The costs of justice

BIBEK DEBROY IN INDIAN EXPRESS

Paragraph 111 of this year’s Budget speech, which talked about the National Mission for Delivery of Justice and Legal Reforms, was overshadowed by other elements. Actually, there wasn’t much on this important component in the speech, beyond the statement that the government had approved the setting up of such a mission and that it would reduce court backlogs from an average of 15 years today to three years by 2012.

We were also told the 13th Finance Commission had approved Rs 5,000 crore for states to improve justice delivery. Let’s take the finance commission (grants in aid) first, noting that though the 11th Finance Commission did fund fast track courts, it is the Planning Commission’s responsibility to ensure fund flows for legal reforms. The timeframe for the 13th Finance Commission’s recommendations is 2010-2015 and we have an immediate disconnect between 2015 and 2012 mentioned in the Budget speech. How is this Rs 5,000 crore broken up?

First, Rs 2,500 crore will be provided to 14,825 morning/evening/special courts and shift systems and they will dispose of 112.5 million cases over a five-year period. That’s impressive and yes, there are successful experiments. The 13th Finance Commision notes morning courts in Andhra Pradesh and evening courts in Gujarat.

But will there be a general success template? Will we get special judicial or metropolitan magistrates for these courts? The finance commision suggests staffing by regular judiciary on payment of additional compensation. That’s unlikely to work. So, we effectively bank on retired judicial officers. More importantly, there is no guarantee those outcome targets will be met. The only check that exists is utilisation certificates and statements of expenditure under general financial rules.

Let us take 1,734 fast track courts funded by the11th Finance Commission. Not all money allotted was released. Not all money released was utilised. Why? Because state governments were lackadaisical about utilisation certificates. The prime minister told us this in April 2007 in a speech to the chief ministers and chief justices of high courts. Between 2000 and 2005, fast track courts disposed off 8,00,000 cases. When the 11th Finance Commission gave the money, they were expected to dispose off 5,00,000 cases every year. Second, 13th Finance Commission has given Rs 600 crore for alternative dispute resolution (ADR) centres (one in each district) and Rs 150 crore for training on ADR to judicial officers and advocates. Third, there are Rs 100 crore for the Lok Adalat scheme. That’s not a great deal of money. But we should note that the success of lok adalats hasn’t been phenomenal. The 13th Finance Commission expects 0.75 million cases to be disposed of between 2010 and 2015 because of this incremental initiative. Existing lok adalats dispose of roughly a million cases per year. Fourth, Rs 200 crore have been provided for legal aid. Fifth, there are Rs 250 crore for training of judicial officers. Sixth, there are Rs 300 crore for State Judicial Academies. Seventh, there are Rs 150 crore for training public prosecutors. Eighth, there are Rs 300 crore for court managers, feeding into the proposed National Arrears Grid. Ninth, there are Rs 450 crore for heritage court buildings. Finally, there is a little bit more, conditional on states formulating litigation policies.

A finance commission isn’t the primary channel for addressing justice delivery issues. But, as the above listing indicates, on this, the 13th Finance Commission has used a shotgun, in the hope something somewhere sticks. The implicit suggestion in the Budget speech that the 13th Finance Commission will help reduce average duration of cases to three years by 2012 is unwarranted.

Perhaps the other element in the speech, the national mission, will ensure this. It is laudable that under the present law minister, “timely justice for all” is now on the reform agenda and this mission is described as a blueprint for judicial reforms. In specific terms, elements in this blueprint are the following:

(1) Set up a special purpose vehicle (SPV) under Societies Registration Act to implement the action plan;

(2) Create a national arrears grid;

3)Formulate a national litigation policy at the Centre and in the states, to curb government litigation;

(4)Establish an all-India judicial service;

(5) Increase sanctioned strength of judges by 25 per cent;

(6) Appoint ad hoc judges on contractual basis;

(7) Create a national pool of judicial officers from retired judges;

(8) Speed up appointments of judges;

(9)Raise the retirement age of high court judges;

(10) Fast track specific cases;

(11)Get the Law Commission to examine changes required in statutory law, especially criminal law ;

(12) Improve case management;

(13) Use ADR for civil cases and plea bargaining for criminal cases;

(14) Use ICT, video conferencing and e-courts;

(15) Implement national minimum court performance standards; disposal should increase from 60 per cent of case load to 95-100 per cent in three years, not more than 5 per cent cases should be more than five years old.

