S.O.S e – Voice For Justice – e-news weekly
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Editor: Nagaraja.M.R.. Vol.12..Issue.51….….31/12/2016
Traitors in Indian Judiciary & Police
https://www.scribd.com/document/329980170/Traitors-in-Judiciary-Police
Crimes by Khaki
https://www.scribd.com/document/334590032/Crimes-by-Khaki ,
Editorial : Human Rights Violations by Judges & Police
The public servants & the government must be role models in law abiding acts , for others to emulate & follow. if a student makes a mistake it is excusable & can be corrected by the teacher. if the teacher himself makes a mistake , all his students will do the same mistake. if a thief steals , he can be caught , legally punished & reformed . if a police himself commits crime , many thieves go scot-free under his patronage. even if a police , public servant commits a crime , he can be legally prosecuted & justice can be sought by the aggrieved. just think , if a judge himself that too of apex court of the land himself commits crime – violations of RTI Act , constitutional rights & human rights of public and obstructs the public from performing their constitutional fundamental duties , what happens ?
Our whole hearted respects to honest few in judiciary , police & public service who are an exception.
Judges & Police themselves must first learn to respect human beings as human beings. When you treat them like animals they will also reciprocate do remember. Or else the almighty will ensure DOG’S DEATH to corrupt judges & police. On the D Day in the Almighty’s court corrupt judges & police will face ultimate punishment , no match fixing.
Judges & Police must do their constitutional duties without bias , refer following case details and act :
Traitors in Judiciary & Police
https://www.scribd.com/document/329980170/Traitors-in-Judiciary-Police ,
The public servants & the government must be role models in law abiding acts , for others to emulate & follow. if a student makes a mistake it is excusable & can be corrected by the teacher. if the teacher himself makes a mistake , all his students will do the same mistake. if a thief steals , he can be caught , legally punished & reformed . if a police himself commits crime , many thieves go scot-free under his patronage. even if a police , public servant commits a crime , he can be legally prosecuted & justice can be sought by the aggrieved. just think , if a judge himself that too of apex court of the land himself commits crime – violations of RTI Act , constitutional rights & human rights of public and obstructs the public from performing their constitutional fundamental duties , what happens ?
It gives a booster dose to the rich & mighty , those in power , criminals in public service to commit more crimes. that is exactly what is happening in india. the educated public must raise to the occasion & peacefully , democratically must oppose this criminalization of judiciary , public service. then alone , we can build a RAM RAJYA OF MAHATMA GANDHI’S DREAM.
Day after day we are seeing allegations against judges in crimes against women , sex crimes , judicial orders for money , etc in the media. There is total secrecy in the functioning of judiciary in india with regards to disciplinary proceedings , promotions and selection of judges. We the public don’t know whether proper investigation / enquiry is done in such cases of allegations against judges , what action taken against the guilty judges ?
Hereby , we demand code of conduct for judges & police with provision of criminal prosecution of violators.
Regard for the public welfare is the highest law (SALUS POPULI EST SUPREMA LEX).
No man shall be condemned unheard (AUDI ALTERAM PARTEM).
No man can be judge in his own cause (NEMO DEBET ESSE JUDEX IN PROPRIA SUA CAUSA).
An act of the Court or public office shall prejudice no man (ACTUS CURIAE NEMINEM GRAVABIT).
Your’s
Nagaraja Mysuru Raghupathi
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I ,NAGARAJA.M.R. hereby do declare that information given above are true to the best of my knowledge & belief. If i am repeatedly called to police station or else where for the sake of investigations , the losses i do incurr as a result like loss of wages , transportation , job , etc must be borne by the government. prevoiusly the police / IB personnel repeatedly called me the complainant (sufferer of injustices) to police station for questioning , but never called the guilty culprits , rich crooks , criminals even once to police station for questioning , as the culprits are high & mighty . this type of one sided questioning must not be done by police or investigating agencies . if anything untoward happens to me or to my family members like loss of job , meeting with hit & run accidents , loss of lives , death due to improper medical care , etc , the jurisdictional police together with above mentioned accussed public servants will be responsible for it. Even if criminal nexus levels fake charges , police file fake cases against me or my dependents to silence me , this complaint is & will be effective.
