For 99.99 percent Indians, seeking judicial remedies is impossible. Going to court is full of hurdles, such as:
• Terribly expensive lawyers
• Tareekh pe tareekh i.e. endless adjournments
• Stay Orders for flimsy reasons
• Difficult and time-consuming court procedures
• Slavish court language from the colonial era
• Frequent court vacations that breaks the flow of justice and adds to the delay
We all know how the judiciary nullifies many administrative and quasi-judicial processes. For example, civic bodies are almost helpless to demolish illegal structures and evict encroachers because courts routinely stay the demolition and eviction notices without applying their mind to the long-term consequences. Numerous well-reasoned orders of Information Commissioners are rendered ineffective by Stay Orders every month.
But we dare not give the judges any feedback. Why? Because we are afraid of being jailed for contempt of court. We fear the unquestioned authority of the judges and their power to harm us, either directly or through the cases we are involved in.
See the irony: We are not afraid of criticizing the Prime Minister and the President. But we tremble at the thought of speaking the indisputable truth to judges.
Friends, let us stop being afraid. Let us speak up and clearly state the inconvenient truth. Let us ask the judiciary to reform itself. Please remember the courts exist only to serve the common man; there is no other reason for their existence. As they are consistently failing to serve the common man, it is time for We The People to point out the areas of failure, and ask for immediate changes.
Eight of us, including five advocates practicing in the Supreme Court, Delhi and Bombay High Courts, have decided to speak out. On 25th December, we will dispatch hard copies of this letter to the Chief Justice of India, the Chief Justice of each and every High Court, President of the Bar Association of all High Courts, the Union Law Minister, and the Law Commission of India.
The below letter draft has been settled after many revisions, with key inputs from Supreme Court advocate Abdul Rasheed Qureshi and Bombay High Court advocate Ameet Mehta.
We urge you to join us by being signatories to this letter. Please send your email address and contact number for inclusion as signatories to email@example.com .
FINAL DRAFT OF LETTER
25th December 2011
Hon. Justice S H Kapadia
Chief Justice of India
c/o The Registrar
Supreme Court of India
Tilak Marg, New Delhi-110 001
Hon. Chief Justices of All High Courts
c/o The Registrar General
President, Bar Association
High Courts of all states
Shri Salman Khurshid
Union Minister for Law & Justice
South Block, New Delhi
Hon Justice P V Reddy
Chairman, 19th Law Commission
2nd floor, the Law Institute Building
Opposite Supreme Court
New Delhi 110 001.
YOU HAVE PLACED JUDICIARY BEYOND THE REACH OF THE COMMON MAN,
ESPECIALLY SENIOR CITIZENS.
PLEASE REMEDY THIS SITUATION.
We The People of India are addressing ourselves to you as the administrative head of India’s Judiciary, and not in your judicial capacity. Sir, before you retire in a few months, we hope you will apply your wisdom as an enlightened administrative reformer and do away with some archaic judicial traditions that are harming our nation.
Sir, victims of the high-handed ways of the judiciary, such as defendants and petitioners, cannot speak out. They fear that your brother judges will harm their cause by issuing some arbitrary orders. We are speaking on their behalf.
India’s judicial machinery is no longer available to senior citizens. No senior citizen can file a case, as it is unlikely to reach final judgement stage before 15-20 years by when he/she will be senile or dead.
Common people – even reasonably wealthy ones — cannot go to court because it requires uncontrollable expenses of lakhs of rupees, which drain away their life-savings.
Over the decades, there has been a gross failure in administration of the judicial machinery. Many judges are pointing this out in their speeches at various forums. These speeches only remain good to hear, as nothing gets done afterwards.
The zealously guarded doctrine of Independence of Judiciary has ensured inability of successive governments and parliament to reform our judiciary. Only the judiciary can reform itself. The Supreme Court is the overall court of superintendence. Sir, the administrative powers needed to pull up the socks of the judiciary which are centered on you and you alone. If you don’t do it, nobody can force you to do it. What is worse, nobody can even raise their voice, criticize you for your administrative failure, and threaten to replace you with a more competent administrator, because that would invite Contempt.
