LAW RESOURCE INDIA

Awaiting winds of change

The new CJI will inherit heavy dockets, impeachment proceedings against two HC judges and debate over RTI

M J Antony / New Delhi May 05, 2010,IN THE BUSINESS STANDARD

The change of guard at the top level in the judiciary in a few days comes at a time when the Supreme Court of India is adding more arrears to the dockets and visions of reform have remained empty dreams. In recent times, it had to deal with two cases of impeachment of high court judges and corruption cases against several others. On top of it, the Supreme Court became a petitioner before itself in the right to information controversy.

Soon after Justice K G Balakrishnan took over as chief justice of the Supreme Court, he declared with gusto that “in a democratic set-up, information is empowerment, since it promotes transparency, integrity and accountability. It is necessary to keep the people informed on vital aspects of the functioning of a public institution so as to enlighten them and enable them to form an informed opinion on its working and performance. I am happy that the Supreme Court of India has taken a lead in this direction.”

As in a cinematic anticlimax, soon after he wrote his above editorial for the Supreme Court journal, he got himself into a running controversy over the right to information regarding the assets of judges in the appellate courts and the consultation process in their appointment. Responding to the public outcry, the assets of the judges were put on the Web. But details of the consultation process was another matter, on which the Supreme Court moved a petition before itself challenging the Delhi High Court judgment which stated that the information was not privileged. The petition is still pending.

Arrears of cases in December 2007, around the time when Chief Justice Balakrishnan took over, stood at 39,780. Last December, it was 55,791. When the Supreme Court was set up in 1950, it was a mere 680. This steady increase in the institution of cases is inevitable, given the rise in literacy and awareness of rights among the people. Since the executive has neglected the judiciary, the disposal rate has steadily slowed down.

This has prompted a debate on whether the Supreme Court should take up all appeals or limit itself to Constitutional cases and those of public importance only. One bench of the court has referred this question to a Constitution bench that is to be constituted by the new chief justice, Sarosh Homi Kapadia.

The Supreme Court has remained static on the reform front, though there were plenty of resolutions at the seminar hall of Vigyan Bhavan in New Delhi, with the promising presence of the Union law minister. Among them were the “redesigning of the justice delivery system”, setting up of a “national arrears grid” to provide infrastructural, managerial, technical and manpower services to the judiciary and a “special purpose vehicle”, a new catchphrase. All these were forgotten after the high tea.

Whether the new chief justice would make a dent in this seemingly insurmountable stack of problems, where his predecessors have failed, is a question in the mind of the legal profession. He has two years and four months to make the attempt.

The corporate sector will note that he is a chartered accountant and a cost accountant rolled into one and in these days of economic reforms he will have a lot to contribute to the commercial laws. His court already functions like the proposed “commercial court”, with counsel struggling to match his familiarity with every interstice in tax laws. Some of his judgments are complex and there is debate over their real import. He recently called for special training for judges and lawyers for brushing up their knowledge in taxation. He has lamented the inadequacy of counsel appearing for the government in tax matters, leading to heavy losses in revenue as private companies field the best lawyers.

Years of delay in filing appeals by revenue departments and the absence of lawyers when the cases are called have been recorded in his orders. On Monday, he told the counsel for the Directorate of Revenue Intelligence that his appeal was delayed by a thousand days.

Though his court has not been dealing with public interest litigation (PIL) on all and sundry issues like that of the outgoing chief justice, he was on the special “green bench” which deals with environment and forest matters. As he would inherit scores of PILs from his predecessor, his handling of this important branch of judicial power would be keenly watched.

His knowledge of fiscal regulation should stand in good stead when he bargains for more funds for the judiciary. The funds crunch is the most serious problem affecting this arm of the state. He recently remarked that his heart “goes out to trial court judges who in remote areas are working even without a fan in this scorching summer.” There is, in fact, a 1989 PIL in which the service conditions of subordinate judges are being agitated. Uneasy would lie the head which bears these burdens.

Time to tone up governance

Posted in JUDICIAL REFORMS, JUDICIARY by NNLRJ INDIA on March 14, 2010

BY P P RAO IN THE TRIBUNE

We must select persons of exceptional merit and integrity for all posts and services.

Successful working of the Constitution requires common understanding and concerted action in furtherance of the aims and objectives of the Constitution on the part of the three wings — legislature, executive and judiciary.

