Legal Articles

JUDICIAL IMPROPRIETY AND LAWYERING – INDIA’S REMAINING ACHILLES HEEL

My earlier article in the July 2019 issue contained the findings of a German funded study conducted by Transparency International (Cambridge) in its 2007 report on corruption in judicial systems. The article also contained extracts of findings in the 2018 study by the Centre for Media Studies on judicial corruption in India.

The abuse of the judicial process, and the improper practice of law or lawyering has resounding effects on society and the economy.

Legitimate expectations of the judiciary
Legitimate expectation is defined to include a normative society’s valid belief in the proper functioning of its organs of government, in particular its judiciary. By virtue of its prescriptive Constitution, governance in India is required to protect the fundamental rights of its people through its judiciary. Legitimate expectation is an offspring of both public duties and corresponding rights.

In UOI v Hindustan Development Corporation (1993)3SCC499 and in State of Bihar v S Narayan AIR 2019SC705, the Supreme Court held that a case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil.

It is necessary to examine the judiciary and its functioning, and determine whether it meets the legitimate expectations of the people under the Constitution’s prescription of fundamental rights. For the reasons supported by data in my article titled ‘The perception that a significant part of the Indian judiciary is an extension of a larger criminal enterprise. Testing the hypothesis.’ in the July 2019 issue of Lawyers Update, and for reasons stated in the following paragraphs, it is clear that the judiciary’s nonfulfillment of its role is also attributed to the purse holder and society’s designated conscience keeper, namely parliament. The acute shortage of judges and attendant infrastructure speaks for itself.

Parliamentary supremacy has been endowed upon the people’s legislature, but the legislature has demonstrated that it is a motley group of mental rag-tags, whose performance is equivalent to an Indian fire-drill played out in its day-to-day functioning. The data bears out that the rule of law is not a priority for India’s parliament and its state legislatures. The conduct of the executive in its role of mortgaging India’s future is beyond the scope of this article, although inextricably linked to improper governance.

Judicial performance and its impact on the economy
A 2013 report titled Judicial Performance and its determinants: a cross-country perspective commissioned by the Organisation for Economic Co-operation and Development (OECD) for OECD countries, Russia and South Africa observed that:
There is a large body of empirical evidence, that well-functioning judiciaries are a crucial determinant of economic performance. They promote the efficient production and distribution of goods and services by securing two essential prerequisites of market economies: security of property rights and enforcement of contracts.

Law and lawyering and its effect on the judicial process
Litigants and lawyers are culpable under Section 340 of the Code of Criminal Procedure, when false evidence is produced by them before any court. Even lawyers are not immune from prosecution. But for some limited exhortations contained in court judgments cited below, Indian courts have not adequately addressed the pervasive issue of false evidence filed by lawyers that could have a bearing on the final outcome of suits. It follows that the courts have contributed to the proliferation of appeals that lie from suits and other litigation.

Section 35 of the Advocates Act, 1961 applies to the professional misconduct of an advocate. The advocate is guilty of perjury for making false statements of fact to the court on behalf of the client, and is guilty of misconduct involving moral turpitude as held in Shyam Sunder v Sheo Rai Singh AIR(31)1944 Oudh236 and in Amarchand v X Advocate AIR1951Raj110. A falsehood or misrepresentation does not lose its character simply because it is innocuous on the basis that the court cannot be misled being aware of the facts. An advocate who makes a false representation is rendered unfit to continue to be a member of the advocate’s profession. This is the principle stated by the court in First Grade Pleader AIR1923Mad485,486. Where an advocate makes two contradictory statements, one before one court and another before another court, the advocate is guilty of gross misconduct as held in Pleader’s conduct AIR 1929Lah803.

In Hiriyanna Gowda v. State of Karnataka 1998 CriLJ 4756, the court observed that:
1. The present application is filed under S. 340, Cr.P.C. … It has unfortunately become the order of the day, for false statements to be made in the course of judicial proceedings even on oath and attempts made to substantiate these false statements through affidavits or fabricated documents. … In all matters of fact therefore, it is not only a question of ethics, but an inflexible requirement of law that every statement made must be true to the extent that it must be verified and correct to the knowledge of the person making it. When a client instructs his advocate … being an Officer of the Court acts entirely on the instructions given to him, though the lawyer will not be immune from even a prosecution. …

2. It has unfortunately become common place for the pleadings to be taken very lightly and for nothing but false and incorrect statements to be made in the course of judicial proceedings, … and even in cases where this comes to the light of the Court the party seems to get away because the Courts do not take necessary counter-action. The disastrous result of such leniency or indulgence is that it sends out wrong signals. It creates almost a licence for litigants and their lawyers to indulge in such serious malpractices because of the confidence that no action will result. To my mind, therefore, the fact that the petitioner has pressed in this application requires to be commended because it is a matter of propriety and it is very necessary … that an example be made of persons who are indulging in such malpractices … . This will at least have a deterrent effect on others.