Only you, Hon’ble Chief Justice of India, can initiate reforms of our judiciary, and the first step will be for you to candidly admit the judiciary’s flaws, and set out a roadmap with a timetable for change.
Regardless of whether we are currently litigants before any court, all of us are suffering from severe handicaps and frustrations in our daily lives because of the judiciary’s unavailability to us, and lack of the judiciary’s protection. Please heed our voices, because we are aggrieved stakeholders.
SOME PROBLEMS & PROPOSED SOLUTIONS:
Problem 1: Easy and indefinite Stay Orders. Sir, numerous well-reasoned judgments of lower courts, tribunals and quasi-judicial forums such as RTI Information Commissions are granted Stay for the asking. Various administrative orders and notices for demolition etc. issued by civic authorities, targeting unauthorized and illegal activity, are also indefinitely stayed. It requires great effort to get a Stay vacated. This nullifies various laws, creates a dead end for law enforcement agencies as well as law-abiding citizens, and creates widespread cynicism about lawful methods. Proposed Solution: Firstly, issue a directive that if a matter is stayed by any court, the case should automatically become fast-track. Please give short dates of maximum one-week intervals so that the party that has got a stay order does not enjoy undue benefit of judicial delay. The case should come to finality typically within three months, and in exceptional cases, six months. Secondly, make it mandatory that a stay order shall automatically lapse after six months have passed, so that the beneficiary of the stay does not seek refuge in delaying tactics.
Problem 2: Adjournments for the asking. The proceedings of High Court and all lower courts can be summed up in one Hindi movie phrase: tareekh pe tareekh (date after date). In Sessions and Magistrate’s Courts, the proceedings cannot even be understood. Undertrials and accused parties are summoned every 2-3 months, and sent back with a new date, clueless as to why their hearing did not happen. Their carefully submissions are not heard. Sometimes, if pressed, the court staff give flimsy explanations. Thousands of man-hours of the court, police and general public are being wasted, and as the years pass, memories fade, witnesses turn hostile, and justice becomes meaningless. Only lawyers gain from this ongoing delay. Proposed Solution: Please issue a directive mandating steeply rising penalty on both lawyers and parties for each successive adjournment sought e.g. first adjournment, Rs 2,000 penalty; second adjournment, Rs 5,000; and third and final adjournment, Rs 15,000.
Problem 3: Widely spaced dates. With dates that are sometimes six months apart, litigations drag on for years and decades – sometimes with the undertrial persons in judicial custody, denying them their fundamental right of life and liberty! Proposed Solution: Firstly, issue a directive mandating closely clustered dates of 15-30 days interval, and never more than a total of 10 dates. It is the studied opinion of many advocates that all cases in trial courts, High Courts and Supreme Court can easily be brought to finality in 7 to 10 dates. Secondly, make it mandatory to serve the opponents/respondents notice in advance, eliminating two dates at the outset.
Problem 4: Court of Surprises, not Court of Law. Hiding behind their ill-tempered behavior in court and their powers of Contempt, judges give utterly whimsical interim orders, reliefs and judgments that cannot be upheld by legal reasoning. Many well-reasoned orders and judgments of lower courts are struck down or re-opened by higher courts on flimsy grounds. Such judgments often favour influential or wealthy persons. Proposed Solution: Please set up a judicial audit mechanism to scrutinize suspicious judgments and their reasoning. Judges who do not reason well must be questioned and criticized by their own peers.
