Indian Judiciary is beyond redemption

The present Chief Justice of India, Justice Dattu, said recently that cases in the Supreme Court would ordinarily be disposed off in 2 years, and criminal trials in 5 years. Almost every CJI makes similar tall claims. The previous CJI made the nonsensical remark that Judges will work 365 days in a year.

There are 33 million cases pending in the law courts of India, and  by one estimate if no new case is instituted it will take 360 years to clear the arrears. While many people talk of clearing the arrears, no one is really serious about it. Arrears,including arrears in the Supreme Court, have kept mounting.

When I was in the Supreme Court I heard a case in 2007 which had been instituted in 1947, that is after 60 years of its institution, and another case 50 years after its institution.

The decision in Rajendra Singh (Dead) thru. Lrs. & Ors. Vs. Prem Mai, which was decided by a Bench of the Supreme Court, of which I was a member, was a case which took 50 years to decide finally, since it was initiated in 1957 in the trial court, and was finally decided on appeal in 2007 by the Supreme Court.

This decision observed :

“ We may quote a passage from the novel 'Bleak House' written in Charles Dickens' inimitable style :-

Jarndyce vs.Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises.

Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce vs. Jarndyce, without knowing how or why; whole families have inherited legendry hatreds with the suit. The little plaintiff or defendant, who was promised a new rocking-horse when Jarndyce vs. Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality.

There are not three Jarndyces left upon the earth perhaps, since old Tom Jarndyce in despair blew his brains out at a coffee house in Chancery Lane; but Jarndyce vs. Jarndyce still drags its dreary length before the court, perennially hopeless.

Is this not descriptive of the situation prevailing in India today? "

 In Allahabad High Court ( my parent High Court ), criminal appeals filed 30 years ago are coming up for hearing today. The lawyer who filed it is usually dead, and the accused in the criminal case is also often dead or untraceable. I am informed that in the Bombay High Court original suits have been pending for 25 years or more. The situation is like that in the case Jarndyce vs. Jarndyce  depicted at the beginning of Charles Dickens' novel ' Bleak House '.

 I doubt whether the lawyer community seriously wants any reform, and as for Supreme Court Judges they mostly have a term of only a few years to seriously attempt it ( despite the talk of almost every CJI ).

 Let me tell the Indian public the truth. The Indian judiciary, like other state institutions in India, is beyond redemption. I was in the system for 40 years, 20 years as a lawyer, and 20 years as a Judge,  ( including Chief Justice of 3 High Courts, Acting Chief Justice of Allahabad High Court, and permanent Chief Justice of Madras and Delhi High Courts, and finally Judge of the Supreme Court ). So I should know what i am talking about.\

 Dattu is talking through his hat.

http://indianexpress.com/article/india/india-others/nearly-three-crore-cases-pending-cji-says-trial-to-end-within-5-years/

A dirty job, but somebody's got to do it

The Bar Association of Saket's s resolution that none of its lawyers will defend the accused in the Delhi gangrape case is not only illegal but also against all traditions of the bar and professional ethics.

As observed in AS Mohammed Rafi vs State of Tamil Nadu, AIR 2011 SC 308.

"Every person, however wicked, depraved, or repulsive he may be regarded by society has aright to be defended in a court of law, and correspondingly it is the duty of the lawyer to defend him."

When the great revolutionary writer Thomas Paine was tried for treason in England in 1792 for writing his famous pamphlet titled 'The Rights of Man' in defence of the French Revolution, the great advocate Thomas Erskine was briefed to defend him. Erskine was at that time the Attorney General for the Prince of Wales and he was warned that if he accepted the brief, he would be dismissed from office. Undeterred, Erskine accepted the brief and was dismissed from office.

However, his immortal words in this connection stand out as a shining light even today: "From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in court where he daily sits to practise, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay he assumes it before the hour of the judgment; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principles of English law make all assumptions, and which commands the very Judge to be his Counsel".

Indian lawyers have followed this great tradition. The revolutionaries in Bengal during British rule were defended by our lawyers, the Indian communists were defended in the Meerut conspiracy case, Razakars of Hyderabad were defended by our lawyers, Sheikh Abdullah and his co-accused were defended by them, and so were the alleged assassins of Mahatma Gandhi and Indira Gandhi.

In recent times, Binayak Sen has been defended and so was 26/11 terrorist Ajmal Kasab. No Indian lawyer of repute has ever shirked responsibility on the ground that it will make him unpopular or that it is personally dangerous for him to do so. It was in this great tradition that the eminent Bombay High Court lawyer Bhulabhai Desai defended the accused in the INA trials in the Red Fort at Delhi (November 1945-May 1946).

In this connection reference may be made to the legendary American lawyer, Clarence Darrow, 1857-1938 (see his biography, Attorney for the Damned), who took up cases of persons regarded as vile, depraved and loathsome by society for instance, brutal killers, terrorists, etc, whose brief no other lawyer would touch because he believed that everyone had a right to be defended.

Article 22(1) of the Constitution states: "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice".

Chapter II of the Rules framed by the Bar Council of India states: "An advocate is bound to accept any brief in the courts or tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief."

Professional ethics require that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing a resolution that none of its members will appear for a particular accused, whether on the ground that he is a suspected terrorist, rapist, mass murderer, etc, is against all norms of the Constitution, and professional ethics. It is against the great traditions of the bar which has always stood up for defending persons accused of a crime. Such a resolution is, in fact, a disgrace to the legal community. 

All such resolutions of Bar associations in India are null and void and the right-minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country.

( Markandey Katju is chairman, Press Council of India, and former judge, Supreme Court of India )

  Published in Hindustan Times on 01/01/2013