Powers that be , higher ups have referred all my previous cases to police although in most of the cases police don’t have jurisdiction over it. It sends a subtle message by police force to the complainant to keep silent . In the remaining cases which are under their jurisdiction police don’t act against higher ups , high & mighty. In such cases police lack practical powers , their hands are tied although they are honest. As a end result , police have repeatedly called me to police station number of times ( have never called guilty influential persons even once) took statement from me and closed the files. Hereby , I do make it clear the statements made by me in my original petitions , PILs , news papers , etc while I was in a free & fair atmosphere are TRUE , over rides , prevails over all the statements made by me before police earlier and which will be made by me in future before police.
If I or my family members or my dependents are denied our fundamental rights , human rights , denied proper medical care for ourselves , If anything untoward happens to me or to my dependents or to my family members – In such case Chief Justice of India together with the jurisdictional revenue & police officials will be responsible for it , in such case the government of india is liable to pay Rs. TWO crore as compensation to survivors of my family. if my whole family is eliminated by the criminal nexus ,then that compensation money must be donated to Indian Army Welfare Fund. Afterwards , the money must be recovered by GOI as land arrears from the salary , pension , property , etc of guilty police officials , Judges , public servants & Constitutional functionaries.
date : 05.12..2016…………………………..Your’s sincerely,
place : India……………………………………Nagaraja.M.R.
Access to Justice is a fundamental right guaranteed under Article 14 & 21 of Constitution: SC Constitution Bench
The Constitution Bench of the Supreme Court has held that access to Justice is a Fundamental Right guaranteed to citizens by Article 14 and Article 21 of the Constitution of India. The five Judge Bench comprising of Chief Justice of India T.S. Thakur, Justices Fakkir Mohamed Ibrahim Kalifulla, A.K. Sikri, S.A. Bobde, and R. Banumathi has made the above observation while answering a reference to it, which arose from Transfer Petitions, eleven seeking transfer of civil cases from or to the State of Jammu and Kashmir while the remaining two seek transfer of criminal cases from the State to Courts outside that State. The Bench further observed that if “life” implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or other basis for holding that denial of “access to justice” will not affect the quality of human life so as to take access to justice out of the purview of right to life guaranteed under Article 21. “We have; therefore, no hesitation in holding that access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution. The Citizen’s inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws. Absence of any adjudicatory mechanism or the inadequacy of such mechanism, needless to say, is bound to prevent those looking for enforcement of their right to equality before laws and equal protection of the laws from seeking redress and thereby negate the guarantee of equality before laws or equal protection of laws and reduce it to a mere teasing illusion. Article 21 of the Constitution apart, access to justice can be said to be part of the guarantee contained in Article 14 as well.”, the Bench added. ESSENCE OF ACCESS TO JUSTICE According to the Bench the following are the four main facets that constitute the essence of access to justice (i) The need for adjudicatory mechanism: One of the most fundamental requirements for providing to the citizens access to justice is to set-up an adjudicatory mechanism whether described as a Court, Tribunal, Commission or Authority or called by any other name whatsoever, where a citizen can agitate his grievance and seek adjudication of what he may perceive as a breach of his right by another citizen or by the State or any one of its instrumentalities. In order that the right of a citizen to access justice is protected, the mechanism so provided must not only be effective but must also be just, fair and objective in its approach. So also the procedure which the court, Tribunal or Authority may adopt for adjudication, must, in itself be just and fair and in keeping with the well recognized principles of natural justice. (ii) The mechanism must be conveniently accessible in terms of distance: The forum/mechanism so provided must, having regard to the hierarchy of courts/tribunals, be reasonably accessible in terms of distance for access to justice since so much depends upon the ability of the litigant to place his/her grievance effectively before the court/tribunal/court/competent authority to grant such a relief. (iii) The process of adjudication must be speedy. “Access to justice” as a constitutional value will be a mere illusion if justice is not speedy. Justice delayed, it is famously said, is justice denied. If the process of administration of justice is so time consuming, laborious, indolent and frustrating for those who seek justice that it dissuades or deters them from even considering resort to that process as an option, it would tantamount to denial of not only access to justice but justice itself. In Sheela Barse’s case (supra) this Court declared speedy trial as a facet of right to life, for if the trial of a citizen goes on endlessly his right to life itself is violated. There is jurisprudentially no qualitative difference between denial of speedy trial in a criminal case, on the one hand, and civil suit, appeal or other proceedings, on the other, for ought we know that civil disputes can at times have an equally, if not, more severe impact on a citizen’s life or the quality of it. Access to Justice would, therefore, be a constitutional value of any significance and utility only if the delivery of justice to the citizen is speedy, for otherwise, the right to access to justice is no more than a hollow slogan of no use or inspiration for the citizen. It is heartening to note that over the past six decades or so the number of courts established in the country has increased manifold in comparison to the number that existed on the day the country earned its freedom. There is today almost invariably a court of Civil Judge junior or senior division in every taluka and a District and Sessions Judge in every district. In terms of accessibility from the point of view of distance which a citizen ought to travel, we have come a long way since the time the British left the country. However, the increase in literacy, awareness, prosperity and proliferation of laws has made the process of adjudication slow and time consuming primarily on account of the over worked and under staffed judicial system, which is crying for creation of additional courts with requisite human resources and infrastructure to effectively deal with an ever increasing number of cases being filed in the courts and mounting backlog of over thirty million cases in the subordinate courts. While the States have done their bit in terms of providing the basic adjudicatory mechanisms for disposal of resolution of civil or criminal conflicts, access to justice remains a big question mark on account of delays in the completion of the process of adjudication on account of poor judge population and judge case ratio in comparison to other countries. (iv) The process of adjudication must be affordable to the disputants: Access to justice will again be no more than an illusion if the adjudicatory mechanism provided is so expensive as to deter a disputant from taking resort to the same. Article 39-A of the Constitution promotes a laudable objective of providing legal aid to needy litigants and obliges the State to make access to justice affordable for the less fortunate sections of the society.
