charge sanjay dutt with TADA

e –Voice Of Human Rights Watch – e-news weekly
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Editor: Nagaraj.M.R….vol.3…issue.21……04/08/2007

Editorial : CRIMES COMMITTED BY LAW COURTS IN INDIA – charge sanjay dutt with TADA

– An appeal to honourable supreme court of india

 hereby, HRW  appeals to the honourable supreme court of India to review the sentence given to cine actor mr.sanjay dutt. He is charged under illegal possession of arms , the stand of prosecution is biased . the culprit cine actor kept the arms knowing fully well for what purpose it is being kept , he had had regular contacts with anti-national underworld elements. Still he is not charged under either TADA or MOCA WHY ? WHERE AS ORDINARY CRIMINALS WHO HAVE DONE LESSER QUANTUM OF CRIME THAN HIM ARE CHARGED WITH TADA & PUNISHED SEVERALLY. WHY THIS DOUBLE STANDARDS BY THE JUDICIARY ? HEREBY , hrw also appeals to honourable supreme court of  india to make public the transcript of  underworld don abu salem’s polygraph test , did sanjay dutt had any links with abu salem or other anti national elements ? how many film stars , sportspersons & politicians have regular contacts with underworld elements more specifically dawood ibrahim & chota rajan and  how many of them have attended parties hosted by them in gulf countries ?

Indian prisons are meant to be reforming schools for the prisoners. By the corrupt practices of the officials , the prisons have become  factories turning out  hardened criminals.

 

Say , a person was caught by police on  suspicion  of  pick-pocketing. The police produce the accussed before the magistrate , in turn he remands him for judicial custody. Let us consider , The punishment for this offence pick-pocketing as per law is 6 months imprisonment. However the case drags on for 3 years , finally the court finds him guilty of offence & orders for 6 months imprisonment. Totally, the offender serves 42 months imprisonment sentence in practice. In some cases , the courts consider the time already spent by the accussed behind the bars while giving judgement. In this example , even if the offender is let free taking 6 months imprisonment sentence, the offender has been given excess sentence of 36-6=30 months.

 

Taking the same example further, say the court finds  the accused as innocent, not guilty of crime & lets him free. However , the poor chap has suffered 36 months imprisonment for no fault of his.

 

As per law, no body not even the courts of law are legally empowered to punish anybody  beyond the legal procedures , rules established. In this way, due to delay in our legal system , faulty bail procedures , thousands of under-trials  are suffering in various prisons throught India. Arew not the courts which remanded those accused to judicial custody responsible for this illegal act of excessive punishment ? what punishment should be given to those judges ?

 

The bail procedure in India , is also faulty without considering quantum of offence & financial status of the accused. A person accused of stealing rs.100 has to provide bail surety bond of rs.5000 or personal surety by a wealthy  person / government servant. The poor person having personal contacts , friendship with rich persons / government servants is quite remote , so he cann’t secure bail on personal bond. The poor chap’s family is not rich enough to spend rs.5000 surety amount. As a result, unable to secure bail the poor chap suffers in jail for years.

 

Say, a rich industrialist is accused of  rs.20 crores tax evasion, he is let free on a personal bond of rs.1 lakh. Stamp paper scam kingpin karim lala telgi  has swindled government to the tune of thousands of crores of rupees, only few cases are registered against him. That too in one out of those cases involving rs.45 lakh worth stamp sale , judge has given him rigorous imprisonment plus a fine of rs.50000.

 

Considering the above examples it is quite clear the bail amount, fine amount  are peanuts for the rich  just a fraction of quantum of their crime , while for the poor it is huge many times more than the quantum of their crime.. it is biased towards rich & mighty criminals. As a result poor always suffers in jail, while rich are out on bail.

