Justice barred




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.


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.


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.


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.


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


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

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



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)

“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.


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.”

SC judges: Most sign off with grace, others remain Lordships


Supreme Court of India


Between the first Chief Justice of India Harilal Jekisundas Kania and present CJI S H Kapadia, there have been 36 others who held the top judge’s post. How many do we remember for their contribution to make judiciary a better institution and lift it a notch higher in public esteem? Few CJIs lasted in public memory after they retired. Fewer etched their names in the annals of judicial history as harbingers of changes. A still fewer number of Supreme Court judges are remembered after retirement. For, most do their constitutional job, reach the sunset of their career and sign off without disturbing the discipline they learnt in judicial melancholy. But there are exceptions. Justice Markandey Katju is one. When he was a sitting judge and presiding over a Bench, he had the power to dismiss a petition without assigning a reason while lecturing lawyers on how to prepare arguments. He got attention of the public and press for speaking his mind. His views, as distinguished from his judgments, were based sometimes on law and common sense but mostly on purely personal knowledge.

He did not encounter much criticism as a sitting judge. For, most were apprehensive of the contempt power vested with a judge. After retirement, he changed little and continued expressing his views on all and sundry without moderation. Shorn of his contempt powers, the retired judge soon found himself being questioned. On a daily basis, he was seen either making statements supporting his views, issuing clarifications on distorted versions of his earlier statements or e-mailing the list of his growing band of supporters. What he probably missed in the din of self-created cacophony was that he has ruptured the tranquility of melancholic judicial discipline. He kept harping on the misuse of freedom of expression by the press with impunity.

If anyone abuses the right to freedom of expression, he would be dealt with by the aggrieved party, for every journalist is aware that he enjoys no immunity from the process of defamation, libel or contempt laws just because he works for a newspaper or a TV channel. In C K Dapthary vs O P Gupta [1971 SCR 76], the Supreme Court more than 40 years back had said, “Freedom of press under Constitution is not higher than that of a citizen and, that there is no privilege attaching to the profession of press as distinguished from the member of public. To whatever height the subject of general may go, so also may the journalist, and if an ordinary citizen may not transgress the law, so must not the press.”

If some among us in the profession harbour a misconception about enjoying some special status before law, we must know that many senior journalists have faced the rigour of defamation, libel and contempt laws. What about the judges? Justice Ruma Pal, the third woman judge of the Supreme Court appointed in its golden jubilee year, reflected on the attitude of judges of high courts and the Supreme Court with a soul searching speech on November 10 at the V M Tarakunde Memorial Lecture.

She said judges were afflicted with “multitude of sins”, but culled out seven deadly ones — brushing under the carpet, hypocrisy, secrecy, plagiarism and prolixity, intellectual arrogance or dishonesty, judicial indiscipline and nepotism. It gladdens no one to be aware of the sins afflicting judges, but one must admire Justice Pal for the plain speak. One would have loved to hear from her about the life of judges who on retirement suddenly end their intrinsic association with judiciary. Well, we are not talking about the lucky few among retired Supreme Court and HC judges who land post-retirement assignments and shift from a judge’s quarters to a bungalow allotted by the government as chairman of a tribunal or a statutory council.

Peer review



The former Supreme Court judge, Justice Ruma Pal, speaking at the fifth Tarkunde Memorial Lecture on Thursday, delivered some very welcome reminders to the higher judiciary of their responsibility towards peer review. She reminded her audience that we hear a great deal these days about the need to preserve the independence of the judiciary; but then she examined various recent tendencies among judges that, she said, worked against the appearance of independence. “The insulation of the judiciary from executive interference in the matter of appointment and transfer of judges is now almost complete,” she argued, through actions which “strained” the Constitution “to an extent never witnessed before or after.” And yet, she said, appointments were as non-transparent; rivalries, unspoken obligations, rumours, third-hand information, personal friendships therefore made all the difference in appointments, “with disastrous consequences for litigants and the credibility of the judicial system.”

