Law makers without any prescribed qualities, qualifications or experience, their men Fridays (popularly known as bureaucrats, who are required to help them in decision making by collecting and collating data and maintaining records) without any accountability and a judiciary which has the scope for the most whimsical decision making being held not only without accountability and beyond criticism but also protected by a totally illogical and weird armour called contempt of court, are the essential features of our Constitution, the Bible for our governance!

Among the three organs of our Constitution the law-makers are controlled by the people, bureaucracy (because without the active support of the bureaucracy no politician can do any wrong!) and finally the judiciary; the law-enforcers are also controlled by the law-makers and the judiciary. And then there are the ears and eyes of the people – the media, waiting to sensationalise all news involving the misdemeanor of these authorities.

In spite of such strict supervision and control, all that we can hear these days is about the politician-bureaucrat-underworld nexus even though the fact remains that none worth the name from this unholy nexus has ever been punished by the holier-than-thou judiciary. So now think how bad a system can be which is not only NOT subject to supervision but also kept beyond critical observation. Isn’t our judiciary just that? Do I need to recapitulate the quip: power corrupts and absolute power corrupts absolutely?

First things first. The answer to the question in the title is a big NO. The judges’ revolt is only the last but one nail on that coffin. What will be the last nail?

Even as a child one heard elders exclaiming that it is a blessing to pass through this life without entering a police station or a court. Though one was too young then to understand what it meant, it was in the first decade of this millennium that Transparency International came out with their survey results which clearly indicted the police and judiciary as the most corrupt institutions in India. I understand that TI is facing contempt of court proceedings for publishing that report!

Even by its own admission, the judiciary is a failure in our country based on the principle of justice delayed is justice denied. And the only reason the ‘learned’ judges suggest is the poor judge-to-population ratio which any rational human being can see is meaningless. The population figures, particularly in our country where a significant percentage is living below poverty line and is even illiterate, are irrelevant. What matters is the number of cases filed and this is significantly low leading to a fairly high judge-to-docket ratio. Sample data for USA vis-à-vis India is as follows:

One doesn’t need these statistics to prove this point. One need just visit any court to see how poor the docket management is, leading to criminal waste of time in everyday functioning of the courts. Almost half the time is wasted in a process called mustering where hundreds of cases listed for the day are called out and, after ensuring that the concerned parties are present, most of them are adjourned without even being taken up for any hearing! As H.D. Shourie observed (‘How long before justice comes?’, The New Indian Express, 4 Dec 2004):

-        It is not possible for a judge to seriously hear and decide more than two or three cases a day ... no judge should have more than 30 matters listed before him/her on a given day.

-        Lawyers are accused of employing delaying methods, but no lawyer can succeed if the court refuses an adjournment.

In this context, it needs to be highlighted that no institution treats free citizens so shabbily as our judges because they summon you, even under threat of arrest, and then order you to come back on a later date without progressing your case even by a minute step! Tareeq pe tareeq is the hall mark of our judicial process.

Even at the end of preposterous delays does the justice-seeker get justice? Even here the answer is a big NO, when whetted on the touchstone of ‘justice should not only be done but seen to be done’. The National Commission to review the working of the Constitution, a judiciary-headed, judiciary-heavy body, stated in its Report of 2002:

-        Judicial system has not been able to meet even the modest expectations of the society. Its delays and costs are frustrating, its processes slow and uncertain. People are pushed to seek recourse to extra-legal methods for relief. Trial system both on the civil and criminal side has utterly broken down.

Also: Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice.

The Supreme Court itself admitted in 2009 that it had wrongly sentenced 15 people to death in 15 years. In 2012, 14 retired judges had reportedly written to the President, pointing out that since 1996 the Supreme Court had erroneously given the death penalty to 15 people, of whom two were hanged –‘You were wrong, My Lords’

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If this is the case with capital punishments which are awarded in the rarest of rarest cases in a country which unequivocally states that even if a thousand criminals escape one innocent shall not be punished, does one need to elaborate further?

