Tag Archive | Hans Raj Bhardwaj

Don’t Tempt Citizen To Take Law Into His Hand: Prez – By Mukesh Jhangiani

                                                                                                               February 23, 2008

English: President of India

President Pratibha Patil (Photo: Wikipedia)

Don’t Tempt Citizen To Take Law Into His Hand: Prez

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Stressing the need for ”incorruptible justice,” President Pratibha Patil today cautioned against tempting the common man ”to take law into his own hand.”

”We cannot allow a situation where the common man is tempted to take law into his own hand and subscribe to the deviant culture of the lynch mob,” she said inaugurating a conference on Judicial Reforms.
She was emphatic that ”the formal adjudicatory machinery has to reign supreme.”
Noting that India’s judicial administration is not without ”blemishes,” Mrs Patil stressed the need to ”introspect whether our judicial machinery has lived up to” expectations.
She asked her audience, made up mostly of judges and lawyers, not to be ”touchy” and face issues squarely.
”Time has come when we as stakeholders, without being unduly touchy and sensitive to criticism… collectively introspect the causes of the ills of judicial administration and find solutions squarely,” she said.
The event presided over by India’s Chief Justice K G Balakrishnan was addressed among others by Law and Justice Minister Hans Raj Bhardwaj and Bar Council of India chairman Gopakumaran Nair.
The two-day conference organised by a Confedration of Indian Bar to discuss the ”disquieting” delay in delivery of justice has more than half of Supreme Court judges listed among speakers.
India’s justice system has in recent years been a focus of much public debate and comment over such concerns as delays, huge backlogs, shortage of judges, unending judicial vacancies and opacity, especially in the area of judicial hiring and accountability.
Alluding presumably to numerous conferences and seminars on reforming the justice system that appear to get nowhere, President Patil remarked: ”We talk incessantly about delays.”
”But now the time has arrived to launch a crusade against the scourge of arrears. Both the Bar and the Bench as equal partners in the administration of justice must address themselves to this problem.”
”Admittedly,” the President went on, ”the realm of judicial administration is not without its own share of inadequacies and blemishes.
”Time has come when we need to seriously introspect whether our judicial machinery has lived up to its expectations of walking the enlightened way by securing complete justice to all and standing out as the beacon of truth, faith and hope.”
Touching on a key issue, Mrs Patil said, ”case disposals are excruciatingly time consuming. This agonising delay has rendered the common man’s knock on the doors of justice a frustrating experience.
The issue of delay in courts has been debated for decades, without much avail. Experts believe lawmakers must take an initiative to sharpen laws and make them truly deterrent.
Mrs Patil called for making legal procedures ”simple, streamlined, rational, easily understandable and commonsensical.”
She reminded members of her erstwhile tribe that lawyers were trustees of justice and ”must set high standards of probity and rectitude.”
On another key area, she said citizens’ access to law ”remains limited due to prohibitive costs of quality legal advice. It is commonplace to hear that law has become the luxury of the rich.
”Legal aid can go a long way in helping the indigents secure justice,” she said adding that the present system ”needs to be improved.”
She reminded that alternative dispute resolution mechanisms need to be encouraged, but ”cannot aspire to substitute the formal courts.”
She said she recently came across the Karnataka High Court’s Bangalore Mediation Centre where 86 mediators had settled more than 1,000 cases in a year, taking an average 131 minutes per case– which ”is worthy of emulation.”
Justice Balakrishnan concurred that Judicial Reforms was a subject ”so much of talked about but too little done.”
Balakrishnan said India had a nationwide network of more than 14,000 courts– about 12,500 judge working strength– dealing with 40 million cases.
He said each judge handled on an average nearly 4,000 cases, which ”is too high as compared to the average load per-Judge in other countries.”
He acknowledged that ”the general impression of the people is that a large number of cases are being delayed and, if any case is filed, it would take years to get a relief.
”This impression about the performance of Indian Judiciary is not fully correct,” Justice Balakrishnan asserted, but went on to acknowledge that some 60 per cent cases were more than a year old.
He said 90 per cent of delayed cases were pending in subordinate courts.
He suggested setting up a national planning and management system for administration of justice and added that the Bhopal-based National Judicial Academy was preparing a case management system to avoid delays.
He also suggested:
— Legislative reform to remove the bottlenecks that adversely affect adjudication;
— Strengthening the Bar;
— Strengthening legal education;
— Legislative reform to strengthen judges’ powers to control judicial processes to ensure just and efficient outcomes in line with international reforms; and
— Satisfactory framework for judicial accountability.
He offered the suggestions as ”broad outlines” to be discussed and designed by competent people.
Justice Balakrishnan also drew attention to a source of overcrowding in courts.
”In a large number of cases pending in Courts, especially in higher Courts, government is one of the parties either as defendant or as appellant.”
He blamed such litigations on lack of proper governmental administration, pointing out that if authorities took impartial decisions, citizens would not normally be driven to litigation.
”Lack of proper and good governance largely contributes to the number of cases in subordinate courts,” Justice Balakrishnan said.
”When it comes to disposal of cases, the delay is disquieting,” Confederation president Pravin Parekh said, citing case arrears now close to 30 million.
He counted 46,926 cases pending in the apex court, 37,00,223 cases pending in high courts and 2,52,85,982 cases pending in district and subordinate courts.
The seminar will be attended by some 1400 delegates, including 14 sitting judges of the apex court, which has a strength of 26.
UNI MJ KD KN2045

