Whose Constitution is it anyway?
In this series, it has already been reported (IE, July 24) that her constant struggle to overcome judicial “hurdles” to bank nationalisation and abolition of princes’ privy purses had exacerbated Indira Gandhi’s conflict with the higher judiciary. However, the confrontation had started much earlier and over a different issue. Moreover, the fight was on behalf of Parliament as an institution. Personalisation of power came later.
To begin from the beginning, for the first 17 years since the commencement of the Constitution, Parliament’s right to amend the basic law was unfettered as long as it adhered to Article 368 requiring that an amendment be passed by a two-thirds majority of those present and voting as well as a clear majority of the total membership of the House. In February 1967, the Supreme Court, under the leadership of Chief Justice K. Subba Rao, by a majority of four to three, debarred Parliament from amending the fundamental rights. And the CJ added, for good measure, that Parliament could enlarge these rights but not restrict them. This was the famous Golak Nath case.
It has been well said that Subba Rao had gone too far. He wanted to “save the Constitution”. But he succeeded in provoking what he had intended to prevent: increased parliamentary authority to amend the Constitution and a Parliament strengthened at the expense of the Supreme Court. For, no sooner had the Golak Nath judgment been delivered than Parliament was in uproar. Most opposition parties were at one with the government on this score. Within the Congress party, factional fightings intense. Yet, the supporters of Indira Gandhi and those of Morarji Desai (who was then out of the government) were united in demanding that Parliament’s power to amend the Constitution be restored immediately.
An opposition member, Nath Pai (Socialist) moved a bill to this effect. It could not be passed but it later became the basis of the Twenty-fourth Amendment that restored the pre-Golak Nath position. Meanwhile, Subba Rao had compounded the situation by resigning from the Bench to become the Opposition’s candidate in the presidential election, thus fuelling anger against him and his verdict. The now defunct Swatantra party, representing big business and princes, gave him full support. This lent an edge to the gibe that he was a defender of “vested interests”.
Anyway, the Constitution (Twenty-fourth) and (Twenty-fifth) Amendment Bills could not be passed in 1970. The opposition to them was strong. The Congress party had formally split in 1969 and the Congress (O) was vehemently opposed to these measures. This was so because the 24th Amendment went beyond mere restoration of Parliament’s right to amend all parts of the Constitution. It provided that the amendment could be “by way of addition, variation and repeal”. The 25th Amendment went even further. Dealing largely with the fundamental right to property (Article 31), it introduced a sub-Article (31C) that ruled out judicial review of the “amount” (the word “compensation” was deleted) paid for acquisition of property. Laws enacted to enforce the Directive Principles of Policy, the new provision added, could not be challenged in any court of law.
After Indira Gandhi’s landslide victory in the 1971 election, there was no difficulty in passing both the Bills with overwhelming majorities in both Houses. The President promptly gave assent to them. But both the amending laws were immediately called into question in the Supreme Court in the historic Kesavananda Bharati case.
So inflamed were passions in the country both for and against the two constitutional amendments that Chief Justice S. M. Sikri constituted a “special bench”, consisting of all the 13 judges of the apex court. Its much-awaited judgment was delivered on April 24, 1973, just two days before Sikri was due to retire. The 13 judges could not have been more divided; nor could the majority (seven-to-six) behind the verdict be narrower. Six judges voted for the government’s stand. Justice A. N. Ray was the most senior of them though he was number five on the bench. Six other judges, including the CJ and the three judges next to him in the seniority list, voted against the government all through. Justice H. R. Khanna restored the balance by agreeing with the first set of six on some points and with the other six on some issues. Overall, the court’s verdict overruled the Golak Nath judgment, and although it upheld the 24th and 25th Amendments, it declared invalid the new Article 31C enacted by the Indira Gandhi government. The most important point of the judgment was that while Parliament could amend any section of the Constitution it could not change its “basic structure”, which remains the law of the land.
