SC to frame guidelines for reporting sub-judice matters; we need many more guidelines

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

In a constitutional democracy based on rule of law, citizens operate under a golden rule: “The right to swing my fist ends where the other man’s nose begins”. This articulation by American jurist Oliver Wendell Holmes has conveyed to every one, including newspaper reporters, that their right to freedom of expression is not higher than the fundamental rights of others.

If a baseless swing of a reporter’s pen scratches another’s nose, then he faces law like ordinary citizens. But, some grave and incessant misreporting in media in the last few months has forced the Supreme Court to constitute a five-Judge constitution bench to deliberate on framing reporting guidelines on sub-judice matters.

The exercise is welcome. The guidelines will, probably, contain the golden principles telling reporters what to report and what not to, and importantly, how to write a news report. In the Indian Express judgement [1985 (1) SCC 641], the apex court had said the right to freedom of expression enjoyed by reporters could not be subjected to additional restriction other than those provided under Article 19(2) of the Constitution.

The SC had also said: “Freedom of press is the heart of social and political intercourse…. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which could not be palatable to the government and other authorities. With a view to checking malpractices which interfere with free flow of information, democratic constitutions all over the world have made provisions guaranteeing the freedom of speech and expression laying down limits of interference with it.”

“It is the primary duty of all national courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it, contrary to the constitutional mandate,” it had said.

Even if one takes that framing of guidelines for media on reporting sub-judice matters is a pressing issue, would it be more important than about 30% of the country’s population going hungry every day even after 62 years of India becoming a republic? When a vast humanity is living below poverty line and yet the government jokes that those who spend Rs 29 a day are not poor, doesn’t it ring an alarm bell about something being seriously wrong with governance? How about a guideline to make the right to life of one-third of Indians a little more meaningful? Would the SC attempt it?

The poor have been waiting for justice for years with no signs of better times in the immediate future. Another six crores (it would be much more but we take a very conservative estimate by assuming that only two persons are involved in each of the nearly 3 crore cases pending) are waiting for years in a labyrinthine queue for justice. Should the excruciating delays result in denial of justice? Would a guideline to limit case life to 2-3 years not pressing enough?

Talking about maladies faced by the country, the Vohra committee report in the 1990s pinned the blame on the unholy nexus among police-criminal-bureaucrat-mafia-politician. The SC in the Vineet Narain judgement dealt with this issue but did not issue a guideline to break the nexus.

It had also dealt with hawala scam in the 1990s and black money only two years ago. According to a conservative estimate by the National Institute of Public Policy, black money in our economy is around Rs 37,000 crore, which is a little more than one-fifth of the gross domestic product (GDP). It is an admitted position that on a conservative estimate the black money in circulation in India would match the quantum of white money. Should the SC not put forth guidelines to unearth the black money? A two-judge bench of the SC did make an attempt. But, the order is in limbo as a fresh bench hearing the Centre’s review petition gave a split verdict.

To give a specific example, the Rs 14,000-crore Satyam scam happened because of alleged deliberate auditing manipulations by chartered accountants of a reputed firm. With the plummeting share prices, dreams of millions crashed. Should the Supreme Court not frame guidelines for chartered accountants on how to audit, at least when it involves big listed companies?

For framing of guidelines, we must not forget the riots and its virulent kind, the communal riots. The apex court has dealt with the two most notorious ones in the history of modern India – the 1984 anti-Sikh riots and the 2002 post-Godhra riots. It did a great job in the 2002 case. It brought the perpetrators to book by breaking the shield provided to them by those in power. Should the SC have not framed guidelines for both police and governments on how to deal with communal riots? A guideline for rehabilitation of victims and prosecution of culprits would also not be out of place.

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

Supreme Court of India

DHANANJAY MAHAPATRA IN THE TIMES 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.

http://timesofindia.indiatimes.com/india/SC-judges-Most-sign-off-with-grace-others-remain-Lordships/articleshow/10720362.cms

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”.

http://www.thehindu.com/news/national/article2531547.ece

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

INDIAN EXPRESS

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.”

http://www.indianexpress.com/news/if-you-lock-up-businessmen-will-investment-come-law-minister/857840/0

 

‘If judges show anger unnecessarily, people will feel we are just like ordinary people. We have to show our stature is above that.’

