A PAIN IN THE ARSE
“That is not when the petitioner is pleading in person”
That was the retort from the senior-most judge (other than the chief justice) of the supreme court of India while I was trying to present a case before the court.
One cannot plead some one else's case as long as one is not a qualified lawyer; but anybody, that includes me, can plead his own case. And there is no distinction of any sort between a professional lawyer and the petitioner who is presenting his case in person as far as the regulations are concerned. And the law is the same for everybody; there is nothing like when a lawyer is pleading a case one type of rules is applicable and the petitioner is pleading in person it is another set of rules – that will be ridiculous.
Then why did the judge tell me “that is not when the petitioner is pleading in person” ? Very simple sonny, just making a pretext - he did not have anything worthwhile to say!
There is one more thing – when you are a supreme court judge, whatever you say is the law ( and not the other way round, it looks ! )
that was by way of introduction; I will try to put things in their proper perspective now. My case was a writ petition under article 32 of the constitution of india for the restitution of my fundamental rights.
Article 32 comes under part III fundamental rights of the indian constitution and states as follows :
“ Remedies for enforcement of rights conferred by this Part .—(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs , including writs in the nature of habeas corpus , mandamus , prohibition, quo warranto and certiorari , whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2) , Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2) .
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”
Article 32 guarantees ( that is the exact word used in the constitution ) its citizens the right to move the supreme court for restitution of their fundamental rights and this ( the guarantee) will not in any way be affected by the powers invested in any other court. ( "without prejudice" in law means without affecting any other legal matter: so says my oxford genie ) But I was being told by the judge to go to the high court. This was in spite of the fact that that I had invoked article 14, in the above writ petition in view of the treatment meted out to me in the kerala high court.
Article 14 is an integral part of part III fundamental rights of the constitution of india and says as follows :“ Equality before law – the state shall not deny any person equality before the law or equal protection of the laws within the territory of india.”
Once I reached delhi and started making preparations for filing the writ petition, the boastings of the gestapo were something else; but there I was prepared and was certain that on that point I can contradict successfully the claims of the legal luminaries and other intellectual giants with whatever is left of my “impaired” intellect. < I would love to repeat here the exact words I told my students long back “ I am a fool and I know it; otherwise I would not have ended up in this bloody shit pot ( that I was in then and am in even now). But there are sillier fools around and they are living in that proverbial paradise” > But I was never prepared for this sort of a turn around – the supreme court bluntly denying me for all practical purposes what is supposed to be my solemn right as a citizen. And that when even just the threat of infringement of fundamental rights is considered enough to issue a writ.
I was aghast, thunderstruck I would say, and all I could blubber was that article 32 was the purview of the supreme court; and indeed I think I saw the companion judge nodding his head. And it was exactly then that the presiding judge told me “ that is not when the petitioner is pleading in person!”
To be fair, common justice will demand and one would expect that the petitioner in person will be given a bit of leniency rather than the other way round. Well; the treatment meted out to me has always been different – I am a “special” person!
Persona non grata
and
POLICE HARASSMENT
In the supreme court of india, a country being boasted as the largest democracy in the world, I had a policeman breathing down my neck as I was trying to present my case before the court. The moment the judge finished I was herded out by the policeman who most likely would have manhandled me in case I tried to utter another word.
Even prisoners I understand are given a certain amount of leniency inside a court of law, like their handcuffs are taken off and they are put at ease and that sort of a thing, at least by some judges; but my case was altogether different. As some one who had successfully challenged the might of the indian gestapo and foiled their onslaughts till date I was worse off than a prisoner.
In new delhi the anal gestapo and his pimps had boasted that my case will never get filed. I also did not have much of hope there for I have no legal training whatsoever and if someone is keen they can always find a mistake here or there and reject the petition and there was nothing much I could have done about it. But after a certain stage things cleared up; there was a turn around in deed, and I got the petition filed – it is very much possible that an MBT had moved in on my side.
It was after this that new rules were introduced making the petitioner in person persona non grata for all practical purposes. Petitioners trying to present their cases were no more allowed entry into the registry; of course arrangements were made out side the gates. And as far as I know it was as part and parcel of these rules that the system of the policeman conducting you inside the court and that sort of things started.