How ‘Functional Felony’ Creeps Into Judiciary : CJI – By Mukesh Jhangiani

                                                                                                                March 14, 2005

CJI R C Lahoti

How ‘Functional Felony’ Creeps Into Judiciary : CJI

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Personal visits to Judges’ residences, dinner invitations from lawyers and political pressures are some of ways in which ”functional felony creeps into the judiciary,” India’s Chief Justice has cautioned.

As a counter, Justice Ramesh Chandra Lahoti has stressed such time-tested judicial ethics as independence, impartiality, integrity and propriety.

Justice Lahoti was delivering the Inaugural M C Setalvad Memorial Lecture on Canons of Judicial Ethics organised by the Bar Association of India recently.

It was an evening given to remembering one of India’s finest lawyers– a ‘grand’ practioner, who charged ‘reasonable’ fees irrespective of stakes and respected Judges, but declined Judgeship.

The hall packed mostly with judges and lawyers heard a message from former Supreme Court Judge V R Krishna Iyer: ”Today, when the decline and fall have become deleteriously visible in the two sister professions, the memory of Setalvad will be a necessary admonition.”

The ethics topic sat well with 2005 dubbed the Year of Excellence in Judiciary. Judicial misconduct in India has no legal remedy.

Codes of ethics have been tried time and again, Justice Lahoti said, adding that if required to make a reference to such documents, he would ”confine myself… to three”:

— The Restatement of Values of Judicial Life adopted by the Chief Justices’ Conference of India, 1999

— The Bangalore Principles of Judicial Conduct, 2002

— The Oath of a Judge as contained in the Third Schedule of the Constitution of India.

As Justice Lahoti spelt out the documents it became clear that a number of Judges are already in violation of one or another of the canons of ethics.

Take Canon 4 of the Restatement: A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.

Over a year ago, the Bar Council of India (BCI) asked the government to transfer 130 High Court Judges who have relatives practising in courts in which they function. That meant almost one in four HC Judges. India’s 21 HCs between them had close to 500 Judges in place, the remaining positions being vacant. No action ensued.

The BCI is the apex statutory grouping of India’s 800,000 or so lawyers.

The trouble, experts say, is that a code of ethics cannot be enforced.

Indeed, as Law and Justice Minister Hans Raj Bhardwaj reminded audience, ethics cannot be foisted on anyone and should be left to the institution to evolve or embrace.

Nor does law in India make a proper provision to discipline Judges.

One option provided is impeachment, which, experts say, is more a political remedy than legal. It failed the only time it was invoked in 1992 against a Supreme Court Judge accused of corruption.

With Congress Members of Parliament under a whip to abstain in the vote to impeach Justice V Ramaswamy, Parliament virtually abdicated its duty to ensure accountability in Judiciary.

That was not perhaps the first time an Indian Judge had misbehaved. It certainly was not the last.

A spate of allegations has surfaced over the years involving HC Judges– in Karnataka, Rajasthan, Bombay, Delhi, Chennai, Calcutta and Punjab and Haryana– in bribery, sex and abuse of office, resulting in a few cases to transfer, removal, even arrest.

In one bizarre episode, dozens of HC Judges took leave en masse because two of them were asked by their Chief Justice to explain why they took complimentary membership from a club, which was a litigant.

One of Justice Lahoti’s predecessors, Justice Sam Piroj Bharucha told a lawyers’ meet in Kollam, Kerala three years ago that ”more than 80 per cent of the Judges in this country, across the board, are honest and incorruptible.

”It is that smaller percentage that brings the entire judiciary into disrepute. To make it known that the judiciary does not tolerate corruption in its ranks, it is requisite that corrupt Judges should be investigated and dismissed from service.”

A year later, Justice Bhupinder Nath Kirpal told a judicial colloquium that Judges ”are also Indian citizens who come from the same aggregate as those in the legislature and the administration.”

”Therefore,” Justice Kirpal said, ”there are also instances where corruption and incompetence have also pervaded the judicial establishment that cannot be denied.”

But as Justice Lahoti pointed out, ”The Judge can ill-afford to seek shelter from the fallen standard in the society.”

The trouble, experts say, is that in absence of a clearly laid down law, opacity takes over where will to cover up asserts itself.

