Jail Tyrant Judges
Dalit’s Diary - Weekly Newspaper On Web
Working For The Rights & Survival Of The Oppressed
Editor: NAGARAJA.M.R… VOL.11 issue.30…… . 02 / 08 / 2017
'... to consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps... their judicial power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.' Thomas Jefferson
Introduction
The question who judges the judges? evokes serious philosophical concerns as does the question who determines the justness of God's dealings with mankind. Judges are only legally trained, and not divinely ordained as infallible humans.
They do not draw inspiration from some unseen super spirit in forming judicial decisions; their decisions represent their personal understanding of law and situations. Judges all belong to political parties. Yes, they have passions for party, for power and compliments from their fellow men. Indeed all the judges we have and know of exercise their franchise in general elections. They have political, moral, cultural and religious preferences.
They have personal whims, caprices, proclivities, idiosyncrasies, quirks, eccentricity and suchlike tendencies. Their fallibilities, frailties, imperfections and weaknesses oftentimes animate their verdicts.
Whether or not inherited from Adam, the sin of judicial self-indulgence or self-celebration is a perpetual temptation. Judicial self-restraint is a perpetual challenge. And perfection is an unattainable goal. The primary constraint on the tendency toward that evil of those who sit in judgment on others is the moral constraint imposed by the professional community to which they belong. Whatever its source, the proclivity for bias and general evil is real and a universal problem for judges and those who judge judges.
The primary function of the judiciary is to manifest the virtue of disinterest to those required to accept a judicial decision. The disinterest of the judiciary has been made increasingly difficult in our time by the movement away from legal formalism to the legal realism that commissions judges to pay heed to the social consequences of their judgments.
But the more heed judges are expected to pay to the social consequences of their decisions, the harder it is for them to lay aside their personal preferences or the interests of their friends and allies. This explains why the verdict of the courts in Ghana can, in some cases, be suitably and comfortably classified as a political memoir.
At best, Judges can only be presumed to be men who are squarely fit to administer justice and settle the differences and cases that roil our lives. This is a mere presumption. No human judge is perfect or infallible. Being manned by men who are essentially amenable to the common and ordinary frailties of humans, the judiciary cannot be seen as or claim to be beyond human checks and controls. The humans who fill the seemingly uncontrolled judiciary are the same as those who fill other state institutions which are carefully controlled, limited and checked against possible excesses and abuses.
The Judiciary: The God That Be?
The judiciary seems to be an organ of government that is exalted above every other organ of government. The authors of the constitution have made the judges independent, in the fullest sense of the word. There is no power above them, to control any of their decisions. There is no authority that can remove them; they alone determine when they must be removed for whatever reason(s) and they cannot be controlled by the laws of the legislature.
The judiciary seems to be an organ of government that is exalted above every other organ of government. The authors of the constitution have made the judges independent, in the fullest sense of the word. There is no power above them, to control any of their decisions. There is no authority that can remove them; they alone determine when they must be removed for whatever reason(s) and they cannot be controlled by the laws of the legislature.
Indeed the law is said to lie in their bosom. The world owes it to Justice Oliver W. Holmes that: 'The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.'This observation has received a well-nigh unanimous acceptation by legal scholars, and if it is correct, then the judiciary ought to be reasonably checked in order to ensure that the reason for its existence may not be prejudiced and jeopardized. Montesquieu put it most strongly: 'Of the three powers above-mentioned, the judiciary is in some measure next to nothing.'
In short, the judiciary, in the exercise of its judicial functions, is independent of the people, of the legislature, the executive and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.
The overzealousness of the draftsmen of the 1992 Constitution to give absolute independence and lack of accountability to the judiciary under our current constitutional arrangement is perhaps a brainchild of careful reflection of the trajectories of our history as a people. In time past, under some military juntas, judges held their places at the will and pleasure of the juntas, on whom the judges depended not only for their offices, but also for their salaries; they were subject to every undue influence.
If the junta wished to carry a favorite point, the accomplishment of which needed the aid of the courts of law, the pleasure of the junta would be signified to the judges. And it required the spirit of a martyr for the judges to determine a case contrary to the junta's will. They were absolutely dependent upon him both for their offices and livings. Do you remember the three judges who were murdered in cold blood for upholding the law? This is our history.
