LAW RESOURCE INDIA

The law on impeachment of judges

Posted in ACCESS TO JUSTICE, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on December 17, 2009

On Monday, 75 members of the Rajya Sabha submitted a signed motion for impeachment of controversial Karnataka High Court Chief Justice P D Dinakaran. Maneesh Chhibber takes a look at what the process entails:

What is impeachment?

A member of the higher judiciary, which means the Judges and Chief Justices of the Supreme Court of India and the state High Courts, can be removed from service only through the process of impeachment under Article 124 (4) of the Constitution on grounds of proven misbehaviour or incapacity. In India, there is no other process by which a Judge can be removed from office before his term comes to an end. However, the process is very cumbersome.

Who decides if a Judge should be impeached?

As per the Judges Inquiry Act, 1968, a complaint against a Judge has to be made through a resolution either by 100 members of the Lok Sabha or 50 Rajya Sabha members. After the MPs submit a duly signed motion to this effect to their respective presiding officers — Chairman of the Rajya Sabha or Speaker of the Lok Sabha — the presiding officer constitutes a three-member committee comprising two Judges — one from the Supreme Court and one Chief Justice of a High Court if the complaint is against a HC Judge; and two Supreme Court Judges if the complaint is against a sitting Judge of the apex court — and a jurist to probe the complaint and determine if it is a case fit for initiating the process of impeachment.

This team can involve any independent agency, either from the government or the private sector, to investigate the charges, before making a recommendation to the House. Thereafter, if the committee has concluded that impeachment proceedings be launched, the matter is debated in both Houses of Parliament. The Judge who is facing impeachment is also given the opportunity to rebut the charges, either in person or through his representative. However, the entire process — debate onwards — has to be completed within a single session of the House, failing which the motion is deemed dropped and can only be taken up if the entire process is repeated afresh in any subsequent session.

What is the majority needed to pass the impeachment motion?

After the debate ends and the Judge has been heard, if the House decides to put the motion to vote, the resolution has to be passed by two-thirds majority in both Houses in the same session. The resolution is then sent to the President, who orders removal of the Judge.

Has any Judge ever been impeached since Independence?

None till date. The only time, Parliament came close to impeaching a Judge was in the case of former Punjab and Haryana High Court Chief Justice V Ramaswami for corruption in 1991. However, the move failed as the then Congress government headed by Rajiv Gandhi asked all Congress MPs to abstain from voting, thus defeating the motion.

Last year, 58 MPs of the Rajya Sabha moved a motion for impeachment of Calcutta High Court Judge Soumitra Sen for his involvement in financial misappropriation before he was appointed as a Judge. The matter is pending before a three-member committee constituted by the Rajya Sabha Chairman.

On Monday, 75 MPs of the Rajya Sabha submitted a signed motion for impeachment of controversial Karnataka High Court Chief Justice P D Dinakaran on 12 counts. Once the signatures are verified, the matter will be referred to a committee to be constituted by the Chairman of the Rajya Sabha. Among other things, Dinakaran is accused of encroaching upon government and village common land, amassing assets much beyond his known sources of income and causing loss to the exchequer.

Is there any other way to punish errant Judges?

No. In most cases, transfer is the only course of action followed by the Supreme Court collegium if it feels that the offence of the Judge is not so grave so as to attract the penalty of impeachment. Ironically, in a large number of cases, the highest court of the land has ruled that transfer is no punishment.

Is the government mulling a new law to rein in and punish errant Judges?

Yes, Union Law Minister M Veerappa Moily has already announced on the floor of the Parliament that a new law in this regard could be introduced in the ongoing Session of Parliament itself.

http://www.indianexpress.com/news/the-law-on-impeachment-of-judges/555056/0

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Judicial appointments: agenda for reform

Posted in CONSTITUTION, DEMOCRACY, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on December 17, 2009

Anil Divan , Sr Advocate , Supreme Court of India IN THE HINDU DECEMBER 17 , 2009

The independence of the judiciary and the rule of law will be severely compromised if the integrity of the higher judiciary is not protected by an independent, informed, transparent, fair and robust process.

