GOLMAAL in Judge Selection
Wide consultation, rather than the closed-door deliberations of the collegium, is what the Supreme Court and the High Courts needThe decisions of the Supreme Court in the two judges cases in 1993 and 1998 have been criticised because they have not only practically amended the Constitution (which could only have been done by Parliament) by inventing a collegium system unknown to the Constitution, but also because the working of the collegium system has often been found defective. I would, therefore, like to describe my preferred method of recommending names for appointment.
I came to Chennai as Chief Justice of the Madras High Court in November 2004. The sanctioned strength of High Court Judges here was then 49 (60 today). At the time, there were about 23 or 24 vacancies, which meant that about half the posts in the High Court were lying vacant.
I was a total stranger to Tamil Nadu as I had come from Uttar Pradesh. I had been a lawyer in the Allahabad High Court, and thereafter a judge there.
Every institution is really about the personnel manning it. So, a High Court is not really about a beautiful building or beautiful lawns but the judges who man it. They should be first class people in conduct and in legal knowledge. I was determined to recommend good names for appointment as High Court Judges and not bow to pressure.
This was the method I adopted:
I requested a dozen sitting judges of the High Court, in order of seniority, to give me a list of lawyers of the High Court whom they thought deserved to be appointed as High Court judges.
I also requested four or five very senior and respected lawyers of the Madras High Court to give their lists. I also consulted some respected retired judges.
Thus I got about 17 or 18 lists.
I received those lists, and, along with my two senior most colleagues, found certain names to be common in many lists. Enquiries were made even about those names. We also considered some names which were not very common. This exercise went on for two to three months and ultimately there was consensus. It was these names which were recommended for appointment. I then went to Delhi and met the then Hon’ble Chief Justice of India, Mr. Justice Lahoti, and informed him about the methodology I had adopted.
I told him that I had insisted that I would only recommend the names of persons who had a great reputation and good practice, were non-controversial and not too close to any political party (otherwise such persons would not be neutral and impartial). I also referred to what was said by a Lord Chancellor of England (who had then the authority to recommend names for appointment of British High Court judges) that the person whom he would recommend must be a gentleman, and it would do no harm if he knew a little law! (The second part of this sentence should not be taken literally because it is certain that a person to be appointed as a judge must know some law! What I meant was that if a person has put in 20 years as a lawyer, he is bound to know some law. More important, thereafter, is that he should be of high character.)
I told Mr. Justice Lahoti that the methodology that I had adopted was a result of a consensus after wide consultation with about 20 persons including sitting judges, respected retired judges and very senior respected lawyers of the High Court.
Since none of the persons I had recommended was either known to me (except for their performances in cases they argued before me) or belong to my caste or community, I had no personal interest in any such person. Hence it was up to the Supreme Court Collegium to approve or disapprove the names. In any case, I told him, it would not, in any way, bother me if any name was rejected because I had no personal interest.
I must add that certain important people did try to influence me in this connection, but I paid no heed to them as I was determined to do my duty to the Madras High Court, come what may. As a result of that, almost all my recommendations were accepted, and 17 judges were appointed to the Madras High Court in December 2005, a record for that High Court.
In my opinion, the methodology which was adopted by me should also be adopted for making recommendations for appointment of judges in the Supreme Court as well as in all High Courts. The present system, based on the decisions of the Supreme Court in the Judges Case, is defective as there is a lot of subjectivity. In my opinion, the Judges Cases should not be understood to mean that only the five senior most judges of the Supreme Court (three senior most for the High Courts) should be consulted for appointment as Supreme Court and High Court Judges. There should be very wide consultation with at least 15 to 20 people who are highly reputed as judges, former judges, senior lawyers. After this, the consensus which emerges should be recommended.
I was the sixth in seniority in the Supreme Court. But I regret that I was never consulted by the Chief Justice. The five senior most judges met in a highly secretive manner for deciding whom to recommend as a judge of the Supreme Court. This manner severely restricts the inputs which are required for making high quality recommendations. Justice Ms Ruma Pal, former Judge of the Supreme Court, said that deliberations of the collegium are “a complete mystery.” It should not be so in a democracy, where there should be transparency, otherwise allegations are bound to arise, however unfounded, that improper recommendations have been made for extraneous considerations.
I, therefore, recommend to the Chief Justice and to the Chief Justices of all High Courts, that they should follow the same method I adopted for appointment of judges in the Supreme Court and all High Courts, and not limit the consultations to only Collegium members. In my opinion, the decisions of the Supreme Court in the cases of 1993 and 1998 should be understood in their proper perspective, and not in a narrow sense.
