They
say that one of the pillars of Democracy is the Judiciary. They say that in
India we have a vibrant, free and courageous Judiciary. They say that these
qualities of our Judiciary are what differentiates us from China, and, I guess,
Russia and a whole lot of African Nations. All these statements are not
entirely wrong.
Over
the past few weeks I have been getting extremely disturbed and agitated at how
our honorable Judiciary has been going about doing its job. The trigger for
this post has been the massive 570 page Supreme Court judgment in the
Shashikala/J Jayalalitha disproportionate assets case.
But
first a quotation.
“There are two circumstances that lead
to arrogance: one is when you're wrong and you can't face it; the other is when
you're right and nobody else can face it.”
A few days ago I came across a Judgment
passed by the Her Ladyship Sadhna Jadhav of Bombay High Court on 16th
January 2017. The facts, as I can understand them after reading the extremely
poorly worded Judgment run along these lines. An abandoned orphaned girl aged 9
was placed in a protective home. Subsequently, Dominic Rodrigues and his wife
adopted the child. The girl alleged that she was sexually abused by her
adoptive father Dominic Rodrigues and in 2015 the child, still a minor, was
being looked after by an NGO. The NGO filed a complaint against Dominic
Rodrigues who was arrested. An application was made for bail. Various evidence
was presented, one of which was a report by the supervisor of the protective
home. The supervisor had asked the child to write her life story which the
child did. The Judge, records in her judgment
“Perused the statement
written in the handwriting of the prosecutrix [that is the child]. She has
admitted that she used to do all dirty things. It appears that she was
inherently abnormal and had sexual instincts right from her childhood, in all
probabilities, because of the environment and atmosphere where she lived and
the conduct of her deceased mother.”
Please
do note the pathetic language from purely an “English” perspective. Please do
now note the absolutely depraved mind of the Judge dictating the order. Could
not this have been better worded? This is a Lady Judge of the Bombay High Court
in 2017. This is a Judge sitting in Mumbai, not a Judge of the Bombay High
Court sitting in Nagpur or other town. “Dirty things”! Is this what a High
Court Judge should be recording in a Judgment?
Do
you know the tragedy that follows? This is the next sentence of the Judgment
“Be that as it may, on
the date of lodging of the report, the victim was about 17 years old. She had
not disclosed the act of the applicant to the Supervisor of the protective home
and has complained about it after a considerable lapse of time. The statement
of the victim on the basis of which crime is registered, does not appear to be
truthful and therefore, does not inspire confidence of this Court. The
applicant has been in jail for almost 15 months.”
“Be
that as it may.” The Judge has the audacity to write that? If that was so
unimportant i.e. the “dirty things” that the child did, then why record them. Dominic
Rodrigues the accused was set free on bail. He was freed not because the child “did
dirty things” but because the complaint was lodged late, and the victim i.e.
the child did not appear to be truthful.
So
dear readers, I ask, if Dominic Rodrigues was to be released on bail, why bring
on record a handwritten note by a child, a minor child? Is this the quality of
justice we have to expect? Just thoughtless, cruel and egotistical are the
words that come to mind. Why does the child have to painted with such a
terrible brush?
Does
it not make your blood boil?
You could read the entire Judgement here.
Then
there is this other gem from the Kerala High Court. This is a Judgment dated 13th
January 2017 by His Honor Justice P Ubaid. The facts here are as simple and
uncomplicated. Frankly, this Judgment is important as it follows the new trend
of recognizing that pre-marital sex between two consenting adults does not
amount to rape if a promise to marry is broken.
Following
the amendment to the Indian Penal Code, the definition of rape has been
expanded by widening the definition of “consent” as an ingredient in rape. Lack
of consent tantamounts to rape. A slew of cases came to be filed alleging that
consent was obtained by promising marriage and by reneging on the promise, the
consent was obtained fraudulently. Hence, in these circumstances pre-marital
sex was without consent and therefore rape.
31
year old Ratheesh had pre-marital sex on several occasions at several places with
27 year old Ms. X - who has mercifully not been named in the Judgment. None of
this is disputed. After perusing several emails and letters brought on record
the Judge holds that
“Even a common lady or
an uneducated lady cannot be deceived more than once or twice on a promise of
marriage. Ms. X is a well-educated lady having a degree in Engineering. It is
quite unbelievable that she could be easily deceived on a marriage promise on
many occasions.”
Honestly,
I applaud His Honor in using that logic to acquit Ratheesh. However, the Judge
could not stop there. This is what he says twice in his Judgment
“I am well satisfied by
the Ext.D1 and D4 documents that if at all the prosecutrix had any sexual union
with the accused once, or more than once, it was with her full consent, as part
of her unholy union with him.”
“Unholy
union”? Really? Are you serious? Is His Honour a Judge, or a Priest or a parent? Folks, please remember we are in 2017! Why do
Judges have to record such things, use such words and regress to antediluvian standards?
Is it just ego, to place a mark on everything you do? To express an opinion on
everything?
You could read the entire Judgement here.
Now
coming to the Supreme Court Judgment on J Jayalalitha’s case. This is a 570
page Judgment. Even here ego is hard at work Both Judges delivered separate
thought thankfully concurring Judgments. If the Judgment ran for 570 pages, did
one Judge still have something more to possibly say that he could not say in
570 pages that he passed a separate Judgment?
Leave
that matter aside for the moment. Frankly, I believe that it is time the
corrupt are put in jail. But that is not the point. What bothers me most is the
conclusion. I will tell you why.
The
Trial Court convicted the Accused. The Court in Appeal, overturned the
conviction and acquitted the accused. Fine, I could sort of understand that,
Lower Courts are corrupt and/or incompetent and/or susceptible to pressure. One
could say that the Judge hearing the Appeal did not suffer from any of these handicaps.
After all, he was chosen and appointed by the Supreme Court to hear this case.
Of course, he passed an 1100 page Judgment acquitting the accused. This acquittal
caused huge uproar in all quarters.
Now
we have the Supreme Court throwing the Appeal Court Judgment in the proverbial
waste paper basket. The entire Judgment is set aside. Nothing was upheld. You have three different verdics on the same body of evidence. In all three Courts the accused had the best lawyers arguing. I am
not questioning the correctness of any of the three Judgments. I am asking one
simple question. Is there any competency in any Court? Is any Court expected to
have a Judgment that is upheld? Is it all ego? Did the Appeal Court have an ego
and overturned the conviction? Did the Supreme Court have a supreme ego and
overturn the acquittal? Can anyone make any predictions on the merits of his
case? Is there any consistency in Court precedents? Is this a shining example
of vibrancy of Judiciary? I really have no answer.
To
my mind this is all the more disturbing as the Judge to hear the Appeal was
specially chosen by the Supreme Court. Were they such poor judges of competence
that they never thought that this man would go so wrong and acquit the accused?
I leave it to you to decide.
Now
that you have read thru this post, do read my quotation again.
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