Who judges the justices?

Supreme Court of India

Justice B N Srikrishna (Retd.)


In the Arthashastra, Kautilya makes a profound observation: “Just as fish moving deep under water cannot be possibly found out either as drinking or not drinking water, government servants may not be found out while taking money for themselves.” He then goes on to forebodingly remark, about the opacity in governance machinery, that “it is possible to ascertain the movement of birds flying high in the sky, but it is not possible to ascertain the movement of government servants or their hidden purposes.” But even Kautilya with his remarkable perspicacity might have been amazed by the current evens in the country.

Basically, any act of corruption in public office involves the misuse of public office for private gain. In other words, it involves a public official benefiting at the expense of either the taxpayer or an average person who has come into contact with the government machinery. It also involves violating of the human rights of those whose legitimate benefits are intercepted and misappropriated by the dishonest public official.

Four tests help to determine if there is corruption in any transaction. First: transparency. Then, accountability, and reciprocity. And finally, generalisation. When an action fails on one or more of these tests, there is sure to be corruption.

The test of transparency fails when things are done in a covert manner without allowing the details to be disclosed to the public at large. The test of accountability fails when the person doing an act is not answerable to anyone else, or does not care to be answerable for his actions. The test of reciprocity fails if the answer to the question “Would I be hurt if others did the same thing to me?” is a yes. Finally, the test of generalisation fails when the answer to the question “Would it harm society if everyone did the same thing?” is answered positively. The first two tests are objective, while the latter two are subjective.

Corruption comes in a variety of garb. For most people, what probably occurs when they hear the word “corruption” is bribery; but other common types of corruption also exist, like fraud, nepotism and embezzlement. Each one of them is ethically negative and has a deleterious effect on society.

Going by Kautilya’s prescriptions, it would appear that corruption in public offices existed in India at least from his time. What is worrisome for us today is the blatant level to which corruption has descended. Even during the British Raj, it was acknowledged that there was corruption in the government apparatus. The innumerable laws, rules, financial manuals and accounting procedures designed by the British seem designed with an utter lack of belief in the integrity of government servants. Nonetheless, the common man was not harassed in his day-to-day transactions, as at the top there was someone with impeccable integrity and sense of justice to whom one could appeal and expect justice. Judges were also in this special category of public officers. The British practice of addressing judges of the superior courts as “justices” evidences this widely held belief. Judges were believed to be embodiments of justice and hence addressed as justices.

Plato, in The Republic, his monumental work on government and morality, posed the crucial problem. According to Socrates, the perfect society relies on labourers, slaves and tradesmen. The guardian class is to protect the city. The question is put to Socrates: “Who will guard the guardians?” — or, “Who will protect us against the protectors?” Plato’s answer is that they will guard themselves against themselves. We must tell the guardians a “noble lie”. The noble lie will assure them that they are better than those they serve, and it is therefore their responsibility to guard and protect those lesser than themselves. We will instill in them a distaste for power or privilege; they will rule because they believe it right, not because they desire it. What remarkable foresight! What a sense of déjà vu today!

The 1st-century Roman satirist, Juvenal, asked in a similar vein, “Quis custodiet ipsos custodes?” — “Who will guard the guards themselves?” This is the dilemma facing society today, with protectors seeming to turn predators. What was once considered the high ground of morality and ethics, untouched by the waves of venial conduct, is now lamentably and increasingly lapped by waves of corruption. The ramparts of the institution of the judiciary, once considered impregnable to the assaults of unethical behaviour, seem to be crumbling one by one. The impossible has been happening, as is suggested by the series of cases of misbehaviour by judges of the higher courts that are coming to light. The peccability even of those considered paradigms of virtue has exploded the noble lie that Socrates once assiduously advocated.

We entreat them that are placed upon the exalted seat and entrusted with the awesome power of rendering judgment over others, to reflect upon the words of the Good Book: “Ye are the salt of the earth: but if the salt have lost his savour, wherewith shall it be salted? It is thenceforth good for nothing, but to be cast out, and to be trodden under foot of men.” About them that deviated from the narrow path of rectitude, we may sadly say with Robert Browning: “Just for a handful of silver he left us/ Just for a riband to stick in his coat —/ Found the one gift of which fortune bereft us/ Lost all the others she lets us devote.”

Corruption is condemnable — and judicial corruption doubly so, for it entails, additionally, breach of the trust that society puts in judges. Manu says that the punishment for an offence for a learned man should be double that is given to the ordinary man. Thus should the punishment be for judges who deviate from rectitude.

