LAW RESOURCE INDIA

A unique blend of Judicial Virtues

Posted in CONSTITUTION by NNLRJ INDIA on November 16, 2014

Justice Krishna Iyer

PUBLISHED IN THE HINDU BY ANIL DIVAN

Justice Krishna Iyer, who enters his hundredth year today, took the Supreme Court in a new direction while evolving radical principles

Justice Vaidyanathapuram Rama Iyer Krishna Iyer was born on November 15, 1915, was sworn in as a judge of the Supreme Court on July 17, 1973 and retired at the age of 65 on November 14, 1980. He now starts his journey to complete a century.

Justice Krishna Iyer’s elevation to the Supreme Court raised eyebrows and scepticism in many legal circles. I must confess that my scepticism soon turned into admiration.

Several judicial activists reached the Supreme Court of India in the mid-seventies. Justice Krishna Iyer wielded considerable influence on the thought processes of his colleagues such as Justice P.N. Bhagwati (later Chief Justice of India) and Justice Chinnappa Reddy. They were articulate, sensitive and had a strong desire to translate the vision of the constitution makers into reality.

A new direction

By 1980, Justice Bhagwati and Justice Krishna Iyer became senior justices and took the Supreme Court in a new direction while evolving radical principles. Justice Krishna Iyer, a revolutionary at heart, principally triggered this internal revolution in the thought processes of his colleagues — a movement vigorously carried forward by Justice Bhagwati and Justice Chinnappa Reddy.

A new public interest jurisprudence was fashioned, the old ‘locus standi’ rules were jettisoned, epistolary litigation was encouraged and a strategy was evolved for giving relief to the disadvantaged and underprivileged. Procedural ‘due process’ was restored to centre stage, overruling earlier decisions. Consequently this radical transformation gave high international stature and visibility to the Supreme Court. It was an explosive enlargement of the court’s jurisdiction. It carved out a niche in the common citizens’ heart whose respect and adoration for the higher judiciary reached glorious heights.

Justice Krishna Iyer’s prolific judgments, his gentle and disarming demeanour as a judge, his unrivalled grasp of facts and law, his empathy for the disadvantaged, and his courtesy and consideration for the young lawyer appearing before him was a unique blend of judicial virtues.

Justice Krishna Iyer’s interim order of June 24, 1975 — a day before the Proclamation of Emergency on June 25, 1975 — in the Indira Gandhi case has a historical significance. Mrs Gandhi lost her election case and was disqualified. He did not give Mrs Gandhi, the serving Prime Minister, an unconditional stay despite huge media hype. She was allowed to function as Prime Minister, attend the House, but without a right to vote following well-settled precedents.

H.M. Seervai, the great constitutional lawyer but no uncritical admirer of Justice Krishna Iyer, wrote: “As the historian turns from the High Courts to the Supreme Court his task will be harder, for the history of the Supreme Court during the Emergency is a history of two different periods: the first began a day before the Emergency and ended with Prime Minister Indira Gandhi’s Appeal in the Election Case; the second began with the Habeas Corpus Case and ended with the revocation of the Emergency by a defeated Mrs Gandhi, unwilling to put into the hands of her opponents a weapon she had forged and used against them. Of the first period, the historian will say that the Supreme Court moved towards its finest hour, a day before the Proclamation of Emergency, when, on 24 June 1975, Krishna Iyer J., following judicial precedents, rejected an application made by Mrs. Gandhi that the Allahabad High Court’s order, finding her guilty of corrupt election practices and disqualifying her for 6 years, should be totally suspended. In the best traditions of the judiciary, Krishna Iyer J. granted a conditional stay of the Order under appeal, although he had been reminded by her eminent counsel, Mr. N.A. Palkhivala, “that the nation was solidly behind (her) as Prime Minister” and that “there were momentous consequences, disastrous to the country, if anything less than the total suspension of the Order under appeal were made”.”

“He spurned the lure of pelf and power and governmental patronage and became an unrivalled champion of social justice, constitutional values and the rule of law.”

Justice Krishna Iyer earned the unintended, unforeseen and doubtful distinction of having judicially fathered the Emergency leading to preventive detention of many opposition leaders including Jayaprakash Narayan, Atal Bihari Vajpayee, L.K. Advani and Morarji Desai.

He recalls in his book Off the Bench how the then Law Minister H.R. Gokhale, a good friend, expressed a desire to meet him at his residence after Mrs Gandhi’s disqualification by the Allahabad High Court judgment in connection with her appeal. He politely refused to see him and indicated that the correct way was to file the appeal in the Registry which would be taken up promptly.

After retirement

Justice Krishna Iyer’s crowning glory and finest hour were after retirement. He spurned the lure of pelf and power and governmental patronage and became an unrivalled champion of social justice, constitutional values and the rule of law. He blossomed into an iconic and inspirational figure both nationally and internationally.

The renowned Australian Judge Michael Kirby, a former President of the International Commission of Jurists, described him as “incontestably one of the great spirits of the common law of this century.”

Justice Krishna Iyer’s services to the nation, the rule of law, the judiciary and the disadvantaged and underprivileged give him a stature comparable to many who have been honoured with a Bharat Ratna. Many believe that his unique, lustrous and incomparable contributions earn him the sobriquet of Nyaya Ratna.

(Anil Divan is a senior advocate of the Supreme Court.)

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Hanging in balance: No executive interference required

Posted in CONSTITUTION, JUDICIAL REFORMS, JUDICIARY, JUSTICE, LEGISLATURE by NNLRJ INDIA on August 17, 2014

opinion1RAJINDER SACHAR IN THE INDIAN EXPRESS

The judiciary has been praised by some for its role in exposing corruption in politics, while others point to the defective method of selection of judges through the collegium system to criticise it. To prevent further easy public slapping of the judiciary, we must now finalise the method of appointment.

The suggested pattern of a judicial appointments commission broadly fills the void. It is headed by the chief justice of India (CJI) and includes the next two senior judges, the Union law minister, two eminent persons (emphasis added) to be selected by the prime minister, the CJI and the leader of opposition in the Lok Sabha. Some rightly feel that “eminent persons” should be substituted with “eminent jurists”, because “eminence” by itself is too vague. Instead, “eminent jurist” would provide a larger field of academics, authors, outstanding lawyers (no longer practising, of course). The fear that the presence of a lay person would interfere with the independence of the judiciary is misplaced. As the Judicial Commission of New South Wales Annual Report said: “Judicial independence is not some kind of industrial benefit generously extended to judges and magistrates, it is [the] fundamental principle of our society’s constitutional arrangements.”

The provision with regard to the appointment of high court judges, however, states, unacceptably, that the JAC is only required to elicit (emphasis added) the views of the governor, chief minister and the chief justice of the high court. I can hardly see any relevance of eliciting the view of the chief minister separately from the governor. I, however, take strong objection to reducing the position of the chief justice of a high court to merely eliciting his view. The advice of the chief justice of a high court as to the suitability or otherwise of a person to be appointed a judge of a high court should normally be accepted.

Reportedly, though technically the collegium is being sought to be abolished, the CJI has asked chief justices of the high courts to consult their colleagues, even junior ones, as far as possible. But this suggestion may only be observed in the breach. I remember that in 1977, the Janata government’s informal suggestion that the chief justices of the high courts consult two senior colleagues was observed more in the breach. It was only when the collegium system was established that the chief justices of the high courts had no option but to consult their colleagues.