The story going round was that a petitioner in person misbehaved in the court and these restrictions were enforced following that. I or for that matter anybody else whom I asked had no idea who this misbehaving petitioner was and what happened to him.
Whichever way it is I had a police constable dictating terms to me and telling me how to behave even inside the supreme court of the largest democracy in the world – that is what they claim India is. You can claim that it is a coincidence but I am afraid there has been a bit too many such coincidences in my life!
REVIEW PETITION
In the case of the decision by the supreme court on my writ petition I used the only option available – filed a review petition RP ( c ) no. 774 of 2009. But the review petition is decided by the same judge who gave the original decision and according to one of the staff members in the registry 99.99% times they are rejected. And that was exactly what happened in my case as well. But it did serve my purpose; that of putting on record, and in black and white, what I thought of the decision. A copy is available on the net.
I am afraid the whole things shows the desperation that people were in; the points raised by the legal luminaries on behalf of the gestapo were not holding water and there was no other way of denying me a hearing other than on this pretext. I consider my effort a tremendous success and pity the people who are ready to stoop to any level to achieve their ends. I am not at all surprised – they have always used below the belt tactics.
THE HIGHER JUDICIARY
It was in 2002 that I, for the first time in my life, filed a petition in any court of law; that was after I crossed into my fiftees. In that first case I had hired the services of a lawyer. it was an open and shut case and of course the decision was in my favour. But the concerned culprits whose lawyers get paid from the exchequer had decided to drag on with the judicial proceedings with aim of tiring me out monetarily ( as well as otherwise ) and it was out of sheer desperation that I started pleading cases on my own.
Later on matters got more complicated and I had other reasons for pleading on my own – for one thing it has to be some one who has faith in the cause and in may case I am the only one that qualifies that way. Also with the tremendous clout of the indian gestapo it is very much possible the lawyer will take money from me and plead the gestapo's case!
So the second writ petition on the same matter I myself prepared and presented; and I got a decision in my favour. Again the authorities managed to drag on and I prepared a third petition and got it admitted. It was then that foul play started in earnest. A detailed account is available in the draft of the writ petition I have put on the net ( para 15 ).
The crowing glory of it was when the case was called on September 24, 2004 after duping me into believing that the hearing was on September 25, 2004. If at all there was an exigency the hearing could have been postponed. Not only that, decisions were taken on that day in my absence – it was an act of commission.
If an ordinary mortal does it it will be called cheating; but what do you “learned” “gentlemen” call it when it is the members of the higher judiciary that does it! judicial “activism” ? my foot!
The knowledge base of the human race in the present day world is so vast no one can afford to know everything about everything. But most people, at a pinch even the members of the judiciary of this country, can be educated on particular aspects by concerned individuals; but that is provided they are ready to listen and give you a hearing.
The basic tenet of the judiciary is a fair trial and there cannot be a fair trial without hearing both the parties. How can a prejudiced system that takes one sided decisions qualify as the judiciary!
The instance mentioned above was not an isolated one. During the same period ( 2004 ) I had another case in the kerala high court, this time alleging police harassment. The hearing, though in the open court, was a private affair between the presiding judge and the learned govt pleader and I was spared the trouble of even uttering a single word.
The judgement specifically mentions that as the learned govt pleader assures the court that there is no harassment there is no need for any orders. Of course I am not a learned lawyer but an illiterate imbecile and I cannot be expected to understand the logic of the words of wisdom from the legal luminaries. And in my utter foolishness a question comes to my mind – if there was harassment would the learned govt pleader have admitted in the court that yes her party is harassing the petitioner!
Or could it be that the illiterate me did not use the correct terminology? It was that I was not being harassed but was being tortured and I should have used the term torture and then the learned govt pleader would have told the court yes, they were torturing me?
The judgement also says that the learned government pleader produced all sorts of documents but I have no idea what these documents were ( “security” reasons ? It was the dgp who was the respondent in that case) and absolutely no clue as to what transpired between the presiding judge and the learned govt. pleader.
Obviously there is no need for me to say anything. There is a hindu concept - yada yada hi dharmasye glanirbhavathi bharathe - the gist of it is that whenever required the hindu god takes various avtars to save the world from demons, that is people like me!. Could be these are the latest versions of those avtars - they know “every thing”.