(Markandey Katju, a former Chief Justice of the Madras and Delhi High Courts, former Acting Chief Justice of the Allahabad High Court and former Judge of the Supreme Court of India, is currently Chairman of the Press Council of India.)
Addressing presspersons here on Wednesday, he termed KPSC a "den of corruption" and its recruitment methods "nothing but fraud".
Accusing KPSC Chairman H.N. Krishna of "harping on the single issue" of CoD inquiry into the 1998 recruitment to "cover up all other lapses", Mr. Nanaiah challenged him and other members to "voluntarily submit themselves to an inquiry" if they were indeed men of integrity. He sought to know why the Government was keeping quiet despite being aware of the malpractices in the commission. He said the Government should evolve an alternative system of recruitment since formation of KPSC board was "inherently flawed" and "beyond any clean up". He favoured formation of departmental committees for recruitment, though KPSC could not be wound up as its formation was mandated by the Constitution. Though Home Minister M.P. Prakash had spoken of recruiting tahsildars directly, nothing had been done in that direction, he said. "All public service commission members enjoy immunity guaranteed by the Constitution. These rules were framed assuming that men of integrity would be appointed to the commission. But caste factor and political compulsions have always guided appointments," Mr. Naniah said. State governments, which made these appointments, had no power to sack any of these members.
DS Parameshwarappa, an ex-serviceman and resident of Kasturinagar alleged huge irregularities in the entire process involving big money as bribes. "KPSC chairman Gonal Bhimappa's term is ending in a month. The hurry with which the interview process is being done gives rise to many suspicions," he said.
Parameshwarappa further alleged that KPSC had announced the list of candidates selected for interviews even before the re-totalling process, for candidates who had applied for the same for the written exam.
"I have specific information on KPSC not giving answer scripts sought through RTI Act," he said.
A group of social activists N Vasudev, Harish Aradhya and Parameshwarappa had requested the election commission to postpone the interviews scheduled by the KPSC.
However, the commission said it won't interfere with the working of KPSC, as it is an autonomous body.
In turn, Parameshwarappa has decided to take the matter to the HC, with a PIL. He further stated he would make the Election Commission also a party to it, for failing to act.
However the KPSC defended its actions, saying it was an autonomous institution, and the rule provides KPSC with the authority go ahead with regular appointments and promotions. But this is an irregular appointment, he asserted.
It may be recalled that selection of candidates for interview by KPSC in 1998, 1999 and 2004 too had raised a storm causing damage to its image.
According to Vasudev, the autonomous body does not have the authority to increase the number of posts if there are changes in re-totaling of any candidates. "Moreover, if there is a change, the entire list will have to be changed. We will bring up all these facts before the court," he explained.
Sources said there was lot of confusion in the cut off-marks for candidates selected for oral interview. Many candidates who scored aggregate of over 900 marks out of total 1800 were not called for interview, while some with much lesser marks were summoned, sources added.
However, Gonal Bhimappa, Chairman of KPSC outrightly refuted all the charges. When asked about conducting interviews before the completion of retotaling, he said it would not make any difference as there would be no major changes in the re-totaling.
Responding to allegations of being in a hurry as he is set to retire in a month, Bhimappa clarified that along with him, another senior member N Ramakrishna would also be retiring, and decisions were not being taken by violating the rules. He added the KPSC would go ahead with the schedule of conducting interviews.
The Ravinder Sidhu scandal could see more trouble. A crowd of lawyers recently created a ruckus in the Punjab and Haryana High Court premises in Chandigarh over the alleged involvement of high court judges in the recruitment scandal in Punjab Public Service Commission (PPSC).
Read more at: http://indiatoday.intoday.in/story/ravinder-sidhu-case-justice-ks-garewal-asked-to-reveal-names-of-tainted-judges/1/219795.html
Gowda’s exit came a day before the government will submit a list to the High Court of those who were recruited. Last week the Court had rapped Gowda over irregularities in recruitments for medical colleges in Mysore and Hassan.
Gowda was proceeding to the temple town of Tirupati to offer worship to Lord Venkateshwara last evening when he was summoned by Yeddyurappa to put in his papers. In his two-line resignation letter, he said, “As per your wishes I am resigning from the Ministry. I thank you for giving me an opportunity to serve as a minister”.
A sulking Gowda, once a close confidant of Yeddyurappa before relations soured and an RSS follower, refused to reveal future plans but rejected allegations of irregularities. Gowda had come under opposition attack over irregularities in recruitment of over 350 paramedical staff in medical colleges in Mysore and Hassan.
