Press Release: Demanding Judicial Reforms in Marital Cases

About Save Indian Family Foundation:

Save Indian Family Foundation, Bangalore is an NGO dedicated to promote the cause of Gender Equality and Family Harmony. We commandeer the cause of those grief stricken families who are victimized by the misuse of laws like Section 498A of the Indian Penal Code, Protection of Women from Domestic Violence Act, Section 125 CrPC, Child Custody laws to name a few.

Press release: Urgent need for Judicial and Administrative Reforms

Judicial reforms are the call of the day in wake of deteriorating trust and faith of people on the judiciary. The pile of pending cases repeatedly reported in various media reports is acting as a catalyst to the deterioration. People are even taking law in their own hands being exasperated of either of no hope or inaction from the judiciary.

Prime Minister Mr Manmohan Singh has recently highlighted the need for an “an arrear free judicial institution” during joint conference of chief ministers and chief justices of the high courts in New Delhi. He also has stated that “Indian judiciary, despite its strengths, brilliance and dynamism, had to suffer the scourge of having the world’s largest backlog of cases and timelines that generate surprise globally and concern at home.”

At the same conference, Hon Chief Justice of Supreme Court Balakrishnan has said that over 3.11 crore cases were pending in trial courts and high courts across the country. He said that 52,592 cases were pending before the Supreme Court, over 40 lakh cases in the high courts and a whopping 2.71 crore cases in the subordinate courts.

SIFF requires following demands be considered urgently for Judicial Reforms:

  • There is urgent need to come down with heavy hands and imposition of fine/costs on frivolous litigations in the name of PIL etc. Frivolous, absurd, and morally correct litigations like Shilpa Shetty kissing Richard Gere are not something the judiciary should waste time on. Many a time such cases are filed in multiple locations by advocates representing some frivolous cause or in the name of PIL. Courts should impose exemplary fine for such frivolous litigation to make an example for advocates and others abusing judicial process.
  • No new law/law amendment to be passed by the Parliament Houses unless judicial reforms are not put in place.
  • Reportedly even justices of Supreme Court are afraid of frivolous litigation and this is the reason advanced for their opposition to declaration of judges’ assets. It shows lack of faith in judicial process in minds of justices of the Supreme Court themselves. It shows the situation is very serious and steps must be taken to curb frivolous litigation by payment of exemplary fines through statutes and judicial precedents.
  • It should be mandatory for judges to disclose their assets. This is in line with requirements for many government posts and also for people willing to contest elections under the Representation of Peoples act 1951.
  • Computerization of all court records, case details and case status in order to determine the load on a particular date, before next date is given. Often it happens that on some days there is a lot of load on the courts while on other days it is relatively less burdened. Such random fluctuations of work pressure can be reasonably smoothened with the help of IT and computerization. Other benefits include prior notification to litigants if the judge is on leave on a particular date.
  • If 3 consecutive dates pass in a case and no progress happen then the judge/magistrate should be held responsible for that.
  • Increased transparency into the functioning and administration of courts via enhanced respect of applications filed under the Right to Information Act.
  • Provision of suo motu inquiry on all the judges involved in cases which are more than 5 years old. Failure to co-operate with the inquiry should lead to automatic termination of the service of the judge.
  • The third report of the National Police Commission had raised serious concerns on unnecessary arrests by police and said that 60% of arrests by police are unnecessary and are accounting for 43.2% of jail expenditure. In the year 2007, 68 lakh persons were arrested out of which 40 lakh were unnecessary as per the National Police Commission report. Unnecessary arrests also lead to higher amount of expenditure and delay in courts due to bail hearings etc. The CrPC Amendment should be enforced as it has already been notified as an Act, to help in better enforcement of laws without violating human rights and constitutional rights of citizens. It will also ensure that courts are not over-burdened by false cases, thereby speeding up the process of delivering justice in genuine cases.
  • There is urgent need for more training and sensitization in police ranks, they being the first point of contact for people in need of justice. It has been seen that a case had reached the Supreme Court only to reach the conclusion that prima facie the case lacked merits. A competent and impartial police and trial courts will avoid the waste of such needless litigation all the way to the Supreme Court.
  • Law minister Mr Moily and Chief Justice Balakrishnan have stated that 70 per cent of prisoners in the jails are under-trials. If any under-trial has served more than the punishment stipulated by the law, he or she should be set free.
  • The fear of Contempt of Court is lurking like a dead ghost over law-abiding litigants and media who are terrorized to raise their voice against injustices going on against them due to judicial complacency, stereotypic assumptions and overstretched judicial leniency. The concept of Contempt of Court needs to be redefined objectively like a statute. People’s right to freedom of expression need to be balanced against contempt of courts.
  • Form study circles with leaders from Save Indian Family movement who are acquitted of 498A cases, some high scholars and a few High Court judges to study husband’s issues.
  • Granting of bail under Section 498a should be a norm rather than an exception and the granted bail should not attract stringent conditions rendering it ineffective in spirit if not in letter.
  • Respect the dignity of husbands and fathers.

