Friday, August 29, 2014

Let us think and Act with an open mind to
Develop a Vibrant Democracy – Article 11

Introduction: I have identified thirty obstacles which cause a distorted and ineffective democracy and possible solutions for these. Because very few people have time / inclination to read long articles, these are presented in separate brief articles for pointed attention and easier assimilation. I hope this will lead to spreading of awareness and facilitating point by point debate on each of these for saving our sinking democracy.
(Please keep these articles within easy reach for referring back till the series is completed.)

Judicial system

In a democracy, fool-proof arrangements have to be made to provide affordable quick justice to all people. Providing faultless  justice is another crucial requirement. The present judicial system has failed in both these aspects, as explained below. There are some basic faults which can be removed only by a totally fresh approach.

Affordable quick justice:   Lakhs of cases have been pending in courts for many years and denying justice to lakhs of people. A truly democratic Parliament and government would have given highest priority to rectify this serious problem. Instead, a callous laissez faire attitude with least importance to provision of quick justice has been adopted for many years. This has to be condemned outright as a blot on our democracy. Because government, politicians of questionable character and influential persons/ organizations are defendants in many of these cases, one can even suspect that they have a vested interest in delaying these cases.

One of the main reasons for piling up of cases is shortage of judges. Parliament and government have not been sincere enough to tackle this problem. The meager allocations made are due to low priority and not lack of resources. While government has all along been claiming lack of resources, it had “chosen to forgo tax revenues amounting to Rs. 5 lakh crores a year through tax concessions to corporate entities and the rich in the past two or three Budgets.” (Deccan Chronicle dated 1-10-12) A scheme named Sonia Gandhi Go Shiksha Yojana has been running for over eight years and almost Rs. 8,000 crore of tax payers’ money has been spent in the name of teaching traffic rules to cows!! (DNA dated 6-10-12). Government was prepared to spend Rs.30,000 crores to bail out Air India so that rich people can fly. Spending even a part of the huge  amounts given to such lower priority schemes would have been more than sufficient to have adequate number of judges to provide quick justice to  lakhs of people. People want a democratic government to spend their money to meet their essential needs (e.g., justice) and not according to its whims or to help the rich!!

Some fast–track courts were set up in 2000 to speed up justice. But, out of 1,734 such courts only 976 are functioning now because of lack of funds (The Hindu dated 17-08-14, page 1).This also shows lack of priority given to speeding up justice.

Recommendations made by judicial commission were not implemented and gather dust. Similarly, Administrative Reforms Commission and the Committee that reviewed the Constitution had stressed on setting up special benches in High Courts for disposing of poll suits within six months. But in August 2012, the Law Minister stated that at least 76 petitions challenging elections to legislative assemblies between 2010 and 2012 were pending disposal. This has resulted in number of lawmakers continuing to function and enjoy privileges though their eligibility for these is doubtful. Ignoring these and other recommendations questions the sincerity of Parliament and government in providing justice.

Supreme Court (SC) is also partly responsible for this dismal situation. As the Statutory Authority responsible for providing justice, it should have warned government that the low priority given to providing funds and its unhelpful attitude to ensure quick justice are against the spirit of the Constitution. It should have demanded appointment of more judges and staff by reducing wastages repeatedly pointed out by auditors and by avoiding expenditure on projects that are less important for people. There have been many scams resulting in loss of huge amounts of money. Years back, Late Prime Minister Rajiv Gandhi had cautioned that benefit of about 85% of money spent on projects for rural development has not reached people.  This wastage is still continuing. All these and more enormous wastages of tax payers’ money still continue without even a semblance of efforts at least to reduce these. SC should have emphasized that all these show that low priority and wastage are the main reasons for not appointing more judges and staff to clear backlog of cases to help people.

It is universally accepted that justice delayed is justice denied. When lakhs of cases were pending for years and lakhs of people were suffering from delay of justice, the courts enjoyed vacations regularly. They have allowed themselves this distorted privilege which no other department has. This heartless attitude is anti-people and reminds one about Nero playing the fiddle when Rome was burning!  Callousness on the part of judges is crystal clear.

Because of a laissez faire attitude judges have not applied their mind to identify and remove archaic procedures followed for many years. For example, when there is an appeal against a lower court judgment, the higher court often refers the case back to the lower court for review. This procedure leads to avoidable increases in number of cases at the lower court (which already has huge arrears), besides delaying justice and increasing financial and other burdens on litigants. Moreover, when either of the litigants appeal against the second judgment of the lower court, as often happens, it results in double work for the same case in the higher court. Further delays and additional expenses for litigants again occur. These could have been avoided if the higher court had applied its mind in the first instance itself and given orders. A careful study of all procedures and making necessary changes to quicken justice are long overdue.