Beyond the SPV, national arrears grid, national litigation policy and the idea of periodic reports to the PM (and public), none of these ideas are new. Nor can they be objected to. Within court structure proper (ignoring quasi-judicial forums), we now have a pendency of 29.1 million — 47,000 in the Supreme Court, 3.7 million in the high courts and 25.4 million in the lower courts. An appalling 5,30,000 cases in our high courts are more than 10 years old and we no longer seem to have age-specific data for the lower courts. Two-thirds of this pendency are criminal cases (concentrated in the lower courts.) It goes without saying that this isn’t tenable. Since criminal law falls under the home ministry and reforms in criminal justice are also contingent on police reforms, is the system likely to become credible by 2012?

Consider also the costs of improving legal infrastructure. There are different ways of working out the required number of courts/judges, judge-case ratio and judge-population ratio. Whichever way this is worked out, we are talking about 20,000 more courts and 40,000-60,000 more judges. This requires fixed costs of at least Rs 80,000 crore and annual running costs of at least Rs 1,60,000 crore. Finance commissions don’t dish out that kind of money. The Planning Commission does, but that is (since 1993) through a centrally-sponsored scheme, where 50 per cent of matching grant is provided by the states. While increasing courts/judges is not the only solution, it is an integral component.

Indeed, if the legal system becomes more credible, more people may resort to courts. The simple point is: reducing pendency has large costs and because of fiscal constraints, both the Centre and the states are unwilling. Therefore, we are tinkering with what seem to be low-cost solutions (lok adalats, people’s courts, women’s courts, family courts, ADR, mobile courts, shift systems, fast track courts, panchayats, gram nyalayas, ICT). This makes the 2012 target even less credible.

The writer is a Delhi-based economist

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Some tasks before the Indian nation

V.R. Krishna Iyer  IN THE HINDU

A universally accessible democratic system that can deliver justice in an inexpensive manner and can ensure early finality is one of the essential prerequisites today for India.

The progress or otherwise of a people will depend on their level of respect for human rights, and the willingness to share and care for the weaker sections of society that each member of the community has, be he high or humble. Today, the Indian government is democratic: it is without doubt a government by the people, of the people, for the people. But, is it really a government for the people?

The framers of the Indian Constitution thought that socialism is the only system that can guarantee equality among the people. But when there is a plurality of religions in rivalry, each god competes with the other and a certain divine conflict ensues. This divisive tendency is unhealthy, because according to human understanding there is only one god and one humanity. And everyone’s well-being has to be ensured without some being high and some being low, some being in luxury and others in lowly circumstances.

In this spirit the Constitution has made the Republic a socialist and secular one. Every member of humanity is equal and god is one and above all creations. This is the quintessence of Sanatana Dharma — the perennial dharma of a civilised society. Judged by this standard, there is inequality writ large in India between region and region, man and man, man and woman, the wealthy and the poor. This syndrome has to change if moral majesty, and equal divinity and compassion for all living creatures, are to be realised.

Fortunately this is the Indian tradition and the culture of the Constitution to which Mahatma Gandhi was committed. Economic equality is social justice, if political power is not discriminatingly cornered by some and denied to some others. When India won its freedom and made its tryst with destiny, the responsibility devolved on the nation to ensure that every tear shall be wiped out, and that all suffering will be eliminated to the extent the human pharmacopoeia can. This was laid down in the Preamble as everyone’s set of rights, critically as the right to justice, social, economic and political.

As a practical aspect of this materialistic principle, every person was given an equal right to vote through periodic elections. India has had elections at regular intervals. The little man or woman with a little seal making a little mark, or pressing a small button on a compact machine in a tiny enclosure in private — no amount of criticism or rhetoric can diminish the importance of this great democratic operation. The Father of the Nation, and the values of the Constitution, stand by this principle.