The purity of gold is tested by scratching, hammering and fire assay. Persons whom society places on a pedestal must also be similarly tested by fire. Guaranteeing judicial independence without guaranteeing the quality of the judge is counterproductive. Even if the nominations are made by a judicial collegium, the nominees must be put to rigorous public scrutiny of their private and public conduct, with only those that ring true being selected. Even after selection and appointment, anyone found lacking in probity must be swiftly and condignly punished for the double offence. These are doubtless tall orders — but by no means impossible to achieve, if corruption is to be eliminated from the hallowed judicial precincts.

The happenings today must act as the wake-up call for all men and women of conscience holding positions of power. For God’s sake, betray not the trust that society has put in you. It is also time for society to resolutely say that there shall be zero tolerance towards corruption.

The writer is a former Supreme Court judge


Supreme Court rejects CVC appointment


NEW DELHI: The Supreme Court on Thursday quashed the appointment of the central vigilance commissioner for his involvement in a palmolein import case, in another rebuke for the Congress-led coalition government.The rejection of P J Thomas’s appointment as CVC comes as Prime Minister Manmohan Singh‘s government is trying to defend itself against a series of graft scandals including a Rs 1.7 lakh crore telecom licensing scam.The top court said the appointment of Thomas was made last year without taking into account the 1992 case in which he, as a state official, had been accused of signing a deal to import palmoil from Malaysia at higher prices. Thomas has resigned following the verdict, a TV report said. Law minister Veerappa Moily said the government respected the verdict. Prime minister Manmohan Singh and senior cabinet colleagues are meeting to figure out ways to deal with the fall-out of the verdict.

Chief Justice S.H. Kapadia, Justice K.S. Panicker Radhakrishnan and Justice Swatanter Kumar pronounced the verdict on a petition from the Centre for Public Interest Litigation (CPIL) challenging Thomas’s appointment. The petitioner said Thomas was facing a criminal charge sheet in a case related to palm oil import in Kerala and he was not an ‘outstanding civil servant of impeccable integrity’.

Time for Zonal Benches in Supreme Court


In the context of increasing backlog of cases and inordinate delay in the administration of justice, four Zonal Benches of the Supreme Court have become imperative. The Supreme Court should deal with only constitutional cases such as interpretation of the Constitution, matters of national importance such as references made by Zonal Benches and inter-state disputes on land, electricity and water.

Justice A.R. Lakshmanan (retd) IN THE TRIBUNE CHANDIGARH

IS there a need for creating a constitutional court that shall be dealing exclusively with matters of constitutional law? Yes. The first country to establish a constitutional court was Austria. At present, 55 countries have separate courts dealing with constitutional matters, including the Central African Republic, France, Germany, Italy, Norway and the US. In India, the Tenth Law Commission (95th Report) in 1984 suggested the constitutional division to specifically deal with constitutional matters, instead of having judicial review at present. Under Article 246 (1) by Entry 77, Parliament has the power to make such amendment for creation of court.As creation of separate constitutional courts would involve structural changes of very extensive and complex nature, the Eleventh Law Commission recommended constitutional division instead of constitutional courts (Report No. 125).

The huge backlog of cases in courts and delay in the administration of justice have prompted scholars and experts to argue for the establishment of constitutional and cassation courts as they may ease the work of the present Supreme Court. The Parliamentary Standing Committee of the Rajya Sabha on Law and Justice, in its 28th Report dealing with the Supreme Court (Number of Judges) Amendment Bill, 2008, has endorsed this.

In India, the ratio of judges versus population is 10.5 per cent per one million whereas it is 107 per million in the US and 75 per million in the UK. In India, the figure is 12 to 13 judges per million. It is thus evident that the ratio between judge strength and the population is hopelessly low. The same is apparent in the Supreme Court as well where the ratio works out to 1:112. The situation is critical if one takes into consideration the ratio of both the institution of new cases and the pending arrears which comes to 1:1854 (approximately).

There is an imperative need for increasing the Bench strength of the Supreme Court to clear the backlog of pending cases and to promote future developmental programmes in the judiciary and thereby minimise delays in the justice delivery system and promote speedy justice which is the avowed goal of the Constitution. But it is equally important that mere increase in number of judges might not help improve the system.

In an article, Dr P.C. Alexander, former Governor of Maharashtra and Tamil Nadu, threw considerable light on the malaise that ails the judicial system. He feels that increasing the number of judges, promptness in filling up the vacancies and improving working facilities are all very important for the efficiency of the judicial system, but these alone cannot be an adequate solution to the pendency problem.

