Wednesday, October 23, 2013

Judiciary without common sense - Delivering only Just Ice. (Philosophy and perspective of common sense on judiciary)



We need to talk common sense. Common sense will talk simple and clear, and actual and factual, near which stays justice.
The courts and judicial system of any country, unfortunately, if too much formalized and proceduralized, will cause itself to be prolonged and distanced from the actual and factual practical world of common sense and, hence, will not talk simple and clear. Emulation and imitation, anywhere in the world, will discourage original thoughts, inputs and creativity of common sense. This will happen naturally in spite of all the sincere positive moves, efforts and attempts to reform the system to make it more accessible to common public as more interacting with common men and their reality. All such moves will give only an illusory output of temporary relief and attention, with its inherent inability to sustain and maintain it.
Creativity and self-initiative need freedom and space. Judiciary has got this space and freedom anywhere in the world. Still judiciary mostly lacks initiative and creativity. Because, the initiative and creativity comes up from common sense that originates and sprouts from life and its reality so as to support and help life and its reality in return.
Easiest way to do and render justice is to go with open and clear common sense. The truth and justice stay near the common sense of common people in most of the cases. Justice by common sense will not be complicated and will not need any further interpretation or explanations or justifications for and after the adjudication. But, our courts or judiciary seems to be not talking or befriending justice and truth of common sense. They estrange themselves from common sense and commonness to the extent that they do not know common man’s tongue or the facts and realities surrounding common men. Judiciary behaves like alien world in a different planet.
Just Ice or just Vapors
Simplest thing to do and deliver has to be doing and delivering justice. Justice delivered will besimple like simple drinking water, easily and immediately drinkable to quench immediate and normal thirst of common man in his daily life. Water is of no use if it is given after the one in need is no more. Also, the same water of justice can’t or won’t be drunk if given as ice or vapors. The justice get frozen or evaporated due to the unnecessary and mostly artificially created delay.
The fate of justice delivered at distance or in delay will be only of just ice or vapors, the frozen or evaporated form of justice. If judicial officers behave like strangers, estranging and distancing from the common man and their affairs, judicial processes will automatically get unwantedly delayed and distanced due to formalities and procedures intended to familiarize such strange judicial officer with the subjects in issue. So is the water of justice delivered by majority judicial officers in present day Indian judiciary happens to like just ice or vapors. Such justice has a look of unbreakable stones or untouchable air which in no way will be felt by common Indian public as quenching their thirst or meeting their quest for justice.
Just ice or just vapors instead of justice, which too delivered after too much toiling with money, energy and time. In most of the big cases where political leaders and big financial allegations are involved, justice stands frozen or evaporated by delay or distance, mostly intended and created to protect the vested interest than genuine interest and feeling of common public for justice and the truth seen by the naked eyes of common sense.
This kind of justice or just vapors giving judicial system no way will harm or punish or deter any of real criminals and culprits, players before and behind almost all corruptions and crimes in India, from doing or repeating such crimes, offences and corruptions. And these actual criminals, who easily get overseen and acquitted by Judiciary due to lack of common sense, and by its tricks of delaying and distancing, are actually leading our nation. They are the leaders of almost all our national and regional political parties. Such criminals are freely playing their game even in Judiciary, be their name is Chief Justice of High Courts or Chief Justice of Supreme Court.
Common sense settles better.
Common sense sees solution and settlement near and clear. Because, it sees the problems and its reasons near and clear.  But our courts are unable to find the solutions and settlement near and clear as our courts and judicial officers are far away from common people and their affairs. The cases and disputes reach our courts and judicial officers very delayed. Courts act and behave as if it is in a distant protected world or planet, away from the facts and realities and unaware of problems and its reasons. Hence, what common sense and common sight of the common people can easily see or feel with their simple open naked eyes and hearts, courts and judiciary do not(and are unable to)see or feel with their microscopes and telescopes.
Longer the time taken, lesser the chance for solution.
Cake should be eaten when it is hot and fresh. But common Indian public has never been lucky to eat the cake of justice until and unless it is old and rotten.
The Indian common sense sees no reason for delay. Rather they feel longer the time for solutions and settlements is taken, lesser is the chance for the same to be solved and settled in right manner. Facts and evidences easily get forgotten or destroyed by the passage of time.  And this is what is happening and this is what is facilitating the corrupt and criminals, including our great political leaders, easily escape from the sight of courts on day to day basis.