Former Chief Justice Jagdish Sharan Verma, during whose tenure the Supreme Court Judges adopted the resolutions on Values of Judicial Life in May 1997, has called for a clear law to discipline errant Judges.

In a radio talk show aired two months ago, Justice Verma said: ”Time has come for enforcing judicial accountability.”

Asked to explain his insistence that the process be conducted by the judiciary itself, he said any external effort would be dangerous for judiciary’s independence.

Justice Verma said he sent the resolutions in December 1997 to then caretaker Prime Minister Inder Kumar Gujral, requesting enactment of such a law. ”It has not happened so far.”

Some two months ago, Bhardwaj announced a Group of Ministers set up to suggest steps to strengthen the Judges Inquiry Act 1968 as part of an effort to ensure accountability in governance.

Asked after the Lecture as to when the group will give its findings, the Minister told UNI it would probably be after the Budget session.

Corruption in their ranks is not the only issue Judges must reckon with: they have a huge workload– 24 million pendencies– and inadequate strength– 14,000 judicial officers from district level upwards, as against an estimated need of 50,000, topped by a large many vacancies.

Experts question lingering HC vacancies considering that the five member apex court collegium expected to select appointees knows well in advance when a vacancy is due to arise.

Law Ministry officials say 222 HC positions were vacant against an approved strength of 719 last year when the United Progressive Alliance took over from the National Democratic Alliance.

Bhardwaj has said all vacancies will be filled by the end of this year.

”It is futile to think of excellence,” Justice Lahoti said in his lecture, unless judges– howsoever highly or howsoever lowly placed– ”were to follow the canons of judicial ethics.”

He recounted how veteran Judges handled ethical issues. One instance involved a dinner for Judges given by a lawyer– paid for by a client whose matter was to come up in the court a day later while another was about a Vacation Judge approached for ‘interim’ stay by an advocate who happened to be the son of the then Chief Justice.

The dinner story in former Chief Justice Pralhad Balacharya Gajendragadkar’s words: ”So far as I know, I and K C Das Gupta did not attend. Most of others did. The dinner was held on a Saturday at a hotel. On Monday next, before the Bench over which B P Sinha presided and I and K C Das Gupta were his colleagues, we found that there was a matter pending admission between the management of the hotel chain and its workmen.

”I turned to Sinha and said: ‘Sinha, how can we take this case? The whole lot of supervisors and workmen in the hotel is sitting in front and they know that we have been fed in the hotel ostensibly by the lawyer but in truth at the cost of the hotel, because the very lawyer who invited the judges to the dinner is arguing in the hotel’s appeal.’

”Sinha, the great gentleman that he was, immediately saw the point and said: ‘This case would go before another Bench’.”

Justice Iyer’s tale of the Vacation Judge: ”Naturally, since the caller was an advocate, and on top of it, the son of the Chief Justice, the vacation judge allowed him to call on him. The ‘gentleman’ turned up with another person and unblushingly told the vacation judge that his companion had a case that day on the list of the vacation judge. He wanted a ‘small’ favour of an ‘Interim stay’.

”The judge was stunned and politely told the two men to leave the house. Later, when the Chief Justice came back to Delhi after the vacation, the victim judge reported to him about the visit of his son with a client and his ‘prayer’ for a stay in a pending case made at the home of the Judge.

”The Chief Justice was not disturbed but dismissed the matter as of little consequence. ‘After all, he only wanted an interim stay’, said the Chief justice, ‘and not a final decision’.”

The incident, Justice Lahoti went on, ”reveals the grave dangers of personal visits to judges’ residences under innocent pretexts.

”This is the way functional felony creeps into the judiciary. A swallow does not make a summer maybe, but deviances once condoned become inundations resulting in credibility collapse of the institution.”

”A little isolation and aloofness are the price which one has to pay for being a judge, because a judge can never know which case will come before him and who may be concerned in it. No hard and fast rule can be laid down in this matter, but some discretion must be exercised.”

Audience were told of a lawyer who actually observed ethics.

Setalvad remained ever a lawyer and never agreed to become a judge. His fees ”were reasonable and did not vary depending upon the stakes involved in a case.”

He seemed to have instinctively grasped the true function of a Law Officer stressed in English Courts– Counsel for the Crown neither wins nor loses. He is there to state the law and facts to the Court.

Setalvad joined the Bombay Bar in 1911 and rose to occupy such high offices as Advocate General of Bombay 1937-42, Attorney General of India 1950-63, Chairman of the Law Commission 1955-58 and Member of Rajya Sabha 1966-72.

He also represented India before the Radcliffe Commission and the United Nations 1947-50.

”In those days,” Bhardwaj said, recalling the post independence era, ”there were no sharp practices at the bar at all. There was no need for such concerns. Such an occasion never arose.”

These are ”difficult times,” he acknowledged. Standards have ”gone down.”