But what is the reality today? The Constitution is nearly dead. Its egalitarian values have been all but violated. The rich are rising to richer heights while the poor are going downhill to even more desperate depths. State power is in the hands of multinational corporations and there is much distortion of distributive wealth. The rich are very often able to control the electorate by bribery communalism and abuse of power by an executive that is apathetic to the tears of the many but is willing to purchase their ballots by means of money and extravagant publicity.

Even the courts of law where justice is dispensed are more amenable to the richer classes than to others. Being poor and under-privileged, the masses often give away their votes for cash. They have no hope in the system and can only either surrender to it or overthrow it by means of violence or extremism.

It would sometimes appear that there is no hope in the future save terrorism, and turning democracy into a travesty. One might wonder why god is so unequal. Poor god has indeed become a commodity to be purchased by the rich. The bishop may live the high life while the parishioner begs before the church. This was the fate of even Jesus who pleaded for change like a revolutionary.

In Hinduism and Islam there is the same sort of division of the haves and the have-nots. Indeed, piety and devotion make people succumb to the existing unjust order and accept the ruling system. Exploitation is concealed and becomes virtually the rule of law, since the law itself is formulated by the creamy layer of humanity. As for justice between the wealthy and “illthy,” it is a right too costly for the poor: the bureaucracy is often beyond the reach for them.

Aiding this sinister system we have mosques and churches and temples that are effectively instruments to silence the defenders. There is a certain hallowed reverence for judges, who like priests wear robes and costumes. Persons who are able to see through this mystic methodology of the Bench and the Bar have an authority exercised in mystic diction, going to the root of unhappiness among humanity. We have to change the system of the courts, and the superstition that their verdicts are final and infallible. In reality they are as much like ordinary mortals with their own flaws, prejudices, biases, self-interest and influences. They are not superhuman. But a cult of divinity, and the commanding dress and address, make them appear as mini-divinities. This goes with their social philosophy that is pachydermic to the poor.

The judiciary is regulated by a complicated system which only the Bar and the Bench can decipher. They are governed by Victorian values and jurisprudence, of which the spokesmen are Denning and Macaulay through the great codes of civil and criminal procedure, prison law and the system of the police force borrowed from Britain.

If you want to change the system in favour of the majority which is below the lachrymal line, we have to have a few things as a priority from Macaulay to Mahatma. The Code of Civil Procedure and the Criminal Procedure Code must be repealed without any mercy or tears. Fresh codes that are dialectic and dynamic, accountable and accessible to the people must be enacted. This cannot be done by legislators who are amenable to the power of wealth but radicals who are eligible to vote in a new equalitarian methodology.

India needs a National Commission with its dominant element composed of the Scheduled Castes and the Scheduled Tribes and the weaker sections, versus the rich and the mighty. Will this ever happen? Even V.I. Lenin’s Soviet Union has undergone mighty change. The new world order is the despair of the masses. The challenge before India is how non-violently the transformation that is contemplated in the Preamble to the Constitution can be worked out.

Today the robed brethren of the judiciary or the religions are untouchable and unapproachable. Justice, justices and justicing need to be radicalised. The justice system should be such that the common man, the worker, the peasants and the social activist will be able to argue before them. Justices should uphold a socialist secular democratic order and strike down every law that strikes a different note. The language of the law should be made simple, lucid and understandable enough for the common man.

A universally accessible democratic system that can deliver justice in an inexpensive manner and can ensure early finality is the desideratum. The Bench and the Bar shall be the representatives of the Indian people. The Scheduled Castes and the Scheduled Tribes, the have-nots and the humble, belong to humanity too. The principle of injustice crucified an innocent Christ and shot the Mahatma whose principle was truth, non-violence and settlement of disputes on fair terms. That half-naked fakir representing half-starved Indian humans gave us golden principles of jurisprudence that demand a re-orientation and transformation of the foundations of the social philosophy of every human sector and every mercenary profession which today thrive on money-making and jettison morals and humanism.

