Sunday, October 29, 2017

Judicial Quandary



I wonder what it would be like if people filed petitions in the US Supreme Court on the size of Christmas trees or the number of candles to be lighted. It would be even more specific if they demanded a limit on the thickness and length of the candles. The number of PILs in the Indian SC keeps dramatically going up. Almost every single day, or at least week, the SC seems to be ruling on some PIL or the other. A number of these PILs pertain to restricting Hindu festivals, customs and celebrations. Some of these don’t even need to be entertained by the judges. Here is what a former HC judge had to say:

There are always two sides to a coin. There will be people who will try and exploit [PILs], whether courts allows themselves to be misused... that is where the wisdom of the courts lie”. – Former Delhi HC Judge, Justice RS Sodhi

On October 27 Arun Jaitley, in an interview with Arnab Goswami of Republic TV, was remarkably candid in a direct criticism of the courts and judges:
 
The admission of certain PILs and the rulings thereon have become a serious concern to many, especially those on Hinduism and Hindu practices. Recently, some moron even went to Madras HC over the movie “Mersal” containing some inaccuracies about GST or taxes on liquor and medical treatments. I really don’t understand why such a frivolous petition should even be admitted by a HC, let alone be ruled on. It should have been summarily dismissed as frivolous. But the Madras HC ruled as under:
The irony in HC’s ruling seems totally lost on our judges who are very touchy when it comes to their own domain. Ever been to a court? Especially to a trial court? This is how courts are shown in Indian movies:
 
Nowhere will you find trial courts so neat and tidy. It is even frivolous to find a defendant and a witness being allowed to argue with each other during proceedings. It is unlikely that you will find two witness boxes in most trial courts. Indian movies are known to portray courts in a most idiotic manner and it goes without saying that it is pure fiction and that the producers only dramatize their imagination. And since “Mersal” was mere fiction and imagination the HC ruled on it. But, when it came to another movie, Jolly LLB, the HC took objection to the court being shown in a bad light:
 
Not only did the Bombay HC take objection to the court being portrayed badly, it even ordered some scenes to be deleted. Why? Was Jolly not as much fiction and imagination as “Mersal” is? And if “Mersal” has the license to FoE and imaginative work why does “Jolly” not have the same license to portray courts and judges as they want in a “fictional” movie? Such contradictions and hypocrisies have come to infest our courts. Almost every movie, every issue now runs to courts with some silly PIL and the courts, deprived of precious time already, seem to entertain them too. This is causing serious concern among citizens. And these contradictions are now being widely “trolled” on SM as they would be anywhere in the world:
 
Let’s look another contradiction. In December 2016 the SC ruled that the national anthem should be played in movie halls and people must stand for it. The practice was discontinued long ago and while it was okay in the early days after Independence, the anthem in movie halls made no sense at all. People don’t go to movies for a function or a national parade. They just go for entertainment. And then, in October 2017, the SC suddenly decided the anthem in movie halls should be optional and the Centre should make a decision on it. That’s why courts are increasingly seen as playing the role of elected govts when it is totally unnecessary. These are the outcomes of frivolous PILs on issues on which the SC should just recommend suitable action to the concerned govt rather than issuing diktats. What did this do? On many TV debates it only brought out Mullahs and Commies who are vehemently against respecting the national anthem.