 

Even within prisons , the number of prisoners per sq.ft area , no of doctors , hospital beds , medicines available, weight of food per day given to prisoners , are all less & much below the statuotary limits. The food , health care , living conditions of  prisoners , under-trials are worse than pigs. The prison authorities are utterly corrupt, which has been brought into light again & again by the media. If a poor prisoner questions the illegal acts of the officials , he is subjected to 3rd degree torture , roughed up by rowdy prisoners on the instigation of the officials themselves. Many poor prisoners are suffering from  health problems , many are dying due to lack of proper health care & food in the prisons.

 

Whereas , the rich & mighty prisoners , by payting bribe get non-veg  , alchoholic drinks from outside restaurants daily. They even secure drugs  . they get spacious VIP rooms , television , mobile phones. They easily get parole & easily gets admitted in outside hospitals & roam free , while on record they are in-patients in hospitals.

 

The law of limitation which stipulates time limits for filing various cases is also biased towards the government as a party & rich , mighty.  For the purposes of evidences , filing of cases one needs various government records. The concerned officials don’t provide those records for years unless bribed & sit over the files for years. Some times by making absurd , illogical file notings , rejects it back. There is no time limit  for the performance of duties by public servants. When a commoner don’t get relevant records , files , evidences in time , how can he file cases in time without those records , evidences ?

 

Nowadays , numerous cases of irregularities , charges of corruption against judges  are coming to light. However , in such cases  judges are asked to resign from service but no criminal prosecution against them is instituted , only in cases involving lower court judges it is done. When a case of irregularity by a judge in a specific present case comes , there are every possibility that in the past also he has committed the same in cases handled by him which has not come to light. In such instances , all the cases handled by that particular judge throught his career must be reviewed , but is not done why ? does not it amount to cover-ups ?

 

In many cases the higher courts have turned down the verdicts of the lower courts , let free the innocents , absolved innocents of charges & annulled death sentences when appeals came before  them.  However , in all such cases , the lower court judges  must be punished for  giving out wrong judgements, meating out injustice to innocents. Here a fact must be noted , only a fraction  of cases goes in appeal to higher courts, as in majority of cases the  poor people lack the financial might to make the appeal. The so-called free legal services authority pre-judges the cases before giving legal aid. As a result , many innocents poor people resign to their fates suffer injustice in courts of law , undergo imprisonment punishment , some times even death sentence. So , the urgent need of the hour is to incorporate jury system or some outside monitoring system to review cases as & when decided.

 

In many cases involving the rich & mighty like telgi , case proceedings are conducted in-camera in judge’s chambers or proceedings are conducted through video conferencing . outside from public gaze. The tapes are not made public  and the public cann�t even ascertain the validity of tapes , whether it is edited , doctored .

 

One of the basic reasons for delayed justice  &  worse prison conditions in India , is low number of judges , police personnel , higher rate of case adjournments  and finally low amount of financial grants made by the government  to judicial department / police department. The government states that  it doesn’t have enough money to provide for judiciary & police. As a result, fundamental / human rights of innocent commoners are thwarted. The state governments & GOI ,  is one of either parties in 75% of cases  before various courts in India, it is the biggest litigant & is influencing the judiciary by controlling the grants , recruitment to judiciary & by enticing some with post-retirement postings.

 

The government has got money  to spend on lavish parties of VVIPs , IAS officers serving non-veg foods , alchoholic drinks . their foreign jaunts , 5-star bungalows , limousines , interior decorations of their bungalows, etc. which is of higher priority , importance , whether the luxury of VVIPs or the fundamental / human rights of  commoners ? the courts should answer. The courts have the legal powers to order governments to provide enough financial grants to it , however it is keeping mum , turning blinds eye to crimes of VVIPs. the government rewards such judges with salary hikes , promotions , luxury cars , bungalows , perks and post-retirement postings , sites at judicial lay-out , yelahanka , Bangalore , etc.

 

We at  HRW has utmost respect for the judiciary , but hereby humbly bringing the crimes of judiciary before the honest  few judges seeking justice to the common folk.  JAI HIND. VANDE MATARAM.