So, even our religions must be subject to a revolutionary change in faith and radical fraternity and comradeship. This combination of materialism and spirituality must be the new message and Preamble of 21st century India. The task of the new statesman emerging from the new generation must be to implement peace and friendship among all nations, making Article 51 of the Constitution a national essential of international relationship.

This was indeed the first principle and the last plea of the Mahatma, who spoke with burning faith that god is truth, nay more. Truths that are scientifically established and spiritually realised constitute god. We must have the courage to write the obituary of Victorian-vintage jurisprudence and recreate and catalyse a new dynamic jurisprudence which will reverse the present law of India.

http://www.hindu.com/2010/03/19/stories/2010031954101000.htm

JUSTICE DV SHYLENDRA KUMAR ON THE SC COLLEGIUM

My last communication to you was on the eve of 61st Republic Day of our country and though I put up a brave front in claiming that I am an optimist, hoping to see changes for the better in the near future, I must confess that I have not been able to see any change for the better, but on the other hand, things have gone from bad to worse.  The manner of functioning of the collegium of the Supreme Court of India has drawn flak from all sections of society and it is a matter of utmost concern and even a matter of shame for the members of the judiciary that the collegium of the Supreme Court is blissfully remaining insensitive to public opinion/reaction, but, is only playing GOD by not responding.

Well, in a democracy and that too in a democratic republic, that cannot be.   People and citizens of this country are the ultimate masters and the governance, is always accountable to the people of this country.   There cannot be any insensitivity or evasion from accountability on the part of the persons in authority and control, who govern our society under the scheme of the Constitution.   State should always not only be responsible for and accountable to the citizens of this country, but also show awareness and response to their views, aspirations, woes and travails.   If not, it is nothing but a failure on the part of the governance.

Judiciary being one organ of the State and as perceived during the present times, a pivotal organ amongst the three organs of the state and looked upon by the common people of the country as their saviour, as saviour of their hopes and aspirations and as the only organ in this country which cannot and should not fail, and such being the expectations and aspirations of the people of this country, it is very essential and also the constitutional duty for the Judiciary to fulfil this expectations of the people and perform in a proper manner.

Judiciary, being one organ of the state is as much accountable to the people of this country and courts being the institutions through which the judiciary is enabled to respond and redress the grievances of the citizens and the people, and judges being persons through whom courts function, courts and judges cannot remain insulated from public opinion nor can discard public needs and demands.

About fulfilling this expectations of the people, by playing its role correctly, there cannot be an exception in the case of the highest court of the country viz., the Supreme Court of India, and even the collegium of the Supreme Court, which is an administrative sub-committee of the judges of the Supreme Court, entrusted with the task of overseeing the selection and appointment of judges in the High Courts and the Supreme Court, and having been bestowed with a virtual veto power in the wake of self serving judgments of the Supreme Court rendered in the case of SUPREME COURT ADVOCATES ON RECORD  ASSOCIATION  vs  UNION OF INDIA (AIR 1994 SC 268) [known as Second Judges case while S P GUPTA vs. UNION OF INDIA (AIR 1982 SC 149) is known as the first Judges case] and in the case of Special Reference No.1 of 1998 [(1998) 7 SCC 739] is no exception to this requirement.

The collegium of the Supreme Court being very secretive in its conduct and functioning in the matter of selection of judges of the High Court and the Supreme Court, such manner of functioning has also drawn flak and has invited very adverse criticism from all sections of society.   More so from the legal community itself.  Laymen on the street, or elite and enlightened in their palaces, have all been critical of the manner of functioning of the collegiums in general and the collegium of the Supreme Court in particular!

The collegium of the Supreme Court refusing to divulge information has not been taken kindly by the members of the public and this conduct and attitude is looked down with suspicion and as a possible cover up resorted to on the part of the members of the collegiums. The defence of collegiums, through the slender arguments of the matter being confidential and may not be conducive for the proper functioning and efficacy of the judicial system in the country, is not taken accepted/respected by the members of the public and is discarded.

