Are We in The Wrong Hands? Credibility of Indian Judiciary on Sale

In India we have Separation of Powers in a check and balance form. The three organs of the government i.e. the executive, the judiciary and the legislature have the responsibility to keep a check on the functions of the other.

Independence of Judiciary is an important feature to maintain rule of law and constitutionalism in the country. It is necessary that the judiciary is free from every political obligations. The independence of judiciary is granted by the constitution to protect the rights of the citizens, but unfortunately nowadays it is protecting the rights of the judges.

There are various instances in which the judges have taken bribery, misappropriated cases or favoured the executive in order to secure high posts in commissions after their retirement. Judges like Late Justice Sinha who had the courage to treat Mrs Indira Gandhi as a normal accused are rare to find these days. He sacrificed all his political prospects for proper justice.

But today the hard reality is that not all but most of the judges are either corrupt or disinterested in the judicial process. One of the practicing Supreme Court Lawyers told me that either the judges sleep or the inquire. He was right in all sense. India has had many landmark judgments, some of them have made us proud some haven’t. Some have ensured that the principles of equity are upheld no matter how dangerous it proves to the executive, and some of them have favoured the government in every circumstance.

The judicial trial enjoys special privilege, so criticism with caution is required. But why? In a democratic country like India we should be allowed to criticize any decision of the  judiciary as we can criticize the act of the legislature.  Why is there a need to grant them a special privilege. Moreover if there is a constant fear of criticism the judges would be more accountable to the public. If a person is not satisfied with the process, he must not be forced to remain silent in order to maintain the dignity of the court.

The Indian Judiciary has been given powers to protect the rights of the individuals. These powers are not given to them to exercise it in their own interests. I agree the Indian Judiciary had eminent judges like Baghwati CJ, Hidyatullah CJ and Sinha J who have made the nation proud time and again. But it is also a reality that Judges like Dinakaran have also served the Indian Judiciary.

When the Chief Justice of Karnataka High Court Mr Dinakaran charged of allegations like acts of corruption and acquisition of disproportionate wealth and helping the mining mafia of the Reddy brothers to continue with rampant illegal mining. He came out with the excuse that because he is a Dalit Christian he is being targeted. But I’m sure if asked few questions his answer might be different. Like Why aren’t other dalit judges being the targeted? or Have these people deliberately enhanced the assets owned by you? and If such injustice was being done to you being a judge why didn’t you raise your voice earlier?

It is absurd that a judge of the stature is talking the defence of the social milieu to get rid of his loathsome acts. The charges against him are very serious and if proven true he should not only be impeached but should also be punished.

The motion, prepared by advocate Vaigai of Forum for Judicial Accountability, under Article 217 of the Constitution read with Article 124 (4) of the Constitution says: “This House resolves that an address be presented to the President for the removal of Mr. Justice Paul Daniel Dinakaran, also known as Mr. Justice Paul Daniel Dinakaran Premkumar, from the office of Chief Justice of the Karnataka High Court for his following acts of misbehaviour, viz., possessing wealth disproportionate to known sources of income; unlawfully securing five Housing Board plots, in favour of his wife and two daughters; entering into Benami transactions prohibited and punishable under the Benami Transactions (Prohibition) Act, 1988; acquiring and possessing agricultural holdings beyond ceiling limit under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961; illegal encroachment on Government and public property to deprive Dalits and the poor of their right to livelihood; violation of the human rights of Dalits and the poor; destruction of evidence during official enquiry; obstructing public servant on duty.”

It is shameful for the judiciary that Karnataka’s Chief  Justice might be impeached on the grounds mentioned above. Even if the charges are false, how can we expect a normal person to have trust in judiciary when the  Campaign for Judicial Accountability and Reform (CJAR) and Forum for Judicial Accountability (FJA) themselves are doubtful about the conduct of judges. This instance has shaken the faith of people in judiciary. And it is unfortunate that even if the charges are proved, and it is somehow established that Mr Dinakaran took bribery in some cases, the victims would still be remedy less.

Thus those who know that injustice was done to them would now know that it was not done by mistake of interpretation but by a deliberative motive. Their position would remain the same even if the reality is known to everyone. The good thing is that the prospective judgments would yield injustice only because of mistakes of judgement and not premeditated acts of injustice.

