29 May 2017

Justice Karnan Episode Foregrounds the Need for Holistic Judicial Reforms

by K Rajasekharan
Advocate, Thrissur Bar

Leaving aside the flamboyant drama surrounding the issue what Justice Karnan episode foregrounds is the urgent need to save Indian judiciary from its multiple organ failure through a set of holistic and integrated judicial reforms.
The need to set up a credible statutory mechanism to choose right kind of professionals to the judicial posts and an effective system to investigate charges of misdemeanor, corruption and unfairness of judges, are the top priority items that need immediate attention. The episode took an ugly turn as judges on both sides of the tussle have no majesty or maturity required for the positions they hold. Time and again Justice Karnan evinced that he is an unsuitable person for a majestic judicial post. The other side, which made the issue so ridiculous with unnecessary emotional outbursts at times, also deserves ridicule.
Select right persons as judges
Unless right individuals with proper knowledge, ethics and sagacity are chosen for the position of judges endowed with high responsibility, it would practically be impossible for our country to keep the judicial system running intact. Everybody including the Supreme Court (SC) admitted the flaws of the collegium system and the impropriety in its system of selection of judges but the judiciary preferred to retain it with all its flaws and ignored every proposal put forward to replace it with a comparatively saner, more accountable and more transparent institutionalised mode of selection of judges. The demand for judicial accountability is long standing but remains sidelined or almost neglected.
The judges, who have been selected through collegeum with no much merit, show instances of misbehavior or deviant behavior which neither the judiciary can accommodate nor the people at large can withstand them for long. If the selection does not bring right incumbents to the bench it is impossible for the system to tame and keep them in tact without indulging in corruption or other maladies, while keeping them insulated from any kind of external control or pressure so as to ensure their independence.
The Justice Karnan issue originated from Justice Karnan’s allegations of corruption which he said to have come across in his close vicinity. The allegation, after a series of instances of intemperate behavior from both sides, was counter balanced by initiating contempt of court proceedings against him by setting up a seven judge bench. The reason for Justice Karnan’s punishment is not spelt out clearly but a sentence was issued without framing charge, trial and conviction so as to make it difficult for Karnan to defend the case as Indian criminal jurisprudence stipulates. How an allegation of corruption turn into a contempt of court case is not yet clear to many observers.
No disciplinary provision except impeachment
Indian Constitution or the statutes do not prescribe any punishment for judges except their removal though impeachment.
Impeachment is more a political action than a legal action or a way of punishment. In effect, the constitution is unreasonably or unequally favourable towards SC and HC judges. The judges are therefore liable to fall prey to corruption and misbehavior and they need to be subjected to some sort of penal action for their misdemeanors without compromising on insulating them from outside influences for maintaining their judicial independence.
The Article 124(4) of the Constitution stands against proven misbehavior, bribery and crimes involving moral turpitude of Judges and the substantive procedure for impeachment of them in case they involve those vices. Similarly Judges (Inquiry) Act 1968 provides for the procedural formalities of investigation and inquiry. In fact, the Judges (Inquiry) Act, a law without much teeth, has failed miserably in its purpose of disciplining judges. Since no successful impeachment could be done in the last seven decades, punitive action against judges is almost non-existent in India.
In 2006 a legislative bill titled Judge (Inquiry) Bill 2006 was formulated based on 195th report of the law commission of India and introduced in the Lok Sabha on 19th December. Later in 2008 another Judges (Inquiry) Amendment bill was introduced for establishing a National Judicial Council to inquire into allegation of misbehavior or incapacity but it was not pushed forward. In December 2010, the Judicial Standard s & Accountability Bill 2010 was introduced in Parliament to lay down judicial standards, to provide for accountability of judges and to establish expedient mechanism for investigation into complaints and misbehavior of judges of the SC &HC. But now no such reform is in consideration.
Therefore in order to regain public confidence in judiciary, credible statutory machanism for investigating the charges against the judges is an utmost necessary right now. The only mechanism now exists for enquiring allegation against Supreme Court and High Court judges is a three member committee of seniour judges, with no statutory power, constituted by the Chief Justice of India(CJI). The committee can do nearly nothing except requesting the judges to resign, even if charges are examined and found correct. Some accede to the request but some do not. Corruption, sexual extravaganza and other kinds of misbehavior of judges come up so frequently as complaints.
Corruption in Indian judiciary
In 2001, S P Baruchia, then Chief Justice of India, lamented that 20 per cent of the judges bring the entire judiciary into disrepute. Since then, at least eight high court judges had charges leveled against them, two of them faced removal and two resigned. Later Senior Advocate Shanti Bhushan as a party to implead in a contempt of court proceedings against his son Senior Advocate Prasanth Bhushan said to have stated that eight of the previous sixteen Chief Justices were corrupt and the names were handed over to the court in a sealed cover which has not been opened so far. Justice S H Kapadia, former CJI, was of the opinion that the judges should have not only constitutional morality but also ethical morality, as well.
Dealing with erring judges
In criminal offences against judges, the police can register an FIR but only after getting permission from the Chief Justice of India/Chief Justice (CJ) of the respective High Court (HC). No special protection as of now exists for them except the requirement of the above said permission. But fighting a criminal case against a judge is a tough task. In Provident Fund Scam case, Justice K G Balakrishann did not give permission to register an FIR for two years. Justice Nirmal Yadav who was later charge sheeted for a criminal case known as cash at judge’s door scam for the first time in Indian judicial history and found to be fit to proceed with prosecution, by a there judge bench panel was transferred by Justice K G Balakrishnan on the last day of her retirement, after absolving her of the charges leveled against her. No action was later taken against her.
A judge can be removed only on proven misbehaviour but the scope of the term “misbehaviour “has not been defined in a well accepted manner. The judicial actions of judges are protected by the Judges (Protection) Act. In exercise of discretion in judicial functions by judges, no court nor any authority can interfere and restrict anything forming part of his judicial functions The exercise of judicial functions include the ruling of judges on issues of law and issues of fact, exercise of discretion at various occasions in trial, ruling on maintenance, alimony and sentence imposed, etc. Such an exercise of statutory authority or any bonafide action of a judge does not come under restrictive action by any authority.
Defining judicial misconduct
On judicial misconduct of judges, it is possible for a disciplinary authority to exercise some control. Such cases of misconduct broadly includes:-