Reforms required under Family law — matrimonial, and child custody cases:

  • Alimony for qualified professionals like doctors, lawyers, engineers, MBAs, CAs and the likes should be rejected prima facie and concept of lifetime parasitism be replaced by a better concept to provide interest free sustenance loans returnable in 3-5 years upon obtaining gainful employment. Voluntary incapacitation by capable spouses asking for maintenance should be made a punishable offense to discourage it. Moreover interim maintenance should not be allowed to be used as a dole leading to treatment of husbands as FREE ATM MACHINES.
  • Multiple provisions for maintenance viz. Domestic Violence Act, Section 125 CrPC, Section 18 – HMA, Section 24 – HAMA etc. should be simplified and normalized to one single provision as people are entangled in multiple litigations for the same alleged cause of action leading to infringement of Constitutional Rights vide Article 20,21 and 22 of the Indian Constitution.
  • If a party in matrimonial disputes gives false allegations relating to spouse or child abuse, no relief should be awarded and instead exemplary fines and costs should be imposed on that party.
  • Current practice in child custody cases under GWA 1890 is to grant full custody to custodial parent and trivial visitation rights to non-custodial parent. There is no application of mind as to how this is beneficial to child’s growth and development into a responsible adult. Sec 13 of HMGA 1956 clearly states that Welfare of minor is to be paramount interest in case of guardianship or custody. Accordingly in interest of child’s welfare courts should give joint custody to both parents as a norm unless one parent is proved to be of deviant, irresponsible, or criminal behaviour. This would be in line with natural principle that raising children is shared responsibility of both parents. Anything short of that is a violation both of judicial statutes and basic rights of child to have love and affection of both parents.
  • For child custody related cases, visitation to fathers should be granted in either one month of filing or two hearings, whichever is earlier. Also the visitation granted should be of such nature that it builds a sustainable parent child relationship. It has been seen that courts are granting visitation of 1 hour per month to father thereby reducing status of fathers (mostly) to mere acquaintance of child. Numerous studies have shown the harmful effects of children growing without contact with fathers leading to parental alienation syndrome (PAS) and consequent increase in suicides, teenage pregnancies, and crime rate as adults etc.
  • Any kind of doctoring or tutoring a child’s mind against other parent should be treated on par with child abuse and against child’s growth and development. Courts should grant full custody to the other parent in such cases to deter a parent from using children as tools to solve their own personal grievances.

Reforms required in family courts:

Some of the problems and issues which prompted the need of Judicial Reforms in family court cases and suggestions are as follows:

  • The Youth and vigour of Young Women and Men are lost by the time the Family Court renders it decision – be it Just or unjust. Marital cases filed more than two years back, and still in the pending stage should be disposed off in the next six months as a compensation for the time litigants have already lost due to judicial delays in cases. This will lead to drastic unloading of the unwarranted pressure on the courts to meet targets.
  • Statutory mandate of law for disposal of cases by 6 months and day to day hearing is not at all followed by the Family Courts.
  • The Rules framed by the High Court to dispose of cases at least within one year is flouted by granting long, luxurious and indefinite adjournments by Family Courts.
  • Even when the High Court orders specific time limits for disposal of particular cases, the Family Courts do not respect such orders.
  • No rules at the discretion of the Family Court as provided in the Family Court Act are also framed.
  • While the Act requires recording of the gist of evidence only, the Courts elaborately records every word uttered by the witnesses religiously thus wasting the precious judicial time.
  • In the name of appointing of Amicus Curie’s the Family Courts are taken over by advocates, though the Family Courts Act vide. Section 9 and 10 has specifically banned appearance by Advocates.
  • Practicing lawyers of family Court are appointed as counsellors and mediators thereby defeating the purpose of counselling and mediation.

Thanks and Regards

Public Relations Officer
Save Indian Family Foundation, Bangalore


Thanks & Regards
Virag
Bangalore
Reality is merely an illusion, albeit a very persistent one.

<http://bit.ly/L7b4M>
Sent from Bengaluru, Karnataka, India

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One thought on “Press Release: Demanding Judicial Reforms in Marital Cases

  1. ‘Half Of The Last 16 Chief Justices Were Corrupt’

    The decision to declare assets is a big victory. Supreme Court lawyer Prashant Bhushan tells SHOMA CHAUDHURY what else is rotting in our judiciary

    In public interest Prashant Bhushan has championed the fight for judicial accountability

    It’s great judges have agreed to declare assets. But will it really help? Politicians do it too.
    This decision is very welcome, even if it’s only happened under public pressure. It is proof of the power of public opinion. And even though declaring assets is a relatively minor aspect of judicial accountability, it will help. If a judge misdeclares his assets, there’s a chance someone might know he has particular properties he hasn’t declared, and may point it out. One could then examine if these can be explained within their legal income.

    The debate around judicial accountability has got really hot. Are there watershed events that triggered this?
    Not in my own perception, but I think for the public there were two watershed events – the Chief Justice Sabharwal case (where there was an allegation that Chief Justice YS Sabharwal’s orders to demolish commercial outlets in Delhi directly benefited his sons, who were partners with some mall developers) and the Ghaziabad Provident Fund scam. Both these cases got wide media attention. A 2006 Transparency International report said the judiciary in India is the second most corrupt institution after the police.