The legal/technical defences called in aid by the collegiums to refuse to divulge information about the manner of appointment of judges, particularly in the case of recommendation that had been made by the collegium of the Supreme Court to appoint Justice P D Dinakaran, Chief Justice of High Court of Karnataka, as judge of the Supreme Court, has come in for very grave criticism and perhaps rightly so. It is claimed that to maintain a good image and the reputation of the institution, it is necessary not to divulge information leading to the recommendation and appointment of judges in the superior courts.

While it may be true that to protect the image and the reputation of the institution, the cause of a few judges can be sacrificed, it is the other way now as practised by the collegium of the Supreme Court, particularly the collegium doggedly refusing to divulge information about the conduct of judges and their performance as perceived in the opinion of the collegium, which if revealed or divulged would damage the reputation of the institution and in fact while it is not so, on the other hand, it appears that the information is not being divulged or revealed, only to protect the concerned judges and even possibly to protect themselves, but at the cost of the image and reputation of the institution, as in the eyes of the public by not revealing the information, it is the image and reputation of the institution that is suffering and definitely not the image and reputation of the concerned judges.

It must be remembered that the image and reputation of a person is a reflection of the person’s conduct and behaviour as perceived by the members of public, whereas the image and reputation of an institution is entirely dependent on the making of persons who man and are part of the institution.

While the institution itself is nothing but a neutral mute spectator, which is neither good nor bad, and is a creature of the Constitution and the laws, what reputation the institution acquires over a period of time definitely depends on the manner of performance and the conduct of the members in the institution.

It is high time that the collegium of the Supreme Court realizes this harsh reality and starts acting in the interest of the institution and not in the interest of individual judges nor to protect their image and reputation and try to hide or cover up the bad image or the bad reputation of errant judges! In this regard, I have taken a few steps, which, from the perception of the members of the public and even amongst a few of my colleagues on the Bench and a few judges of other high courts, is considered to be an unusual bold step, it has only drawn flak from the members/judges of the Supreme Court.   While such may be the reactions and responses and varied at that, I earnestly believe I am only doing this as part of my duty and not beyond.

I am sharing with the people of this country my views and as is sought to be translated into action through the letter that I have addressed to the Chief Justice of the High Court of Karnataka and my colleagues in the High Court of Karnataka.   With regards and my good wishes to you all.

By Justice D V Shylendra Kumar , Judge, High Court of Karnataka

Judicial reforms get a fillip

N.R. Madhava Menon –  IN THE HINDU

The 13th Finance Commission’s recommendation to allocate Rs. 5,000 crore to improve the justice delivery system constitutes a landmark opportunity.

Never before in India’s judicial history has the government come forward to invest a large sum, Rs.5,000 crore, to improve the justice delivery system. The 13th Finance Commission recommended this for the five-year period 2010-15. It is to the credit of Union Law Minister Veerappa Moily that the judiciary has at last received the attention it deserves, to be able to implement his Vision Plan of reducing the life-span of a case in the system to three years, a target to be achieved within a three-year period. Whether the judiciary, which historically has been reluctant to absorb changes, will rise to the occasion and implement the Plan now depends entirely on the judges and lawyers who operate the system.

How could the money be utilised in time and with good effect? Would the High Courts be a little proactive and get an action plan prepared in advance without waiting for instructions from the bureaucrats in Delhi? Since the Union government seems to have approved in principle the need to make investments in the judiciary to expedite justice delivery, one can expect more money being made available beyond 2015, if the judiciary is prepared to deliver, modifying in the process the systemic and processual ills that have been plaguing it for long.