However, this did not mean that the government has accepted the collegium’s recommendation in all cases. In 1985, the chief justice of a high court and his two senior-most colleagues recommended four names, with the clarification that they must be appointed in the order in which the names were sent. This was done to prevent the government from picking and choosing on the specious argument that some names had not yet been cleared by the CBI and the appointments might be delayed, while those lower down the list could be appointed immediately. This was opposed by the chief justice, and the law ministry was so affronted that the government did not appoint any judge during his tenure. Afterwards, too, the law ministry first appointed new names and only later appointed those recommended by the earlier collegium. So the government’s intervention can only be checked by a strong judiciary. It is for this reason that I have reservations on doing away with collegiums entirely. The collegium system is welcome inasmuch as it constitutes a wider circle of three judges, rather than leaving it solely to the chief justice of the high court. The CJI’s advice to consult two more judges is welcome. I see no reason to abolish the collegium system at the high court level (which, after all, is only recommendatory). The appointments are now to be made under the provisions of the proposed JAC.

I am amazed that, so far, a serious self-inflected injury is being overlooked — that is, appointing the chief justices of high courts outside their parent court. I have never understood the logic of transferring the senior-most judge, whose turn to head the court in which he has worked for almost 10 to 15 years, and with the functioning and lower judiciary of which he is most familiar, has come. To transfer him to a new court for a period of one or two years or even less, to which he is a total stranger and most likely unaware of the names of his colleagues, is strange. At present, one has the embarrassing spectacle of a chief justice being transferred to a state where he cannot even understand the language. The chief justice of a high court should be the senior-most judge of the same court. This alone will lend strength and dignity to the high courts.

Section 8 of the new bill contemplates asking the state and Central governments to send recommendations for the selection of judges. I find this to be a frontal attack on the judiciary. After a JAC is constituted, the state or Central governments have no locus standi and should be outsiders in the process of selection. I agree though that the JAC should make public the names it is contemplating for appointments to high courts and the Supreme Court. This will make the process more open and participatory, and also negate the charge of secret manoeuvring in the appointment of judges.

The writer is a former chief justice of the Delhi High Court

Politically coloured, legally suspect

Posted in CONSTITUTION, DEMOCRACY, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on August 17, 2014

colBy: J.L. Gupta PUBLISHED IN THE INDIAN EXPRESS

The clamour against the courts has been continuous. Initially, there was talk of a “committed” judiciary. Then, of judicial accountability and transparency. And so on. The latest is — why should judges choose judges? Hence, the effort to replace the collegium by a Judicial Appointments Commission (JAC). The bill has already been passed in both Houses of Parliament. Is it the right way to do so? I think, No.

Let us see what is happening in the country. Who selects ministers? The prime minister and chief ministers. Who selects the generals? The generals. Who selects army commanders? The army. Who selects government servants? The government.

Why then do we want a different method of selection for the judiciary? Why should the judiciary not be allowed to select judges? Is it an effort to destroy the one institution that has performed and exposed scams and scandals like Coalgate and 2G?

The founding fathers created a judicial pyramid. The subordinate courts were the base. Then came district courts. The high courts followed at the state level. The Supreme Court was placed at the apex. They also laid down the procedure for the selection and appointment of judges. The selection and appointments of the officers in the subordinate and district courts are made in accordance with the rules framed and promulgated by the government in accordance with the Constitution. The “control” vests in the high court. In so far as appointments to the higher judiciary are concerned,

the matter was considered by the Supreme Court in the second and third judges’ cases.

The court’s dictum has been followed. Judges to the high courts and Supreme Court have been selected by collegiums for some time now. The scope for interference by the political executive has been reduced to a minimum. Consequently, criticism from different quarters is understandable. But can the JAC improve the quality of judges?

No system of selection can be absolutely perfect. Institutions run by human beings will reflect human frailties. A fact that deserves mention is that the Constitution itself provides for Union and state public service commissions to make selections to the various services. The commissions have been in place for a long time. Has their performance been beyond reproach or even satisfactory? Have these commissions not been described as “personal” service commissions? The kind of eminent persons proposed to be included in the JAC are usually members of the state and Union public service commissions too. Yet, what do we have? Petitions in courts alleging all kinds of malpractices. Still more, states have moved petitions, prosecuted members or chairpersons of the commissions for different irregularities and even offences. Would a similar commission for judicial appointments change everything for the better? Looks unlikely.

Second, the state is the single-largest litigant in the country. Should a litigant have any say whatsoever in the choice of judges?

Third, in a democracy, independence of the judiciary is of paramount importance. A fearless and independent judiciary is a basic feature of the Constitution of India. It is a part of the “basic structure” and should not be sacrificed at the altar of the executive’s anxiety or ego. Legally speaking, the validity of the proposed bill is extremely doubtful.

The members of the collegium also monitor the performance of judges and lawyers who have to be considered for appointment to the high courts or the Supreme Court. They examine judgments of the persons who are considered for elevation. So far as the JAC is concerned, the majority shall not have that opportunity. They will necessarily have to depend upon hearsay evidence. This will be totally improper.

It is alleged that the collegium does not have a mechanism to “verify the character and antecedents of judges.” I think, it is not so. The court and/ or the chief justice can always ask the concerned agencies to do the needful. In certain cases, it has been actually done. I think the fear is wholly unfounded.

It has been suggested that judges sometimes indulge in mutual give-and-take. As a result, some people who should not have become judges at all have been elevated to still higher positions and courts, it is argued. Assuming this to be correct, can anybody claim we are totally impervious to all kinds of political and social influences or pressures? Has it never happened that, at the highest level, files are held up till the name of a particular person is cleared by the collegium?

But is the JAC the solution? No!

A rare exception under the collegium system has the potential of becoming the rule when the final word is left to the executive. Are the series of scams and scandals that have taken place recently in India not enough to caution us about the state of political morality? The judiciary is one institution in India that has performed and delivered. We can tinker with it only at our own peril.

The writer is former chief justice,

Kerala High Court

‘If the judiciary is either equal or in a minority, I fear this Bill will be (legally) vulnerable’

Posted in CONSTITUTION, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on August 17, 2014

JUSTICE AP SHAHPUBLISHED IN THE INDIAN EXPRESS

In this Idea Exchange moderated by Senior Editor (Legal Affairs) Maneesh Chhibber, Law Commission of India Chairman Justice A P Shah says most judges don’t believe the collegium system works and argues for a fixed tenure for CJI. This Idea Exchange took place before Parliament approved the new Bill for selection of judges

Maneesh Chhibber: Law Commission Chairperson Justice A P Shah submitted a report to the government on the collegium system. Incidentally, he is also one of the prominent victims of the collegium system.

Justice A P Shah: I read Fali Nariman’s article in The Indian Express. It seems he has suggested that the collegium system should be revamped. In my opinion, the collegium system is not a democratic institution; there are no checks and balances in it. If you let the same system continue without any meaningful voice to the executing civil society, even if you make it a little more transparent and a criterion is laid out, it may not improve the system itself.