In our collective zeal to tidy up our minds, consign every memory of our gloomy past to the trash can and make it practically impossible for the resurgence of military rule with its attendant molestation of judges, we, under the 1992 Constitution have exalted the judiciary above every other organ of government with practically no or little accountability.
The language of article 127 of the constitution makes the judiciary absolutely independent of any person(s), state institutions or authority in terms of both judicial and administrative functions, finances etc. The only limitation - a seemingly vague one, of course - is that the judiciary is subject to the constitution itself. This is no limitation, properly so-called, as the constitution itself has no meaning independent of the viewpoints of judges. Beyond this formless and amorphous limitation, one reads the entire constitution in vain in one's voyage to discover practical constitutional controls and limits of the power of the judiciary.
The absolute lack of check(s) or controls of the judiciary under our present constitutional arrangement has the tendency of plunging the judiciary into the arena of judicial absolutism, tyranny and activism, a situation which is much abhorred even in the worst monarchical governments.
Limitless Tenure of Judges
One aspect of the judiciary is that judges have no fixed term of office. They hold office till they retire or die or are removed from office. This situation gives a lot of people goose pimples. An eloquent statement of the problem published in 1848 is that of Frederick Grimké, a Justice of the Ohio Supreme Court: 'If it is not wise to confer a permanent tenure of office upon the executive and legislative,' he concluded, 'it should not be conferred upon the judiciary; and the more so, because the legislative functions which the last perform is a fact entirely hidden from the great majority of the community.'
One aspect of the judiciary is that judges have no fixed term of office. They hold office till they retire or die or are removed from office. This situation gives a lot of people goose pimples. An eloquent statement of the problem published in 1848 is that of Frederick Grimké, a Justice of the Ohio Supreme Court: 'If it is not wise to confer a permanent tenure of office upon the executive and legislative,' he concluded, 'it should not be conferred upon the judiciary; and the more so, because the legislative functions which the last perform is a fact entirely hidden from the great majority of the community.'
In 1823, the ageing Thomas Jefferson stated in his Letter to A. Coray, October 31, 1823 that:
'At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.'
On March 9, 1821, Thomas Jefferson also stated in a Letter to Judge Spencer Roane that: 'The great object of my fear is the federal judiciary. That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is ingulfing insidiously the special governments into the jaws of that which feeds them.'
The life tenure of judges has been criticised by many scolars and ordinary Ghanaians. But I have always asked myself, is there any better arrangement? Must judges have a fixed term of office? If yes, how long?
The Courts as Political Agencies
Although we profess to be a democracy, our judges have, at times, expressed themselves in a manner that smacks of an abiding faithfulness to one political party or the other. In purely political cases, one easily sees that the difference between the majority view and the minority view is primarily actuated by the political affiliation of individual judges sitting on the case. It is interesting to note that every one judge in Ghana, like any ordinary Ghanaian, exercises a his or her franchise.
Although we profess to be a democracy, our judges have, at times, expressed themselves in a manner that smacks of an abiding faithfulness to one political party or the other. In purely political cases, one easily sees that the difference between the majority view and the minority view is primarily actuated by the political affiliation of individual judges sitting on the case. It is interesting to note that every one judge in Ghana, like any ordinary Ghanaian, exercises a his or her franchise.
Every judge votes, signifying that judges are not politically neutral persons as we presume them to be. We can, at best, hope that judges will value the public confidence reposed in them to do justice and uphold fidelity of law. It is sad and regrettable that judges make their political stance so plainly conspicuous that their choice of words in their judgment merely betrays them as the exalted alter egos of the government that appointed them.
Our system of government makes appointment of judges the prerogative of the president. This brings about a situation where party apparatchiks with legal background are appointed by the president as judges to fill the courts. When judges are appointed by the President, they, as people argue, feel obliged to use their office to champion the policies, political whims and caprices of the appointing president. Certain decisions in our law reports portray the ugly situation where a particular government used the court as a fiat to carry out political vengeance on some members of the opposition.
In fact, the court has become a tool for effecting witch-hunting and punishing dissenting members of the polity. What accounts for this major problem in our national life? Is the problem the mode of appointment of judges? Is the problem merely one of personal failings of the judges? Are there better systems of government that fosters independence of the judiciary while making the courts as responsible and accountable as any other state organ? What do you suggest we do?