CJAR Demands In-House Enquiry Against Justice C.V. Nagarjuna Reddy For Alleged Atrocities Against Dalits
BY: APOORVA MANDHANI
In a letter addressed to the Chief Justice of India, the Campaign for Judicial Accountability and Reforms has sought initiation of an In-House enquiry against Justice C.V. Nagarjuna Reddy for alleged atrocities against the Dalit community. The representation refers to allegations of Dalit atrocities and criminal misconduct by the Judge against Mr.Rama Krishna, former Principal Junior Civil Judge, Rayachoti, Kadappa District, currently under suspension. Mr. Krishna had alleged that he was forced by Justice Reddy to remove the name of Mr. Pavan Kumar Reddy who happens to be the brother of Justice Reddy, from a dying declaration recorded by Mr. Rama Krishna when he was posted as Magistrate in Rayachoti. Rayachoti, in Kadappa District is the native place of Justice C.V. Nagarjuna Reddy and his brother Mr. Pavan Kumar Reddy is the Additional Public Prosecutor at Rayachoti courts. The dying declaration had incriminated Mr. Pavan Kumar Reddy, allegedly disclosing that he had doused him with kerosene and set him on fire for not agreeing to sign on a blank paper. It is also alleged that subsequent to the recording of the declaration, Justice Reddy purportedly threatened and abused Mr. Krishna, when he refused to remove his brother’s name from the dying declaration. It has also been alleged that the Magistrate was later summoned to Justice Reddy’s house, where he was beaten up and abused. The Magistrate then approached the High Court Vigilance Registrar, and submitted a written complaint, namingvarious Officers of Court at Rayachoty, who were indulged in illegal acts, misplacing court records and making files disappear. No action was however taken by the High Court on the said complaint. A complaint was also filed with the Chief Justice of the Andhra Pradesh High court and the Chief Justice of India. The representation further makes reference to a series of unexplained transfers and suspension, claiming that he was being harassment for complaining against Justice Reddy and his brothers. Furthermore, the representation alleges that the appointment of Justice Reddy’s brother as the Additional Public Prosecutor was in contravention of the provisions of Section 24 of the Criminal Procedure Code, which mandates that a person who has been practicing as an advocate for not less than seven years is eligible to be appointed as Additional Public Prosecutor. This requirement was not fulfilled in the case of Mr. Pavan Kumar Reddy. Listing down several other instances of nepotism and Dalit atrocities, CJAR therefore demands that an in-house enquiry be initiated and that pending enquiry, no judicial work be allotted to Justice Reddy.