I have been working on it for the past several days along with some of my colleagues and some people from outside. The government has not asked us to make a report, it is our initiative. At the Law Commission, we thought it’s a very important policy decision — whether you are going to have a judicial appointments commission to replace the present collegium system. It’s the Law Commission’s responsibility to make recommendations in that direction, but it’s not very clear whether it should go as a report or a consultation paper…

You will recall that there was a UPA Bill to bring the retirement age of high court judges on a par with that of the Supreme Court judges. The BJP opposed the Bill, and it is still pending. The only reason given in the Constituent Assembly debates was that high court judges may not opt for the Supreme Court if the retirement age is the same, because that is a kind of temptation to go to the Supreme Court, there is an additional three-year tenure, which I don’t think works today. There are two distinct advantages if it is brought on a par. First, the practice of lobbying and sycophancy, developed in recent times, will stop. Also, there will not be much heartburn because a person continues as an HC judge till 65. The second advantage is that you will be able to select judges at a young age. There is no rule but an unwritten convention that a person below the age of 45 will not be appointed in the HC, and a person below 55 will not be appointed in the SC. Look at the consequences: We are not getting good talent in the HC because once they cross 45, they would be more entrenched in practice. This seniority should really go.

Today, the Supreme Court is packed with (former high court) chief justices who are also the senior-most; there is no search for good talent. Once it is on a par, perhaps you would be able to select judges at a young age and they will continue on the bench for a longer period of time. In almost all countries, judges at the apex court have a long tenure — 10 years is the minimum, it should be 10-15 years. According to me, this (age bar) is rather arbitrary and in the committee meeting, everybody was almost unanimous that seniority should not be the criterion, you need to bring in young people.

And the last point is the fixed tenure of the chief justice. We are working on that. Till 2022, no chief justice will get a tenure of more than a year; the present Chief Justice gets only four-five months. My logic is that it should be five years, because the prime minister gets a five-year tenure, Parliament gets five years, so the chief justice should also get five years. But it may be less — three or two years.

The way the Supreme Court works is very different from what was contemplated by the law framers. One of the reasons there is no embargo against judges taking up post-retirement assignments in the government was because in the Constituent Assembly Dr B R Ambedkar had said that the government has only 5 per cent litigation, and since the government is not a major litigant, why prevent retired judges from accepting post-retirement assignments? That logic is no longer relevant because 60 per cent of the litigations are by the government. So, there may not be a complete bar, but a cooling-off period is very necessary. It could be one or  two years, but there should be a cooling-off period.

Maneesh Chhibber: Don’t you think that the government or politicians are trying to use this clamour against the judiciary as an excuse to undo the collegium system brought in by the Supreme Court?

The UPA Bill (which was not passed) said that the Judicial Appointments Commission should have three judges and three non-judges, but there was an attempt to have an amendment, to have a seventh member. And the seventh member, as per the amendment, was to be a non-judge. So virtually, judges will be in a minority. One suggestion was that there should be two non-judges and an eminent person should be given a veto. If both of them decide to oppose the appointment, then it should not be made. There is a fear (that this is a move to undo the collegium system), and I can’t say no to that.

Arun sukumar: Would the situation be any different if the collegium decisions were to be made public under RTI?

Under RTI, the questions that come up relate to justification for making an appointment or if somebody is being overlooked, or why a particular candidate was chosen for the high court. But the reasons are not given. So how is RTI going to help? RTI’s objective is to bring transparency, but RTI itself is not sufficient. Transparency would come only if you make it known that there are vacancies, you get nominations from the stakeholders concerned, have mandatory consultations with the high courts, state governments and maybe the Bar, and then declare the names before they are finalised, so that people know. I’m not in favour of interviews in public or any such American system, but we must bring in some sort of transparency, and that can’t be achieved by an RTI application.

Maneesh Chhibber: At the meeting which the government called to discuss the Judicial Appointments Commission, one of the biggest concerns was that whatever was brought in, the JAC should meet the standard set by the judiciary. What do you think is that standard?

Upendra Baxi suggested that you prepare a Bill and make a presidential reference to the Supreme Court. Let the Supreme Court examine it, the way it has done in the past. This was a good idea according to me, but it was felt, and may be justifiably, that it takes time. The other was what Nariman suggested. I really liked the idea — have a dialogue, let the judiciary participate in that dialogue. That’s a great idea — let them at least listen to voices of people or other stakeholders. My fear is that if the judiciary is either equal or in a minority, this Bill will become (legally) vulnerable.

Dilip Bobb: You have been consulting colleagues in the judiciary. What is their reaction to your suggestions, including the cooling-off period?

The problem is that most judges — till they are in the collegium — defend the collegium system because it is very difficult for a serving judge (to criticise it). Nobody honestly believes that this system works well. Many retired judges, barring the exception of former chief justice (Altamas) Kabir and a few others, believe that this system has not worked.

About cooling-off period, what is bad about post-retirement assignments is that for one post, there are 10 aspirants. This leads to unfortunate developments.

Seema Chishti: You were talking of an eminent person being selected. Isn’t that problematic?

The problem is manifold. First, the Constitution uses the words ‘distinguished jurist’. Not a single person was appointed in the past 60 years in that category. During the debates in the Constituent Assembly, they gave the example of Felix Frankfurter. He was a great professor and was taken from a university to the American Supreme Court; he was not a practising lawyer. What they really had in mind was an academic. If I look at the Indian scenario, Prof N R Madhava Menon or Prof Upendra Baxi would have been brought to the Supreme Court in that category. But that jurist can be anyone. Nariman has contributed greatly in the legal frame, he has written several books, perhaps in that sense he would know.

The absence of a non-legal person would give a sense of incompleteness; it should not be a closed-door affair for the legal community, there should be an eminent person, for instance, our past president A P J Abdul Kalam. There are many such eminent persons, who can be picked by the PM, Leader of Opposition and the Chief Justice of India.

Vandita Mishra: The debate is also about the executive versus the judiciary, which is an age-old tussle. Do you see the present as a special moment where there is a confrontation developing between the executive and the judiciary? Is the judiciary more on the backfoot and the executive more aggressive than in the past?

The real issue is, who will have the last word, who will be the custodian of the Constitution. The Supreme Court has said that the court will have the last word in any amendment. But then coming to narrower issues of appointments, who will have the last word? Judges say that judiciary will have the last word.

Vandita Mishra: The executive is more aggressive because of its majority. What about the judiciary, what is the special moment that the judiciary finds itself in today?

Very broadly, the judiciary is entering into several areas where it should not be. There is a tremendous expanse of the judiciary’s powers and then with the PILs, it is armed with so many weapons. It is becoming very powerful. With that, the scrutiny is becoming extremely focused by the media and several other bodies. One significant development was the decision of the collegium on Karnataka judges.

Rakesh Sinha: As the law minister in A B Vajpayee’s government, Arun Jaitley had moved an amendment for scrapping the collegium.

You are right. There were seven-eight proposals after 1993. And they gave different combinations. In some proposals, even the legislature was included, apart from the executive. In some proposals, it was completely judge-dominant. We are looking into all the proposals.

Maneesh Chhibber: At the meeting called by the government, one got the feeling that the general consensus was that the government should come up with a proposal, have at least one more round of talks with the stakeholders. But it appears the Cabinet is going to clear the Bill.

I distinctly remember Anil Diwan saying that, ‘Instead of holding such meetings, why don’t you draft a Bill and then come to us?’. That is a good idea.

