My views pursuant to Judgment in R. K. Jain’s Case

I am very happy to read the judgment of Hon’ble Apex Court dated 13^th August, 2010, in CONTEMPT PETITION (CRL.) NO.9 OF 2009 in CONTEMPT PETITION (CRL.) NO.15 OF 1997 between Indirect Tax Practitioners Association and R. K. Jain.

The Hon’ble Supreme Court of India has delivered so many land judgments in the past and despite beautiful pronouncements on the matters of public interest etc, unfortunately, the respect of the judiciary or the legal system in the minds of the ordinary people is being eroded. This is a fact and we can not hide facts. Ultimately, every person enjoying authority and every institution is for the people of this country and it is the collective responsibility of all the citizens to make a good system for the welfare of the people. Where do people go asking for justice when their legal or fundamental rights are violated? Obviously, the aggrieved should come to court or before some justice delivery mechanism. If  the judicial or the legal system is not able to rescue the legal and fundamental rights of the people of this country, then, the entire society collapses and it is for sure. If the system as declared in the Constitution of India fails, then, there will not be any order in the society and the India may even loose its right under such circumstances to claim that it is a democratic and civilized society. It is true that, on one side, India is shining and we need to feel very proud about our GDP growth, FDI and our presence and recognition in many developed countries in the world like USA and UK. But, on the other hand, we need so many reforms in our system and reforms in legal system too. When I was a student, I have had the privilege of reading the critical commentary written by Shri H.M.Seervai on Constitutional Law and I have also had the privilege of focusing on the comments made by some eminent personalities in legal profession judicial reforms. A wrong deed is to be questioned in the society and then only, we can expect the needed reforms. Unfortunately, in the legal system in India, the people who are better equipped to question the system are very busy and silent towards the needed reforms. Every legal professional knows the problems in the judicial or legal system, but, still, many are silent on the required reforms and I don’t know as to what our associations are doing in this regard. I am really very happy to know and read about the work being done by Shri R.K.Jain and I hope that he will continue to criticize the system reasonably and with the good intention of providing a better system to the citizens of this great country.

Many people have criticized our judiciary and the legal system and the critics include the great legal luminaries in India. But, nobody has mooted the contempt action against the legal luminaries who criticized the judges, the stands and the system. Even National News Channels criticized the judiciary, even the judges and entire legal system. The entire nation has witnessed the criticism being done by the Media in the recent past. Nobody could question the criticism of judiciary by media in the recent and even attack on the judges as people tend to react in a serious manner. The professionals who are part of legal system should introspect themselves as where they stand, their role and responsibilities in the system. They are made for the system and the system is not for them to take a ride. The judgment under discussion is one of the excellent pronouncements of the Apex Court in the recent past and all my respect to our Hon’ble Supreme Court. Though, it appears to be very simple, this country is facing a serious problem with the pendency of cases before various courts in the country, the corruption as alleged very often, the standards and lack of transparency and proper system in place. While I feel very proud of our legal system and look at the people like Shri Nani Palkiwala, Shri H.M.Seervai, and Justice Krishna Iyer etc. among many, I am really sad to listen to the public perception of legal profession and legal professionals today. The situation in the system has worsened with lack of proper criticism and oppressing the voice of the people who work and speak for the betterment of the system and the society at large. If we ask the professional associations in this country as to their contribution to reform the system and to gain public confidence in the legal system, I don’t think that they will present a convincing data. They are quick enough to give boycott calls and the problem is deep rooted and I believe that the corrective measures are being taken now and we will be able to restore the lost dignity of the legal profession soon.

When it comes to constitution of Tribunals in India, I think much credit goes to our Judiciary as it did not oppose as such in my opinion to the establishment of Tribunals though independence and impartiality etc. principles were highlighted. But, I would vehemently say that the Tribunals in this country are not functioning well and establishment of Tribunals has further worsened the situation. We can never compare the functioning of the Tribunals with the Court and the functioning of the Court is far superior to the Tribunals. It is true that we need reforms in the judicial or legal reforms in India and it is not a good strategy to side-line the courts altogether by establishing Tribunals and by ignoring the importance of judicial or legal reforms. I can, for sure, highlight so many problems with the Tribunals in India and the litigants before the Tribunals who compare the adjudication before the Tribunal and the Court will think that the Courts are doing very well as compared to Tribunal. I don’t understand one thing as to how our legislature or the executive has time and funds to establish various Tribunals in this Country and has no time and funds to correct our judicial system or to work for the judicial reforms.  I did observe a shocking way of functioning of one Tribunal where a judge says that he has no steno to pass orders and where even case papers are not maintained property. Is this the system this country and the people need? Now, look at the court system as to how court case papers are maintained for years and it is very rare in courts to complain that the case papers are lost and it is rare to listen to complaints of this kind in Courts. It is true that there is corruption everywhere and judiciary or the legal system is no exception to corruption. The judiciary or the legal system will be criticized most if it could not deliver the results as required as it is the ultimate place of faith to get justice or to get our rights protected.  With a very simple thinking and a strong determination, we can correct our judicial or the legal system.