There are many measures which the judiciary can take without waiting for additional financial support from the government, but very little effective action has been taken on these by the judiciary and they continue to cause delays in the disposal of cases. They include laxity shown by the courts in matters like production of witnesses on the dates posted for their examination, granting requests for adjournments of cases without good reasons, inordinate delays in giving copies of documents, allowing lengthy arguments by the advocates, and the practice of judges themselves writing unnecessarily long judgements.

The liberal attitude of the courts in entertaining appeals from the lower courts has also contributed to the steady increase in the backlog. Those who have the financial resources go on appeal on the decisions of the lower courts to the next higher court, and finally to the Supreme Court, even when no interpretation of the law may be involved. When the accused are influential politicians or rich businessmen, the cases can go on endlessly, bringing down in this process the reputation of the judicial system itself. If appeals can be limited to a small number, say one or two, depending on the nature of the crime, it can help a great deal in reducing pendency.

The practice of some judges in delaying the delivery of judgements for several months, and in certain cases, even till they retire from service, has been another cause of delayed justice. Though the maximum time-limit of one month has been considered reasonable for the delivery of judgement, there is no mechanism for enforcement of any time-limit, and this malpractice on the part of some judges thus goes on unchecked. Again, no serious attempts are being made by the judiciary to make use of the provisions in the Constitution for engaging the services of retired judges both at the Supreme Court and at the High Courts for temporary periods for help in clearing the backlog of cases.

We have tried some of these measures but the result appears to be far from satisfactory. The entire judicial set-up will have to be overhauled and refurbished to expedite justice. It is quite often argued that the present pattern of working of the Supreme Court needs to be revised. The indiscriminate acceptance of appeals on trivial issues of facts by the Supreme Court quite often overloads itself. In fact, only important issues need be litigated in the Supreme Court.

More important, the present situation makes the Supreme Court inaccessible to a majority of people in the country. In its Second (2004), Sixth (2005) and Fifteenth (2006) Reports, the Parliamentary Standing Committee on Law and Justice has suggested that for speedy justice, Benches of the Supreme Court should be established in the Southern, Western and North-Eastern parts of the country. In its Twentieth (2007), Twenty-Sixth (2008) and Twenty-Eighth (2008) Reports, the Standing Committee suggested that a Supreme Court Bench should be established at least in Chennai on trial basis as this would immensely help the poor who cannot travel from their native places to New Delhi.

The Committee is not satisfied with the persistent opposition for establishing Benches of the Supreme Court in other parts of the country without giving any convincing reasons or justification thereof. It endorses its earlier view that the Supreme Court Benches in other parts of the country would be of immense help to the poor. It wanted the Union Ministry of Law and Justice to come forward with a necessary constitutional amendment to address this deadlock.

A feasible, workable and efficient system of judicial administration could be established if it were to be divided into four zones/regions, namely, Northern Zone Bench to be established in Delhi dealing with the litigation of Uttar Pradesh, Uttarakhand, Rajasthan, Punjab, Haryana, Madhya Pradesh, Chhattisgarh and Himachal Pradesh; Southern Bench in Chennai or Hyderabad to tackle litigation in Kerala, Tamil Nadu, Andhra Pradesh, Karnataka and the Union Territories of Puducherry and Lakshadweep; Eastern Zone Bench in Kolkata dealing with the litigation of West Bengal, Bihar, Orissa, Jharkhand, Assam and the Northeastern States including Sikkim and the Union Territory of Andaman and Nicobar and Dadra etc; and Western Zone Bench to be established in Mumbai dealing with the litigation in Maharashtra, Gujarat, Goa and the Union Territories of Dadra and Nagar Haveli, etc.

The said Benches shall act as Cassation Benches to deal with appeals from a High Court in the particular region. The apex court could, then, deal with constitutional issues and other cases of national importance on a day-to-day basis since the accumulated backlog of cases would go to the respective zones to which they pertain.

If a Constitution Bench is set up in New Delhi, the apex court would be relieved of the backlog of accumulated cases which are causing a burden and continuous strain on its resources. Since the accumulated cases pertaining to a particular region would be dealt with by the respective Zonal Bench, the apex court would be free to deal with only constitutional cases such as interpretation of the Constitution, matters of national importance such as references made by the Zonal Benches to larger Benches due to conflict of authority, cases where the interests of more than one State are involved such as inter-state disputes on land, electricity, water, etc., references for advisory opinion made under Article 143 of the Constitution, references made under Article 217, Presidential and Vice-Presidential elections, suits between two or more states, etc. This list is merely illustrative and not exhaustive.

All public interest litigations (PILs) from any part of India should be decided by the apex constitution court so that there are no contradictory orders issued and also to arrest the mushrooming of cases.

