First things first. I'm by no means claiming that Indian judiciary is pristine or is under no requirement of significant upgradation and improvement. I'm nobody to dispute that reality since anyone who has had an experience with litigation in an Indian Court is likely to have had a vary harrowing experience, particularly in reference to the time consumed in arriving at a verdict. Also several eminent jurists have pointed several foibles in the justice delivery system of our country and I do not intend to contradict them. But what is essential in this context is that when we read or hear against our judicial system we, as responsible persons, must also strive to analyse the cause (s) behind those facts.
The article that I've mentioned starts with the hackneyed grievance that the wait for justice in India is always unduly protracted. Cases to get decided take an unbelievably long time. So much so that it defeats the very purpose of the verdict at times. Ever wondered what's the cause of that ? Any person who has read extensively regarding this issue will understand that this happens mainly due to shortage of Courts vis - a -vis a relative docket explosion. While the rate at which litigation are being initiated have gone up substantially, the number of Courts and Judges to decide them haven't seen a proportional increase. It is essential for us to know that there is something called the Judge - Population ratio. It denotes the number of judges per million (ten lakh) people in a country. In the USA they have ten times more judges per million people, than in India. The Indian Law Commission in its 120th Report recommended that the strength of judges per million population should be increased from 10.5 to 50 judges. The present judge strength in India is 14 judges per million (ten lakh) population (approx.). From these figures it is not difficult to understand the cause behind the present alarming rate of pendency of cases. With regard to subordinate judiciary, the Supreme Court had, in its judgement of 21st March, 2002, in All India Judges’ Association & Ors Vs. Union of India & Ors., also directed that increase in the Judge strength from 10.5 per 10 lakh people to 50 judges per 10 lakh people should be effected and implemented within a period of five years in a phased manner to be determined and directed by the Union Ministry of Law. Clearly the concerned Ministry has not lived up to the task. And the blame for large pendency of cases unfortunately goes to the judiciary.
Now the budget. Ever wondered who controls the expenditure for building judicial infrastructure in the country ? Of course the Govt. You'll be surprised to know that less than 1 % is allocated to the judiciary in the State and Central Budget every year. In the Ninth Five year plan the Govt. set aside Rs 385 Crore for the judiciary and that works out to about 0.078 % of total expenditure plan. In the Tenth Five Year Plan, the allocation though increased to Rs 700 Crore, it still works out to a shocking 0.071 % of total plan expenditure. Its a complete mockery that the very institution which is often quoted as the last hope for the exploited and the injured, is so neglected. One of my friends recently pointed out to me his utter wonder, after becoming aware of these figures, at as to how the judiciary functions at all.
Despite all these hurdles, judiciary is not sitting quietly. Under the directives of the Hon'ble Supreme Court several Courts in different States are functioning as 'Evening Courts', beyond the normal day time functioning of Courts. Where focus is being put on taking up for hearing many old cases which are pending adjudication. More to this multiple drives are being regularly conducted by way of District Level, and State Level Lok Adalats where the Courts are taking extra steps to cause the parties to amicably settle their cases without further litigation. These steps are yielding quite promising results. But considering the mountain pendency figures, these efforts are unable to bring about any substantial change therein, for the public to realize that such endeavours are being made in the first place. After all there is a human limit to which Judges can give their efforts in disposing of so many cases.
It has been further pointed out in the relevant write up, that a rich man can go to some foreign country under some false pretext while his lawyer keeps making appearances for him and on the other hand a poor man has no such liberty. I humbly need to dispute this statement as a misinformed generalization of the state of affairs. It is the law of this land that no person ought to be ordinarily forced to attend the Court proceeding, if his presence somewhere else is necessary, unless his attendance is really indispensable for such proceeding. e.g. in a hit and run case the witnesses need to identify the accused hence on each date of evidence the accused must be present even though he's on bail. But in a cheque bounce case, the evidence is mainly in form of documents, hence the parties can appear through their lawyer. Similarly in civil cases there is barely any need for the parties to personally appear on each and every date unless the proceeding demands so. Hence unlike what has been said, a poor person too can appear through his lawyer, one appointed by him or by the State.
