LAW RESOURCE INDIA

The lordships of the rings

Posted in ACCESS TO JUSTICE, JUDICIAL ACTIVISM, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on February 13, 2011
Shelby County Courthouse, Memphis, Tennessee, USA

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K S GAREWAL IN THE HINDU

Some years ago I showed my permanently blocked nostril to a specialist who diagnosed the condition to be a deviated nasal septum. Had I been punched in the nose, he asked. I replied that I was a fair boxer at school and packed a decent right hook. In boxing one was trained to take body blows without protest, and in the ring many had indeed landed on my nose. Anyway, the consultation ended with advice to come in for surgery which I did not heed; the condition still persists. However, the problem is that in the past few days, punches have been landing on some prominent judicial proboscis, not on a level playing field (or in a boxing ring) but out in the open. Now is all this fair? The judicial pugilistic contest is still not over, neither party has thrown in the towel, the fight may well go the whole distance unless one party scores a knock-out.

A judge’s position is a haloed one, not in the sense of a saintly halo but in a secular sense. A person who is appointed to decide a dispute between two citizens or between a citizen and the state is expected by everyone, and not just the contestants, to be independent, fair and impartial. He is also required to be just. Judges are part of a gigantic judicial hierarchy which functions in different jurisdictions through the length and breadth of this land of a billion-plus people. Every morning thousands of people trudge to the courts for justice and witness a spectacular judicial drama unfold. From the time a judge sits in court till the time he rises, his every word — written or spoken — his every gesture, his every action are noticed by all those who appear in his court. The audience are not confined to the parties but include members of the Bar, the public at large, court staff, witnesses, police officers, prosecutors and many more. The judge is in public gaze all the time. At the end of the day, after the judge has risen, the audience return home; some with satisfaction others, with disappointment but all, by and large, with a feeling that justice has been done. This is the ideal situation.

Can this be said of the situation that prevails today? Law’s delays, frequent adjournments, mounting arrears, never-ending appeals, revisions, reviews are what stares the seeker of justice in the face. The judge’s halo is dissolving fast but who is to blame for this dismal scenario?.

Ring No.1

In this ring, the contest is between the judge and the general public. Judges, by and large, perform their duties fearlessly and fairly — without fear or favour, affection or ill-will. But what the public really wants is a quick decision. The victim is the person who has been wronged. All that he desires is that the wrong be righted. Money or property recovered, the guilty punished and all this without delay. It is the wait for justice in the corridors of the halls of justice that frustrates and angers the victim (to the delight of the defendant). The victim loses his innocence, finds faults with the system of justice or with the judge himself. If the victim is sensible he would remain patient and keep his feelings to himself. But many start sharing their frustration with others similarly placed. An atmosphere of hatred and contempt for the judicial system and the judge begins to build up. In this contest, the judge does not even realise that the odds are against him, and the bout is ready to begin. The general public is warming up with sparring practice and is going to be very unforgiving. The judge may ultimately find in favour of the victim but shall get no kudos. The damage to the judicial system will never get undone.

Ring No.2

In the second round, the contest is between the Bar and the judge. Lawyers are all sugar and honey when they appear in court. The lure of lucre provided by a newly acquired client is a strong factor. They have promised their client the sky, but the promise is confined to securing stay or bail. They do not show any annoyance or emotion when they fail to secure stay or bail. They fob their clients off with all kinds of peripheral promises and keep pumping money out of their pockets. When the promises are not fulfilled (or the promised favourable order is not passed), the lawyer is hard-pressed to give some explanation to the man who handed him considerable cash. Well, this is not difficult — just bash the judge, blame him for the misfortune that has befallen the poor plaintiff/accused.

The real bout begins only when enough such disappointing orders (against the lawyers’ clients) are passed. Lawyers exchange notes and realise that their lucrative business may be in serious jeopardy. It is now time to call a meeting of the Bar with the sole purpose of calling judges names. All this, however, is done in the name of democracy, independence of the judiciary, the rule of law and such other lofty ideals.

In this slanging match (or fisticuffs if you will), the judge is always physically absent but his image is used as a punching bag — always exparte.

Ring No.3

The state’s sovereign executive functions are performed by the Chief Minister and his Council of Ministers through battalions of bureaucrats who crowd around the Secretariat, the directorates and the administrative complexes in the districts. The bureaucrats are a law unto themselves. The respect for a judge-made law is the highest with the government but is in inverse proportion to the distance from the courts.

If all orders of the courts were properly understood and meticulously observed, we would be living in a utopia. The difficulty is when a court passes an order, it is made applicable only to that particular case, never to other cases — the dissimilarity being a person with an order in his favour while the other is not.

Good governance is still a distant dream. Bureaucrats continue to fatten themselves on the exchequer’s funds. But when it comes to a judge, they all have something adverse to say because on some occasion or the other the judge had made an observation against them or passed an unfavourable order. Thus a judge becomes a favourite punching bag.

Ring No.4

The legislature is where laws are made. But neither the drafting nor the debate when the bill is passed is conducted by lawyers. No reference to decided cases is made during debates in the manner in which arguments are presented in courts. The result are imperfectly drafted laws and an exponential increase in court cases. Bad laws like bad men create only good lawyers, but this is no consolation for judges who have to keep striking down bad legislation. The legislators do not go back to their constitutents and admit that they were remiss in drafting a flawed clause. They often do not realise what went wrong, but occasionally when they do, they say the judge was anti-government, pro-tenant, anti-this or pro-that. It seems to be no part of the legislative business to uphold the laws as interpreted by judges.