He said the BCI had not performed its duty. The Bar has been ”left behind by many decades… So much adulteration has come into this institution.”

Many lawyers may not even know who Setalvad was, he remarked.

Organisers thanked Chennai-based Senior Advocate G Vasantha Pai, a former BAI General Secretary, who contributed Rs 15 lakh to conduct the lecture annually, for ”giving us back” Setalvad.

UNI MJ MM CS1100

 

PM Underscores Tackling Corruption In Judiciary – By Mukesh Jhangiani

Manmohan Singh

Manmohan Singh (Photo: Wikipedia)

                                                            March 11, 2006

PM Underscores Tackling Corruption In Judiciary*

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Corruption in the judiciary and court delays were counted by Prime Minister Manmohan Singh today among common litigants’ problems that must be examined and remedied.

”Instances of corruption have now begun to surface in our judicial system, too,” Dr Singh remarked, opening a conference of state chief ministers and high court chief justices at Vigyan Bhavan.

The conference centring on Justice: Accelerated and Affordable heard a keynote address by Chief Justice Yogesh Kumar Sabharwal promising ”zero tolerance” to corruption and a welcome address by Law and Justice Minister Hans Raj Bhardwaj.

The Prime Minister emphasised that ”an important aspect of the reform and modernisation of the judiciary and improving the incentive mechanism, is to tackle corruption in the judiciary.”

Dr Singh said the prosecution trend where cases ”fall because witnesses turn hostile or change their evidence is causing concern to ever increasing sections of society.”

The allusion applied to the infamous Jessica Lal case outcome– absolving all nine accused in a murder committed in a packed bar room seven years ago.

The outcome sent a wave of shock across the nation, leading to calls for an effective system of justice which actually punishes criminals and violators and relieves victims.

The widespread public concern was acknowledged by the Prime Minister who stressed ”need for all of us to reflect whether the existing procedures are adequate and foolproof.”

Dr Singh called for an introspection ”whether we are using all available provisions to prevent deviant behaviour and whether we need new provisions in law so that the justice system is seen to deliver justice.”

Speaking as a ”lay man,” the Prime Minister said ”apart from delay in settlement of cases, lengthy court procedures, frequent adjournments, evidence taking procedures, corruption in the judiciary is also a problem of public concern that we must address.”

Dr Singh referred to the ever mounting court case arrears– currently close to 30 million– a problem which ”requires urgent attention.”

Acknowledging that the ”criminal justice delivery system appears to be on the verge of collapse due to diverse reasons,” Justice Sabharwal asserted that ”some of the responsibility will have to be shared by the executive branch of the state.

”Not much has been done for improvement of the investigative and prosecution machinery. Significant suggestions for separation of investigative wing from law and order duties and changes in rules of evidence still lie unattended.”

Justice Sabharwal noted that the public outrage over the failure of the criminal justice system in some recent high profile cases ”must shake us all up into the realisation that something needs to be urgently done to revamp the whole process, though steering clear of knee jerk reactions, remembering that law is a serious business.”

Justice Sabharwal said the main reason for persistent pendencies ”is huge increase in new cases instituted,” adding that it reflected ”more awareness and more rights created by numerous new legislations.”

But he cautioned that if the huge arrears of about three crores in high courts and subordinate courts is not tackled now there would be ”no magic wand available to tackle the menace” when they climb to three and a half crores or four crores. ”We have to turn the tide now. It is now or never.”

Justice Sabharwal said while judiciary was held responsible for mounting arrears, it neither has any control on resources of funds nor any powers to create additional courts or hire staff.

He suggested giving high courts at least ‘limited financial autonomy’ and backing up judicial efforts to bring about urgent legal reforms so as to galavanise the system to ”provide complete justice” instead of subjecting vital proposals for procedural laws to endless debates.

The Chief Justice said the judiciary ”craves for full support from the government. The process of appointments of judges in the high courts at the level of government needs to be expedited.”

He said the topic of corruption was a burning issue in all spheres of public life. The judiciary was committed to continue cleansing itself by coming down with a heavy hand on unscrupulous elements that may exist within and also by removing the deadwood. ”We have adopted a policy of zero tolerance on this subject.”

Referring to the outcomes of past such conferences, Justice Sabharwal said, ”we have been cajoled enough to sit up and take notice. It is time we proceeded to stand up and take action.”

The delays in filling judicial vacancies was acknowledged by the Law and Justice Minister who said the working strength of judges in courts needed to be ”optimised.”

Mr Bhardwaj said that ”though there are still about 100 vacancies of judges to be filled up in various high courts, we could achieve (an) all time high of incumbency, which is 560.”

India’s 21 high courts between them have a total sanctioned strength of close to 700, but remain perennially underfilled.

Mr Bhardwaj said that in district and subordinate courts, too, 2,655 of 14,305 judicial posts were vacant and urged participants to take timely action to fill up vacancies.