She has further, in her article, very rightly doubted the concept of true justice as a mere facade. It’s mainly because of the popular perception that law serves the interests of only the powerful and the privileged, while the un privileged suffer despite all the protection purported to be guaranteed to them by it. The anger is fixated on the high and the mighty who appear to be immune to the rigours of law. I'm afraid the cause of this anomaly is much complex, fundamental to our legal system than a mere allegation that justice is on sale for the rich and powerful. One must understand a country's judiciary is as potent and efficient as are it's a) Investigative Agencies and b) Witnesses. We have countless examples where witnesses have faltered in Court. If one goes and sees for himself, he is likely to discover several witnesses simply testifying before the Courts that they know nothing about the incident. Whereas they have given full statements before the investigating officer regarding their knowledge of the occurrence. So it's either the Police or the witness who lies. But in either scenario the Court is rendered with no other option but to set free the accused.
It has been lamented in the article that "Justice in this country can be cheaply bought or easily abused." It's necessary to know certain facts about the process of litigation before we judge the truth of that belief.
The law is set into motion when an FIR / complaint is registered by the Police.
The Police then goes to do investigation. During investigation it collects proofs, statements of witnesses etc that indicate the commission of the alleged offence.
Then on the combined basis of the complaint and the investigation it arraigns the suspects as accused persons and forwards them to the nearest Court of law, or
The Police then submits a final report ( in case it doesn't get any clue or evidence of the crime ) or in other cases submits charge sheet alongwith other documents.
If final report is submitted, the complainant can protest against it and pray to the Court to still take cognizance (proceeding with) of the offences despite the Police's final report. If the Court doesn't then the case is closed ( & the victim can appeal to higher Courts), but if it does listen to the complainant then it conducts its own inquiry and proceeds likewise.
When the accused is brought before the Couirt or he himself appears before it, the allegations are read over and explained to the him and he's asked whether he admits his guilt or not.
If he does then the Judge decides his punishment, but if he doesn't then trial commences.
The Court then summons the witnesses named by the Poilice who had stated during the investigations about to the guilt of the accused.
Now depending upon the dimensions of a particular case, various categories of documents, witnesses, expert witnesses etc. are summoned by the Court for ultimate analysis of the truth.
After this process is over, the accused is given an opportunity to adduce evidence in his favour to rebut the prosecution evidence. Ultimately after hearing the final arguments the judge pronounces his judgment.
Now you think for yourself, as to how many different persons have a role to play in deciding the fate of a case. Police, witnesses, scientific experts, documents etc. Unless each of them is pristine and honest in his task, truth is bound to remain buried.
Therefore the next time when one thinks that a Court has set free a guilty, or that justice has been cheaply bartered, think again, what actually was bartered. It was some witness who got scared or got greedy and decided not to tell the truth to the Court. Or the investigating officer who coerced someone to lie. The Court is not powerless in such situations, but the witness harassed must complain of the same to it.
The article also states that "we have judges.. with exceptions ofcourse, who have bartered their integrity for immoral and unethical benefits". Such a statement is likely to give an impression as if judges getting exposed for their corruption is an everyday affair. Now we all know that is not true. There are allegations but very sporadic. Even if we assume that they do, a corrupt decision making process by a Court ultimately is of no real benefit to the person who seeks to gain from it, since the suffering party can always get that Court's decision overruled in appeal.
The concerned article cites a sad example of a pregnant woman Kshama Chopra was killed when a BMW rammed the car she was travelling in. The accused was granted bail by submitting a bond of Rs 50,000. Bail has nothing to do with punishment. Therefore it's wrong to compare the value of life of a person with the surety / bail amount as it is only a security for his attendance in Court. If he dodges the law then not only that amount will be forfeited but also the Court can issue non bailable warrant against him and if he still doesn't appear then it can attach and sell off his property and compensate the victim, subject ofcourse to the proper law in this context. Unfortunately it's the law that has been written like that. In a hit and run case, the accused is most likely arraigned under Sections 279, 336, 337 or 304 A of IPC. Sadly all these sections are bailable offences. Hence the Court is bound to let off the accused on bail. It cannot set a large sum of money as bail amount since that'd be indirectly creating hardship for him to get bail in a bailable case. However regarding Kshama Chopra's case, I could opine better if I could know under what sections of law the accused was charged.
The article has doubted the independence of judiciary in view of the Kasab's case. Please remember that the independence of judiciary is always measured in its decision making process not in execution of its orders. Since technically, execution of it's orders is the duty of the executive. Furthermore it is indeed unfortunate and unfair to doubt the independence of our judiciary especially after it's relentless vigilance and vindication of public interest in the 2G scam and after exempting Vodafone from crores of rupees of tax payment to our Govt or sending SITs hunting for the corrupt and the wrong . Though I've a lot to say about the Kasab's case I humbly refrain from doing so since the highest Court of our land is seized with it's adjudication. There will be a time for my view on it and I'll surely give it then in retrosepct.