Objections to the court: How Made?
The judiciary of Ghana seems an institution of overwhelming monstrosity and mystery. Upon hearing of the court, the citizens are immediately put in a state of utter fright. When the courts sit, they appear very unfriendly and distant. The courts are free to pass any verdict at all without any fear of control or objection from anyone. Lawyers more frequently raise objections to their fellow lawyers to signify their dissensions. However, it is contemptuous for a lawyer to raise abjection to a proposition made by a judge, not even when such objection is prefaced by the soothing phrase, 'with all due respect'. All that the law and practice permit a lawyer to do is to bow to the judge and say, 'I am grateful, my Lord', 'As the Court pleases', 'Most grateful' and suchlike phrases.
The judiciary of Ghana seems an institution of overwhelming monstrosity and mystery. Upon hearing of the court, the citizens are immediately put in a state of utter fright. When the courts sit, they appear very unfriendly and distant. The courts are free to pass any verdict at all without any fear of control or objection from anyone. Lawyers more frequently raise objections to their fellow lawyers to signify their dissensions. However, it is contemptuous for a lawyer to raise abjection to a proposition made by a judge, not even when such objection is prefaced by the soothing phrase, 'with all due respect'. All that the law and practice permit a lawyer to do is to bow to the judge and say, 'I am grateful, my Lord', 'As the Court pleases', 'Most grateful' and suchlike phrases.
Who can question the court for what it does - parliament, the executive, the citizenry or who? Is the Supreme Court of Ghana too supreme for a good? If it is, what ought we to do?
The courts have the power to validate the invalid and invalidate the valid. What can't the Supreme Court of Ghana do under the sun? Perhaps, what the Supreme Court cannot do is to order that a man be changed into a woman. The Supreme Court has the power not only to enforce the law, but to legislate at will. In fact, the life of the ordinary Ghanaian depends on the intelligence of the judiciary. The judiciary encourages and discourages actions of the masses.
What is happening in Ghana today confirms the fears and foreboding of Thomas Jefferson expressed in his Letter to John Wayles Eppes, in 1807 when he said: 'The original error was in establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.'
When a judgment of a court is unsatisfactory or considered bad, the law enjoins the dissatisfied party to appeal against the said verdict and perhaps go for a review. What happens when the final decision of the highest court is deemed palpably wrong and ill-motivated? What happens when the verdict of the court is deemed as politically motivated? Where else do we go? Who has the power or even right to hold the Supreme Court accountable? Is the Supreme Court always right?
We have instances where the Supreme Court has held that the Court of Appeal was wrong in its decisions. But is the Supreme Court itself always correct in its opinions.
In Korblah II Alias Tetteh And Another v. Odartei III [1980] GLR 932-945 the Court of Appeal in allowing an appeal from a High Court stated that 'the learned judge clearly erred'. Republic v. Kumasi Traditional Council; Ex Parte Nana Kofi Dei [1973] 2 GLR 73 - 90the Court of Appeal held that, 'Consequently, the High Court had erred in holding otherwise'.
I hope it may not surprise anyone to hear that the Supreme Court also, even by majority, errs in its decisions. In the famous case of Tsatsu Tsikata v. Attorney-General [26/06/2002] CIVIL MOTION NO. 11/2002 the Supreme Court, in overturning an earlier majority decision in a review application held thus: 'The majority judgment omitted to consider and examine relevant constitutional provisions to which I have made reference and consequently erred in law in the conclusions it reached.' It was also observed that, 'The majority erred when they came to a contrary conclusion'.
If the majority of the Supreme Court judges can err in their decisions, then how safe are we if the Supreme Court is subject to no control by any other organ of government or group of trained persons?
The decision of a court, no matter how manifestly erroneous, is final and binding unless it has been reviewed or appealed against. In Bisi v. Kwakye [1987-88] 2 GLR 295, Taylor, J.S.C. said: 'In our system of adjudication the majority view of a plural bench of a court represents the binding judgment of the Court, even if it can subsequently be demonstrated to be vulnerable to attacks'.
In many cases before the courts, mere homespun wisdom is sufficient to reveal the errors, vacuities and mistakes in the judgment of even the highest court of the land. Many Ghanaians may well be dissatisfied with the verdict of the just ended election petition. But beyond review, who can legitimately question the verdict? This is the system we have adopted for ourselves. We must accept it or call for necessary reforms.
