Justice D V Shylendra Kumar
Judge, High Court of
Karnataka
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Bangalore,
4th
January, 2010
NETIZENS AND CITIZENS,
Greetings to you all. My greetings and good wishes for all good
things to come to all of us in the year of 2010.
My earlier communications,
particularly, the posting on the site on 17th December 2009, while I
was at the Gulbarga Circuit Bench of the High Court of Karnataka, has
undoubtedly elicited tremendous response from the enlightened, awakened and
right thinking citizens of our country.
I never had any doubt in my
mind that the majority of our population, even upto 80 to 90% of our
population, have only right values, only want the right things to happen and
all citizens – 100% - expect only the right and proper things from others,
whether I am doing the right thing or not, I expect the right things to be done
by others, more so, by people who are occupying public positions, positions of
responsibility, positions of power coupled with discretion and at any rate 100% competence, integrity and the right response
from the members of the judiciary to the grievances of citizens: to the
complaints of litigant public brought before courts for solutions and nothing
less than this.
ROLE
OF JUDICIARY EXPLAINED & CLARIFIED
Judiciary is one organ of the
State, which cannot afford to have even 1% suspect people, not even a single
judge, who decides matters on considerations other than merits of a case, can
be part of judiciary.
People may accept judges
committing bona fide mistakes and
rendering incorrect/wrong Judgments in which event, they may, if capable of,
can get it corrected before an higher Judicial forum in an appeal, may workout
their remedies before the higher appellate forum, but will never accept a
dishonest judge!
Judiciary is held in the highest
esteem in our country, as is the case elsewhere in the world, but more so, in
our country, which has an ethos of tolerance, a philosophy to help persons who
are in need, and a culture and philosophy of non-violence – never do any harm
to others, even to other creatures on this earth.
Philosophy of peace and
non-violence has a history of more than thousands of years in this country,
starting from the Rishis during the Vedic period, Mahaveera, Buddha, Emperor
Ashoka, the great revolutionary 12th century social reformer
Basaveswara @ Basavanna in Karnataka, crusader Sant Guru Sri Gurunanak and his
followers, Sufi Saint Sant Kabeer, followers of Bhakti cult such as Chaithanya
Prabhu, Sant Tukaram, Thiruvalluvar from Tamilnadu, Haridasas such as Purandaradas and Kanakadas from Karnataka,
Sant Ramdas from Maharashtra, the great Adwaitha Saint Sri Shankaracharya, the
great Visistadwaitha Saint Sri Ramanujacharya and the great Dwaitha Saint Sri
Madhwacharya, all the great sharanas
of Basaveswara’s period, before him and after him, and later Sri Ramakrishna
Paramahansa, his unparalleled disciple the great Indian monk Swami Vivekananda,
who blazed around the globe, communicating the message and meaning of Hinduism,
Sri Arabindo, Annie Besant, great social reformers like Sri Narayanaguru from
Kerala, leading down right up to Mahatma Gandhi, Dr B R Ambedkar, to name a few
and a host of other saints, social reformers and religious leaders, who all
have preached only peace and non-violence.
Right values have been ingrained
into our system and psyche and it is our philosophy and it is a way of life of
the people in our country.
Unfortunately, it is only
the foreign invaders who temporarily occupied and ruled our country who have
left all negative values, have spread the cult of intolerance, violence, hatred
and greed. While all our rishis, saints, social reformers and
freedom fighters preached tolerance and to lend a helping hand to persons in
need, it is a great irony of our times that in our country the negative traits
mentioned above have taken over our people and it is a great irony that we have
degenerated after independence. The rate of degeneration, which was slow and
not very noticeable immediately after independence, has of late become fast and
is currently speeding so fast it can only result in a ghastly accident and
disaster.
It is high time that we
become aware of this development that we are heading towards a disaster, check
it, arrest it and reverse it, so that our country regains its past glory, we
become good citizens, our vast material resources including the greatest asset,
such as, manpower, are all properly harnessed, our resources are well
distributed amongst our countrymen, the disparity between the rich and the poor
is reduced and at any rate I think, it is our duty to ensure that all citizens
of the country are provided with the basic minimum needs to live a life with
dignity and with a little contentment; that all citizens are provided with all
basic requirements of adequate food, proper clothing, a shelter to live and
education. It does not matter much
whether we become a super economic power, whether our country joins the
rat-race with developed countries, whether we can also proclaim that are also a
so-called ‘developed country’ and have acquired this status, but the effort
should be to provide the minimum basic needs of our people.
It is the duty of the
government to provide this minimum requirement to all citizens of our country
and it is to ensure this goal, laws are made by the legislature and is enforced
through the administrators and guided by the elected representatives of
people. In such a system, the role of
the judiciary is to ensure that while achieving this purpose and object, the
legislature and the executive do not go astray, do not lose sight of this goal
and it is the duty of the judiciary to incidentally ensure that persons manning
the legislature and the executive do not misuse their powers to the detriment
of public interest or to the detriment of the citizens of this country.