As far as the Judges of the Supreme Court, High Courts and other subordinate Courts are concerned I'm nobody to vouch for their integrity. All I can tell you that as subjects of constant public scrutiny, judges accept tremendous personal restrictions in their lives, that is often viewed as burdensome by the ordinary citizen and they do so freely and willingly. They do not socialize as much as they wish to. Their whole life is spent avoiding places that shimmer with frolic and glamour. Restraint is an everyday indulgence. That's the cost they pay for they respect and authority they command in Courts. Taking stray examples of deviation and generalizing judges as hypocrites and arrogant is extremely sad. I've known judges, now retired, who have lived their life under so much financial difficulty, yet with their head held high due to the restraint and exemplary code of ethics that they practiced in their lives and in their profession. A simple tete - e tete' with them will leave you awestruck and in reverence of their wisdom. Let's not forget what the Courts of this country have done for us and our fundamental rights after independence. When there was widespread onslaught on cherished liberties by those drunk with power. Since I've pointed out the real source which could alter the fundamental problem of delay in case disposal, it wouldn't be out of context to remind ourselves that the Courts have and always will vindicate the stand of the common man. Despite all the discussed follies, judiciary remains the common man's last hope. No matter how much we criticize the judiciary, we'll still run to it when we face attack against our freedom, person, family or property, because deep down we know that things won't be the same there as they were in some other office or forum.
This article should not be construed as one written in an argumentative tenor against what has been written by my fellow blogger in her article "Justice in Jeopardy, rather it should be read as one written by an ardent believer in the goodness and fairness of our judicial system and a student of law who has a little first hand experience of the legal system.
As far as the Judges of the Supreme Court, High Courts and other subordinate Courts are concerned I'm nobody to vouch for their integrity. All I can tell you that as subjects of constant public scrutiny, judges accept tremendous personal restrictions in their lives, that is often viewed as burdensome by the ordinary citizen and they do so freely and willingly. They do not socialize as much as they wish to. Their whole life is spent avoiding places that shimmer with frolic and glamour. Restraint is an everyday indulgence. That's the cost they pay for they respect and authority they command in Courts. Taking stray examples of deviation and generalizing judges as hypocrites and arrogant is extremely sad. I've known judges, now retired, who have lived their life under so much financial difficulty, yet with their head held high due to the restraint and exemplary code of ethics that they practiced in their lives and in their profession. A simple tete - e tete' with them will leave you awestruck and in reverence of their wisdom. Let's not forget what the Courts of this country have done for us and our fundamental rights after independence. When there was widespread onslaught on cherished liberties by those drunk with power. Since I've pointed out the real source which could alter the fundamental problem of delay in case disposal, it wouldn't be out of context to remind ourselves that the Courts have and always will vindicate the stand of the common man. Despite all the discussed follies, judiciary remains the common man's last hope. No matter how much we criticize the judiciary, we'll still run to it when we face attack against our freedom, person, family or property, because deep down we know that things won't be the same there as they were in some other office or forum.
This article should not be construed as one written in an argumentative tenor against what has been written by my fellow blogger in her article "Justice in Jeopardy, rather it should be read as one written by an ardent believer in the goodness and fairness of our judicial system and a student of law who has a little first hand experience of the legal system.
For related discussions read
The Conversation - II ((On Law & Justice ....)
The Conversation - III (On free speech, media trial & prejudice ) and
(On delays in justice, revelations about judicial process & more on free speech, role of media & prejudice... + A must watch Video)
WISH YOU A PROMISING AND HOPE INSPIRING 65TH INDEPENDENCE DAY.
Hi Anupam,
ReplyDeleteJustice delayed is Justice denied! That holds true anywhere - but I take your point that the delay in Justice cannot necessarily be laid at the doors of the judiciary and the Legislature and Executive have much to answer for in this regard.
Again, in terms of the rich getting away with murder, it is true that the problem may vest more in the realms of the Executive - the investigative machinery, in this case - than in the judiciary.
As for corruption in the judiciary, I too feel that it is a far lesser proportion than in other sections of Society but, like in the case of doctors, it arouses far more anguish because the extent of trust that has necessarily to be reposed in the judiciary is more than for other sections of Society.
