The fact that Corruption is rampant in India is no more a matter of debate but is a matter of fact. Judiciary is equally affected by corruption as any other sector. Almost every Chief Justice of India, who has retired in past decade or so was subsequently alleged to have abused his position to favour friends and relatives. This month celebrates anniversary of judicial Martial Law imposed by then Chief Justice Y K Sabharwal, in respect of commercial/office use of properties while his own children were using his official residence as registered offices of their newly formed companies. This was subsequently revealed by press alongwith the information that the sons of Subharwal made billions from the horror created by his orders. I was also a victim but that tale can wait another time.
Here is a problem of another kind. The judicial system is based on principles of Natural Justice i.e. No person should be condemned unheard. It means that if a person makes a plea to the court, it must be taken note of and considered. Court may reject a plea but it should give reasons. Brevity in reasoning cannot be understood in legal parlance as absence of reasons. This is called right of losing party to know the reasons as to why it lost. Unfortunately there is no system of Court recorder in India. Oral arguments are not documented. However if a plea is taken in writing but not pressed in oral arguments, court can ignore it. It is an unusual dichotomy but it is a fact of life.
The judicial dishonesty is to ignore the argument either fully or partly. This makes writing the suitable judgement very easy. The dishonest judge takes note of only that part of arguments for which he has the answer to reject. That argument which is irrefutable, is completely ignored. Worse case is where all the arguments are recorded in the beginning of the judgement, but answers are given only in respect of few. This trend has caught up and is unlikely to subside any soon. Why?
Reason is that appellate court do not look at it as any problem at all. They presume that at worst it is an error. They simply re-hear the matter afresh and decide, without going into the question of ‘judicial dishonesty’ at all. The way system is clogged with the explosion of litigation, superior courts think that if they start looking into judgement writing aspect, they may demoralise the subordinate judiciary. Thus the ‘dishonesty’ I’d thriving under assumed name of ‘incompetence’ or at best ‘error’.
Justice is dead. Long live the justice.
© Sandeep Bhalla