Tag Archive | Calcutta High Court

UPA Govt Seized Of Law Commission’s 25-Year-Old Idea ! – By Mukesh Jhangiani

                                                                                                                August 18, 2011 

English: Ashoke Kumar Sen at the United Nation...

Ashoke Kumar Sen, former Law and Justice Minister, to whom the Law Commission of India submitted its Report No. 116 on Formation of an All India Judicial Service on November 27, 1986 (Photo: Wikipedia)

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Twenty-five years after experts suggested an All India Judicial Service to draw the best talent to judiciary, the United Progressive Alliance government is seized of the matter, Parliament was informed today.

The government is seized of the matter of creation of an All India Judicial Service under Article 312 of the Constitution, Law and Justice Minister Salman Khurshid said in a written reply in the Lok Sabha.

He was answering Bharatiya Janata Party member from Rajasthan Arjun Ram Meghwal and Indian National Congress member from Haryana Shruti Choudhry who drew attention to a Law Commission recommendation made in 1986.

The two Members wanted to know whether the government intends to introduce the said Service, the timeframe set for its introduction, and, if not, the reasons therefor.

In his reply, Khurshid acknowledged the Commission findings that such a service would also serve as a powerful unifying influence and counteract growing regional tendencies.

He said the process of creating it requires a Resolution to be passed by the Rajya Sabha enabling Parliament to enact necessary laws.

He did not say when that and any subsequent requirements might be carried out.

In reply to another question, Khurshid said the government has examined various options — including National Judicial Commission– to address the issues concerning appointment of Judges of the Supreme Court and High Courts.

However, no specific proposal has been finalised, the Minister said.

Over the past many years, selection for appointment of Supreme Court and High Court Judges has been made by a Judges collegium but questions have arisen owing to complaints over conduct and persistent vacancies.

The Rajya Sabha, for instance, took an unprecedented step this afternoon to approve an impeachment motion against Calcutta High Court Judge Soumitra Sen who is accused of having misappropriated funds while he was a lawyer before his elevation.

The motion will next be considered in the Lok Sabha, and, if approved, go to the President, the appointing authority, for the Judge’s removal from office.

The last Parliament was close to impeaching a Judge was in the 1990s when it considered corruption allegations against former Punjab and Haryana High Court Chief Justice V Ramaswami defended by then senior advocate Kapil Sibal.

The move in the Lok Sabha fell through then with Indian National Congress members abstaining, an instance cited ever since by critics as proof that impeachment was not a sound way to ensure accountability.

Khurshid was answering Meghwal and Communist Party of India (Marxist) member from Kerala M B Rajesh and INC member from Lakshadweep Hamdullah Sayeed on steps to improve judical service quality and standards.

The Members asked if the government proposed to introduce a constitutional code of conduct for Judges and a mechanism for periodical assessment of Judges performance.

Khurshid said the UPA government introduced a Bill in the Lok Sabha in December 2010 to ensure accountability and transparency in the higher judiciary.

The Judicial Standards and Accountability Bill, 2010 incorporates a mechanism for enquiring into complaints against Supreme Court and High Court Judges and makes way for Judges to declare their assets and liabilities, besides setting standards for them to follow, he said.

The Minister gave no timeframe as to its enactment.

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MEA Acknowledges Correspondence With Moscow On Netaji – By Mukesh Jhangiani

                                                                                                                              September 6, 2006

 

Subhas Chandra Bose as the leader of INA.

Subhas Chandra Bose (Photo: Wikipedia)

MEA Acknowledges Correspondence With Moscow On Netaji

By Mukesh Jhangiani
United News of India
New Delhi (UNI) – India’s External Affairs Ministry has acknowledged having corresponded with the Soviet and the Russian governments on the disappearance six decades ago of Netaji Subash Chandra Bose, but declined to disclose the contents.

This was reported last evening by a research group– Mission Netaji– which invoked the year old Right to Information Act to get the Ministry to share the facts in the matter.