Mostly, out of helplessness, common Indian public are made to feel that the courts and judiciary are in a way colluding with culprits and criminals, who are politically and financially powerful, to help them escape and evade from the punishments. The courts help them to use all loopholes of laws and procedures, and facilitate for them the forgetting, tampering and destruction of evidences by delaying and unnecessarily adjourning and formalizing and proceduralising the justice delivery system.
The facts and evidences, clear and near to common sense, which can easily lead to the earlier, easier and faster solution and settlement of cases, are made to be forgotten, destroyed and ignored. That too with the clear knowledge of common sense, and even with the clear knowledge and sight of courts. Every clear and near fact and evidence later on, as the time pass by, becomes a matter of doubt and suspicion for the courts. This is where common public get exhausted of their hope in judiciary.
Courts not convinced, but common sense is.
Indian public with their common sense is very clear about the acts and facts that take place near to them. But the same common sense get embarrassed to see the courts are not convinced of a simple clear matter and fact which common sense of common people are easily convinced.
Common sense, so, has a reason to doubt as to whether the courts and judicial officers lack simple commons sense and common sight? They ask: is the main qualification of our court system and our judicial officers to lose common sense and common sight of very clear and apparent things and facts?
Answer to why our courts and our judicial system lack and loss commons sense and common touch are the reasons, as below, for denial and delay of justice.
Justice denied better than delayed
“Justice delayed is justice denied” was the proverb of the past reflecting the factual and actual. When the courts and justice means opposite of common sense and common sight, the new version of the same proverb to clearly depict the present day reality and frustration of the common Indian public about the justice delivered by Indian Judiciary and judicial system is “Justice denied is better than Justice delayed”.
Denial is better than delay. Denial is clear and direct. Denial done at once, straight forward, will save tolling with time and money. It won’t cause piling up of unsettled cases in courts. It can at least cause a feel of being denied which naturally will call for protest and reaction. Such enlightened reactions and protests will naturally compel the system to change by itself. Whereas, delaying is a kind of distraction and drowsing. It is a kind of slow poisoning and getting people lost of their interest and hope in justice. It will lead them to be helplessly distanced from the whole judicial system and its intended result.
Denial with delay, and the so-called delayed justice, is a burden in terms of money and time. Neither the courts (with its judicial and extra judicial officers and staff) nor the lawyers will ultimately suffer from delay or denial of justice. It will feed the courts with lot of work piled up and it will satiate only the appetite of lawyers for having long pending cases in their files. Those are the reasons why both the lawyers and courts are least concerned of this delay or denial issue. Both have no compulsory targets to meet. Delay or denial will not cause starvation or poverty to them, but to the poor Indian public. Courts will get paid in time by the government and the lawyers will get paid by the poor common men irrespective of delaying or denying of justice and irrespective of losing or winning of the cases. The ultimate sufferers are the common Indian public who, by mistake or by default, happen to believe in Indian judicial system, and in lawyers as their agents in courts, hoping and looking for justice. So, due to their sheer frustration and helpless feel, the common Indian public are getting compelled to say “Justice denied is better than Justice delayed”.
Root cause of delay and denial.
The main reason for delay or denial of justice is that our judicial officers or judges in each and every court are basically strangers to the court, cases, parties and place where the disputes occur. They are also, in addition to their strange or alien feel, without feel of compassion. So, being a stranger without love and compassion, and without having the basic judicial ethic of urge to render justice, they would lack the urge and interest to give speedy and immediate disposal to the disputes. Further, due to his strangeness to the parties and the fact of each different case, he would need more time to avail support from a commissioner and/or a lawyer to get to know more details of each case. The cost of lawyers and commissioners comes upon the poor clients. This is the delay and cost due to the non-familiarity of judges with the place and parties.  Just because the judges are strangers and are not the persons from the same place where the Court is located and where the disputes are occurring.
In earlier days, a different kind of judicial system, which was not organized but effective, was prevailing all over India. Such a judicial system did not incur any cost to run the case or to present the dispute. Also it did not cause any delay in delivering, be the justice sought was denied or delivered.
The reason was very simple. Our old unorganized judicial set up and system was mainly dependent on the selfless people who did not take up the job for salary or selfish benefits. They were also from the same locality knowing each and every one and thing in that locality. This made delivering and rendering of justice easier and faster without needing to depend on selfish lawyers or commissioners as middlemen parasites.