These remarks speak to a necessary reform. But Justice Pal was not done yet. She went on to list ways in which judges of the superior judiciary were failing in their duty — substantiating each with an example. They ignore injudicious conduct in other judges, using contempt as a tool to silence discussion, she said; and they are insufficiently aloof from litigants, including the executive branch.

Justice Pal’s words need to be welcomed in that they should spark off a much-needed debate. The higher judiciary is looked up to by most of India as one of the few institutions that have not been hollowed-out by time and circumstance. It is consistently at the cutting edge of responding to the social needs of the new India that liberalisation has brought into being. Yet the perception of a lack of accountability, a sense in which ranks are closed at the first sign of discussion, cannot help the institution maintain the position of unparalleled respect that it has built for itself over the past three decades. Justice Pal has correctly argued for an accountability mechanism, such as being studied by the bill now before Parliament. Till that mechanism has teeth, the self-examination of forward-looking judges can only strengthen the judiciary.

The seven deadly sins of judges




Judges are fierce in using the word [“independence”] as a sword to take action in contempt against critics. But the word is also used as a shield to cover a multitude of sins, some venial and others not so venial. Any lawyer practising before a court will, I am sure, have a rather long list of these. I have chosen seven.

The first is the sin of “brushing under the carpet”, or turning a Nelsonian eye. Many judges are aware of injudicious conduct of a colleague but have either ignored it or refused to confront the judge concerned, and suppressed any public discussion on the issue, often through the great silencer — the law of contempt.

The second sin is that of “hypocrisy”. A favourite rather pompous phrase in judgments is “Be you ever so high, the law is above you”, or words to similar effect. And yet judges who enforce the law for others often break that law with impunity. This includes traffic regulations, and another regulation to which the “ordinary” citizen is subject. Some in fact get offended if their car is held up by the police at all while controlling the flow of traffic — the feeling of offence sometimes being translated into action, by issuance of a rule of contempt against the hapless police constable, all in the name of judicial independence.

The third sin is that of secrecy. The normal response of courts to any enquiry as to their functioning is to temporise, stonewall and prevaricate. As I have said elsewhere, the process by which a judge is appointed to the high court or elevated to the Supreme Court is one of the best-kept secrets in the country…

If “independence” is taken to mean “capable of thinking for oneself”, then the fourth sin is plagiarism and prolixity. I club the two together because the root cause is often the same, namely the prolific and often unnecessary use of passages from textbooks and decisions of other judges — without acknowledgement in the first case, and with acknowledgement in the latter. Many judgments are in fact mere compendia or digests of decisions on a particular issue, with very little original reasoning in support of the conclusion.

Often judges misconstrue judicial independence as judicial and administrative indiscipline. Both of these in fact stem from judicial arrogance as to one’s intellectual ability and status…. Intellectual arrogance, or what some may call intellectual dishonesty, is manifest when judges decide without being bound by principles of stare decisis or precedent…

Independence implies discipline to decide objectively and with intellectual integrity and as the judicial oath of office requires, without fear, favour, affection or ill will. Most importantly judges must be perceived as so deciding, or to use Lord Hewart’s classic dicta that “justice should not only be done, but should manifestly and undoubtedly be seen to be done,” because the belief of corruption is as damaging to the credibility in the independence of the judiciary as the act of corruption.

This brings me to the seventh and final sin of nepotism or what the oath of office calls “favour” and “affection”. What is required of a judge is a degree of aloofness and reclusiveness not only vis-a-vis litigants but also vis-a-vis lawyers. Litigants include the executive. Injudicious conduct includes known examples such as judges using a guesthouse of a private company or a public sector undertaking for a holiday or accepting benefits like the allocation of land from the discretionary quota of a chief minister. I can only emphasise again that nothing destroys a judge’s credibility more than a perception that he/she decides according to closeness to one of the parties to the litigation or what has come to be described in the corridors of courts as “face value”.