Many decades after WWII, organisations, courts and investigators still hunted for Nazi war criminals. Many were indeed hunted down. A company like BMW that exploited Jewish “slave labourers” without payment was made to compensate many years later. Most of the victims were dead. Those living were compensated. It is not mere compensation, it is also a question of restoring honour to those dead. That’s what being human is all about. Kashmiri Pandits have been murdered, uprooted from their homes for decades and no govt seems to want to help them or bring them justice. So, what did the KPs do? They went to the SC to seek justice but the court promptly sent them off:
Many of the murderers of KPs, many of the known criminals are still walking around. The KPs deserve not just justice but a return to their homes. I wonder who is going to stand for them. The last temple of justice has closed their doors on them. The SC claims it protects citizens from injustices. After this shutting out of KPs, I am confident even the Central and State govts will conveniently forget them. This is not justice, this is a serious war-crime against an entire community of people. This, even when the older cases of 1984 killing of Sikhs are still in courts. There is another case where army men were framed and is famous as the “Samba Spy Case”. Even army-men know this is a fake, trumped-up case. The ISRO spy case was also used to tar many scientists, including Nambi Narayanan. It is commonly believed this was done by enemies of India to sabotage the Cryogenics technology. Men and women who have served the nation only demand they live their life with honour if they are innocent. Even former Governor Kaushal Swaraj had tweeted these cases was a farce:
Nothing stops the SC from taking suo-moto cognisance and reopening these cases to restore justice and honour to the innocent. Last February, the SC agreed to look into the ISRO spying case. The Samba spy case merits the same relook. Even if the SC has made the final ruling in these cases earlier, the appellants deserve another hearing, if the SC judges can wake up midnight to hear Yakub Memon. Instead, NGOs, vested interests and even anti-nationals have been flooding the courts with frivolous PILs.

Humans are known to be adventurous risk-takers. They climb mountain peaks, trek dangerous jungles for discoveries, conquer space, travel to the north or south pole and even the limbless run Olympic races. So why does the SC have to rule on social practices like Dahi Handi or Jallikattu? All it needs to do is recommend to concerned govts to ensure they make adequate laws to protect humans and animals involved. Dictating height of Dahi Handi or banning Jallikattu is really not a solution. The Diwali cracker-ban in NCR appears to have made no real change in pollution either:
 
The problem with crackers and pollution can be stopped at the manufacturing level. The emissions and decibel levels need to be stipulated for the manufacturers not to the retailers and users. Hindus are united only by festivals, traditions and celebrations. There is no need to constantly impinge on this by any authority. A panel created by SC reported that Bhaang or other offerings are not the reasons for shrinking of the Shivling at the Ujjain temple. Yet, the SC has ruled on the Panchamrit or offerings to be made at the temple. These Shivlings across India have been around for thousands of years and weathered everything. While there is no harm in regulating the frenzied offerings at the temple, the courts intervening in this leads to permanent grievance in the hearts of Hindus. They feel their Rights are being restricted one by one and systematically too. This is best left to the temple management/trust.

Maybe the whole country needs reforms. Maybe all religions need reforms. But only the Hindus seem to be asked to change or alter their practices. Even courts too need reforms but are reluctant and the judges seem protective and adverse to change. Arun Jaitley, naturally, called it the “tyranny of the unelected” when the court over-ruled a Constitutional amendment which is Parliament’s supreme privilege and authority:
 
It has now almost become a question of “who will monitor the monitors”. A Constitutional amendment by Parliament after due process being over-ruled now means there is no authority or control over the Supreme Court whatsoever. This is not the kind of imbalance a democracy should desire. The same SC didn’t overturn the Constitutional amendment in the Shah Bano case which was executed mainly to negate the SC judgement. From Panchamrit to redeployment of security forces the SC is more or less running the Executive. In the case of security forces, the Bengal govt had gone to the HC against redeployment of forces from Darjeeling. The SC should have simply overturned the HC ruling instead of again dictating how many troops to redeploy. Central forces are subject to deployment by the GOI and the Cabinet and not the courts to really decide:
Other than hearing appeals against lower court judgements, Courts are supposed to stand for people against tyranny of any govt or force. In none of the cases mentioned above were people subjected to any kind of tyranny by GOI or any specific govt. On the contrary, when really tested, the SC did not stand up for freedoms and justice and a much reputed and respected SC judge, the late CJI PN Bhagwati apologised for not doing so:
Players cannot appoint umpires. Umpires cannot appoint umpires. Judges too should not be appointing themselves through their own body. The Constitution does not provide for a Collegium. Therefore, this does require a serious review and remedy. Until this is done we will continue to see a conflict between Judiciary and Executive, if not openly, and the public subjected to a judicial quandary. 