It is ironical that the world justice is attached to Chief Justice of any High Court and Supreme Court of the country, it is not that linguistics were short of vocabulary but it was because they wanted to associate notions of justice with the judge who had the highest accountability and responsibility in delivering a judgment.

Read more

Equal Justice For All – Does It Holds True Irrespective of The Pocket Size?

The Constitution of India in its article 39 A provides for `Equal Justice and Free Legal Aid’. It reads like this: “The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”

In Hussainara Khatoon vs State of Bihar: The Supreme Court observed that,  “The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the courts is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the magistrate about their solvency.”

The apex court recognized speedy trial as the right of the accused and right to bail was considered as a rule and denying the same was regarded as an exception.

The state has the responsibility to guard the interests of its citizens irrespective of their financial position. The Preamble through the words of Justice: social, economical and political puts the responsibilty on the state to act as a guardian for the poor and the downtroden.  According to the Marxist School of thought most people behind the bars are the poor. Is it because the poor do most of the crimes or is that the rich are never caught.

To rectify this deficiency of law countries like U.K. and South Africa have made extensive provisions in this regard. In India also, a concept of AMACUS CURIE prevails i.e. friends of court. The lawyers are appointed by the court to ensure that no person denied justice due to inability afford the legal procedure.

The Indian Judiciary has made several efforts to do proper justice to the poor. They have acknowleged letters as Public Interest Litigation, have appointed amacus curie and have expressly laid down the rights of the accused. Not only this a person has to released on parole if he has served more than half of the sentence he has been charged off  being an undertrial.

But all the efforts of the courts would be futile if the lawyers don’t participate in the mechanism to provide justice to the poor. The lawyers should also selflessly involve themselves in this procedure. Unfortunately the decision of the division bench on a P.I.L stated otherwise. The judges were unsatisfied and furious with the state of legal aid in Delhi.

Chief Justice A P Shah and Justice S Muralidhar said “Scrap the panel if they(lawyers) do not work properly on the cases assigned to them by the legal aid committee” “If the lawyers have no commitment to the cases, make stringent rules for them,”

We all know that the lawyers donot always take the most ethical cases all the time. To make money they have to compromise on their ethics and morality. But I believe that every lawyer can take atleast 5% of his cases for the greater benefit of the society. The cases he knows he is not fighting for money but for his conscience. May be it wont make India a crime free society but it would definitely make it better than now.

Read more

Governing The Governors – Judges Declare Assets, Causes Stir

After the declaration of assets by the Supreme Court Judges there is a lot of hue and cry everywhere. Some people are delighted by the transparency of the system others are scared by the consequences of the same.

Disproportionate property has always been a major concern for public officials. They have been haunted by the idea of public scrutiny and Right to Information Act and now the clutches of  law have even tried to catch hold of judiciary.

Supreme Court Judges have declared their assets voluntarily few days ago. However it is startling that the assets of some senior most judges were very less in comparison to other judges. Some of them had no fixed deposits, property, investment in shares and other worthy possessions. Their declaration was voluntary and was not verified by an official inquiry.

However this declaration created a state of havoc in the legal fraternity. Everyone related to the field was either glad or terrified to hear about the event. Then there came series of comments from dignitaries of the field.

‘We cannot expose our judges to public scrutiny or inquiry because it would hamper their functioning and independence,” Attorney General Goolam E Vahanvati, appearing for apex court registry, contended before the Delhi High Court.

The AG contended other agencies should not be allowed to interfere in the judiciary. “Judges cannot be judged by public perception. The Judiciary cannot be exposed to third party. There is no problem in having better transparency and accountability in the system but it should come from within the system,”

The assumption that it would hamper the functioning and independence of judges is a flawed statement. If public scrutiny is imposed on judges then the ugly truth of bribery that exists in judiciary can be curtailed to a large extend.

JUDGES CANNOT BE JUDGED BY PUBLIC PERCEPTION ? None is judging the judges, the Right to Information Act would only ensure that people who are judging don’t assume divinity just because they are privileged by law. Rather judges are more accountable to people than any other public official because they are ones who have to protect both the rich and the poor, who have to look in for the rights of the victims as well as accused and who have to stand for and against the legislature and the judiciary. They are the one’s who have responsibility to declare a flawed law as unconstitutional.

I think no office  protects public interest than judiciary as judiciary does. It is something that people look up to and if they demand transparency in return, it must not be a problem. Our judges have always protected people and if people demand to know their assets it should not offend them.

Read more