Seema Chishti: Regarding the recent instance of the Delhi Assembly case being heard by the Constitution bench, should the court get into this at all? In an earlier instance, the court had said that the Jharkhand Assembly should have a session at 11.30 am.

I don’t want to make any comment on that. The argument being made is that it is clear the Delhi government is not going to be constituted (any time soon). But the Constitution gives power to the executive that the suspension can continue up to one year. To what extent is judicial review  permissible is a debatable issue.

P Vaidyanathan Iyer: We had Iqbal Chagla as our guest in Mumbai and he said that in the ’60s and ’70s, the Bar used to be very strong. At times it took up issues of corruption and stalled appointments. Do you think that today, there is nothing that the Bar stands up for?

A recent example is P D Dinakaran’s case — the Bar took up that case. I have seen lawyers acting as some sort of vigilance on wrong appointments. But their number is on the decline. The Bar should be more alert.

Vandita Mishra: What is your view on the mechanism of fast-track courts (for legislators)?

Let me tell you about the Law Commission’s report. The Commission felt that several previous committees disqualified a person if he was facing a serious criminal charge, punishable with five or more years in jail. The debate is, how can you expel a person when he is merely facing a charge; there is no determination. And there is misuse of this provision. Criminalisation of politics is a very serious issue. So if you believe that lawbreakers should not be lawmakers, then we need to have a system where we keep such people out. We went by the reasoning of the Supreme Court judgment in the CVC case that it is protecting institutional integrity.

There is a difference between filing a chargesheet and framing of a charge. We suggested three safeguards.
First, the charge should be framed at least one year prior to the elections. Second, such disqualification should not continue beyond six years. If within six years a person’s case is not decided, he or she should be allowed (to continue). Then we realised what happens if the charge is framed within one year and the person gets elected. Or what happens if the charge is framed after he is elected. In that context, we decided that the case should be decided within one year.

Vandita Mishra: So legislators should be singled out for fast-track, time-bound trial.

It should be done. That’s a deterrent.

Vandita Mishra: But some people would say that rapists should be singled out, not legislators.
In the case of rapists, it is already happening.

Aneesha Mathur: In your recent report you have mentioned fast-tracking, but you have also said that there may be a trade-off between the quality and quantity of judgments.
Most judges write bad judgments. It should be properly administered justice and in the name of fast-tracking you should not be affecting the quality.

Rakesh Sinha: A lower court judge in Madhya Pradesh recently wrote to the Chief Justice of India saying a high court judge was exploiting her and that she was forced to resign.

It is a very serious complaint and if it is found true prima facie on inquiry, then the logical step would be to withdraw the judicial person, and initiate impeachment proceedings.

Transcribed by Vandana Kalra & Debesh Banerjee

A case for two commissions

Posted in DEMOCRACY, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on August 9, 2014

carBY T R ANDHYARUJINA PUBLISHED IN THE INDIAN EXPRESS

There is now a consensus amongst judges, lawyers and legislators that the present system of appointment of judges to superior courts by a collegium of Supreme Court judges requires to be changed for a better one. There are sound reasons for this move.

First, the appointment of judges by the Supreme Court collegium has no foundation in our Constitution. Article 124 of the Constitution provides that every judge of the Supreme Court is to be appointed by the president after consultation with the chief justice of the Supreme Court and other judges of the Supreme Court and high courts. Similar power is given by Article 217 to the president in consultation with the chief justice of India (CJI), the governor of the state and chief justice of the high court for the appointment of judges to high courts.

In 1981, in what is known as the first judges’ case, the Supreme Court held that the power of appointment of judges of the superior courts resided solely and exclusively in the president, that is, the Central government, subject to full and effective consultation with the constitutional functionaries referred to in Articles 124 and 217. However, in 1992, the Supreme Court, in the second judges’ case, professing to safeguard the independence of the judiciary, reversed the first verdict and rewrote the constitutional provisions to hold that the primacy in the appointment of a judge of the Supreme Court was with the CJI, who would make his recommendation to the president after consultation with two of his senior judges. The president would only have the limited power of expressing his doubts on the recommendation of the CJI. The president’s doubts would not however prevail if the CJI reiterated his recommendation on the appointment of the judge. In a later judgment, known as the third judges’ case, the Supreme Court diluted the primacy of the CJI, and gave the power of appointment to a collegium of the CJI and four of his senior-most colleagues.

The judgments in the second and third judges’ cases are an extraordinary tour de force in the name of securing the independence of the judiciary. The court has rewritten the provisions of the Constitution for the appointment of judges. The executive’s function in the appointment process has for all practical purposes been eliminated and reduced to the formal approving of a recommendation made by the CJI and his collegium. “Consultation” with the CJI in the Constitution has been transmuted into an original power to appoint by the CJI and a collegium. The Constituent Assembly’s view at the time of enacting the constitutional provisions, that the CJI should not be the final appointing authority, was disregarded by the court. In no jurisdiction in the world do judges appoint judges.

Even if the collegium’s method for the appointment of judges has no foundation in the Constitution, it could have been excused had the system worked satisfactorily, but unfortunately, for over 20 years, it has not. In the first instance, the collegium system lacks transparency and is secretive. The public is not aware of the selection of a judge until his name is forwarded to the government by the collegium. Second, there have been instances of judges being selected or not selected due to favouritism or prejudice of members of the collegium. Third, selection on competitive merit of the appointees is discarded and judges are generally appointed to the Supreme Court on their seniority in ranking in the high courts. The late Justice J.S. Verma, principal author of the second judges’ judgment, later admitted that the collegium system had failed.

Should the earlier system of the exective appointing judges after proper consultation be restored? Paradoxically, from 1950 to 1973, some of the most outstanding judges of our Supreme Court were appointed through this system. Eminent judges like Michael Kirby of the Australian High Court are strongly in favour of restoring the old system, with control over it by Parliament. It was only during the period of the Emergency that this system was subverted, which led to the judiciary appropriating the power in the second judges’ case. Even today, in Australia and Canada, it is the executive that appoints judges after proper consultation.

To introduce a Judicial Appointments Commission (JAC) in India is a fundamental change in the Constitution. Such a change requires careful consideration and evaluation of the system. It is important to know that, except for the judicial appointment commission of the UK introduced by the Constitutional Reform Act, 2005, such commissions have not been successful elsewhere. The South African constitution provides for a judicial appointment commission, but its working is far from satisfactory and at times appointments have been influenced by the government. The same is true of judicial appointment commissions in other states in Africa.

If the JAC is to be introduced in India, its composition should be made part of the Constitution itself and not left to ordinary legislation by Parliament. There should be proper representation of members, including of the legal profession, in the JAC. The JAC will be over-stressed and overworked if it has to make appointments for 31 judges to the Supreme Court and over 800 judges to the 24 high courts. The CJI and two senior-most judges, who are to be part of the commission, would have to work in the commission to the neglect of their primary judicial duties of hearing and deciding cases. There ought to be two separate judicial commissions, therefore, one for the Supreme Court and the other for the high courts. The JAC for high courts ought to

be composed of retired judges of the Supreme Court or high courts, in addition to other members. In the UK, there are separate selecting bodies for high court and for supreme court. The overriding factor will be the merit of the candidate, but the commission, as in the UK, should consider diversity, namely, appointment of women judges and judges of various regions without of course sacrificing merit.