Lastly, would you think that an investigative arm with the Prosecutor's office with the Prosecutor himself being an elected official as in the USA serve the purpose of impartial investigation better?
Thanks Suresh ji for reading my article. I'm glad that you found reason and sense in what I've written. I'm one thousand percent in agreement with you when you say that because of the nature of the organ even the slightest displacement of trust causes a huge hurt in our hearts. This organ as well as the health care organ have to be pristine at all costs.
DeleteSorry, I missed the last part / question. The answer to your question would depend on what kind of investigators the PP gets at his aid. I mean their training, career etc. as that would affect their competence. It may not solve the problem adequately but would definitely be a better prospect provided of course, the PP's office has nothing to be influenced / induced / coerced / blackmailed about by the political class or for that matter any external agency.
DeleteAll your post is completely more technical than any I have read until now. It surely reveals more about what actually is going on, and then my answer came, ;) you are a law student, cool!
ReplyDeleteThe first point you made, and for goodness’ sake, is that there is a “Judge-Population ration”; we needed such a stat very badly. Good you have explained that. ;)
And the budget stats. These two pretty much play a major role in answering as to why Indian Judiciary System is not good enough or lacks the required swiftness in judgement.
But still, the world through layman's eyes is not one to be cared less. and the justice that is kept in pause, for a long time(though you give us the reasons why), is simply something no victim can tolerate.
I ask you this, and to all, if Kasab was an Indian, would a verdict, a justice, have come by now?
I dont think so. i maybe wrong, but my layman eyes say 'no'. So what is the problem with 'doing away with' criminals whose intentions are clear and open.
"the justice", a correction..
DeleteThanks for reading Jayanth.
DeleteI'm glad that I could add to your info. base concerning the Indian judiciary.
As for the point of a layman, I totally agree with you, that he'll understand what he sees and feels, uninformed about these technicalities. I so badly wish that the judiciary besides being accorded independence in decision making, would have been afforded independence to generate revenue so that it wouldn't have had to depend on the executive and the legislature, who are likely not to be inclined in strengthening the judiciary since that would entail their own doom.
As for the Kasab issue, I personally have seen two major kinds of frustration among the masses regarding it. One being the normal manner in which his trial was conducted despite the fact that hundreds saw his ghastly crimes on camera, and number two being the delay in execution of his death sentence. A friend once asked me this "Where hundreds of people saw him doing what he did on Close Circuit Camera TV, isn't it almost comical to again go through the detailed process of a criminal trial to prove his guilt?"
DeleteI admit that on the face, it may sound ridiculously outrageous, to offer someone like Kasab the same fairness of opportunity to defend himself, as is offered to any motorcycle thief. But you must realize that if we do not, it will set such ghastly precedence , that in future its example will be exploited to a regretful extent. I'll clarify further with two simple illustrations. Let's consider a case where, after a terrorist attack, the guilty are at large and there's such overwhelming pressure on the investigating agencies of our country, which is often seen in such cases, that it stages simpletons, either by coercion or by inducement, as the ones responsible for the attack. (As dramatic or filmy as it may sound, it's still a strong possibility). Now if the deeds are as ghastly as that of Kasab's then the prosecution in those cases will quote the precedent of Kasab's trial and demand skipping and short circuiting their trials, as was done in Kasab's case. If his plea were to be indeed entertained by the Court, then don't you think it'll be a travesty of justice. There is further a strong likelihood that the investigating agencies & the prosecution agents will become so addicted to such short - circuiting that, ghastlier the crime, the stronger their demand will be for hasting away with the trial process. Just imagine where we'll end up then.
As far as seeing him on camera is concerned, those people who saw him shall have to come forward and testify in the Court that they saw him. There's a procedure established and no one's life or liberty can be taken away except by the procedure established by law. And that entails a trial despite the overwhelming obviousness of one's indulgence in a particular crime. Such is the flip side of democracy. Equality of opportunity.
Please do not misunderstand my deliberations as a complete support for the entire Kasab episode, I believe such actions must be responded with the harshest of deterrence, so that prospective criminals shudder before embarking themselves on similar pursuits. All I'm saying is that there is nothing wrong in achieving that end by means which are established by the founding fathers of our nation.
At the same time I'm not quite sure if I could be of the same supportive opinion about the duration of time consumed by the legal process in Kasab's case. Surely things could have been expedited. But I've enough faith in our judiciary to wait patiently to see Kasab being punished and the stand of those who suffered in his attacks vindicated.
