For the past few days the media has been full of reports about a young woman in Hyderabad, who was gang raped and then murdered by pouring petrol over her and setting her on fire. A phone call and the purchase of petrol led to the arrest of four young men. They were taken to the scene of crime for investigation and shot dead when they allegedly grabbed the weapons of the accompanying policemen and attacked them.

The man who masterminded the operation, Commissioner Sajjanar, is a hero to most Indians, especially to the relatives of the Hyderabad and countless other victims of similar crimes. Not surprisingly, some judges and advocates are baying for Sajjanar’s blood. The Chief Justice of India said revenge is not justice.

Seven years ago, another young woman was the victim of a similar crime in the national capital. Spontaneous protests rocked Delhi then and the then Chief Justice of India said that had he been not holding an office, he would have joined the protestors. The death sentence awarded to the convicts in that crime is yet to be executed. The Delhi Police is reportedly hunting for an executioner.

I have been a fairly keen observer and student of judicial functions and performance since my first experience in a court of law. I was neither a complainant nor a respondent, but an applicant seeking the permission of a Court of Wards (Family Court) to mortgage a piece of land to avail of a bank loan to construct a house. The land was my wife’s ancestral property, and had been divided in the name of my wife and our two children. Though the house was being constructed only in the portion assigned to my wife, the bank, as a matter of abundant precaution, wanted the court’s permission to accept the title deed, which also had the children’s portion of the property in different sections, as mortgage.

A senior advocate had already advised us that this permission was not required. But the bank insisted and convinced me that it was not difficult to get the permission by showing documents that they claimed had been secured within a matter of 15 days. An elderly advocate, introduced by a close relation, handled my case. After four years, I withdrew the case, not knowing whether it was the advocate or the judge who had cheated me.

I learnt two lessons from that experience: one, the judge-advocate nexus that exists in our courts and two, the arbitrary and arrogant conduct of the judge which even advocates cannot resist for fear of getting adverse judgments thereafter.

The next time, I was the petitioner in a case which started in a consumer disputes redressal forum (consumer ‘court’). The case was against a woman who undertook to develop a lawn in front of my house, took the money, and disappeared. She was tracked through a phone number she had provided during negotiations. The forum awarded me a favorable decision, but the appeal and revision petition in the State Commission dragged on for a decade, partly due to the fact that I had challenged a decision of the High Court in Jancy Joseph Vs Kerala.

In the above case, the High Court had held that women could not be arrested (under Section 27 of the Consumer Protection Act, 1986) in cases involving recovery of money. This was based on Section 56 of the Civil Procedure Code, 1908. Shockingly, the same court had added that (in the case of others, that is, men) ‘the means of judgment debtor need not be considered when the power under S 27 is exercised for recovery of money’. It was shocking because, while the original provision of the Civil Procedure Code (CPC) was less discriminatory, this judge had added to the discrimination based on gender. This rendered more than half the population immune to the penal provisions of the Consumer Protection Act (CPA). This, when the Constitution promised non-discrimination on the basis of gender.

Another shocking verdict came when a division bench of the same High Court, in Mary Chacko vs Jancy Joseph, held that while enforcing the orders under Recovery of Debts Due to Banks and Financial Institutions Act 1993, women CAN be arrested because ‘there is a clear basis for treating the public dues different from the purely private’. Does one need to elaborate on the preposterousness of helpless individuals being denied justice while more powerful institutions are favoured in recovery of dues?

Coming back to my case in the High Court, I got a crisp two sentence judgment after almost six-seven years. It stated that the matter has been dealt with in another case and decided against the petitioner, hence my petition is dismissed. I never got a copy of the decision in the other case.