Secularism is a basic feature of the Constitution. In M.R. Balaji vs. State of Mysore, the question arose whether caste was a relevant factor for identification of backward classes. There were two possible views open to the court: (i) that identification of backward classes ought to be done without reference to caste as reliance on caste would perpetuate the caste system and militate against secularism and thereby defeat the objective of promoting fraternity among the people of India assuring the unity and integrity of the nation; or (ii) that ‘caste’ is a relevant factor in judging backwardness of certain sections as the occupations traditionally engaged in by members thereof are considered as inferior to others.

RULE OF LAW

RULE OF LAW

Missed opportunity

The court missed the great opportunity of preferring the first interpretation and rejecting the other. It could have put an end to caste-based reservations which have come to stay.

The issue came up again for consideration before a larger Bench of nine Judges in Indra Sawhney vs. Union of India. Justice Kuldip Singh summed up the rival arguments on the issue as follows: “Mr Ram Jethmalani appearing for the State of Bihar has advanced an extreme argument that the `class’ under Article 16(4) means ‘caste’. Mr P.P. Rao on the other hand vehemently argued that the Constitution of India, with secularism and equality of opportunity as its basic features, does not brook an argument of the type advanced by Mr Jethmalani. According to him caste is a closed door. It is not a path — even if it is — it is prohibited path under the Constitution.”

Justices Kuldip Singh and R.M. Sahai wrote inspiring dissenting judgements, emphatically rejecting the contention that caste is a relevant factor for identification of backward classes under our secular Constitution. However, the majority of judges reiterated the view taken in M.R. Balaji and held that caste could be a route through which backward classes would be identified taking into consideration other relevant factors. They held that identification of backward classes either through castes or on the basis of occupation-cum-income without reference to caste is permissible and observed by way of illustration that “agricultural labourers, rickshaw-pullers/drivers, street-hawkers etc. may well qualify for being designated as backward classes.”

In Ashok Kumar Thakur v. Union of India, this writer once again tried his best to persuade the court to declare that identification of backward classes on the basis of occupation-cum-income without reference to caste would be consistent with the basic feature of secularism while identification through caste would be anti-secular. It was an attempt in vain. The court missed yet another opportunity of correcting itself.

Parliament’s inaction

Dr Rajendra Prasad mentioned in the Constituent Assembly that the Constitution has placed Public Service Commissions on an independent footing so that they may discharge their duties without being influenced by the executive. Five decades later, dealing with the Chairman of Bihar Public Service Commission, the Supreme Court pointed out that the chairman and members of the Public Service Commission are required to be selected on the basis of their merit, ability and suitability and they in turn are expected to be models themselves in their functioning”.

It is a matter of grave concern, that selections made by some State Public Service Commissions, Staff Selection Boards and other recruitment agencies have become suspicious in many states. Courts have set aside many a tainted selection. Corruption, nepotism, favouritism and political interference in the selection of candidates for public employment are on the increase. They have to be checked.

The Constitution is silent about the level of office to be held and the qualifications needed for the members. This silence is being exploited by unscrupulous politicians in power to pack the Commissions with pliable persons.

Several selections made by the Punjab Public Service Commission during the tenure of Ravinderpal Singh Sidhu as chairman were cancelled by the appointing authorities after criminal cases were registered against him for corruption following the recovery of Rs 16 crore from his and his relatives’ custody. Referring to him, Justice Dalveer Bhandari observed: “His clandestine activities and misdeeds reached the pinnacle of disgrace, ignominy, dishonour, degradation and humiliation. Perhaps, no one could have polluted the entire system in a greater measurei”. Parliament should fill the lacuna by appropriate legislation.

Corruption

Delivering the 13th Desraj Chaudhury Memorial Lecture on November 11, 1996, Atal Behari Vajpayee said: “…the electoral system has been almost totally subverted by money power, and vote bank considerations of castes and communities.” The Supreme Court took note of this speech in J. Jayalalitha’s case. In Vineet Narain’s case, it took judicial note of the N.N. Vohra Committee’s Report showing a powerful nexus between bureaucracy and politicians with the mafia gangs, smugglers and the underworld.

The 170th Report of the Law Commission of India (1999) highlights the steady deterioration in the standards, practices and pronouncements of the political class, its adoption of unfair means to win elections and increasing criminalisation of politics and of the electoral process. In 2002, the National Commission to Review the Working of the Constitution noted crisis of confidence and crisis of leadership and said that political leaders, owing to narrow partisan and sectarian interests and desire for short time political gains are unable even to agree upon broad common national purposes.

The Election Commission needs to be strengthened by investing more powers including regulation of political parties, disqualification of defectors, and power to withdraw or cancel the registration granted to a political party if the party violates any of the conditions of its registration which it does not have at present. The Commission could then tackle parties like the Shiv Sena and Maharashtra Navnirman Sena.