 

Your’s sincerely,

Nagaraj.M.R.

 

 

AN APPEAL TO HONOURABLE CHIEF JUSTICE OF WEST BENGAL INDIA

Dear Sir ,

INDIA: Please investigate the allegation that false charges are filed against human rights activist in Murshidabad

Name of victim: Mr. Gopen Sharma, aged about 44 years, Bayarampur village, Jalangi, Murshidabad district, West Bengal state, India
Alleged perpetrators: Police officers attached with Jalangi police station, Murshidabad district, West Bengal state, India
Place of incident: Jalangi, Murshidabad district
Date of incident: August 1, 2007

I am writing to you to express concern about the case of Mr. Gopen Sharma, a human rights activist working in Murshidabad district, attached to a local human rights group called MASUM. I am informed that an allegedly false case has been charge sheeted against Gopen under the direction of the Chief Judicial Magistrate, Baharampur on a complaint filed by Mr. Shanti Ranjan Mondal.

I am informed that Gopen denies all charges leveled against him and that the court upon receipt of the complaint ordered the complaint to be forwarded to the Jalangi Police Station to be registered as a case against Gopen. I am informed that the complaint was entertained by the court in the absence of the actual complainant.

I am also informed that this is not the first instance where a case was registered against Gopen on fabricated charges. I am also informed that on June 12, 2007 the 2nd Fast Track Court Judge ordered Gopen to be taken into custody for merely writing down the judge’s name.

I am concerned about the manner in which Gopen is continuously been harassed by the authorities in the state. I am worried particularly of the fact that the lower court in the locality is also now allegedly involved in cornering Gopen in an attempt to force him to stop working on human rights issues in the district.

I therefore request you to immediately intervene in this case and to facilitate and independent inquiry on this incident. I also request you to make use of your good offices to find out why the authorities are so inimical towards Mr. Gopen Sharma and if it is revealed that the officers are misusing their offices and authority to silence Gopen, to take appropriate actions against the officers concerned.

Your’s sincerely,

NAGARAJ.M.R.

 

AN APPEAL TO HONOURABLE CHIEF MINISTER OF CHATTISGARH INDIA

 

Dear Sir ,

INDIA: Please withdraw the charges against Dr. Binayak Sen, and release Dr. Sen from custody

Name of victim: Dr. Binayak Sen, National Vice-President, the Peoples’ Union for Civil Liberties, currently detained at Raipur Central Prison
Date of arrest:
14 May 2007

I am writing to you to express my concern about the continuing detention of Dr. Binayak Sen, a well renowned human rights activist and medical doctor of your state. I am aware that Dr. Sen, charged with crimes under the Chhattisgarh Special Public Security Act, 2005 has been denied bail by the court and is currently detained at the Raipur Central Prison.

I am aware that one of the charges leveled against Dr. Sen is regarding his alleged involvement with the anti-state rebel groups in Chhattisgarh state. However, I am informed that there are no credible evidences to substantiate this allegation.

I am surprised by the reaction of the government in arresting a prominent human rights activist and doctor merely because he was involved in providing medical assistance to the poor. I am aware that Dr. Sen’s arrest has brought in enormous criticism against your state administration which is already suffering from a bad image due to maladministration. I am also aware that several persons have written to your government asking to withdraw the charges against Dr. Sen, which your administration has denied thus far.

Resorting to violence is by no means an invitation for discussion to resolve the issues that your state is currently facing. The very engagement of Salwa Judum, a private army funded and trained by the state is one of the worst acts an administration could do to resolve a crisis. Resolution of a crisis begins with discussion of issues in a peaceful manner. If the state government also resort to violence what is the deference between your administration and the rebels in your state?

