Monday, 3 September 2012

The Second Representation to the Chief Justice of India Justice Mr. Kapadia

Introduction Everyone in India is disgusted by the massive corruption in India! Many people blame Indian genes for the corruption in India. And there are others who blame the government for the corruption. As looked deeper and deeper in to the stuff I came to know that if a game of baseball/football/cricket is corrupt then the umpire has been complicit in it. If an umpire has low tolerance towards foul play in a game he would show the yellow or red cards when there is a foul. The players who win on the strength of fowls will re-work their strategies and try to play better. But if the umpire is complicit or inactive or incompetent or insensitive then there would be a selective or discretionary show of yellow or red cards. Now imagine who wields the position of an umpire in any rule of law country which is a democracy? It has to be the judiciary. I have heard a British athlete of Jamaican origin saying, "My grandfather told me when a fish rots it rots from the head!" In other words all corruption begins and ends with the people at the top who are supposed to stop it. If they do not stop it then the judiciary has to grow some teeth and claws to stop it. This is the tragedy of India. The failings of the Indian judiciary is the main culprit behind the corruption in India. So I decided to pursue the Chief Justice of India under his Administrative cum Supervisory jurisdiction over all other courts in India besides his own Supreme Court! I copied my letter to the Prime Minister of India to the Chief Justice of India invoking his Administrative cum Supervisory jurisdiction over the issues which were relevant as on 15 February 2011. No body replied as is what happens in India which includes the Prime Ministers, the President's, the Speaker's, the Chief Justice's offices under this dispensation. They are so shy it seems!!! Making the Chief Justice of India realise that the Chain of Command in matters of Administration of Justice, Rule of Law and Protecting the integrity of the Constitution of India stops at his door steps is fraught with many dangers for me as I am a lawyer whose licence could even be cancelled if the Chief Justice or his fellow judges were to side with the Bar Council of India on a trumped up complaint. But I want to stand my ground as far as I can. That's all I can do now. I do not blame the opposition leader for not replying but the people who are in government has a higher duty I suppose. So I am not going to let this issue disappear and have put the ball back in the court of the Chief Justice of India!!! So today 3 September 2012 I submitted a copy of my Representation to the Chief Justice of India at the website of believing that it is the least I can do for my country. The Representation is reproduced as below; Second Representation dated 03 September 2012 to the Chief Justice of India invoking his Administrative cum Supervisory Jurisdiction over the Supreme Court and High Courts in India I Johnson Thomas K write as a former advocate of the Supreme Court of India and a solicitor of the Supreme Court of England & Wales and a citizen of India and an author and a conscientious citizen in my capacity also as a “Whistle Blower” further to my letter and representation to the Honourable Chief Justice of India Justice Mr. Kapadia (“the Chief Justice”) dated 15 February 2011 and submit as below; I as citizen of India is deeply concerned about the inability of the Indian Judiciary presided over by the Chief Justice to dispense, protect, guarantee and preserve the fundamental rights guaranteed under the Constitution of India (“the Constitution”) for the following reasons as below; 1. Could the Chief Justice ensure that his fellow Judges at the Supreme Court of India (“the Supreme Court”) and indeed the Chief Justices of the High Courts in the federal states of India do not act with any conflict of interest by presiding over matters where they have a conflict of interest or potential conflict of interest due to their affinity or opposition to any subject matter before them or due to the involvement of any of their family members as defined under the Prevention of Corruption Act so that the citizens at large are relieved that justice is not only being done but it also seems to have been done? 2. Could the Chief Justice ensure that the Executive allocates sufficient funds for setting up competent civil and criminal courts in sufficient numbers on a war footing in all villages/townships or municipalities with a population of more than ten thousand so that justice is not denied to the people at large by delayed justice which is the norm in India? 3. Could the Chief Justice in his jurisdiction ensure that there is a Code of Conduct which stipulates to all sitting and retired judges that they would not seek or allow themselves to seek any political postings such as was the case where a former judge of the Allahabad High Court became the Chief Minister of Uttarkhand just recently clearly exposing a conflict of interest raising questions about the integrity of that judge’s rulings due to valid apprehensions about nepotism and corruption? 