Police reforms

Police reforms are overdue. The National Police Commission chaired by Dharam Vira, submitted its report almost three decades ago. In Prakash Singh vs. Union of India, a Constitution Bench of the Supreme Court gave positive directions to set up State Security Commissions, Police Establishment Boards, Police Complaints Authorities and National Security Commission besides indicating the provisions to be made for selection and minimum tenure of DGP or IG Police and other officers and for separation of investigation from law and order. Action is awaited.

Frequency of organised terrorist attacks on the security forces and the innocent citizens is on the increase resulting in a number of casualties. Incidence of crime is growing and rate of conviction is poor. It is imperative to reform the police urgently. Coalition governments cannot reform the system. The entire structure of governance needs to be toned up — be it the legislature, executive or judiciary. The people are crying for a clean and efficient governance including speedy justice.

Education

The founding fathers took the bold step of providing for adult franchise in India at a time when most of the population was illiterate and poor as they felt democracy would be meaningless if the right to vote is restricted to a small fraction of the adult population. To make up for the deficiency, they incorporated two important provisions — Articles 45 (the state to provide within 10 years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of 14 years) and Art. 46 (the state to promote the educational and economic interests of the weaker sections).

If only Parliament and State legislatures and the Centre and the states have sincerely implemented these two directive principles, there would have been no uneducated citizen in the country today and the socio-economic conditions of weaker sections would have improved considerably. If Kerala could achieve cent per cent literacy within a relatively short period, why not others?

But for the missed opportunities on the part of the judiciary, inaction on the part of Parliament and state legislatures and indifference of the executive all over the country during the last few decades to the basic rights and needs of the people, the country would have made vast strides of progress by now.

There is no need to despair. India is a country with tremendous potential. We have a clean and competent Prime Minister. By improving the system of governance, phenomenal progress can be achieved within the shortest time. We should elect men of ability and integrity to the legislatures, appoint qualified and competent ministers, recruit men and women of exceptional merit to services and posts at all levels, plug the loopholes in the Constitution and the laws and march ahead.

The writer is Senior Advocate, Supreme Court of India. This article is excerpted from his special lecture on‘Constitutional developments: Action, reaction and inaction’ at the National Academy of Legal Studies and Research (NALSAR), Hyderabad, on March 6, 2010

http://www.tribuneindia.com/2010/20100314/edit.htm#1

‘I cannot pretend that I’m not hurt. But it’s a closed chapter for me’

Posted in JUDICIAL REFORMS, JUDICIARY by NNLRJ INDIA on February 16, 2010

Justice AP Shah, responsible for such landmark judgments as the one on consensual gay sex, retired as Chief Justice of Delhi High Court after being overlooked for promotion to the Supreme Court. In an interview with The Indian Express Editor-in-Chief Shekhar Gupta on NDTV 24×7’s Walk the Talk, he talks about the lack of transparency in the collegium system and the need for an inclusive society

Shekhar Gupta: It’s my privilege to have as my guest a judge who became famous for his judgments and who should continue to be heard as much after his retirement as during his service—Justice AP Shah, retiring chief justice of the Delhi High Court. After a distinguished career, you said you were retiring with a sense of hurt.

Justice AP Shah: The media repeatedly asked me whether I felt hurt. I said I cannot pretend that I’m not hurt. That sense of hurt is always there. But it’s a closed chapter for me. That’s in the past and I have no regrets.

Shekhar Gupta: That kind of honesty is unusual in this capital of hypocrisy.

Justice AP Shah: I think I was just a little candid but this is what, how I felt. And I’m really looking forward to life beyond judgeship. It was a very enlightening experience, these 17 years were very enriching and I laid down office with some satisfaction of getting an opportunity to preside over three most important courts in the country.

Shekhar Gupta: Well, not just that. Some of the most landmark judgments—legalising consensual gay sex, the very recent judgments on night shelters in Delhi, what you’ve done for the disabled. But let’s talk about systemic issues. You were honest enough to admit to a sense of hurt but that is individual. Is there a sense of hurt or sense of concern about the system? Particularly about judicial appointments and elevations?

JUSTICE A P SHAH

JUSTICE AP SHAH

Justice AP Shah: Yes, I have. I am just talking about my concern about the collegium system and I don’t mean any disrespect towards anybody. The basic flaw in the system is lack of transparency. There are no procedures. There are no parameters fixed for the elevations, either in the High Court or the Supreme Court. The system is very opaque. If I use the words of Justice Krishna Iyer—very strong words—but he said that this selection process is carried in a secret and bizarre fashion. Not very open. So there is a need to change the system. And we can look beyond our jurisdictions.

