Letter to CJI of Kerala dtd 18/11/2004

8/14/2019 Letter to CJI of Kerala dtd 18/11/2004

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UNDER CERTIFICATE OF POSTING

Maj (Retd) P M Ravindran 2/18, 'Aathira'Tele: 0491-2576042 Kalpathy-678003

E-mail: [email protected]

[email protected]

File: 181104-cjk-judicial reforms 18 Nov 2004

The Honble Chief Justice

High Court of Kerala

Ernakulam

REFORMING OUR JUSTICE DELIVERY SYSTEM

This letter is being addressed to you in your capacity as the competent authority responsiblefor maintaining the health of this system. I am of course one who is affected very very badly

by its present very very poor health. My aim here is to highlight certain maliciousness

manifest in the system and suggest some surgical measures needed to set them right.

Contempt of Court Act anathema to the very concept of democracy.

I quote the National Commission to Review the Working of the Constitution (NCRWC): the

crucial failure is the innate resistance in governments and governmental processes to the

fundamental article of democracy, viz. that all power and all authority flows from the people and

that all public institutions are meant solely to serve the public interest. The assurance of the dignity

of the individual enshrined in the preamble of the Constitution has remained unredeemed; From

this fundamental breach of the constitutional faith flow almost all our present ills. The first and the

foremost need is to place the citizens of this country at center-stage and demonstrate this

prioritization in all manifestation of governance'.

In this context, of the three -the law-making, law-executing and law-interpreting- organs of the

constitution, the law-making is the best, the executive, the next best and the law-interpreting, the

worst. The reasons are obvious. It is only the law-making politician who actually reaches out to the

people, at least on the eve of elections, and demonstrates his accountability to them. Even theadministration, the only one that can fail to deliver for want of resources, is responsive to the

extent that a lot of things get done in a predictable manner and within time frames that are

specified. To clarify this issue of resources, consider the case of a town having 10 road junctions

needing to deploy traffic police. In this case, unless 10 traffic policemen are available at a time the

traffic in the town as a whole can be adversely affected. Or, consider the case of regulating a

crowd. Depending on the strength of the crowd, the strength of the police force also has to be

comparable to ensure that nothing untoward happens. Anything less could result in turmoil.

Coming to the judiciary, leave alone the concept of accountability it is difficult to identify even any

sense of responsibility. I quote the NCRWC: 'Judicial system has not been able to meeteven 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'.

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Still, in spite of all these, it is only the Judiciary that has been given unmerited and unwarranted

shelter under a perverse Contempt of Court Act. While repealing this Act may be in the domain of

the law-maker, there are any number of cases where courts have held legislations, in whole and in

parts, invalid. The Contempt of Courts Act is one which can and should be abrogated by the

judiciary itself in toto.

What we need in this democratic country is a Contempt of Citizen (Prevention of) Act and we need

it urgently too. Given the activist role the judiciary has taken on itself, I suggest that the legislators

be directed to bring in such a legislation without further delay.

Judicial accountability and the National Judicial Commission. A former CJI is on recordthat 20% judges are corrupt. Another CJI moaned that there is pressure on the Hawala Bench. Yet

another one expressed helplessness in tackling an instance of mass leave by high court judges.

Some CJsI, after demitting office, have even gone abroad and advised foreign governments to

avoid taking issues to Indian courts since the delays are preposterous. One CJI, shortly after

retiring, came to Kerala and passed some comments which, had it been made by anybody else,would have landed him/her behind bars for contempt of court. Then of course there are the

Mysore, Rajasthan and Delhi cases reportedly involving the judges of the high courts there. Suffice

to say that the need for a National Judicial Commission to try judges has been amply established.

When even the President of India has asked his office to be brought under the

purview of the Lok Ayukt, it is disconcerting that the judiciary has not responded

positively to this need of ensuring transparency in its functions and integrity of

conduct of its members.