Misconducting judges
BY: SAUMYA DEV
Recently, country witnessed the most unimaginable act of bravado from a sitting judge of a High Court. Recommendation for appointment of 12 judges by the collegium in the Madras High Court was questioned by Advocates and their Writ Petition was being heard by a Bench comprising of Justices V Dhanapalan and K Sasidharan. Justice Karnan, sitting judge of the same court, a man not unknown to controversies, barged into the courtroom and started making allegations in open court expressing his objections to the manner of appointment of those 12 judges. He had many other avenues to channelize his feelings, the avenues well within the four corners of judicial conduct expected from a constitutional functionary. And yet he chose this convenient option of whimsical conduct. Had been a member of subordinate judiciary, he would have been shown the door by now. No action can seemingly be taken against a sitting judge when he decides to barge into court room whilst the proceedings are in force and hurl allegations, other than transferring him to another High Court. And even this form of punishment and its form of implementation will not fail to amuse one for its absurdity. There is a general perception in the judicial community that High Court Benches of North-Eastern States are meant for accommodating such judges, which effectively demean such High Courts. Is such High Courts any inferior, or are those areas any less a part of India? These questions remain yet to be answered. Misconduct of Judges of High Court and Supreme Court is a problem with no tangible solution so far. Lawyers may boycott, the public may protest, vigilante namesake committee could be set, unrealistic impeachment proceedings may be initiated, errant judges may be transferred, and nothing beyond. We have enough provisions for disciplining the subordinate judiciary, the High Court is vested with power of superintendence. On the other hand, no disciplinary action can be taken against the judges of the Supreme Court and High Court. Let us hope that the impending the Judicial Standards and Accountability Bill, 2010 may address many areas of concern. The Constitution provides that judges of the High Courts and Supreme Court can be removed only by Parliament on the basis of a motion in either the Lok Sabha or the Rajya Sabha. The existing procedure for investigation into allegations of misbehaviour or incapacity of Supreme Court and High Court judges is given in the Judges (Inquiry) Act, 1968 The 2010 Bill replaces the Judges (Inquiry) Act, 1968 and avowed objects are (a) create enforceable standards for the conduct of judges of High Courts and the Supreme Court, (b) change the existing mechanism for investigation into allegations of misbehaviour or incapacity of judges of High Courts and the Supreme Court, (c) change the process of removal of judges, (d) enable minor disciplinary measures to be taken against judges, and (e) require the declaration of assets of judges. It is interesting to study the allegations of misconduct of members of the Constitutional Courts. Studying such instances gives an insight into faulty foundation of our judicial system. In an affidavit filed in Supreme Court by Shanti Bhushan, Senior Advocate who was the Union Law Minister in post emergency period, made a shocking allegation that 8 out 16 Chief Justices we had, were corrupt. In the light of such a revelation, there are two possibilities before the Court to salvage the prestige of Indian judiciary, either convict Shanti Bhshan or order investigation against those 8. Both are not happening in reality except a slow moving contempt proceedings. Why so ? The root of the problem lies in selection method of judges. It saddening to see that many judges of our constitutional courts behave without grace and majesty expected from them. There have been incidents of exorbitant display of rage by the judges acting in impulse against the lawyers. It has now become a common feature in Courts to see Judges and Lawyers argue in a heated atmosphere and judges use words not befitting to the seat they occupy. It is difficult to bring in such misconducts within a legislative framework and find solution. We have seen Punjab and Haryana High Court judges taking mass casual leave to protest against it’s then Chief Justice who allegedly withdrew cases from the board of judges without their notice. It may be difficult to decide here, which instance is worse, the CJI arbitrarily withdrawing cases or the judges resorting to such tactics without paying regard to the court decorum. What ultimately matters is the quality of men and women. Recently, a national daily reported habit of late sitting of a sitting Supreme Court judge. Whatever may be the reasons justifications for continued late sitting, judiciary must have a known system to govern and Court hours should not be judge centric. Most often, Rules and discipline are made by judges according to their personal choice and no one can even beg to differ with the ways of their lordships. We must have uniform court procedure. In the Apex Court, some of the Judges had imposed a Rule that ‘ no Passover for the first ten matters’. Though it caused great inconvenience to the lawyers, the ‘obedient bar’ religiously followed for the fear of displeasing their lordships. Judges remarks to arguments of a lawyer that “don’t give lecture to us”, is thoroughly non-judicial and condemnable, but lawyers for professional sake condone it and move on. What is depressing is that majority of Senior Lawyers swallow such ignominy without a murmur. The press is silent in such aspects for fear of contempt power which is is exploited to bury criticism. It was only after a mass uproar that truth became an exception to the Contempt of Courts Act. There are criticisms on the exercise of contempt jurisdiction, and it is always judge centric. Contempt for one judge need not be contempt