    You’ve been at the forefront of the judicial accountability campaign. Why?
    I have been witness to judicial corruption in the courts for a very long time. I know decisions are passed for extraneous considerations, but it’s difficult to get hard evidence of this. There have been highprofile impeachment attempts, for instance, on Justice Ramaswamy, Justice Punchi and Justice Anand. Yet, they all went on to become chief justices. In my view, out of the last 16 to 17 chief justices, half have been corrupt. I can’t prove this, though we had evidence against Punchi, Anand and Sabharwal on the basis of which we sought their impeachment.

    What is the root cause of judicial corruption then, and what are your key demands?
    Our key demand is an institutional mechanism for entertaining complaints and taking action against the judiciary. Nothing exists today. Everyone realises impeachment is impractical. To move an impeachment motion you need the signatures of 100 MPS, but you can’t get them because many MPs have pending individual or party cases in these judges’ courts. In the impeachment proceeding against Justice Bhalla, the BJP declined to sign because LK Advani had been acquitted by him in the Babri Masjid demolition case. Such political considerations prevail all the time. An in-house procedure was set up in 1999, post a chief justices’ conference in 1997, but that too is activated only selectively. For example, the complaint against Justice Bhalla was that he had purchased land worth Rs 4 crore at Rs 4 lakh — approximately — from land mafia in Noida. This was based on a report from the DM and SSP of Noida. This land mafia had several cases pending in courts subordinate to Justice Bhalla. Another complaint was that in the Reliance Power matter, though his son was the lawyer for Reliance Power, Justice Bhalla constituted a special bench while he was the presiding judge in Lucknow. He sat in the house of one the judges at 11pm at night to hear their case and pass an injunction in their favour. We asked Chief Justice Sabharwal to initiate proceedings against Bhalla, but he refused.
    Similarly, Justice Vijender Jain decided the case of a person whose granddaughter had been married out of his own house. He was a close friend but he still heard and decided the case in this person’s favour. The point is, in these cases though very specific complaints were made to the then Chief Justice of India (CJI), he didn’t do anything to activate the in-house procedure. All these judges have gone on to become chief justices. Bhalla is still chief justice of Rajasthan; Virendra Jain became chief justice of Punjab and Haryana.

    What’s the answer?
    The first problem is that there is no independent institution for entertaining complaints and taking action against judges. There has to be a National Judicial Complaints Commission — independent of the government and judiciary. It should have five members and an investigating machinery under them. The second problem lies in the Veeraswamy judgment, which ordered no criminal investigation can be done against a judge without prior written permission of the CJI. That’s what happened in Karnataka. There was a complaint against several judges visiting a motel and misbehaving with women. When the police officer came, the judges threatened him and said no FIR could be filed against them because they were judges. This happened in the Ghaziabad Provident Fund case as well. The investigation is stumped because the CJI hasn’t given permission. We have to get rid of this injunction.
    The third problem is the Contempt of Court Act. Today, even if you expose a judge with evidence, you run the risk of contempt. Judges are even seeking to insulate themselves from the RTI. We have to get rid of the Contempt of Court Act – not the whole Act. Disobeying the orders of the court is civil contempt – that should remain. Interfering with the administration of justice is criminal contempt – that too should remain. What needs to be deleted is the clause about scandalising or lowering the dignity of the court, for which Arundhati Roy was sent to jail. Finally, there is the problem of appointments. Earlier, judicial appointments were made by the government, which was bad enough. Now, by a sleight of hand, the Supreme Court has taken the power of appointments to itself. Earlier there were political considerations; now there are nepotistic ones.

    Again, what’s the answer to that?
    We need an independent Judicial Appointments Commission, which is independent and works full time, and follows some systems and procedures. Eligibility lists should be prepared and comparative merits debated and evaluated. You can’t just pick judges arbitrarily, and let people know about it only after the deed is done.
    There is still no independent body to process complaints and action against judges

    What are the best practices and conventions elsewhere?
    We should at least have Public Confirmation hearings like in the US. In the Senate Judicial Committee, you have hearings where any public citizen can give evidence about the background of a judge that has bearing on their appointment. This is being fiercely resisted here.

    Do any counter arguments hold?
    None that I can see. The judges say all this will compromise their independence. Unfortunately, they are equating the independence of the judiciary with independence from accountability. Independence of the judiciary was meant to be independence from the political establishment, not from all accountability.

    Are there other ways in which judicial corruption manifests itself?
    There are so many. There is Justice Kapadia who decided on the Niyamgiri mining lease case in Orissa. He said Vedanta can’t be given the lease because it’s been blacklisted by the Norwegian government; but its subsidiary company Sterlite can get the lease because it is a publicly listed company. Justice Kapadia said it’s publicly listed because he had shares in it and yet he passed an order in favour of Sterlite! There is a law against judges hearing cases where there is a conflict of interest, but they just bypass it and you can’t complain because that would be contempt.

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