The advantage of setting up of Benches is that this can be made effective since it is a matter within the purview and jurisdiction of the Supreme Court under the Supreme Court Rules. If Article 130 of the Constitution is liberally interpreted, no constitutional amendment may be required for the purpose — action by the Chief Justice of India with the President’s approval may be enough.

Moreover, under Article 130, the Chief Justice as Personna Designate is not required to consult any other authority. Only the President’s approval is necessary. However, in case this liberal interpretation of Article 130 is not feasible, Parliament may enact legislation.

If the judge-strength of each Zonal Cassation Bench is confined to two judges, each zone will require only six judges implying that only 24 judges will be required for all the four zones to constitute Cassation Benches all over India. The other judges will be available in the apex court, which will have a Constitution Bench in New Delhi working on a regular basis.

The concept of having a Constitution Bench along with a Cassation Bench is nothing new. The democratic transition that occurred in many parts of the world in the late 20th century resulted in the proliferation of courts with constitutional adjudication and powers of cassation being exercised simultaneously. There is a blend of functions of judicial review usually by the constitutional court or constitutional tribunal and also the exercise of powers of cassation.

Italy, for instance, has a constitutional court with the sole power of constitutional review and a Supreme Court of Cassation with the power to review the ordinary courts’ decisions for consistency with the law. Egypt also maintains a Court of Cassation that monitors the uniformity of lower court fidelity to the law but only its Supreme Constitutional Court has the authority to declare laws unconstitutional and to determine and rule upon legislative intent. Portugal’s Constitutional Tribunal has the greatest jurisdiction exercising both concrete review of lower court decisions and abstract review of all laws and legal norms. Other countries which blend the functions of judicial review and cassation or the review of lower court decisions are Ireland, the US and Denmark.

Reducing backlog

A Constitution Bench should be set up in New Delhi to deal with constitutional and other allied issues. This would help reduce the backlog of cases in the Supreme Court.

Four Cassation Benches should be set up in the Northern Zone in New Delhi, Southern Zone in Chennai, Eastern Zone in Kolkata and Western Zone in Mumbai to deal with all appellate work arising out of the orders and judgements of the High Courts of the particular region.

Since the respective Zonal Benches will handle the accumulated cases pertaining to a particular region, the Supreme Court would be free to deal with only constitutional cases such as interpretation of the Constitution, references made by the Zonal Benches to larger Benches due to conflict of authority or cases such as inter-state disputes on land, electricity, water, etc., references for advisory opinion under Article 143 and so on.

If Article 130 of the Constitution cannot be stretched to make it possible to implement the recommendations, Parliament should enact a suitable law for this purpose.

The writer is a former Supreme Court Judge and Chairman, Law Commission of India


President’s nod to prosecute Justice Yadav in land scam

R Sedhuraman

Supreme Court of India


President Pratibha Patil has given a green signal to the CBI for prosecuting Uttarakhand High Court Justice Nirmal Yadav in connection with a land scam in Solan (Himachal Pradesh) during her tenure in the Punjab and Haryana High Court from November 2004 to February 2010. The land deal relates to a 11.1-bigha plot reportedly owned by Justice Yadav —who will retire on March 4 — her brother and relatives in Solan district. The Presidential sanction has been given on the recommendations of Chief Justice of India SH Kapadia and the Law Ministry, sources in the Rashtrapati Bhavan confirmed today. Earlier, Justice Yadav had faced charges of corruption following delivery of Rs 15 lakh in cash at the doorstep of another Judge of the Punjab and Haryana High Court on August 13, 2008. The suitcase containing the cash had been sent to Justice Nirmaljit Kaur, who had lodged a police complaint after receiving the money. It was then alleged that the cash was actually meant for Justice Yadav but was delivered to Justice Kaur becauseof some similarity in their names. The CBI had, however, closed this case for lack of evidence. She was subsequently transferred to Uttarakhand HC on February 11, 2010.

It is not clear whether the CBI would wait for Justice Yadav to demit office on Friday for filing the chargesheet against her. Nevertheless, Justice Yadav has perhaps become the first HC judge to face prosecution while being in office as the Presidential sanction has come before her retirement. The permission from the Rashtrapati Bhavan has come at a time when the judiciary’s image has taken a severe beating in the face of allegations against close relatives of former Chief Justice of India KG Balakrishnan, who is now Chairman of the National Human Rights Commission (NHRC), and the impeachment proceedings in Parliament for the removal of Sikkim High Chief Justice PD Dinakaran and Calcutta High Court Judge Soumitra Sen. Further, six retired judges of Uttar Pradesh have been chargesheeted by the CBI in the Ghaziabad PF scam. Initially, the CBI wanted to prosecute as many as 35 judges, retired or sitting, but the SC granted permission for proceeding against only six of them. Former Union Law Minister Shanti Bhushan has alleged that many of the former CJIs were corrupt.