…I will conclude with most important facet of judicial independence. Judicial independence cannot exist without accountability. At present the only disciplinary power over judges is vested in Parliament which provides for the extreme punishment of removal for acts of proven misbehaviour by or incapacity of a judge…

Deprivation of jurisdiction or the non-allocation of work to a dishonest judge was resorted to by Chief Justice Sabyasachi Mukherjee when the impeachment of Justice V. Ramaswamy failed for political reasons. Sometimes Chief Justices control a recalcitrant judge by ensuring that the judge concerned sits with the Chief Justice or with a “strong” judge until he or she retires. The situation becomes more difficult if the allegations are against the Chief Justice. Solutions evolved have proved inadequate and ad hoc. There is a need for an effective mechanism for enforcing judicial accountability…

 Pal is a former Supreme Court judge, Extracted from the V.M. Tarkunde memorial lecture, delivered on November 10

Judicial secret out in open

Judicial secret out in open

Judicial secret out in open


New Delhi, Nov. 10: Former Supreme Court judge Ruma Pal today tore into the process of appointment of judges to the Supreme Court and the high courts and the lack of an embedded mechanism to ensure judicial accountability. Pal, a widely respected jurist not known to mince words, chose to put a caveat to her words: she was speaking from the “safe haven of retirement”.

“The process of appointment of judges to the superior courts was possibly the best kept secret of the country,” she said. Judges’ appointments are now initiated and cleared by a collegium of the four senior-most judges and the Chief Justice of India for the Supreme Court and three senior judges and the chief justice for a high court. Since 1993, the executive’s role has been to dutifully appoint those cleared by the collegium. The executive can return the names but has to appoint the judges if the collegium clears the list again. Pal said the criticism of appointments by the executive to the judiciary applied equally well to appointments made by judges to the judiciary.

The “mystique” of the process, the small base from which the selections were made and the “secrecy and confidentiality” ensured that the “process may, on occasions, make wrong appointments and, worse still, lend itself to nepotism”, she said. An indiscreet comment or a chance rumour was enough to rule out a person’s perceived suitability for the post, she said. Friendships and obligations also sometimes colour recommendations, she added. Consensus in the collegium is often arrived at by “trade-offs”, she said, with “disastrous effects”. Pal also lamented the growing “sycophancy” and “lobbying” which colour these appointments.

These appointments, she said, should be done by a judicial commission of non-partisan members. Unless the process is made transparent and the resource pool widened and some objective criteria laid down, “arbitrariness” in appointments will remain, she said.

There has been a good deal of talk in recent years on the judicial accountability and standards bill but it is still pending. It proposes a judicial commission made of people from all walks of life and strong representation from the executive.Pal was delivering the fifth V.M. Tarkunde memorial lecture here. Tarkunde, considered the father of the human rights movement in the country, was a lawyer in the Bombay Bar. He became a high court judge but later gave up the post to don black robes again. Tarkunde was never elevated to the Supreme Court because of extraneous reasons, speakers at the lecture said. His landmark judgment, that a person was entitled to a passport as a matter of right under Article 21 of the Constitution (right to life and liberty), was later adopted by the Supreme Court in the Maneka Gandhi case.

Pal also listed several sins of the judiciary (see chart). She called for a judicially “embedded” strong mechanism to ensure accountability. Any non-judicial mechanism will impinge on the judiciary’s independence, she said. The current solutions adopted by the judiciary — which give the CJI only the power to transfer, or not allot work, to erring judges — were inadequate and ad hoc, she said.

She described the increasing tribunalisation (the executive decision to set up specialised tribunals) as a serious encroachment on the judiciary’s independence. The judiciary, she said, had been “timorous” in not fighting these tribunals that force it to share its adjudicating powers with the executive. A government law that bars judges from foreign travel even at their own cost also came in for attack. This ensures that judges are obliged to the secretaries in various departments, she said.

Khurshid remains consistent on Bail for 2G Scam Accused

Bail is rule, jail exception”, Khurshid reminds SC

In a balancing act, Union Law Minister Salman Khurshid said that while it was for the courts to decide as to who should be locked up, the dictum of bail being the rule and jail an exception has been laid down by the Supreme Court itself. Elaborating on his controversial statement that the judiciary needs to understand the ‘political economy’ in the country, Mr. Khurshid told PTI on Tuesday night that “it is not for me to lock up people, it is for the courts to decide”.

