*Dear Jose Miranda,* *Well written article.*
*Stephen * *Free judiciary can safeguard constitution* *By: Jose Maria Miranda* It is surely very unpleasant and most uncomfortable for someone, who has, in the past, extolled the virtues and actions of an entity or individual, to come back and say “ mea culpa I have erred or have been too quick in my judgment”. I have a few times, taken up cudgels for our Judiciary when our politicians resented its interference in decisions of the Legislature or the Executive detrimental to the general public, but which they considered to be of their exclusive domain. These gestures of High Courts and Supreme Court in taking suo motu cognizance of matters of public interest and seeking answers or rectifications from the Government were hailed by civil society and came to be labeled as judicial activism or judicial overreach. However, there have always been serious apprehensions that with corruption and bribery reigning supreme in almost every sphere of administration in this country, the day might not be far off when the Judiciary too could be affected by the malaise. People dreaded the day when that would happen - when their faith in the Judiciary would crash and their only hope for the country fade. But the day seems to have arrived sooner than expected. Sadder still is the fact that even people with good family backgrounds, who have been elevated to high ranking positions in the Judiciary, instead of bringing honour and dignity to their posts, have brought disgrace and disrepute to the institutions they serve. Their actions and decisions are subject of regular debates, discussions and criticisms even at market places. Civic action groups too have often been reluctant to file cases for fear of adverse decisions. How much have we descended!!! I recall a talk by a senior lawyer, several years back, wherein he rebuked civil society for taking on the Legislative and the Executive and sparing the Judiciary, solely for fear of contempt. He stated that he was often threatened with contempt but had challenged such threats. He was particularly peeved at the fact that the Court had not taken suo motu cognizance of the damage caused by “ River Princess” – the ship that sank off Candolim beach causing tremendous damage and expenses to our Exchequer. Perhaps writers and civic action groups may find it worthwhile challenging Courts’ decisions, which are patently wrong or biased and face contempt and even imprisonment, if necessary, not only to safeguard and defend people’s right to justice but also to ensure that a few Judges do not smear the good name of the Judiciary in the country. Litigants are a lot that is always grumbling and grudging, if not cursing, the Courts, the Judges and the Lawyers and it is their plight that made me scribble these lines - in fact at the request of some of them. Despite all decisions and assurances to fast track cases, they are pending in Courts for decades, without any conclusion in sight. Even when cases are concluded in the lower court, the aggrieved, despite full knowledge that he cannot win any further, appeals to higher courts only to harass the opponent with further delays and expenses. While the right to appeal cannot be denied, heavy penalties imposed if the case meets the same fate in appeals, would have deterred the aggrieved from proceeding further and thus reduce the burden of the Courts and ensured prompt justice. Not only that does not happen, but cases are being adjourned, sometimes with long intervals, at the drop of the hat, with even senior citizens not being spared. I myself was constrained to get a case “ compounded” because of constant adjournments and my inability or rather reluctance to attend the Court often. This enabled the accused to go scot free, which is perhaps a regular happening for similar reasons. However, I made my strong displeasure known to the Judge, which of course, must have not made any impact on him. These trips to the Court, however, made me learn of another delaying tactic: irrelevant questions being put to the witnesses and others, with no objections either from the opponent’s lawyer or the Judge. In one instance where a witness was deposing in a bank forgery case, she was asked what clothes the accused was wearing when he called at the Police Station for his statement, taken six years earlier!!! Such preposterous questions surely cause further delay and adjournments. In another case, I was happy to observe a young lawyer insisting on a shorter adjournment from the Judge, who eventually gave in. I wonder how many lawyers do likewise so that their clients’ cases can be expedited. Another issue that the Courts must take up very seriously and perhaps consider making functionaries personally liable for damages is where litigants are constrained to take recourse to Courts due to the failure of the Executive to enforce the law. This lack of accountability on the part of the bureaucrats not only forces people to go through the hassle and heavy expenditure of judicial process but also adds to the burden of Court cases. The Courts could have easily insisted in the matter being solved by the Executive, instead of taking the burden upon themselves The SC advises the Government not to induct Ministers with criminal charges, but a Judge in Goa facing such charges, continues in her post. The SC Collegium had unanimously refused, more than once, to elevate a Senior Mumbai HC Judge to the SC. He is accused of judicial impropriety in the case of Essar Oil and with refusal to adhere to SC directives in Amit Shah’s case. There is strong lobbying for his induction now, but if it happens it will be a sad day for the Indian Judiciary. The Judiciary must enforce high standards of probity, integrity and dignity in their ranks. Lawyers and Judges, in particular, must never allow their deeds to wear the colour of their coats. Lord Harry Woolf, former Chief Justice of England had said “ Like old clocks, our judicial institutions need to be oiled, wound up and set to true time". It is time to clean our Judiciary of those elements who ought to have never been where they are today. A free, fair and independent Judiciary is a salient safeguard of our Constitution. It ought to be the only hope for the common man in its thrust for justice. The fate of the temples of justice is doomed if Judges, hankering after prized postings or for fear of retribution refuse to take on the government on its illegalities. Elements of delay and unnecessary recourse to Courts must be avoided. It is up to the Judges to ensure that this happens and that people, whose rights have been trampled upon, get not only equitable but expeditious if not prompt justice. ( The author is a retired banker) *Jose Maria Miranda However, there have always been serious apprehensions that with corruption and bribery reigning supreme in almost every sphere of administration in this country, the day might not be far off when the Judiciary too could be affected by the malaise*