The judiciary always has the following specious logic to justify its wayward decisions:

-        One, they can decide only on the facts and laws brought on record in the circumstances of the case; and

-        Two, since there are two contenders in any case and the verdict will be in favour of only one, the other party will feel discontented.

I would like to counter this by highlighting the following issues.

In the Right to Information case involving judges’ assets, where the then Chief Justice of India had claimed that his office was out of purview of the RTI Act, what were the facts and laws needed to be brought on record? The law has been and is absolutely clear that the office of the Chief Justice is very much within the ambit of the law. And it has been upheld not only by all the Information Commissioners of the Central Information Commission but also by a single judge and division bench of the Delhi High Court. Why is the apex court sitting on this appeal for so long?

Even while claiming to be transparent in its functions merely because of the open court hearings it conducts, why have the courts excluded the judicial functions of the courts from the purview of the RTI Act?

There are many cases reported in the media of serious crimes by judges (Mysore sex scandal, Rajasthan sex for favourable verdict, Non-bailable warrant against the then President and CJI, etc.) where not only the alleged offenders where not punished but the journalists were hauled up for contempt of court. It is impossible for a rational citizen to believe that national media would publish such reports without any basis and with clear intention or even conspiracy to defame the judiciary.

What has happened to the case of illegal encroachment of land which led to P.D. Dinakaran almost being impeached? He resigned at the last moment, but was that sufficient punishment; could it even be considered punishment? Has the encroached land been retrieved? Or has the judiciary no responsibility to ensure that public trust is protected?

There are judges who while holding the office of the CJI or on retirement from that office have gone public with observations that 20 per cent of judges are corrupt, and have even reportedly advised foreign governments not to file cases in India because it will take an unduly long time to get a verdict. Did they not amount to contempt of court? Isn’t it a fact that advocates who take to the streets to protest are unambiguously proclaiming their lack of faith in the judiciary?

We, the people, are aware of a senior advocate having submitted a list of 16 former CJI’s, of whom eight were allegedly ‘definitely corrupt’.

While a citizen like me believes that the Contempt of Court provisions of the Constitution and laws made under it are totally anti-democratic and the only context that justifies them are cases where the orders of the courts are not complied with, one notices the brazenness with which real contempt of court cases are not pursued, leading to litigants who have favourable decrees running from pillar to post to get them executed, and those who criticize the judiciary for genuine reasons being hauled over the coals.

It was appalling that a constitutionally enacted legislation like the National Judicial Appointments Commission was arbitrarily thrown out by the apex court. The judges seem to forget that we, the people, the only sovereign entities in a democracy, have shared part of the sovereign powers - that of law making - only with our political representatives and the process laid down is fairly broad based to ensure objectivity. A few judges dumping it like so much trash is preposterous. While checks and balances is a much bandied term, what we see on the ground is the judiciary behaving like it is god’s only gift to the population.

We come back to the four judges who have revolted against the person holding the highest office in the judiciary. Obviously, it falls in the category of crime under the Contempt of Court Act, as it now stands. While judge Karnan’s case had merits in the allegations because they were more substantial and specific, these judges have cast aspersions on the Chief Justice of India merely on perceived wrong doings. Do they mean to say that the CJI is so incompetent that he cannot even assign cases to appropriate benches or are they alleging that he has biases and vested interests? As an ordinary citizen, I find their claim that the CJI is only first among equals contradicting their claim to decide certain cases simply because they are senior to the others!

As judge Karnan’s case has set the precedent that it is not only impeachment that is possible with judges of courts of records for their deviant behavior, there is an urgent need for the CJI to constitute a bench consisting of himself and any six judges of his choice to try these judges for criminal contempt. The last nail on the coffin of judicial credibility will be if they are allowed to go scot free!

The author is a military veteran; the views expressed are personal