  • inappropriate court room behavior,
  • failure to maintain decorum,
  • rude or abusive behaviour,
  • failure to dispose of court business subjecting to improper or illegal influence  interfering with attorney–client relationship,
  • displaying obvious bias etc. Lack of punctuality in observing court hours,
  • keeping away from work without leave,
  • reserving judgments against established norms,
  • jumping cause list and manipulating it,
  • adjournment for no reasons,
  • seeking cheap popularity trough media,
  • issuing absurd orders, etc.

The above listed are some of the examples of judicial misconduct but it is not an exhaustive list.
Filing a Complaint against a Subordinate Judge
Anyone can file a complaint for taking disciplinary action against a subordinate judge before the Registrar (Subordinate Judiciary), of the High Court. The complaint should accompany a sworn in affidavit and verifiable materials to substantiate the allegation as per the existing procedure.
On receipt of the complaint the Registrar will bring it before the Chief Justice and the Judge-in-charge of the district and seek an explanation from the accused Judge before taking a decision on the complaint. If the explanation is satisfactory no action is taken and the complaint will be closed. Otherwise action will be taken by a resolution of the administrative committee of the court in exercise of powers conferred on it under Article 235 of the Constitution. The High Court has to protect the judicial officers from motivated complaints but it cannot ignore any dishonest performance of a judicial member.
Similarly a complaint against a staff member can also be filed before the Registrar for appropriate action.
Complaint against SC & HC Judges
The SC has established an in-house procedure to take remedial action against Judges accused of misconduct and impropriety of the SC and HC.
A complaint against the judge can be examined by the Chief Justice, if directly presented before him. If the complaint is of a serious nature, he should seek the judge’s explanation. If no further action is needed on the file it will be closed. If a deeper probe is needed, the complaint will have to be sent to CJI with the response of the accused judge and he Chief Justice’s comments. If CJI finds the need for a deeper probe it will be referred to a committee of two Chief Justices and a Judge of the High Court to conduct an enquiry.
If the Committee finds reasons for his/her removal it would request the judge to resign or retire. Or else, the CJI will ask the Chief Justice not to give any work and put the matter before the Prime Minister to initiate impeachment process.
If CJI directly receives a complaint against a high court judge he should send it to the Chief Justice of that high court for further comments. On getting the comments, the CJI either closes the file if it is a frivolous one or take appropriate action as outlined above if it is of some substance.
Even though this practice does not have sound statutory backing, it will work somehow to some extent in restraining some of the errant judges but not all.