Overall, the creation of a JAC requires careful consideration and extensive consultation with all sections of the public, including the CJI. The present law minister, Ravi Shankar Prasad, rightly convened a meeting on July 28 of judges and lawyers and jurists to discuss the changes to be made. It is to be hoped that such consultations will be continued before a legislation is introduced. The collegium system has not worked, but we should not have a situation where we jump from the frying pan of the collegium to the burning fire of a chaotic National Judicial Commission.

The writer is a senior advocate of the Supreme Court and former Solicitor General of India

First, insulate the judge from politics

Posted in DEMOCRACY, JUDICIAL ACTIVISM, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on August 9, 2014

BY RAMJETHMALANI PUBLISHED IN THE INDIAN EXPRESSjudge

The thesis of ‘committed’ judiciary has been abandoned, but its practice continues unabated. That is the real problem, writes RAM JETHMALANI.

A judge is the guardian of the small man and his bundle of rights, which enable him to realise his fullest material, moral and spiritual potential, and expand to the utmost frontiers of his body, mind and soul. No judge must aspire to harmony with the legislature and executive. Every judge must brace himself for a life of tension with both in the intelligent and stout defence of his ward, who needs constant protection against the insolence of unfeeling officials, the venality of politicians and the misdeeds of wicked neighbours and fellow citizens. Every court is essentially a court of wards; the Supreme Court has the entire citizenry as its ward. Our judges need not be sensitive to the oft-mounted attack that they are not elected and are, therefore, unaccountable and undemocratic.

This role of the judge makes one think about elected judges. But the system of elected judges has been tried elsewhere and I believe that it has produced jokes. The most instructive joke that you will find is that in a certain US state, the Democratic Party found a judge paralysed from the waist downwards and invariably, in elections, he won the sympathy vote. He triumphed in four successive elections but before the fifth, a Republican Party official said to his superior, “Sir, we have found a solution to our problem.” He asked, “What is it?” The answer: “Sir, this time we have found a judge who is paralysed from the waist upwards.” It will not work in India anyway.

Economics may have dominated the world most of the time and probably does dominate in some sense even now. But today, politics has overtaken economics in its influence. In the past few decades, all institutions, including the judiciary and of course the Bar, have struggled with the temptations of politics. Judges, like other mortals, are attracted to politics, particularly aspiring ones who consider favours from a ruling party to be stepping stones for upward mobility in the field. Usually, but not always, judges do often violate their oath of administering justice without fear or favour. Favours done have to be returned, feel some. We have therefore to evolve an effective mechanism of insulating judges against politics and involvement in political machinations of the kind that have disgraced some sections in the past not only in this country, but also elsewhere.
Politicians as a class and the executive in power must therefore have no voice in the appointment of judges. The executive is the biggest litigant in cases of citizen complaints of the oft-corrupt misuse of executive powers. Even a good judge appointed by a corrupt minister will not command public confidence. The second judges case, the origin of the present collegium system, was a correct decision, and the current system is vastly superior to the one it supplemented. It was the one that produced the tellingly sarcastic comment, “It has created two kinds of judges — those who know the law and those who know the law minister.”

South Africa, in its new constitution, adopted the model of a judicial commission as the method of selection, which has been operational since 1996. The law minister is formally consulted and he makes his comments upon the appointees or recommendees of the judiciary. The comments of the law minister are considered with respect and attention, but the final word lies with the commission. I am committed to this mechanism as our final solution. I must hasten to explain why.

I agree with the weighty opinion of my erudite friend, senior counsel Anil Divan, in his recent article in The Hindu: “The present secretive process followed by the collegium excludes public scrutiny, violates the citizen’s right to know and leads to diminishing respect for the judiciary.” Some bad appointments produced by this system are also notorious.
While corruption continues to grow like a galloping cancer in every branch of life, the judges seem to reciprocate by producing a strange jurisprudence that only protects the corrupt. The law of contempt and the difficulties of proving judicial corruption deter cautious lawyers. But the common man, not so inhibited, produces an impressive volume of popular corruption folklore.

The real decline of judicial character started in 1973. Mohan Kumaramangalam, a distinguished lawyer and politician, claimed that judicial appointments could not be made without reference to the social philosophy of the judges. The judge, being an important decision-maker, makes decisions that are bound to affect the lives of the people, and his decisions are influenced by his social philosophy. Therefore, independent India should have judges who are “committed” not only to the social philosophy of the Constitution, but also to that of the government. This was controversial. However, Indira Gandhi’s government implemented his views during the Emergency.

Though the Kumaramangalam thesis has now been abandoned, its practice continues unabated. While judges associated with the ruling establishment are invariably appointed, those having any form of association with opposition parties are scrupulously avoided. How successive chief justices, who are supposed to be totally judicial even in the discharge of their administrative function, habitually enter into convenient compromises escapes comprehension. The inevitable answer is the creation of a national judicial commission in which the judiciary, government, opposition, the Bar and academic community have an equal voice. Judges should hold office only during the pleasure of the commission. It should have the power to appoint, transfer and dismiss — of course, in accordance with procedure established by law, or what is also known as due process. The Lokpal may well be a useful addition to the list of participants.

The 79th report of the Law Commission suggested ways to plug loopholes in the existing system of appointment of Supreme Court judges. No one should be appointed a judge of the Supreme Court unless, for a period of not less than seven years, he has snapped all affiliations with political parties and unless, during the preceding seven years, he has distinguished himself for his independence, dispassionate approach and freedom from political prejudice.

The practising Bar is the constituency of a judge. If he cannot retain its confidence, he must gracefully quit office. It is just not true that only weak and obliging judges are popular with the Bar. Members of the Bar know the black sheep on the bench. No wonder, the American Bar Association can, by its adverse criticism, make the mighty president of the US withdraw his nominees for judicial office. A lord chancellor of England admitted that if he made an unworthy appointment, he could not possibly look into the eyes of the lawyers at Bar dinners.

The writer, a lawyer and Rajya Sabha MP from Rajasthan, is a former Union law minister (June 1999-July 2000)

Change must respect basic structure

Posted in DEMOCRACY, FUNDAMENTAL RIGHTS, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on August 9, 2014

Upendra BaxiBY UPENDRA BAXI PUBLISHED IN THE  INDIAN EXPRESS

The relationship between “democracy” and “secrecy” has always been debated, and it has been highlighted by the system of judicial appointments. The proposed judicial appointments commission (JAC) seeks to partly answer that question. Under review is the judicial collegium method of appointments, in use since the 1990s (which consists today in the supremacy of five senior-most justices of the Supreme Court, including the chief justice of India), as against the constitutional method in place between the 1950s and the 1990s (where the executive nominated candidates in consultation with the CJI and such other justices as it deemed fit).

Neither method can be said to have failed or succeeded, because the citizen has no way of knowing who the candidates are, how they are selected and why. No empirical study of judicial appointments is possible because the records are not available, and like the electoral nomination of candidates, the right to information does not exist so far as judicial elevations or transfers of high court justices are concerned. Stories in which judges, lawyers, law ministers and journalists tell us about the “system” are abundant, but such anecdotal evidence is hearsay and not ordinarily admissible in a court of law.

