture of a retired Supreme Court judge while reporting a scam in which another judge with a similar name was alleged to be involved. The media house promptly tendered apologies but the judge felt that it was not sincere. He filed a defamation case and was awarded Rs 100 crore as compensation. Appeals to the high court and apex court were not even heard but dismissed with the remarks to first deposit Rs 20 crore and issue bank guarantee for Rs 80 crore.


In contrast, in 1994, a top scientist from the Indian Space Research Organisation (ISRO) was framed in a sleazy scandal. The conspirators were many and with different motives. He and some colleagues working on a project of national importance were arrested, tortured, imprisoned and had to live through horror for many years. He was finally acquitted by the apex court in 1998. Since then, he had been a litigant demanding prosecution of the conspirators and perpetrators as well as for compensation of a mere Rs one crore. While the latter case is still pending in the Kerala High Court, the former has been decided in his favour with the constitution of a one judge committee to investigate the allegations and an award of Rs 50 lakh as compensation. 

If this doesn’t remind one of Animal Farm where all animals are equal but some are more equal than the others, then it is futile to continue to claim this to a democracy having rule of law where, be you ever so high, the law is above you. Our judges are not just above law but a law unto themselves. The trashing of the National Judicial Appointment Commission Act also proves this, if ever proof was needed.


The recent spate of judgments by the outgoing Chief Justice of India, Dipak Mishra, also gives reason to question the motives and prudence of our judges. The judgments in the matter of Aadhaar, entry of women in Sabarimala, and adultery have raised more questions than those addressed by the judges in the respective cases.


In the matter of Aadhaar, the lead petition was filed in 2012 by a former judge of a high court. During the six years that the court sat on it, the executive had a free run making it compulsory for almost every activity in the life of a citizen, from getting admission for children in schools, to reservations in railways, to even pension. And now, the court has circumscribed its use and ‘permitted’ citizens to demand removing the linking of Aadhaar to many facilities that it has been already linked with. And there is a ban on private parties demanding Aadhaar validation when Reliance Jio has provided services to almost 300 million customers based only on Aadhaar validation.


In the matter of entry of women in Sabarimala, the majority overruled the sane voice of its only woman member on the bench. There is quip: he who can smile when things go wrong has already thought of someone he can blame it on. Sabarimala is a seasonal pilgrim destination and the crowd has been swelling every year and become unmanageable in recent years. Even the police, deployed on security duties, have been asking for limiting the number of pilgrims visiting the shrine and extending the virtual queue management (through web booking) to 100 percent pilgrims.


And now even the communist government of the State, which had supported women’s entry, is praying that the number of women will not swell during the forthcoming season. We won’t have to wait for too long to learn what a disaster bomb has fallen into hands of the state government which is already facing criticism from all quarters for its disastrous management of the recent disaster in the form of floods.


Apart from the logistics involved in Sabarimala, there is also the question of how is it that the judiciary is so active in interfering adversely with all matters affecting Hindus, their faith and rituals (Jallikattu, dahi handi, fireworks etc). Cyber space is rife with information that of the roughly 25 lakh temples in India, there are six that do not allow men and five that do not allow women.


The judgment on adultery is shocking, but the redeeming factor is that it is not restricted to any particular denomination. Without going into an analysis of its sociological implications, let me recollect two instances narrated in the Bible. The first is the Garden of Eden where Adam and Eve were living a life of bliss, till the Devil came in the form of a snake (temptation). The rest is history. The second relates to Jesus addressing a mob about to stone Mary of Magdalene to death for prostitution. Jesus said, ‘let the one who has not sinned throw the first stone’, and everybody dropped their stones.


Though these instances raise their own questions in the present context, the one I would ask to conclude this article is: will only the judges who have not sinned sit in judgment in our courts? 

User Comments Post a Comment

Back to Top