JUSTICE PN BHAGWATI

JUSTICE PN BHAGWATI

SHEKHAR GUPTA IN INDIAN EXPRESS

In this Walk the Talk on NDTV 24×7 with The Indian Express Editor-in-Chief Shekhar Gupta, former Chief Justice of India P N Bhagwati expresses regret over his habeas corpus judgment that upheld the right of the Indira Gandhi government to suspend all fundamental rights during the Emergency and explains why he wrote a letter of praise to Mrs Gandhi

My guest this week is one of Indian judiciary’s most important shining lights, Justice P N Bhagwati. It tells you about the creative energy in his mind that even now, when he is about to turn 90 very soon, he is working on two books, including his memoir. The judiciary is in news these days. The government complains about the Supreme Court’s obiter dicta, we also editorially complain about it. It seems somehow that the tension between the executive and the judiciary has become too much.

Well, that can’t be helped. Even in normal times there is bound to be some tension between the judiciary and the executive, particularly because the judiciary is entrusted with the task of enforcing the Constitution and it has got to enforce the fundamental rights of citizens and these fundamental rights sometimes come into conflict with what the government desires to do. But that is a conflict that can be resolved by the judiciary and whatever the judiciary decides as a matter of law and the Constitution should be accepted by the executive. Then there will be no tension.

But do you think that sometimes the executive doesn’t accept it?

Yes, in the last few years there have been occasions when the executive has not accepted decisions of the judiciary.

Sir, two recent judgments. I don’t know if you have followed them. The Salwa Judum judgment and the black money judgment in which the government felt, and many of us also felt, that the bench had exceeded the constitutional limits. In both cases there are appeals now for review.

Appeals are there, the Supreme Court will have to dispose of those appeals according to law. But very often, judges forget, lawyers also forget, that law is not an abstraction. Law is something which has been moulded and developed by the courts, by the judges. Law is ultimately what the judges make it, and therefore the judges must have a social perspective. They must be anxious to see that human rights become meaningful for the large masses of people in the country. They should not feel worried about the executive or I would say even about what people say. Their function should only be to enforce the basic human rights that are embodied in our Constitution.

In your own career as a judge, did you feel pressure from the executive and how did you deal with it?

No, I never felt any pressure from the executive. I delivered several judgments, many of them against the government, but not once did I feel that the executive felt offended. It’s possible that they didn’t like my judgments but they never showed any anger.

Any vindictiveness?

No, never.

You were a judge when the executive was much powerful than it is now. Mrs Gandhi’s executive was very powerful.

But the judiciary of my time was equally powerful. Let me tell you that there was never a single occasion when the judiciary and my leadership felt thwarted by the executive or by Mrs Gandhi.

But look at the praise that you wrote for Mrs Gandhi. Most judges today would be embarrassed to write such a flowery prose about a prime minister.

I wrote about her because she fully deserved what I said. She had given this country a united India. Let us not forget the fact.

But somebody who rose to become Chief Justice of India, was it correct for you to write praise for her? It didn’t compromise you?

Publicly, no. But the CJI writing to the PM or the PM writing to the CJI privately was not wrong.

But today it would be out in the RTI and published.

It should not be published. It does a lot of harm.

So are you then saying that these correspondences should not be exposed to RTI?

It should not have been exposed to RTI. Basically what I wrote and what she wrote to me, I don’t remember now, was in the strictest confidence.

But does it pass the test of propriety for the Chief Justice of India to write praise in such flowery prose to the PM and expect it to be kept confidential?

No. I entirely agree with you it was wrong on my part.

You agree with that. But you got carried away? Why did you write that?

I was carried away by the result that was achieved.

…in the election?

Because I always believed that the welfare of the people was the ultimate goal, both of the judiciary and the executive, and anything which tends to further that goal or improve the condition of the people is something that deserves praise.

You did not write in anticipation of any benefits or rewards?

In my life, I have never anticipated anything. But I always believed that my duty is to serve my people. I was in the freedom struggle. I went to jail in 1942. I have always fought for the rights of the people and you look at my judgments.

You started the PILs. You used the postcard and treated it as PIL. Tell us the story of the postcard.

When I became a judge in the Supreme Court, I went round the country and when I visited various villages and towns, people gathered around me because they were interested in seeing a Supreme Court judge. I used to talk to them and I realised for the first time how important a judge’s function was. When people came, many of them were in tatters, many of them had sunken bellies. I realised that my justice was not reaching them. My justice, which I was administering, was meant for the few who could afford lawyers, litigation, court fee. That brought a change in my heart, my attitude. And then I started getting postcards, I started treating them as writ petitions. And ultimately I developed the whole theory of public interest litigations.