In the three judges cases, including a reference for advisory opinion, the court arrogated the power to elevate (and transfer high court) justices through a tortured interpretation of Articles 124 and 217 of the Constitution, by saying that the word “consultation” shall mean the “consent” of the CJI. But a constitutional convention giving primacy to the CJI was already in place — according to the law secretary’s affidavit, only seven out of some 348 recommendations were negatived by the Central government. If the system of executive nomination has worked so well, why the change?

Are the CJIs, in some cases, constrained to approve executive-dominated elevations? Justice Markandey Katju’s recent expose suggests that the CJI is vulnerable to alleged manoeuvring by the prime minister’s office. The justices in the judges cases seemed to think so, given that they accorded primacy first to the CJI, then to two judges and the CJI, and finally to a collegium of five justices.

To its credit, the UPA government introduced nearly half a dozen bills for judicial appointments and transfers, and contemplated a slew of measures on judicial standards, accountability, non-impeachment offences and transparency of the judicial process. The new government is espousing the cause; it clearly disfavours the political bravado that inspired a Union law minister to say that he had justices in his pockets; this is no longer the signature tune of modern governance. Rather, the state now wants a JAC that would avoid the vices of politicians appointing judges, and of the justices appointing their own.

This is welcome, as is the agreement that the senior-most judge may only be the CJI (at least till 2021, when even reforms contemplating a minimum tenure for the CJI may occur). The many UPA bills made the CJI the chair of the JAC, converged in making two senior-most justices of the Supreme Court members, provided a

process to identify two eminent citizens, and finally culminated in the 120th constitutional amendment bill, which too lapsed in the Lok Sabha. The NDA is likely to revive the amendment and bill in the new Lok Sabha. The text of the bills, the debates in Parliament as they occurred, the Law Commission’s report and other reports make compulsory, if dull, reading on this vexed subject.

In a consultation with eminent jurists convened by the Union law minister on July 28, while most went to the extent of saying that the judicial collegium had failed and agreed that the system of appointments needed to be changed, all the “jurists” endorsed the “dominance” of the CJI and his senior companions. If the advice of the CJI and his companion justices is to have an “edge” or “dominance”, how is it to be achieved? Should the JAC then adopt a weighted voting procedure, not unlike the United Nations Security Council? If the JAC is to decide by consensus, what will happen if the justices do not yield? What if some other eminent members, including the Union law minister, remain recalcitrant? And how much weight, if any, should be given to the Intelligence Bureau reports on prospective candidates?

A greater fundamental difficulty is posed by the basic structure doctrine. I have previously argued in these pages (‘Just governance’, IE, June 10) and at a New Delhi consultation that the best course is to obtain an advisory opinion from the Supreme Court on a draft amendment bill, considering whether abolition of the judicial collegium offends the basic structure and if it does, how the alternate JAC could be made constitutionally compatible. Already, the CJI has made it clear that the matter can only be settled in a judicial opinion; since the judges cases were decided judicially, no question arises of a mere administrative order by the court.

The court may advise the president that the basic structure is not violated or that certain changes to the JAC could save it from the indictment of offending it. This will result in a healthy dialogue on system change and collaboration, rather than an avoidable conflict between Parliament and the Supreme Court.

The basic structure here is the independence of the judiciary and judicial review. It is this power that ultimately decides the essential features of the Constitution. Appointments and transfers of justices definitely affect the basic structure, and the court should have a say in it. The executive may present evidence before the justices on why the judicial architecture needs to be reformed, and how the judicial collegium has “failed” the nation. Since almost all the leaders of the Bar believe that the judicial collegium has “failed” in drawing the best and brightest to become justices, they should have little difficulty in persuading the court.

The argument against an advisory opinion is that it would take undue time. But the 2G reference was relatively expeditiously disposed; the non-collegium justices would be justified in accelerating the opinion. In any event, the time taken for the reference will be democratically well-invested. The alternative of an adversarial proceeding, where the court may continue via a stay order to make appointments and transfers, scarcely advances the cause. Even under Kesavananda Bharati vs State of Kerala (which enshrined the basic structure doctrine), Parliament has plenary powers to amend the Constitution. However, enacting the JAC without consulting the court may invite judicial wrath, and even lead to a constitutional crisis.

The writer is professor of law, University of Warwick, and former vice chancellor of the Universities of South Gujarat and Delhi

Justice barred

Posted in JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on March 15, 2012
SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

RD SHARMA IN THE TRIBUNE

Our judiciary creaking under the seemingly impossible load of cases awaiting disposal needs urgent attention if we have to avoid collapse of the system, which could put in jeopardy the whole state of orderly society.

Law courts no longer inspire public confidence, as litigants only get increasingly distant dates for their next hearings each time they approach them. The proverb “justice delayed is justice denied” too seems inadequate to describe the prevailing circumstances. Judgments come after endless wait, which ensures there is rarely any sense of satisfaction or justice. As pending cases pile up, the judicial system is not in a position to meet the challenge of arrears that have swamped courts from top to bottom.

According to the latest statistics available from the Supreme Court’s report on vacancies and pending cases, the apex court has now run up a backlog of 56,383 cases — the highest figure in a decade. The situation is similar in the country’s 21 high courts, where 42,17,903 cases are awaiting disposal. In lower judiciary, which constitutes the base of the entire judicial pyramid, the total number of such cases stood at 2,79,53,070 at the end of March 2011. And these figures do not include the cases pending in various tribunals and other quasi-judicial bodies. If those were also added to the grand total, the arrears in lower courts would well cross the figure of 3 crore, which is alarming, to say the least.

The right to fair and speedy trial holds little promise for the aggrieved who knock at the door of courts as a last resort for justice or relief. Invoking the law seems to mean only wasted years, heavy financial burden, besides emotional and physical trauma. Prolonged delays also mean high rate of acquittal in criminal cases — it is as high as 93.02 per cent in India. Unable to get justice from courts, victims often take the law into their own hands to settle scores with culprits. This only multiplies the problem of law and order, and in turn the load on courts. It has also encouraged kangaroo courts in the form of khap panchayats or lynch mobs in many parts of the country, which mete out rough-and-ready justice on the spot. The painfully slow justice delivery system also leads to corruption and lack of investment in vital economic spheres owing to uncertain contract enforcement, higher transaction costs and general inflationary bias, which the finance minister has also acknowledged.

TOO FEW JUDGES

Among other issues, inadequate judge strength at all levels is the main factor behind the delay and the resultant backlog. In proportion to its population, India has the lowest number of judges among the major democracies of the world. There are 13.05 judges per 1 million people, as against Australia’s 58 per million, Canada’s 75, the UK 100, and the USA 130 per million. In 2002, the Supreme Court had directed the Centre to raise the judge-population ratio to 50 per million in a phased manner, as recommended by the Law Commission in its 120th report. The suggestion has had little effect.

Even the existing judge strength is reduced further when judicial vacancies are not filled promptly. For instance, the Supreme Court had only 26 judges in October last year, including the Chief Justice of India, against the sanctioned strength of 31. The vacancy level in the 21 high courts of the country, if put together, is 32 per cent, with 291 posts of judge — against the sanctioned strength of 895 — lying vacant for a long time.