Our present day judges happen to be in their position for their need for a job to earn their own respected living means. Village leaders, who happened to be the judges in the past, was the persons more acceptable and known to almost all in that village, whereas a present day judge is not. If village leader was good, everything he did was good. But, now, even if a judge, by mistake, happens to be good (which is very much unlikely), everything he does can’t be good. Because, our present day justice delivering system itself is delaying, distancing and, hence, denying type. If a present day judicial officer or a judge is not good or is corrupt, there is no way to replace or correct or warn such a judicial officer. He will not be bound by any one upper or lower to him or to his designation. No one can question or influence him in person, except his own selfish interests. Even the appellate courts and higher judicial officers cannot warn or correct or question him. At the maximum what an appellate court can do is to come up with another opposing decree cancelling lower court verdict. That too if the appellate court judge is such a responsible one with good sense.
Main focus of judicial officers.
Prime focus and urge of our judicial officers are not on ensuring or rendering justice in right time and mode. Rather they are more focused on making their own life safe, secure and luxurious. They happen to be judicial officers not because of their love for doing justice or because of their compassion. They become judges only as part of their search for a better, respectable, safer and easier job that can earn for them a respectable and luxurious living at the cost of others, i.e. government service. They are like any other, doing their work like any other do his work to earn living means.
Judicial officers are keener about their status, salary, allowances and promotion. They know that they won’t be salaried more or less for showing or for not showing the compassion towards the common Indian public who approach them for justice. They are not keen on becoming duty and conscious in delivering justice.
Lawyers-the worms and germs.
Mood of lawyers, as the blood sucking intermediaries, also set reasons for delay. Lawyers sooth and protect the judicial officers with their maximum, to get the reward favor from the judicial officers, mostly to delay and adjourn the cases to their convenience. Even when the basic judicial ethics wants the judicial officers to be selfless in rendering, to be frank with the reality, it is a well-known fact that all our judicial officer are self-centric and ego centric people to the extent that they are only keen and strict about being respected by lawyers and are very strict about being addressed in humble language and they easily get disrespected or outraged (to use the provision of “contempt of court” against such lawyers and parties) if in any way any lawyer or party in any way happen to use, by the pressure of fact or time, the words “shall be” or “should be” in addressing or praying to them instead of the words “may be”.
Lawyers don’t wish to see the cases entrusted with them to finish very soon. They don’t mind and complain about adverse effect of courts adjourning case hearing. Their main focus is not on finishing and solving the disputes, but prolonging them to the maximum so that they can milk more money as their fees. Each adjourning will give them a chance for one more fee from their client, in different names. In this way, Lawyers also are helping the lazy and inefficient judicial officers and are contributing their share in pilling up of cases in courts. Lazy, inefficient and impotent judicial officers in return help the lawyers to milk money for a very long time even in simple minor case by adjourning and delaying the justice delivering process.
Lawyers in our court system handles the role of mosquitoes or worms or germs in the mud or wound or dirt. They see each accident or dispute as a wound on which they can settle to suck the blood or puss or dirt. They wish, plan and pray to worsen and deepen the wounds and dirt, so that his role and his benefit will be higher and longer. Both the commissioners and lawyers behave like parasites and burden creeping on the poor layman clients who happen to approach court for whatever reason and hope. Court adjourns a case for another day because of its inefficiency or wrong planning or wrong scheduling. Courts also happen to adjourn hearing of cases because of judicial officers sheer disinterest or because of judicial officers’ assured feel of no loss or not affected due to such adjournment, or the surety feel he has about his position. His salary will be same or more and will be in time in his account. No one can oust him out from what he is in.
Courts are the dustbins or pits of dirt in and around which the worms and germs called lawyers live, sustain and survive.  Lawyers will never complain about the courts and judicial officers or about the laziness or inefficiency of judicial officers, even if they are found to be apparently unqualified, inefficient, foolish and blind. Because, the inefficient, blind and senseless judicial officer are the good omens for them to milk money. Such judicial officer will not harm them or any of their interest. Such judicial officer will sow the seeds for more cases and prolonged fees. Such judicial officers will harm only the interest of the innocent and poor common public, the real victims. It is not because all the judicial officers are good, compassionate and efficient in delivering justice, there is no much complaint against them from lawyers and bar council. But it is because lawyers are very much happy about impotent, unqualified and inefficient judicial officers and about their ability to earn more making these kinds of judicial officers and judicial system as an excuse and cover.