The former Chief Justice of India, P.B. Gajendragadkar, said: “Wise judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach and by the restraint, dignity and decorum which they observe in their judicial conduct.”

The bottom line is “deserve respect from the public at large.” The prestige of the Supreme Court has never been lower except during the Emergency of 1975-77 and in the aftermath of the Habeas Corpus judgment. The higher judiciary is suffering from self-inflicted wounds. The Dinakaran appointment controversy has been dragging on from September 9, 2009. To appoint or not to appoint? — the question remains unanswered.

It is ironical that over 70 members of the Rajya Sabha have donned the mantle of leadership and decided to present an impeachment motion against the Chief Justice of the Karnataka High Court in record time. One hopes Parliament will deliberate and decide impartially — judicial integrity is too crucial to be tested through the prism of partisan politics.

The entry point at which High Court judges are appointed has to be guarded meticulously. Indifferent and unsuitable appointments create many difficulties because most of the Supreme Court judges are drawn from among senior judges of the High Courts.

Supreme Court collegium

The system of appointments and transfers was the subject matter of many judgments until a nine-judge Bench gave “primacy” to the opinion of the CJI after wide consultations with senior colleagues in the Supreme Court collegium.

The collegium experiment is not working satisfactorily. Justice V.R. Krishna Iyer’s views encapsulate the public perception (The Hindu, Dec. 2, 2009): “What is wrong with our courts that they have lost their credibility and prestige? Corruption has crept in … Another great deficiency is that a collegium that is untrained in the task selects judges in secret and bizarre fashion. There could be room for nepotism, communalism and favouritism in the absence of guidelines… The collegium is a disaster: the P.D. Dinakaran episode is an example. A new code by a constitutional chapter has become an imperative.”

We must introduce radical reforms for a better tomorrow and discard systems which have outlived their utility. The need of the hour is to remove the lack of transparency and secrecy and replace the existing system with an independent, permanent, well-informed Judicial Appointments Commission functioning openly and transparently. This will require a constitutional amendment. The time is ripe for the same.

U.K.: the old system

Till 2006, judicial appointments were made by the Lord Chancellor and steeped in secrecy. Over a period of time, this system came under grave criticism. Colin Turpin writes: “Lord Scarman has described the appointment process as “all too haphazard” and an “old boy network” which has resulted in some terrible mistakes.”

John Alder comments, “Traditionally the Lord Chancellor privately consults judges and other senior lawyers and the senior judges … This process creates the risk that the judiciary is regarded as a self perpetuating body of cronies.”

Constitutional Reform Act 2005

Radical reforms have been brought about in the U.K. by the Constitutional Reforms Act 2005. A new Constitutional Court was established and it has started functioning. A Judicial Appointments Commission (JAC) is now in place with Baroness Usha Prashar as Chairperson — a distinguished civil servant of East African Indian origin. It has 14 other Commissioners including five judicial members, one barrister, one solicitor, five lay members, one tribunal chairman and one lay judge. The Chairperson and 12 Commissioners are appointed through open competition, while the other three are selected by the Judge’s Council. The selection of judges is to be solely on merit and the Act provides, “A person must not be selected unless the selecting body is satisfied that he has a good character” (Clause 63).

Applications are invited through advertisements for appointments to the High Court. The Act also provides for a Judicial Appointments and Conduct Ombudsman but that is not the theme of this article.

There are separate selection processes for posts of judges of the Supreme Court, Lord Chief Justice and Heads of Divisions, and puisne judges of High Courts. The process of selection to the High Court is done by the JAC, a body with a majority of non-judicial members representing a cross-section of society and the profession. Thus, inputs on a potential candidate and his integrity would be available from a wide spectrum of society. After inviting applications, interviews are taken and a rigorous and intrusive method of inquiry is in place. In Lord Falconer’s words, the methodology is “robust and transparent.”

South Africa

The Constitution, the Judicial Service Commission (JSC) Act and the JSC Amendment Act, 2008 deal with appointments and complaints against the higher judiciary. The amendment to the JSC Act has not been brought into force but it deals exhaustively with complaints against judges, a topic not relevant to this article.