4. Could the Chief Justice ensure that a communication goes out from the Supreme Court due to their supervisory cum administrative jurisdiction over all courts in India asking them to treat all corruption cases pending in all courts as a serious breach of rule of law as in every act of corruption there is one or more laws, rules, norms and best practices are breached to favour one or more parties against the informed consent of the majority of the citizens of India? 5. Furthermore, in matters of corruption could the Chief Justice and his fellow judges make an administrative declaration to all courts in India that every incidence of corruption breaches right to equality before law, right to equal protection of the laws, right against discrimination, harassment and bullying all guaranteed under the fundamental rights of the Constitution and any attempt to delay prosecution by the state machinery on a case by case basis subverts rule of law especially in corruption cases involving political leaders? 6. Could the Chief Justice and the Supreme Court ensure that all police station interrogations are conducted in the presence of a lawyer and video-graphed to prevent witnesses from turning hostile at a future date and/or being intimidated or pressurised to lie which all pervert the course of justice rendering the outcomes of such trials and the judgements unsafe to be implemented? Could the Chief Justice direct the Union and State governments to implement urgent witness protection schemes? 7. Could the Chief Justice and his fellow judges at the Supreme Court and the various High Courts ensure that they would not hold any office in a trust or a charitable organisation where there is direct or indirect charitable funding from foreign entities or their citizens or their charities? 8. Could the Chief Justice and his fellow judges in the Supreme Court and the High Courts take staggered holidays instead of shutting down the courts during summer, Christmas and other holidays which is a colonial practice and is a grave injustice to the people of India who suffer from exorbitant delays in court proceedings as none of the developed democracies in the world has a pendency of over 50 million cases some going on for decades? 9. Could the Chief Justice and his fellow judges appoint court clerks who are qualified advocates with a minimum of five years’ experience as in Britain in addition to stenographers to reduce their work load which is impairing the quality of their judgements which will also provide employment for a lot of unemployed or under employed lawyers? 10. Could the Chief Justice and his fellow judges stop giving any lee way to the government in allocating sufficient funds for ensuring a decent judge-population and advocate-population ratios as administration of justice to ensure Rule of Law is a sovereign function of the government unlike running an airline, train, transport or banking or steel company/ies? 11. Could the Supreme Court declare to the lawyers who are deemed to be officers of the court that they could not give adjournments at the drop of a hat after having a pre-hearing conference in all courts so that the court, the lawyers for each of the parties and the state lawyers all agree to the mile stones going to be achieved in each case so that hearing s are conducted in an orderly fashion instead of like in a market inconveniencing litigants who travel long distance spending their limited resources to attend cases and these delays are often created to cause a duress or pressure tactics? 12. Could the Supreme Court and the fellow judges ensure that whoever commits perjury/perversion of the course of justice/evidence tampering/smudging of exhibits or any such criminalities are duly punished so that justice prevails in the courts under the Supreme Court’s jurisdiction? 13. Could the Chief Justice and his fellow judges at least have the decency to admit that India is at the top of the list in corruption according to Transparency International not because Indian people are genetically corrupt but Indian people cannot get anything official done without paying the corrupt officers? It is important to reiterate here that any developed country could become a third world country if their judiciary and policing systems are dysfunctional, inefficient, lethargic, burdened by colonial laws which do not speak the language of the majority unlike in the United States of America or United Kingdom or Australia or Canada or any other developed English speaking countries and non-English speaking countries where the language of the law is in the mother tongue of the majority of the people or the language of the courts is multilingual as in European Union courts? How can any Chief Justice and judiciary with any sensitivity to the concerns of the ordinary citizens of India speak in a language not known to the majority of the people considering over 20% or more illiteracy in India? 