Lawyers very well know that there are lots and lots of foolish and senseless judicial officers in all the courts all over India, who work as the judicial officer without judicial conscience or duty consciousness and selflessness, but are there in the courts just for earning their living and for ensuring their allowances and promotions.
Even if any good selfless lawyer happens to make any sound complaint against such useless judicial officer, it won’t be heard in favor of such lawyer and no other lawyer will support such a lawyer, fearing that the favor of such foolish and senseless judicial officer will be lost. The selfless lawyers who want to serve their clients will be cornered. Majority of lawyers’ prime focus is not on quality of justice, but on quantity of their cases and its fees. They are interested in piling up of cases in their office and in the courts.
Lawyers are keen on creating reasons in front of courts to adjourn the case. They make sure they are busy with other courts. Poor layman client will not know and will not enquire why his case was adjourned. On the other side judicial officer’s negligence or laziness is a prevailing factor for delay as his position will not be in any way threatened.
Lawyers with unaccounted black money
Lawyers’ money from their practice is never accounted or audited, hence it is mostly never taxed, except on the accounts and records lawyers voluntarily give to the relevant departments for formality. There is no mechanism to ensure and make lawyers accountable to the state and clients. Clients are not given any receipt for the fee they pay. Lawyers never, and are never bound to, publish or publicize their income to any authority.  Hence, service to the clients and tax for the money they amass get to be unguaranteed. Clients are unable to go against the lawyers even if the lawyers do not deliver the service justifying the amount they are paid. There is no proof for such fees ‘payments and there is no compulsory receipt system supervised by the courts strictly. Hence, the money amassed by the lawyers automatically become unaccounted and unrecorded and thereby non-taxable.
The concerned government agency, like income tax department, are keeping a blind eye on a big money amassing group of lawyers, like they are towards politicians, all over the country. Any amount that is not accounted or audited are not taxed too, hence is black. So, lawyers become the first party in keeping the unaccounted black money. That too in front of the open eyes of the courts in India that is responsible to see the country’s rules and laws are in strict compliance.
Who will account and record lawyers and their income? What and who will prevent lawyers from misguiding and exploiting their clients with unaffordable fees? We hear, and say very boastingly the stories, about big fees charged by big lawyers. Such big lawyers charge for their minutes and seconds in lakhs and millions. There is no mechanism to properly track and account this money and tax it appropriately. Unless there is any mechanism to track this money dealing and amassing by lawyers all over the country, all the lawyers in India will have to be considered as the black money hoarders and keepers, playing and working as a big criminal threat against the main stream India’s white money economy.
How can lawyers’ service quality be measured and ensured especially to worth the money they get from their clients? Is there any proper and working mechanism to register the clients’ complaints against lawyers? What kind of corrective forces and measures are there against lawyers? Lawyers and judicial officers are like crows. They can eat flesh of all, and no one can eat their flesh.
Courts are for lawyers only as a trapping net to trap and catch their clients. Courts cannot correct lawyers, but facilitate to play their tricks and spread their net. Our court system corrupts both the lawyers and judicial officers, at the cost of public money. Lawyers go as stray dogs unaccounted and undisciplined.
A mechanism, than bar council of India, should be created to protect and monitor lawyers. Lawyers should be accountable and responsible for financial dealings, income and dealing with black money mafias and criminals. The fact that lawyers’ job is the most unsecure and unguaranteed job, disabling them to be working as practicing lawyers outside their country, should not be a ground for them to get an easy walk in teaming up with criminals and mafias to play antinational game of amassing as much black money as possible. Unless their incomes are accounted, all their money and wealth should be considered as black. Lawyers become black money hoarders, helping the other hoarders to hide behind them. The black money amassing by lawyers starts and happens in the eyes the court and judicial system, relentlessly.
If the lawyers’ fee and financial dealings can be monitored, automatically the clients getting cheated and justice getting delayed there by also can be avoided. Lawyers can be held responsible for their money in front of both the clients and state.
Crippled Appellate system