Who Judges the Judges: How to Remove a Judge
In Ghana, a judge can only be removed from office for stated misbehaviour or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind. The question is who determines what constitutes incompetence or inability? The same judiciary does that. The process of removing a judge is also purely judicial in nature, undertaken by judges. We are back to square one - judges are judged by judges! No other organ of government has any overriding power to effect the removal of a judge.
In Ghana, a judge can only be removed from office for stated misbehaviour or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind. The question is who determines what constitutes incompetence or inability? The same judiciary does that. The process of removing a judge is also purely judicial in nature, undertaken by judges. We are back to square one - judges are judged by judges! No other organ of government has any overriding power to effect the removal of a judge.
To this end, it is necessary to say that the independence of the judiciary is a keystone of true democracy. However, the judiciary is not beyond human flaws. The courts err. It behoves us all as a people to change the status quo if we desire so or be temperate, gentle and humane in our comments and criticisms of judicial decisions.
The Accountability Of The Judiciary
By Law Teacher
“Ironically the Higher Judiciary in India has powers of control over every organ under the Constitution but there exists no effective method of disciplining its own members." [1]
The Preamble to our Constitution declares India is a ‘Democratic’ State. This broadly means that we have a government by the people, of the people and for the people’. It follows from this principle that, the Government should be accountable for all its acts or omissions to those for whom it exists.
The third branch of the government- the judiciary. The power that Judiciary enjoys, the role that it plays in our lives and the onerous task that it performs is beyond comprehension. Infact, it would be no exaggeration to say that of the three branches of the Government, Judiciary is perhaps of the greatest significance to the people, it being closest to them in the sense that anybody (even an ordinary citizen) can approach the Judiciary when he has any grievance.
Judicial Accountability can be defined as the costs that a judge expects to incur in case his/her behavior and/or his/her decisions deviate too much from a generally recognized standard, in this case referring to the letter of the law.
Judicial independence was not intended to be a shield from public scrutiny. Judicial independence is not only a necessary condition for the impartiality of judges, it can also endanger it. Higher judiciary in our country is the only institution that is virtually not accountable and at the same time enjoys exceptional constitutional protection and formidable weaponry such as contempt of court to silence the critics. [2] Accountability of the judiciary in respect of its judicial functions and orders is safeguarded by provisions for appeal, reversion and review of orders. But there is no mechanism for accountability for serious judicial misconduct, for disciplining errant judges. [3]
JUDICIAL ACCOUNTABILITY: JUDGING THE JUDGES
Realizing the important role that judiciary plays, and the possibility of misuse of the power conferred, the Constitution-makers primarily made two provisions (those relating to the appointment and removal of judges) which ensured that Legislature and the Executive, the other two branches of the government (which are directly or indirectly responsible to the people) had some kind of control over the Judiciary. Here it would be interesting to mention the following cases
1st Phase- The Judges Case One:
In 1982, the matter of appointment of High Court judges came before the Supreme Court in S.P. Gupta v Union of India [4] The main question considered by the court was: of the various functionaries participating in the process of appointment of a High Court judge whose opinion amongst the various participants should have primacy in the process of selection?
The majority took the view that the opinion of the Chief Justice of India (and that of the Chief Justice of a High Court) were merely consultative, and that the power of appointment resides solely and exclusively in the Central Government" and that the Central Government could override the opinions given by the Constitutional functionaries. The majority in Gupta gave a literal meaning to the word ‘consultation’ in Art 124(2) and 217(1). In reality this view made consultation with the Chief Justice inconsequential in the matter of appointment of the High Court Judges.
The observation of Bhagwati J. on the question of accountability-“The reason why the power of appointment of judges has been left to the Executive appears to be that the Executive is responsible to the Legislature, and through the Legislature it is answerable to the people, who are the consumers of justice. The power of appointment is not entrusted to the CJI because they do not have any accountability to the people and even if any wrong appointment has been made, they are not liable to account to anyone for such appointment."
But going by developments that have taken place and the experiences that have been encountered, both the provisions have either been substantially modified or reduced to mere theory.