29 comments :

  1. Sir! as usual your messages surpasses your own standards and this one is hit on the judiciary bloated egos and your candid respect shown to AJ,which he should consider as compliment,also highlight this Govt will not cow down before Judiciary and sooner judiciary realises it,better will it be for the institutions that nurture deep roots of Democracy

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  2. A timely comment on the rot in the judiciary. Parliament needs to pass the same NJAC act once again and again and again till SC comes to understand that it does not have power to alter constitutional provisions on appointments of judges. Judicial system has failed to give assurance of timely justice to people and this is root cause of corruption.

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  3. Reforms are most urgently required in judicial system. Hope Modi will take it up after 2019.

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  4. NJAC act must be passed again and after the Presidents approval.If the "Sharia"court fail to adhere to the constitutional act,concerned judges must be taken to task and impeachment must follow.

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  5. Once again you have hit the bull's eye. Courts need to show equality for all citizens but Indian courts are showing more equality for criminals or for elite lawyers. Hindu festivals which by themselves have reformed over time have been subjected to needless controls. If we can have crackerless Diwali then why not bloodless Eid. If Rohingya issue of deporting is taken then why not KPs issue of murder & rapes for mass Exodus from Kashmir.

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  6. Like many other things in our country, judiciary is also going down the tube. However like sickulars and presstitutes, it plays safe. Ridiculous meddling concerning just one section of our society.

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  7. This comment has been removed by the author.

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  8. Its not difficult to tame the SC, requires strong AG and SG who question the judges and requires a strong govt which empowers the SGs and ASGs to stand up to the bullying judges. 56" doesn't seem to have the courage to take on the Govt. Lets see - hopefully in the next term he may get the courage to do it

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  9. Its become more of "which" judge will hear ur case, his mood will decide ur lifes precious outcome instead of a fair/reasoned/moral/non prejudiced outcome. Back to illiteracy n non transperancy era.

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    1. Whims of Judges reign Supreme... Law or constitution are completely ignored, when leading Advocates are not involved

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  10. Hi Ravinar again a bullseye hit by a hammer on the head of the nail.
    Well our very serious people adorning the benches after a long innings of "a serious life" need some lighter moments before retirement. But they never learned to relax by watching like Kapil Sharma or Bhabhi ji Ghar mai hain etc.
    And, they can not pick up non Abrahmic/non native religions as they do not want uncertainities of safety of their life after retirement, so only Hindusim or native religions are for them very very safe post retirement. But why just post retirement as non native religions can give them sleeplessness night regarding their own safety anf of their near dear ones.
    I do request you since you are so immaculate in your research to see how many are career judges and how many career lawyers got on the bench? I am sure there always been a behind the scene hand of the government in their being put on the bench. Is it pay time for such placed lawyers on the most august chair to a party who had the maximum tenure to govern at the center and states?
    The frequency of interfering in governance is at a very hyper intensity by courts during this legally elected government formed on its strong mandate rather than cobbled up majority like Congress in recent past.
    Your write ups are to great in content I religiously share it with friends and various platforms.

    Be blessed with a wonderful life

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  11. On 27/9/2012 in Criminal Writ Petition no 2414 of 2005- 2 Judges of Bombay High court passed order on basis of (para 13) "Indur Chhugani filed above petition of 2005,with prayers solely based on order passed in his favour by the MPID Court on 30/1 /2006"

    In simple words I filed WP in 2005 based on order of 2006 in my favour. One of those Judges is now a Supreme Court judge called Shri A M Khanwilkar.

    After I put blogs of Facebook and WordPress, protesting such absurd orders, the Nagpur Bench of Bombay High court has started Contempt proceedings against me... Indur Chhugani

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  12. When a person opens his mouth be it wherever or be he occupying whatever high position, it reflects on his caliber!!!

    Need I say anything more!!!

    What needs to be investigated is what is the role of foreign funding in our country in every aspect of our governance....

    Free money corrupts human beings...and every human being has his price!!!

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  13. Let remove contempt clause and see how we treat them apart.

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  14. recent judgement, comments and observations by various courts is the final straw of sickulerism. last ditch effort by sickulers to use so-called 'respected judiciary' to impress the educated and middle class against BJP and Modi. The majority Indians became greedy. Little these sickulers know that the same greedy and corrupt do not like talking against country.