In subordinate courts, where we have the maximum backlog of cases, there are 3,170 posts vacant. The sanctioned strength of district judges has gone up to 17,151, according to the Supreme Court’s report on vacancies and pending cases. Filling these vacancies will have a direct impact on India’s governance indicators, improving investor sentiment and advancing economic growth.

If we look into the World Bank Institute‘s Governance Matters set of indicators specifically for rule of law, India had a percentile rank of 54.5 in 2010 (coming down from 60.3 in 2000), which compares ill to 97.2 for the Netherlands, 91.5 for the US, and 81 for South Korea. Other World Bank documents, quoting market analysts, say that it is not unusual for the first hearing in Indian courts to take six years, and the final decision up to 20 years.

SPEED UP SELECTION

The power of appointment to top judicial posts is vested in a collegium of senior judges, with the executive virtually playing second fiddle. Apart from being opaque, the system has simply failed to deliver. It is not uncommon for higher courts to remain without their full strength for months, or even more. The selection process, therefore, ought to be speeded up. Whenever a vacancy is expected to arise, steps should be initiated well in advance and the process of appointment completed beforehand. In the case of resignation or death, the selection process should come into play without delay to ensure that the Benches work with full strength. And, if the wholesome principle of merit, enunciated by the Law Commission, is accepted in principle, there is no reason why there should be any delay in determining appointments or filling vacancies.

Also, unless the judiciary is given full financial autonomy, the problem of pendency of cases or non-appointment of judges will persist. Funds are required for creating new posts of judge, increasing the number of courts and providing infrastructure. The judiciary has to petition the Law Ministry each time it needs finances, which are forever hard to come by. Less than 0.3 per cent of the Gross National Product (GNP) — or 0.78 per cent of the total revenue — is spent on the judiciary in India. This, when more than half of the amount is being generated by the judiciary itself through court fees and fines. In the UK, USA and Japan, the expenses on judiciary are between 12 and 15 per cent of the total expenditure.

Together with adequate manpower, it is imperative to simplify and reform the current procedural laws which provide ample scope to obstruct and stultify the legal process. Though of colonial antiquity and Kafkaesque obscurity and cumbersomeness, these laws have somehow survived despite their comicality in today’s eco-friendly and “paperwork unfriendly” times, a sure way to delay disposal of cases. In addition, there are myriad laws and other specious requirements, which have no relevance today, yet are frequently invoked. These must be repealed to expedite the judicial process. “Court procedure is not to be a tyrant but a servant, not an obstruction but an aid to justice, a lubricant and not a resistant in the administration of justice,” the Supreme Court has observed. After all, procedures are meant to help the law, not defeat it.

UNSCRUPULOUS LITIGATION

Impelled by the motivation of pecuniary gains, lawyers often indulge in unethical practices of stalling court proceedings deliberately. At every stage, a number of interlocutory applications are filed and adjournments on flimsy grounds sought to defeat the purpose of speedy dispensation of justice. Such is the situation that even expansion of the judicial machinery will not achieve much until rules about stay orders and adjournments are also changed to prevent lawyers from prolonging litigation. In addition, punitive fines should be imposed on unscrupulous litigants found to be abusing the process of law to discourage unnecessary or frivolous litigation and to make the judiciary self-supporting.

Instead of arguing their cases endlessly, it would be better for lawyers to present their submissions in writing to the judge so that cases could be decided on merit on the basis of documents and written submissions filed by both the parties before the judge, without the fanfare of formal court sessions and personal attendance of petitioners, respondents and lawyers. Direct written representation by the parties, rather than oral arguments spoken in the din and bustle of crowded courtrooms, would also lower the risk of miscarriage of justice. This practice, followed in the US Supreme Court (where oral arguments serve as additions to the obligatory written brief), can be easily adopted in Indian courts. Constitutional and corporate matters have little scope for courtroom histrionics.

Judges also ought to exercise restraint against the temptation of writing lengthy judgments running into several hundred pages, incorporating their social, political, economic and philosophical beliefs. The judge’s time is most precious and is paid for from the taxpayers’ money, and should not be wasted in expounding one’s personal ideologies. Justice, equity and fair play demand that judges are more crisp and precise while writing their judgments rather than rely on lengthy quotes and superfluous observations. They should deliver judgments as early as possible, instead of keeping them reserved for long durations.

AIM FOR CONCILIATION

The legal strategy for modern India should aim at conciliation and not confrontation, in keeping with our tradition of tolerance and mutual accommodation. The focus should be on “conciliatory legal realism”. A judge should not merely sit like an umpire, but participate in the efforts to iron out differences and encourage the parties to arrive at a settlement. This would help reduce the backlog of cases, avoid the multi-tier process and also lead to reconciliation of legal disputes without causing much enmity and bitterness.

However, any attempt at judicial reform, including raising the number and strength of courts, improving the selection process of judges or setting up evening and fast-track courts throughout the country to dispose of cases quickly will fail unless high courts succeed in establishing that they are reliable and just, and instil such confidence in litigants that they forgo the last resort of the apex court, except in rare cases. At the same time, if the trial courts at the grassroots level are also properly strengthened and made effective instruments of justice in the real sense, the cycle of appeal and counter-appeal could be broken and delay reduced. The litigation backlog would then melt like an iceberg in a tropical sea.

The writer is a legal consultant, and advocate at the Delhi High Court and the Supreme Court

SOURCE : http://www.tribuneindia.com/2012/20120313/edit.htm#6

Review petitions not favourable to courts, though they accept human fallibility

Posted in REVIEW PETITION by NNLRJ INDIA on February 25, 2012
JUSTICE REVIEW

JUSTICE REVIEW

SATVIK VERMA IN THE ECONOMIC TIMES

A few weeks ago, the Supreme Court of India delivered three landmark judgments. Starting with its verdict on Vodafone, a few days later, the court delivered a ruling that a complaint under the Prevention of Corruption Act is a citizen’s constitutional right and the competent authority must take a decision within three months on whether or not to grant sanction for prosecution. Two days later, the court held the allocation of 2G licences as arbitrary and illegal and, consequently, cancelled all 122 licences granted. Say what one may, but all these judgments reinstate the supremacy of the rule of law and affirm one’s belief in the independent and effective functioning of the Indian judiciary. Given that in all these judgments the government is a contesting party and since the ramifications of these verdicts are far beyond the cases in which they were delivered, the government is now looking to seek a judicial review in all these matters.

Before we assume that by filing a review, the government is questioning judicial authority or jump to conclusions that some of the certainty these judgments had delivered may get undone, let us examine the legal framework regarding seeking review of judgments of the court. The Constitution provides that the court has the power to review any judgment made by it. It further provides that the court may make any rules for regulating its practice and procedure or set down conditions, subject to which a judgment passed by it may be reviewed.

 Additionally, the Supreme Court rules stipulate that an application for review must be filed by way of a petition within a period of 30 days from the original judgment and is normally heard in chambers, by the same Bench that heard the original case. It is expected that such petition will clearly set out the grounds on which the review is sought and such grounds must be in keeping with the requirements prescribed in the Code of Civil Procedure.

 Notably, the code provides very limited grounds either on account of discovery of new/important evidence that was not available at the time when the dispute was originally heard or on account of some mistake or ‘error apparent’ on the face of the record. Applying the above stated principles, the court has held that the power of review is to be exercised with extreme care, caution and circumspection. Additionally, a review should be entertained only in very exceptional cases where the court has overlooked a material statutory provision or if a manifest wrong has been done, which must be corrected.