for another.So while in the case of P N Dudav v P Shiv Shankar (AIR 1988 SC 1208 at 1213), a cabinet minister was let go off even when he called the judiciary to be full of anti social elements, in the case of Mohd Zahir Khan V. Vyai Singh (AIR 1992 SC 642), a poor man was charged with contempt for calling the judiciary with the same label. And while one may be tempted to argue that it is impossible to completely dispense with discretion, it would be worthwhile to remind ourselves of the fact that judicial discretion coupled with judicial misconduct and the knowledge that one could get away with the same, would be a lethal weapon for judicial disarray. What really amounts to judicial conduct as embossed in the Oath of the judges as given in the third schedule of the constitution, or the Restatement of Values of Judicial Life, 1999’ a code of conduct adopted for the judges, by the judges or the Bangalore Principles of Judicial Conduct, 2002. Judges have to abide by the principles of natural justice, be impartial in their judgments or actions while the proceedings are going on. They cannot act upon personal idiosyncrasies, personal bias or whimsical behavior. They have to be consistent in their conduct. They have to rise above narrow considerations and not be prone to external influences or political pressures. Their act cannot prejudice the course of justice or life of any man. They have to mandatorily follow the procedure established by law. They have to be well versed and conversant with the facts of the case and permit unbiased hearing from both sides. Unending cross examinations or infinite arguments cannot form a part of the platter of a judge. A judge has to dissociate himself of all forms of social interactions with persons involved with the case. Now let us consider the real world scenario. In many instances, the judge’s kith and kin become biggest tax payers and busy practitioners during their serving period. It is a common knowledge that in every court in the country, some lawyers are more equal before some judges. Judges should realize that their proximity in some manner is being professionally encashed by a shameless lawyer. It is obviously an ugly seen to watch a designated Senior Lawyer appearing only in one particular court in many matters when he is not engaged in other courts. The Bar Council of India Rules, 1975 in Rule 6, Chapter II mandate that an advocate shall not enter appearance, act, plead or practice in any way before a court, Tribunal or Authority, if the sole or any member thereof is related to the advocate as father, grandfather, son, grand-son, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law. The law commission in its 230th report has criticized this practice of Uncle Judges. “Often we hear complaints about ‘Uncle Judges’. If a person has practised in a High Court, say, for 20-25 years and is appointed a Judge in the same High Court, overnight change is not possible. He has his colleague advocates – both senior and junior – as well as his kith and kin, who had been practising with him. Even wards of some District Judges, elevated to a High Court, are in practice in the same High Court. ..The equity demands that the justice shall not only be done but should also appear to have been done… In any case, the judges, whose kith and kin are practising in a High Court, should not be posted in the same High Court. This will eliminate “Uncle Judge”. There are many undefined misconducts such as Retiring judges delivering judgments in haste or not delivering judgments at all, delay in delivering judgments etc. A new form of misconduct has born these days, thanks to the media, the Judges commenting on their own judgments post retirement. Judges after having rendered judgments become functus officio in reference to those judgments and should not come up with comments post their retirement. Justice A K Ganguly’s startling rejoinder clarifying and defending the 2G judgment after the same was critized by Lok Sabha speaker, Somnath Chatterjee, was a rather unwarranted affair, as the same could potentially interfere with the precedential value of the judgmen. We need to develop a uniform court procedure and eliminate the personality driven functioning of Judges. Our courts should be more open to public scrutiny. The video recording of court procedure is a good measure to make our judges and lawyers more accountable. We don’t have the system of recording of arguments, unless judges take note of it. It is humanly not possible to remember every word and submissions in all matters and the causality is non consideration of certain points while rendering the judgment. Unlimited and unchecked judicial power, if not bestowed with the right men and women, is bound to cause mischief. Judiciary has fiercely guarded its independence. Rule of law indeed mandates the same. And yet a proper judicial mechanism for addressing the judicial complaints is consistent with the principles of judicial independence. Code of Ethics is a self regulatory tool. May be as evidenced above, it is not a sufficient check. They often say “What cannot be cured must be endured”. It is hard to do that when it relates to important tenets of civil society like Rule of Law and the Sanctity of Justice. Thus it is time that there is someone who could judge these erring and despotic Judges. In the words of Justice M N Venkatachaliah “Sunlight is the best defense”.
We the People
Reimagining Judicial Reform
When the judiciary and the centre argue about the need for transparency and accountability, it seems that both envision these as duties only towards each other, and not towards society generally. This myopia is evident throughout the history of their struggle into the present-day: neither has focused on making information public, let alone thought of other ways to involve a broad cross section of the people, even as this is becoming more commonplace worldwide.