He is the third minister to be forced out of office from the 28 month old first ever BJP government in the south after being dogged by controversy. S N Krishnaiah Shetty had quit after allegations of financial irregularities in purchase of land from farmers and its sale to Karnataka Housing Board surfaced while he was the minister for Housing.
H Halappa made an unceremonious exit after he faced allegations of rape made by the wife of his friend, a matter now pending in court. Yeddyurappa, who is reported to be toying with the idea of restructuring his ministry, will now have three vacancies to fill, with the strength of the ministry being reduced to 31 after Gowda’s resignation.
Under a truce formula scripted by BJP high command last year after a revolt in the ruling party, led by mining barons and ministers Janardhana Reddy and his brother Karunakara Reddy, Yeddyurappa had axed Shobha Karandlaje. V Somanna had to resign as minister after failing to win the bypoll from Govindrajanagar Assembly constituency.
The High Court had last week not only rapped Gowda over the irregularities in recruitments, but also asked the government to consider continuing eligible candidates while taking exception to the state’s decision to cancel all appointments after the scam surfaced. Meanwhile Yeddyurappa last evening left on a China tour to attend an investors meet.
- Indira Jaising
A midst the rising din of the demand for death penalty for rapists comes the news that three judges of the Karnataka High Court have been involved in what has come to be described as a 'sex scandal' on the outskirts of Mysore at a place called Roost Resorts.
Our attention is now directed to those who dispense justice rather than those who knock at the doors of justice. In both cases, we are talking about the use and abuse of women — those who are victims of sexual abuse, and those who are used as sexual objects, willingly or unwillingly.
After the reports in local newspapers that three high court judges were found with women at a resort, there was the usual crop of denials. Although the Mysore police were called in to settle a brawl, on being told that the persons in question were judges they said that they heard no evil and saw no evil.
And everyone thought the matter ended there.
Attempts to get the names of the judges or of the women in question drew a blank. The bar association also drew a blank as most people said, "Don't quote me… but…"
On November 30, the Bangalore edition of The Times of India published a front-page story giving the names and photographs of the three judges and confirming that the Intelligence Bureau had done an investigation and come to the conclusion that the incident had indeed occurred. There were still no details of the incident, though it was stated that the report has been given to the chief justice of India.
There were reports on the same day that the Karnataka High Court chief justice had sought the transfer of the three judges to Patna, Jammu and Kashmir and Guwahati. Apparently, the chief justice has agreed to this request and the transfer orders have been issued.
Then came the news that the chief justice of India has set up a committee of inquiry under the 'in-house' procedure consisting of the chief justice of the Andhra Pradesh High Court, the chief justice of the Madras High Court and the chief justice of the Patna High Court.
There were still no details in the press about the actual incident and the entire episode continued to be referred to as a 'sex scandal'.
What is interesting about these reports is not what they reveal, but what they conceal. It is a conspiracy of silence. If the information is now available to the chief justice of India, why is it not being made public? Do we, the public, not have the right to information? Ironically, the morning newspapers brought the news that the Freedom of Information Act has been passed. What are the legitimate limits of the right to freedom of information and the requirement of keeping information a secret? This episode would make an interesting case study.
What exactly is at stake here? There is much that should concern the nation about the in
What is at stake here is the pollution of the stream of justice at its very source. There must be countless cases in which these women appeared before these very judges day in and day out of their routine practice. Can one honestly say that in such a situation justice is being done "without fear or favour"? Judges swear on oath of allegiance to "bear true faith" to the Constitution and do justice "without fear or favour". How well have these judges honoured this oath?
What is at stake here is the cynical use of women as sexual commodities. The usual justifications have already begun making the rounds. If the women have not complained, what objection can anyone else have, it is asked. What is lost sight of is the fact that the judges are in a position of dominance vis-à-vis the women, in a position to do favours that pertain to their office.
What is at stake here is the cynical use of public office, the seat of justice, for personal petty gain. It is irrelevant whether the women consented or not. The usual blame game will now begin — blaming the victim rather than the perpetrator; the usual loose talk about the character of the woman in question; the usual attempt to cover up by diverting attention from the actual incident to the motives of those who brought the incident to light.
What is at stake here is the perception of women as sexual commodities by those who are responsible for sitting in judgment over cases brought for and on behalf of women.
The issues at stake here concern one half of Indians. With what faith can Indian women approach the courts demanding the right to equality, the right to be free from sexual harassment or rape and the right to live with dignity, if the persecution of judges who sit in judgment over them is non-negotiable?