The Constitutional Court is headed by the Chief Justice and has a Deputy Chief Justice. The Supreme Court of Appeal is headed by a President with a deputy. The head of the Executive is the President of South Africa. The President makes appointments to these four positions after consulting the JSC and leaders of the parties in the National Assembly.

The JSC consists of the Chief Justice, who presides over it as Chairperson, the President of the Supreme Court of Appeal, one Judge President designated by the Judge’s President and the rest non-judicial members. State High Court appointments are made by including in the JSC the Judge President of that Court and the State Premier. The total strength of the JSC is the Chief Justice plus 22 or 24 members. Judicial members do not have a preponderant voice.

The procedure of the JSC for other appointments to the Constitutional Court is gazetted. A vacancy or potential vacancy is publicly announced, nominations are called for and these must contain inter alia detailed curriculum vitae and answers to a questionnaire. The Commission interviews the shortlisted candidates and such sessions are open to the public and the media. After the interviews, the Commission holds deliberations in public and selects the candidates for recommendation. The Chairperson and the Deputy Chairperson shall “distil and record the Commission’s reasons” for recommending the candidate selected. The Commission advises the President on the names of the candidates and the reasons for their recommendation. The names are publicly announced. A similar procedure is followed for appointments to the State High Courts.

If a young republic like South Africa can function in such an open, transparent and professional manner — predominantly involving laypersons — why can’t India adopt a similar procedure?

We are at a defining moment — the independence of the judiciary and the rule of law will be severely compromised if the integrity of the higher judiciary is not protected by an independent, informed, transparent, fair and robust process. “The collegium” experiment needs to be jettisoned. Every adversity creates an opportunity. When there is a “duty to speak,” it is for responsible lawyers, citizens, former judges, and sitting judges to speak out — publicly or privately — and create public opinion and internal “peer pressure”.

Parliament, a proactive Law Minister, retired judges, and responsible members of the Bar must campaign to safeguard the independence and integrity of the judiciary.

(Anil Divan is a Senior Advocate. abdsad@airtelmail.in)

http://www.hindu.com/2009/12/17/stories/2009121758260800.htm

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The system strikes back

Posted in ACCESS TO JUSTICE, CORRUPTION, DEMOCRACY, HUMAN RIGHTS, JUSTICE, NREGS by NNLRJ INDIA on December 17, 2009

Vidya Subrahmaniam IN THE HINDU DECEMBER 17, 2009

Missing job cards, fudged muster rolls and diversion of NREGS funds through fake bills. What the Rajasthan social audit has revealed is the tip of the iceberg.


Bhilwara-2009 invited a swift and strong backlash — the government backed off realising it had stepped into a quagmire of corruption

The battle being fought in the panchayats, streets, offices, and courts of Rajasthan is not just about social audit


To understand why civil society participation in the social audit of the National Rural Employment Guarantee Scheme (NREGS) in Rajasthan raised the hackles of a swath of people, among them gram panchayat staff, politicians and bureaucrats, it is necessary to rewind to the October 2009 Bhilwara social audit which was conducted jointly by civil society and the Rajasthan government.

The induction of civil society members into the official NREGS social audit brought experience to the audit teams but, more importantly, it made the oversight process transparent and accountable.

The effect of this was dramatically visible post-Bhilwara. When the audit teams compiled the results of the 10-day-long exercise, they were stunned by the extent of corruption that came to the fore, especially in the purchase of material for civil works under NREGS. Bhilwara had been audited before along with other Rajasthan districts. But these were paper exercises that revealed few lapses, and did not in anyway threaten the tranquil world of the sarpanchs, engineers and Block Development Officers. Bhilwara-2009, on the other hand, invited a swift and strong backlash, and the government backed off realising it had stepped into a quagmire of stealth and corruption.

The Bhilwara audit teams, which examined bills and vouchers relating to material purchases in 11 of Rajasthan’s over 9,000 gram panchayats, conservatively estimated diversion of NREGS funds in the inspected village panchayats at Rs. 1.5 crore (about Rs. 12 lakh per gram panchayat). The sample size may have been too small to allow extrapolation for the more than 9,000 gram panchayats, but it nonetheless gave a fair picture of the overall volume of potential corruption under NREGS — anything between Rs. 800 crore and Rs. 1,000 crore a year. The allocation of NREGS funds for Rajasthan for the year 2009-2010 was Rs. 9,525 crore, up from Rs. 6,175 crore the previous year. This was to be split in the ratio 60-40 between labour wages and material costs.

