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COURTING CONTROVERSIES

P M Ravindran, raviforjustice@gmail.com

If anybody asked me which is the most covetable job in my country I can say without even
batting an eyelid- a judge! And the next best? An advocate, for sure! Let me explain.

In any case before a judge there are always two parties- the complainant/prosecutor and the
respondent/defendant. Both the parties will of course present some facts and quote some laws
including some case laws too. It is then left to the judge to take the final call on who should get
the favorable judgment. And I dare say that he can do it by just tossing a coin. Thereafter all
that he has to do is pick up the appropriate lines from the arguments of the concerned party
and add his decision. The procedure too is so weird and antithetic to the very concept of
transparency, accountability and ultimately to the very concept of justice itself. To illustrate,
just consider the case of adjournments and the delays is announcing decisions even after
arguments are closed. Tariq pe tariq is such a hall mark of our judicial system that it should not
need elaboration but probably not so well known is the delays in passing orders even after the
final arguments are over. For the sake of the uninitiated I shall use an example from 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 interim
stay order from the Kerala High Court on 28/10/99 and the stay was vacated only on 8/6/2005
but throughout this period the case was listed 58 times and adjourned! It was finally posted for
orders on 6/7/07 but was opened for re-hearing suo moto on 15/2/08 and went on an
adjournment spree from 3/3/08 to 31/5/2010. During this spree it was adjourned 17 times,
including 5 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 the complaints) one can well imagine the affairs of regular courts.

The National Commission to review the working of the Constitution, headed by a non-tainted
former Chief Justice of India, M N Venkatachaliah and whose 5 of the 10 other members were
from the judiciary had reported '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 nobody can have the cake and eat it too is a common refrain. If there is any exception it
has to be our judges. They can always blame the 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 all combined in one man- the same judge whose credentials
are being questioned.
The second most covetable 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 1 Crore? And now the apex court itself is possessed of
the exorbitant fees charged, upto 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 earlier that the judge can always blame it on shoddy investigations and
prosecution for miscarriages of justice. But isn’t it just half truth? What was the role of the
investigators and prosecutors in the infamous case under the Right to Information Act where
the then Chief Justice of India, K G Balakrishnan, himself claimed that his office was out of
purview of the law enacted to contain corruption and to hold Governments and their
instrumentalities accountable to the governed?

Less than a year back the nation witnessed a sitting high court judge being sent to six months in
prison, under the contempt of court laws for making some categorical allegations about some
brother judges. Even before he was out from jail we also saw the same judges who convicted
him making some vague allegations against the Chief Justice himself and specifically
questioning his integrity itself. But then the contempt laws seems to have vanished into thin air.

A couple of years back Times Now, a visual news channel, telecast for a few seconds the picture
of a retired Supreme Court judge inadvertently while reporting a scam in which another judge
with a similar name was alleged to be involved. The media promptly tendered apologies but the
judge felt that it was not sincere. He claimed for defamation and was awarded Rs 100 crores as
compensation. Appeals to the high court and apex court was not even heard but dismissed with
the remarks to first deposit Rs 20 Crores and issue ban guarantee for Rs 80 Crores. In contrast,
more than 25 years back a top scientist from ISRO was framed in a sleazy scandal. The
conspirators were many and with different motives. He and a couple of his 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 four years later. And
since then he had been a litigant demanding prosecution of the conspirators and perpetrators
as well as for compensation of a mere Rs 1 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 lakhs 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. In fact 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 CJI, Dipak Mishra, has also given reason to
question the competence, motives and prudence of our judges. The judgments in the matter of
Adhaar, 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 Adhaar, the lead petition was filed in 2012, by a former judge of a high court.
During the six years the court sat on it, the executive had 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 Adhaar to many facilities that it has
been already linked with. And there is also a ban on private parties demanding Adhaar
validation when Reliance Jio has provided its services to almost 300 million customers based
only on Adhaar validation.

In the matter of entry of women in Sabarimala the majority has over ruled the sane voice of its
only woman member in 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 in a few months. We don’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 how is it that the
judiciary which is so active in interfering adversely with all matters affecting hindus and their
faith and rituals (Jallikattu, dahi handi, fireworks etc) is pretending to be blind to questionable
faith and rituals of the minority communities. Cyber space is rife with information that of the 25
lakh temples in India there are only 6 that do not allow men and 5 that do not allow women but
there are over 3 lakh mosques where women are not allowed entry at all or not allowed to pray
with the men. Even a former Supreme Court judge, K T Thomas, has written that in the pulpit
area of the church no women are allowed even now.

The judgment on adultery is even more shocking. But the redeeming factor is it is not restricted
to any particular denomination. And without going into an analysis of its sociological
implications let me recollect two instances narrated in the Bible. The first is of course the
Garden of Eden where Adam and Eve were living a life of bliss. And then came the devil in the
form of snake and temptation. The rest as they say they say is history. The second one is of
Jesus addressing a mob about to stone Mary of Magdalene to death for prostitution. Jesus told
them ‘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 that I
would ask, to conclude this article, is: will only the judges who have not sinned sit in judgment
in our courts?

02 Oct 2018