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  15. Spot on. There is aneed to review the functioning of the courts.

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  16. I wish all justices read this blog.

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  17. It is right time now for Judiciary to go back to their kindergarten & understand the society & its times. In recent years judicial activism though good, unfortunately in India the activism is in wrong direction. The so-called law makers Kapil Sibal, Abhishek Singhvi, Tulsi, all fought / defended cases on behalf of tax evaders, criminals & rapists.
    All courts to be closed for six to one year to give each Judge some thorough induction on India - spiritual & cultural values.

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  18. GOI should verify the no of pending cases when the appointment of judges thru Collegium was started and compare with the present status. I'm sure the pending cases have gone up drastically. The Judiciary should be cornered with this data

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  19. Time for judges to stop being umpires for the games they don't know.There are 3.5 crore cases pending in various courts.Judiciary should focus on this huge and unacceptable pendency.Time really for some one to file a PIL against long vacations and large number of holidays that courts enjoy.

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  20. Modi is actually too nice to judiciary. He told them to reduce vacations, they did not. He tild them to decide cases of politicians in priority, they did not agree. Gautam Bhatia had written brilliant analysis of NJAC case. Judge just cinnected two unrelated arguments with one 'therefore'. Something like , "birds can fly, therefore, donkeys are white"

    Andrew Jackson once famously said "(Judge) John Marshall has made his decision; now let him enforce it!" Credit to to Modi that he is not doing that.
    Please start ranking judgements (avoid judges) the way rank journalists.

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  21. Like having National Level test for professional courses, Govt must introduce National Level Test for LLB courses....and a UPSC level Test for Judges to be appointed to courts...

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  22. For the last two genetations, the Country has seen mediocrity in the Judicial System which is reflecting today. Collegium system of selection of Judges is self-serving to the community and we can have a good Legal system only when we have a fool-proof selection system. It is true some of the cases taken up by them recently are comical. Alas, will they reform sooner?.

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  23. What is seriously lacking in the current generation of third rate judges including Supreme Court is "depth of thinking" & upholding the principles & values of the society. It is now reduced to superficial surface scratch judgements. The judgments haves many gaps & holes through which foxes & elephants can pass through. Similarly administrators of every govt. organization, by virtue of govt rules, donkeys have become the Head of the organizations instead of "Owls" & "Elephants" of wisdom. India has a long long way to go & beginning has to be made now for this process will take many decades before this rotten sewerage smell that emanates from these offices can be blown away & a new Jasmine Lotus blooms.

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  24. Do you that a bank can recovery money from the Guarantor when the Borrower fails or defaults in his payments ? But this rule or Supreme Court judgement did not exercised in case of Vijaya Mallaya, whereas same is done with impunity with an ordinary person.
    Such is the strage behavior of the banks & Supreme Court of India while it gives special priveleges to rich, sucks blood of ordinary people.

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  25. In a strange case, the borrower is a bank manager, guarantor was someone in the resident neighborhood, bank manager defaulted in the loan, money is recovered from the guarantor. No effort was made by Bank to recover its dues from its own employee & infact he as given promotion, not even served a legal notice on the bank manager, nor mortaged his provident fund or other deposits/ fixed assets, but chased down the guarantor & almost killed him with their recovery methods.
    Thanks the Indian Judiciary !!! on these type of judgements.

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  26. Judges are also normal humans having desire to get good media coverage and remember they come from the same society like us. After all we get what we deserve...

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  27. Courts have become incestuous club, lawyer kids of sitting judges are promoted and given out of turn seniority at the beginning so they stand in Q for elevation as judges. eg CJI Thakur a man incompetent to be CJ headed SC simply because his father DD Thakur was a congress politician and ensured that the son got undue promotions. SC has also been made hollow by termites of congress. the rot is very deep and unfortunately the honored judges have become as greedy as rest of us

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  28. The higher echelons of the indian Judiciary are with their clouds in the sky and seem far removed from the reality of the undercurrent of anger in the hindu mind which increases everytime when they and their traditions, practices, way of living are contemptuously looked down upon and strictures passed against them with a devious agenda in mind

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