Shekhar Gupta: But has the Indian system worked well, by and large?

Justice AP Shah: There are some complaints. I had not experienced any pressures from anybody but I have been hearing some disturbing stories. And that is really a matter of concern. For instance, it is said that a few Supreme Court judges interfered with the appointments of the High Court. This is happening too often now. So these are developments which have really raised some questions about the credibility of the system. And the time has come for us to change the system and have a broad-based committee.

Shekhar Gupta: The collegium system is less imperfect than what we had in the past.

Justice AP Shah: Now just see, prior to 1993, the primacy was with the Executive. By a nine-judge judgment, primacy was given to the Chief Justice of India, in consultation with his senior colleagues. This system is now in vogue for the last 17 years. But lately there is some criticism against the system.

Shekhar Gupta: The Dinakaran case is one.

Justice AP Shah: No, I do not wish to comment on individual cases. But lately some controversies have arisen about some names. But all this can be avoided by bringing a more transparent system.

Shekhar Gupta: Right. So transparency is more important than systemic changes.

Justice AP Shah: Yes, it’s more important.

Shekhar Gupta: Transparency was what you were batting for when you made that judgment about bringing the CJI’s office under RTI.

Justice AP Shah: No, I must explain this judgment to you. I mean, it is rather misreported. There were some important issues raised in this matter. One of the issues was whether the CJI comes under the purview of the Right to Information Act. Whether he falls within the definition of public authority under Section 2(J) of the Act, 2 (E) of the Act. In this issue, there was a concession given by the Attorney General that the CJI is covered by the Act. So really, that was not the issue before us. What was argued by the learned Attorney General was that the respondent has no right to information because this is not information held or under the control of CJI. The argument was that this ’97 resolution, or free statement of the judicial life, and the 1999 resolution, they don’t have binding force, they have got only moral force. And since there is no statutory provision, these declarations were merely voluntary, and therefore, this cannot be said to be information held by the CJI. This argument was negatived by us. And then, one another very important issue was about the privacy.

Shekhar Gupta: We have a very learned Attorney General now. He’s not a lightweight.

Justice AP Shah: No, of course, he’s not a lightweight. He comes from the same court and we are good friends. And it was always a pleasure to hear Mr Vahanvati. But the other issue was about the transparency, about the privacy. So we held that the asset information is protected by exemption under Section 8 (J). People tend to mix up the declaration on the website and our decision under the Right to Information Act. The decision to put our assets on the website, by the Supreme Court and by the three high courts—Delhi, Madras and Kerala—was taken as our promise to the people that we want to be transparent. And therefore, it’s our voluntary decision.

Shekhar Gupta: Of your many judgments which are now hailed as landmark, the judgment on gay sex is a nuanced one. You set very stringent tests for what is consensual sex and because of that, it has become nearly impossible to challenge this now. But tell me a little bit more about what went on in your mind, how challenging did you find that case.

Justice AP Shah: I must tell you something very interesting. Actually one of the newspapers reported this. A German delegation had come in ’97 or ’98. The delegation had some legislators and a few gay activists were also there. One of the legislators asked me whether the Indian courts would strike down this law, Section 377. So my reaction was, it would be very tough for an Indian court.

Shekhar Gupta: In The Indian Express, if I may say so.

Justice AP Shah: Yes, it was quoted in your paper. I never realised that the case would come before me after 10 years. The peculiar feature of this case was that the two wings of the government took diametrically opposite stands. The Health and Family Welfare Ministry took a stand that continuance of Section 377 was creating hurdles in the HIV-AIDS prevention programme. And the stand of the Home Ministry was that this Section should be retained on grounds of public morality. According to me, this was the biggest challenge. I think ours is the first judgment on constitutional morality. We said, for instance, that public morality, public perceptions, differ from time to time. For instance, ‘sati’ was largely approved by the majority, untouchabilty was approved.

Shekhar Gupta: They all had social sanction. In fact, all awful social practices survived because they had social sanction. And somebody had to challenge it.

Justice AP Shah: Correct. So we said that the test to be satisfied is that of constitutional morality and not public morality. Then there were various issues, but what we stressed was about the underlying theme of the Constitution, that is inclusiveness.

Shekhar Gupta: Right. But were you also pleasantly surprised by how little opposition—besides some noises—the judgment faced from the political class?