Bottom-up reforms

There are six components to which the money is earmarked, all of which may not be equally relevant to all the States. Obviously the focus of the expenditure is on the trial courts where over 90 per cent of all arrears reside. However, the administrative and supervisory control exercised over them by the respective High Courts is so absolute that nothing much can happen without the Chief Justice and the portfolio judges in charge of the districts concerned allowing them the freedom to innovate and change. It is hoped that High Courts for once would welcome the initiatives from below and provide the leadership for the effective implementation of the plan even if they do not personally support the changes proposed. This may require amendment to the rules of the court: on an experimental basis this could be allowed in those districts where the plan is to be implemented. The causes of delay are not the same everywhere and a district-wise approach alone can be effective in the beginning. It is more so because the support of the Bar and court staff are critical for the success of the plan. This is easier to mobilise at the local level.

Shift courts

Half the money (about Rs.2,500 crore) is set apart to increase the number of courts operating during morning and evening hours, staffed either by regular judges on payment of additional compensation, or by re-employed retired judges. Andhra Pradesh, Gujarat and a few other States have already experimented successfully with courts working in shifts, and they will naturally have a headstart in being able to expand the scheme throughout the State with the Central funds now available. It is for the High Court to decide what type of cases should be referred to the shift courts. If they are assigned small cause matters or petty offences, both pending and current, the regular courts will be left with more serious matters requiring greater attention and more judicial time. Each State will thus be entitled to double the existing number of courts through the shift system, with no additional investment on physical infrastructure.

The High Courts will be well advised to act quickly to recruit the required number of judges and staff, invest in their training for the tasks assigned, work on the rules required to regulate their functioning, and put in place a monitoring cell in the High Court to coordinate and oversee implementation.

ADR centres in districts

Considering the potential of Section 89 of the Civil Procedure Code (CPC) for the settlement of cases without trial, a sum of Rs.850 crore is assigned. Of this, Rs.100 crore is to hold 10 mega-Lok Adalats per High Court each year, and five Lok Adalats a year in each judicial district of the States. As Lok Adalats are already part of the process of dispensing justice, its systematic expansion will not pose any serious problems.

The ADR centre, one in each district, is an innovative measure to address the problem of mounting arrears through the mechanisms of mediation, conciliation, arbitration and negotiated settlement as provided for in Section 89 CPC. There are mediation centres in some High Courts, but very few in the districts. An investment of Rs. 1 crore per district ADR centre is to be used to develop the physical infrastructure and training of mediators, conciliators and arbitrators. A sum of Rs.600 crore for physical infrastructure and Rs.150 crore for training that have been earmarked are attractive enough for the system to act swiftly for the effective implementation of these new judicial institutions at the taluk and district levels.

To augment the resources of the Legal Services Authority, an additional sum of Rs.200 crore over five years is earmarked. Again this sum is to be allocated to the States in proportion to the number of courts within their jurisdiction.

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

Capacity building

A sum of Rs.250 crore to provide additional support to train judicial officers, Rs.300 crore to equip State Judicial Academies with necessary infrastructure and another Rs.150 crore to train public prosecutors are recommended for the five-year period. A sum of Rs.15 crores per High Court to build infrastructure for judicial academies is provided.

The faculty and infrastructure now available in the Academies are inadequate. A cadre of judicial trainers has to be developed and the practice of deputing district judges temporarily to manage training programmes should end. There is need for trainers in the areas of information-communication technology, interpersonal relationships, court and case management, judicial administration, judicial statistics, judicial performance assessment, judicial planning and so on. At least a third of the faculty members of the judicial academies will need to come from outside ‘law’, from management, social sciences, technology and public administration.

There is the need for a Dean of Academic Affairs in every judicial academy, who will not only develop and manage programmes but coordinate with other institutions in India and abroad to enhance the quality of training. There is the need for a research and publication cell in each academy.

Court managers

The district judges are over-worked and have very poor professional support systems. They devote a considerable length of time on non-judicial work, to manage which they have neither the expertise nor the training. It is therefore a good initiative recommended by the Finance Commission to provide qualified court managers with degrees in management (such as MBA) or law to be employed to assist judges. In planning the docket, in mobilising the parties concerned and their witnesses, in coordinating the distribution of work, in monitoring progress and removing bottlenecks, in helping assess performance and providing liaison with the public under instructions from the judge, the court manager can give assistance to make a significant difference in judicial administration.