At the same time, he recalled that the Supreme Court had laid down the law “bail is the rule, jail is an exception”. The Law Minister was speaking in the backdrop of his comment, “if you lock up top businessmen, will investment come”, which was termed as “disturbing” by the Supreme Court on Wednesday.

Mr. Khurshid said his comments had nothing to do with the 2G case but agreed with the questioner that a lot of people think that many of those long detained in the scam had been deprived of their liberty.

In a changing society every institution has to respond to the demands of changing time and the courts had done that in the case of protection of environment for which they needed to be complimented.

Similarly, “the demands of our time are that we must appreciate what dissent is”, the minister said adding that it was the Supreme Court that had given bail to Maoist sympathiser Binayak Sen without saying that he was guiltless.

“They (the apex court) said he will be tried. If he is wrong he will be punished. But that is no no reason to keep him in prison. They gave him bail,” Mr. Khurshid said describing the order as “brilliant“. He went on to ask, “But when economic issues come does the Supreme Court pay the same attention to developing economic issues as the rest of us do”.

If you lock up businessmen, will investment come: Law Minister


At a time when the judiciary is seized with cases concerning corruption, black money and the 2G spectrum scam, Law Minister Salman Khurshid has said that the judiciary needs to understand the “political economy” in the country.

Speaking to The Indian Express, he said: “What will affect the functioning of the government is if other institutions do not understand the kind of political economy we are faced with today: what is needed to encourage growth and investment? If you lock up top businessmen, will investment come? What optimal structure should be put in place for investment to come?”

Asked if he meant the judiciary when referring to “other institutions”, he replied: “Yes, judiciary is as important a player in the entire effort. Each of the three wings — judiciary, legislature and executive — has to understand the political economy and respond to it. The judiciary can’t be immune to the demands of society in changing times. The judiciary has been making positive interventions in the field of environment, fight against corruption, protection of human rights and social welfare, but it also has to understand the political economy.”

On why the UPA government has been increasingly facing flak from the judiciary, Khurshid said, “It’s not the entire judiciary. There are some judges who have felt that things need to be set right. Sometimes, we may not agree. For instance, we did not agree on the black money verdict and hence sought its recall. Two judges disagreed among themselves. These are difficult issues of political economy. We don’t blame the judges for getting it wrong. On certain things, the executive and the legislature also get it wrong.”

Asked about the controversial Finance Ministry’s note regarding Home Minister P Chidambaram’s stand on the 2G spectrum allocation issue when he was the Finance Minister, Khurshid said, “Even the worst interpretation of that document does not drag in the then FM.”


Chief Justice of India Releases Restatements of Indian Law on Legislative Privilege, Contempt of Court and Public Interest Litigation

Posted in CJI SPEECHES, SUPREME COURT by NNLRJ INDIA on October 11, 2011

Chief Justice of India, Shri Justice S.H. Kapadia, here today released a set of Restatement of Indian Law in the presence of legal luminaries. These Restatements of Indian Law relate to 3 subjects: Legislative Privilege, Contempt of Court and Public Interest Litigation. Chairman of the Supreme Court Project Committee on Restatement of Indian Law Shri Justice R.V. Raveendran, Shri G. E. Vahanvati, Attorney General for India and the Director Incharge, Indian Law Institute, Professor S. Sivakumar were also present on the occasion. Chief Justice of India is also the Patron of Supreme Court Project Committee on Restatement of Indian Law.

This Restatement of Indian Law would benefit the members of Bar, Bench, Academia, Civil Servants and general public to map the developments in the field of law and to comprehend its current status as the march of Indian law in the last six decades through judicial pronouncements, legislations and their amendments, rules, regulations and other policy measures needs to be restated with clarity of thought. With this objective the Supreme Court Project Committee on Restatement of Indian Law and the Indian Law Institute had taken up the task of restatement of Indian law in important areas.

The process was initiated with three Pilot Projects on: i) Legislative Privileges, ii) Contempt of Court, and iii) Public Interest Litigation. Three Sub -Committees comprising of Judges of the Supreme Court of India, High Court of Delhi, senior advocates and distinguished academicians were constituted for the purpose. The Pilot Project restated laws on:

(a) Legislative Privilege – This subject was chosen partly on account of the sharp focus it brings to the principle of ‘checks and balances’ vis-a-vis the two important organs of State – the Legislature and the Judiciary.