Proponents of radical changes in the Constitution saw the judgment as Indira Gandhi’s “defeat”. She retaliated within 24 hours. The President, on the advice of his council of ministers, appointed A. N. Ray as the next Chief Justice, superseding three judges —- J. M. Shelat, K. S. Hegde, and A. N. Grover — senior to him. All of them resigned at once. Nothing like this had happened ever before. Since Nehru’s days, the most senior judge of the Supreme Court had become Chief Justice. Amidst the already inflamed polarisation, supersession of judges hit the country like a thunderbolt. Such eminent legal luminaries as M.C. Setalvad, M. C. Chagla and V. M. Tarkunde described the “blow” as a “manifest attempt to undermine the Court’s independence”. Opposition parties screamed that Indira Gandhi wanted to “suborn” the judiciary and “destroy” all democratic institutions. Some also alleged that she was manipulating the apex court’s composition with an eye to the election case against her, slowly wending its way in the Allahabad high court.
On the government’s behalf, several ministers, led by Mohan Kumaramangalam, a former communist, invoked the names of Abraham Lincoln and Franklin Roosevelt in support of the contention that it was “vital” to take into account a judge’s “philosophy” and “outlook”.
Furious debate was still raging when the hammer-blow of the Emergency intervened, and the whole ballgame changed. Yet, there was a sting in the tail. On January 18, Indira Gandhi called fresh elections. Eleven days later, she appointed M. H. Beg Chief Justice of the Supreme Court, superseding Justice H. R. Khanna, who resigned instantly.
The writer is a Delhi-based political commentator
http://www.indianexpress.com/news/whose-constitution-is-it-anyway/499111/0
Open, free, fair
A recent three judge bench judgment of the Supreme Court (Justices B.N. Agrawal, G.S. Singhvi and Aftab Alam) held R.K. Anand, a senior advocate, guilty of contempt for suborning a prosecution witness in a case in which Anand was appearing for the accused, Sanjiv Nanda. The court found the conduct of I.U. Khan as special prosecutor inappropriate, but let him off because, on the evidence, his conduct did not constitute criminal contempt of court. The judgment does not deal merely with the law of contempt. The observations and the principles laid down transcend the facts of the case and are of seminal significance.
The bench bemoans the general erosion of professional values among lawyers at all levels. In anguished tone Justice Aftab Alam observes: “We find that even some highly successful lawyers seem to live by their own rules of conduct. We have viewed with disbelief senior advocates freely taking part in TV debates or giving interviews to a TV reporter/anchor of the show on issues that are directly the subject matter of cases pending before the court and in which they are appearing for one of the sides or taking up the brief of one of the sides soon after the TV show.” Thereafter there is a picturesque reference by Justice Alam to the fictional barrister Rumpole — who was not bereft of professional values. The judgment warns with concern that unless the trend of falling professional standards is promptly arrested, “it will have very deleterious consequences for administration of justice in the country because no judicial system in a democratic society can work satisfactorily unless it is supported by a bar whose members are monetarily accessible and affordable to the people.”
Never has there been such a forthright and much-needed judicial criticism of the legal profession. The court has not merely preached sonorous sermons. It has pungently reminded lawyers that they are not simply traders, such as those in Chandni Chowk operating on the law of demand and supply, but they belong to a noble profession — and the solution for professional decline must come from the lawyers themselves.
The judgment also regrets that the Bar Council has not shown much concern about maintaining standards and enforcing discipline among lawyers and hopes “that the Bar Council will now pay proper attention to the restoration of high professional standards”. If past experience is any guide this is a fond hope. I hope I am proved wrong.
The court then deals with the vexed question of media’s role when a case is sub-judice. Trial by media is a frequently-levelled charge. What does it signify? It is settled law that any and every comment on pending proceedings irrespective of their nature does not amount to contempt. A matter of national importance may be the subject matter of a pending legal proceeding. Public discussion of that matter cannot be stifled under the threat of contempt because, as pointed out by the Delhi high court speaking through Justice H.R. Khanna, that would place a blanket ban on public discussion of matters of national importance which would be impermissible in a free democratic society.