In fact in the kerala high court in the year 2004 what I was facing was a biased, prejudiced set up.
Oooru bhangam
By the way, hitting below the belt was an accepted norm amongst many of the avtars - there are 'n' number of instances described in the hindu mythololgy. And all the time I was preparing briefs and making efforts to get myself heard by the kerala high court things were happening in the back ground unknown to me. One avtar cooked up an enquiry report on the sly, another performed a procedure on me; and they wanted to present these as evidence in the court. Obviously this cannot be done when I am there – the cat will be out of the bag. They wanted a special session and was awarded that – as simple as that. the preponement of the trial probably was to facilitate this.
Whether it is that the members of the judiciary were too naive and swallowed the bait hook, line and sinker or that they were hand in glove with the criminals is a moot point. Whichever way it is, I was written off as a human being (that is Great ) and am at the mercy of the hired thugs of the spies! So, in effect the worst injury was inflicted, knowingly or unknowingly by the kerala high court judiciary and they have got themselves implicated in the affair. And that was the simple reason why I approached the apex court and not because I had my father-in-law there in new delhi.
The apex court did a cunning pontius pilate on me and washed their hands off; and I have to go back to the kerala high court again.
Koyi dikkath nahim, I will do that.
Ninte keeshayil paisa undota ?
Now a bit of ancient history. I was born in a lawyers house - my mother's maternal uncle, who had taken her under his wings and arranged for the confinement. And there was a regular lady doctor of those days ( and not a dayi or midwife ) in attendance. I also must have benefited for the passage, man's toughest passage in life, must have been made easy by the lady.
This particular gentleman's elder brother was also a lawyer and unlike his younger brother who was rather reserved he would call me, a kid then, to his side and talk to me; and one of his favourite questions was “inte keeshel paisa undota?” I will show him my empty pocket and he will ensure that it is no more empty. The picture memory I still have is of the smiling face and the tip of the betel leaf stuck just below the side whiskers.
These were the senior most members of the clan and law was their profession; and fellows like me grew up with utmost reverence for this particular profession. Indeed, law was “the profession” then.
I am afraid times have changed and changed drastically. Ask any upcoming youngster of today who is in that transient stage in life when she or he has to decide as to what to do with their lives. How many of them would say they want to become a lawyer ? I mean from amongst the brighter ones doing well in their studies. Your guess is as good as mine – hardly any. Same was the situation in my student days in the late sixtees as well. Of course there are the exceptions like say for example the daughter or son of a leading lawyer being groomed to follow in the parent's foot steps or may be the odd ones who take up law out of choice; but those are the exceptions that prove the rule. So there is a dearth of talent from the very beginning.
The Chakari chorr between the ears
Now if you are a practising lawyer you have to have some thing other than rice pudding ( or chakarichorr in the case of keralites ) between the ears to succeed. Others will be eliminated. The common man is not bothered that way; he can pick and choose and make his own decisions whether to engage you or the other person to plead his case. But there is a catch when it comes to the judiciary – we do not have a choice there.
The child sitting on
vikramaditya's throne
The procedure for selction of judges of the higher judiciary in this country I am afraid is completely arbitrary. Good lawyers mostly are known to refuse to become judges; i am not surprised - you would want to become a christiano ronaldo and not a lines man or even a referee for that matter.
As matters stand right now, it is very much possible that a struggling lawyer, with hardly any legal acumen and with the right connections might one fine morning find himself sitting on the other side and deciding cases. I am afraid the moral and intellectual degeneration of some of the members of the higher judiciary that I had to put up with in the last few years is the direct result of this.
I have heard a story of a wayfarer listening to children play acting being surprised by the words of wisdom emanating from the child doing the role of the judge. He later found out the reason - the child was sitting on the throne of vikramaditya. That is just a story; such things do not happen in real life.
Proctalgia
There ought to be a fool proof selection procedure like they have in the indian administrative service for example for selection of judicial officers as well. It is not very sensible making an offer of a judge's post to some one who has built up a good practice through hard work and years of toil and made a reputation as a professional .
The judicial officers must also be recruited at a younger age, start from the lower rungs, gain experience and only those who prove their credentials, moral as well as intellectual, should he elevated to the higher judiciary; that is if this set up is not to remain a pain in the arse for the common man.
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