In this context I request you to immediately take the following measures:

1. To release Dr. Binayak Sen and withdraw all charges pending against him;

2. To order a public inquiry into the entire incident that led to the arrest of Dr. Sen and to make public the findings of the inquiry;

3. To withdraw immediately the Chhattisgarh Special Public Security Act, 2005 and its application within the state;

4. To prohibit immediately the functioning of Salwa Judum and to conduct an inquiry into the past activities of this group engaging the civil society in India;

5. To engage with the civil society, other concerned citizen groups and the Government of India to find out ways and means to end the culture of violence in the state and;

6. To constitute an independent body to find out the atrocities committed by the state agents and the rebels and to make the findings public and to take appropriate actions against the perpetrators through the means accepted by the Criminal Procedure Code of India.

Your’s sincerely,

NAGARAJ.M.R.

 

India: Seven deaths intensify fears of excessive use of force by police against land protestors in Andhra Pradesh

Amnesty International is concerned at reports of excessive and unnecessary use of force by police in Modugonda village, Khammam district, Andhra Pradesh against farmers, political party workers and others demonstrating in response to local land distribution issues on 28 July 2007.

According to reports, the police opened fire on protestors resulting in the death of seven persons, the seventh succumbing to his injuries the following day. At least twelve people are also reported to have sustained injuries as a result of the firing and a lathi (long wooden stick) charge by police.

Though events leading to the shootings remain disputed, reports suggest that violence erupted when police reportedly targeted and beat a worker of the Communist Party of India (Marxist) who had been campaigning for land rights, which had helped organize the demonstration along with the Communist Party of India.

According to reports, less than ten members of the 500 person strong crowd responded to the beating by throwing stones, which prompted a senior police officer at the scene to open fire. Subsequent firing was reportedly carried out by state “special party personnel”- members of a unit specifically trained and deployed to respond to naxalites – leftist armed group members – operating in the state.

Amnesty International understands that the crowd was not given any warning that the police were about to open fire. Photographic evidence shows victims with bullet wounds to the abdomen, waist and head, but allegations that the “special party personnel” shot at protestors with AK-47 assault rifles have been denied by the Andhra Pradesh authorities.

Amnesty International reminds the Andhra Pradesh authorities that they are bound under international law to respect the right to life in all circumstances. In this context, the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the UN Code of Conduct for Law Enforcement Officials provide strict guidance on the use of force in crowd control situations. In particular Principle 5 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials clearly state whenever the lawful use of force and firearms is unavoidable, officers shall:

(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;

(b) Minimize damage and injury, and respect and preserve human life.

Amnesty International is concerned that the actions of the police at the demonstration violated the Principles, and the victims’ right to life. The organization has reason to believe that the actions of protestors did not warrant such a response — where at least 70 rounds were reportedly fired at the crowd. The use of AK47 assault rifles is regarded by the organization to be a particularly inappropriate method of policing such demonstrations.

Amnesty International welcomes the ordering of a judicial enquiry by the Chief Minister of Andhra Pradesh on 29 July 2007; statements by the state Home Minister that “if any policeman is found guilty we will take action”; and reports that four senior police officers involved in the incident have been suspended or transferred pending the enquiry. The organization also notes reports that the Andhra Pradesh State Human Rights Commission has requested a detailed report into the circumstances which led to the firing.

However the organization believes in order for the enquiry to be effective and to challenge the culture of impunity associated with unlawful police actions in Andhra Pradesh and elsewhere in India, the enquiry must entail the following:

  • It should be completely impartial, independent and thorough,
  • The parameters of the enquiry need to be promptly and clearly outlined,
  • The enquiry should determine whether the use of force by police was consistent with national law and international standards including the Basic Principles on the Use of Force and Firearms, and the Code of Conduct for Law Enforcement Officials,
  • Any police officer found having resorted to excessive use of force should be promptly criminally prosecuted.