The present judgment explains that trial by media takes place where the impact of television or newspaper coverage on a person’s reputation creates a widespread perception of guilt regardless of any verdict in a court of law. In such cases the media has tried and found the person guilty and thus adjudicated upon the very issue pending before the court and this makes a fair trial virtually impossible regardless of the its result.
It was argued that NDTV’s sting telecasts constituted trial by media and amounted to contempt because the same tended to interfere with the proceedings of the BMW trial. This argument was rejected because in the opinion of the court the programme showed some people trying to subvert the BMW trial, and thus the administration of justice in the country. There was nothing in the programme to suggest that the accused in the BMW case were guilty or innocent. The court ruled that despite the faults and weaknesses of the programme noticed by it in the judgment the sting programme telecast cannot be described as trial by media. Indeed it served an important public cause: to prevent an attempt to obstruct the due course of justice.
A curious argument was advanced before the court by counsel for one of the contemnors, that NDTV should have carried out the stings only after obtaining the permission of the trial court or the chief justice of the Delhi high court, and should have submitted the sting materials to the court before its telecast. This plea was rightly rejected because, in the felicitous words of Justice Aftab Alam, “it would be a sad day for the court to employ the media for setting its own house in order; and media too would certainly not relish the role of being the snoopers for the court.” More importantly, the court held that requiring prior permission of the court would tantamount to pre-censorship of reporting of court proceedings and this would be plainly an infraction of the media’s fundamental right of freedom of speech and expression. This is the most heartening part of the judgment. It sends the right signal to those infected with the itch to ban free speech. Pre-censorship is repugnant, except in dire compelling circumstances, irrespective of whether it is imposed by the executive or the judiciary.
It should be remembered that this judgment does not give a carte blanche to media for indiscriminate sting operations. The court has warned that the media is not free to publish any kind of report concerning a sub-judice matter or to do a sting on a pending matter in any manner they please. The court has pointed out that a sting operation “is an incalculably more risky and dangerous thing to do and it would attract legal restrictions with far greater stringency and any infraction would invite more severe punishment”.
The judgment is finely balanced. Its conclusions are based on cogent reasoning and material. The observations made and the principles laid down in this landmark judgment are far-reaching. They provide salutary guiding principles and sage advice for lawyers, Bar Councils, the media and the judiciary.
Long road to reform
Pratap Bhanu Mehta Posted: Friday , Aug 07, 2009 at 0336 hrs
The recent episode over the Judges (Declaration of Assets & Liabilities) Bill is a reminder of just how difficult genuine judicial reform is going to be. In some ways, the issue of declaring assets is the simplest item on judicial reform. Judges’ legitimate concerns that their disclosures not be used as a tool of harassment can be easily handled without having to exempt them from public disclosure. But the judiciary’s response to the issue has two fundamental mistakes. The first rule of any sound jurisprudence is that no one should be a judge in their own cause. The judiciary insists that only it can superintend itself. The second related mistake is to convert the claim of judicial independence into exemption from accountability. If Veerappa Moily is serious about judicial reform, accountability in so many different forms will be a central concern. The attitude of some sections of the judiciary to the asset bill is a warning about how independence will be used as a shield against accountability. And the delicious irony in the fact that politicians were teaching constitutional lessons to the judiciary in the parliamentary debate is a sign of how resistant they are perceived to be to serious reform.