”The requisite copies of correspondence cannot be disclosed as it involves the relations with foreign State,” was what the Mission said it was told by the Ministry’s Central Public Information Officer, E Barwa.
The Mission had inquired whether ”serious efforts were ever made from a higher level to uncover the mystery surrounding the fate of one of the greatest Indians ever.”
A legendary figure of India’s independence movement, Bose disappeared after an alleged plane crash over Taipei on August 18, 1945, which the Taiwanese authorities later said had never occurred.
The Mission sought certified copies of the entire correspondence the Ministry had with the Soviet and the Russian governments in the matter.
Declining the request, Barwa wrote to the Mission that the data ”is exempt as per the provisions of Clause 8(1) (a)&(f).”
The clauses cover ”information received in confidence from foreign Government” and ”information, disclosure of which would prejudicially affect” India’s ”security, strategic” interests.
The Mission also wrote to the Ministry, ”we understand that our Embassy in Moscow had taken up the matter with the Foreign Ministry of Russian Federation in 1992, 1995, 1997, 2001 and 2003 with dissatisfying results.”
”The request to Government of USSR and the Russian Federation were made through diplomatic channels at appropriate levels,” the Ministry replied, without elaborating.
”There was no plane crash that day– August 18, 1945– or the day before that or the day after,” former Human Resource Development Minister Murli Manohar Joshi told a conclave in New Delhi last month.

English: Gandhi and Subhas Bose, Haripura Cong...

Bose and Gandhi at 1938 Haripura Congress session (Photo: Wikipedia)

He and former Defence Minister George Fernandes were speaking on new findings that Bose ”did not die in the plane crash, as alleged” and ”the ashes in the Japanese temple are not of Netaji.”
Those conclusions by retired Supreme Court Judge Manoj Kumar Mukherjee countered the findings by two predecessors– Shah Nawaz Khan in 1956 and G D Khosla in 1970– that Bose was killed in a plane crash over Taipei, Taiwan.
Taiwanese authorities say there were no plane crashes in Taipei between 14 August and 20 September 1945.
Justice Mukherjee headed an Inquiry Commission set up by the National Democratic Alliance government in May 1999 following a Calcutta High Court order.

He gave his 672-page report in May 2006 to the United Progressive Alliance government which tabled it in Parliament declaring it has ”not agreed’ with either key finding.
The Mukherjee Commission was the first inquiry set up by a non-Congress government– the past inquiries having been ordered by Prime Ministers Jawaharlal Nehru and Indira Gandhi.
Critics have over the years charged both Khan and Khosla with having made half-hearted inquiries, intended essentially to endorse the view taken by the establishment in those years.
Speakers pointed to indications that the news of Bose’s death in August 1945 was a smokescreen for his escape to the Soviet Union to pursue the freedom struggle.
They suggested that Russia be requested formally at the highest level to open its archives to Indian scholars.
Controversy has dogged the issue over the past 61 years– with many Indians refusing to believe that Netaji was killed at the time of the alleged aircrash.
Speculation has been fuelled by the Indian authorities’ refusal to let investigators– even a retired Supreme Court Judge in this case– examine the supposedly secret files.

Published accounts say similar reluctance of Russian, British and Japanese governments to let investigators see relevant files ”strongly point to an international conspiracy.”
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Snags in Hiring More Judges To Dispense Justice ! – By Mukesh Jhangiani

                                                                                                    November 3, 2002

Snags in Hiring More Judges To Dispense Justice !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Notwithstanding Supreme Court directives, States claim they have ”serious difficulties” in raising the strength of judges to dispense justice to the wronged, whose ranks continue to swell.

Informed sources say the matter also figured at the Chief Ministers’ conference in the past fortnight and the Centre has been requested to make ”necessary submissions” before the apex court on financial constraints in implementing its judgement.