Heritage court buildings

There are courts at the trial and appellate levels that are over 100 years old: some of them date back to the East India Company. For the restoration and conservation of 150 such buildings, Rs.450 crore has been allotted. This will help tell the story of the noble traditions of Indian justice for future generations if it is coupled with setting up a museum containing oral history accounts from lawyers and judges associated with each court, and rare court documents from different periods.

Conclusions

The government has declared that the next 10 years would mark the “Decade of Innovation” in every sphere of life, and the next five years, a period for judicial reforms. In pursuance of this, the Law Minister announced a National Litigation Policy under which government litigation is to be regulated to avoid unnecessary cases being filed by public authorities. The Finance Commission advised the government to release the money for States under this package, seeking that States also announce a litigation policy on the lines of what the Union government has done.

The grants announced to the States and the High Courts are without the sort of conditionalities usually attached to Centrally-sponsored schemes. The release of yearly instalments is, of course, based on the utilisation of funds allotted to the six different components of the scheme. It is now up to the High Courts in consultation with the State governments to quickly prepare plans in their respective jurisdictions and start implementation within the next few months. The State Judicial Academies should be asked to do the preparatory work under the supervision of a committee of senior judges, if necessary seeking advice from consultants. The litigant public now has a right to demand from the judiciary quicker delivery of justice, planned elimination of arrears, and enhanced access to justice. The judiciary is indeed on trial on its commitment to timely justice. No more alibis would be acceptable to the public.

(Professor N.R. Madhava Menon is the Founder-Director of the National Judicial Academy, and a former member of the Law Commission of India.)

http://www.hindu.com/2010/03/12/stories/2010031253651000.htm

Turn the page

INDIAN EXPRESS

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

Reports suggest that the Supreme Court is preparing to appeal the January 12 decision of the Delhi high court placing the office of the Chief Justice of India within the ambit of the Right to Information Act. In the aftermath of the Delhi HC decision — itself a three-judge affirmation of a single-judge HC order — legal experts such as former Chief Justice J.S. Verma had urged the SC to not appeal. For the apex court to sit in judgment over its own fate would make for an unseemly spectacle. Reports indicate that the SC thinks otherwise; an appeal is likely to be filed.

The immediate consequence of the Delhi HC judgment was on judicial assets. In 1997, a “restatement of values on judicial life”, passed by a full court of the SC, stated that judges would declare their assets to the chief (information that would be held in the CJI’s office). By holding that this 1997 declaration was mandatory and that the CJI’s office was under the RTI Act, the Delhi HC ensures that the public have a right to know what their judges own. (Last November, SC judges made their asset details public, but insist it is voluntary.) The Delhi HC judgment also makes a larger point: on judicial accountability and the principle that no one is above the law. That a lower court could find against the world’s most powerful was a healthy sign of intra-judicial independence.An appeal by the SC will have implications for that larger point. On the narrow question of judicial assets, the executive seems to have finally grasped the ball. The UPA government is planning to introduce the Judges (Standards and Accountability) Bill, which, reports suggest, will give statutory teeth to the 1997 Supreme Court resolution, with or without a court judgment to back it up. Certainly, the Delhi HC judgment goes beyond just the disclosure of judges’ assets. But at a time when a breeze of greater transparency is blowing through the executive and the legislature too — a breeze that’s been given velocity by the courts — the higher judiciary would have to make a considerably stronger case for being kept apart.

http://www.indianexpress.com/news/Turn-the-page/588046

CJI under RTI: SC ready with appeal to itself

INDIAN EXPRESS
New Delhi : The Supreme Court is set to file an appeal to itself against the January 12 judgment of the Delhi High Court, which said that the office of Chief Justice of India (CJI) falls within the ambit of the Right to Information (RTI) Act.
SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

Officials in the apex court Registry declined to confirm or deny the development, but sources within the judiciary told The Sunday Express that the decision to appeal was taken by the CJI just before the Holi break. The appeal is likely to be filed early next week. The window to appeal closes March 12. Sources said the appeal, drafted by Supreme Court lawyer Devdutt Kamat, has already been cleared by the CJI and the Supreme Court Registry. It is learnt that the CJI discussed the issue with some senior judges. Attorney General Goolam E Vahanvati will be asked to argue the SC case.