The plain meaning of this was that roughly a third of the funds allocated for material purchases was being used to line the pockets of a long chain of people — from the sarpanchs, gram sevaks and sachivs (secretaries) at the lowest rung through civil engineers, accountants, contractors, dealers and suppliers to BDOs, going right up to the District Collector in a few cases.

Naturally, a fuller audit held out the threat of bringing down this cosy nexus. The Bhilwara exercise unearthed two sets of irregularities. The padayatris reported back fudged muster rolls, missing job cards, delayed and partial payment of wages as well as the use of machines to displace labour. The auditors in the 11 gram panchayats found a recurring pattern of fake and hand-written bills, exaggerated claims, use of substandard material, and payment by cash or bearer cheque.

The fund diversion was intriguing in the context of a series of Government Orders issued to panchayats and District Collectors advising strict compliance of norms for the purchase of material for projects under Rural Development and NREGS — among them sourcing of supplies only through registered firms, inviting open tender for purchases, ensuring that the dealer possessed a tax compliance certificate from the commercial tax department, and ensuring further that only bills bearing sales tax registration details were accepted for payment.

A GO dated February 16, 2007 reiterated the norms and regretted the heavy loss to the exchequer due to the flouting of norms by the gram panchayats and panchayat samitis. A second GO, dated June 18, 2007, brought the discomfiting results of previous social audits (done again by Aruna Roy and her team) to the attention of District Collectors, noting that these had revealed continued submission of kaccha (unofficial) bills by gram panchayats. The GO instructed the Collectors to keep a strict watch on the quantity and quality of material supplies going into NREGS works. It also asked them to ensure that payments were made only to registered, bonafide firms.

GOs unheeded

A whole two years later, the Bhilwara social audit would discover that the GOs went unheeded. In the event, Bhilwara-2009 threw up a curious situation. The coming into record of phony bills brought the commercial tax authorities into the picture. Queries went out to suppliers who had received payment for material sold to the gram panchayats. One the one hand, the fake bill trail led to sarpanchs, engineers, BDOs and politicians. On the other, firms were asked to produce Value Added Tax-paid bills, which opened a can of worms. VAT evasion being easy to detect, the entire supply chain stood to be exposed, setting off panic among sarpanchs, politicians, bureaucrats and manufacturers, who collectively decided to challenge the government on its move to extend the Bhilwara model of civil society-government social audit to the whole of Rajasthan.

With protests mounting, the State government altered the norms it had itself held sacred in letter after letter. It instructed District Collectors to sanction payments even on kaccha bills provided the material supplied was fully utilised and was of assured quality. More startlingly, the GO dated November 10, 2009 announced VAT deduction at source for sanctioned payments. This was an incredible case of a government accepting the legal validity of kaccha bills.

The government had no justification for letting the offenders off the hook given the extent of fraud uncovered in Bhilwara. Moreover, feedback from the now abandoned November-December, 2009 audit programmes, and an inspection done by the government itself would strongly corroborate the Bhilwara findings.

The Rajasthan government undertook to carry out an inspection of NREGS works in the Soniana gram panchyat in Chittorgarh district essentially to appease the social activists who were upset by the suspension of the November-December audits. Filed as recently as December 6, 2009, the inspection report established pervasive irregularities in inviting tenders as well as the absence of technical sanction for most civil works. But this was nothing compared to the fact that over the years the gram panchayat had gradually edged out the labour component from NREGS, seriously undermining the very premise of the job guarantee programme.

The Soniana panchayat’s fund utilisation for 2009-2010 showed that a mere 10 per cent of the allocated Rs. 3.81 crore had gone towards labour wages as against the mandated 60 per cent. The funds drawn by the panchayat increased every year, from Rs. 22.70 lakh in 2007-2008 to Rs. 3.81 crore in 2009-2010. And progressively the proportion spent on labour wages decreased, from 67 per cent in 2007-2008 to a shocking 10 per cent in the current year. This led to one of two obvious conclusions: Either poor people needing employment were being defrauded or money was flowing to a panchayat that did not seem to need employment.

