Thursday, 30 April 2015

Justice Ruma Pal: The seven deadly sins of judges

Justice Ruma Pal, a former Supreme Court judge, flayed the judiciary in a lecture that she delivered. Here is what she said:
Judges are fierce in using the word [“independence”] as a sword to take action in contempt against critics. But the word is also used as a shield to cover a multitude of sins, some venial and others not so venial. Any lawyer practising before a court will, I am sure, have a rather long list of these. I have chosen seven.
The first is the sin of “brushing under the carpet”, or turning a Nelsonian eye. Many judges are aware of injudicious conduct of a colleague but have either ignored it or refused to confront the judge concerned, and suppressed any public discussion on the issue, often through the great silencer — the law of contempt.
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The second sin is that of “hypocrisy”. A favourite rather pompous phrase in judgments is “Be you ever so high, the law is above you”, or words to similar effect. And yet judges who enforce the law for others often break that law with impunity. This includes traffic regulations, and another regulation to which the “ordinary” citizen is subject. Some in fact get offended if their car is held up by the police at all while controlling the flow of traffic — the feeling of offence sometimes being translated into action, by issuance of a rule of contempt against the hapless police constable, all in the name of judicial independence.
The third sin is that of secrecy. The normal response of courts to any enquiry as to their functioning is to temporise, stonewall and prevaricate. As I have said elsewhere, the process by which a judge is appointed to the high court or elevated to the Supreme Court is one of the best-kept secrets in the country…
If “independence” is taken to mean “capable of thinking for oneself”, then the fourth sin is plagiarism and prolixity. I club the two together because the root cause is often the same, namely the prolific and often unnecessary use of passages from textbooks and decisions of other judges — without acknowledgement in the first case, and with acknowledgement in the latter. Many judgments are in fact mere compendia or digests of decisions on a particular issue, with very little original reasoning in support of the conclusion.
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Often judges misconstrue judicial independence as judicial and administrative indiscipline. Both of these in fact stem from judicial arrogance as to one’s intellectual ability and status…. Intellectual arrogance, or what some may call intellectual dishonesty, is manifest when judges decide without being bound by principles of stare decisis or precedent…
Independence implies discipline to decide objectively and with intellectual integrity and as the judicial oath of office requires, without fear, favour, affection or ill will. Most importantly judges must be perceived as so deciding, or to use Lord Hewart’s classic dicta that “justice should not only be done, but should manifestly and undoubtedly be seen to be done,” because the belief of corruption is as damaging to the credibility in the independence of the judiciary as the act of corruption.
This brings me to the seventh and final sin of nepotism or what the oath of office calls “favour” and “affection”. What is required of a judge is a degree of aloofness and reclusiveness not only vis-a-vis litigants but also vis-a-vis lawyers. Litigants include the executive. Injudicious conduct includes known examples such as judges using a guesthouse of a private company or a public sector undertaking for a holiday or accepting benefits like the allocation of land from the discretionary quota of a chief minister. I can only emphasise again that nothing destroys a judge’s credibility more than a perception that he/she decides according to closeness to one of the parties to the litigation or what has come to be described in the corridors of courts as “face value”.
…I will conclude with most important facet of judicial independence. Judicial independence cannot exist without accountability. At present the only disciplinary power over judges is vested in Parliament which provides for the extreme punishment of removal for acts of proven misbehaviour by or incapacity of a judge…
Deprivation of jurisdiction or the non-allocation of work to a dishonest judge was resorted to by Chief Justice Sabyasachi Mukherjee when the impeachment of Justice V. Ramaswamy failed for political reasons. Sometimes Chief Justices control a recalcitrant judge by ensuring that the judge concerned sits with the Chief Justice or with a “strong” judge until he or she retires. The situation becomes more difficult if the allegations are against the Chief Justice. Solutions evolved have proved inadequate and ad hoc. There is a need for an effective mechanism for enforcing judicial accountability.

Indian Judiciary: When Advocates become Judges, shit happens!