In present day India, each judicial officer is becoming so foolishly arrogant. Their arrogance does not allow them to go for the merit of the case. They give any kind of decree on their whims and fancies. For giving a wrong judgment on any case, intentionally disregarding the merit and fact of the case, such a judge can’t be and won’t be punished or penalized. Not even a negative remarks or warning on such judicial officers can be made by appellate courts judges.
Incompetent Judges
There are hundreds of instances where judicial officers are underqualified to comprehend the subject matters properly and to accommodate the people with tolerance and compassion. Hundreds of such judicial officers can be seen all over India. Their only qualification is that they are appointed as judges. Their disqualification and ignorance helps only to strengthen their arrogance of being appointed as judicial officers. They simply disregard the aspects of equity and natural justice. As for them they are the ultimate authority. They can’t be questioned either by lawyers or by the appellate courts. Even if there are appellate courts above them, such appellate courts at the maximum may come up with a different verdict, but cannot and will not do anything against lower court judicial officer. Such appellate courts can’t punish or warn lower court judicial officers. There will not be or there cannot even be a negative remark on the lower court judicial officer’s negligence or disregard or fault or collusion with the vested interest. There is no such mechanism with our court system to penalize such judicial officers, if they are found to be blindly and willfully wrong in giving a verdict fully disregarding the facts and evidences.
Contempt of court – Damocles’ Sword.
The word contempt of court has become a sword that cuts the throat of freedom of speech and thought. Court stand as the entity that cannot be questioned and corrected. There is no way by which a judicial officer, even if he is utterly and intentionally false and malafide in delivering justice throughout. Even the appellate court cannot warn or criticize or correct him. Maximum the appellate court can do is to come up with another verdict different from the one given by the lower court, that too if the judicial officer by mistake become a person of duty consciousness and justice delivering.
Trade or service unions of judicial officers
All the sectors in India are ruled and controlled by trade unions and service unions, which means all are directly or indirectly controlled and managed by dirty games of our politicians and political parties. That is the very reason why bureaucracy, ruled, protected and controlled by trade unions of political parties, every time sides with political parties and its leaders in their crisis to protect them when any corruption case or allegations comes up against such political parties and its leaders. Written rules and bye-laws of such registered trade unions, in reward, extravagantly saves all the servants and employees in all such public and private sector. It focuses only on the rights of servants and employees and disregards unproductivity and irresponsible behavior of servants and employees. It also disregards the rights and helplessness of poor common public against such servants and employees. The employees and servants in public sector reward back by colluding with the concerned politicians and political parties in case of any problem or corruption allegation against its leaders and activists, ministers or MLAs or MPs.
Also, here practically happens, very embarrassingly, the formation of unwritten laws, rules and byelaws of unwritten and unregistered trade unions for political parties and judiciary, among them, to protect the political parties and judicial officers each other.
Except for formally and for meaninglessly raising allegation against opposing parties and its leader to canvass the vote banks, no political parties and leaders in India have ever been hitherto really sincere to pursue and see any corrupt political leader is convicted or booked for justice, unless they really want to scapegoat someone who, they think, are really incapable and unqualified to be a political leader, that too to save the political industry, their playground.
All the political parties and their leaders equally know as in day light that all the leaders in all political parties are equally naked and corrupt and they equally understand and take it as their duty to protect each other so as to save and protect their very playground of political industry and trade (with its employees of politicians and political leaders). They collude each other not to damage and destroy the very political industry, by protecting each other without major damage or shit on their bodies.
The same thing of collusion to protect judicial industry and its employees of judicial officers happens in judicial field also. Judicial system in has India has also developed a kind of unwritten trade or service unionism to protect judicial officers by themselves. Supreme Court is leading this move to ensure its children of high courts and lower courts are sufficiently protected, and they are given enough space to collude and save each other. Supreme Court has ordered recently to protect and not to criticize lower court judicial officers even if they are found to be at clear fault of not rendering justice or colluding or becoming negligent, biased and selfish.
Supreme Court with its recent ruling has strengthened this tendency of trade or service unionism and collusion among judicial officers. By giving this kind of a ruling Supreme court is ensuring that no superior or appellate judicial officer should make any criticizing or negative remarks on below ranked lower court judicial officer even if such lower court judicial officers are found to be wrong, inefficient or biased in delivering justice or willfully at fault in comprehending the disputes and formulating his decision and its reasoning. Judicial officers are conveniently helped by Supreme Court to forget the basic tenets and conditions of judicial ethics, i.e. to be selfless, unbiased and to have urge to render justice.