2nd Phase- The Judges Case Two:
Consequently, the matter once again came up for consideration before a 9 Judge bench in the case of Supreme Court Advocates on Record Association v Union of India [5] The Court emphasized that the question has to be considered in the context of achieving “the constitutional purpose of selecting the best…to ensure the independence of judiciary…"
Deliberating on the issue, the Court pointed out that this provision of ‘consultation’ with the Chief Justice was introduced because of the realization that the Chief Justice is best equipped to know and assess the worth of the candidate and his suitability for appointment.
Accordingly, the Court has ruled that “in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight…..the selection should be based on a participatory consultative process in which the Executive has the power to act as a mere check on the power of the Chief Justice
The Judiciary has for all practical purposes had become its own appointing authority. The Supreme Court replaced the Executive primacy with that of the CJI, which in effect has done away with the role of the Executive. The Collegium that decides the matter lacks transparency and is likely to be considered a cabal. Here the obvious question that arises is, in the absence of substantially any role of any other body, who are the CJI and other members of the Judiciary answerable to? Consumers of justice being people, whether the Judiciary is in any way answerable to the people? The Majority in the Second Judges case tried to answer it-“The CJI and the Chief Justice of the High Court, being responsible to the functioning of the Courts, have to face the consequence of any unsuitable appointment which gives rise to the criticism. Similarly, the Judges of the Supreme Court and the High Courts, whose participation are involved in the functioning of the Courts and in the selection process bear the consequences and become accountable."
The researcher submits that this reasoning is not only insufficient and incomplete but also unsatisfactory. Besides, the little that it says in support of its stand, the argument itself seems to be paradoxical if we look at the reality. The Judiciary has taken a rather too strict a stand against the writers who have criticized the judges or their judgments (the Contempt of Court Act 1971 punishes the scandalizing of the Court. The Supreme Court has held that Fundamental Right of the citizens to of free speech and expression has not abolished the offense of scandalizing the Court). [6] The symbolic punishment given to Arundhati Roy [7] and the more recent controversy surrounding Sabarwal J. and the subsequent action taken by the Delhi High Court against the “erring" editors of a leading local newspaper are points in case. [8]
Now the 2nd major area of focus is what action can be taken if a judge misuses or abuses his power, acts with negligence or contrary to the interest of the people.
In this regard the Constitution has laid down only one provision- Article 124 whereby it lays down that a judge can be removed from his office by following an elaborate procedure, on the ground of ‘proved misbehavior or incapacity.’ The points to be pondered over here are:
This is the only provision on what action can be taken against an errant Judge.
The action that I envisaged here is a drastic one, that of removal from office.
The procedure mentioned here being so elaborate (being analogous to the impeachment) signifies that ‘proved misbehavior or incapacity’ should be of a very high degree.
Not only does this provision lay down too complex a procedure, but it also fails to take care of the deviant acts not amounting to ‘misbehavior or incapacity’. Added to this Ramaswami J. controversy [9] is a case in point as it reflects the deep anomalies and loopholes with which this provision is ridden.
Hence while the existing provision is insufficient in so far as erroneous acts not amounting to ‘misbehavior or incapacity’ have not been taken care of, the remedy that does exist is rendered useless by the loopholes that have been exploited.
Thus (practically) answerable to no one and for all intent and purposes having no efficient mechanism to discipline the judges, the Judiciary has become its own master. At least theoretically it can be said that this will lead to abuse of power.
But having said this do we really urgently need to reform the legal provisions relating to Judiciary? Do the apprehensions have any real basis? Several instances will show that these are not mere apprehensions.
In 1958 the Law Commission of India in its 14th Report on the Reform of Judicial Administration submitted that-“It is widely felt that communal and regional considerations have prevailed in making the selection of judges…..best talent among the judges of the High Courts has not always found its way to the Supreme Court…We are concerned that the views expressed to us have show a well founded and acute public satisfaction at these appointments". While this report was complied at a time when the Executive had a significant role to play in the judicial appointments, it is submitted that the position has not changed much (as will be clear from the illustrations that follow) after the Second Judges Case.
In 1964, Committee on Prevention of Corruption remarked that it had been informed by Vigilance and Special Police Establishment, that the corruption is rampant at the lower levels and in some place, it has spread to the higher ranks.
