This is a true story. In fact, all stories mentioned here are true.
The provocation for this article is a sad letter written by a disillusioned former national regulator. He had a brilliant academic career. Unlike most of his classmates, who went abroad to make money, he preferred to stay in India. Over the years, he got interested in the workings of a national regulatory commission. He used to send blogs on the vagaries of the system. The government made him one of the national level regulators — either to silence him, or because somebody in the government liked his critical comments.
The facts are as follows: In a particular instance, our regulator launched a case against a person for contravening the regulatory Act. The accused person petitioned a Court making a variety of allegations against the regulator. The Court ordered an
Soon after he did so, the accused petitioned the Court to withdraw the case. Suddenly, the Court became very active. Not only did it take up the petitioner’s case immediately, it called on the now ex-regulator to agree to the closure. He refused. The following are (edited) extracts from the regulator’s description of what happened.
UNFOLDING OF EVENTS
“I stated that I felt the Court’s actions would stymie the functioning of the Regulatory Act. I reiterated that I believed I was raising certain issues of importance to the Nation and had stated nothing which could be considered as scandalising a court. My counsel also said that I had in no way committed any act of contempt of the Court but only expressed my anguish at the large number of matters where stays were given ex parte by the Courts. Further, my counsel pointed out that the Court had not followed the provisions of Article 226 (3) of the Constitution. That Constitutional Amendment sought to ensure that in all ex parte cases, the judiciary should ensure justice to the party which was not present, by hearing the case and deciding the matter within 15 days.
“The judge called me as well as both my and the petitioner’s counsels, to approach him. He referred to the limitations of the Courts, the constraints in which they function. This shows that even Constitutional Amendments are buried and we keep talking of new laws! Both counsels advised me to agree. I agreed to close the case, and the petition is now closed.
“The petitioner did not want the enquiry to be held, and he succeeded by flinging a false affidavit. I decided not to point out the obvious flaw in the Court naming me as a respondent personally, so that I could raise certain larger issues. Incidentally, the Court refuses to treat the Commission as a party when hearing any of the writs against the Commissions orders.
“How I acting as a Commissioner could be personally named as a respondent for an act done as a National Regulator in discharge of my duties is a mystery. However, Don Quixote-like, I thought I would try and correct the system. At the end nothing was achieved, because, as everyone explained to me a Court can make me come from my home town dozens of times, without even touching on any of the core issues.
“The Indian judicial system can wear you down by its slow and grinding process, and that is a danger bigger than the contempt power. I think that the Court’s ability to make a person travel any number of times is a real threat.” For instance, before Independence, Sir C. Sankaran Nair, an Indian Member of the Viceroy’s Executive Counsel filed a case of defamation against an Englishman who took the matter to the Privy Council which called him to London fruitlessly so many times that he ended up very poor and a very bitterly disillusioned person.
SLOW PACE OF JUSTICE
There is no doubt that judges have their own problems. It is a fact that they are very poorly paid and retire too early. Those problems can be overcome: The Courts themselves may declare that the salary granted to them at the time the Constitution was passed should be the real ones not affected by inflation. Then, judges will get several lakhs of rupees as their salary and will not have to work after retirement to maintain their standard of living.
As for the retirement age, a Constitutional Amendment may be necessary — to link the age of retirement to life expectancy.
At the time of Independence, India’s life expectancy was only 27 years; it is now 67, forty years higher. Many people are now intellectually active well into the eighties. We do need a law that links the age of retirement of judges to life expectancy.
As matters stand, our judicial system, at times, lets criminals escape and innocents to suffer. One of the persons arrested by my brother-in-law when he was in the CBI told him: “Sir, why do you bother so much? You know this case will never be finished even by the time you retire!” He was right.
Then, there is the case of Nerurkar, then the No. 2 person in the Department of Electronics who was accused of spying. The evidences against him were three: One, a printed pamphlet found in his house on a night vision system; two, notes on a lecture he himself had delivered to auditors of defence purchases and three, a dairy noting of the Department of an arms agent visiting him. Nerurkar was released several years after he retired for lack of evidence.
As ex-Chief Justice Verma has been doing, our judges should ponder whether they are truly ensuring the Rule of Law!
(The author is a former Director, IIT, Madras. Response to indiresan@gmail.com and blfeedback@thehindu.co.in )
This is 347th in the Vision 2020 series. The previous article appeared on January 12.