In short, Indian laws put almost no restraint on judges so as to insulate them from external influence and facilitate their independent judicial decision making but the recent incidents suggest that some of the judges produced by the improperly crafted collegeum system do not reflect the decency, decorum and majesty needed for such a majestic position. Therefore what is required right now in the context of Justice Karnan episode is make selection of judges foolproof and to establish a system for punishing or weeding out the wrong ones among the judges. Otherwise issues like this will crop up so frequently and the disease will spread contagiously damaging the entire judicial system.

NB : The article is originally published by the Lawyers India Club site. Click here to view the article.

23 May 2017

Arrest of an Accused: Not a must in every Cognisable Case

by K Rajasekharan
Advocate, Thrissur Bar

The issue that this article discusses is whether registration of a First Information Report (FIR) against an accused needs to be followed by his/her imminent arrest.

Nowadays, when an allegation of committing a cognizable offence comes up against a person - particularly a celebrity - there will be a public outcry for his/her arrest even though such an arrest is unwarranted in accordance with criminal jurisprudence or its practice.  Unnecessary arrests and unjustified pre-trial detention pose grave threat to many citizens accused of committing cognizable criminal offences.

The five member constitutional bench of the Supreme Court in Lalithkumari case categorically stated that the arrest of a person is not directly linked to the registration of FIR. The verdict states both are entirely different concepts operating under different parameters and if a police officer misuses his power of arrest, he can be tried and punished under Section 166 of the Indian Penal Code. Therefore a police officer should apply his mind independently while taking a decision on arresting anyone.  He should ignore the vociferous public outcry for arrest that goes just against what is stated in the statue book. Arrest and detention of the accused in custody is treated by people in general as a procedural punishment for the accused.

Indian laws on arrest, pre-trial detention and charge framing are in shambles or irreparable disorder. Those laws are of colonial origin. The Law Commission of India in its 177th report, by citing the statistics provided in the Third Report of the National Police Commission, points out that sixty percent of the arrests were unnecessary or unjustified. A major section of jail inmates were those unnecessarily arrested. Due to procedural tangles some of them are forced to languish in jail for long even without knowing the charge on which they were arrested - as charge framing by the court takes place pretty long after the arrest.

In a cognizable offence, the laws provide the police officer enough legal authority to arrest an accused and put him in lock up. Lodging an FIR - based on a credible information or reasonable suspicion founded on some definite fact in regard to the commission of a cognisable offence - is a must for arrest. But arrest is a discretionary power for the police officer to excericse. That needs to be exercised only when sufficient justification exists. However when an FIR is filed, the police usually spring up into action and arrest the accused unless the arrest is put on hold by political influence or by money in an unholy manner. The power to arrest is a lucrative source of money for the police. An arrest cannot be done without registering an FIR.  In fact, a mere allegation must end up in registering an FIR against the accused but not in his/her arrest. A police officer is not bound to arrest an accused even if he has committed a cognizable offence and an FIR is lodged. The Criminal Procedure Code (CrPC) does not per se provide the police officer an unqualified authority to arrest an accused. That means an accused has committed a cognizable offence is not a reasonable ground for making an arrest. In Arnesh Kumar V State of Bihar & another, the Supreme Court said, “We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so”. 