That’s your great positive contribution, but let me take you back to your regret and to the letter to Mrs Gandhi. When did you first feel that it was wrong to have written it?

Soon thereafter, I would say. I realised that I should not have treated that letter the way I did. Perhaps I exceeded my jurisdiction.

In the praise that you wrote for her?

No, not that the praise was ill informed but as a judge, as the chief justice, I shouldn’t have written it.

If you had written this, then you had wished it had not become public?

Definitely. It was not meant to be public.

What harm does it do if it becomes public, as it became public?

Well, perhaps to an extent people might feel that I’m pro-government. But very soon the impression that I am pro-government was dispelled.

But apart from that letter to Mrs Gandhi, one thing that rankles is your habeas corpus judgment, the ADM Jabalpur case, when you ruled with the majority of the judges to say the government could take away the right to life of a citizen.

Still looking back, legally we were right, the majority was right. But if I were sitting alone and I would have an opportunity to say it again, I would have taken a different view though that different view would not have been consistent with the words of the Constitution.

As you said earlier, law is not an abstraction. And law is what the judges make it out to be. Did you, as a judge, fail to make the right interpretation, or the right use of that law?

I’ve always admitted that. As a bold judge, as an imaginative judge, as a judge working for the people, I should not have taken that view.

Many of your critics say you cannot just express regret because that judgment did or could have done damage to the liberty of Indian citizens.

But I don’t see how could it have done damage because I think the amendment was made and in fact two years later or so, a similar case came before me and I took a different view. I said in the judgment that the view I had taken was wrong and I changed my view.

One judge disagreed and that was Justice H R Khanna. At that point did you think he was wrong?

At that point, perhaps I must have thought so.

Did you have any conversation with him on this?

No, he didn’t discuss with me. Soon after, he resigned because he was superseded.

That is the whole point. It becomes obvious to join the dots. All the judges who favoured the judgment, the judgment that Mrs Gandhi wanted, rose to become chief justices. The only one who did not was Justice Khanna.

But I became chief justice much, much later.

But the fact is that everyone on that bench, except Justice Khanna, rose to be CJI.

That’s because of seniority. Purely because of seniority. And Khanna should not have been superseded.

But Mrs Gandhi superseded him.

It was wrong on the part of Mrs Gandhi not to appoint Justice Khanna as CJI according to seniority.

What would you have told Justice Khanna if you had met him now?

I would have said it was very brave of you to give the dissenting judgment.

The ’70s saw the habeas corpus judgment and then you had the Kesavananda Bharati judgment that protected our freedom forever. It was the most important five years, I would say, in the evolution of India’s constitutional history. Do you think the period we are seeing now is a period comparable to that? There is the Jan Lokpal movement, there is a demand for a Judicial Accountability Bill. You were a party to setting up the collegium system and now the executive and Parliament are both going after it saying the system is not right. Judges are giving judgments that are setting up monitoring committees on everything.

If you are talking about appointment of judges, I have publicly said that appointment of judges should not be left entirely in the hands of the executive, nor should be left entirely in the hands of the CJI.

…which is the case now.

Now it is a collegium.

Now only the judiciary does it.

Collegium is alright but collegium should be run with some principles to guide it. The old system under which I worked was much better. The CJI made a recommendation after consulting some of the senior judges. Then the government, the law minister would discuss the matter with the CJI, and then we would make the appointment. Look at the earlier appointments, most of them were very good.

But right now, the problem is that there are so many vacancies in the courts. Allahabad High Court has 100 vacancies.

No vacancy in the High Court or the Supreme Court should be allowed to remain unfilled for a long time. Judges have assumed to themselves the power to make appointments, which is a wrong thing. In my opinion, the Constitution has been wrongly interpreted.

So it can’t just remain a fully in-house job?

No, it can’t. If you make the first five judges decide, then sometimes it is possible—I don’t want to make any allegations—that there may be give-and-take among the judges. You have my man, I will have your man. Therefore, I have always maintained and publicly said that appointments should be in the hands of CJI and the law minister.

Do you think the judiciary is under a bit of siege? One, it has resisted reform, it took such a public outcry for them to even declare their assets, RTI and now appointments. Then they are delving into areas of governance, setting up special investigating teams and monitoring them, asking the director of RAW to report to them on black money.

One feels sad that judiciary should come to this pass.