This year, Constitution Day became the latest front in one of the most hotly debated constitutional battles in our history—the tussle between the judiciary and executive over judicial appointments. Using the rather odd metaphor of constitutional Lakshman Rekhas, signifying the separation of powers between the two branches, senior leaders on both sides spent the day insinuating that the other had overstepped its bounds by trying to control appointments (Choudhary 2016). As has become a familiar pattern, the entire exchange centred merely on this, and there was little discussion of the boundaries that matter most to common people, who should presumably be the centre of all constitutional debates—boundaries that bar access to both information and justice.
Such an absence of people-centred measures marks most of the exchanges between the judiciary and executive in the last year, ever since the former struck down the National Judicial Appointments Commission (NJAC), which the latter had proposed to replace the judicial collegium in making appointments. In the ensuing deadlock over pending high court appointments and finalisation of the Memorandum of Procedure (MoP), which sets out criteria for judicial appointments, Supreme Court judges have repeatedly blamed the centre for overburdening courts by delaying appointments. This is even though an alarming number of seats have remained vacant across courts for years before the NJAC case—a failure for which the judiciary is equally responsible. The centre, for its part, has blamed the high courts for delaying the appointments process and the MoP, while helpfully clarifying that it is not playing any “blame game” (Indian Express 2016).
In this seemingly singular focus on trying to pass responsibility to the other, we see little sense of either branch’s responsibility to the people. While the Supreme Court rather uncharacteristically solicited suggestions for the framing of the MoP from bar associations and civil society groups, the current MoP that is being negotiated between the two branches remains under wraps, making it clear that public consultation on the MoP is not a priority for either (LiveLaw 2016).
We argue that in bandying about the need for transparency and accountability, it seems that both the centre and the judiciary envision these as duties only towards each other, and not towards society generally. This myopia is evident throughout the history of their struggle into the present-day: neither branch of government has focused on making information public, let alone thought of other ways to involve a broad cross section of the people, even as this is becoming more commonplace worldwide. In continuously trying to blame each other for various woes in judicial administration, both have neglected to acknowledge their own failures—in clogging up courts with excessive litigation, for instance, or neglecting to assess judicial merit regularly. Recentring the people in all these discussions can turn the current crisis into an occasion to create systemic, lasting change.
Contested Constitutional Space
The debate between the judiciary and the executive has always centred on primacy, arguably at the expense of civil society and its stake in appointments. In all the landmark judges’ cases, in which the Supreme Court interpreted constitutional provisions on judicial appointment, the main issue was which branch of government had greater control. The first judges’ case came to the Court after a bitter period in judiciary–executive relations, with the executive making controversial appointments and transfers, and judges protesting perceived threats to their independence (Divan 2013). In that case, the Supreme Court held that the executive’s view would prevail over the chief justice’s in matters of judicial transfer and appointment (S P Gupta v President of India & Ors, 1981). In the second and third judges’ case, the apex court reversed this ruling and elaborated the collegium procedures that currently govern appointments, giving primacy to the judiciary to protect its independence and insulating it from political interference (Supreme Court Advocates-on-Record Association & Anr v Union of India, 1993; In re: Appointment and Transfer of Judges). Civil society received slightly greater attention in the NJAC or fourth judges’ case since, in addition to judicial and executive representatives, the commission comprised two eminent laypersons, to give some space to public participation (Supreme Court Advocates-on-Record Association and Ors v Union of India, 2015). But the narrow framing of civil society’s role, and the suggested mode of appointment of these eminent persons, came with its own set of problems. Remarkably, the behaviour of the centre and Supreme Court collegium, following the NJAC judgment, indicates that the key concern for both remains control, and not necessarily the people.
Opaque and Exclusionary Appointments
The problem with such a narrow debate is that even if the two branches were to resolve their dispute overnight, it is unlikely that either transparency or accountability would improve meaningfully for the public. The few people-oriented measures in current discourse are limited to talk of disclosing information on candidates recommended for appointment and publishing minutes of appointment proceedings. While this seems like an obvious measure, attaining even this would be a significant achievement in the Indian context. The judiciary has never made such information public, and has purposefully resisted providing related information as well. For instance, it was only after facing intense pressure from the public and from some judges for years that the Supreme Court began uploading its judges’ assets on the Court website. Despite not being covered under any exception, the judiciary has managed to keep itself out of the purview of the Right to Information (“RTI”) Act for over 10 years, by arguing that disclosure of information under RTI could interfere with judicial independence (Bhushan 2009).
This question is still pending, and was referred to a Constitution Bench earlier this year (India Today 2016). While some appointments or judiciary-related information might certainly be too sensitive to make public, the Indian judiciary has responded to this concern by systematically blocking all access to information, instead of selectively keeping some data classified and opening up debate on this classification.