Judicial Accessibility. While the law-makers have reportedly favoured the establishment of

regional benches of the apex court and additional benches of the high courts in order to mitigatethe problems of justice-seekers to whatever extent such a measure would help, the judiciary does

not seem to be enthusiastic about it and is even denying the need for such a measure. In the case of

Kerala, though the Government of Kerala is in favour of establishing the bench at Thiruvanantha-

puram, the judiciary needs to take cognizance of the fact that when litigants from Thiruvanantha-

puram can come to Ernakulam, attend the court proceedings and return to their homes the same

day such facilities do not exist even for litigants from Kozhikode which is located centrally in the

Malabar region. Thus ground realities dictate that a bench of the High Court needs to

the established at the earliest at Kozhikode. Similarly, regional benches of the apex

court also need to be established in such a manner that litigants can travel overnight by train,

attend the court and return the next night.

The Judicial process.

Ms Arundhathi Roy was modest in declaring that in our courts the process is worse than the

judgement. (Photostat copy of a letter received from a group of aggrieved consumers along with a

translation of the text is attached for your perusal. The identities have been masked because it is

not considered relevant.) Some key aspects of this process, their implications and suggested

remedies are given in the following paragraphs.

Listing of cases. This is one area that needs to be spruced up on a war footing. One is shockedby the number of cases listed before each judge everyday when only a meagre fraction of this

number is actually heard and decided on. The percentage of cases adjourned, for whatever reasons,

would easily be of the order of 80 to 90%., implying that if 100 cases are listed 160 to 180

litigants, excluding witnesses, are bound to return after having wasted their resources-time, money

and energy- for no fault of theirs. This is one of the most easily solved problems because it would

not be difficult to reduce the number of cases listed for a day depending on the competence of the

judge and catering for a margin for lapses on the part of the litigants themselves. I would suggest

that if a judge can hear only 10 cases then not more than 15 cases should be listed.

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Calling the cases listed for the day in a chronological order will also help the

litigants to track their turn without the need to remain tensely attentive throughout

inside the court hall.

Personal appearance of litigants/representatives. This is another area that can be cleaned up

with a bit of diligence on the part of judicial authorities. Except in criminal cases involving large

number of witnesses and especially in cases involving only documentary evidence, the need for

the affected parties to appear before the court should not arise more than once or in

the worst case twice. The Consumer Protection Act (CPA) when enacted in 1986 was a more

effective piece of legislation than it is now after two amendments. The reason is simple. When 5

parties the petitioner, opposite party/parties, the judge(s), the advocates for the opposing parties-

are involved in a case absence/unpreparedness of any one party affects the progress of the case

adversely. This problem can be overcome ONLY by reducing the statements of the

parties to writing and the judges studying them independently, noting observations

and seeking clarifications in writing. The affected parties may be summoned only oncebefore deciding the judgement and may be once more when passing the orders.

Involvement of advocates. It is shockingly true that in our courts advocates for the opposing

parties in any case can find rules/ precedences 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 the 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 much 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 materialize. The reasons

are anybodys guess. But there was certainly an opposition to it from the Bars. However the logic

holds good even today and it applies to regular courts as much as to consumer courts.

Citizenscharter and working hours. As with government offices delivering various services

of the government, the courts also need to publish Citizens charters giving out the details of the

qualitative and quantitative norms and cost for their services. This will include displaying the

working hours of the courts, approximate number of hearings, time frame for completion of a casebased on the clause on which a charge has been framed and the authority who may be approached

in case there is any default in following the Charter.

Grading of advocates and establishing norms for fees. To mitigate the injustice in

economically weaker litigants not getting the services of competent advocates, there is a need to

grade every advocate by his/her specialization, success rate etc and fix the fees

accordingly. Then it should be mandated that the economically better off litigant can only hire the

services of an advocate who is in the same category as the advocate hired by the economically

weaker litigant. Since these may fall within the purview of procedures it is hoped that the courts

have the jurisdiction to accept and implement them.

