Instead of shedding crocodile tears, CJI Thakur should fix judicial system
Sub:- Supreme Court continues to know xyz of law without knowing abcd of it
—- People in India and abroad may be tempted to think that Chief Justice of India (CJI) Tirath Singh Thakur is deeply concerned about proper health of judicial system in India hence with his choked voice coming close to tears and rubbing his eyes with his handkerchief, over the weekend, CJI implored Prime Minister Narendra Modi to double the number of judges serving in Indian courts.
Speaking at a conference of Chief Ministers and Chief Justices of States on Sunday, Thakur reportedly made an emotional appeal to the government of India (GOI) to provide some respite to the serving judges, who are handling a preposterous number of cases, while tens of thousands of people are languish in jail without having been proven guilty. [How do you think the judiciary’s present strength of 18,000 can dispose of case pendency of thirty million?” – the CJI reportedly asked, looking towards PM Modi.]
Anybody who has practiced law knows that the situation is not that simple as CJI erroneously think that by merely increasing the number of judges it will be solved. If CJI is really interested in improving the judicial system in India and in making it people & rule-of-law friendly then CJI by exercising all-pervasive powers of Supreme Court of India (SCI) under Articles of the Constitution – [Article 141 (Law declared by Supreme Court to be binding on all courts ), Article 142 (The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter) and Article 144 (Civil and Judicial authorities to act in aid of the Supreme Court)] – should improve judicial system at-least on five counts as respectively given below, namely (i)- Asking High Courts to stop (by exercising their powers under Article 227, the power of superintendence over all subordinate courts by the High Court) the problem of illegal & too many adjournments being granted mischievously (to say the least) by presiding officers of Subordinate (District and Lower) Courts (ii)- Stopping ‘dadagiri’ & ‘manmani’ (arbitrary & unprofessional behavior) of advocates at the seats of District Courts, High Courts and Supreme Court (all Courts of appeal) by providing (by involving Bar Councils of India and of States) adequate facility of lodging & boarding at nominal cost and full-fledged law library to advocates from small-towns at these seats of appellate courts (iii)- By upholding and ensuring rule of law & authority of courts (iv)- Stopping Bar Councils of India and of States from dealing in any manner the contempt cases against advocates and asking judiciary to take up contempt cases in future against advocates (v)- By making SCI and Delhi High Court real courts befitting rule-of-law :-
(1)- High Courts should keep one separate Judge / Registrar who will check every case file which comes to High Court from Subordinate Courts in appeal, revision, writ etc in order to check whether presiding officer of Subordinate Court has granted illegal & too many adjournments in the case. If yes, then High Court should initiate disciplinary action against such guilty Judge of Subordinate Court. This one action alone will drastically reduce pendency of cases in Indian courts. Nobody says that judiciary should not have more judges but unless the said is done Judiciary / CJI has no right to demand additional Judges from GOI
(2)- It is not merely one section of Judicial Community (the Bench) which needs improvement but Bar also requires it, equally. Advocates of small towns are not professionally competent and they spoil cases in lower courts to such an extent that it becomes difficult to rectify it at appellate courts because as the saying goes ‘neem hakeem khatar-e-jaan’ (half-baked knowledge is dangerous). Also ‘dadagiri’ & ‘manmani’ (arbitrary & unprofessional behavior) of advocates is there at the seats of District Courts, High Courts and Supreme Court (all Courts of appeal) because of their monopoly because advocates from small town cannot go to these appellate courts to fight the cases. This problem regarding advocates can be solved by providing (by involving Bar Councils of India and of States) adequate facility of lodging & boarding at nominal cost and full-fledged law library to advocates from small-towns at these seats of appellate Courts.
(3)- Anybody who knows anything about law (which is State) knows that judicial system works properly only by upholding and ensuring rule of law & authority of courts. Without going into numerous cases where this is not being done the CJI should start the process of stopping this aberration at least from five cases:-
(i)- The SCI should restore the status-quo-ante of Babri Masjid (which SCI is under legal obligation to do it otherwise it is criminal contempt of court by SCI under section 2 (c ) (i) & 16 of Contempt of Court Act, because Masjid was demolished in the presence of Supreme Court Observer on December 6, 1992). Moreover this non-restoration of status-quo-ante of Babri Masjid emboldened the Hindutva goons which (despite NHRC which is nothing more than a white elephant as explained at http://www.
pakistanchristianpost.com/ detail.php?articleid=2425) resulted in riots / massacre in which thousands of innocent Indians mainly Muslims have been killed (and if not restored many more will be killed in future).
(ii)- The most glaring example of communal prejudice of Indian State is post Babri-Masjid-demolition riots and serial blats in 1992 – 93 in Mumbai / Maharashtra. India is demanding extradition of Dawood Ibrahim from Pakistan as he was involved in serial blasts. But India has done nothing about Hindu accused mentioned in Sri Krishna Commission report. Hence in the interest of rule-of-law it is time SCI corrects this aberration of so-called secular Indian States.