When such is the pivotal
role assigned to the judiciary in the scheme of our Constitution, if members of
the judiciary themselves go astray, incompetent people are functioning as
judges, if judges themselves are dishonest and become outright corrupt, that
not only spells dooms to the judicial system, but also for the entire country
and its governance and it is the duty of every enlightened citizen to prevent
this, to ensure such a disaster does not take place and if we by now are
nearing this catastrophe, to immediately apply the brakes firmly and move away
from it.
It is only with this object
I venture to deviate from the traditional path and role assigned to a judge:
never to speak outside the court, but only to speak through the judgment.
Matters and topics which I
have covered in my articles, letters to the citizens and netizens are all
matters which do not come up before me on the judicial side and as a judge I
cannot and should not do anything which can interfere with my judicial
functions and in the discharge of my duties as a judge, as per my oath of
office, which I have already mentioned and quoted in my earlier articles.
While I greatly appreciate
the tremendous response of citizens and netizens, I would like to make it clear
that as a sitting judge, I cannot respond.
I cannot enter into any conversation with any person, I cannot and
should not take decisions outside court.
I am not an administrator.
While I appreciate the
response and had even invited reactions to my earlier views, it was not for
taking a decision using my power and authority as a judge, but only to activate
proper response from enlightened citizens so that the message is spread to
others.
I do not hold any adalath in respect of these
matters. But, as I have indicated
earlier, public opinion matters and a concerted, enlightened public opinion
cannot be brushed aside by persons in power however high and mighty he/she may
be.
In the background of recent
developments and as a sequel to my earlier letter dated 17th December,
2009 and the contents thereof, the press people have been denied access to the
High Court premises and no information flowed outside and my stoic silence
towards press, as I do not speak to the press as a sitting judge of the high
court, and as I do not even respond or clarify to the queries from the members
of the press, the reports and news coverage in the media has been more
speculative than of reality.
I recollect the remarks
made by Mr N Ram, Editor of The Hindu,
English news daily at the function that had been organized in connection with
the golden jubilee celebrations of the High Court of Karnataka that the present
day reporters do not provide news but they only provide views! Well, that is a matter concerning the ethics
and professionalism in journalism and can constitute a totally different topic
for examination, but not now!
The chief justice of our
high court having declined permission to hold a meeting of all the judges of
the high court to discuss the subject of propriety, desirability and the
justification of the chief justice not discharging judicial functions, but
continue to exercise powers and authority on the administrative side of the
high court, as an alternative, I had circulated a letter amongst my colleagues
apprising them that we can meet to discuss
and debate over the topic as part of our ‘study circle’ meetings.
The study circle meeting is
an informal, in-house meeting of judges to discuss and debate over legal issues
of current importance, legal issues of complications and on which there are or
there could be divergent opinions and answers and to examine critically
Judgments of the high courts and the supreme court. The topic that I had suggested for discussion
being one of seminal constitutional importance, I was sure that it can generate
a good amount of debate and there can be a healthy discussion, not only in the
light of the relevant constitutional provisions, but also in the light of the
decided cases touching upon the relevant articles, in the Constitution of
India.
But unfortunately, this
message to my colleagues, perhaps, did not reach them in its true spirit and
purpose and with the registrar of the high court having apprised all my
colleagues that the meeting that had been called for had been shot down by the
chief justice, most of my colleagues were under the impression that the cover
containing my letter with information about the study circle meeting which I
had sent to all my colleagues was, perhaps, understood by my colleagues that it
was only about the meeting that had been aborted and therefore naturally there
was not much response.
Even otherwise, the study
circle meetings, I may confess, are not that very popular, as the maximum
attendance had never exceeded 15 at any given point of time and on occasions it
was even 3 or 4 and on the 19th December, 2009, it was not much
different with five of us having an informal discussion about the topic.
This was not a meeting to
pass any resolution, but only to enlighten ourselves with a little study
beforehand. Unfortunately, in the
absence of a proper communication and information, the media has projected the
meeting as a rebel meeting to pass a resolution against the chief justice etc
etc., which was neither the purpose nor is a thing that can be achieved in this
manner.
There are many grey areas
even within our constitution and while interpreting and understanding such
areas, whenever some gap is found and where the constitutional provisions are
not expressive and are silent, we, in judiciary, normally look up to the
customs and conventions that have been developed and followed by the British
parliament, as the parliamentary system of democracy is the system of
governance which we have borrowed from the Britishes and other like governances
and adopted in our Constitution.
While that may not be workable and practical
always, for the reason that the people in our country are different, have
different ethos and values and grafting or transplantation may not always be a
solution, we have to workout our own way and methods, which can suit out
society, needs of our people and our social conditions. It may take some time, but we have to keep
striving. That is my view. The present effort is a small contribution
in this direction.