Arrest is in fact an encroachment on the freedom and liberty of the person so arrested. It infringes his fundamental right granted by the constitution which can be restricted only in a limited manner. Therefore the power of arrest is to be exercised only with great caution and suspicion but not on vague surmises. Investigation can proceed without arrest if an FIR is registered. It is a problem that the power to arrest is with the Police and the power to frame the charge rests with the magistrate at a later stage, unlike as in the UK where both are done by the police itself. Arrest is the formal taking of a person to lock up. It is being done to prevent the accused from tampering evidence, induce threat to the witnesses and keeping away from court proceedings when required. These things can be solved by enforcing some conditions on the accused. In arrest, the police officer is not expected to act in a mechanical manner. Some tangible proof must exist about the commission of an offence, when a police officer initiates arrest of an accused. Due diligence must be exercised by the police officer when putting an accused under arrest. In the UK the Police are to pay damages if their exercise of power in regard to the arrest is wrong whereas in India the CrPC encourages wrongful or false arrests. The police can remand an accused in custody for 90 days without filing a charge report and the court can keep him in jail almost indefinitely. In spite of all this there is no restraint on police in India in regard to arrest.

The statutory provision that authorizes a police officer to arrest an accused is Section 41 of the CrPC. The term “may arrest “used in the section denotes that the power of arrest is discretionary. Arrest of a person can cause incalculable harm to his reputation which he has built up over the years. Therefore, except in heinous offences and in unnecessary circumstances, arrest must as far as be avoided.

Unduly long pre-trial detention occurs in many criminal cases. The accused have to languish in jail for long. Some of them will be found not guilty and set free at the end. Magistrates have a due role in such a state of affairs. An accused, who has been arrested by Police, can be detained in prison beyond 24 hours only with the authorisation of the court.  Therefore the Supreme Court in Arnesh Kumar V State of Bihar & another cautions the magistrates that the power to authorize detention is a solemn function and needs to be exercised with great care and caution. But many of the subordinate court verdicts show that the courts do not exercise the function with the seriousness it deserves. In many cases the detention is authorised by the magistrate in a routine, casual and cavalier manner.

In short, when any piece of information disclosing the commission of a cognizable offence reaches a police officer no discretion is left to him except registering an FIR. But in the case of exercising the power of arrest, the officer must apply his mind and decide whether the person accused need to be arrested or not. Even if an FIR is lodged arrest is not a prerequisite. In Lalithakumari case, the Supreme Court unequivocally declared the parameters of registering an FIR removing every trace of doubt. Similarly a verdict from the Supreme Court for re-examining the laws relating to arrest is urgently needed. Unnecessary arrests and pre-trial detention in many a case go against the constitution and the rule of law itself.

NB:- The article originally appears on Lawyers Club India site. Click here to view it.

14 May 2017

Need for Strengthening Subordinate Judiciary

by K Rajasekharan 
Advocate, Thirssur Bar

Strengthening subordinate judiciary – consisting of district and below level courts – is a much needed but grossly neglected reform. It has the potential to address the ever increasing problems of backlog and delay in justice dispensation and make the judiciary far more productive. A well functioning judiciary is a sine-qua-non for sustainable economic growth, investor confidence building and the overall human well being.

Subordinate courts are the courts where ordinary citizens literally interact with Indian judiciary with issues crucial to their life, liberty and property. The strength of Indian judiciary depends mostly on the strength of such lower courts which conduct the crucial chunks of judicial proceedings such as witness deposition, evidence taking, primary arguments and first level adjudication. If lower judiciary deals with cases seriously and comes up with proper adjudication based on valid law and legal principles, nobody would spend time and money on appeals, revisions and similar petitions unnecessarily as no higher court could alter or amend such foolproof verdicts. However the status of such courts is quite disappointing due to a plethora of reasons some of which the judiciary can itself address but some others it needs support from outside.