Amnesty International further believes that:

  • Existing rules that govern the use of force and firearms by police in response to assemblies in India falls short of international standards and should be urgently reviewed. The organization believes that they should be amended to bring them into full compliance with the UN Basic Principles on the Use of Force or Firearms by Law Enforcement Officials,
  • Specifically, the government should ensure that any such rules and regulations permit no more than the minimum use of force and require full accountability for any action taken resulting in loss of life.


Background
It is reported that the current ruling Congress state government had agreed to implement plans to distribute housing sites to the urban poor and cultivable land to the rural landless across Andhra Pradesh. Leftist political parties — including the CPI and CPI (M) — had been in ongoing negotiations with the state government on this matter.

Amnesty International understands that the call for intensifying the protests gained momentum when the leftist parties call for the establishment of an independent commission — with quasi-judicial powers to address land reform issues — was rejected by the State government. They instead proposed the appointment of a Special Commissioner for land issues.

 

”  Independence and Impartiality  ”  BY FORMER CJI R.C.LAHOTI

A judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature

 

Mission + Gist of Judges Tyranny + King Scamster Judges + Present fate of case i.e., Judges Versus Judges …. Contempt Case

`Independence‘ and `impartiality’ are most crucial concepts.  The two concepts are separate and distinct.  `Impartiality’ refers to a state of mind and attitude of the court or tribunal in relation to the issues and the parties in a particular case,  while `independence’  refers not only to the state of mind or attitude, but also to a status or relationship to others ­__ particularly to the executive branch of Government __   that rests on objective conditions or guarantees.[20]    

According to Chief Justice Lamer : “The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a “means”  to an end. If judges could be perceived as “impartial”  without judicial “independence”, the requirement of independence would be unnecessary. However,  judicial independence is critical to the public’s perception of impartiality. Independence is the cornerstone,  a necessary prerequisite for judicial impartiality.”  

The concept of judicial independence has been described in golden letters in one of the judgments of the Supreme Court of India.   “To keep the stream of justice clean and pure,  the Judge must be endowed with sterling character, impeccable integrity and upright behaviour.  Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself.  The Judges of higher echelons,  therefore,  should not be mere men of clay with all the frailties and foibles,  human failings and weak character which may be found in those in other walks of life.   They should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or of any sort.   The actual as well as the apparent independence of judiciary would be transparent only when the office-holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary.  In short,  the behaviour of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law.”[21] Unless the judges function without fear and favour, the question of their being impartial or independent does not arise.  “Judges owe their appointment to the Constitution and hold a position of privilege under it.   They are required to `uphold the Constitution and the laws’, `without fear’ that is without fear of the executive;  and `without favour’ that is without expecting a favour from the executive.  There is thus a fundamental distinction between the master and servant relationship between the government and the Judges of High Courts and the Supreme Court.” [22]  

Independence and impartiality and objectivity would be tall claims hollow from within, unless the judges be honest __   honest to their Office, honest to the society and honest to themselves.  “…the society’s demand for honesty in a judge is exacting and absolute.  The standards of judicial behaviour, both on and off the Bench, are normally extremely high.  For a judge, to deviate from such standards of honesty and impartiality is to betray the trust reposed in him. No excuse or no legal relativity can condone such betrayal. From the standpoint of justice, the size of the bribe or scope of corruption cannot be the scale for measuring a Judge’s dishonour.  A single dishonest Judge not only dishonours himself and disgraces his office but jeopardizes the integrity of the entire judicial system.  A judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature.  The slightest hint of irregularity or impropriety in the court is a cause for great anxiety and alarm. `A legislator or an administrator may be found guilty of corruption without apparently endangering the foundation of the State.  But a Judge must keep himself absolutely above suspicion; to preserve the impartiality and independence of the judiciary and to have the public confidence thereof.” [23]     