Earlier, the Prime Minister urged the Chief Justice and his colleagues to ”lead and guide the judiciary to achieve the formidable goal of reducing pendency and providing speedier and more affordable justice to the common man.”

Dr Singh declared the central government’s ”full support” in this endeavour and also urged the Chief Ministers to make available the necessary infrastructure needed by courts to ensure their effective functioning.

He stressed the need to maintain credibility of the system, improve the utilisation of existing laws and regulations, effective mechanism to ensure judicial accountability and a balanced approach in taking up PIL cases.

Underlining the need to exercise restraint in judicial activism, Dr Singh observed that it must also take adequately into account the administrative viability of the reform process.
UNI MJ NK DS1527

Related articles

Whither Reform ? Time To Audit Law-making ? – By Mukesh Jhangiani

                                                                                                                        February 19, 2006

Whither Reform ? Time To Audit Law-making ?

By Mukesh Jhangiani
United News of India

English: Parliament building in New Delhi (San...

Where Laws Are Made – Sansad Bhavan or Parliament Building (Photo: Wikipedia)

New Delhi (UNI) – Pendency went up 25 per cent – to 30 million cases – as authorities spent 2005 computerising courts, equipping judges with laptops, promoting arbitration and legal literacy and planning nyayalayas across rural India– all the while deferring reforms mostly to 2006. Maybe !

