When will you unfold your plan, My Lord?

Justice Markandey Katju


Speaking at a function organized by the Youth Bar Association of India on September 29, 2018, a few days before he took the oath as Chief Justice of India on October 3, Justice Ranjan Gogoi said that delays in justice is bringing the judiciary into disrepute, and that he had a plan for one, resolving the problem of arrears (3.3 crore – that is, 33 million – cases in Indian courts), and two, providing access to justice to the poverty stricken people, a plan which he would soon unfold.


When are you unfolding this plan, My Lord? The people are anxiously awaiting. They are fed up of the delays in disposal of cases. Many CJIs have come and gone who had made similar announcements, but nothing has changed. For instance, Justice H.L.Dattu, a former CJI, said that all cases will be decided within 5 years, but it seems it was only a ‘jumla’ ( it is another matter that for his praise of Prime Minister Narendra Modi, Dattu was rewarded by being made chairman of the National Human Rights Commission).


Tens of thousands of undertrials are rotting in jail in India without a hearing, as reported by Amnesty International in its 2017 report, ‘Justice under trial.’ One Nasiruddin Ahmed was acquitted by the Supreme Court after spending 23 years in jail ( more than Dr Manette in Charles Dickens novel ‘A Tale of Two Cities’ who spent 18 years in the Bastille) in horrible conditions. Similarly, one Amir was incarcerated for 14 years before being found innocent.


Many more such examples can be given. In the Allahabad High Court criminal appeals come up for hearing after 30 years of being filed, and in Bombay High Court original side cases have been pending for more than 20 years. Anyone unluckily caught up in the web of the Indian courts knows what litigation means– ‘tareekh’ after ‘tareekh’ (date after date).


As for providing access to justice, Justice Gogoi said in his speech it meant “enabling a person who cannot come to court to come to court, and traveling beyond legal aid and expanding the scope of legal service, to give each man his due under the law, without having to come to court.”


Dimwitted as I am, I could not understand a word of what these pearls of wisdom meant.


Instead of seeing Justice Gogoi’s grand plan ‘unfold,’ what we are seeing instead are things which are disturbing:


1) Personal liberty is enshrined in Article 21 of the Constitution, and in Menaka Gandhi vs Union of India (https://indiankanoon.org/doc/1766147/), a seven-judge constitution bench judgement of the Supreme Court, baswed on the observations of the celebrated Lord Denning in Ghani vs Jones, (a British case from 1970).


1) Q.B. 693 was quoted with approval: “A man’s liberty of movement is regarded so highly by the laws of England that it is not to be hindered or prevented except on the surest grounds,” thus becoming the law of the land in India, too.


Yet in the case of Abhijit Iyer-Mitra, who had only made a satirical tweet, for which too he later apologized, he was denied bail despite the settled principle laid down by the legendary Justice Krishna Iyer in State of Rajasthan vs Balchand, and repeated recently by Justice Lokur, the next in seniority to the chief justice of India, in Dataram Singh vs State of UP, that bail, not jail, is the normal rule, unless the accused was likely to tamper with the evidence or abscond or has been accused of a grave and heinous offense like murder, dacoity or gang rape, which Abhijit was not. Without adverting to these decisions and principles, the CJI summarily rejected the bail plea with the flippant and cruel remark, unexpected of a person on such a high post, that the accused was safest in jail.


2) In the case of Rohingyas sought to be deported to Myanmar, Justice Gogoi practically made the petition infructuous by refusing an early hearing. When the counsel, Prashant Bhushan, said that it was the duty of the court to protect the lives of the petitioners, the CJI reportedly lost his temper, and said “Dont tell us our duty.”


3) A case of the Attorney General, K K Venugopal, was dismissed even before he could start arguing. The attorney general rightly reprimanded Gogoi for this cavalier way of deciding cases, saying that people come from far-off places at heavy cost and it was not proper to dismiss their cases without even a hearing.


4) In the case about possible corruption at India’s Central Bureau of Investigation, Justice Gogoi lost his temper and started fuming because of ‘leakage’ to the media, and made remarks like “Press freedom goes with press responsibility,” obviously an insinuation against the portal thewire.in and its highly respected founder editor Siddhartha Varadarajan. In fact, as Fali Nariman, the counsel for Alok Verma later pointed out, the portal had only published the queries by the Central Vigilance Commision to Verma, and not the report of the CVC to the court or Verma’s response to this report, which were ordered to be kept in a sealed cover (which the portal did not have). So Justice Gogoi lost his temper over nothing, but such uncalled for tantrums, and baseless insinuations demoralize brave and independent journalists, who are as it is rare nowadays in the country.


5) Justice Gogoi also displayed his wrath over the handing over to the media of the petition of M K Sinha, the deputy inspector general of the CBI, who has made allegations against minister Haribhai Parthibhai Chaudhary and National Security Adviser Ajit Doval. But what was wrong in it? Once a petition is filed in the court registry, it becomes public property, and anyone can see it and report it. What is confidential about it?


6) Justice Gogoi’s remark to the lawyers, (“None of you deserve a hearing”) and to the staff of the court (“You should quit”) were uncalled for, and totally unexpected of a judge in the higher judiciary, leave alone a CJI, who should display modesty, balance, restraint and equanimity. So instead of seeing a grand plan unfolding to clear court arrears, what we are actually seeing is a chief justice given to immodesty, petulance, impatience and bursts of irascibility.


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