There is currently an exhibition being held at Mumbai’s Nita Mukesh Ambani Cultural Centre entitled `Run As Slow As You Can.’ Designed by two eminent Italian artists, Maurizio Cattelan and Pierpaolo Ferrari, the exhibits lampoon the rat race in the consumerism-obsessed society today. The paradoxical title may be suggesting that in a demanding competitive world one should run as slowly as possible to prevent oneself from being burnt out.
I however find the title appropriate for a different class of people, in another context altogether. I am referring to our honourable judges, both at the lower levels and the apex court, who have been running an Indian judicial system which has earned world-wide notoriety for `slow running’ in deciding on cases – some of which have been pending at district and high courts for almost half-a-century ! Forget the lower courts, even our apex court also follows the tradition of `slow running’ in certain cases.
Betrayal by the Supreme Court
For the common citizens who are denied justice by the lower courts, their final resort is the Supreme Court. But its judges also seldom care to lend their ears to their complaints and demands for justice. Let us take a look at their behavior in relation to some recent cases over which they had been prevaricating for years, keeping on adjourning the hearing, or transferring them to other benches. The case of Umar Khalid, a research scholar of the JNU (Jawaharlal Nehru University) in Delhi is a typical example. To go to the background of the case – during the sit-in-protest demonstration against CAA (Citizenship Amendment Act) at Shaheen Bagh in north-east Delhi in January 2020, Khalid went there and met some of their leaders. At the same .time, a BJP MP Parvesh Verma delivered a speech there, addressing the Hindu residents, saying that the anti-CAA protestors would “enter your houses, abduct your sisters and mothers, rape them, kill them..” This hate speech provoked the Hindus to attack the Muslims and the latter resisted, thus sparking off a Hindu-Muslim communal riot in February. Curiously enough, while the police preferred to be deaf to Parvesh Verma’s inflammatory lecture, they arrested Umar Khalid, accusing him of being the “mastermind” behind the February 2020 riot, and booked him under the draconian UAPA. He was put in jail where he is living for the last three years.
How has the judiciary treated Umar Khalid’s case ? After filing several bail petitions at the lower courts and having been denied, he approached the Supreme Court. But the case has taken peculiar twists and turns, thanks to the dilatory practice followed by our honourable judges. His petition was accepted and listed for hearing in May this year. It was however postponed till August 9 . But when the bench of SC judges sat to hear it on that date, one of the judges, Justice P.K . Mishra recused himself (without assigning any reason). As a result, the case was adjourned again , to be heard by another combination of judges. On August 18, this bench consisting of Justices Aniruddha Bose and Bela. M. Trivedi, adjourned the case for two weeks on the plea that the matter needed to be heard on a `non-miscellaneous day.’ How long will the ordeal continue for this young academic, being forced to ruin his career ?
By such prevarication, aren’t the Supreme Court judges violating the landmark judgment delivered by their own peers on July 11, 2022 (re: Satender Kumar Antil vs. CBI) which said that `bail was the rule and jail was the exception’ ? Even the present Supreme Court Chief Justice D.Y. Chandrachud complained sometime ago that “judges at the grassroots are reluctant to give bail…” (November 19, 2022). But then, now it is his own brotherhood in the apex court who are following the practice of their junior `judges at the grassroots.’
Postponement, equivocation, and acquiescence
The judiciary’s tendency to keep delaying is not confined to bail petitions, but extends to numerous other cases (some of which require urgent attention) which have been pending before the Supreme Court for quite sometime. Significantly enough, a large number of these cases relate to petitions challenging the constitutional validity of Union government decisions – like those against the electoral bond scheme (that allows concealment of the identity of the sources of funds, thus providing an opportunity to corrupt business houses to divert part of their black money to their political patrons); the ordinance curbing the powers of the Delhi government (which was issued in gross violation of the Supreme Court’s earlier judgment). To the disappointment of the petitioners, the apex court decides to grapple with these controversial issues by continuously adjourning the hearings, thus keeping in abeyance its final decision. But such postponements can often pave the way for the continuation of mala fide practices. The apex court’s hesitation in coming to a decision on the electoral bond scheme, for instance, will allow its beneficiaries to continue to fund their electoral campaign from these bonds on the eve of the 2024 Lok Sabha polls. Incidentally, the biggest beneficiary of the scheme is the ruling party BJP, which had cornered the maximum from the bonds. The Supreme Court judges who had been sitting on the petition against the scheme are surely aware of this fact.
Or, take again the petitions against the repeal of Article 370 in Jammu and Kashmir, over which the Supreme Court sat for full four years, before taking them up for hearing. A bench is now considering the case. But to our utter dismay, we find that the frequent observations being made by the honourable Chief Justice and his colleagues in the course of the hearing, suggest a bias against the petitioners, making us suspect that the judges may have already made up their minds about the final verdict.