The year had begun with a call in the presence of a senior Supreme Court judge to curtail lawyers’ fees and sieve out those who do not conform to the expectations of a noble calling.
About same time, President A P J Abdul Kalam was questioning a bid to transfer a high court chief justice whose concern over judicious conduct had 25 brother judges attempting a ‘strike.’
And Law and Justice Minister Hans Raj Bhardwaj was announcing moves to strengthen the Judge’s Inquiry Act and a Bill to appoint a Lokpal to ensure accountability in executive, legislature and judiciary– the three key branches of governance.
Those events marked the very first week of 2005.
If such straws in the wind– and a new left-backed United Progressive Alliance at helm– produced hopes of real reforms in delivery of justice and rule of law blowing in soon– the wait did not end with the year.
The Right To Information Act, 2005 which came into force on October 12– cited by Prime Minister Manmohan Singh among key achievements– is seen by experts as a valuable tool to expose corruption.
Legal redress or remedy which include compensating victims and punishing culprits is another matter.
Media ‘stings’ which showed some Members of Parliament virtually vending the privilege of raising questions in the House or spending on development were a rude reminder that accountability was not really round the corner.
Their expulsions notwithstanding, the ‘exposed’ MPs are knocking on the doors of courts for justice.
It refreshes memories of one of the most controversial Supreme Court judgements that the Indian Constitution gives MPs taking bribes an immunity from prosecution ”if they have actually spoken or voted in the House pursuant to the bribe taken by them.”
That judgement allowed the acquittal of four Jharkhand Mukti Morcha MPs who had voted for the Narasimha Rao Government 12 years ago in return for bribes.
Then Law Commission Chairman B P Jeevan Reddy suggested making bribe-taking legislators liable for prosecution.
”Nothing… should bar the prosecution of a Member of Parliament under the Prevention of Corruption Act… if they take money for voting in Parliament.”
Asked about it eleven years later at a news conference in January 2005, the Law Minister acknowledged that steps were yet to be taken to preclude such interpretation– as, indeed, they yet are.
Lokpal to check corruption in public offices itself was conceived four decades ago but is still nowhere in sight. Tired of waiting, activists have announced a People’s Lokpal.
Efforts on Lokpal or to strengthen the law to discipline errant senior judges remain under way.
By proclaiming 2005 as the Year of Excellence in Judiciary and pronouncing the institution ‘clean’– close on the heels of allegedly scandalous behaviour involving some senior judges– then Chief Justice of India Ramesh Chandra Lahoti helped underscore accountability as well as transparency.
Bhardwaj insists that any disciplinary action against senior judges be taken only by their peers and to that end the Judges’ Inquiry Act 1968 needs strengthening.
The Act provides to impeach an errant judge– a step rendered ineffective due to partisan politics the only time it was invoked against Supreme Court Judge V Ramaswamy who had been dubbed ”guilty of wilful and gross misuses of office…”
Authorities have no other way to effectively discipline senior Judges. An in-house mechanism has been adopted in absence of any legislative provisions. But experts say such a mechanism suffers from opacity and uncertainty.
Three years ago, within hours of taking office as CJI, Justice Gopal Ballav Pattanaik stressed in a television interview more powers to tackle corruption in judiciary.
Just a week before, his predecessor, Justice Bhupinder Nath Kirpal had called for ”robust safeguards” to minimise fears of corruption and incompetence in a judiciary appointing itself.
He said, ”the members of the judiciary are also Indian citizens who come from the same aggregate as those in the legislature and the administration, and therefore, there are also instances where corruption and incompetence have also pervaded the judicial establishment that cannot be denied.”
In December 2001, then CJI, Justice Sam Piroj Bharucha told a lawyers’ group in Kerala that ”more than 80 per cent of the Judges in this country, across the board, are honest and incorruptible.
”It is that smaller percentage that brings the entire judiciary into disrepute. To make it known that the judiciary does not tolerate corruption in its ranks, it is requisite that corrupt Judges should be investigated and dismissed from service.”
In December 1989, on the eve of retiring as CJI, Justice E S Venkataramaiah told an interviewer that ”judiciary in India has deteriorated in standards because some of the judges are willing to be influenced by lavish parties and whisky bottles.”
However, concern and disquiet voiced over the years has yet to produce a remedy.
The Law Minister suggests ‘formalising’ the in-house mechanism– leaving the task of ensuring accountability still with judges but making clear provisions for punitive measures such as suspension or resignation of errant judges.
With that in mind, India’s Central and State Law Ministers met at Simla in June 2005 and decided to set up a National Judicial Council to ensure judicial accountability.
Such measures may not find favour with some judges.
On the other hand, legislators and the executive– not to mention the judiciary– owe the citizens a transparent and accountable system of justice.
In a broader context, accountability was emphasised by Justice Yogesh Kumar Sabharwal seven months before he became the 36th CJI.
Speaking at the launch of a legal literacy mission by Prime Minister Singh, Justice Sabharwal said, ”We need to set examples of accountability in our governance.”
Three months ago, the Law Commission received a reference on the Judges’ Inquiry Act. This month, the Commission submitted to the Law Minister ”a comprehensive study” on ”the procedure for removal of the judges of the Supreme Court and High Courts.”
As it is, on one hand, judges cannot be disciplined unless their peers so choose– on the other they cannot be criticised without risking six months in jail under the court’s contempt power.
A long-awaited reform has been to allow truth as a defence against the contempt power which ends up silencing, at least discouraging, even fair, healthy and well-meaning criticism.
Last February, a Bill to ”further liberalise the scope to permit a defence of justification by truth on satisfaction as to bona fides of the plea and it being in public interest” was introduced in the Lok Sabha.
Just two days before the year ended did the Manmohan Singh Cabinet approve a ”proposal to proceed further in Parliament (on) the Contempt of Courts (Amendment) Bill 2004.”
An even more basic issue is judges’ strength. Not only it is known to be lower in India than elsewhere, it is further undermined by many vacancies and possible quality issues. Delayed judicial appointments contribute to delayed justice, even though authorities know years before vacancies arise and can set up a pool from which judges are assigned without delay.
So far as making lawyers accountable to litigants is concerned, the Advocate’s Act remains where it was.
Apart from complaints of incompetence, inefficiency and indifference, ethical issues are a major concern in the legal profession.
Lawyers who should look out for clients’ interests, are at times known to mislead them– treating cases as milch cows prolonged through adjournments for years– or even colluding with clients’ opponents.
Victims can complain to statutory Bar Councils. But the Councils are not always prompt in responding, nor can they help litigants recover any losses caused due to members’ misconduct.
