Archive for December 28th, 2009

“Justice Delayed…..” is not the only Malice.

28 December 2009
Speaking in Bangalore on 12th December at the conference on “Alternative Dispute Resolution- Conciliation and MediationChief Justice of India K G Balakrishnan  said that ”long periods of delay in disposing of cases would lead people to “revolt” and the legal system to crumble”. There are 2,000 vacancies in subordinate judiciary against the sanctioned strength of 16,000. He made a strong pitch for more than doubling the number of subordinate courts to 35,000. He stated that in China only 20% cases go to trial whereas rest are settled through mediation and conciliation as against 95% and 5% for India respectively. He felt that the fact litigation is ‘inexpensive’ influences this outcome. One finds that even the infrastructure provided to subordinate judiciary is abysmal & penetration of technology minimal. CJI is absolutely on firm ground in cautioning over the consequences of delays in the judicial delivery of verdicts. The statistic of July 2009 gives figures of, “53,000 cases pending before the Supreme Court, 4 million before high courts and 27 million before lower courts; showing an increase of 139 per cent for SC, 46 per cent for HC and 32 per cent for lower courts”. This is proving the maxim that Justice delayed is Justice denied. But this is not the only problem ailing our judicial system. The observations that follow are made in the belief of the accuracy of the media reports concerning apex court judgments.
Reversing the acquittal of six upper caste Thakurs in UP the Supreme Court sentenced them to life imprisonment for killing 8 dalits 30 years ago. While pronouncing the judgment the bench of Justices Dalveer Bhandari & A K Patnaik observed, “…unfortunately, the centuries-old Indian caste system still takes its toll from time to time. This case unfolds the worst kind of atrocities committed by the so- called upper caste (Kshatriya or Thakur) against the so-called lower caste caste in a civilized country. It is absolutely imperative to abolish the caste system as expeditiously as possible for smooth functioning of rule of law and democracy in our country”. A death sentence given to a Brahmin and his two friends for killing three relatives of and the former’s brother in law, a low caste Keralite who had the gumption to marry his sister, was commuted to 25 years imprisonment. An apex court bench of justices V S Sirpurkar and Deepak Verma said when giving the verdict, “The murders were the outcome of a social issue like marriage with a person of so-called lower caste. However, a time has come for us to consider these social issues as relevant, while considering the death sentence in circumstances such as these. If Dilip became the victim of his wrong but genuine caste considerations, it would not justify the death sentence. The vicious grip of the caste, community, religion, though totally unjustified, is a stark reality”. What is interesting is that both the judgments were delivered within a week of each other – on 5th and 11th December 2009.  The exact circumstances of these two cases could be disparate as were the times & places – i.e. when & where the two crimes were committed. But what still strikes as highly unusual is the difference in the underlying philosophies on which the two benches rested their decisions while deciding both the crimes which resulted definitely out of caste considerations. One held the caste system squarely responsible for continued atrocities against “lower castes” and called for its end. The other held it wrong but considered it a mitigating factor in deciding the fate of the perpetrator. This would definitely raise doubts in the mind of commoners whether the law is applied evenly. Moreover, won’t it also create confusion in the mind of subordinate judiciary as to what is the correct course to adopt in such cases?  Among the lawyers too this gives rise to a tendency to “shop for benches” that would give “desired outcomes”. It calls for some kind of mechanism that would ensure such divergent outcomes in similar situations do not occur.
In between the above two judgments another hearing in the apex court made one to sit up and take notice. On 9th December same bench of justices Dalveer Bhandari & A K Patnaik when hearing a PIL of Bachpan Bachao Andolan about large scale child trafficking occurring in the country asked Solicitor General Gopal Subramaniam, “When you say it is the world’s oldest profession and when you are not able to curb it by laws, why don’t you legalise it? You can then monitor the trade, rehabilitate and provide of medical aid to those involved in the trade. …. legalising sex trade would be a better option to avoid trafficking of women and said nowhere in the world has the trade been curbed by punitive measures”. If “inability of the state to curb a particular crime or activity” is taken as a standard for legalizing it, then by that same token caste system too should be legalized since it could not be abolished by law in last 62 years. “Caste” is a system of discrimination and nowhere in the world has discrimination as such ended.  What perturbs is that these observations were made in a case involving child trafficking, which makes an already repugnant crime of forcibly trafficking women, heinous. No country in the world has escaped the cancer of corruption though the ravages left in its wake may differ in intensity and reach. The corruption in its all inclusive sense, not just financial, has been a human weakness as old as man. It too has survived legislations in all climes & times. Is it therefore to be made another candidate for legalizing? Returning to child trafficking, Madhu Kishwar in her article A Question of Respect makes a very well argued case against the notion of legalizing prostitution. An Excerpt, “What does the term “legalise” actually imply? Does it mean that a prostitute can open a sexshop anywhere she likes and advertise her services? Does it mean men or women supplying call girls should be able to set up an office in any neighborhood they like, just as doctors set up their clinics, proclaiming that call girls are available between such and such hours? How many of us are willing to let our young children grow up amidst an atmosphere where renting a woman’s body for sex is considered a perfectly legitimate activity?