When examining the above cases, we wonder whether the judiciary is reluctant to pass verdicts on hard questions that accuse the government, so that it does not get into confrontation with it, or does it lack well-equipped judges who can decide on these issues with the promptness that is required in the delivery of justice. Have the judges forgotten the dictum: `Justice delayed is justice denied’ ?
Apart from the habit of lingering on cases, even when the apex court comes out with judgments, some of them turn out to be halfway house style of verdicts, trying to appease both the contesting parties. Let us take the defamation case against Rahul Gandhi, who was sentenced by a Surat judicial magistrate to two years imprisonment. When the case went up to the Supreme Court, it stayed his conviction thus restoring him to his position in Parliament. But at the same time, we wonder why the apex court did not straight away quash Rahul Gandhi’s conviction, to put an end to the case once and for all, over a frivolous allegation ? Why did it just stay it, thus paving the way for the continuation of the case, that is likely to be marked by a series of time-consuming petitions and counter-petitions in the courts ? Isn’t the apex court resorting to the same practice of prevarication and procrastination that the lower courts had been indulging in ?
The pusillanimous behavior of our judges – often appearing to acquiesce with the ruling powers – as evident from the above cases, casts doubt on the honesty and impartiality of our judicial system. Justice in our country can be vapourized with small bribes by the ruling party – like promises of post-retirement benefits for judges in the shape of remunerative appointments as heads of commissions, or seats in the Rajya Sabha. For instance, let us take a look at the background of the appointment of Arun Mishra as the head of the National Human Rights Commission. When he was a judge at the Supreme Court, at a public meeting on February 22, 2020, he heaped praises on prime minister Narendra Modi by describing him as “an internationally acclaimed visionary….versatile genius.” Did such words adhere to the norms of impartiality that a judge is required to adhere to ? But quite predictably, the BJP government awarded him with the prime post of NHRC chairman. Or, take the case of Ranjan Gogoi, who as the Chief Justice of the Supreme Court kept on delaying the hearing of the petition that challenged the constitutional validity of the electoral bond scheme, and thus avoided the need to give a verdict on the case. After his retirement, he was nominated to the Rajya Sabha. Was it an award for his continuous adjournments of its hearing – a procrastination that suited the ruling party ? Incidentally, that petition against the electoral bond scheme is still pending before the honourable judges of the Supreme Court. They are yet to make up their minds to give a final verdict on a government scheme that lacks transparency and allows anonymous financial sources to fund electoral campaigns by political parties. While it is obvious to every common voter that such a scheme can legitimize flow of funds from criminal gangs and corrupt commercial houses, who want to divert their black money to their politician patrons, the learned judges at apex court keep on scratching their heads arguing over the legal niceties, and postponing their final judgment. Meanwhile, as I pointed out at the beginning, their prevarication is paving the way for the continuing financial contribution from dubious anonymous sources to the electoral funds of various political parties which are preparing to contest in the 2024 Lok Sabha polls.
Poor quality of judges at the `grassroots’ and the apex level
Let us start with a brief look at the performance of the judges of sessions courts and state high courts. Some of their recent judgments have attracted censure by the Supreme Court which has pulled up the concerned judges for failing to adhere to the statute book – thus revealing a widening gap between the apex court and the lower levels of the judiciary. At the same time, .we must critique certain verdicts delivered by some judges of the apex court itself in other recent cases, which can also be assailed for similar violation of legal norms. Such verdicts, both at the lower level and the apex court level, are quite often overturned by new benches – but after years of legal battles by the victims. Shouldn’t the judges who were found to be wrong be penalized for the sufferings that their judgment inflicted on those whom they sentenced to imprisonment ?
Seven years ago, I raised this issue of culpability of our judges in an article entitled: There must be a price to pay for Wrongful Conviction, which was carried by The Wire news portal on August 30, 2016. I discussed several cases where innocent people were sentenced by lower courts to imprisonment on charges of terrorism or other crimes, and who after going through the tortuous process of filing petitions from one court to another over several years, were finally acquitted by the apex court. This relief was only available to those who had enough financial resources to fight their cases through the expensive legal procedure, to prove their innocence. What about other innocent people bereft of such financial advantage, who have been languishing behind prison bars due to verdicts peremptorily announced by some sessions court or high court judges, who failed to discern the falsity of the charges ? Even after seven years, since I wrote that article, this pattern of judicial incompetence and irresponsibility continues to mark the functioning of our judiciary – whether at the lower level or even the apex court. Yet, the judges who deliver such verdicts (proved to be wrong later) continue to enjoy immunity and impunity from their peer group.
