With the debate on the role of the High Courts and Supreme Court being the flavour of the week, thanks to contributions by the PM and the Chief Justice of the Supreme Court, here is a reiteration of FG’s take.
Justice today is being denied to the people…and even being buried without being hurried. At one end of the scale the State does not provide for the bare necessities…and at the other, the Courts do little to protect the aam aadmi’s person and property. Meanwhile the privileged continue to make a mockery of justice; what benefit is it to see some of them being punished after 20 years – if that? The Judiciary often escapes deep scrutiny. That is surprising, since it has the capacity to not only decide, but even dictate, and deter. The Judiciary, constitutionally the most independent of our bodies, has disappointed us most - also because we expect more from it than our other institutions, many of which stand compromised. Yes, we have allowed many politicians to become a law unto themselves, and in some areas it is virtually the law of the jungle that rules. In this scenario, we do not do justice to our courts and lawyers and judges by not criticising them enough. For a body that is critical of the Executive, and rightly so, and even increasingly comments on areas at the ‘borders’, the Supreme Court (SC) seems to be sadly ignoring the rot within – both in the judicial system and even at its own Court. How else does one explain the amount of cases that are languishing for years and decades – while many have not even been taken up? ‘Tareek pe tareek’ will only give birth to more vigilantes. What system does the SC use for ensuring in-house compliances and productivity? How does the Supreme Court judge if there is a ‘widespread failure’ of implementation of its judgements? How does it judge the ‘interest of the public at large’? Why cannot the Chief Justices of every High Court, and the Supreme Court, scrutinise exceptions for a change. Let them basically review all cases where: orders have been passed, but not executed, for say 6 months; excessive adjournments (in terms of time period and/or number of adjournments) have taken place; hearings have concluded, but a verdict has not been delivered, for say 3 months. And then ensure timely action directly, under their authority, for every such case. But, before all else, it is time that the Supreme Court pronounces Contempt of Court against all those who have the authority (mainly the PM, Cabinet and CMs) to implement its rulings but have not done so - repeatedly. SC should no more tolerate this. The punishment should be exemplary. Any Contempt of Court should not only lead to heavy strictures and penalties on lawyers and persons or establishments concerned, but should also influence the timing and outcome of a case. Chief Justices should also think of setting an example for, and providing the courage to, Chief Secretaries and the Cabinet Secretary. They must ensure that arbitrary transfers of judges are just not allowed. This should embolden some Chief Secretaries to fight against the arbitrary transfers in their bureaucracy. In fact the Courts should go a step further and suo moto take up some special cases of bureaucrats who have been ‘victimised’. The justices surely know that perhaps even more important than delivering punishment to the guilty is to ensure that the innocent are well-supported and protected.
It is also time to set up timelines, guidelines and norms for every type of case (and not just when something ‘new’ comes up - like the 1 year timeline given for criminal cases against MPs). There may not be unanimity, and there will be few precise answers – but that is fine. Thereafter, let special benches, called Special Courts – at 4 Regional locations across India – review deviations against the timelines and guidelines on a monthly basis. Special Courts would not be part of any ‘heirarchy’ of courts. These Special Courts would also have another role to play. Although the SC does play ‘activist’ with the Executive at the Centre, and even with Delhi as a Union Territory, the impact has remained ‘local’. The High Courts across the Country have not been as zealous at State level. Given the reality that the decisions of the Executive, even the PM, no longer hold sway across the land, and that governance in many States is at an all-time low, the Special Courts should step in on behalf of the aam aadmis in their Regions and hold Chief Ministers and Chief Secretaries more accountable. For example, on the issue of ‘unauthorised colonies’, Master Plans, Changes of Land Use (CLUs) and the like, incoming and outgoing Chief Secretaries should sign off on the status at the start and end of their tenures. This should also apply to the relevant and pertinent matters at the levels of the Cabinet Secretary and the Secretaries of various Ministries at the Centre. The Special Courts should also handle PILs (that seem to today bog the SC down) – maybe specialising as Regional Teams. They could invite ex-Judges of HCs and SC on specific need basis. The Supreme Court should be occupied with ‘graver’ matters of the Nation and its citizens - for Constitutional matters and maybe ‘high profile’ cases. For example, Mumbai slums are crying out for intervention; maybe even Gurgaon real estate scams should be given suo moto cognizance – for their sheer scale, and for the profile of people allegedly involved. Further, despite SC’s interventions, old scourges - like untouchability, child marriage, no widow remarriage and Sati - outlawed for centuries, are still practised and need to be clmaped down on. Someone also needs to bat for the ‘upper class’ poor and bowl out the ‘SC/ST rich’ from reservations.
Will a fresh-thinking Chief Justice care to awake this country to a new dawn of justice? Will we need to wait for a woman, for that? Or is the jury out on that too?
The Special Courts should also engage with the Fourth Estate, the Media; the other Estates have been pulled up enough, while Media has often conveniently ducked under the umbrella of Press Freedom. It is time to discuss the separation of Church & State in the Media. All Editors & Publishers need to be called in, in groups or collectively. Let Media be in the ‘hot seat’ for a change. Note for our TV brethren: Please do ensure that TV ‘debates’ on even Supreme Court judgements are not reduced to the ‘normal’ cacophony. Sometimes at least there needs to be reasoned debate.
Fast-track Courts have mainly disappointed. By just setting them up or resurrecting them, and that too in the thousands, as a show of ‘action’, we have only disappointed many citizens (esp. women) even more. Fast-track Courts cannot be measured on a relative basis against current norms – which are anyway completely unacceptable. They must work on separate absolute guidelines. For example, adjournments – for whatever reason – should just not be acceptable.