Sunday, January 15, 2012

My speech which I would have given in reply to CJI speech at Nani palkivala Lecture

I attended the the Ninth Nani Palkivala Lecture on 14.1.2012. Shockingly I was given an envelop by "FORUM FOR PRESIDENTIAL DEMOCRACY" which is a political party. I was shocked as to my mind there cannot be a pamplet distributed by any political party in a function of Judiciary or by some the prominent judiciary person like CJI. I am sure this was not known to the Hon'ble Judicial members and High Court judges else they would not have allowed the pamplets. It was the responsibility of the organisers and they must be held liable for the same.

After all other things, began the speech of our own CJI Shri Kapadia.

After hearing him, I would have countered if I was allowed to react as under :
I am thankful to the Hon'ble CJI for giving this wonderful speech, which had inbuilt sense of defence and a reaction to criticism against the function of the Judicial system. I have heard you and salute you for one thing first. When national anthem was being sung very few people were singing it word by word and that included you. You began your speech by praising Mr. Nani Palkiwala and referred to landmark case of Keshavanand Bharti and how he assisted the Court in coming to the landmark judgment. Indeed he was remarkable and I wish I would have been the lucky ones to hear him argue. I am not. However his legacy inspires me. Sir Nani Palkivala fought this case which is a landmark case of human rights. If we miss lawyers like Nani then we also miss something on the bench. Today, I am sure that Judiciary is also so burdened that its rare to see that a large bench is formed to hear the cases of constitutional importance and more so on human rights. Infact let me tell you I am confused by the system, as I can tell you case where 3 judges issued order on a day and later 2 judges passed order on other day. The system is not correct and if even a single order is passed by 3 judges then 2 judges can't pass orders. Needless to say that with times everything has sunk and the system is on the verge of collapsing. This is just an example and many things are to be checked.

Let me also tell you sir, Nani Palkivala was a great champion of Human rights and today we miss such lawyers. Today the reality is also that we go on technicalities and don't mind dismissing PIL for such reasons, where as the earlier belief was that the human rights are so valuable that every thing else can be set aside for the same. Infact, the forefathers of the constitution realised that they may have missed something and hence gave all powers under the sun to the Higher Courts to do whatever is necessary to do Justice. Thus responsibility was casted upon the Judiciary by giving them extreme powers that they will rectify each and everything to do Justice. Let me bet upon it that Judges have no time and this power is generally not used. Thus the power was with responsibility and faith but is unfortunately rarely seen to have been exercised.

Sir, your speech was evolving around taxation and international trade.Well I disagree with you that they are most important. This is more so when I read about crores of people not having meals, crores of kids being victim of malnutrition, when education mafia is taking charge of system, when crores are eaten by system in corruption, when the common man has lost hope and faith. All trades and taxes are meaningless. If just a fraction of these victim turn anti social then the economy will be wiped of anyday. Trade and tax is for maintaining humanity and humanity is not for trade and taxation. The base has to be strong, else a stong building having thick walls will collapse as the weak base will give way.

Learned Sir you referred to minting of money by senior lawyers. Well I don't blame them for it but I blame the system where the junior lawyers have started feeling that if they don't hire a senior lawyer they wont be heard and clients cause will suffer. The reality is that a minute of error and the case is gone. The Judiciary cant afford to give them hearing and the right words have to be put up and only if the Judge is pleased the Notice will be issued. If instead there are more judges and Juniors are heard and time is given, these things can be eradicated. Blaming seniors will not solve the problem and the Judiciary must also share the blame. Judges and Lawyers are part of a system and they both must attempt to enhance the system rather than pass on the blames. I have heard Judges saying you all lawyers do this.... etc. and then they expect that lawyers must give extra ordinary respect. Respect is to be earned and not be in sweet tongue. The lawyers try to please judges by whatever way they can and we have overburdened the system with the word "LORDSHIP" in everyplace. Let us shed the world of Lords and create respect from heart and in minds of common man.