Judiciary as a whole and subordinate judiciary in particular is endued with archaic and cumbersome procedures which devour its foundation itself. Such procedures cripple judiciary and take away its efficiency. Even though the principles of fairness and transparency underlying such procedural laws are still valid, the procedures have made the justice dispensation at the grassroots delay ridden, dilatory and counter-productive.

Take for example; a plaint under section 26 of the Civil Procedure Code (CPC) cannot proceed unless a challenge of valuation is decided. It can be again challenged in revision under section 115 of CPC. The First Appeal under section 41 CPC, Second Appeal under section 115 CPC and revision by the High Court under section 115 CPC, are other provisions that can be used to delay adjudication. Judicial interference by invoking Article 226 or 227 is as well possible for the parties in the case. The Supreme Court can interfere as per any of the articles coming under Chapter IV of the Constitution. Special Leave Petition (SLP) under Article 136 of the Constitution is a grossly misused provision.  Even a cheque case under Section 138 of the Negotiable Instruments Act can be adjudicated at four levels including SLP in the apex court. That means an ingenious advocate gets a plethora of ritualistic judicial procedures coming well within the legal framework to delay cases. We can no longer afford to stick on to the justice delaying procedural perfections when the mounting backlog of cases and the inordinate delay in adjudication crumble our judiciary. Statistics shows there are 60260 cases pending before the Supreme Court, 38.68 lakh cases in High Courts and 3 crore cases altogether in the entire judiciary altogether.

In fact, eighty percent of the backlog of cases is in the lower judiciary which runs short of 23 percent of judges in sanctioned posts. The subordinate judiciary is working under severe deficiency of 5,018 court rooms. The existing 15,540 court halls are not enough to cater to the sanctioned strength of 20,558 Judicial Officers as on 31 December, 2015 which shows that there was a deficiency of 5018 court rooms then. There is also a shortage of 41775 staff members in the lower judiciary. Since neither the Centre nor the States have any direct role in filling the vacancies of subordinate judges the prime responsibility for the lapses in addressing this much deliberated problem of shortage of subordinate judges rests with the judiciary. The inordinate delay in filling up vacancies of judicial officers should not be allowed to continue.

There is a widespread criticism that laws and legal principles have no much application in lower judiciary. The binding legal principles enunciated by the superior courts do not find a place in the proceedings of the lower courts. In the past, many of the prudent judgments of the lower court judges were upheld by the Privy Council. This shows that when lower judiciary adheres to merit and meticulousness in handling cases, the higher courts cannot upturn such verdicts. If the subordinate judiciary is well equipped with competent persons and its decisions go well in tune with jurisprudence many of the appellate and revision cases would not arise at all. Therefore an efficient and well-equipped subordinate judiciary, competent to deliver legally prudent judgments, can reduce the number of cases in appellate and revisionary jurisdictions, which in turn avoid the imminent collapse of the judiciary.

Appointment of judges of competence, caliber and integrity at the district and below level by establishing an All India Judicial Service (AIJS) is an easy way out in improving the quality of lower judiciary. Caste, creed or religion should get no decisive role in appointment. Recruitment of meritorious judges is more important than the recruitment of greater number of judges. An incumbent judge must have some prior bar experience but no bar experience is prescribed in selection of Munisif-Magistrates in Kerala.  A young, fresh law graduate with no much experience in nuances of procedural conundrums in the court can pass the selection test and become a judicial officer who in turn decides crucial issues pertaining to citizens. Even the year long pre-service training at the time of induction is not sufficient to equip a fresh ill-experienced, law graduate into a capable judicial officer of substance. Therefore legal practice as an advocate should be a requirement in the selection of subordinate judges. The Munisif-Magistrate selection in Kerala in 2013 and the District Judge selection in 2017 met with allegations about nepotism, patronage and favouritism. Quite unfortunately, the administrative side of the high court invariably comes on side of the controversy. The judiciary that exists for enforcing rule of law everywhere else is not keen enough to enforce rule of law in selection of its officers.