To perform the duties of judicial office without fear or favour, affection or ill-will is the same thing as performing the duties with independence, impartiality and objectivity.  In order to achieve this a certain degree of aloofness is required to be maintained by the judges.  According to Justice P.B. Gajendragadkar – “Judges ordinarily must observe certain rules of decorum in their social behaviour. A little isolation and aloofness are the price which one has to pay for being a judge, because  a judge can never know which case will come before him and who may be concerned in it. No hard and fast rule can be laid down in this matter, but some discretion must be exercised.”[24]  The concept is best demonstrated in a real life anecdote which I would like to reproduce in the words of Justice Gajendragadkar himself.  He records –

“Another feature which I did not very much appreciate was that judges used to accept invitations for dinners from lawyers far too frequently. I consistently refused to join such dinners.  When S.R. Das was due to retire,  there were a number of dinners and S.K. Das found that I was not accepting any one of these invitations. He came to me and said: “Brother, accept at least one so that the Chief may not misunderstand you.”  So I did accept one and, when we met to dine in a hotel, I was amazed to see that we were not dining in an exclusive room but in the general hotel itself, which was otherwise crowded by other diners and it was a lawyer who was entertaining us as a host to the large number of visitors present in the hotel. With my Bombay background, I did not relish this prospect at all;  and not feeling happy about such dinners I conveyed my views to S.R. Das. With his characteristic tact, he said, “Yes, I see your point.” [25] 

However, it is interesting to note that R.A. Jahagirdar (who has contributed a beautiful preface to the autobiography and, in fact, he is the one who was successful in persuading Justice Gajendragadkar to write his memoirs) has put an asterisk on the words `Bombay background’ and inserted a footnote which reads – “The Bombay background has considerably changed.  Cases of judges being entertained in luxury hotels are not infrequent and have been discussed in the Press”.        

Justice Gajendragadkar goes on to record –

“The undesirable and perhaps intended motivation for such invitation for dinners became patent in another case. That was a dinner arranged ostensibly by a lawyer who was a benamidar of the proprietor of a hotel chain. So far as I know, I and K.C. Das Gupta did not attend. Most of others did. The dinner was held on a Saturday at a hotel. On Monday next, before the Bench over which B.P. Sinha presided and I and K.C. Das Gupta were his colleagues,  we found that there was a matter pending admission between the management of the hotel chain and its workmen. I turned to Sinha and said:  “Sinha, how can we take this case?  The whole lot of supervisors and workmen in the hotel is sitting in front and they know that we have been fed in the hotel ostensibly by the lawyer but in truth at the cost of the hotel, because the very lawyer who invited the judges to the dinner is arguing in the hotel’s appeal.” Sinha, the great gentleman that he was, immediately saw the point and said: “This case would go before another Bench.” [26]     

A sad incident is quoted by Justice V.R. Krishna Iyer while describing how he refused to budge an inch though tremendous pressure was sought to be built upon him, by none else than the then Law Minister Late Shri Gokhale who himself has had a brief stint as a judge in Bombay, to pass an absolute order of stay on the judgment of Allahabad High Court in the case of Indira Gandhi  vs.  Raj Narain.  The narrated incident has a lesson to learn.  I may quote –

“By way of a distressing deviation, I may mention an anecdote of a few years ago. A vacation judge was telephoned by an advocate from a five star hotel in Delhi.  He mentioned that he was the son of the then Chief Justice and wished to call on the vacation judge.  Naturally, since the caller was an advocate, and on top of it, the son of the Chief Justice, the vacation judge allowed him to call on him.  The `gentleman’  turned up with another person and unblushingly told the vacation judge that his companion had a case that day on the list of the vacation judge. He wanted a `small’ favour of an `Interim stay’.  The judge was stunned and politely told the two men to leave the house. Later, when the Chief justice came back to Delhi after the vacation, the victim judge reported to him about the visit of his son with a client and his `prayer’ for a stay in a pending case made at the home of the Judge.  The Chief Justice was not disturbed but dismissed the matter as of little consequence. `After all, he only wanted an interim stay’, said the Chief justice, `and not a final decision’. This incident reveals the grave dangers of personal visits to judges’ residences  under innocent pretexts.  This is the way functional felony creeps into the judiciary.  A swallow does not make a summer may be, but deviances once condoned become inundations resulting in credibility collapse of the institution[27]

       He says – “Judgeship has diamond-hard parameters”.

