Let us think
and Act with an open mind to
Develop a Vibrant Democracy – Article 11
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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 StartRemovingBlocks@gmail.com. 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.