When members of the bar become judges in the same court (as is normal), their friendly relations or professional rivalries with their fellow-advocates will not suddenly cease. They don't stop being awestruck by their seniors, despising their juniors or hating their rivals. So, how can they be impartial?
This is a structural defect in the judiciary.
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Indian Judiciary's Witness-Elimination Program

Unlike the US justice system which has a "witness PROTECTION program", Indian judiciary has a "witness ELIMINATION program". Our courts systematically defeat the good intentions of witnesses, failing which they eliminate the witnesses themselves. They create conditions where witnesses are rewarded for turning hostile, and severely punished for being honest.
At great personal risk and inconvenience, witnesses appear before the court in trials of murders or other serious offenses committed by rich and influential people (such as Salman Khan's hit-and-run case). But rather than recording the witnesses' statement at the earliest, judges mechanically give tareekh pe tareekh for many months and years...
... until the witnesses' finally stop being cooperative,
or their memory fades,
or they are intimidated and choose to keep quiet,
or they sink into debt and financial distress, and stop coming to court,
or they accept money to change their story,
or they are silenced forever by death -- whether suicide, murder, accident or old age.
Nationwide, thousands of witnesses are silenced every year. Their voices are lost due to judiciary's callousness and negligence. And truth & justice go for a toss. These are the victims of the judiciary.
TAREEKH PE TAREEKH isn't just a harmless indulgence of judges and lawyers, it is a heinous crime. It is criminal negligence amounting to abetment of murder and suicide.
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Indian Judiciary is NOT about Justice, but about Judicial Procedures

Judges focus on procedural issues, and give only a passing glance at the Fundamental Rights of citizens. The plaints and grievances for which justice-seekers want redressal are totally ignored.
Rich and powerful people are better able to overcome procedural hurdles with money power, and so they have a chance to succeed. But the ordinary citizens of India are usually stonewalled by procedural matters, and so they have no hope of getting justice from courts.
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Modi Sarkar, focus on quick judicial reliefs to common man

Modi-sarkar should pluck the LOW-HANGING FRUITS to give quick reliefs to the common man -- such as eliminating "anaadi courts" where lakhs of people are mistreated daily and robbed of their self-respect and freedom.
Installing CCTV cameras and voice recorders in all courts would be a good way to prevent mistreatment and exploitation of the common man by magistrates, judges, public prosecutors and police.
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Namo, make judiciary accessible to Aam Aadmi

If our new Prime Minister is really a common man at heart, he should take initiatives to ensure that judiciary becomes accessible to the common man.
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Indian judges screw the aam aadmi

People get the judiciary that they deserve. After Independence, we have acted as SUBJECTS of judges, and so we have a colonial sort of judiciary. Judges are surrounded by people who bow and scrape and abjectly beg; what else can you expect from them but tyrannical behavour?
Now, to change this existing reality, we have to start facing them as CITIZENS, and make them aware that they are public servants. As this sort of behaviour builds up around them, they will be forced to change their behaviour and thinking. The change may happen gradually, over some years.
In the meantime, we can expect scenes like the one shown in this cartoon smile emoticon
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India's "Anaadi" Courts -- where all your fundamental rights disappear

Here's something the media never reports: "Anaadi courts" are the instrumentality by which the State deprives tens of thousands of Indian citizens of their Fundamental Right to Life & Liberty. Without due process. For trivial offences like crossing the railway tracks, ticketless travelling and "loitering suspiciously" (combined with inability to furnish bail-bond or engage a lawyer), people are arrested and held in judicial custody for days, weeks or even months in judicial custody, without even being chargesheeted.
This is happening daily, without interruption. Hello... Are the Chief Justices listening?
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Judicial Delay -- Fatal for Senior Citizens

Judicial delay in case disposal is NOT an academic issue for ELDERLY CITIZENS, it is an issue of Protection of Life & Liberty. For them, justice delayed means justice denied literally... because they will probably be dead before they get justice!
Although elderly people are vulnerable and need judiciary's protection the most, NOBODY IN HIS RIGHT MIND WOULD ADVISE THEM TO GO TO COURT. The chances of getting relief within 8-10 years are small... unless of course they are extremely wealthy and can engage the biggest lawyers to expedite matters.
Roughly 10 percent of Indians are above 60 years. From bitter experiences, they know that courts are a futile exercise that will drain all their energy and financial resources, and are unlikely to give them anything in return.
Our judiciary is consistently failing to protect senior citizens -- people who have completed a lifetime of service to society. How can we remain silent?
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Transitory Chief Justices – in whose interest?