       

A complete seclusion from society might  result in judges becoming too removed from society and the realities of social life.  Common knowledge of events and robust commonsense need knowledge of human behaviour but for which the judge may be incapacitated from doing complete justice or exercising discretion in the given facts of a case before him.  An isolated judge runs the risk of  viewing facts in a vacuum which in its turn may lead to an unjust decision.  

To strike an equitous balance between the need for maintaining certain degree of aloofness and the necessity for moving in society to understand it so as to be a practical judge, he shall have to conscientiously keep a vigil of his own movements and decide thoughtfully where to go and where not to goExperience and caution would be the best guide of a judge in this regard.  He ought to remember that what he thinks of himself is not so material as how people would perceive and interpret his movements and presence at a given place.

”  Oath of a Judge _  analysed ” BY FORMER CJI R.C.LAHOTI

Oath of a Judge _  Analysed  

Every word and expression employed in the oath of a judge is potent with a message.  The message has to be demystified by reading between the lines and looking beyond what meets the eyes. 

An option to swear in the name of God or to make a solemn affirmation is suggestive of secular character of the oath.

A judge must bear not only faith but `true faith’ and `allegiance’ to the Constitution of India.  The oath demands of a judge not only belief in constitutional principles but a loyalty and a devotion akin to complete surrender to the constitutional beliefs. Why ?  

“Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law.  Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting obedience from recalcitrant or indifferent State agencies.  Therefore, the need for an independent and impartial judiciary manned by persons of sterling quality and character, undaunting courage and determination and resolute impartiality and independence who would dispense justice without fear or favour, ill-will or affection.  Justice without fear or favour, ill-will or affection, is the cardinal creed of our Constitution and a solemn assurance of every Judge to the people of this great country ……. an independent and impartial judiciary is the most essential characteristic of a free society.[17]” The arch of the Constitution of India pregnant from its Preamble, Chapter III (Fundamental Rights)  and Chapter IV (Directive Principles) is to establish an egalitarian social order guaranteeing fundamental freedoms and to secure justice __      social, economic and political  __ to every citizen through rule of law.  Existing social inequalities need to be removed and equality in fact is accorded to all people irrespective of caste, creed, sex, religion or region subject to protective discrimination only through rule of law.  The Judge cannot retain his earlier passive judicial role when he administers  the law under the Constitution to give effect to the constitutional ideals.  The extraordinary complexity of modern litigation requires him not merely to declare the rights to citizens but also to mould the relief warranted under given facts and circumstances and often command the executive and other agencies to enforce and give effect to the order, writ or direction or prohibit them to do unconstitutional acts.   In this ongoing complex of adjudicatory process, the role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality.[18] 

The sovereignty and integrity of India has to be upheld.  Constitution itself would cease to exist, if, God forbid, the sovereignty and integrity of India were lost.  

The duties associated with the Office of a judge are too sacrosanct and hence demand the judicial functioning  with `the best of ability, knowledge and judgment’ of the judges. It is not enough to be a law graduate or to have put in a number of years of practice or to have gained experience by serving as a judicial  officer for a specified number of years. Their ability and knowledge associated with the clarity of purpose and methods which the judges display enables the judicial system to perform to its optimum efficiency.  The role of the judge obligates him to continue to invest in up-dating his knowledge of law and skills of justice dispensation.  The holder of the Office if not able and knowledgeable would not have the confidence to function, much less with independence.  It is said :

Strange, how much you’ve got to know;

Before you know, how little you know.[19]

 


”   Four Qualities in a Judge  ” BY FORMER CJI R.C.LAHOTI

RANDOM THOUGHTS :

Four Qualities in a Judge

        A judge has to be possessed of excellence not only from within but he should also visibly display the functional excellence which is necessary to fulfil the constitutional promise of justice by the judiciary as a whole.  Four qualities are needed in a judge which are symptomatic of functional excellence.  They are: (i) Punctuality (ii) Probity (iii) Promptness; and (iv) Patience. 