The number of courts and judges as compared to the number of cases is something I didn't know. Thanks for letting us know.
ReplyDeleteBut your article still tells me that witnesses can (and are) either bribed or subdued through pressure and fear for their lives or lives of their loved ones in India. There is no protection for them.
If, in a hit and run case, the punishment depends on the sections of law under which the accused was charged, the lawyers should better inform their clients of the possible outcomes.
You've cited 3 examples proving the independence of the judiciary - don't know how many there are proving they aren't.
From the above I can honestly say that our system would work better if we could at least improve on the appalling statistics and increase the number of courts and judges; introduce better witness protection; get our lawyers to better explain the possible outcomes of charging the accused under various sections of the law; and, if we could ensure there are checks and balances to ensure the independence of the judiciary.
Thanks for reading 'Kay Em'.
DeleteAs for the independence of judiciary, there could be stray examples against it but there is an emphatic statistics suggesting the same in the affirmative. There are hundreds of examples where the independence of judiciary has been reinforced. Why else do you think for every political wrong committed by those in power, a writ petition is filed either in High Courts and the Supreme Court. There is something called judicial activism. You'll find instances galore where the judiciary has gone head on against the Parliament and the Executive to protect the fundamental and legal rights of citizens of this country. I can't start giving you all the instances due to obvious reasons. Kindly GOOGLE "judicial activism in India" and your thorough and patient research will open your eyes about the independence of our judiciary. The three examples that I've cited are the most recent ones. Hence the citation.
As for lawyers informing the outcome of cases to their clients, that's not under the control of any Courts or Judges. Lawyers are independent service providers. Ofcourse if the person concerned can ask the same question to the Court, then he is sure to get the right answer. More to this, educated clients can always google it up by citing the relevant provision of law.
As for the witness protection issue, our Courts, especially the Supreme Court has made several recomendations to start a witnhess protection program, especially after the Zahira Sheikh turning hostile issue. All those have fallen on deaf ears, As starting one is in the domain of the Parliament. Plus such a program would require extremely honest and dedicated people who will guard the secrets of the witnesses and what they wish to say in the Courts.
As for all your suggestions I totally agree.
Thanks once again for reading and sharing your valuable points of view.
This comment has been removed by the author.
DeleteHi Anupam, After your article and your suggestion I've been reading up lots on the independence of the judiciary and judicial activism. What bothers me is why, if the judiciary is independent, do we have politicians getting away with so many scams and literally bleeding India dry? Why can't they be stopped? I read articles on the judicial accountability bill - what the past Chief Justice (Verma) and the current one had to say about the pluses and their reservations about it. One article I came across, explains in great detail how and why the judiciary in India is both, accountable and not. It was a talk delivered at Princeton University on March 10, 2009 at the Department of South Asian Studies. The link is long so perhaps copying and pasting it in the address bar would help. The article is detailed and I would be very interested to know what you think after reading it.
Deletehttps://docs.google.com/viewer?a=v&q=cache:cQmpN2134H4J:www.judicialreforms.org/files/the_lack_of_judicial_accountability_in_india.pdf+&hl=en&pid=bl&srcid=ADGEESg4vKYwopHiKlCa3bARAjc0-lnMM379Dxd26EyKBOJbpICPfMKGHgMcrPYzMuyVdeXR7ssbney5fC7iHuznNIaZLIiOSVMxU4IChpqDGoCac3Ed1vGgWhOqK1aLTrOGcIP00FU_&sig=AHIEtbQXFj3V4RLyJsQKmaynJEHQ9ED7mg&pli=1
It's a good thing that you got into reading for yourself. Now as for your question as to why politicians are getting away, it seems as if you have not quite read my article in detail. Anyway I'm going to quote the relevant part
Delete" It has been lamented in the article that "Justice in this country can be cheaply bought or easily abused." It's necessary to know certain facts about the process of litigation before we judge the truth of that belief.
The law is set into motion when an FIR / complaint is registered by the Police.
The Police then goes to do investigation. During investigation it collects proofs, statements of witnesses etc that indicate the commission of the alleged offence.
Then on the combined basis of the complaint and the investigation it arraigns the suspects as accused persons and forwards them to the nearest Court of law, or
The Police then submits a final report ( in case it doesn't get any clue or evidence of the crime ) or in other cases submits charge sheet alongwith other documents.