In any reform story, entrenched actors within a sector are the hardest to move towards reform. Unfortunately, the judiciary is proving to be no exception. There are a number of indicators of this. We are all grateful to the courts for some splendid defences of our liberty and for holding government accountable. But if you scratch under the surface, it becomes apparent that there is a selection bias driving our perception of the judiciary. To just take one example, institutions like the Delhi high court have been at the forefront of rights and governance issues, sometimes excessively so. But if you look at the country as a whole, barring a couple of jurisdictions, the so-called rights revolution in our courts has not taken place. There is enormous variability in how courts are responding. In short, even the court’s achievements are much more contingent and fragile than we suppose and seem to be driven largely by wonderful individual judges rather than systemic factors.
The mere fact that millions of plaintiffs are now suffering what is called the punishment of due process is an enormous blot on the credibility of the justice system. And there is growing evidence that many seeking justice are dropping out of the formal system all together. The factors behind this are complicated. But one of the most disquieting aspects is that many of the delays are a result of procedures and conventions directly under the control of judges. Individual judges are enormously hard working. But there is no rational basis for the way adjournments are granted, benches shifted and assigned, and the utter lack of control over lawyers. One of the big mysteries in political economy is why judges, with all their protection and security, do not intellectually, legally and procedurally take greater charge of their own courts. Even at the highest levels of the judiciary, the deference to lawyers is amazing. The test of the judiciary’s willingness to reform will be first and foremost a serious and committed internal conversation about all the million small things it can do that are within its power. The lack of this open conversation suggests how muted the constituency for reform is.
The judiciary’s position on appointments, especially to the Supreme Court, is constitutionally untenable. It is, not to put too fine a point on it, one of the most non-transparent processes in the world, not open to any form of scrutiny. There is no principled basis for the judiciary to sanction reservations for everyone else, but exempt itself from its ambit. In public perception the judicial response to charges of corruption is extremely tepid, mostly amounting to treating Sikkim and Assam as a backwater posting. Even in areas where the judiciary took on major governance roles, like the environment, the net results are mixed. The common thread running through all this is that independence has become a fig leaf to shield accountability. The concern for judicial independence is not a sufficient argument to shut out other branches of government from participating in creating better systems of accountability. Indeed, the judiciary’s claim to independence and its credibility will be enhanced if it is more transparent.
Moily has an ambitious agenda for reform: timely disposal of cases, improving the quality of appointments, introducing a modicum of judicial accountability, initiating procedural innovations. But none of this is going to be possible without active cooperation and dialogue with the judiciary. The disquieting lesson of the Judges Bill is that it is a demonstration of just how difficult and adversarial this dialogue is going to be. And then you can throw into the mix the legal profession which has an odd relationship to the system.
Broadly, there are three groups. There is the growing group that does mostly backroom professional legal work, like contracts, etc. But in the frontline profession there are two groups. The upper echelons are great beneficiaries of both judicial deference and a lack of culture of accountability. Many of them are brilliant and upright. But the systemic culture of the profession needs a hard look. Forget more complicated ideas of conflict of interest, and what it means to be an officer of the court. There are a distressingly large number of instances where top lawyers, even after having taken advances, will not show up for hearing after hearing, and there is simply no redress. The top echelon has the ability to dominate an intellectually insecure judiciary and benefit from great under-professionalisation. Then there is a large mass of struggling lawyers at different levels: immensely resentful of the privileges of the few in the profession and convinced that justice is not about the law but manipulating existing protocols and conventions. They have also consistently blocked legal and judicial reform.
The executive also has more than its fair share of blame. But the importance of the Judges Bill was not simply that it would have brought judges under principles they themselves have enacted. It was that this was a test case for the possibility of a dialogue between the judiciary and other branches of government. If the debate on this is so entrenched on the simplest issue, think of what might happen on more complex issues like the Judicial Accountability Bill or the appointments of judges or the reform of the Bar. Now the rule of law is running into the political economy of the judiciary.