 

        Justice Hidayatullah has placed observance by judges of the punctuality of time on a very high pedestal.  According to him a judge who does not observe punctuality of time does not believe in rule of law. 

 

Probity is uprightness; moral integrity; honesty. 

 

According to Justice V.R. Krishna Iyer the judges who do not pronounce judgment in time commit turpitude.  He notes with a sense of sorrow –

“It has become these days, for the highest to the lowest courts’ judges, after the arguments are closed, take months and years to pronounce judgments even in interlocutory matters – a sin which cannot be forgiven, a practice which must be forbidden, a wrong which calls for censure or worse.”[28]

 

 

        Lord Denning puts it mildly by way of tendering good advice for a new judge.  He says that when judgment was clear and obvious it was for the benefit of the parties and the judge himself that judgment should be delivered forthwith and without more ado.  Though, the art is difficult and requires great skills but practice can enable perfection.[29]   However, not all judgments can be delivered ex tempore; there are cases in which doubts are to be cleared, law has to be settled and conflicts are to be resolved either by performing the difficult task of reconciling or the unpleasant task of overruling.  Such judgments need calm and cool thinking and deep deliberations.  Such judgments must be reserved but not for an unreasonable length of time.

JUDICIAL ETHICS – A definition

Judicial ethics is an expression which defies definition.  In the literature, wherever there is a reference to judicial ethics, mostly it is not defined but attempted to be conceptualized.  According to Mr. Justice Thomas of the Supreme Court of Queensland, there are two key issues that must be addressed : (i)        the identification of standard to which members of the judiciary must be held; and (ii) a mechanism, formal or informal, to ensure that these standards are adhered to.  A reference to various dictionaries would enable framing of a definition, if it must be framed.  Simply put, it can be said that judicial ethics are the basic principles of right action of the judges.  It consists of or relates to moral action, conduct, motive or character of judges; what is right or befitting for them.  It can also be said that judicial ethics consist of such values as belong to the realm of judiciary without regard to the time or place and are referable to justice dispensation.  

Need for

In all democratic constitutions, or even those societies which are not necessarily democratic or not governed by any constitution, the need for competent, independent and impartial judiciary as an institution has been recognized and accepted.  It will not be an exaggeration to say that in modern times the availability of such judiciary is synonymous with the existence of civilization in society.  There are constitutional rights, statutory rights, human rights and natural rights which need to be protected and implemented.  Such protection and implementation depends on the proper administration of justice which in its turn depends on the existence and availability of an independent judiciary.  Courts of Law are essential to act and assume their role as guardians of the Rule of Law and a means of assuring good governance.  Though it can be said that source of judicial power is the law but, in reality, the effective exercise of judicial power originates from two sources.  Externally, the source is the public acceptance of the authority of the judiciary.  Internally and more importantly, the source is the integrity of the judiciary.  The very existence of justice-delivery system depends on the judges who, for the time being, constitute the system.  The judges have to honour the judicial office which they hold as a public trust.  Their every action and their every word – spoken or written – must show and reflect correctly that they hold the office as a public trust and they are determined to strive continuously to enhance and maintain the people’s confidence in the judicial system. 

Alexander Hamilton once said ___ “The judiciary . . .  has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.  It may truly be said to have neither Force nor Will but merely judgment…”.[8] The greatest strength of the judiciary is the faith of the people in it.  Faith, confidence and acceptability cannot be commanded; they have to be earned.  And that can be done only by developing the inner strength of morality and ethics.

 

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