The court judgement on March 21 favoured a ten per cent annual increase in judges strength over the next five years, which is estimated by Law and Justice Ministry officials as likely to cost thousands of crores of Rupees.
Considering population, India is rated by experts to have among the lowest number of judges in the world, only 10.5 per million people in India as against 50.9 in Britain, 57.7 in Australia, 75.2 in Canada, and 107 in the United States.
The never-ending pendencies and all too frequent adjournments– which delay and proverbially deny justice– symptomise the teetering state of the country’s judicial system. It may have unseated a prime minister but it is known to routinely let common criminals– blue collar and white collar– slip away.
Top law professionals acknowledge that the shockingly low– 6.5 per cent– conviction rate in serious crimes tells potential law-breakers they have a 93.5 per cent chance of getting away.
”That,” says Prof Satyaranjan Sathe, Honorary Director of Institute of Advanced Legal Studies, a Pune-based private research group, ”is one of our biggest worries– there is not much out there to deter a violator.”
— January 2, 1975: An explosion at a public function at Samastipur, Bihar kills India’s Railways Minister. The case is transferred to nine judges, statements of two of seven accused have been recorded and key witnesses dropped– as untraceable or not having come forward.
— January 10, 1999: A reckless driver in the Capital mows down six human lives in a night. The accused is pursuing Business Administration studies abroad while the trial continues.
— July 25, 2001: Driving home from Parliament during lunch break, a Member is shot dead in broad daylight as she arrives at her official residence barely a kilometre away. Eleven men charged are in jail, awaiting trial.
— February 23, 2002: A co-accused in shooting a bartender in May 2000 for not serving a drink is arrested as prime accused in the murder of a young man who dances with his sister at a wedding. The first trial is on. The accused is in judicial custody in the second matter, charges for which are yet to be framed.
Not just thugs or criminals, even professionals, administrators or businessmen are not afraid to break the law.
— August 21, 1989: Political foes allegedly plant a report in leading newspapers about huge offshore accounts supposedly held by a future Prime Minister. Leading politicians are named conspirators, but not one is convicted in 13 years. The simplest thing might have been to start by nailing those who planted the story. As an on line critic put it, the Press ”played a nefarious role in broadcasting these forgeries” and should bring out these names.
— March 12, 1993: Explosions rock several areas in Mumbai, killing 300, with RDX smuggled into the country by bribing a customs official Rs 20 lakhs to look away. The trial continues.
— August 8, 1995: A judge orders Delhi Municipal Corporation to compensate survivors of an employee who died after 15 years of abuse, and deduct the payment from the salary of ”the responsible officer.” Lawyers say the system is lazy and ill-equipped to punish officers in such cases; Taxpayers usually end up paying. No lessons are learnt.
— November 19, 1999: An industrialist owning more than one companies is allowed by a court to shut down one of them– a soft drink plant– reportedly after denying wages to hundreds of workers for eight months. Fired employees are in courts seeking statutory wages.
— January 4, 2000: A list made public unmasks thousands of big-spending industrialists defaulting on huge borrowings from State-owned banks, creating non-performing assets now touching Rs 110,000 crore. Cases continue, at further expense to taxpayers.
Examples abound. Years pass before trials take place, giving the guilty ample time to manipulate evidence or break witnesses. After a while memories may fade anyway, making testimonies easier to shake.
Critics argue that such a legal system is itself the best bet for an offender trying to escape punishment.
Even in India’s trumpeted labour laws, for instance, ”deterrent punishment is usually not provided. But even where it is provided, Courts tend to take a lenient view of offences,” said a veteran labour administrator, requesting anonymity.
Labour tribunals, the Government official went on, may help employees against small employers, but ”when we face big employers, we are stuck in technicalities that consume years.”
The chilling reality was spelt out matter-of-factly by an employer to an employee considering legal recourse over years of harassment. ”Remember, I have the organisation behind me, I won’t even have to go to Court. Our lawyers will do that. I will just hand over the file to them. You, on the other hand, will be on your own– whether it takes five years or seven years or longer!”
Lawyers with decades of experience say such attitudes are not altogether uncommon, nor such threats empty.
Critics say India’s judicial system is in a mess, with cases going on and on for years, giving little respite to the wronged and plenty of leeway to wrongers. The issue has often figured in Parliament.
India’s senior and subordinate judiciaries between them have less than 13,000 officers ranging from Munsifs to the Chief Justice and almost 24 million cases pending.
More than a fourth of them– 26.7 per cent– or 5.3 million cases have been in courts longer than three years, Home Ministry officials say.
Worse. More than half a million cases have been pending for over a decade– the bulk in the High Courts of Allahabad, 2,88,472; Calcutta, 1,27,190; Punjab and Haryana, 49,951; Bombay, 28,131; and the Capital, 35,865.
But the figures do not even begin to tell the impact on millions of lives at the receiving end of such dispensation.
Forty-eight years after a complainant filed a petition, Madhya Pradesh High Court was yet to deliver the verdict. Bihar High Court had a 47-year-old case pending, Calcutta High Court, a 43-year-old case, and Rajasthan High Court, a 42-year-old case pending.