When I read the judgment of Hon’ble Supreme Court under reference, I felt very sad as to how a responsible citizen is being harassed by an association of professionals and it is really unfortunate. The executive or the political system can not say that they have no role with the functioning of the Judiciary except expressing their concern at the pendency of cases. Ultimately, it is the legislature which makes law and answerable to the citizens directly. We need so many reforms in our judiciary or legal system in India. We all know about the allegations of political appointments, as to how appointments are being made, the allegations of corruption and standards in profession and in the Judiciary etc. We can achieve nothing by concealing the facts, but, there is a ray of hope by constantly voicing for the betterment of the society.  Every legal professional should remember that they are part of the justice delivery system, has the fundamental responsibility to work for the betterment of the system and answerable to the next generation. What is the legacy we are passing-on to our next generation with no dignity and no respect in the public eye? The situation should change as early as possible as India and Indians are aiming to become powerful in the world.

I have read the reference in the judgment to the facts of the case and as how Shri R.K.Jain is advised by Senior Counsel Shri Shanthi Bhushan about approaching the executive or the concerned ministry before publishing the editorial. I personally feel that there is nothing wrong in making a criticism at the organization or the system straight away for the betterment of people or the society. It is true that one should be careful while making a specific allegations on an individual and there truth and evidence may matter to some extent and even there the bonafide intention and reasonable criticism is allowed and required in my opinion. Actually, some legal professionals’ wants to know as to who is responsible for the bad perception about judicial and legal professionals in minds of public and the answer would be like we ourselves are responsible for many things in the system. If the professional associations are collective and air their voice for a corrective action, then, even the executive listens to them and we can see the reforms. Every one, at least, now knows as to where the problem lies and there is no point in escapism from responsibilities as we are all part of the system and work for the betterment of the system. Indian Judiciary has enjoyed so much respect in the past and even now many quote the references from the land-mark judgments with a feeling of strength and we need to preserve that respect and should deliver results as expected.

I don’t personally feel that bringing reforms in the legal system is a big exercise and I am sure that we can reduce the pendency, can deliver speedy justice, can reduce the corruption, can make the system transparent and gain the respect of the public with proper plan and the commitment from the authorities concerned to bring reforms in our legal system. Alternative Dispute Resolution Mechanism can only be alternative and can not substitute the Traditional Dispute Resolution Mechanism and we are aware of the problems with the Tribunalization as referred in the judgment delivered by the Hon’ble High Court of Madras in R.Gandhi Vs.Union of India. Certain references in the judgment of Madras High Court as referred are as follows:

“The inexorable logic of this is that the courts can be denuded of the jurisdiction now vested in them, by creating separate or joint Tribunals with respect to each of the matters in the three lists. An example of this is the Debt Recovery Tribunal constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. A parallel Tribunal to deal with matters which are within the jurisdiction of the courts may also be set up as has been done in the case of consumer disputes redressal forums constituted under the Consumer Protection Act, 1986 and the lok adalats under the amended Legal Service Authority Act.

With regard to courts, the Constitution specifically provides for high status to the superior courts – the Supreme Court, and the High Courts, and makes adequate provisions to ensure their independence. The Constitution ash also specifically provided for “subordinate courts” in Chapter VI of Part VI in articles 233 to 237. Appointment to the “judicial service” whose member man the subordinate courts, is to be made only after consultation with the High Courts or in accordance with Rules made after consultation with the High Court. The control over subordinate courts vests exclusively in the High Court as provided in article 235:

“Article 235: Control over subordinate courts:

The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such persona any right to appeal which he may have under the law regulating the conditions of his service or authorizing the High Court to deal with him otherwise than in accordance with he conditions of his service prescribe under such law.”