It is well known that bulk of our people cannot afford to fight for justice even at one level. Provision of indiscriminate opportunities for repeated appeals is made use of by rich people or organizations. They also employ senior lawyers paying exorbitant fees and matching this is beyond the reach of most people. This makes it almost impossible for most people to get justice. Neither Parliament nor government nor judges have sincerely applied their mind to this problem.

The above aspects depict the seventeenth serious obstacle which resulted in a distorted and ineffective democracy.

Overcoming this serious obstacle needs a complete change in outlook resulting in a well staffed and reformed judicial system which can ensure quick justice to all people and not for rich people only. For this, a thorough review of the working of the judicial system should be carried out by an independent body with adequate expertise and its recommendations should be immediately implemented in toto. Any rejection should be confirmed by both houses of Parliament.

Budget should make adequate provision for appointing sufficient number of judges and staff to clear backlog of cases. To avoid budgetary constraints, SC which is a statutory authority, should be empowered to make the budget for the judicial system and present it directly to Parliament. Providing justice to all people is so fundamental in a democracy that other budgets should be pruned by government, if necessary, to ensure quick and affordable justice.

Because justice is now beyond the reach of common people, costs incurred should be subsidized to help poor people to get justice. Alternately, a graded system for court fees and other expenses attuned to income levels and provision of free lawyer services of good quality to those who cannot afford to match the lawyer services engaged by the rich should also be thought of. The possibility of a few persons misusing this arrangement should not be an excuse for denying this to bulk of the people. The resulting loss will be much less than the huge wastages which now occur without being questioned.

Providing faultless justice: Another matter of serious concern is that transparency of courts is being increasingly questioned by people. Article 10 has highlighted that, on an average, about 90,000 persons had complained to NHRC every year about violation of human rights. Many thousands more were likely to have complained to the State Human Rights Commissions. About two-thirds of these complaints were not examined by NHRC. As explained in Article 10, in the absence of required break up of the above data, it is reasonable to presume that majority of this enormous number of violation complaints arose from perceived denial of justice by courts. This also indicated that lakhs of people did not have faith in judgments by courts and appealed to HRCs!! This is a serious blot on our judicial system.

When a complainant sought file notings and reason for judgment, SC stated that it does not maintain any records such as file notings or reasons for judgments and nobody has the right to question this. If any other government organization functioned without keeping records or with such complete lack of transparency, SC would have passed serious strictures against it. The double standards are alarming.

This deplorable attitude that people do not have freedom to ask for the grounds for a judgment  is out right anti-democratic. This shows that the court treats with contempt the basic principle in the Constitution that people are the masters in a democracy!! Thus, SC which ought to uphold the Constitution is violating it.

An article in Times of India dated 28-07-14 stated: “”Justice is not a cloistered virtue” said Lord Atkin. “It must suffer the scrutiny and outspoken comments of ordinary men.” It quoted Justice Makandey Katju as saying “Now it is the people who are supreme (see Rousseau’s ‘Social Contract’) and all state authorities, including judges, are nothing but their servants.” Therefore, not furnishing the grounds for a judgment is an act of contempt of people who are the masters in a democracy.

Another act of contempt of people by SC is that letters to SC from ordinary people are not answered.
The increasing number of allegations of judicial misconduct emphasizes the need for investigation. For example, “Prized placements in offices of top lawyers are easily obtained by wards of judges.” (Such judges may feel obliged to top lawyers). “The most damaging secret is that the legal profession has remained cloistered and oligarchic, and in this the bar is as guilty as the bench.”(DNA dated 28-01-14).

There is a general impression that judges are prone to “listening” to senior advocates while passing judgments. This also needs to be investigated. If true, one possible reason can be that these advocates are more knowledgeable and efficient in providing justice. Can there be other reasons? Can it be that there is a nexus between top lawyers and judges? If so, lack of transparency is their necessity.

The above aspects depict the eighteenth and very serious obstacle which resulted in a distorted and ineffective democracy.

Overcoming this serious obstacle needs immediate action to provide complete transparency of judicial verdicts and to change the attitude that judges are the masters and can do anything without being questioned. Reasons for judgments should invariably be given in a language which people can understand and feel convinced. Letters to  SC by people should be answered promptly.