The Advocates, as officers of the court, have a great role to play in judicial proceedings but a large section of them do not rise up to the role they are expected to play. Many lawyers with work concentration have more interest in talking fresh briefs than attending old ones. The practice of filing multiple appeals and revisions, numerous interim and interlocutory applications, adjourning cases indiscriminately for no serious reasons by lawyers, and such other practices, gradually weaken the judicial process, cause undue delay in case dispensation, and unduly enhance the cost to litigants. Indian judicial system has become more advocate centric than litigant centric nowadays. Seeking adjournments has become an art in advocacy. Judges, who are not firm on rules or assertive in attitude, grant adjournments on flimsiest of grounds. Repetitious, time consuming argument is another delaying mechanism. Some lawyers prefer long winded and prolix arguments with no substantive points. Similarly, many of the judges prefer writing judgments of unnecessarily length. The multiple interpretations they offer quite often offer unscrupulous lawyers to use the judgment to their advantage at the appellate levels.

In criminal cases, the strength of adjudication depends mostly on the efficacy of investigation and evidence collection. Deficiency in the police machinery is a common problem in almost every criminal case nowadays. The police need to be set free from extraneous shackles of pressures including that of the political masters. The investigation and prosecution wings should remain separate, but complementary in case handling. Independent police functioning is quite essential for the judiciary to handle adjudication effectively. Extra-legal methods are dominantly being pursued by both police and prosecution wings to achieve results in many cases, particularly in politically prominent ones.

The appointment of public prosecutors and other law officers need to be done based on merit rather than on the basis of patronage as being done now, so as to make the criminal proceedings fair, proper and unbiased.

We now live in a dense jungle of laws, many of them are outdated and not in tune with our times. Neglect in reforming laws also makes the judicial functioning difficult. The existence of a plethora of poorly crafted laws and their varied interpretations make it difficult for anyone to know the right legal perspective in an issue. It would be difficult for the judges or lawyers to keep abreast of the changes every enactment of law brings forth in the legal sphere.

The strength of judges is a decisive element in the performance of the court. But that is not the sole criterion in determining the quality of the institution. Judges play a primary role in court and case management. The quality of the judiciary revolves round the merit of the judges and the qualitative input/support the bench receives from all around.

The contrasting interpretations in similar issue by the higher judiciary quite often pose endless troubles to lower judiciary in finding the right perspective on an issue from diverse ones. This inconsistency makes adjudication a gamble in which the stratagem of lawyers and incompetence of the judges play a crucial part.

To vitalize judiciary, the stays and endless adjournments should be firmly curbed. Frivolous appeals must be minimized by enforcing rules and procedures strictly. Long winding arguments and pretty long argument-notes should be discouraged. There should be broadly fixed time limit for arguments. Adjournments on personal grounds, except for illness, should not be allowed. The ongoing practice of filing any number of interim and interlocutory applications in civil courts should come to an end. No appeal or interlocutory applications should be allowed except in issues that cannot be dealt with in the final orders. The filing of written arguments must be enforced.

In short, the problems that make lower judiciary vulnerable and weak are litigation explosion, increase in legislations, increasing election petitions/cheque cases/etc, inadequacy of judges, non-merit of judges, inadequacy of staff members, insufficiency of infrastructure in courts, wrong priorities in disposal of cases, hastily made imperfect legislations, absence of talented lawyers, ignorance of statutes/procedures among stakeholders, shoddy police work, and inept prosecution. They need immediate attention and curing. No doubt, strengthening lower judiciary is far more important than introducing Court of Appeals in between the High Court and the Supreme Court or establishing more Benches of the Supreme Court in different parts of the country.


N B :- This article was originally published by the Lawyers Club India site. Click here to view the article.