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AN OPEN LETTER TO FORMER CJI DIPAK MISRA

P M Ravindran, raviforjustice@gmail.com

The other day when I brought home some stuff from the street corner shop I noticed an
interesting report- of you claiming that you are proud to be called a champion of gender
equality. It reminded me of the king who believed that he was wearing a cloak which only the
wise could see until a boy innocently asked why is the king naked. And the rest you know is
what moral stories are made of.

The verdict on Sabarimala by the bench headed by you just reminds me of another scenario- of
a person who has covered himself with hornet repellants throwing stones at a hornet’s nest in a
crowded place. For now, I will only assert that the Contempt of Court Act is a totally anti
democratic law and is the basic, if not the only, reason for the abysmal failure of our judiciary in
performing its assigned task of delivering justice.

This is what the National Commission to review the working of the Constitution- a judiciary
headed (the Chairman was a former CJI, Mr M N Venkatachaliah), judiciary heavy (six of the 11
members were from the judiciary)-had stated about our judiciary in their report that was
submitted in 2002:

'Judicial system has not been able to meet even the modest expectations of the society. Its
delays and costs are frustrating, its processes slow and uncertain. People are pushed to seek
recourse to extra-legal methods for relief. Trial system both on the civil and criminal side
has utterly broken down.' Also, 'Thus we have arrived at a situation in the judicial
administration where courts are deemed to exist for judges and lawyers and not for the
public seeking justice'.

The Commission’s approach to the judiciary itself has been exposed by Dr Subhas Kashyap, a
bureaucrat member (former Secretary General of Lok Sabha) through his notes. The relevant
extract is:

'While no comments are being made on what went wrong in the procedure, priorities and
perspective, it may be put on record that several of the recommendations now forming part
of the report go directly counter to the clear decisions of the Commission on which the
unanimously adopted draft report of the Drafting and Editorial Committee was based'.

And one example is:

Attention is also invited to the decision taken by the Commission at its 14th Meeting held on
14-18 December, 2001. Para 16 of the minutes records that "There shall be a National
Judicial Commission for making recommendation as to the appointment of a Judge of the
Supreme Court (other than the Chief Justice of India), a Chief Justice of a High Court and a
Judge of any High Court."
"The composition of the National Judicial Commission would be as under:

a) The Vice-President of India


b) The Chief Justice of India
c) Two senior-most Judges of the Supreme Court, next to the Chief Justice
d) The Union Minister for Law & Justice."

However the composition of the NJC as recommended by the Commission in its Final Report
is:

The National Judicial Commission for appointment of judges of the Supreme Court shall
comprise of:

(1) The Chief Justice of India :Chairman


(2) Two senior most judges of the Supreme Court : Member
(3) The Union Minister for Law and Justice : Member
(4) One eminent person nominated by the President
after consulting the Chief Justice of India : Member

And we know what happened to the National Judicial Appointments Commission Act, duly
enacted by the constitutional process. This is when the appointments are the least of the
problems. It can be compared with transferring elephantiasis from one foot to the other!*1 The
more important need is for a National Judicial Accountability Commission, constituted in the
form of a jury, with just one member from the judiciary to guide the proceedings (like in
military court martials, where a law qualified member of the Judge Advocate General’s branch
act as the legal guide, but unlike them in that the members should be from the public). This r
commission should have powers to try and punish delinquent judges with twice the severity of
the punishment that an ordinary citizen would invite for a similar offence. In this context your
attention is invited to an online petition I had hosted in 2005 and which is reproduced as a blog
at https://www.slideshare.net/raviforjustice/310505-the-petition-
toconstituteanationaljudicialcommission. The signatories and their comments are at
https://www.slideshare.net/raviforjustice/310505thepetitiontoconstituteanationaljudicialcom
missionsignatures1to429. 429 informed citizens have signed it and their comments are worth
perusing by anyone interested in the rule of law and dispensation of justice.

And Ms Sumitra Kulkarni, the only woman member of the Commission and a politician, had
summed up the performance of the Commission thus:

1. I believe in a Unified and truly Secular India. However, the Commission debates seemed
often to reduce the Constitution to being a platform for divisiveness and not unification.
2. The Commission did not initiate or promote sincere debate in the public with regards to
the issues that it was contemplating. The efforts was more to "evade and defer" instead of
to "identify issues, table them for debate and to deal with them".

And to know that none of the judicial members of the Commission were tainted in any manner!
(If it reminds you of the allegations by Chelameswar led group of judges, it is just incidental. By
the way, I had hosted an online petition then too. Not that I believed them to be wrong but
because after sending Karnan, whose allegations had been more substantial and specific, to
prison for six months, there was no way the allegations of these judges could be condoned. It is
available at https://www.change.org/p/the-president-of-india-and-the-prime-minister-judges-
revolt-contempt-of-court and has been supported by 285 informed citizens so far.)

I continue to believe that the judiciary is an indispensable part of any system of governance
with emphasis on rule of law. Its duties are no doubt onerous because ultimately its failure to
perform can be disastrous for the society. But whether our judiciary measures up to the
expectations of the people who have constituted, tasked, empowered and pays a heavy cost to
sustain it, is a question that needs to be asked, firstly, by the judges themselves. To a layman in
the society it remains a behemoth that is best kept away from. Wisdom through the ages say it
is a blessing to pass through this life without entering a police station and a court!

09 Oct 2018

*1. There is an anecdote in Kerala about a mystical figure called Naranatthu branthan. Branthan
means mad. He got that suffix to his name because he used to roll up a big boulder up a hill
with great effort and then roll it down and laugh seeing it going down with great momentum on
its own. It is said to have a philosophical connotation- of how difficult it is to up and easy to fall
down. The story related to elephantiasis is that Narantthu branthan had elephantiasis on his
left foot. One day while he was cooking his food over the fire of a pyre at midnight the goddess
of the cremation ground appeared in all her ferocity. But Naranatthu was not moved.
Ultimately the goddess asked him to seek any boon. He replied ‘make me immortal’. The
goddess expressed helplessness. So he asked ‘make me die a second after or before I am due to
die’. The goddess again expressed helplessness. Ultimately, in disdain, Naratthu asked the
goddesss to transfer the elephantiasis from his left foot to the right. The goddess readily agreed
and left happily.

*2. Since I do not have your contact details, this letter is being sent to you by registered post to
your former official address with a request that it to be redirected to your current address.
Being an open letter it is being circulated to the media also and published as a blog at
https://www.slideshare.net/raviforjustice/ The URL will be available only on posting.