Justice AP Shah: This issue was pending for a long time. The judgment was awaited anxiously. And really, I was surprised by the reaction of the vernacular press. Mostly they welcomed the judgment.

Shekhar Gupta: You talked about inclusiveness. This is one aspect of inclusiveness. The other aspect of inclusiveness in which you’ve worked very aggressively was for disabled people. Tell us a bit about some of those judgments.

Justice AP Shah: The Disabilities Act was brought in 1995 but for many years it remained a dead letter. It is only due to the intervention of the judiciary that the Act has achieved its true potential. Before I came here, the Delhi High Court had passed several orders for enforcing provisions of the Act. What I really dealt with was the lack of special teachers in schools. The data produced before us showed that nearly 10,000 disabled children were taking education in state-run schools but there was not a single special teacher. This was very disturbing and we issued directions to the state government to appoint special teachers, provide the infrastructure.

Shekhar Gupta: And the timing was right because public opinion was also moving in this direction. Also through popular culture—Taare Zameen Par, now My Name Is Khan.

Justice AP Shah: Yes. I had an occasion to deal with a dyslexia case while I was in the Bombay High Court. That was a case of a small child. He was failed in the third standard three or four times. And then a writ petition was filed, questioning the decision of the school administration to keep him in the same class. And when I asked the parents to bring the boy to my chamber, I realised this was a case of dyslexia. My wife is a psychologist. She has worked in this field for a long time. After I consulted her, I realised that this was a problem of dyslexia and I issued directions to the state government. It is very necessary to bring such children into the mainstream. We need not have any special schools for dyslexic students, they should be in the mainstream. Disabled should be in the mainstream. The Maharashtra government accepted our decision and there is a rule now in the state that each class must admit—I’m not sure of the exact number—at least four or five dyslexic students. There is a sort of a reservation created for dyslexic students. It’s a very welcome move. There should not be any special schools for anyone.

Shekhar Gupta: And the third element of inclusivity which you addressed was of the very poor in this city. The most recent judgments have been about the need to build more night shelters in Delhi. Tell us a bit about those cases.

Justice AP Shah: Yes, let me begin with some background. The phenomenon of PILs started in the late ’70s, early ’80s.

Shekhar Gupta: The Bhagalpur blindings case.

Justice AP Shah: Yes. The court intervened on the basis of some petitions. Really, in SP Gupta (case), the court said that in the case of those who are marginalised, if they are unable to come to court on account of their helplessness, their financial inability, then any member of the public can put a petition on their behalf. So, a series of orders were passed and it had a tremendous humanising effect on the Indian population. The Supreme Court was regarded as the people’s court. But in course of time, we lost our way somewhere.

Shekhar Gupta: That’s also because, do you agree, that PILs were overused?

Justice AP Shah: Yes, it was overused.

Shekhar Gupta: And too many special interest groups started using the PIL?

Justice AP Shah: PILs are used as a weapon to remove the poor from the city. I mean, it’s very sad that on PILs, the courts passed orders for demolition of slums. So a perception was created that the courts are anti-poor. That was an unfortunate development in the recent past. For instance, in the division bench case which we overruled, several orders were passed against rickshaw-pullers. And the orders were passed without hearing them. Neither rickshaw-pullers nor their representatives appeared before the court. Same with those whose slums were removed. So that is one aspect which really is very disturbing. A PIL should be used as a powerful weapon to give relief to the poor and vulnerable sections and not used against them.

Shekhar Gupta: I don’t think we can conclude this discussion without a mention of the clamour these days about corruption in judiciary. And I know that you’ve maintained that in the higher judiciary, corruption is minimal, although it’s getting a bad name.

Justice AP Shah: I’d say marginal. I mean this is my perception. I cannot say that corruption doesn’t exist. But it is marginal.

Shekhar Gupta: But sir, let me say this. You may have missed the elevation to the Supreme Court, but what you’ve done and what you’ve written will be remembered for much longer than a lot of the work done by many others who went higher on the hierarchical ladder.

Transcribed by Rajkrishnan Menon

http://www.indianexpress.com/news/i-cannot-pretend-that-im-not-hurt.-but-its-a-closed-chapter-for-me/580207/0

SHOULD JUSTICE DINAKARAN BE PROVIDED A CHANCE TO DEFEND HIMSELF

Posted in CONSTITUTION, CORRUPTION, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on December 19, 2009

In my earlier Blog writing when the Dinakaran episode first came to light I had written that the Campaign for Judicial Accountability and the Senior Advocates of the Supreme Court should bring to the notice of the Public at large the specific allegations against Justice Dinakaran. Till today what we have herad is that Justice Dinakaran is involved in Land Grabbing case. Till the  public at large are not told the specific charges and also whether they have been investigated or not the Justice Dinakaran episode will become murkier.