The writer is president, Centre for Policy Research, Delhi express@expressindia.com
A slow but sure step forward
Ramaswamy R. Iyer in THE HINDU
| The very fact that the government is thinking of a rehabilitation law and of amending the Land Acquisition Act is an achievement for public opinion. |
The debate about the displacement of people caused by various developmental projects has been going on for over two decades. Without going into that history in detail, we may note that the Government of India finally notified the National Rehabilitation and Resettlement Policy 2007 in October 2007, and followed that up with the Rehabilitation and Resettlement Bill 2007 and the Land Acquisition (Amendment) Bill 2007. Those Bills have lapsed and have now to be introduced afresh in the new Lok Sabha. There have been reports that Railway Minister Mamata Banerjee is unhappy with the Bills. There have also been protests against the Bills by many NGOs.
Superficially, the Bills seem to include a number of good elements. There was a demand for a Rehabilitation Act and here is a Bill; the much-criticised Land Acquisition Act is being amended; ‘public purpose’ is being re-defined; governmental acquisition of land for private parties is being reduced; ‘minimum displacement,’ ‘non-displacing alternatives,’ consultations with the people likely to be affected, and so on, find a place in the Rehabilitation Bill; a Social Impact Assessment is provided for; an Ombudsman is being provided for the redress of grievances; and a National Rehabilitation Commission is envisaged. Why then are the Bills not being welcomed?
Let us consider the Land Acquisition Amendment Bill first. At first sight, the deletion of all references to companies gives us the impression that acquisition by the state for private parties is being eliminated, but that is not the case. The original Act had the wording “for a public purpose or for a company”; the words “or for a company” are now being omitted; but the definition of “public purpose” itself is being changed to include a (supplementary) acquisition for “a person” (including a company). If the private party purchases 70 per cent of the required land through negotiation, the balance 30 per cent can still be acquired by the government for that party. This means that sovereign compulsion will be brought to bear on those who are not inclined to sell their land, and also that state patronage for industrial houses can continue. Incidentally, it will be seen that the definition of ‘public purpose,’ instead of being made stringent and narrow as many had recommended, is being widened.
Moreover, it was necessary not merely to rule out (or limit) the acquisition of land for private parties under the Land Acquisition Act, but also to ensure that rural communities are not taken advantage of by corporate bodies in unequal negotiations. There is no such provision in the Bill.
Judging by its name, The Land Acquisition Compensation Disputes Settlement Authority will apparently deal only with compensation issues. A longstanding criticism of the Land Acquisition Act has been that the ‘public purpose’ for which land is being acquired is not open to contestation. There seems to be no change in that position.
One wonders whether the bar on the jurisdiction of the civil courts and the establishment of a Dispute Settlement Authority instead is in fact a good thing to do. There is room for misgivings here.
Turning now to the Rehabilitation Bill, the provision for a Social Impact Assessment seems very good, but the impacts are rather narrowly confined to physical assets (buildings, temples), institutions, facilities, etc. Social impacts must be more broadly understood to include the loss of identity; the disappearance of a whole way of life; the dispersal of close-knit communities; the loss of a centuries-old relationship with nature; the loss of roots; and so on. It is good that the SIA will be reviewed by an independent multi-disciplinary expert body, but it should first be prepared by a similar body. The provision for a Social Impact Assessment clearance is good, but not enough: it should be part of an overall clearance for displacement. If the felling of trees and interference with wildlife and nature in general require statutory clearances, should not the displacement of people be subject to a similar requirement? Such a clearance must come from an independent statutory authority and not from the bureaucracy. The clearance must of course be subject to certain conditions and must be revocable in the event of non-compliance or lapses; and the revocation clause should be actually used.
The terms ‘minimum displacement’ and ‘non-displacing alternative’ are music to the ears, but the application of this criterion is left to a late stage when the consideration of options may no longer be possible, and the decision is left to the Administrator for R&R. In other words, this crucial decision is entrusted to the bureaucracy.
An impressive structure of institutions has been specified, but their responsibilities and powers have not been spelt out. Administrator, Commissioner, project-level and district-level R&R Committees, Ombudsman, Monitoring and Oversight Committees, National R&R Commission: what each will do, how they will be inter-related, what decision-making powers each will have and in relation to what aspects, and so on, are far from clear. Everything is covered by the phrase “as may be prescribed.”