The legendary Justice Sujata Manohar was appointed as Chief Justice of Bombay High Court on 5th January 1994. About three months later, on 21st April 1994, she was transferred as Chief Justice of Kerala High Court. Then, on 8th November 1994, Justice Sujata Manohar became judge of the Supreme Court of India.
Justice Anil R Dave, a sitting judge of Supreme Court, assumed the office of Chief Justice of Bombay High Court on 11th Feb 2010. And then, just about two months later on 30th April 2010, he was elevated as Judge of the Supreme Court.
Instances of such super-short tenures of Chief Justice are abundant. One finds dozens of instances.
Bilal Nazki, a sitting judge of Bombay High Court, was made Chief Justice of Orissa High Court a mere FOUR DAYS before his retirement at the age of 65. Mr Nazki moved to Bombay High Court in January 2008. He moved from Bombay to become Chief Justice of Orissa High Court on 14 November 2009. He retired four days later, upon attaining the age of 65.
His tenure as Chief Justice may be the shortest in the history of the Indian judicial system and arose from the Supreme Court collegium proposing his promotion two months earlier. See http://en.wikipedia.org/wiki/Bilal_Nazki
The questions that arise from such appointments are:
1) Are such decisions of the Supreme Court Collegium (a body of 5 top SC judges headed by Chief Justice of India) taken in the interest of the people of India? Are they not just in the private interest of Mr Nazki, Ms Manohar, Mr Dave etc. — the individuals?
2) Are such appointments in the interest of the high courts and the litigants that they are supposed to serve? Does the administration of justice in the high courts not suffer a huge setback when such transitory judges are appointed?
3) Is the seat of a High Court Chief Justice a mere bus-stop or temporary parking on the way to the Supreme Court? Are such postings a way of padding up the resume’ of individual judges to increase their suitability for the Supreme Court?
4) Would any appointing system in the Indian government or administration with reasonable checks and balances have made this sort of short-lived appointments? If so, would they have been sustainable in the eyes of law?
5) Is the Supreme Court Collegium that makes such selections so fickle-minded and indecisive that it changes its mind every couple of months? Is this system of decision-making so unreliable and unsteady?
The people of India must demand answers to many such uncomfortable questions..
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Friday, 24 April 2015

Namo should make justice available to every common man, just like cutting-chai

If our new Prime Minister is really a common man at heart, he should take initiatives to ensure that judiciary becomes accessible to the common man.
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Poem: Cold Steel


When the cold steel sliced into my belly,
There was no pain, only discomfort.
Gazing into her eyes from a kissing distance, I wondered
Did they show betrayal, hatred
Or did they continue to speak of love?

Maybe both.
Maybe neither.
They spoke a brutal truth:
“You are you and I am I...
And since you question that,
Let your flowing blood answer your questions.”

Ah!
Blackness came and went.
Life ebbed with each heartbeat.
Blood in spurts stained her fingers
As they held the dagger firmly in place.
They were the reason I was still standing.

And then came the release
And a gentle shove backward
Dropped me to the floor, still gazing.
We never lost eye-contact
Even when my head struck the stair
With a crack that rang deep in my nostrils.

Kneeling, she took the kerchief from my pocket
Deliberately wiped each finger clean
And caressed my cheek.
I pouted, Mmmwah.
A silent flying kiss.
She playfully caught it in her hand
And put it to her lips.

We smiled
A sad little smile that said
Thank you and goodbye.