(b) Contempt of Court – The subject was chosen on account of the fact that the power of contempt is a necessary concomitant of a court of record. It must be exercised judiciously, in a manner that balances the need for preserving and upholding the rule of law as well as the integrity of the judicial system, while at the same time avoiding untoward incursions into that precious right of freedom of speech and expression.

(c) Public Interest Litigation – The Committee chose ‘Public Interest Litigation’ as the third area for restatement on account of the unique contribution of the Supreme Court of India in facilitating access to justice by liberalizing the principle of locus standi. The circuitous journey of PIL and associated discrete judicial thoughts necessitated a clarion, which this restatement aims at.

House power to regulate judges’ ambit under legal experts’ lens


Supreme Court of India


An attempt by Parliament to restrain judges from speaking against constitutional and statutory authorities in open court has provoked legal experts to question the legislature’s power to frame such a law.

Former judges and legal luminaries feel that the proposed move by a Parliamentary Standing Committee will violate the Constitution itself that bars Parliamentarians from deciding standards on judicial conduct, much less to even discuss about it. According to Article 121 in the Constitution, “No discussion shall take place in Parliament with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties.” Such power is available only at the time when the Parliament discusses a motion for removal of a judge as in the present case of Justice Soumitra Sen. Similar restriction applies to state legislatures under Article 211.

A similar bar prevails on Courts to inquire into proceedings inside the Parliament. It was a result of this bar, a five-judge bench of Supreme Court in 1998 granted exemption to the MPs involved in the JMM bribery case by considering the act of voting in Parliament to be part of proceedings in the House. In 2007, the question came up again in the cash-for-query case where the SC clarified that “irregularity of procedure” followed by Parliament cannot be questioned by Courts, except on the question of illegality or unconstitutionality of the action in question.

Former Chief Justice of India Justice VN Khare said, “There is a Code of Conduct for judges restraining them from speaking out their emotions or personal views in open court. It is not possible to regulate judges’ conduct by the legislature.” This is contained in the Full Court Resolution of May 7, 1997 titled Restatement of Judicial Values.

The report of the Parliamentary panel, while discussing the broad contours of the Judicial Standards and Accountability Bill 2010, said, “The Committee feels that there is a need to bring such behaviour of judges within the purview of the judicial standards. The Committee feels that Clause 3(2)(f) of the Bill should be expanded by specifically mentioning that judges should restrain themselves from making unwarranted comments against other constitutional or statutory bodies/institutions in open court while hearing cases.”

Clause 3(2)(f) of the Bill states: “a judge shall not enter into public debate or express his views in public on political matters or on matters which are pending or are likely to arise for judicial determination by him.” This is reproduction of the 1997 Resolution. Another former Chief Justice of India Justice JS Verma felt that there should be no fetters on judges making “fair comment”. Not talking in the context of the Parliamentary panel’s report alone, he said, “In a democracy everyone has a right to voice opinion. I do not know why there should be objection to any fair comment.” Again the use of the word “unwarranted” by the Parliamentary panel has a broad sweep which could be dangerous.

As a test, the former CJI suggested, “the judge must decide am I saying something that will help decide the merits of a case. Anything outside it should best be avoided.” He further said that judges in their judgments do pass observations that have no binding effect. “Every observation or comment is not to be seriously taken. The restraint in this regard should also be of the media against highlighting every such comment.”

Agreeing to the fact that of late some comments by judges was unfortunate and out of context, Justice Khare suggested that the way out is not the legislature setting terms for the judiciary. “Our sentiments cannot be regulated by legislation. There are times when the comments are made by judges in a lighter vein having no binding force. At best the restraint must be voluntary or any legislation may delegate this power to Chief Justice of India to regulate judges’ conduct.” To this view, senior advocate Jayant Bhushan added, “Hearing of a case involved arriving at a decision which involves debating and expressing tentative views. Such observations cannot be shut out as it amounts to gagging the judges.”


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