If final report is submitted, the complainant can protest against it and pray to the Court to still take cognizance (proceeding with) of the offences despite the Police's final report. If the Court doesn't then the case is closed ( & the victim can appeal to higher Courts), but if it does listen to the complainant then it conducts its own inquiry and proceeds likewise.
When the accused is brought before the Couirt or he himself appears before it, the allegations are read over and explained to the him and he's asked whether he admits his guilt or not.
If he does then the Judge decides his punishment, but if he doesn't then trial commences.
The Court then summons the witnesses named by the Poilice who had stated during the investigations about to the guilt of the accused.
Now depending upon the dimensions of a particular case, various categories of documents, witnesses, expert witnesses etc. are summoned by the Court for ultimate analysis of the truth.
After this process is over, the accused is given an opportunity to adduce evidence in his favour to rebut the prosecution evidence. Ultimately after hearing the final arguments the judge pronounces his judgment.
Now you think for yourself, as to how many different persons have a role to play in deciding the fate of a case. Police, witnesses, scientific experts, documents etc. Unless each of them is pristine and honest in his task, truth is bound to remain buried.
Therefore the next time when one thinks that a Court has set free a guilty, or that justice has been cheaply bartered, think again, what actually was bartered. It was some witness who got scared or got greedy and decided not to tell the truth to the Court. Or the investigating officer who coerced someone to lie. "
I must, at the cost of repetition, remind you clearly that a Court is bound by rules of evidence. It cannot punish somebody out of its whims and fancies or for that sake out of perceived notions or popular opinions. Hence to punish a so called corrupt politician or even a "peon" it needs evidence. Hence the next time this question comes to your mind, I humbly urge you to file for a certified copy of the concerned judgment of the Court. By reading that judgment you will come to know why the "percieved" corrupt was set free. The answer will mostly be due to lack of evidence.
As for your question why can't the corrupt politicians be stopped, we'll do great service to our nation, if we go on making people aware, especially the poor and the illiterate (considering the abysmal number of educated voters who go to cast their votes on the polling day), to not vote for these people. As it is not the judiciary but the people of this country who vote them back to power.
(...contd)
DeleteNow about the 'detailed' article. I'll clarify only certain points raised by him since by no means I'm saying that all what he has said is unacceptable. There are indeed certain changes required to be made in the judiciary, and I say this on the basis of what has been said by certain eminent jurists of our country.
The article firstly claims that the (Supreme Court) SC by "creative interpretation" has acquired the power to strike down constitutional amendments made by Parliament. It further claims that Judges have whimsically used the method of PILs (Public Interest Litigations) for environment protection. Is environment protection a bad thing ? And he must have said why he thinks that Judges have whimisically exercised their power. He must have substantiated his claim by atleast a few examples. But he hasn't.
He has said that vendors were displaced by Supreme Court orders but what he didn't say is that the Court also ordered for their rehabilitation by the Govt. And if he was so concerned then he must have filed a contempt petition against the Govt. for not following Supreme Court orders.
He has made a shocking claim that though normally the Supreme Court gives priority to environment protection vis a vis socio economic rights of the poor, it flips such priority if its conflicting with corporate development. He has not made a single statement to support his baseless claim. (This is the problem with speeches. One does not get to be asked questions.) I sincerely urge you to read this article and you will know how heavily Supreme Court has come down on corporations who profited at the cost of environment and what penalties it imposed on them. In one case, it even ordered one mining company to undo all tree felling, water body sinking etc. that it did to start its mining. (Read it here http://jurisonline.in/2010/12/role-of-supreme-court-in-environment-protection/ ).
Next he has spoken about undue issuance of directions by Court without notice. I do not intend to say anything on it since he himself has remedied his own query by stating at the end of that paragraph that "Of course, often these powers were wisely exercised to correct gross executive inaction."
(...contd..)
DeleteHe has surprisingly spoken about how it was "inventive" on the part of Supreme Court to have taken over the power of appointment of Judges. Being a civil liberty activist himself he has probably forgotten the dangers amidst which the Supreme Court had to take such a step. I'll briefly state it. Article of the Constitution states that the President shall appoint Judges in consultation with Chief Justice and other Judges. It was the Supreme Court which was of the view that such consultation was not binding on the President and that he could wish to ignore the recommendations of the Judiciary. Now we all know that the President in India cannot act against the wish of the Cabinet. Hence an appointment by President meant an appointment by Government of the day. In such a scenario, politics, bias, vested interest were sure to creep in. As the Govt. would want a pro Govt. Judge. That compromised the independence of judiciary. Hence the Supreme Court took over the task of appointing Judges to itself and started what is known as the "collegium " of Senior Judges of the Supreme Court. This may not be arguably the best position but it definitely prevents the interests of the political class and the executive from making inroads in their apoointment.