In contrast, there is no provision in the Constitution  specifically dealing with the Tribunals (except articles 136 and 227 which only provide for appeal to the Supreme Court with leave, and judicial review of the Tribunal’s orders by the High Courts) and there are no provisions dealing with the qualifications, tenure, control, and measures to ensure the competence, suitability, independence, and impartiality of the chair person/president and members of the Tribunals, even though such Tribunals are entrusted with jurisdiction as substitutes to the courts, or as supplemental to that of the courts.

The constitutional guarantee of an independent judiciary and separation of the judiciary from legislative and executive functions can amount to very little (subject only to article 32, 226 and 227), if Parliament, the Legislatures, and the executive whose powers – subject to the Constitution and enacted legislation, is co-terminus with the legislative power – were to be regarded as having absolute discretion to decide upon the constitution, qualifications, selection, appointment, tenure, compensation, control and other matters pertaining to the Tribunals.

The power of Parliament and the Legislature to crate Tribunals does not in our view, extend to rendering such new forums an extension of the legislative or executive branches of the Government, or as forums controlled, or designed to be dominated, or potentially dominated by the legislative or executive wing of the State.”

I feel proud to know the work done by Shri R.K.Jain and I am also equally proud to read the judgment of the Apex Court under reference.   I would like to quote para 21 and 22 of the judgment of the Apex Court under reference as follows:

“21. Although, the petitioner has tried to project the editorial as a piece of writing intended to demean CESTAT as an institution and scandalize its functioning but we do not find anything in it which can be described as an attempt to lower the authority of CESTAT or ridicule it in the eyes of the public. Rather the object of the editorial was to highlight the irregularities in the appointment, posting and transfer of the members of CESTAT and instances of the abuse of the quasi judicial powers. What was incorporated in the editorial was nothing except the facts relating to manipulative transfer and posting of some members of CESTAT and substance of the orders passed by the particular Bench of CESTAT, which were set aside by the High Courts of Karnataka and Kerala. Even, this Court was constrained to take cognizance of the unusual order passed by CESTAT of which Shri T.K. Jayaraman was a member whereby the appeal of the assessee was decided on merits even though the Tribunal was required to examine the question of limitation only. By writing the editorial which must have caused embarrassment to functionaries of the Central Government and CESTAT and even some members of the petitioner-Association but that cannot be dubbed as an attempt to scandalize CESTAT as a body or interfere with the administration of justice. What the respondent projected was nothing but true state of the functioning of CESTAT on administrative side and to some extent on judicial side. By doing so, he had merely discharged the constitutional duty of a citizen enshrined in Article 51A(h). It is not the petitioner’s case that the facts narrated in the editorial regarding transfer and posting of the members of CESTAT are incorrect or that the respondent had highlighted the same with an oblique motive or that the orders passed by Karnataka and Kerala High Courts to which reference has been made in the editorial were reversed by this Court. Therefore, it is not possible to record a finding that by writing the editorial in question, the respondent has tried to scandalize the functioning of CESTAT or made an attempt to interfere with the administration of justice.

22. The matter deserves to be examined from another angle. The substituted Section 13 represents an important legislative recognition of one of the fundamentals of our value system i.e. truth. The amended section enables the Court to permit justification by truth as a valid defence in any contempt proceeding if it is satisfied that such defence is in public interest and the request for invoking the defence is bonafide. In our view, if a speech or article, editorial, etc. contains something which appears to be contemptuous and this Court or the High Court is called upon to initiate proceedings under the Act and Articles 129 and 215 of the Constitution, the truth should ordinarily be allowed as a defence unless the Court finds that it is only a camouflage to escape the consequences of deliberate or malicious attempt to scandalize the court or is an interference with the administration of justice. Since, the petitioner has not even suggested that what has been mentioned in the editorial is incorrect or that the respondent has presented a distorted version of the facts, there is no warrant for discarding the respondent’s assertion that whatever he has written is based on true facts and the sole object of writing the editorial was to enable the concerned authorities to take corrective/remedial measures.”

Note: I have no intention to insult any one or the organization and I have expressed my views with good intention and for the betterment of the society at large.

Author:

V.DURGA RAO, Advocate, Madras High Court.

Email: [email protected]