Irrationality and unfairness of decisions. There are any number of cases where the decisions

are patently devoid of reason, leave alone fairness. There is an order of the Kerala High Court in a

particular case making Section 56 of the CPC applicable while passing orders under Section 27 of

the Consumer Protection Act. This in effect actually excluded women as a whole from the punitive

provisions of a period legislation! Or, in other words, it literally gave women a license to cheat and

get away with it! And there are similar orders of the apex court which one finds difficult to believe

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have actually been passed by supposedly learned judges. For example, 'courts have jurisdiction

to decide right or to decide wrong and even though they decide wrong, the decrees

rendered by them cannot be treated as nullities' and 'there can be no interference in

revision merely because the decision is erroneous in law or in fact where there is no

error pertaining to jurisdiction'. I can quote similar instances in cases which I have personally

pursued in consumer disputes redressal fora / commissions and even the regular courts.

Conclusion. It would be nave on my part to presume that our justice delivery system will

improve with writing a letter of this nature. It would be my effort to pursue this with a satyagraha

in front of the High Court of Kerala at Ernakulam on 31 Dec 2004 and 01 Jan 2005. I shall be

approaching all civic society groups that I know of or heard of, for whatever support they can

offer. I am sure that the language of this letter is modest enough to convey the grim facts that

needed to be conveyed. It is just in keeping with the dignity of a law-abiding citizen who

according to our Constitution holds the highest office of the land. I quote the NCRWC : 'The

highest office in our democracy is the office of citizen; this is not only a platitude, it must translateinto reality'.

I shall be grateful if the contents of this letter is disseminated amoung your companion judges.

Looking forward to a favourable response.

Regards and best wishes.

(P M Ravindran)Major (Retired)

Copy to:

The Honble President of India - by e-mail

The Honble Prime Minister of India - by e-mail

The Honble Chief Justice of India - under Certificate of Posting

The Leader of the Opposition in the Lok Sabha - by e-mail

The Honble Governor of Kerala - under Certificate of Posting

The Honble Chief Minister of Kerala - by e-mail

The Leader of the Opposition in the LA, Kerala - by e-mail

Media - by e-mail

Civic Society Groups - by e-mail

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TRANSCRIPT OF THE LETTER FROM THREE CONSUMERS PURSUING A COMPLAINT

IN THE CONSUMER DISPUTES REDRESSAL FORA / COMMISSION

From

1. xxx

2. xxx

3. xxx

To

yyy

Sir,

We are persons who had approached the Consumer Disputes Redressal Forum with a complaint of

being charged service charge for local calls made from public telephone booths. We got afavourable verdict from the Forum. But that order has now landed us in a more problematic

situation. The opposite parties have, with the support of the Booth Owners Association, filed an

appeal at the State Commission. If the lower court had dismissed the case then atleast we could

have ended the matter there! We are worried about the financial burden of pursuing the case at theState Commission. The case is scheduled for xxx at Ernakulam.

For a matter of Rs 2.00, each of us have already spent more than Rs 1000.00 and we may needabout Rs 10,000.00 for the three of us to attend the hearings till the case is disposed off. We do not

have any idea of how much money will be required to get justice in the matter of Rs 2.00.

We understand from different sources that your organization is doing commendable job in the area

of consumer service. We only have the choice to forget about the case here. But honestly we do not

want such a thing to happen either. That is why we are writing to you.

We request you to kindly represent us at the court and arrange to explain the things. We confess

that we do not have any other way out. It is this sort of delaying tactics and harassment that is

preventing people from approaching the consumer fora. We also pray that nobody ever thinks ofsuch an adventure in future.

Yours truly,

(signed)

1. xxx2. xxx

3. xxx

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Letter to CJI of Kerala dtd 18/11/2004

Documents

Transcript of Letter to CJI of Kerala dtd 18/11/2004