Judicial accountability is an issue that has been exercising the minds of many since the order of Central Information Commission (CIC) to the Supreme Court Registry to make available the assets of the superior judges to the applicant under RTI brought the issue into open. Justice D V Shylendra Kumar of Karnataka High Court was the first one to do so when CJI was not in favour of such move. He in fact wrote a courageous & unprecedented article called “Judges and the Right to Information Act”. Earlier in December 2009 he urged “P D Dinakaran, chief justice of the Karnataka high court, to proceed on leave following the initiation of impeachment proceedings against him”. Government too is driven to introduce a “Judges Standards and Accountability Bill” for overseeing the conduct and accountability of higher judiciary. The subordinate judiciary is already answerable & doesn’t enjoy the constitutional protection accorded to higher judiciary.
Lastly one has to contend with “Contempt of Court” that tends to muzzle even genuine dissent and criticism made in good faith & with noble intentions of judicial decisions. Often contempt cases are decided by the same Justice/s who is/ are also the aggrieved parties. Recently a contempt case has been brought by Amicus Curie, Advocate Harish Salve, against a senior advocate Prashant Bhushan in the Supreme Court. Outlook magazine thought that the affidavit filed by Bhushan in response to the contempt notice raises some very important issues that should be widely known, discussed & settled; and published it fully as My Honest And Bonafide Perception‘. While Indian courts continue to use ‘contempt of court jurisdiction’ freely, it has fallen into relative disuse in ‘liberal democracies’. Worth quoting in this context are the words of Lord Denning in a case, where dealing with a particularly harsh criticism of the Court of Appeal by Mr. Quintin Hogg, he observes, This is the first case, so far as I know, where this court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us, but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For, there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast to make fair comment, even outspoken comment, on matters of public interest.”
Speaking further regarding the judicial scandals that lower the image of the judiciary, Bhushan adds : This is also obvious from the backlash that has followed two of the most celebrated cases of contempt recently. The sentencing of Arundhati Roy for contempt, for merely saying in her reply affidavit (in response to another contempt petition, in which the notice was finally discharged) that for the court to have issued contempt notice on an ex-facie absurd petition showed a disquieting inclination on the part of the court to stifle criticism and muzzle dissent, led to such a backlash that it only succeeded in lowering the image of the Supreme Court in the eyes of the people. Similarly, the sentencing of the journalists of Midday for having written well-documented investigative stories about Justice Sabharwal, a former Chief Justice of India who heard and passed orders for sealing of commercial properties, which had the effect of benefiting his own sons who were in partnership with shopping mall and commercial complex developers, also outraged civil society and the media. The result of the use of the contempt power against these journalists was again to heighten suspicion about corruption in the judiciary. These actions have contributed in no small measure to a drastic increase of the perception of corruption in the judiciary in the eyes of civil society. This has also been accentuated by the eruption of corruption scandals about the judiciary in quick succession recently. The recent judicial scandals involving Justice Soumitra Sen of Calcutta, the Ghaziabad Provident fund scam, the cash at judges door scam at Chandigarh, and the case of Justice Dinakaran, among others have been given a lot of publicity by the media recently. The resentment caused by the use of or threatened use of the contempt power to stifle outspoken comment (as in the Arundhati Roy case) or to silence the exposure of corruption (as in the Midday case), have contributed in no small measure to the increasingly widespread and outspoken coverage of judicial scandals in the media”.
Time has come for the Supreme Court Collegium to ponder, deliberate and to put in place conventions that would make its prestige & authority secure on more sure foundations than the threat of contempt.