Judicial impropriety by magistrates and high court judges
Let me mention specifically some recent cases in the judicial arena – starting with the most irresponsible judgment delivered in May this year by the Manipur High Court judge M.V. Muralidharan who ordered that the privileged Hindu upper caste Meities should be considered as tribals, thus entitling them to further privileges under the Scheduled Tribes quota. This sparked off the Kuki-Meitei conflict that continues to plague Manipur. On May 17, the Supreme Court stayed Muralidharan’s order, dismissing it as “factually wrong,” pointing out that the right of designating communities as Scheduled Tribes did not rest with a high court judge, but with Parliament. Even after this exposure of Muralidharan’s ignorance of our laws, and his censure by the apex court, he continued to function in the Manipur High Court.
To come to a high profile case in recent times, a Surat Chief Judicial Magistrate sentenced the Congress leader Rahul Gandhi to two years imprisonment for his innocuous joke asking why `all thieves have Modi surname ?’ The Lok Sabha secretariat immediately disqualified him from membership of Parliament for eight years. Now, a Supreme Court bench has stayed his conviction, allowing him to return to the floors of the Lok Sabha. What is significant is the observation made by the bench in its judgment on August 4. It admonished the Surat Chief Judicial Magistrate for failing to give a single reason for serving the Congress leader with the maximum sentence of two years of imprisonment. The bench also hauled up the Gujarat High Court, ridiculing it for its “voluminous 120-page judgment,” which it found lacking in offering substantial reasons for convicting Rahul Gandhi. The apex court’s remarks on this case, throw doubts on the efficacy and competence of the lower courts. At the same time, the apex court itself came out with a half way house verdict that I have referred to earlier.
To take up another judicial pronouncement at the lower level that was to be rejected later by the apex court, we can refer to the judgment delivered by the additional sessions judge A.R. Patel in Ahmedabad, rejecting the bail petition of the eminent social activist Teesta Setalvad. The judge said that there was “…enough prima facie evidence to frame charges against the accused…” The Gujarat High Court also rejected her petition on similar grounds. Yet, on her appealing to the apex body, a three-bench Supreme Court granted her bail and set aside the Gujarat High Court’s order describing it as “perverse.” (July 19)
I can go on quoting similar instances of judicial impropriety by our judges who preside over sessions courts, high courts – and even the apex court. But let me mention a particular case which exposes how their superstitious religious biases influence their announcements in courts – often to a ridiculous extent. On May 31, 2017, Justice Mahesh Chandra Sharma of the Rajasthan High Court came out with the astonishing announcement that peacocks did not mate, but sired their offsprings through tears ! He then went on to declare that cow was the only animal that inhaled and exhaled oxygen, and cow urine had “miraculous properties of destroying germs and preventing ageing.” Can one trust such a judge and expect a sane verdict from him ? It is quite evident that even after consumption of cow urine (which he must have had drunk, since he recommended it), it could not prevent him from sinking into premature senility.
It is quite evident that at the lower levels of our judiciary, the quality of district magistrates, trial judges, sessions court judges and state high court judges is generally poor. Yet, they are the first point of contact with the judicial system for the common Indian citizens . Ill-informed of the provisions of the statute book, they peremptorily pass judgments that doom innocent citizens to years of imprisonment. How do we protect the public from such judicial misconduct ?
Reviving a forgotten bill
There have been attempts in the past to find ways and means to correct errant judges, reverse their ill-construed verdicts, and warn their colleagues in the judiciary against violation of judicial norms. One such attempt was the formulation of the Judicial Standards and Accountability Bill, 2010, which was introduced in the Lok Sabha on December 1, 2010 by M. Veerappa Moily, the then Minister of Law and Justice in the Union cabinet. Apart from laying down judicial standards and demanding accountability from judges, the bill also provided for the establishment of mechanisms for investigating individual complaints for misbehavior or incapacity of a judge of the Supreme Court or High Courts. It also provided a mechanism for removal of judges. The bill was passed by the Lok Sabha in March, 2012. But it could not be taken up for discussion by the Rajya Sabha, as Parliament was adjourned.
Can our legislators have a look at that bill, re-introduce it in Parliament and among the public for an open debate, and consider its re-enactment – with whatever modifications that they may feel necessary ?
Sumanta Banerjee is a political commentator and writer, is the author of In The Wake of Naxalbari’ (1980 and 2008); The Parlour and the Streets: Elite and Popular Culture in Nineteenth Century Calcutta (1989) and ‘Memoirs of Roads: Calcutta from Colonial Urbanization to Global Modernization.’ (2016).