The Law Minister is quickly charged with the duty to amend the defective law. The Legislature, the Executive, and the Judiciary are the three pillars of our republic. But collectively judges have had a rigorous training for their task, whereas the legislators never get legal training. However, they do pass bad laws which clog up the courts with unnecessary litigation. When people complain about laws delays, judges are taken out and punched hard.

Ring No.5

This is the most unevenly matched contest of all. The print and electronic media, backed by all that technology can buy, are in the red corner. The upright, honest and hardworking judge is in the blue corner. The fight is over even before it begins but the contest carries on since the media do not accept victory as gracefully as the judge accepts defeat in the very first second of the bout. The judge is a reluctant fighter. He says all he wishes to say in carefully crafted sentences, in simple prose and balanced judgments. The judge has no desire to join issue with the media but the media are not really interested in knowing the reasons for the judge’s verdict. The media want to tell their audience the entire story in their own way. They also have to bear a lot of pressure from the barons and shareholders. This is a hugely competitive world. In other words, the newspaper or the television company or channel has to produce profits to support the lavish lifestyles of its shareholders.

The judge’s work produces no profits for him, although this cannot be said about the lawyers who appear before him in court or the party in whose favour the verdict has been pronounced. Justice is the sacred commodity a judge deals with. Sensationalism, beefed-up storyline, juicy gossip and tit-bits are what the public wants to hear or read. The media power (or money power) wins, while law, justice and the judge lie prostrate by the wayside.

Ring No.6

This is an interesting contest. The rich and the powerful of the world, on one side, and an archaic judicial system presided over by meek and mild judges, on the other. The flight is preceded by a lot of brouhaha about the honesty of the politician, the integrity of the system, the faith of the people in democracy. But the real fight is between people who possess loads of wealth accumulated over the years by exploiting a system indifferent to corruption. Arrayed against them are upright investigators, who get easily manipulated by crafty ministers and pliant mandarins of the Home Ministry. So in the end what one gets is a shattered judiciary, on the one hand, and fat, smiling and rich crooks, on the other. The hidden lessons are there for all to learn — never fear the law in India because the rich and the powerful can get away with anything.

Ring No.7

This is the most evenly matched contest of all. One judge against another. Not a gentlemanly thing to do but when the parties prepare for the contest there is no one to stop them. In fact everyone, even many judges, are eager to get into a ringside seat to witness two brothers slug it out. This is a fratricidal contest, but the voyeurism is staggering. This is a private contest, carried out through epistles. Therefore, gossip abounds and no one knows the true facts.

The contestants do not reveal the real story. This leads to speculation and innuendo which make matters murkier still. When will it all end, it is hard to say. But one thing is certain: it is going to be a no-holds barred contest and there shall be plenty of bleeding noses on both sides.

Cry sweet Themis, thou art blindfolded and cannot see but through thy blindfold your tears are visible. Uncover your eyes and see the injustices inflicted upon thine judges. Pick up thy sword and slay the demons who have brought justice to this pass.

( The writer is a former judge of the Punjab & Haryana High Court. His email id is: ksgarewal@rediffmail.com)

2 Responses

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  1. oscarf1762 said, on February 15, 2011 at 01:09

    To:
    Hon’ble Mr. Justice S.H. Kapadia,

    Below is an article that appeared on http://www.targetgoa.com/newsd

    Please find my comments at the bottom of this article.

    Warm regards,

    Ivo Oscar Faleiro.
    Former General Secretary,
    South Goa District Congress (I) Committee,
    Margao – Goa, INDIA.

    =========================================================================

    Judge Desmond D’Costa punished for doing his job

    2011-02-10

    Apparently, the only sin Judge Desmond D’Costa committed was in wrapping up a criminal case quickly. D’Costa was holding charge of the Sessions Court while the Sessions Judge was on leave. In the absence of a presiding judge, the acting judge does all the administrative and judicial work. In these days where cases drag on forever with undertrials rotting in jail since they cannot afford bail, Judge Desmond D’Costa was one of the few judges who saw through time wasting ploys of lawyers and litigants and cut down on adjournments.

    As a judge he commands great respect of lawyers and litigants alike. He has been an upright member of the judiciary with not a vestige of corruption or criticism leveled against him. He has been in the legal profession for almost 20 years.

    Since no reasons were given for Judge D’Costa’s suspension, it is understood that it annoyed some people in high places that he wrapped up a criminal case in 20 days.

    The legal fraternity is up in arms. They have demanded that the suspension be revoked immediately. If the investigation was faulty and the case did not end in a conviction it makes no sense for the Judge to be suspended. The Government could always appeal in the next court of appeal. Why should the judge to be punished for exercising judicial discretion? The prosecution closed its case because it did not have witnesses, how can the Judge be blamed for the case being lost.

    Adv Anacleto Viegas who is leading the fight to reinstate the judge with full honour says, “The judgment is not found to be erroneous nor the trial vitiated and yet the judge is in the dock for doing his duty. This is the height of injustice!”

    Viegas said the High Court must withdraw the suspension and deal with the matter in a proper and just manner. he said and urged the High Court to withdraw the suspension and deal with the matter in a just and proper manner.

    Or else there will be demonstrations by the legal fraternity.

    Source of information: http://www.targetgoa.com/newsd

    My Comment:

    Yes, Judge Desmond D’Costa is being victimized for poor investigation done by the police in the Mahanand murder cases. This is an insult to the judicial institution itself. High Court Judges who have suspended Judge D’Costa should bury their face in shame.

    Ivo Oscar Faleiro. Former General Secretary, South Goa District Congress (I) Committee, Margao – Goa, INDIA.

  2. fahrrad mit elektromotor said, on February 21, 2011 at 17:26

    Este blog es genial. Yo estaba muy seguro de que la gente parece interesante porque ciertamente.


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