CBI awaits sanction for prosecution in 105 cases
Saurabh Malik/TNS

The Central Bureau of Investigation is still awaiting prosecution sanction against public servants in nothing less than 105 cases registered nationwide under the provisions of the Prevention of Corruption Act. To get the sanction, the premier investigation agency has shot off as many as 290 requests. The accused include customs officers; block development officers; directors of companies; and even IPS and income tax officers. Available information suggests even as the investigating agency got a go-ahead in Justice Nirmal Yadav’s case, at least a dozen requests from Punjab and Chandigarh are pending for sanction of prosecution as on January 31. The requests for prosecution sanction have been made for block development officers Azaib Singh, Baljeet Singh, Jagjeet Singh, Puran Chandra, and Rakesh Pal. It has also been requested for former BDO Piyush Chandra. Besides this, sanction requests are pending for then deputy directors J.P. Singhla and Pradeep Singh Kaleka. All the nine requests have been made in a case registered on June 26, 2003, and the reports were sent to Punjab chief secretary on March 3, 2009. Another request has been made in the case of BSNL general manager Sharwan Kumar Aggarwal. His place of posting has been mentioned as Ludhiana and the case was registered on May 14, 2009. The report was sent on April 30 last.

The department of defence officials include B. Venu, DD Mittal, Devinder Singh Dhanao, Devki Nandan, and Raj Kumar. The case was registered on March 31 last and request was sent on January 20.The sanctioning authority in their case is Deputy Secretary, Ministry of Defence. The information on pending sanctions for prosecution was only recently furnished by the Centre to the Supreme Court.

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EUTHANASIA / Mercy killing can be ruse to grab property: SC

Legality of Euthanasia throughout the world
Image via Wikipedia


NEW DELHI: After mulling that euthanasia could be a ruse for grabbing properties, the Supreme Court today reserved its verdict on a mercy killing plea of a Mumbai nurse living a vegetative existence for the last 37 years after being sexually assaulted by a hospital sweeper.

A bench of justices Markandey Katju and Gyan Sudha Mishra reserved the verdict after hearing detailed arguments of Attorney General G E Vahanvati and several senior counsel opposing the plea for mercy killing made by Pinki Virani who described herself as the “next friend” of the victim.The day-long proceedings was preceded by an audio-visual presentation of the present medical status of the victim Aruna Ramachandra Shanbaug in the court hall.In the 15-minute presentation, Aruna was found responding to her surroundings and occasionaly taking food with the help of a spoon.

However, she was not in a position to speak or clearly identify the people around her.But remarkably there was no bedsores on her, indicating the dedication with which the staff of the King Edward Memorial Hospital in Mumbai were taking care of her for the past 37 years.

During the arguments, most of the counsel, including amicus curiae T R Andhiarujina, felt that Indian laws did not permit mercy killing.The Attorney General also told the bench that suggestions like withdrawal of food for the victim to allow her to die “will be a cruel, inhuman and intolerant approach unknown and contrary to Indian laws.”Agreeing with the arguments, the apex court said “we would like to minimise the possibility of misuse. Because if you leave it to a surrogate doctor or relative, then there is the danger of them being in hand in glove.”Let us take a hypothesis. Suppose a man meets with an accident and goes into coma, can his be allowed to give the consent for withdrawing the life support system? Because there will be cases where people will manage to get their relatives terminally ill and resort to euthanasia to grab property,” the apex court said.

Responding to questions, the Attorney General said Parliament had also rejected the recommendations of the Law Commission which in its earlier report suggested introduction of euthanasia to deal with terminally ill patients.

Senior counsel T R Andhiarujina acting as amicus curiae and Pallabh Sisodia, appearing for the staff of the KEM hospital, also opposed the mercy killing of Aruna.Both the counsel pointed out that the staff of the hospital had been taking care of Aruna in a dedicated manner for 37 years and were determined to continue with their care and affection for the victim.

In such circumstances, they said it would not be permissible for the court to agree to Virani’s suggestion.”This is a case of passive euthanasia and not active. The hospital staff is really her best friend. Although we respect Pinki Virani, it is the hospital staff who has fed her, washed her even cut her nails. They feel that she is one of us and we greatly respect the KEM hospital. What they have done is marvellous,” the bench said.It said “we are amazed that no a single bedsore has occurred to her. That shows the the care taken by the hospital staff, which is really marvellous.”