What is needed that the Charges against Justice Dinakaran be brought out in public domain and Justice Dinakaran need to be provided a chance to put forward his defence. This is more important as in public he has denied all the allegations.

Till that does not happen all types of allegations and counter allegations will continue and the cause of Judicial Accountability will suffer.

In this context I am mentioning some articles which have appeared in the Media and in my view Vinay Sitapati article in The Indian Express – “Hear Him Out has come in at the right time. I am also attaching the article of Times of India which has reported that “Justice Dinakaran is being hounded for being a Dalit”

We have to adhere to the maxim of Audi Alteram Partam . We have to give Justice Dinakaran a chance to defend himself before reaching conclusions.The CJI and the SC Collegium  has also rightly taken the decision to put Justice Dinakaran elevation in abeyance.

Ravi Kant , Advocate , Supreme Court of India

HEAR HIM OUTVinay Sitapati in Indian Express

“Audi Alteram Partem”, goes the foremost rule of natural justice. Hear the other side out. Have we heard out Justice Paul Daniel Dinakaran?

This is not to defend the Karnataka High Court Chief Justice, to decry the mobilisation against him, nor to oppose his impeachment. It is to ask a question of procedure. For here’s what we know about Justice Dinakaran: (1) A district collector’s official report has found against him, (2) the law ministry has opposed his elevation, (3) 75 Rajya Sabha members have signed onto his impeachment notice, (4) the Supreme Court collegium has decided to keep his elevation “in abeyance”.

In short, we know that a full four separate institutions have already judged him in some way. Yet, where is the space for the judge to defend himself, to present his own counter-arguments? The humblest of petitioners to appear before Justice Dinakaran probably enjoyed more legal due process. Is this fair entry to (or exit from) the world’s most powerful court?

Reports suggest that after the hue and cry over his proposed elevation, the “collegium” of the 5 senior-most Supreme Court judges invited Justice Dinakaran to reply to the allegations against him. But it’s hard to know for sure, as this was a secret hearing; records are not available to the public or to the parliamentarians who have signed on to the impeachment notice. According to Section 3(4) of the Judges (Inquiry) Act, 1968, Justice Dinakaran will get a “reasonable opportunity of presenting a written statement of defence” before an Inquiry Committee during the impeachment proceedings. But this too will be secret and is unlikely to assuage the court of public opinion.

Justice Dinakaran’s best chance to defend himself is before Parliament, at the fag end of the impeachment process, just before the vote. This has proved a powerful mechanism. During the parliamentary debate over the impeachment of Supreme Court Justice V. Ramaswami in 1993, his lawyer Kapil Sibal made a blistering presentation in his defence. The vote that followed lacked the numbers to impeach the judge. But if and when Justice Dinakaran gets a similar chance, he would have already been judged many times over. He will have been tainted in the public eye for far too long to recover.

Contrast this with the United States of America. When judges are nominated by the president, they are publicly interrogated by the Senate; the often acerbic proceedings make great prime-time television viewing. Some of this is cruel, and in India will be considered in bad taste. During the senate confirmation hearings of Justice Clarence Thomas, he was questioned on his taste for pornographic films. More damaging, his former employee testified that he had sexually harassed her. But, and this is key, Justice Clarence Thomas was given the opportunity to publicly counter these allegations. And did he do so! In a now famous speech to the Senate Judiciary Committee, watched by millions on television, he said: “This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves.” In the vote that followed, Justice Thomas’s appointment was narrowly confirmed. There is little evidence to suggest that the allegations against him have impaired his ability to judge effectively. Along with the pain of accusation, came the power of self-exoneration.

Indian Supreme Court nominees are given no such forum to publicly refute allegations against them. There is no executive or legislative confirmation of their appointment. India’s Supreme Court self-selects, and the collegium’s decision is shrouded in secrecy. Judges are also not encouraged to give press conferences (notwithstanding the couple of terse ones Justice Dinakaran has given in his defence). But the flip side to this opacity is that when allegations do surface, there is very little their lordships can do to publicly clear their name.