Why? If you could elaborate.

During my time, the judiciary enjoyed the highest respect.

Do you think that respect is threatened right now?

That respect has slightly gone down. There are a few judges who still enjoy that respect, I am told. But I can’t say about all judges today.

Why the judiciary is under pressure is because the Lokpal people are saying bring the judges under Lokpal, government is saying there should be a Judicial Accountability Bill.

I’m against bringing judges under the Lokpal because public pressure will mount unnecessarily. It will affect the independence of the judges. But judges should have their own separate body.

With some involvement of the executive or no involvement of the executive?

No involvement of the executive. Why don’t we have a retired chief justice of India, a sitting chief justice, one or two senior sitting judges, attorney general and one leading member of the Bar?

Did you ever discuss this with your very famous contemporary Shanti Bhushan?

I’ve met him occasionally, but have not discussed these issues with him. What is his view?

He wants the judiciary to be brought under the Lokpal.

No, it is dangerous to have the judiciary under the Lokpal.

Why dangerous?

Because the Lokpal ultimately is a person who is moved by public sentiment. I don’t want that. Let there be a separate Lokpal, if you like, for the judiciary. That is the best thing. I have already made this recommendation of mine in writing.

What is your advice to today’s judges?

Judges should retain their peace of mind because after all they have got to present an image that people will respect. If we show anger unnecessarily then people will feel that we are just like ordinary people. We have to show our stature is above that.

So do you object to obiter dicta?

No, but they should be well placed. Obiter dicta must be called for.

Do you remember any moment from the times of the bench when you used obiter dicta and well?

I must have sometimes, but I can’t recall now after this length of time.

I think one wonderful thing you have done is to keep yourself busy. Your thoughts are always valuable and now you are putting them down in a book. We will all wait for your books to come out.

Source:    INDIAN EXPRESS http://www.indianexpress.com/news/if-judges-show-anger-unnecessarily-people-will-feel-we-are-just-like-ordinary-people.-we-have-to-show-our-stature-is-above-that./858177/0

35 yrs later, a former Chief Justice of India pleads guilty

Hans Raj Khanna

Image via Wikipedia

INDIAN EXPRESS

Over 35 years after he signed off — with the majority on a five-judge bench of the Supreme Court — to rule that even the right to life could be abrogated, former Chief Justice of India P N Bhagwati today said he was sorry for that ruling.

“I was wrong. The majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would agree with what Justice (H R) Khanna did. I am sorry (for the judgment),” Bhagwati told The Indian Express today.

In the 1976 ADM Jabalpur vs Shivkant Shukla case, popularly known as the habeas corpus case, Justices Bhagwati, A N Ray, Y V Chandrachud and M H Beg agreed with the then Indira Gandhi government that even the right to life stood abrogated during the Emergency. The verdict constitutes one of the darkest chapters in the history of the court as it struck at the very heart of fundamental rights.

“I don’t know why I yielded to my colleagues,” said Bhagwati. “Initially, I was not in favour of the majority view. But ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that time, a young judge…I was handling this type of litigation for the first time. But it was an act of weakness on my part.”

Justice H R Khanna, incidentally, was the only judge on that bench who dissented with the majority view arguing that the Constitution didn’t permit the Right to Life and Liberty to be subject to any executive decree. This cost him the job of CJI.

He claimed that his later judgments dealing with fundamental rights did uphold the Constitution. Was it the lure of high office? “I can’t say this. It would not be right for me to say this,” he said.

Incidentally, during the Emergency, Bhagwati praised the Indira government but after the Janata Government came, he was critical of her. After Indira’s return, he sent her a gushing letter: “…I am sure that with your iron will and firm determination, uncanny insight and dynamic vision, great administrative capacity and vast experience, overwhelming love and affection of the people and above all, a heart which is identified with the misery of the poor and the weak, you will be able to steer the ship of the nation safely to its cherished goal.”

http://www.indianexpress.com/news/35-yrs-later-a-former-chief-justice-of-india-pleads-guilty/847392/0

 

Justices delayed: SC down, Judge vacancies pile up

INDIAN EXPRESS

At a time when the collegium system of appointment of Judges is under attack, the Supreme Court — with over 50,000 cases pending before it — will soon be working at less than 75 per cent of its total sanctioned strength of Judges. By October 15, seven Judges of the apex court will retire, the largest number of retirements in a single year since Independence.