The government also had feedback from a few gram panchayats where the audit work had made some progress despite the protest. In the Sapotra gram panchayat in Karauli district, auditors established work measurement irregularities amounting to a total of Rs. 17.52 lakh.

These revelations coupled with the Bhilwara findings made a persuasive case for civil society participation in NREGS social audit. However, instead of standing firm, the government bought into the argument of the protestors that Aruna Roy and others were busybodies who had appropriated the rights and duties of the gram sabha. In support of their claim, the protestors cited a set of amendments introduced to NREGA in December 2008. Clause 13(B) (iii) of the amendments states that social audit will be done by the gram sabha which will elect from itself a Social Audit Committee of workers experienced in NREGA work. On the basis of this they also obtained two court stays against the inclusion of social activists in social audit.

And yet the same amendments also establish the public’s rights in NREGS social audit in the following respects: to inspect all relevant documents, including complete files; to submit any information; and to attend, observe and participate in the audit without intervening in its proceedings. Ms Roy is at pains to point that the activists at no point took the audit into their own hands, but that they were officially inducted by the government and went into the panchayats as part of a government team.

Basic principle

There is also the basic principle of audit which is that it must be done by a people external to the works being audited. To invest this right exclusively in the gram sabhas is to make them at once jury, judge and executioner. Forget the NGOs, the Rajasthan government said as much in a note it addressed to District Collectors. Dated April 2, 2009, the note points out that in a large number of cases social audit forums are constituted, not by the gram sabha but by the sarpanch, who packs it with his/her spouse and other relatives. The note goes on to say, “it is a fact that wherever NGOs have conducted audit in open hearings, a large number of irregularities were found. As compared to that, the irregularities detected in social audit by forums are negligible and put a question mark on their credibility.”

The government had enough and more evidence to make a strong case before the courts for civil society participation in social audit. Instead it suspended the audits — without being asked to do so.

It is now widely accepted that in many parts of the country, NREGS has emerged as a lifeline for the rural poor. It has had a cascading effect, raising wage levels even in the private sector. The biggest threat to the job guarantee programme was always control of the funds by a corrupt elite. Statutory social audit was a radical and innovative feature of the Act; it introduced the concept of vigilance to opaque and non-accountable systems.

The battle being fought in the panchayats, streets, offices, and courts of Rajasthan is therefore not just about social audit. It is about who will have control over the funds and priorities of the world’s largest guaranteed programme to fight poverty and generate employment — one that has the power to change the complexion of rural India.

http://www.hindu.com/2009/12/17/stories/2009121756000900.htm

Closing Guantanamo: an assessment

Posted in HUMAN RIGHTS by NNLRJ INDIA on December 17, 2009

Balakrishnan Rajagopal in THE HINDU DEC 17, 2009

By now, it is clear that the Obama administration will miss its self-imposed deadline of January 22, 2010 to close down the Guantanamo prison, as President Obama himself has admitted. With this, the United States could begin to look like it is sliding back to its bad old days of lawlessness when seen as part of a troubling trend of worsening human rights commitments.

Its own fault

The Obama administration’s failure to close down Guantanamo is entirely due to its own fault as it was caught in an impossible maze of contradictions from the start. First, while the Obama administration promised to close down Guantanamo, it continued to assert its right to hold some detainees indefinitely without trial or charge. That looked like it was taking away with the left hand what it was handing out with its right hand. This policy undermined the goal of shutting down Guantanamo, as opponents of the closure argued in favour of keeping it open to hold these detainees, while supporters of the closure felt morally abandoned. From a human rights perspective, it seemed that the Obama administration did not seek to address the root problem about Guantanamo, which was that it enabled indefinite detention without trial or charge, of anyone sent to that legal black hole. In other words, closing down Guantanamo was not just a symbolic act that would eliminate the most visible stain on America’s human rights record. It was also supposed to begin the process of ending America’s practice of unlawful indefinite detention policy. That didn’t happen.