This unfairness has little to do with the particulars of Justice Dinakaran’s case. Rather, it is the byproduct of our judicial selection process. Precisely because judges don’t open up to questioning, they deny themselves the power to brush off the mud slung at them. When you refuse to enact clear-cut procedures to try judges, you have no armour from the rumours, innuendos and allegations in the court of public opinion. When you are not answerable to anyone, you find yourself unable to answer back.

vinay.sitapati@expressindia.com

http://www.indianexpress.com/news/hear-him-out/556298/0

Containing the damage – THE EDITORIAL IN HINDU

It is the right decision, but one that took a bafflingly long time to arrive at. The procrastination of the collegium of judges headed by the Chief Justice of India, K.G. Balakrishnan, in virtually withdrawing its controversial August 27 recommendation to elevate Karnataka Chief Justice P.D. Dinakaran to the Supreme Court has done incalculable harm to the image of the judiciary. The delay was accompanied by a surprising attempt to pass the buck, with Chief Justice Balakris hnan requesting the Centre to conduct an independent probe into certain allegations against Justice Dinakaran, which the Law Ministry politely — and quite correctly — turned down. With the Centre rejecting the recommendation to accommodate Justice Dinakaran in the Supreme Court, the sustained campaign against his elevation by members of the bar, and the impeachment process set in motion by Opposition MPs in the Rajya Sabha, there was considerable pressure on the collegium to withdraw its recommendation. It would have been far better if the collegium had taken a quick decision on merits rather than give the impression that it was forced to act in the face of an escalating controversy.

The allegations against Justice Dinakaran remain unproven as of now. Yet they are extremely serious and two reports from a district collector have lent credence to at least the ones relating to land encroachment in Tamil Nadu. His refusal to resign in the face of the ugly controversy and erosion of public confidence has called attention once again to the need for a quick, fair, and effective statutory mechanism for enquiring into judges’ conduct and suggesting appropriate action. The process of impeachment is cumbersome and uncertain, and is often overwhelmed by political considerations. No judge has ever been impeached and the uncertain nature of the process stood out in 1993, when the motion against Justice V. Ramaswami was defeated, with the Congress abstaining. In the light of the Justice Dinakaran controversy, Law Minister Veerappa Moily has suggested a Judges Standards and Accountability Bill. The in-house enquiry system put in place by the Supreme Court has proved wholly inadequate, and a more effective mechanism is needed to enquire into charges against judges. The question of removing a judge always invites another: why was he or she appointed in the first place? Proposals to set up a broad-based and independent National Judicial Commission with the power to appoint, and enquire into the charges against, judges have been made time and again. The Justice Dinakaran controversy is a warning that no further time should be lost in putting in place a more transparent appointment process and in strengthening judicial accountability.

Dinakaran will continue in his post: CJI J. Venkatesan

Collegium requests government to keep his elevation in abeyance pending probe

New Delhi: Chief Justice of India K.G. Balakrishnan on Friday made it clear that P.D. Dinakaran will continue as Chief Justice of the Karnataka High Court and that the Supreme Court collegium had requested the Union government to keep his elevation to the Supreme Court in abeyance pending enquiry.

Asked about the collegium’s decision on Thursday, Justice Balakrishnan told journalists: “There was no question of the collegium recommending elevation of Justice Dinakaran. How can we consider his elevation when the impeachment motion is pending in Parliament? There is no question of bringing him to the Supreme Court at this stage. We are requesting the government to keep the recommendation in abeyance till the enquiry.”

Asked whether he would advise Justice Dinakaran not to take up any judicial work or to go on leave, Justice Balakrishnan said: “How can I give any such advice. High Courts are not under the supervisory control of the CJI. Justice Dinakaran himself thought it fit not to sit in the court to take up judicial work in the last few days.”

To a query about the demand of Karnataka lawyers that Justice Dinakaran should be transferred, the CJI said, “now that Justice Dinakaran is not exercising any judicial work, they should feel happy.”

Asked whether the collegium would still consider his transfer to any other High Court, the CJI said: “that option is there. But for the moment we are not doing anything. He will continue.”

On the impeachment proceedings, the CJI said: “I have nothing to do with that. So far I have not received any communication from the Chairman of the Rajya Sabha in this regard.

Though there was no requirement that I [the CJI] should be consulted, out of courtesy, the CJI is consulted for nominating a Supreme Court judge and one High Court Chief Justice for the enquiry.” Asked about Justice Dinakaran denying the allegations in a television interview, he said: “Let him prove his innocence in the enquiry.”

Return of file

On the government returning the file of Chief Justice of the Allahabad High Court C.K. Prasad for elevation to the Supreme Court, the CJI said: “I was informed that the file is being returned. I have not seen it. We will have to see what is the clarification sought then we will reply.”