 Distinguishing statutory provisions from facts, the court has also held that where a question is raised in a review petition, which was open to be raised in the original petition, but had not been raised, then the court will not permit such question to be advanced in a review. A review is not a rehearing and cannot be used to re-agitate issues previously argued.  While the issue of error has been addressed, what happens if a judicial decision is passed questioning a policy issue or matters falling exclusively within executive domain? Is the decision of the court the final word and authority? Simply stated, the answer is: yes!

Courts have accepted the philosophy of human fallibility and, hence, provided for review, but generally speaking, the courts don’t look favourably at review petitions. This is because review literally, and even judicially, means re-examination or reconsideration and the courts believe that in the realm of law, the courts and even the statutes lean strongly in favour of finality of decisions legally and properly made.

 Hence, while a review will be entertained to remove an error, it is almost never exercised to disturb finality achieved through a judicial process, unless such interference is to prevent grave injustice.Consequently, the only check on the judiciary’s exercise of powers is the self-imposed discipline of self-restraint. The court has itself ruled that the judiciary must exercise judicial restraint and the judges must not try to run the government. But let us accept that, at times, it is difficult to exercise restraint when the executive and legislature are falling short of performing their duties or where administrative action is blatantly arbitrary and biased, as had been noted in the 2G scam case.

But even then, the court has acknowledged that while conducting judicial review of administrative action, the court cannot act as the appellate authority and substitute its views for the views of the decision-making authority. The role of the court is limited to ensure that the decision was passed in keeping with well-established principles of transparency, fairness and natural justice. And when acting as the appellate authority, the court needs to examine only questions of law and ensure that subordinate courts correctly appreciated facts and appropriately interpreted the law.

 In conclusion, as regards review petitions that have been or may be filed, it is difficult to comment with any authority without studying the grounds on which the review is sought. Equally, it would be improper to speculate or even comment on their outcome given they are sub-judice.  But based on precedence, it is hard to comprehend the court re-examining issues that were most likely examined during the initial hearing and on which the court applied its time and attention before delivering detailed judgments. But it’s a different matter if some material brought to the attention of the court has not been considered while deciding the case.

Hence, in the Vodafone case, depending on the outcome of the review, if the department is worried about the purported loss of revenue and bad precedence getting established, it would most likely seek to provide for taxation of Vodafone-type transactions in the Direct Taxes Code or by bringing about amendments in the Income-Tax Act. It’s true, no one likes Parliament enacting laws only to overcome judicial rulings. Then again, to survive in this era of coalition politics, sometimes the government is compelled to take decisions that can’t please everyone.

 (The author is an advocate and corporate counsel)

http://economictimes.indiatimes.com/opinion/comments-analysis/review-petitions-not-favourable-to-courts-though-they-accept-human-fallibility/articleshow/12026217.cms

“When an Institution No Longer matters, we no longer matter.”

Supreme Court of India

Chief Justice of India Shri S H Kapadia- Speech on the ocassion of Law Day 2011

We have assembled today to celebrate the anniversary of a momentous event, the anniversary of the adoption of our Constitution, the day on which our founding fathers subscribed to this document by signing the same and thereby unfolding the philosophy – social, economic and political, for the governance of free India. We have every reason to be proud of and to celebrate that unique occasion. We take this opportunity to thank the founding fathers, for this document, who spent a good deal of their time and energy in giving shape to this suprema lex which was to guide the future destination of the country. We are ever grateful to them. The foremost reason why we are proud of our Constitution is that it promises governance through the Rule of Law. While in many countries which initially opted for a democratic form of Government the euphoria lasted for brief spells, we are of the view that in our country, notwithstanding its complexity, democracy has stabilized and democratic institutions have flourished. The survival of democracy in India has left many bewildered.

The socio-economic transformation – a welfare State and an egalitarian society as its objective – must also be through the process of law. It is true that such desired socio-economic transformation through process of law has been slow, however, the march has been steady. Today, rule-specific laws are being substituted by rights-specific laws (RTE, RTI, Food Security Bill). These socio-economic legislation requires a paradigm shift in the matter of interpretation of Article 14, Article 21 and Article 19(1)(g) of the Constitution. Courts have come from formal equality to egalitarian equality to the concept of Deprivation.

 Judicial independence is one of the essential elements of Rule of Law. Every civilized society has seen the need for an impartial and independent judiciary. The principle of Judicial Independence has acquired renewed significance, since the Constitution of India has conferred on the Judiciary the power of judicial review. However, keeping in mind the doctrine of Separation of Powers, Judiciary has to exercise considerable restraint to ensure that the surcharged democracy does not lead to a breakdown of the working of the Parliament and the Government. The Judiciary needs to work in the area demarcated by the Constitution. Awareness about rights has grown while correspondingly redressal from the Executive has been reduced. The Executive has its own compulsions – huge population, lack of resources, high inflation, global economic region etc. As a consequence litigation has multiplied. Despite commendable achievements in terms of disposal which I will presently demonstrate, the challenge is and should be for Zero Pendency in which direction a lot needs to be done.

Today, the crisis of confidence in human institutions has come to the forefront. The deficiency of every institution in tackling the growing and complicated social problems has become a common feature. It is a challenge for every institution. Every democratic institution needs to meet this challenge. The viability of judicial institutions depends upon their acceptability by the people. When the viability of the system gets into disrepute and ultimately the system becomes less and less useful to the community, the challenge lies in rejuvenating the system by restoring its credibility and people’s faith in it. Thus, the foremost challenge to the

Judiciary today is viability of the system. Citizens approach the Court only when there is confidence in the system and faith in the wisdom of the Judges. This is where the Public Trust doctrine comes in. The Institution stands on public trust.

 I am an optimist. I do not share the impression that judicial system has collapsed or is fast collapsing. I strongly believe and maintain that with all the drawbacks and limitations with shortage of resources and capacity, we still have a time-tested system. This is no justification to discard the system by giving it bad name. Judiciary has performed a commendable job, which is indicated by the Status Report. Before reading the statistical data, let me say that there is a need to highlight that all the stakeholders are accountable for maintaining and achieving standards of Court Excellence. The general tendency is to put the entire blame on the Judges.

The executive including the police and the Bar have an important role to play in expeditious disposal of cases. There is a backlog of cases, however, it is not as big as is sought to be projected. Please note that 74% of the cases are less than five years old. The focus: expeditious disposal of 26% of cases which are more than five years old i.e. “Five plus free” should be the initiative.

CONCLUSION :

B. R. Ambedkar delivering a speech to a rally ...

Image via Wikipedia

India is an aspirational democracy. It is the shared idea of India to emerge from Society which has individuals of diverse ideologies, cultures and religious denominations. We must, therefore, identify common strands that will bind us, as one nation and one people. Unless this is done we cannot build a modern and strong India. In the hierarchy of values, judicial integrity is above judicial independence. Judicial accountability needs to be balanced with judicial independence. I would request the Bar as well as eminent jurists to deliberate upon constitutional concepts such as Judicial Independence and Judicial Accountability. We, the Judges, do not mind a studied fair criticism. However, as an advice to the Bar please do not dismantle an Institution without showing how to build a better one. Please remember “When an Institution No Longer matters, we no longer matter.”

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