Basic defects: The dismal functioning of our justice system is also due to basic defects in the system. A retired judge of SC stated: “A radical transformation of the robed brethren has become necessary.”…“the law of interpretation that the judiciary adopts tends to favour the haves, not the have-nots. The social structure and the fundamental character of the instruments of the Executive, the Legislature and the Judiciary have political character” (The Hindu dated 29-12-13, page 13). 

Our justice system is a remnant of British rule. It is archaic and complex. It is also not people-friendly.

An aberration in the judicial system which is not in tune with democracy (in which people are the masters) is that judges have to be addressed as “Your Lordship” or Hon’ble or similar terms, while other officers are addressed as “Sir”. This is a remnant of the British rule.   Logically extending this point further, it is incongruous that people (the masters in a democracy) have to address government officers as “Sir” and bow before them as second class citizens. Is not equality in status enshrined in our Constitution? Can we not agree on a word for addressing each other with mutual respect irrespective of positions held?

Basic defects and complexities in our judicial system is the nineteenth and most serious obstacle which resulted in a distorted and ineffective democracy.

The urgently needed radical transformation of the judicial system can be effected in two ways:                                                                                                                                                                               

One approach is to think out of the box and ask many basic questions to reform the judicial system and make it quick, faultless and people-friendly.  For example, when a person wants to seek justice why can’t he/she file a petition in writing in ordinary paper (with or without help from a lawyer) and send it through post to a judge and save money and time? To file a petition why is it necessary for the petitioner to pay fees when provision of justice is an essential function of democracy which has to serve the peoples’ needs?  Why is it necessary to argue civil cases in a court of law in stead of the judge, who is well versed in laws of the country, disposing it off himself/herself, after discussing/seeking clarifications from both parties (with or without help from a lawyer) to clarify matters? Why ask both parties to a case to engage lawyers to argue before a court of law when a qualified judge is capable of considering all legal aspects of the case and can provide justice without being side tracked or biased or mesmerized by clever lawyers? Does not the court system in which lawyers tell judges about legal aspects, question the legal knowledge of judges and their ability to take a fair decision themselves, without help from lawyers? In case a judge feels the case is complicated and feels the need for legal opinion to make sure that all aspects have been properly considered, why can’t he/she seek it formally from one or more colleagues and take a joint decision in stead of constituting a bench and delaying matters? Similarly, when appeals are made, can’t these be disposed of by senior judges without constituting a bench and bringing in lawyers? Can we find a way to avoid indiscriminate appeals which delay justice? Will not abolition of the court system reduce the cost of providing justice incurred by both people and government?

Why is it that there is no uniformity in interpretation of laws among judges and lawyers? Is it not essential to redraft the laws to avoid or at least minimize differences in interpretations?

Why did even experienced judges and legal experts, who know the complex and time consuming nature of the system, adopt a laissez faire attitude and did not think out of the box and ask lot of questions to simplify the system? Are they afraid that simplifying the system will be against their interests? If legitimate interests are affected, how can this be compensated?

If the system is simplified based on answers to many relevant questions including those given above it will speed up justice and reduce the cost of providing justice.

A better approach is to replace the current British model with one based on democratic principles and our culture. If people are the masters they should be made the jury also by giving judicial power to panchayats to form the first level of the reformed judicial system. Such a democratic practice which was in vogue earlier in many places can be studied and modified to make it more systematic and fool-proof. These will turn out to be peoples’ courts delivering quick justice and avoiding back logs. Historically, India had many rulers like Asoka and Akbar who had dispensed justice with equanimity and earned the praise of people. Checks needed at higher levels for providing justice under the reformed system should be evolved after a careful study of the practices by these rulers and modifying these to suit modern environment and technology. Such a judicial system, which takes into account democratic principles and our culture, will deliver quick and faultless justice in tune with our culture.

Comments (especially those which point out errors or deficiencies, if any, in this article and thereby help to improve it) and suggestions to overcome these very serious obstacles are welcome. Please send these to I shall make use of all befitting suggestions to prepare the last two articles of this series – Articled 23 will spell out the basic principles which will guide formulation of the revised system of democracy and Article 24 will outline the revised system of democracy for public debate to arrive at a consensus.

You can help to save our sinking democracy by making as many people as possible aware of these obstacles and possible solutions, through personal group discussions, newspaper articles, e-mail and social media like face book and twitter so that we can have healthy debates and arrive at some innovative ideas to save our sinking democracy.