14. Have the judges ever considered that all colonial laws made by the British were for perpetuating their rule over India through a system of duress which is being continued by the Indian bureaucracy despite their apparent sophistication and no truly independent colony would perpetuate those same draconian laws as is evident from the administration of justice in a former colony like the United States of America which does not follow the Westminster form or their system of unwritten constitution or their business of law lords with funny wigs or lawyers wearing funny scare crow gowns? A decent sombre suit is all that is needed in all lower courts! 15. Do the judges believe former Chief Justice of India Justice Mr. K.G Balakrishnan being mired in corruption cases is a fit and proper person to be the Chairman of the National Human Rights Commission of India which has an overwhelming relevance in the protection and advancement of human rights including gender rights across India? 16. Do the judges believe that it is a third world judiciary that creates a third world country and economy mired in corruption, delayed justice, denied justice covered up by pretentious body language and through perversion of the course of justice, witnesses turning hostile, no independence for police or the CBI to favour dynastic democracies such as in India, Pakistan, Bangladesh, Syria, Libya, Egypt, Iraq who all had judiciaries of varying independence but compromised their integrity unlike the first world judiciary in the developed countries? 17. Do the judges believe that having undefined expressions like socialism and secularism in the Constitution of India which are currently being defined by corrupt and substandard politicians, ideologically compromised Nobel Prize winners, artists, film directors, religious figures or journalists is itself a trickery on the constitution of India as the judiciary alone is the competent authority to define and interpret these cardinal doctrines of the Constitution of India? Why did the judges having had reason to know that the lack of clarity and certainty on these fundamental doctrines of socialism and secularism outsourced it to the politicians and other busy bodies allowing them to define these doctrines especially when India suffered about 30,000 communal riots since 1947 and many more violent strikes, hartals, bandhs, embargoes, political skirmishes, regional conflicts, destruction of property infringing the right to trade/ profession/ right to settle down anywhere in India all in the name of a parochial interpretation of socialism and secularism by trade unions and political outfits? How is it reasonable to allow these concepts of socialism and secularism left undefined either in the constitution or in the official gazettes so that no body appropriates it for their petty political gains? 18. Do not the judges believe that the sovereign function of a government is to guarantee the legitimacy of the Constitution of India and the fundamental rights guaranteed there in which is not any charitable dispensation of the Indian judges but is the fruitage of the struggle of millions of Indians against British colonialism, genocide, heritage, cultural and livelihood destruction including through the destruction of cottage industries? It is pertinent to reiterate here that it was from a cottage/house the steam engine emerged before they were made in factories or internal combustion engines from Germany or other inventions from France, Europe and the USA like a personal computer evolving in to a lap top to a tablet computer from a garage like that of Steve Jobs or Bill Gates or others. The evidence of the homesickness of the Indian judges for the brutal colonial Raaj is evident in their attire and their reliance on British judicial precedents despite the colonial loot and plunder? All discretions are designed to derail meritocracy as is the case in the judiciary and Justice Mr. K. G Balakrishnan is only an example. 19. The fact that Indians can perform well and they do so exceedingly well in all rule of law countries including in the United States of America, UK, Germany, France, Scandinavia having one of the highest per capita incomes, one of the least criminal records and family break downs, one of the highest educational achievements is proof enough that it is not Indians who are at fault but the third rate Indian judiciary who dispenses them the so called justice that is at fault. The Time Magazine recently had a cover story on the New York State Attorney who is of Indian origin for pursuing corporate corruption vigorously in America unlike India’s national Attorney General or the Attorney Generals in the Indian federal states. It is high time the judges in India introspected whether they are worthy enough to be portrayed as a cover story by an international magazine of any standing for their role in protecting India; the world’s largest democracy against official corruption and restoring to them the democracy the people of India fought for under Mahatma Gandhi without devaluing the standing of such magazines? The proof of the pudding in the administration of justice like in eating is how it tastes or works at the ground level and not in the Latin terms or the flowery English they use in their judgements. 