One practical remedy might be for courts to keep for litigants’ reference a lawyers’ roster along with any record of complaints of misconduct against each– whether resolved or pending.
As it is, the authorities have not even dusted Law Commission findings since protesting lawyers clashed with police on Parliament Street a few years ago.
Here is an undergraduate textbook extract on the reality of Equality Before Law in actual practice during the erstwhile British rule:
”The principle of equality before law was violated when laws became complicated and beyond the grasp of uneducated poor masses.
They had to engage lawyers who charged excessive fees and preferred to work for the rich. In addition, the prevalence of corruption in the administrative machinery and the police worked against the rights of the masses.”
More than 57 years after the British quit India, the call to simplify the language of laws of the land was given by Prime Minister Singh at the launch of the country’s first nationwide legal literacy mission in March 2005.
”The complex legal language of our statutes acts as a hurdle to legal literacy… compounded by the intricacies of legal language in judicial pronouncements,” Dr Singh told law professionals.
”An attempt should be made to simplify the language of the law so that any one who reads judgements and laws can easily understand their true meaning.”
In November, the cold-blooded killing of Indian Oil Corporation officer Manjunath Shanmugam, who blew the whistle on corrupt petrol outlets, underscored once again the crying need in India for law to protect whistleblowers– insiders who expose corrupt or abusive organisations or employers.
Such laws have existed in and served other advanced societies for decades.
In India, a study was made by the Law Commission and a Draft Bill put together and placed in Parliament more than three years ago.
It was before the MPs when National Highway Authority officer Satyendra Dubey lost his life in November 2003, not to mention when Shanmugam lost his– two years later.
As it is, critics say, officials who appear to find protection in Indian jurisprudence are the sort who acquiesce in or connive at violations.
In case after case– whether petrol pump distribution scam, St Kitts affair, Hawala scam, Bofors scandal or many more– bureaucrat after bureaucrat and politician after politician has found acquittal or escape.
It is dramatically exemplified in manifestations of justice that hit consumers of New Delhi’s municipal and housing services this winter.
Law abiding citizens hailed the drive ordered by the Delhi High Court, urging impartiality and wondering whether– and why– law spared pre-2000 violations or officials on whose watch violations took shape.
Published accounts say three-fourths– perhaps more– of the Capital’s 36,00,000 buildings are illegal. Yet municipal authorities have taken note of only 200,000 of them and acted against barely a thousand.
The ongoing drive targets a mere 18,299 cases detected since 2000.
The court also has ordered the city to ”fix responsibility” and initiate major penalty against engineers and officials ”who allowed or took no notice” of such constructions.
If punitive action has been taken, it has not been made public.
Critics say city bulldozers have been ‘discrete,’ steering wide clear of homes of India’s bigwigs or affluent– entire unauthorised neighbourhoods or localities !
Critics advocate punishing officials who let violations occur and such agencies as the Delhi Development Authority whose policies or actions– why lottery ? for instance– have encouraged and stoked speculation in housing.
They say it all reflects the state of rule of law in India.
Here are some more reflections of it:
— Hundreds of thousands of undertrials have been in custody– many for years, even longer than their convictions might have required them to spend in jail. Why legal attention remains denied is not clear given huge sums spent year after year on legal aid for needy. Former Law Minister Jana Krishnamurthi saw it as a serious flaw that must not be allowed.
— An Indian Society of International Law inaugurated in August 1959 by India’s first Prime Minister Jawaharlal Nehru might have been a guiding force, helping inform and shape public opinion on global law. In 2005, it was sued by its Treasurer over violations of domestic norms.
— The Bar Council of India disclosed two years ago that 131 high court judges– one in four– across India have kin practising in the same court– an arrangement or coincidence forbidden under the law for fear of promoting unfairness in justice. The Council campaigned for transfer of 131 HC judges– in vain.
— But 2005 saw a High Court Chief Justice transferred twice in seven months, each time reportedly on brother judges’ complaints. In February, Justice B K Roy was transferred to Gauhati HC after he had asked some Punjab and Haryana HC judges why they took complimentary membership of an exclusive club, and in September, to the Sikkim HC, after he tried to improve access to justice in the Northeast by assigning Judges to benches in states neighbouring Assam.
— Despite scam after sordid scam sapping public interest, legislators have neither enacted Lokpal nor discarded it as a bad idea unfit for Indian society in the 40 years since it was recommended by the Administrative Reforms Commission set up under Morarji Desai in 1966.
— In November 1996, the Supreme Court found that former Petroleum Minister Satish Sharma favoured 15 petrol pump allottees and fined him Rs 50,00,000. Another Bench overruled this in August 1999. Two years later, an expert group led by Justice Reddy reviewed both orders and said it was ”absolutely essential” and ”urgent” to enact a law making public servants liable– with exemplary damages– for loss caused to the State by their mala fide actions. Last April, the Central Bureau of Investigation explained its failure to file chargesheet in the 15 cases citing a government decision ”not to grant sanction” to prosecute Sharma.
— In 30 years, the Lalit Narain Mishra murder case has been transferred to nine judges, and of seven accused, the statement of only two recorded. A Parliamentary report dubs it ”a classic case” which ”epitomises the lethargic pace at which the Indian legal system operates.”
”We must realise,” Justice Sabharwal said in his Law Day speech in November ”that the end of law must be justice. Law and justice cannot afford to remain distant neighbours. There must be harmony between law and justice.
”We must, in all seriousness, ask ourselves… how far we have been able to fulfil the mission of law to deliver justice and to what extent we have succeeded in using law as a vehicle for ensuring social justice to the large masses of people in the country.”
Experts concede that not just justice, legislation– the process of enacting laws of the land– also suffers from delays.
They say the terribly slow pace of legislating reforms is as constricting and agonising to the society as delay in adjudication is to an individual victim.
In India, the process also suffers from near absence of public participation in so-called public debate– often confined to hearing select speakers in one forum or another with hardly any audience input.
Those are just some of the serious questions that need to be faced. ”It is also perhaps a most ignored aspect of public interest issues by Indian research and scholarship,” a Delhi University Law teacher acknowledges.
Experts concede what is needed is a thorough but quick audit or study of legislative function– to see how it can be made effective in dealing with the needs of transparency, accountability and law in the society.
UNI MJ PK GC1148