Your speech on how independent Judiciary was established was really informative. But the part that "don't paint all institution as corrupt" was too defensive. Sir when you have read so much about the past EX-CJI's and more so in last 5 years, the faith of common man has shaken. You are too defensive and let me tell you that your words will not make a difference as people trust only deeds and that too over a long period by all judges. The defence is seen from day one when your letter to and ex judge of Supreme Court was published in newspaper and the crux of letter was recorded. I disagree with your view that love for Justice is rare and that there is lobbying. If you know who is lobbing and creating pressure group then why not let the truth be out. The reality is that cash at door scam and other scams including Justice Sen and Justice Dinakaran and allegation against Justice Balakrishnan have shakened the system and that cannot be wiped off by speeches. Indeeds the Judiciary and Lawyers will have to do a lot to bring back the reputaion that is tarnished.

Learned sir. A good Judge does not care about what people say and what they lobby. A strong Judiciary just cares about the constitutional responsibility and Justice and Justice lives in his/her heart and mind. The good Judge is so great and above criticism that he answers them in his judgments and is unshakened by lobbyist and does his work. He does not need to clarify about his past track record and how poor he was. He is so bold that he goes to the level of having a battle with the government for Justice and dares to call upon each arm of Government to do its duty. He does not see whether the data is from affidavit or RTI. He just sees where there is injustice and how he can rectify it. He pardons his criticizers and only takes that part of it which he is required to take for giving Justice. He does not see what he will get from government after retirement but just sees the tears of a litigant. This character is very rare and hence very few people are on such high post. If this is missing I can say the choice is wrong.

Learned sir you say that there is loophole in our character. The loophole in character is in all persons including the Judiciary. After all we all live in this age of being human when we are at fault and being best when in power. I remember the remarks on Krishna radha by the bench which clearly reflected poorly on the bench and also hurt my religious feelings. Trust me if it was any other person the same Bench would have come down heavily on it.

Sir you have talked about disposal at many times in different speeches and patted the back of Judiciary. But I disagree with you. The performance is not that good as claimed. If disposal on merits is separated from compromise orders, disposal without going in merits the picture may be sour. Sir we have adopted a system of deciding matters in chambers without hearing the parties in Review. I call it a chamber of secrecy as no one sees Justice being done and more so when Review allowed is a rare virtue and Curative is the rarest. When Judges decide matter in chamber and there is no reasoned order the faith in the system shakes as there is room for gossips and allegations. Let us admit that we live in democracy and hearing and reasoned orders are a part of it. Time has come when Judiciary acts and seals the mouth of allegations and leaves no room of doubt as Justice must be done beyond doubt and any room for doubt and allegation makes the mechanism of Justice a meaningless exercise. A man may sit and decide everything in chamber without reason. Some of his decision may even be just and perfect but then also democracy requires seeing it.

Coming to your reaction on counter majority decisions. Let me tell you if public opinion did not affect Judiciary you would not have tried to explain us as to how lobbying is done and how all institutions are being painted corrupt. Your speech would have been just around how much accountability is needed and what is not needed. Learned Sir, you have stated that people don't read the collegium judgement and also just sit on chair and criticise and don't give solution. Well first if I dont have solution that does not bar me from pointing out what is wrong. Second we all have a birds eye view of the system just as you sit on bench and decide matter without being at the place of the incident. You base yourself on pleadings and common man on basis of what information he reads and sees. Nothing wrong in it. And if he has a solution please inform where should he send it. Today the common man has fear of contempt as he may not have proper words and his intention which may be good may not be recognised. He does not know how to send and to whom. Is the system ready to have an open debate then lets have it.

Sir, I have a solution but if you demanded it from listeners then it should have been a debate rather than a lecture.

The solution is simple. Please inform how many post are vacant in High Courts and ask lawyers above 10 years of practice to apply. Put the list for complaints (with evidence) from litigants and lawyers and after that decide who will be on bench. However today the system is of reference. Fill all post and see how fast we will clean the mess. Increase the number of Judges in Courts and have benches of Supreme Court in Mumbai, Kolkata and Chennai and make Justice affordable. I hope that things will be seen in positive manner as being a lawyer I hate people feeling that Justice is illusion and institution is corrupt. Rather I want to walk a mile and people shaking my hands and saying "PART OF AN HONEST SYSTEM.. WE ADORE YOU AND YOUR JUDGES"...

Advocate High Court, Mumbai