And that’s just the position in the country’s highest court. The biggest court in India, Allahabad High Court, has been functioning with just 62 of its total 160 approved strength of Judges, as reported by The Indian Express (nine more will join tomorrow). The Gujarat HC, with a sanctioned strength of 42, has 18 vacancies; while Punjab and Haryana HC has just 43 Judges, against a sanctioned strength of 68.

In all, data compiled by the government shows, of the total 895 posts of Judges sanctioned in the 21 HCs in the country, only 610 are currently filled — a gap of 285. This year, in fact, saw the highest number of posts falling vacant in HCs in a calendar year since 1990. However, only 41 new appointments have been made so far in 2011.

The subordinate judiciary is not much better placed. Data collected by the Supreme Court says that as of December 31, 2010, out of the sanctioned strength of 17,151 posts in states and Union Territories, 3,170 were vacant, with Bihar (389 vacancies), Gujarat (361), Uttar Pradesh (294) and Maharashtra (234) leading the list.

Even though the Supreme Court collegium headed by Chief Justice of India S H Kapadia has recommended three names — two HC Chief Justices and one Judge of Bombay HC — even if they are able to take oath by October 15, the number of vacancies in the apex court will still be six out of 31.

“Even though at every meeting of chief ministers and Chief Justices, the judiciary is requested to recommended names for elevation to the Bench at least three months before an anticipated vacancy, it is never done. Today, except for the Himachal Pradesh High Court, there is no court that is working at full strength. Though the sanctioned strength of the Jammu and Kashmir HC is 14, the court is functioning with just seven judges. In most cases, the HC collegium has not met even once in the last one year to recommend names,” said a senior government functionary. Sikkim, the country’s smallest court with a sanctioned strength of three judges, has just one judge, who was designated Acting Chief Justice after the resignation of Justice P D Dinakaran last month.

The other HCs with a significant number of vacancies are Andhra Pradesh (16), Bombay (14), Calcutta (14), Rajasthan (13) and Chhattisgarh (12). The highest number of appointments made in a single year was 110 in 2006 when Justice Y K Sabharwal was the CJI and H R Bhardwaj the Union law minister.

To check motivated PILs, Govt works on law

INDIAN EXPRESS

After he took over as the 38th Chief Justice of India last year, Justice SH Kapadia said huge costs would be imposed on litigants filing frivolous public interest litigation (PIL) petitions. His statement was widely welcomed because instances of unscrupulous elements filing PILs to advance personal or pecuniary interest had witnessed an upward trend in recent years. And last year too, a bench of the apex court raised concern over the misuse of PILs. The same bench had also issued a set of guidelines, which it wanted all courts in the country to observe while entertaining PILs.

In a speech in September 2008, Prime Minister Manmohan Singh also expressed concern over the misuse of the PIL: “Many would argue that like in so many things in public life, in PILs too we may have gone too far. Perhaps a corrective was required and we have had some balance restored in recent times.”

Now, in what could result in the most effective tool against frivolous PILs, the Union Ministry of Law and Justice is giving final touches to a law to regulate the PIL. And helping the Ministry in its endeavour is none other than former Chief Justice of India P N Bhagwati, acknowledged as somebody who along with Justice V R Krishna Iyer pioneered the concept of PIL in the country.

“For last many years, there has been demand that there should be some checks and balances so as to ensure that only genuine PILs, which are filed with the public good in mind, are allowed while those aimed at either harassing some individual or corporate or protecting the interests of an individual or corporate should be checked at the very initial stage. Even the Supreme Court was constrained to issue guidelines to regulate the PILs. We have decided to try and take it forward and bring a legislation laying down guidelines for PILs,” Union Law Minister M Veerappa Moily said.

Sources in the Law Ministry told The Indian Express that Moily has already held meetings with Justice Bhagwati and some legal experts to seek their suggestions. Among other things, the Ministry is proposing to effectively discourage and curb the PILs filed for extraneous considerations. It also wants to make it an offence for anybody to file a PIL for extraneous and ulterior motives and empower the courts to discourage such PILs by imposing exemplary costs.

In its judgment, where it talked of the need to regulate the PIL, the SC bench had said that instead of “every individual judge devising his own procedure for dealing with the PIL, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives”.

Aware that there could be some who might question the need for such a law, Moily said he was ready to bring around all such persons by explaining to them the need to have such a law. “We are not making it illegal to file a PIL. But we only want to check frivolous and motivated PILs,” he said.