In Swaran Singh v. State of Punjab AIR2000SC2017 the Supreme Court observed that:
37. If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery. … Perjury has also become a way of life in the law courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint…
In Vijay Enterprises v. Gopinath Mahade Koli 2006(4)BomCR701 the Court held that:

6. … We are a Court of Law sitting here to ascertain the truth and give justice in accordance the law to establish truth and not being misled by the advocates and the parties in the various directions so as to make it almost impossible to give effective and truthful justice to the litigants at large. In my opinion keeping in mind the aforesaid position it is high time that where the people have blatantly used the fabricated document … or by making false statement … cannot escape the penalties.

In Sanjeev Kumar Mittal vs. The State 174(2010)DLT214, the court observed that:
1. … has filed this application under S. 340 of the Cr.P.C. for holding an inquiry and to make a complaint to the concerned Magistrate against the petitioner under Ss. 193 … of the IPC. This case demonstrates the extent and type of malaise which clogs the wheels of the justice delivery system. It is an instance of how litigants make false averments of facts in the pleadings … with impunity. Thereafter litigation, on controversies supposedly arising out of these false averments are dragged on for years in the hope that the other side will succumb to buy peace. If the other side does not so settle, in the end, he is hardly compensated and remains a loser. There is little fear of law in the minds of the unscrupulous.

An illustration of the abuse of power by judicial officers
In a partition suit filed in O.S. 6285/2008 at Bangalore city civil court, Karnataka, the pleadings of the defendants were that some of the suit properties belong to the Hindu Undivided Family, are ancestral and unpartitioned. There were over 100 hearings but the case did not go to trial. After 8 years, the case was dismissed on a matter of law on the grounds that there was no property to partition.

The plaintiff submitted documentary evidence with the plaint, besides filing an interim application under S. 340 of the Cr.P.C.
which showed that perjury was committed by the defendants with the same lawyers who represented the defendants in various cases. The perjury was material and went to the root of the matter in dispute. The 340 Cr.P.C. application along with other interim applications were not even numbered. Following half a dozen judges, the trial judge who disposed of the case and retired shortly thereafter was Venkatraman Bhat who at the time of hearing had already suffered a paralytic stroke. The judge needed to be physically assisted to sit on his bench and his spoken words were difficult to decipher. During oral arguments on a matter of law, the judge’s head was shaking vigorously from side to side and it was a strange sight in the court room. There were admissions by the defendants that other suit properties were also ancestral and unpartitioned, and issues which involved mixed questions of law and fact were ignored by the judge.

Based on the two studies reporting nationwide corruption in the judiciary and in respect of access to public services (supra), it is apparent that a significant number of power, prestige and money seeking legislators and judges, have contributed to relegating the judiciary to the status of corned rats with the absence of a collective solution to judicial ills which have resulted in a backlog of 35 million cases.

Parliament and legislatures, assisted by the executive have ensured that Indian society has mortgaged its survivability. Society as a whole suffers from the elixir of fatalism. The shifting of the centre of gravity of world economic power from the west to the east bodes bad times ahead, with India apparently positioned to bear a significant economic load on its weak legs. India is a third-rate economic power ranked third in the world in terms of its GDP based on purchasing power parity. 50% of India’s GDP is generated by its unorganised sector which is an incongruous reflection of dehumanized living and working conditions which is captured in a human development index (HDI) score of 130 out of 189 countries.

In view of the above facts and reasons, the hypothesis concerning the perceptions about the judiciary is validated.
The Criminal Cases Review Commission (CCRC) is a statutory body in the U.K. that oversees miscarriages of justice. In such instances the Commission refers cases back to the judicial system and judgments are overturned in 67% of the cases so referred. The independence of the CCRC has been criticized since it receives funding from the government. However, there is scope for states in India to adopt similar procedures in both civil and criminal cases. Transparency International also recommends other basic approaches to solve the ills of the Indian judicial system. Television monitoring of court proceedings in India may also help proper court functioning and reduction in case backlog. The public needs to perform its fundamental duties to ensure that its fundamental rights are protected.

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