Words such as “wherever possible,” or other similar phrases are scattered throughout the Bill. For instance, group settlement is laid down, but qualified by the phrase “wherever possible;” training is to be provided “wherever necessary;” there are also qualifications such as “if government land is available,” “preferably,” and so on. They seem innocuous, but all of them involve decisions. Such hedged-in requirements can hardly be mandatory: they are likely to become discretionary, with the discretion vesting in the bureaucracy.
The Ombudsman provision is a good one, but ‘grievance’ has been narrowly defined to cover only the case of “not being offered the benefits admissible.” Grievances could relate to many other things: non-participatory project decision, failures of consultation, non-compliance with the minimum displacement condition, non-inclusion of a person in the ‘affected’ category, and so on. How the Ombudsman will be appointed, how the Ombudsman will function, etc., are left to be ‘prescribed.’
Taking the preceding points together, it appears that the precise manner in which this seemingly benign and enlightened legislation will actually work in practice will be entirely determined by the delegated/subordinate legislation, that is, the rules that are made under it.
The National Monitoring Committee seems totally bureaucratic, except for the non-mandatory association of some experts (the operative word is “may”). No civil society or NGO participation seems envisaged.
In the case of the Sardar Sarovar Project the basic principle in force (though it may not always be complied with) is: rehabilitation must precede submergence. The present Bill retreats from that position and requires only “adequate progress in rehabilitation” prior to displacement. This is a retrograde step. Besides, who will decide the adequacy of the progress?
The elements of the rehabilitation ‘package’ seem inferior to the policies already adopted in projects such as Sardar Sarovar and Tehri. Moreover, cash in lieu of land is envisaged in several places. This is fraught with danger. Eventually, cash may well become the main form of compensation.
In the event of deliberate or inadvertent lapses or non-compliance or deviations, what consequences will follow? The Bill is silent on this. Without such sanctions, how can the provisions be enforced? Far from sanctions for non-compliance, there is a sweeping indemnity provision!
In addition to those primary points, there are many others, some of them quite important, that need consideration. They cannot be set forth in detail here for want of space.
The conclusion that emerges from this quick examination of the two Bills is that there are many weaknesses and questionable features in these Bills which need to be rectified. Opposition to the Bills is therefore warranted. However, the very fact that the government is thinking of a rehabilitation law and of amending the Land Acquisition Act is an achievement for public opinion. It has taken more than two decades for the debate to reach this stage. Opposition to the Bills should be carefully modulated so that we can proceed further from here and not lose what has been gained.
http://www.hindu.com/2009/08/07/stories/2009080754180800.htm
Limits of judicial conduct
V R Krishna Iyer
A Performance Commission to investigate delinquent judges is essential if egregious judicial blunders are to be minimised.
Judges have powers to guillotine people, to rob them of their entire riches, to grant divorces and disinherit children as being illegitimate. Such enormous powers they have, yet there is no authority to punish them if they exercise these powers in an authoritarian and arbitrary fashion.
Harlan F. Stone wrote in United States v. Butler: “… [W]hile unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint.” (297 U.S. 1, 78-79, 1936)
The great Felix Frankfurter justified the criticism of judges thus: “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candour, however blunt.” (Bridges v. California, 314 U.S. 252, 289)
The judges of India’s highest court consider themselves to be gifted with infallibility because of the finality of their judgments. This shall not be. Like other institutions they too must suffer when they go wrong or are negligent. A powerful Performance Commission to investigate the delinquencies of judges is essential if the number of instances of egregious judicial blunders is to be minimised. Rules of good conduct that were voluntarily created do exist. But they carry neither sanction nor penalty and are often violated, though yet rarely. If Parliament has enough vitality and sense of duty it must forthwith create a comprehensive code of judicial conduct for higher judges when state power is exercised by constitutional instrumentalities.