Judgements in hundreds of cases are being delivered long after the hearing is over. At one count, Madras High Court alone had judgements pending in 566 cases, 229 of them six months after the hearing. A far cry, indeed, from what victims need !
”The consumer of justice,” India’s Chief Justice once observed, ”wants unpolluted, expeditious and inexpensive justice. In the absence of it, instead of taking recourse to law, he may be tempted to take the law in his own hands.”
In lay man’s terms: One should be able to walk into a court and walk out with a verdict within at most a few months.
Knowing that justice would be swift and punishment severe should deter perhaps a large many potential violators, reducing burden on courts and the exchequer and ending the prevailing cynicism.
Currently, experts fault mainly two key factors– complex and inefficacious laws and procedures and shortage of judges and courts.
They say Indian laws, procedures and practices tend to be cumbersome and ineffective.
The 93-year-old Code of Civil Procedures just amended seeks to compress the time frame for disposal of all civil cases within one year by setting a time limit for every stage of litigation and allowing at most three adjournments.
But it is yet to be seen how the changes work in practice.
On reforms in criminal justice system, a committee set up by the Home Ministry in November 2000 has yet to submit its findings. Its Chairman, V S Malimath, a retired judge who once served as a High Court Chief Justice in Karnataka and then in Kerala, has been busy the last two years writing effective procedures to punish crime.
The Judge recently told a conference of professionals that people ”have by and large lost confidence in the criminal justice system. Wherever I go people ask:
— How is it that when everyone around knows that the accused has committed the offence, the Courts find reason to acquit him?
— Why is it that when one Court finds the accused guilty, the High Court says he is not, and the Supreme Court says he is guilty?
— Why is it that it takes so many years, sometimes decades to dispose of criminal cases?
— How is it that the rich and the powerful who commit serious crimes are seldom punished?”
The paucity of courts is another key problem, experts say. And it’s compounded by vacancies. India’s 21 High Courts with a strength of nearly 650 judges have almost 150 vacancies and 12,000 plus subordinate courts have 1,684 vacancies. Almost a third of labour courts also remain unfilled.
Fifteen years ago, the Law Commission of India in its report titled ‘Manpower Planning in Judiciary: A Blueprint’ recommended raising the strength to at least 50 judges per million citizens.
As the Commission put it, India was persisting in a pattern of conscious judicial under-staffing followed by the British rulers in keeping with their colonial interests.
The findings were shelved. The case arrears kept mounting.
Some eighteen months ago, the authorities launched so-called Fast Track Courts to deal with long pending cases of heinous crimes and those involving undertrials in prison, the idea being that no one should be in prison longer than necessary.
More than 800 Fast Track Courts now working are reported to have cleared nearly 64,000 cases.
Experts say they see no reason why fast Track Courts should not cover undertrials on bail– to put them where they belong. They say the move has either not been considered or has been dismissed not to inconvenience those resourceful enough to obtain bail in heinous offences.
Imagine the effect, if the high and mighty on bail found guilty were sent behind bars– not walking free.
Seven months ago, on March 21, the apex court ordered a phased increase in the strength of judges over the next five years.
In mid-July, the Union Government announced it had ”initiated necessary action” to increase the strength of Judges in Union Territories in compliance with the judgement.
The first sign of trouble, sources say, came at a meeting convened by Finance Minister Jaswant Singh on September seven at which State Finance Ministers voiced ”serious difficulties regarding the Constitutional, financial and administrative issues involved in implementing the Supreme Court judgement of 21-3-2002.”
On an average, a court costs Rs 25 lakhs to set up– Rs 15 lakhs to build the court room, Rs five lakh to furnish it and install computers and another Rs five lakhs to build judges’ residence– and Rs 11 lakhs a year to run.
Officials estimate that the cost of adding the numbers of judges as per the apex court directive may exceed Rs 10,000 crores.
The State Finance Ministers expressed difficulties pertaining to pay scales and other service conditions of subordinate judiciary ”including increase in judge strength and all other matters related thereto.”
The States’ financial woes and fears of going ”broke” trying to implement the judgement, were mentioned by Law and Justice Minister K Jana Krishnamurthi at a news conference on the eve of the Chief Ministers’ conference. He indicated that ”we are having talks” with the States authorities after which the apex court would be approached for directions.
On October 18, the Chief Ministers’ conference ratified the Finance Ministers’ findings without making any counter proposals, leaving it to the Centre to find a cure.
According to sources, Senior officials in the Home Ministry are giving final touches to proposals setting afresh ”additional judge strength required as per pendency and workload,” taking into account existing judicial vacancies.
Sources say the proposals estimate that the number of additional judges needed on the basis of the pendency and the judges’ average case disposal rate is 1,314. Cost estimate: Rs 700 crores.
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Snags in Hiring More Judges To Dispense Justice ! – By Mukesh Jhangiani – November 3, 2002