Problem 5: Astronomical charges of senior counsels, and network of kickbacks. Senior counsels are charging insane amounts, such as Rs 5-to-20 lakh per appearance. Even if they are merely required to stand up for a moment in court and request adjournment, they charge the full amount. They also charge several lakh rupees for a few minutes of consultation. If they appear in other courts, then the charges run into crores of rupees per appearance. Less-well-known advocates convince their clients to engage such senior counsels, in return of kickbacks. The clerks and juniors of such super-rich legal luminaries “manage” the courts, getting comfortable dates and bench re-assignments for getting “friendly” judges. Their face value and money power ensures even if the case has no merits, “strict” judges listen patiently to lengthy lectures from them before passing an order! Inspired by such senior counsels, lesser known lawyers hike their fees by leaps and bounds, taking justice out of the reach of the common man, and giving an undue advantage to the super-rich. Nowadays, only companies can afford lawyers. Proposed Solution: To make courts affordable to the common man, please impose a reasonable fee-structure on all lawyers practicing in every level of the judiciary, especially the higher judiciary. Those violating the mandatory fee-structure should be debarred from representing clients or appearing in court.
Problem 6: Culture of egotism and sycophancy. Lawyers continually pamper judges’ egos with servile colonial expressions like “Your Lordship”, “Milord”, “Prayers”, “We crave your leave,” “We humbly pray”, and “For this favour we will ever be ever in your debt”. Even court stationery comes with such slavish language, although the citizen is only asking for the rights guaranteed to him by the Constitution, and not begging for out-of-the-way favours. Judges deny justice to lawyers or citizens who resist this culture. Citizens who appear before court as Party-In-Person to represent their own cause are bullied and harried. This promotion of slavishness is a violation of fundamental rights of equality, life and liberty within the premises of the judiciary. Proposed Solution: Please ban such unwholesome language. Please ensure that henceforth, in speech and in writing, all judges are addressed only as ‘Sir’.
Problem 7: Civil contempt of court, giving false evidence, perjury etc. are taken lightly. Although the courts are quick to punish criminal contempt i.e. breach of court propriety, they are not offended when their judgments are disobeyed. Also, they wink at false documents, false evidence and outright lies in court. This gives crooks the upper hand over upright citizens. Proposed Solution: Please set aside a clear time-slot in every court for ensuring implementation of court orders, and taking up issues of false evidence etc.
Problem 8: Colonial practice of lengthy vacations & short working hours. Lower courts work for about 240 days in a year, High Courts for 210 days and Supreme Court for 188 days only i.e. 50% of the year. In summer, the entire judiciary – judges, lawyers, clerks and all – shuts down for 5 to 7 weeks of continuous holidays. The Supreme court goes on vacation from May 10th till June 30th. No other organ of administration takes such a luxury. The working hours per day are as little as 3-4 hours in many courts. In view of the rising pendency of cases, such luxurious working habits are not only unconscionable, but a waste of scarce national resources (the court infrastructure), and a criminal neglect of We The People! Proposed Solution: Firstly, please slash the number of holidays to 60 days, (which is still far more than anybody else takes nowadays, whether in government or in private sector). Secondly, let these vacations not be taken en masse, but in a staggered way so that the entire court does not shut down. Last but not least, please mandate that judges at every level must hear cases in court for at least six hours per day.
Sir, many citizens’ forums have patiently compiled and put across these points for several years, but the judiciary has been ignoring them. Everybody’s patience has reached a limit now.
We hope that before you retire, you will seize the opportunity given to you by your high office for implementing these urgently-needed reforms. And we hope you will frankly voice your intentions and enable right-minded citizens to strengthen your hands.
1. A Rasheed Qureshi, 7838408078 firstname.lastname@example.org, Advocate, Delhi
2. G R Vora, 9869195785 email@example.com, Pathologist, Mumbai
3. Krishnaraj Rao, 9821588114 firstname.lastname@example.org, Journalist, Mumbai
4. Aires Rodrigues, 9822684372 email@example.com, Advocate, Goa
5. Ameet Mehta, 9821283232 firstname.lastname@example.org, Advocate, Mumbai
6. Aryan Yadav, 9717468613 email@example.com, Advocate, Delhi
7. Rameez Tauheed, 09891664368 firstname.lastname@example.org, Engineer, Delhi
8. Vinod Sampat, 9324038095 email@example.com, Advocate, Mumbai