Think About It But Don’t Ask Questions… – By Mukesh Jhangiani

March 11, 2007

Think About It But Don’t Ask Questions…*

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Asserting that judicial corruption is existent– albeit ”not rampant”– justice experts have stressed reforming the way judges are appointed and disciplined.

But discussing Appointment and Removal of a Judge of the Supreme Court, panelists acknowledged last week that such reforms might be struck down by the courts as offending the basic structure doctrine.
That doctrine is an offshoot of a Supreme Court ruling of April 24, 1973 that Parliament cannot amend India’s Constitution insofar as its ”basic structutre” is concerned.
The panelists who included former Chief Justice of India J S Verma and former Delhi High Court Chief Justice Rajinder Sachar went over changes the government proposes to make in law.
The other panelists: former Attorney General Soli Jehangir Sorabjee, senior advocates K K Venugopal and A K Ganguly and journalist Harish Khare.
The Judges (Inquiry) Bill, 2006 now before Parliament seeks to establish a National Judicial Council to look into allegations of misbehaviour or incapacity of the Judges of the Supreme Court and the High Courts; regulate the procedure for such investigation, inquiry and proof; and provide for minor disciplinary measures.
Key changes allow complaints against errant judges– to be rejected or processed by a judges forum– resulting in either minor measures or removal.
Reform is also intended to introduce transparency in judges’ appointments, a process mired at present in opacity.
Over the past few weeks, for instance, President A P J Abdul Kalam has raised queries on two senior judges’ appointments– reflecting incongruities in the process at work.
”There is an urgent need of a legislation for establishing a National Judicial Council,” Law and Justice Minister Hans Raj Bhardwaj has noted in the Objects and Reasons of the Bill.
The Minister said the Council would look into ”allegations of misbehaviour or incapacity of a Judge of the Supreme Court or of a High Court…”
He said it was based on judicial independence, a fundamental of the Constitution inseparable from judicial accountability.
Initiating the discussion, Sorabjee said ”There is judicial corruption,” but ”not rampant.”
Sorabjee wondered how former CJI S P Bharucha arrived at a figure of 20 per cent judges being corrupt– an estimate some of his successors have tended to discount.
Some three years ago the Bar Council of India, the statutory body of the nation’s million or so lawyers, demanded transfer of 130 judges– nearly a fifth of incumbents– from High Courts where their kin practise.
The practice is among don’ts spelt out under the BCI Rules of Standards of Professional Conduct and Etiquette.
Critics say by most standards any sort of misconduct by a learned Judge should be unimaginable.
They cite a Delhi HC Additional Judge whose resignation brought to the fore allegations that he availed himself of indecent hospitality while the host wrote a ‘judicial’ order in his name in an adjacent room.
Critics say that since a Supreme Court judgement in 1993, the onus of appointing Judges is on the judiciary, but no responsibility is fixed for lapses by selectors.
Justice Verma spoke of a perception that what the executive did when it controlled the hiring process is now done by the judiciary, although there may be a difference of degree.
He said given a provision for complaint, a Chief Justice seeking a Judge’s explanation need no longer face the counter-question: ‘Who are you ?’
But he questioned so-called minor measures, pointing out the untenability of public reprimand of a judge. After that ”how do you expect a Judge to function.”
Justice Verma was against excluding the CJI from the purview of the proposed legislation. ”I don’t think it’s advisable. The CJI must not be excluded.”
The CJI, he said, is essentially no different from other Judges but such exclusion may send out a signal to the contrary.
Most speakers opposed a limitation proviso in the Bill which seeks to disallow complaints arisen before the enactment.
Justice Verma emphasised that ”Your past should have nothing to hide.”
Hailing the complaint provision, Venugopal said once a show cause goes out to a Judge, all other Judges would ”sit back and take notice”.
He said the very fact of notice would have a salutary effect on Judges, but Sorabjee did not appear to think so.
Venugopal acknowledged the probability that the reform might not go far. ”It may be struck down.” Khare stressed that the judiciary set its house in order.
Sachar said there was ”no need for appeal” provided in the proposed draft against a disciplinary decision taken after an elaborate procedure.
Ganguly questioned long gaps in appointing Judges. He said at times senior advocates sounded for judgeship did not hear about it again for years.
Ganguly suggested letting the Prime Minister preside over the group that selects Judges, but the idea was considered inappropriate by another panelist as the Prime Minister is head of the government which is often a litigant.
Concluding the discussion, the panelists told the mostly lawyer audience to ”think about” the issues– but allowed no questions.
An advocate who sat through the discussion said afterwards the key problem with the system was appointments made from a close circle of professionals– what he dubbed ”judicial inbreeding”.
Ravi Mohan acknowledged in reply to a question that his assertion was not based on an academic or administrative study but his empirical experience.
The remedy: make the system transparent, he said, adding that all consideration in respect of an appointment from the first step– inviting biodata– onward must be public knowledge.
”It’s well known that no disinfectant works better than sunlight through an open window.”
UNI MJ HS MIR KP1152

Think About It But Don’t Ask Questions…* – By Mukesh Jhangiani – March 11, 2007