In the circumstances, the suggested solution is worse than the offence — to transfer them to Patna, Guwahati and Jammu and Kashmir. Why these particular cities? Are they not an integral part of the country, or are they mere islands within the country that are considered 'punishment postings' where people are sent a la 'crossing Kala Pani' of the old days? To the credit of the Guwahati Bar Association, it protested against the proposed transfer.
The only decent thing to do is for the chief justice of India to disclose full details of the incident so that rumour-mongering comes to an end. This would be in the best interest of the judiciary itself.
As things stand, the rumours are making the rounds that there were more than three judges involved, that the women were professional call girls, many of which are baseless. We, the people, have the right to know. The conspiracy of silence must be broken.
The judges in question must neither be assigned any judicial functions pending an inquiry nor be transferred to sit in judgment over others. Two of the judges are stated to be additional judges. They must not be confirmed. If there is prima facie evidence against the one remaining judge, the chief justice must recommend his impeachment.
It is time for all concerned bar associations, bar councils and other male-dominated bodies of legal professionals to act and ensure that there is no cover-up. There is little point in showing sympathy to women in judgments and in seminar rooms, or in recommending the death penalty for rape if we cannot deal with the men who dispense justice.
There are contempt of court petitions pending in the Karnataka High Court against some of the publications for disclosing details of the incident. Civil society and women's organisations must demand that justice is now done when it comes to the judges themselves.
The law of contempt can offer no solution to the crisis of credibility in the judiciary that this incident has thrown up. One positive aspect of the incident is that it is only after the chief justice of the high court issued a public notice inviting information that he received 20 representations, which led to the discovery of the truth.
Let the truth now be made public.
Justice Vikramajit Sen, Chief Justice of the High Court of Karnataka has now fired a fresh salvo. He has objected to Justice Chandra-shekaraiah’s appointment as Upa Lokayukta on January 21.
Justice M F Saldanha writes to Governor listing Upa Lokayukta Justice Chandrashekaraiahs past record,which he says,was not considered before the appointment
In his letter,a copy of which is with Bangalore Mirror,Justice Saldanha says the name of the recently appointed Upa Lokayukta very prominently featured in the Mysore Roost Resort scandal,which had virtually scandalised the Karnataka judiciary both nationally and internationally.It was a very shameful exposure and what happened there forms a prominent part of the High Court record.Obviously,it was not brought to your notice.
He further says an in-house inquiry was held which was clearly a cover-up job.The letter says had this material been placed before you (instead of being suppressed),the decision would have been different.
Saldanha also says there were other issues that were not placed before the Governor when Justice Chandrashekaraiahs name was proposed to him.He says a petitioner had hit the judge with his slippers.While it is true that nobody can approve of the conduct of the assailant,who was sentenced for contempt of court,the background of the case and the facts,which are very gross,would indicate the provocation was very grave and the facts require to be seriously looked into.
Saldanha also quotes a case,which he says,does not inspire confidence in Chandrashekaraiah.He says that in a case when he was the High Court judge,Chandrashekaraiah had granted a stay on the demolition of an illegal construction whose drainage and sewage outlets were connected to the storm water drain.This was creating health problems for other residents,but the judge had granted a stay on demolition of this illegal construction for two and a half years.
Saldanha also mentions the site allotment to Chandrashekaraiah in the infamous Judicial Layout.He says it is clear under a HC judgement and Supreme Court confirmation that judges are not judicial employees and hence are not entitled to sites in the layout.
Saldanha says the name of Chandrashekaraiah was not known as the one that was proposed and he was sworn in before any material could be placed before the appointing authority (Governor).The post of the Upa Lokayukta is not only very important,but also very sensitive and the appointee must inspire total confidence.If there is even a slight blemish to the track record,with due respect,it would disqualify the candidate, says Saldanha.It is in this background that I most humbly request you that the government be directed to act with a degree of transparency while proposing the names and further more,that there should be a thorough and impartial scrutiny.
Justice Saldanha told Bangalore Mirror,Authorities like the Governor and President are not expected to reply to the letter.But the intention of the letter was to highlight the facts.People will lose confidence in the Lokayukta if persons with such incidents behind them are in the posts.His appointment was rushed through.I myself did not know his name was proposed until the date of swearing-in was announced.Had the Governor spoken to the Bar Council or a group of senior advocates,he would have known about the incidents I have mentioned in the letter.
When BM called Chandrashekaraiahs office,his staff said he was not available as he was in Mysore.They refused to part with his cellphone number.