(iii)- The GOI can easily recover Rs ~ 1,000 Trillion (Lakh crore) tax money from tax evaders which will solve most of the problems of India, born out of economic hardship of India. This is mockery of rule of law and cruel joke on the law abiding citizens who pay tax. The SCI, like in so many cases, should take suo-motto cognizance of the cases registered at Delhi Police as mentioned at http://www.alwihdainfo.com/
Now-India-bound-to-get-Rs– 1000-Trillion-income-tax-as- Delhi-Police-steps-in_a31456. html vide Dy. No. is 6455/E-mail dated 11/04/2016 and vide Dy. No. is 6919/E-mail dated 19/04/2016. It hardly needs any mention that once SCI gets $ ~ 15 Trillion tax money, the GOI will be ashamed to such an extent that it will immediately release funds required to improve Judicial Community (the Bench and Bar) as mentioned above at S.No. 1 & 2.
(iv)- How much so-called secular Indian State of Hindu majority India has succumbed to ‘dadagiri’ of Hidus can easily be gauged from agitation by Hindus for reservation as was witnessed by agitation of Jats in Haryana, Patitdars in Gujarat, Gujjars in Rajasthan, Kapus in Andhra Pradesh etc in which hundreds have been killed and there has been huge loss of properties. What is worst now even those castes of Hindus (in the name of backward communities) are getting and demanding reservation which once ruled in India like Jats, Yadavs etc and which is constitutionally-objectionable discrimination against Muslims (the religious minority of ~ 200 million Indians). Hence (by again taking suo-motto cognizance of recent reservation related large-scale violence, loss of properties, including gang-rape in Haryana) entire reservation laws need to be quashed by SCI under Article 13 & 14 of the Constitution.
(v)- Two major massacres of minority communities by Hindus (in which thousands were killed) have taken place in India in 1984 against Sikhs in Delhi and in 2002 in Gujarat. But in both these cases section 129, 130, 131 of Cr.P.C. were not invoked and guilty District Magistrates and Military Authorities were not punished (District Magistrates even did not know from which nearest place to call military). With the result such massacre can take place in future too due to impunity to these authorities. Therefore SCI should reopen these cases and punish guilty District Magistrates and Military Authorities which will be the best guarantee against such massacres in future.
(4)- )- The CJI must be aware that Bar Councils of India and of States function as agents of advocates to illegally protect the advocates especially in cases of complaint to these councils about professional misconduct of advocates and about contempt of court by advocates. This dereliction of Bar Councils has vitiated the entire judicial system and without rectifying it any hope for improvement of judicial system is nothing short of living in make-believe world. Therefor the CJI should stop Bar Councils of India and of States from dealing in any manner the contempt cases against advocates and should ask judiciary to take up contempt cases in future against advocates.
(5)- In addition to other elements the judicial system is based fundamentally on two principles (i)- Court can never be in abeyance and (ii)- Court can never be under siege. But SCI and Delhi High Court are under siege of Delhi Police. Even during ‘Rajtantra’ people could approach the rulers (kings and emperors) freely for justice by pulling a rope for ringing the bell. But SCI and Delhi High Court are not the real courts befitting rule-of-law and people can go to these courts only when allowed by Delhi Police. This is done in the name of protecting these courts from terrorist attacks (in view of Jihadi terrorism emanating from Kashmir which has caused terrorist attacks all over India in which thousands have been killed). These courts should understand that if apex courts of India and of States (the courts of records and the personification of rule-of-law) are not fearless then how will they make Indians fearless? As far Jihadi terrorism the SCI should keep the following in mind:-
(i)- Jihadi terrorism emanating from J&K (mainly from Kashmir valley) is due to unresolved gory and chronic Kashmir problem. The territories of any country are mostly decided by military and not merely by mentioning in the Constitution or by unanimous resolution in Parliament that entire J&K (including POK) is integral part of India. Everybody knows that without unification of Kashmir there is no Kashmir solution but India has not retrieved POK so far (though Pakistan much smaller than India tried to take Kashmir militarily in 1947, 1948, 1965, 1971, During Kargil etc). On the contrary instead of taking-on the military of Pakistan the military of India is showing its ‘bravery’ by training its guns on civilians under protection of AFSPA etc (with immense violation of human rights of the people of J&K especially of Kashmir valley).
(ii)- The SCI should ask GOI – when will it retrieve POK (militarily or otherwise) in a time bound program ? So that the distortion which Jihadi terrorism has caused in legal system of India (including in implementation of criminal law, where raising of so-called seditious pro-Pakistan and anti-India slogans is a crime in JNU Delhi but not so in Kashmir, Jadavpur University, Kolkata etc) can be removed once and for all.
Hem Raj Jain
(Author of ‘Betrayal of Americanism’)