The centre has not been much better at making appointment-related information public. Of the 77 names recommended by the collegium for high court appointments, it recently returned 43 to the judiciary for reconsideration, without divulging any reasons to the public. Much later, the centre clarified its objections to news agencies in extremely vague phrases such as “serious complaints” and “adverse intelligence reports.” The collegium reiterated almost all of the returned names within a week, leaving little time for the reconsideration it had been asked to carry out, and current law dictates that reiterated judges must be appointed (Times of India 2016). With the rest of the country being kept in the dark as to the exact nature of these complaints and their resolution, how can the judiciary or the executive hope to retain public trust and legitimacy in the eyes of the people?
This is in sharp contrast to several other countries like Argentina and the United Kingdom (UK), where publicising appointments-related information is a minimum requirement. Since 2003, in response to a crisis of confidence in the judiciary, Argentina has required judicial nominees to disclose their assets, employers, and potential conflicts, and mandated the government to publish these in leading newspapers and official outlets (Herrero and López 2010). In the UK, the Judicial Appointments Commission regularly advertises vacancies, compiles detailed statistics on its appointments, uploads minutes of meetings on selection mechanisms and so forth. Both the judiciary and executive in India have not only failed to implement this minimum and make appointment proceedings publicly accessible, but they have also failed to imagine going beyond this, to make proceedings participatory. In countries such as Kenya and the United States, government bodies invite law associations to evaluate judicial candidates, and welcome comments from the general public as well (Opiyo 2011; University of Cape Town 2010). Yet others like South Africa even accept nominations from the public, and allow the media and any member of the public to sit in on interviews of candidates, enabling people’s active participation in appointment processes (University of Cape Town 2010). Encouraging broad-based participation has evident benefits: it could reveal that a wide section of lawyers support a candidate’s integrity, legitimising her appointment; or it could allow academics, civil society organisations, or even litigants to raise concerns about her commitment to constitutional values.
Moving beyond Appointments
The anxiety over ceding primacy to the other has sidelined measures either branch can take, independent of each other, to demonstrate real commitment to the oft-repeated buzzwords of transparency, independence, merit, and accountability. Even if our judicial appointment processes were to make room for civil society inputs, it would be impossible for the public to have informed opinions on a judge’s suitability in the absence of systematic and transparent performance evaluation. Assessing judicial performance through periodic reviews is a common practice internationally, and in the Indian lower judiciary. But our higher judiciary has studiously failed to evolve internal mechanisms to appraise Supreme Court and high court judges. Subordinate judges are subject to periodic checks through annual confidential reports (ACRs), which suffer from some imperfections—such as a lack of uniformity and objectivity—but it provides a framework for assessing judges on various objective and subjective criteria. The higher judiciary must prioritise evolving such holistic metrics, and subject its conduct and capability to regular checks as well. This is particularly important for Supreme Court and high court judges, since they determine questions of constitutional importance and since a significant number of them are direct appointees from the bar, whose ability to adjudicate has previously not been subject to review.
The higher judiciary’s actions, unfortunately, seem to suggest that while it expects accountability from other organs of government, it does not hold itself to the same standard. But the exclusion of civil society from appointments increases the judiciary’s burden to be accountable to it, and such accountability would be meaningless if it were granted only at the stage of appointments and the system made completely opaque afterwards. Even if courts deem that these evaluations are too sensitive to be disclosed in full, they can still hold the judiciary accountable to the people in other ways, by providing a robust feedback mechanism to litigants and lawyers, so that they can contribute to the evaluations.
A genuine commitment to people-centric reform would also involve addressing the over-representation of privileged elites and dominant caste groups. Continuing structures of hereditary privilege, and gendered expectations of career choice, have ensured that women and people from socially and economically marginalised groups remain underrepresented in the judiciary. While recommending candidates, judges have been informally advised to duly consider suitable candidates from amongst Other Backward Classes (OBCs), Scheduled Castes (SCs), Scheduled Tribes (STs), minorities and women, but this seems to have had little effect on their inclusion (Chawla 1999).
The judiciary has often taken on significant social justice causes, but if its internal elevation does not reflect the same self-professed commitment, the public can rightly question its legitimacy and authority in claiming to uphold civil society’s interests. Reservations do exist for certain groups in the subordinate judiciary, and their promotions are supposed to be based on merit. But there have been several allegations of caste-based discrimination against high court judges who evaluate and determine the career progression of subordinate judges, which makes it hard to place complete confidence in the fact that deserving, meritorious judges will be elevated to higher judiciary posts. For instance, in 2011, the Chhattisgarh High Court ordered the compulsory retirement of 17 SC and ST judges for poor performance, while higher-caste judges with lower grading continued on the service (Umar 2011).