Asked why no woman judge was being appointed to the Supreme Court, the CJI said “there are reasons which I cannot divulge. I cannot bring down the reputation of a Chief Justice [woman] by giving the reasons. Normally we won’t do that. There are six or seven judges who are now eligible for appointment to the Supreme Court.”

Judge: can Dinakaran take administrative decisions? Staff Reporter

BANGALORE: Justice D.V. Shylendra Kumar of the Karnataka High Court, who first voluntarily declared his assets, has asked the Registrar-General to call a meeting for Saturday of all judges, including Chief Justice P.D. Dinakaran, to discuss the “propriety, justification and desirability” of the Chief Justice to take administrative decisions when he has decided not to take up judicial matters.

Justice Kumar, who is currently sitting on the Circuit Bench at Gulbarga, faxed a letter to Registrar-General (RG) R.B. Budhihal and directed him to circulate a requisition on his behalf for holding a meeting of judges at 11 a.m., at the conference hall of the High Court.

“In the wake of the news that the Chief Justice of the Karnataka High Court is not sitting on the Bench and will not be discharging judicial functions until notified otherwise, I naturally expected that the Chief Justice will gracefully proceed on leave and will henceforth desist from exercising any functions which are part of the duties and responsibilities of a Chief Justice of the High court and even if one should not proceed on leave, I expected the Chief Justice not to exercise any authority and act on the administrative side of the High Court which power and authority is a very important incidental function of the Chief Justice,” Justice Kumar said.

The Chief Justice, he said, exercised vast and important powers on the administrative side also. “If a person is under a cloud, then it is highly desirable that the Chief Justice is prevented from exercising and using his powers on the administrative side also.”

Justice Kumar said that after he read the news that the Chief Justice would not henceforth exercise any judicial function until notified otherwise, he called the Registrar-General who informed him that the Chief Justice would continue to exercise his authority on the administrative side.

Justice Kumar said all judges of the High Court should sit and discuss the matter and take a collective decision.

Justice Kumar said he had learnt that Justice Dinakaran, before whom Mr. Budhihal had placed his letter, had declined permission for the Saturday meeting. “This is not a matter over which the Chief Justice should take a decision,” Justice Kumar said.

DINAKARAN BEING HOUNDED FOR BEING A DALIT

TIMES OF INDIA

NEW DELHI: Dalit MPs have come out against the impeachment motion moved against Justice P D Dinakaran, chief justice of Karnataka High Court, alleging that he was being persecuted for being from the Scheduled Castes.

The parliamentary forum of SCs, which includes MPs cutting across party lines, came out strongly against the impeachment move which, incidentally, has been admitted in Rajya Sabha.

Calling it “discrimination”, the dalit MPs passed a resolution demanding that an inquiry should be instituted against all judges who have charges of corruption against them and one person should not be singled out.

SC forum chairman Radhakant Nayak told TOI that the resolution would be submitted to Prime Minister Manmohan Singh.

The move may put the Centre in a quandary over the impeachment proceedings in the upper House. It is, however, significant that Congress MPs have not signed the memorandum for impeachment submitted to Rajya Sabha Chairman Hamid Ansari by the Opposition which includes BJP, Left and SP.

P L Punia, Congress MP from UP, termed it a conspiracy against a dalit. “We will ensure that Congress opposes the impeachment move,” he said. The bureaucrat-turned-parliamentarian said Dinakaran was in the age-group that he would make it to CJI’s post if he was elevated to Supreme Court now.

Coming down on the system of impeachment, Punia pitted Dinakaran’s case against other similar proposals. He said it was strange that the impeachment proceedings against Justice Soumitra Sen of Calcutta HC did not create much flutter while the one against Dinakaran had attracted a great deal of attention.

While the Dinakaran episode has been cited by top lawyers as a case of corruption in judiciary, the rush of political comments laced with identity politics may dent the course of debate. Observers recalled that once the impeachment move started against Justice V Ramaswamy in 1990, MPs from the southern states termed it a plot against a fellow native, slowly bringing pressure on the central government which finally let him off the hook.

The Dinakaran issue resonated in Parliament on the last day of the winter session when J D Seelam and Pravin Rashtrapal, SC MPs from Congress, tried to raise it in Rajya Sabha. While they were not allowed to speak, their attempt showed a concerted bid by dalit members to underline the “caste dimension” to the controversy.

Nayak nuanced the demand from dalit MPs. He said, “The forum is not against impeachment of Dinakaran but it wants that all the judges with allegations of corruption should be inquired into. Proper inquiry and not media reports should be the basis of action.”

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