He has alleged that no regard is given to examining the record or credentials of judges in their ideological adherence to the constitutional ideals of a secular, socialist democratic republic or their understanding of or sensitivity towards the common people of the country who are poor, marginalized and unable to fight for their rights in the courts. I don't know why such a claim has been made, since he for sure has never been privy to what the senior Judges see or do not see in appointing another Judge. Of course there is a need for better transparency only, in my humble opinion, to the extent of self declaration of assets. Any other requirement is and should be looked into only by Supreme Court Judges of the collegium, otherwise, if the Executive have a say in it, there is a chance they may end up harassing Judges. After all Judges should be accountable not afraid.
I do not wish to say anything spoken against the power of contempt since it's the only weapon available to the judiciary to enforce it's orders. Minus that it cannot do anything to a defiant executive or political class.
So far as he laments over non coverage of allegations against Judges by the media, we must understand that Judges by a self imposed restraint never go to media no matter how overwhelmingly they may personally feel otherwise. They deliberately stay away from it in order to safeguard the distinctness and the very purpose for which they exist. Since the speaker is a reformer and believer in democratic fundamentals, I'm sure he'll agree that it isn't proper to carry out any discussion against any person without offering him any chance to defend himself. Since Judges will not come before media, the media rightly refrains from making widespread coverage of such allegations. In that view of the matter, if there is any allegation against any Judge it should be dealt with only and only in the proper forum.
He has spoken against the system of taking written permission of the CJI before criminally investigating a Judge of the superior judiciary. I agree with him that this may make the system complex, but we must also understand that without this safeguard, any disgruntled politician against whom an hinest Judge gives a verdict, will force the Police to illegally and whimsically arraign that Judge in a criminal case. This will shatter the judiciary.
DeleteAbout the RTI thing I have a slightly different mode of dealing with this issue. I agree that owing to the greatness of the job of judging others, Judges should themselves be beyond reproach and hence declare assets. But again the same problems are likely to creep in. Armed with information about the wealth of Judges, there could be a flurry of motivated actions petitions, propaganda against them. Hence to prevent that, it's quite necessary to do what has been done.
By the way the Supreme Court Judges have declared their assets. Read it here http://supremecourtofindia.nic.in/assets.htm
If you've the time read this http://anupampatracontemplates.blogspot.in/2012/08/justice-in-jeopardy-resolving-debate.html which I wrote after writing this article.
Regards,
Anupam
this post is true reflection of judiciary being lawyer i did practice in small town Reberli and came to know how the justice is given and how to become the good lawyer.thanks for sharing this nice post
ReplyDeleteO Dear,so you are a lawyer ?!! It's a pleasure knowing you then. Do keep visiting more often then and share your valuable life experiences.
DeleteHi Anupam
ReplyDeleteVery well written post. I agree, its not just the judiciary that is to be blamed when witnesses etc get sold for money...And I do agree, there would be so many respectable judges in our country.
But as you said if there was a dearth of courts and judges, making up for it is not an easy task rt..Considering the no of lawyers in the nation, not anybody can become a judge rt? One given that authority must be really worthy...Picking such folks is time consuming rt?
Hey Jayashree,
DeleteThank You as always for patiently reading what I try to convey in my posts. This one was written to reinstill the ebbing faith of so many persons in our judiciary. What's sad is that it's mostly because of misinformed reasons.
To keep the judges free from bias towards political and executive officials, their appointment is done entirely by the High Court (in the states) and the Supreme Court (for High Courts. The High Court and Supreme Court judges are selected by the "collegium" comprising the Chief Justice of India and very senior Justices of the Supreme Court along with the Chief Justices of various High Courts. The selection process is free from any external pressure. There was a lot of malicious effort made by the Executive and the Parliament to put their favoured persons as Supreme Court Judges, during the time of Indira Gandhi but the Supreme Court struck it down and kept the task to itself to keep the judiciary truly independent as envisioned by the Constitution makers.
The subordinate Court judges are selected by an examination process akin to Civil Services. Yes it is a time consuming process.