The lessons I have carried from this experience are: one, the decisions of our judges could be patently unfair and devoid of logic; two, the advocate had taken Rs. 5000/- as fee (almost two decades back) and had delayed filing the petition till I paid the complete amount. As per a schedule on fees prescribed by the High Court and applicable from February 16, 2017, the fees are: filing expenses Rs 1500/-, Legal Fee-Minimum Rs 2500/- to Rs 4000/- and maximum Rs 10,000/-; three, no receipt was provided for the fees I paid; four, even when I suggested to the advocate that since I was challenging an existing verdict of the court the petition should be considered by a division bench, he was dismissive of it; five, advocate’s failure to get me a copy of the judgment mentioned in the current verdict was dereliction of duty or objectionable professional ethics, whatever one might call it.

Subsequently, when I had sought a copy of that judgment under the RTI Act, the Public Information Officer of the Court had denied it claiming that it was a judicial matter and was exempted from disclosure as per the RTI Rule of the High Court.

Thereafter I have been a keen student of the performance of our justice delivery system headed by the judiciary.  Most of what I have experienced or learnt are available as blogs at raviforjustice.blogspot.com. One important blog is a letter written to the then Chief Justice of the Kerala High Court on Nov 18, 2004

(http://raviforjustice.blogspot.com/2011/02/reforming-our-justice-delivery-system.html)

Beginning with Contempt of Court, through judicial accountability, National Judicial Commission, judicial accessibility, listing of cases, personal appearance of litigants/ representatives, involvement of advocates, citizens’ charter and working hours, grading of advocates and establishing norms for fee, and the irrationality and unfairness of decisions – the blog captures a layman’s perception of how the judiciary is performing and how it should. 

This is what I wrote about the involvement of advocates:

It is shockingly true that in our courts, advocates for the opposing parties in any case can find rules/ precedence to support their obviously opposing stands. Ultimately, it would appear to an onlooker that the judge can as well deliver his order by tossing a coin! Further, it is not practically possible for litigants to hire the services of equally competent advocates. Thus the richer person tends to get undue advantage. This is quite evident even in ‘Consumer Courts’ where the complainant is often a simple, law-biding citizen of modest means and the opposite parties are establishments /organizations with far greater resources at their disposal.

When the second amendment to the CPA was being contemplated, there was a suggestion that opposite parties should be allowed to engage advocates only if the complainant has engaged the services of an advocate. Unfortunately, it did not happen for reasons not known. But there was certainly opposition from the Bar. But the logic holds good even today and it applies to regular courts as much as to ‘consumer courts’.

After my letter to the Chief Justice of the Kerala High Court (Nov 18, 2004), I did satyagraha is front of the High Court of Kerala with just one question: who will judge the judges?

After the infamous press conference held by four senior most judges of the apex court some years ago, I wrote a three-part series on the judiciary:-

1) Judges revolt: The last nail on the coffin of judicial credibility?

http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4562

2) Judges revolt: What ails our Judiciary?

http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4571

3) Judges revolt: Can our Judiciary be saved?

http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4581

Speaking of justice delivery through courts and police, there is an interesting interim report (March 4, 2009) by former Supreme Court judge Sri Krishna, on the confrontation between advocates and police in the Madras High Court complex on Feb. 19, 2009. The report is documentary proof, if such proof is needed, of how biased and unreliable our judges are.

(https://www.slideshare.net/raviforjustice/judiciary-chennai-hcadv-police-confrontationinterimreportsreekrishna)

A decade ago, Transparency International published a survey on corruption, listing the police and judiciary among the top. The police have not been able to counter it but the judiciary, I understand, has invoked the Contempt of Court Act against those responsible for publishing the report.

Purely from personal experience, I have found the police to be fairer in their dealings than judicial officers. Bad hats are there, but most policemen are victims of pressure from higher echelons to do things that they would not do left to themselves. Such an excuse definitely does not apply to our judges.

To conclude, the judiciary is the most failed institution in the country and should also be held responsible for the preposterous performance of other institutions of governance. What has happened practically is that our governance has become a system that does not do anything it is supposed to do, and does everything it is not supposed to do. Anyone who is somebody in government can commit any crime of omission and commission and leave the citizen to seek remedy from the courts. And knowledgeable citizens know better than to approach any court for justice.

With that, I rest my case.