Second, the Obama administration never agreed to change the policy that the US had arrogated to itself, which could be described as a ‘global right to arrest’. Under this policy, justified under the Global War on Terror (GWOT), now soothingly renamed ‘Overseas Contingency Operation’ (OCO), the United States could seize any individual from any country on earth, as long as it suspected him/her of engaging in terrorism or support thereof. Under international law, there is no basis for any country to exercise this wide extra-territorial authority to engage in arrest, especially in areas where it is not even engaged in an armed conflict, whether international or non-international, as defined in the Geneva laws of war. The most controversial actions of the US stemmed precisely from this policy, and it would have been entirely appropriate for the Obama administration to confront it squarely, if it wanted a ‘new beginning’ as President Obama put in his famous Cairo speech in June 2009. The rest of the world suspects that as long as the U.S. has not renounced this right to arrest, it will never close down Guantanamo — at least in the sense of give up the policies that make Guantanamos necessary — or give up the right to hold people indefinitely without charge.

Third, the Obama administration has retained the policy of rendition, including by the CIA, whereby it can hand over individuals to other countries, which then torture and commit other abuses. Despite the blow received to this policy when an Italian Court convicted 23 agents of the CIA for kidnapping in November 2009, the policy of rendition itself has not been subjected even a serious public debate in the U.S. From a legal perspective, there are two problems with rendition. First, rendition rests on an unlimited ‘global right to arrest’ as mentioned above. There is no basis for this in international law and certainly in the domestic laws of most countries, as the Italian Court’s verdict shows. Second, rendition leads to torture, which is absolutely prohibited under international law. While President Obama prohibited torture in absolute terms in his directive in early 2009, and reiterated that prohibition in his Cairo speech in June 2009, and before the U.N. General Assembly in September 2009, he has undermined his own commitment by allowing rendition to continue. Why does this matter for Guantanamo? So long as the U.S. asserts a right to grab anyone from anywhere as part of its global OCO, it will continue to need a processing centre while it extracts intelligence and decides on the need for rendition. What that means is that there will always be a need for Guantanamo.

Finally, the Obama administration’s Guantanamo policy is tied up with its policy towards the use of military commissions since it needs to decide where the detainees will be brought to trial. While the Supreme Court ruled in 2008 that the standard of review under the Detainee Treatment Act did not meet full habeas review standards, and therefore the foreign detainees in Guantanamo did have access to federal court review, it did not rule the Military Commissions Act itself unconstitutional. The Obama administration has therefore revised the Military Commissions Act by a bill passed in October 2009 and sought to make it better. But the policy of the administration continues to be legally schizophrenic. It creates a two-track justice process, involving prosecution before federal courts as in the case of the five Al-Qaeda plotters of 9/11 who will be brought before a federal court in Manhattan, as well as prosecution before military commissions for ‘unprivileged enemy belligerents’ who used to be called ‘unlawful enemy combatants’ by the Bush administration. Instead, the Obama administration could have simply decided to bring all civilians before federal courts if it had evidence against them of crimes, while prosecuting armed combatants under the regular system of military justice. The fact that only non-U.S. citizens will be brought to trial before military commissions will offend public opinion worldwide and lead to charges of unfairness and double standards. The Obama administration’s decision to close Guantanamo is politically undermined by the legally dubious means of retaining military commissions. Instead of showing intolerance of criticism of its Guantanamo policy as when it recently fired the former chief prosecutor of military commission from his current job at the Congressional Research Service for writing an op-ed that criticised the two-track justice policy of federal courts and military commissions, the Obama administration needs to revisit and revise this policy.

Worries growing

The human rights community and U.S. and world public opinion welcomed the announcement by President Obama to close down Guantanamo, repeated many times during the year by him. But as other regressive policies connected to Guantanamo have continued as before, as the Guantanamo deadline passes us in January, and as the President defends the right to wage ‘just war’, as he did in his Nobel acceptance speech recently, worries are growing that he may not be a transformational President in human rights terms after all, even despite his best intentions.

(Balakrishnan Rajagopal is Associate Professor of Law and Development, Massachusetts Institute of Technology.)

http://www.hindu.com/2009/12/17/stories/2009121755990900.htm

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