Further, a disproportionate number of higher court judges are appointed directly from the bar, since these appointments are governed by an informal and self-evolved 60:40 split between members of the bar and district judiciary (Kuldip Singh v Union of India, 2002). Combined with the self-appointing system, this has also resulted in several instances of sitting judges appointing close relatives, in clear violation of merit-based appointment principles. The creation of insulated judicial dynasties, where a reported 70% of all sitting high court judges come from the same 132 families, has made “climbing the ladder” practically impossible for others, especially women and people from marginalised groups who do not have access to the same networks of privilege (Indian Express 2014).
Against this backdrop, it is hardly surprising that only six women judges have been appointed to the Supreme Court in the past 66 years, and presently, there is one woman judge in the apex court out of 24. The latest data for high courts, from November 2015, presents a similar picture, with merely 62 female judges compared to 611 male judges (Nair 2015). An exact breakdown for caste composition is not available, though certain figures can shed light on the larger picture. In the last six years, no SC judge has been elevated to the Supreme Court, and as of May 2016, there were no SC chief justices in the high courts either (Chhibber 2016).
Legitimacy
Any democratic institution in a deeply divided society derives its legitimacy in the eyes of the public from its representation and inclusiveness. For this reason alone, judicial dynasties and structures that enable them must be disabled. Proactive measures are necessary to change modes of judicial training, career progression and socialisation that reinforce dominant attitudes, which compromise the neutrality and independence that the judiciary prides itself on. But despite several calls for such measures in this year alone, neither branch of the government has brought up this issue in any depth.
The executive too has failed to capitalise on opportunities underlying its stalemate with the judiciary, in focusing its energies on securing a veto in judges’ appointments. Granted, the executive has limited control over judicial matters, but there are still a number of initiatives within its powers that it can expedite. For decades, the government has issued documents recognising the potential of technology and citizen–centric services to transform access to justice, expedite justice–delivery, and improve accountability and transparency for litigants. But of the four pillars of the Technology for Justice Initiative (a part of the larger Digital India project)—namely, ePolice, eProsecution, eCourts, and ePrisons—only eCourts seems to have taken off meaningfully. Even this project has been characterised by flawed resource allocation, imprecise budgeting, and a lack of institutional coordination, leading to multiple delays in its completion. The executive’s failure to establish links and interoperability between the police, prison, and courtroom services means that digitisation and integration of India’s justice system remains a distant dream.
In recent spats with the judiciary, the centre has been quick to pass back any blame for delaying appointments and worsening court backlogs. For instance, the centre recently went as far as to cite how since 1990, it has made the second-highest number of appointments this year, far above the average (DNA 2016). But this statistic merits a closer look, since the increase in high court appointments this year is neither proportional to the increase in sanctioned judge strength nor litigating population. Absolving itself of blame, the centre continues to advise the judiciary on how to reduce backlog, by shortening vacations, etc, while itself burdening the courts with excessive government litigation! The executive had previously acknowledged the mechanical and inefficient manner in which government litigation is often pursued, and even formulated a National Litigation Policy in 2010. But ambiguous language and unmeasurable outcomes rendered the policy a mere piece of paper. Now, when the centre holds the judiciary to task for burgeoning backlogs, it develops selective amnesia about how government litigation, which is reportedly almost half of all litigation in courts, clogs up sparse judicial time and disadvantages other litigants.
The current struggle between the judiciary and executive is in some ways limited by its own history, a rehash of the same fights for control present since the early years of the republic. Both are ostensibly defending two different interpretations of a constitutional provision. But the debate is so entirely subsumed under a concern for primacy that it no longer seems to really hinge on the constitutional text, and it certainly does not centre on the people that the Constitution is about. The failure to imagine an expanded role for civil society is profoundly unjust towards the people these institutions are meant to serve, and often based on downright disdain. In the NJAC judgment, Justice Khehar wrote that civil society “is not yet sufficiently motivated, nor adequately determined, to be in a position to act as a directional deterrent, for the political-executive establishment” (Supreme Court Advocates-on-Record Association & Ors v Union of India, 2015). Ordinary citizens have been given only a dichotomy, between either executive or judicial dominance. It is in departing from this binary, and centring the conversation on the public, that any meaningful solutions to this tussle will lie.
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