Transparency in functioning and accountability with respect to duties are fundamental in a democracy. Parliament is the ultimate inquest of the nation, and judges are no exception to this. If robes rob by corruption they must be subject and answerable to, like other constitutional agencies, the people through Parliament. They are no Niagara but great power canalised and controlled in their furious flow, ultimately to be beneficial to the nation. This process of social engineering is part of social philosophy which is structurally basic to legal engineering, so that justice, social, economic and political; human rights and fundamental duties laid down by the Founding Fathers (vide Parts III, IV and IV A) do not remain an illusion.
Corruption among judges, even sexual misconduct, is escalating. And there is no punitive therapy save the political futility of the impeachment pharmacopoeia. One method to arrest the evil of corruption, communalism and other dangerous deviances is to insist on transparency and accountability. Probity and integrity could thus be invigilated by a high-level committee comprising the nation’s most respected souls acceptable to the President, the Cabinet and others. They should be free from politics, communalism and any dark shades in public life.
One controversial question concerns the common man’s desire to know, in a socialist secular democratic Republic like India, about the assets, accumulations and the methodology of acquisition of wealth by judges. Judges have to declare their assets before the President, the Chief Justice of India, the Comptroller and Auditor General of India… This information should be available to any responsible citizen or institution on reasonable grounds when it is demanded for legitimate purposes. This information should not be a secret that is hidden among the judges, for that could provoke suspicion. Suspicion is the upas tree under whose shade reason fails and justice dies. Judges, great in status and mighty in their majesty, should be, like Caesar’s wife, above suspicion.
Yes, judges are the salt of the earth. If the salt loses its savour, wherewith shall they be salted? You have assumed office by an oath to uphold the socialist, secular, democratic Republic. If you breach this oath, the Performance Commission shall disrobe you and forfeit the Bench. Be you ever so high, the oath binds you.
http://www.hindu.com/2009/08/07/stories/2009080754240900.htm
Executive and CJI alone should appoint judges: Law Commission
NEW DELHI: The Manmohan Singh government, keen to get executive the primacy it had 15 years ago in the appointment of judges to the Supreme Court and High Courts, will be pleased with this report from the Law Commission recommending disbanding of the present Collegium system.
The report handed over this week to law minister Veerappa Moily by commission chairman Justice AR Lakshmanan, who himself had a four-and-a-half-year tenure in the Supreme Court as a judge, termed the present system of appointment of judges through a Collegium headed by the Chief Justice of India (CJI) as faulty and found great force in the demand for restoring primacy to the executive.
Moreover, it said when an advocate was elevated as a judge in the HC in which he had been practising for a long time, it gives rise to an unholy phenomenon of “Uncle Judge”, as he has so many relatives practising there.
In turn, these relatives appear to stand a better chance for elevation, the commission said and recommended against appointment of such advocates as judges in the same HC where they practised.
Referring to the constitutional provisions on appointment of judges to the SC and HCs, the commission said it was a “beautiful system of checks and balances” providing a balanced role to both the executive and judiciary.
“The delicate balance has been upset” by the Supreme Court’s judgments, which gave primacy to for the Collegium system headed by CJI, it said.
“It is time the original balance of power is restored,” the commission said and suggested that it was for the government either to seek review of the SC judgments or enact a law “restoring the primacy to the CJI and the power of the executive in making appointments”.
In terming the Collegium system as faulty, the commission said every HC Chief Justice was from outside the state as a policy and this was a handicap for him to be able to provide details to the Collegium about the antecedents of local advocates or district judges for elevation to the HC as a judge.
In its 37-page report on judicial reforms, the commission gave a lot of prominence to the views of the EMS Natchiappan headed Parliamentary Standing Committee, which recommended scrapping of the present procedure for appointment of judges. The Natchiappan report recommendations “are of great relevance in this context”, it said.
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