Sources said that among other things, the appeal seeks an immediate stay on the judgment of the Delhi HC, and asks the apex court to set it aside on the ground that the HC erred in holding that correspondence between the CJI and other members of the higher judiciary could be sought under the RTI Act. The appeal also says that the information held by the CJI pertaining to the details of assets of judges and their kin was under a fiduciary relationship and hence exempt from being made public under the RTI Act. In its judgment, a three-member HC Bench comprising the then Chief Justice A P Shah and Justices Vikramjeet Sen and S Muralidhar, while dismissing the contention of the SC Registry that bringing the office of the CJI under the purview of the RTI Act would hamper judicial independence, had said, “Judicial independence is not a privilege to a judge but a responsibility.” In doing so, the Bench upheld the September 2 verdict of a single judge of the HC. However, the CJI has been repeatedly asserting that judges can’t be put under too much public scrutiny as it would hamper their functioning and independence.

Incidentally, on March 8, the SC is also scheduled to resume hearing of another appeal filed by the SC Registry against a decision of the Central Information Commission (CIC), through which the CIC had directed the SC to provide to the applicant, RTI activist Subhash C Agarwal, details of appointment of three judges to the Supreme Court. On November 3 last year, SC judges voluntarily listed details of their assets along with those of their kin on the SC website. The proposed Judges Standards and Accountability Bill, 2010, which is likely to be introduced in Parliament during the ongoing session, says that declaration of assets made by judges would be treated as a legal document.

http://www.indianexpress.com/news/cji-under-rti-sc-ready-with-appeal-to-itself/587844/0

Keep merit, integrity in mind while naming judges: Moily to CJI, CJs

Union Law Minister M Veerappa Moily has written to the Chief Justice of India and Chief Justices of all High Courts, asking them to recommend names of only persons of impeccable integrity and merit for elevation to the Bench. The letter was sent out early this week.When contacted, Moily acknowledged having written the letter, saying the government wanted the judiciary to take into account aspirations of the public before recommending names for judgeship.

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

This comes even as questions continue to be raised over the manner in which the Supreme Court collegium recommended the name of Karnataka High Court Chief Justice P D Dinakaran for elevation to the Supreme Court despite serious charges against him. Rajya Sabha MPs have moved an impeachment motion against Dinakaran.

The Vice President has already formed a three-member committee of jurists, comprising Supreme Court Judge V S Sirpurkar, Andhra Pradesh High Court Chief Justice A R Dave and senior Supreme Court lawyer P P Rao, to investigate the charges against Dinakaran, including those of corruption and land-grabbing.

In his letter to the judiciary, Moily has requested the CJI and judges to ensure that the recommendation of names made by them take care of the aspirations of all sections of the society, including women.

“Merit should be the most important criteria. But no person of questionable integrity should be there. We would also like the recommendations to be made expeditiously so that there are no vacancies,” Moily told The Sunday Express.

Set to introduce the Judges Standards and Accountability Bill in the ongoing session of Parliament, Moily said the legislation would go a long way in tackling instances of corruption in the judiciary.

“I firmly believe that Indian judiciary is among the best and most honest in the world. But there are some aberrations. And the Judges (Inquiry) Act, which provides for only impeachment in case corruption charges are proved against sitting judges, has not had any effect. This is why the proposed Bill will be a long step forward,” he said.

“At the same time”, Moily said, “the Bill will also strengthen the judiciary. I believe in taking the judiciary along. We can’t allow judges to work under the shadow of fear or harassment. That is why the Bill has proposed strict action against anybody making frivolous, vexatious complaints against judges. We have to provide a congenial environment (to judges).”

http://www.indianexpress.com/news/keep-merit-integrity-in-mind-while-naming-judges-moily-to-cji-cjs/585384/0