20. Do the Judges admit that the biggest misfortune of India and Indians are their judiciary whilst it claims to be the custodian and guardian of the Constitution and the Fundamental Rights and then watch helplessly as the Constitution and its guarantees are blatantly subverted through corruption, perversion of the course of justice/perjury/obstruction of justice/delayed justice/nepotism etc. including through the judiciary in India? 21. Do the Judges believe the inaction of the Human Rights Commission at the Centre and the States, the National Commission for Women and similar ones for the welfare of children are all institutionally inefficient, insensitive as was evidenced by their inaction during the recent Assam tragedy and the flight of people from North Eastern States from various cities in India whilst foreign nationals have an implicit right to infiltrate, steal cattle, vote in elections due to official inefficiency, corruption or nepotism? How come the Indian Judges have to be told that Right to Vote is a fundamental right that should only be available to Indian citizens and is so vital to retain the sanctity of democracy in India besides curbing unemployment where India has a higher congregation of poverty than Sub Saharan Africa? This is a blatant subversion of the Constitutional Democracy of India with the help of alien citizens on top of the massive corruption and all other problems referred to in paragraphs 1 to 20 above! 22. Do the judges believe that the inaction of the Central Bureau of Investigation, the Enforcement Directorate, the Income Tax department in the matter of laundered money stashed away in foreign tax havens contributes a threat to the national security of India as was observed by the Daily Mail of UK on 08 and 15 August 2012 quoting the New York State Department of Financial Services (DFS), the SEC, the American Justice Department, the Federal Reserve whilst proceeding against the UK banks including HSBC, Standard Chartered, Lloyds TSB, Barclays for indulging in money laundering for UN sanctioned regimes like Sudan, Libya, Iran, Burma besides the mafia and drug syndicates in Mexico? What are SEBI and the Reserve Bank of India and the Ministry of Finance doing in this regard under the supreme jurisdiction of the Supreme Court of India and their judges? It is in the fitness of things for the judges to declare whether they hold any accounts in any foreign banks to allay concerns about a conflict of interest or potential conflict of interest! 23. What does the inaction of the Election Commission of India under the Chief Justice’s jurisdiction signify when even an authorised office bearer of a political party in Kerala Mr. M. M Money publically confessed on television that his party prepared lists to kill off political opponents and always dealt with the murder charges as they knew how to deal with the police, judges and lawyers by offering dummies as accused to cheat the administration of justice? It is pertinent in context for the judges to declare that whether they assumed judicial positions to administer the Communist Manifesto or the Constitution of India as Mr. Money’s political party the CPI (M) is the monopolistic interpreter of Socialism and Secularism in India? Why did not the judges express any views on all of these political murders in Kerala even when Mr. Money’s petition was before the Supreme Court argued by one Mr. Harish Salve despite the fact that many of these political murders were very sickening, traumatic and brutal needing acute counselling to the surviving descendants who had to endure it. Even the Supreme Court acquitted some of these accused persons relying on the ineptitude of the police and prosecution whilst it ought to have known any failing by them to is a vicarious failure by the judiciary if not a direct one as is understood in all rule of law countries! Some of these murders took place in front of little school children but some of the accused were let off by the Supreme Court in few of these cases whilst not even thinking about the need for counselling for these little children exposing the insensitivity of the Indian Supreme Court. Personal Declaration 24. I do not have any cases pending against me in any courts in India to the best of my knowledge and information and this representation to the Chief Justice is in pursuance of my civic duties as a citizen of India and in furtherance of my right to blow the whistle on the ineptitude of the Supreme Court which alone is duty bound to ensure Administration of Justice through the Constitution and Rule of Law prevails even when all other organs of the state fails and flounders. 25. Pursuant to paragraph 1 to 23 above I appeal to the Chief Justice of India to take urgent and time bound steps to sort out the judicial mess that the nation is in due to the colossal failure of the administration of justice in India under the jurisdiction of the Chief Justice (literally und his nose) and is a joke not only for Indian citizens but also for many in the developed countries! Signed by Johnson Thomas K on this 3rd Day of September 2012 (sd) Johnson Thomas K

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