“Wipe the knife clean,” I whispered. “No fingerprints...”
And I cried out at the shocking white flash of pain
As she withdrew the knife from the wound.
Blood spurted with renewed vigour.
Raising my head from the floor,
I glanced at the little red fountain
And slowly yielded to the spreading blackness and numbness
As she walked out, gently closing the door behind her.

Wednesday, 22 April 2015

Try scaring the people on Social Media, Milord

My main objective in running this poster campaign about judiciary is to tear the veil of silence surrounding the judiciary. I just want to throw open the judiciary to public scrutiny and debate, just like all other democratic institutions. My being right or wrong is irrelevant; I try to be right in what I say, but I am at best a journalist or cartoonist, NOT a legal expert. I’m provoking thought and discussion around various issues concerning the judiciary’s dealings with the public.
BUT SOME PEOPLE FEEL THAT NOBODY SHOULD TALK ABOUT JUDICIARY. They feel that judges and lawyers must not be blamed or criticized for the nation’s ills. They feel that although we may criticize government, political parties, and individual politicians, we must never criticize anything concerning judiciary. Let us look at some of the ARGUMENTS of these people, who are self-appointed guardians of judiciary:
ARGUMENT # 1: Criticism of "weaken the authority” or “erode the institution” of judiciary, and therefore, critics are being unpatriotic.
COUNTER-ARGUMENT: The high offices of Prime Minister and Chief Minister, MP and MLA are intact after decades of scathing criticism in the public and the media, aren’t they? CRITICISM DOES NOT WEAKEN OR ERODE ANY PUBLIC AUTHORITY. For public officials, taking public scrutiny & criticism of their performance is part of the job. Judges and other officers of the judiciary have gotten away so far because of fear of contempt, but that cannot continue. They too must come under public scrutiny.
ARGUMENT # 2: Judges are doing a tough job, and so they deserve four to six months of holidays per year for studying the case files and refreshing their mind.
COUNTER-ARGUMENT: Judges are SUPER PRIVILEGED PUBLIC SERVANTS APPOINTED FOR A LIFETIME to a job that is socially held in awe. Theirs may be a tough job, but then, there are tougher, and more deadline-driven jobs in the public and the private sector. If judges deserve six-month vacations, then so do policemen, bureaucrats and surgeons. India should keep all police stations, government offices and hospitals closed for several weeks for summer vacation, with only a “vacation cop”, “vacation secretary” and “vacation surgeon” to deal with urgent matters.
ARGUMENT # 3: Only people with thorough knowledge of judiciary and its procedures (i.e. lawyers and retired judges) have the right to criticize judiciary. Others should keep quiet, because they don’t know what they are talking about.
COUNTER ARGUMENT: If this rule were to be uniformly applied to matters concerning government and administration (i.e. only former bureaucrats and former ministers should criticize government), then the aam janta and journalists should shut up. I don’t think that is acceptable.
ARGUMENT # 4: Krishnaraj is ignorant and knows nothing about the judiciary. So he should shut up.
COUNTER ARGUMENT: I don’t claim to know everything, but as a citizen and journalist whose experience of judiciary began in August 1987 with being held in custody in Gujarat for 17 days (including a very nice dose of custodial violence by police), and filed three PILs 2004 onwards, I think I know some things. Also, as a journalist, I understand the situation from the experiences of many others. And I can voice my opinions on social forums. If I am wrong, go ahead and correct me.
ARGUMENT # 5: Why criticize when you are not suggesting solutions?
COUNTER ARGUMENT: Some of us have gotten together, identified problems and proposed solutions that were developed after some discussion with lawyers and experienced litigants. Here they are:http://tinyurl.com/Krish-blog-CJ-letter
However, we don’t expect all people to necessarily agree with our various points & proposed solutions.
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Indian Judiciary routinely gives Stay Orders to habitual offenders

Amazing how easily courts grant stay orders for the asking! Higher judiciary often OBSTRUCTS IMPLEMENTATION of laws, rules etc, and enables offenders to continue "under cover of the judiciary's robe".
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