You have taken a lot of time & labor to inform us about the various aspects of judiciary.Thanks.
ReplyDeleteUltimately it is sad that a case may fizzle out because the witnesses faltered,or because the police intentionally turned a blind eye towards certain facts---is anyone from the police force coming forward to put their POV?
Thanks for reading & appreciating my efforts Indu ji
DeleteHi Anupam
ReplyDeleteNice Post, could you pls explain how our Judiciary should be upgraded for future( I would like to know about it in detail)and how allotting more money in the budget can help it. I am just curious to know about it that's all, hope u won't mind telling.
Rahul
http://freedomofexpression-rahul.blogspot.com/
Dear Rahul,
DeleteI have dedicated a full post to your query. Please read it here
http://anupampatracontemplates.blogspot.in/2012/08/justice-in-jeopardy-resolving-debate.html
Interesting analysis of judicial system.Thanks for educating us.
ReplyDeleteGlad you read it.
DeleteFor someone who's knowledge of the Law is simply what they have learnt through TV series (that I am sure are light years away from reality), a couple of conversations with true civil lawyers and hearsay conversations with others, your blog is very informative and educative. This was a much needed post for a lot of us who simply generalize and fling blame at the judiciary. Much like everything else, there's a lot of gear systems functioning behind the facade and its not as simple as it looks. To those who have misused the system, taken advantage or found loopholes to get by - I hope that one day justice prevails. To those who have upheld the honour and respect, I salute you.
ReplyDeleteI do have one question. In the light of all the 'crimes on women' - let me rephrase 'crimes on one's freedom' - considering the recent Mangalore attacks on both sexes - we talk loosely about setting up fast track courts and meting out justice then and there. How easy or difficult is that and why would the Government not be interested in setting something like that up? Wouldn't it help share some of the burden? For that matter more local courts for petty crimes - so the big guns are not tied up with such cases?
* whose.
DeleteThanks Deepa. Your suggestions are really worthy.
DeleteI hope you will do good for our judiciary and nation one day :)
ReplyDeleteThanks Guru for your wishes. I will give it my best.
DeleteFew know the importance and value of judiciary in democracy,every one says there is lots of corruption in judiciary and lawyers are not unethical in practice,but still Judiciary is best in India,otherwise things would have been different ,if judiciary is not active while protecting fundamental rights of the people.
ReplyDeletehttp://legalgensis.blogspot.in/
Absolutely correct Ravi. Thanks for reading
Deletefacts you explained are known only to few people...
ReplyDeleteit's easy to blame system but when you get down to the details state of affairs are not as bad as it is criticized.
As far as justice is concerned... if it is delivered it is never denied
ReplyDeleteMark Helprin beautifully explains that-
Justice can sleep for years and awaken when it is least expected. A miracle is nothing more than dormant justice from another time arriving to compensate those it has cruelly abandoned. Whoever knows this is willing to suffer, for he knows that nothing is in vain.
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ReplyDeleteGood Article on Judiciary. I'm not concerned with the judgments which are being passed by Courts of this country everyday. But I strongly believe the judicial system is the only system which can protect the rights of the citizens. The Holy Ganges, however be polluted, I cannot refrain myself from taking a dip in it.
ReplyDeleteThank You Sir for reading this article and sharing your valuable thoughts
DeleteDear Anupam,
DeleteI have read your Article and the response of other dear members.After reading all the comments both positive and negative I think it proper to write something on this issue remaining completely secular in form and spirit.
I'm telling u a short story I have read during my early days. The name of the story is "WHO IS RIGHT"
A person named "X" was a judge and arbitrator in a dispute. First the plantiff's advocate gave an eloquent discourse advancing his claims. The judge "A" who had been listening intently,agreed and said "that is right".
Next, it was the defendants turn and he was just as erudite.When he advanced his case again the judge "A" said "that is right".
The court clerk,perplexed and aghast at his turnaround, pointed out,"they can't both be right,can they?"
The judge agreed with him too and replied "Yes that is right".
What is the moral of the story?
"How much precious time we lose in trying to establish one absolute truth!Could we not agree to the proposition that each point of view is valid and justifiable in its own place and circumstances?Whether one is optimist or pessimist all are entitled to their belief and standpoints. Darkness not only appears during nights it can also be seen when you close your eyes.
That is an excellent analogy Sir. It resolves the whole issue in the most effective manner. Many Thanks for sharing such a wonderful idea.
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