The Karnataka State Bar
Council in collaboration with the Advocates’ Association, Hubli, had organized
the IX State Level Conference of
Advocates at Hubli on 27th and 28th December, 2009. The organizers have published a souvenir on
this occasion and had requested me to contribute an article to be published in
the souvenir. I have contributed an
article titled Judicial Accountability, which, I was informed, is included in
the souvenir which was released at the inaugural function of the conference on
27th December, 2009.
Under intimation to the
organizers I have already posted the said article on my web-site for the
benefit of all viewers and advocates in particular, who participated in the
conference could debate over the issues raised in this article in a meaningful
manner, if they had read the contents of the article beforehand.
As this communication was
only in draft and had not been finalised and as I could not delay posting the
article titled ‘Judicial Accountability’ on my site, I had to post the article
on the site with a brief introduction, indicating therein that I will give more
details a little later! Well the
intervening winter vacation for the High Court and I being away from Bangalore
since 27th of December and having remained at KOCHI upto 3rd
of the first month of the year 2010, this communication meant to be on the site
along with the article ‘Judicial Accountability’ is being finalized only now
and is posted on my site, so that some better information is made available to
the people and the media and speculative misreporting in the Press and visual
media is avoided/reduced. However, I do
greatly appreciate the role of the media particularly the print media in
educating our people, in creating awareness amongst the citizens about the happenings
in the society.
Print and visual media have
a great influence in not only creating awareness amongst the people of the
country but also in guiding and orienting public opinion. Media can play the most important role for
bringing about positive changes in the society.
I hope and wish the persons involved in the print and visual media
measure upto this great responsibility, play their role in a meaningful manner
and fulfil the expectation of our people.
This communication is still
relevant as on date, as unfortunately things have not changed much on the
Administrative side of the functioning of the High Court of Karnataka with
Chief Justice P D Dinakaran continuing to wield powers of a Chief Justice of an
High Court on the administrative side even though the sitting arrangements for
Judges of the High Court after the winter vacation, when the High Court resumes
normal Judicial work, indicates that Chief Justice P D Dinakaran will not be
sitting on the Bench.
Judges job is to resolve disputes and to decide cases that
come up before them in accordance with the relevant law of the land by applying
that law to the fact situation prevailing in the case.
This function requires a proper understanding of the fact
situation as presented by the parties before the court (trial) and after
appreciating the supporting material (the evidence produced by the parties to
the case) by applying the relevant law, which in turn calls for a clear
understanding of the law on the part of the judge, to decide the case
accordingly.
There is absolutely no question of judges taking upsides
either based on personalities or based on policies. Policy of a judge is only
to follow and apply the relevant law and to render the judgment which
automatically emerges once the fact situation is clear in the mind of the judge
and the judge is conversant with the precise law applicable to the situation.
If at all a judge take sides, it is on the side of the right and against the
wrong.
A judge does not say what is right or what is wrong but
the law says that.
Judges do not fight either a cause or a person. If it is
said that a judge is fighting with any one, it sends a wrong message. My
article and communications are not oriented against any individual.
A, B, C, D, etc. …… holding any particular position at any
particular point of time, is not relevant and a person occupying the position
being incidentally a person in respect of whom issues raised in my articles and
communications are applicable is incidental and that will not make any
difference to the communication.
A judge or a Chief Justice not functioning on the judicial
side should also refrain from exercising any administrative power incidental to
the post of a judge is an universally accepted basic tenet. My articles and
communications only reiterates this elementary principle which even a beginner
of a lawyer practicing on the service side of the legal profession is aware of.
The articles and communications I have put on the net are
all issue based and are all only an attempt to improve the judicial system and
is not directed against any individual. Issues raised in my articles and
communications are not matters for politicization nor for seeking any support
from any individual.
The article and communications are only meant to create
better awareness amongst the litigant public and the people of this country for
whom the judicial system is provided for and the judicial system, effectuated
through courts is made functional through judges with the assistance of lawyers
and for the service of litigant public.
There is no place for rhetoric, passions, groupism,
agendas or policies or even for politics in the judicial system. This position
must be borne in mind.
I may sound repetitive many
a times it is said “old habits die hard” and resorting to repetition is a
legacy of my teaching days, when I used to repeat the same teachings twice,
thrice so that all students can understand the lessons. For many once may be
sufficient for some students one repetition was sufficient or needed and for
few others two repetitions could make them understand. Well, that is the secret “Old habits die
hard”. Judges come and go. But, the courts remain. The institution of judiciary remains and
should remain.
Before taking leave of you,
for the present, I have to once again impress upon everyone including the media
that I have not been able to respond individually to any one of you and this
will be the position so long as I am a sitting judge of the high court. My
request to all of you is to bear with me for my present inability, which is my
professional requirement.
With regards and my
good wishes for the New Year.
By
Justice D V
Shylendra Kumar
Judge,
High Court of Karnataka,
Bangalore