Collegium system and appointment of near and dear.
From the fact who are the people appointed as judicial officers all over India hitherto, we can easily come to know those are and were, hitherto, one or other way dear, near and relative of the sitting or retired judges. The collegium system, at the maximum, may ensure that conditions of reservation are met, that too by appointing the near and dear of the sitting or retired judges of reserved communities. Beyond that all the appointments to the luxury living of judiciary are made very arbitrarily, making sure they are kin and kith of sitting or retried judicial officers. This is the convenience our judicial officers have availed when the appointments are done by collegium system. That is how unqualified and inefficient and senseless judicial officers who lack urge to render justice and selflessness by default happen to be the judicial officers of our courts.
Feel of once appointed, appointed forever.
Once a convict is always convict was another old proverb. But in relation to the work or job in public sector, this proverb needs to be re-read. Once selected is always selected. That is the story of appointments in public sector. Once appointed; appointed forever. Irrespective of government’s or country’s becoming poor, people starving, public sector employees’ salary will go up every year. Govt. sector is the only sector where job and its benefits are not dependent on loss and profit or productivity and creativity.
In spite of India being a country with highest unemployment rate, where unemployed qualified people brutally outnumber the employed people and where more qualified people are in waiting queue of unemployment, the appointments in public sector are done for ever.
This feel of appointment and selection for ever is the main reason that makes any government employee, including our judicial officers, lazy, irresponsible, foolish and arrogant as they find themselves unquestionable and un-oustable in their post. It is also natural for them to lose their urge and want for improvement as they feel they are appointed forever, except for their selfish interest of further promotional changes. Once appointed, they won’t find any further reason to maintain in them any kind of soft feeling of loyalty and sincerity, except for their own growth, promotion, luxurious facilities and allowances, the way they understand it. So, this newly formulated proverb ‘once selected, is always selected’ and once appointed is always appointed is also one of the many main reasons for losing and lacking interest in work and to finish the works assigned as fast as possible.
Once appointed should not mean they are appointed forever. The comfort feel of being appointed forever and assurance of getting pension thereafter will make any one stubbornly arrogant, wanting no further initiative, improvement, creativity, sincerity. They will have a feel that they don’t want any further fuelling with any new kind of fuels to keep them running and staying safe in the post. Such a feel of appointment for ever and getting pension till life after death should be deleted from government files.
So, in order to make our govt. employees and judicial officers really responsible, creative, progressive, improving and accountable, we need to rethink about appointment made for ever. There should be a scope and area for evaluation and revaluation of appointments made in any govt. sector, like it is in private sector. Each posting or appointment has not to be forever, but only for few years (i.e. for 5 or 6 years), which may further be extended for further five or six years subject to objective evaluation based on service record, creativity in service, other factors and subject to another test with other unemployed qualified and job seeking candidates for the same post.
If so, the judicial officers and all the bureaucrats will become responsible, working to meet the targets, trying to improve their skill and trying to update with the latest. They will have the content of fear filled with sincerity in their service. The reminder of being appointed only for five years, reminder of getting reappointed on conditions, will work as a sword of Damocles above their head. It will also remind them that they are living at the cost of public money for which everyone on this country is an owner.  Finally they will reminded that there are millions outside as more qualified than them or equally qualified like them to handle their posts and positions, who could not get into the sector and their position only for the reason of luck factor.
                                               
                                                                   Email: ilhamraheem@google.com


Tuesday, October 1, 2013

As the spiders, we weave the net to trap ourselves in it..

As the spiders 
We weave the net of our dreams and desire 
To trap ourselves in it..

We identify ourselves with beauty of the net we are in..

**************

Hollow inside and internally, 
We happen to identify ourselves with external weights 
Of material earning, which doesn't really belong to us.

*************
That which float and fly on top or in heights 
Are those which are weightless too.
 
The weighted ones lay down happy and satiated, 
With solid vision of perfection. 

Your duty is to be, or at least to reach, down 
To see and collect those precious hidden stones and world.