Then we have the 1993 case of Ramaswami J. who was sought to be removed from office and who after having been found guilty of misbehavior in misappropriating and misusing public property, by a Committee constituted under the Judges’ Inquiry Act 1968, still managed to go scot free because the motion in Parliament of his removal failed as the ruling majority abstained from voting for his removal.
Again the charges of misconduct against two sitting judges of the Supreme Court were made in 1997 and 2000. In the first case, the judge in question was due by seniority to be appointed as the Chief Justice and an in house committee of the Supreme Court Judges is reported to have considered the charges. But the judge was recommended for appointment as the CJI by the outgoing CJI. In the second case which related to a CJI though considerable publicity was given to the charges, no action was taken either within or outside the Court.
In the absence of an effective remedy for removal of a judge, the Bar of the Bombay High Court resorted to the unconventional method of disciplining by passing the resolutions against them to resign and requesting the Chief Justice of the High Court not to assign work to them.
On another occasion, the Chief Justice of the Bombay High Court was charged with misconduct by the Bar. Going by the earlier experiences the Bar had no other option but to resort to extra-constitutional way out. They made an application to the CJI to requesting the CJI to seek his resignation. The Chief Justice of that High Court under the advice of the CJI tendered the resignation.
Judicial accountability has today become the catch word all over the world. The judges can no longer oppose calls for greater accountability on the ground that it will impinge upon their independence. Independence and accountability must be sufficiently balanced so as to strengthen judicial integrity for effective judicial impartiality.
By Apurv Mishra
After the Pandavas win the war at Kurukshetra, Bhishma teaches the art of governance to Yudhishthira, the victorious king. One of the first lessons that he learns is the importance of swift and proportional punishment in ensuring civilised behaviour of citizens and maintaining the moral equilibrium in society:
“Listen scion of Kuru, to what the rod of punishment is and how it is judicially prescribed: for the rod of punishment is the one thing in this world upon which everything depends... if the rod of punishment did not exist in this world, beings would be nasty and brutish to each other... it puts this world into a stable order quickly, king”
Rahul Gandhi promised us a bouquet of anti-corruption legislations this Valentine’s season to reaffirm his commitment towards good governance and probity in public life. Instead, as the curtains draw close on the budget session that resembled a Rohit Shetty movie, only one of the six anti-graft Bills has been passed by our honourable parliamentarians (a poorly drafted Whistle-blowers Bill was passed without any discussion in the final minutes of the last day). It may be argued that the biggest loss to the nation has been the failure to pass the Judicial Standards and Accountability Bill, which was the first serious attempt to cleanse our judicial system.
There has always been a struggle for supremacy between the executive and judiciary in India. When the executive was powerful (think Indira Gandhi), judiciary’s role was severely curtailed. However, in the present era of coalition governments and PILs, the judiciary has taken a more active role in shaping public policy. But this increasing power of judiciary has not been matched by a corresponding increase in institutional mechanisms to check its misuse.
From the Ghaziabad Provident Fund scam to serious charges of misappropriation against the close relatives of former Chief Justice of India K G Balakrishnan and allegations of sexual misconduct against a former Supreme Court judge, instances of financial and moral corruption in our judiciary have become embarrassingly frequent over the years. Exasperated over the systemic rot in Allahabad High Court, the largest High Court in India with 160 judges, the Supreme Court was moved to paraphrase Shakespeare’s Hamlet and remark that “something is wrong in the Allahabad High Court”.
When questioned about this delicate issue, the present CJI prosaically remarked, “The judiciary is not untouched by corruption”. As guardians of the constitution, our judges have admirably protected democratic traditions in our country; but the question remains, who will guard the guards?
Functioning democracies have their internal self-correcting mechanisms through which the executive and legislature are kept in check by the opposition in the parliament, legislations like RTI and periodic elections. The judiciary has been kept outside the purview of the court of public opinion to ensure its credibility as an impartial arbiter of disputes. But this insulation has created a culture of complacence and inefficiency because the ‘rod of punishment’ is absent.
For example, even an FIR against a judge can only be registered after the permission of the CJI. This had tragic consequences in the provident fund scam where then-CJI Balakrishnan did not give permission to file an FIR against accused judges for almost two years, by which time the prime accused, Ashotosh Asthana, died in mysterious circumstances. Justice Sen was held guilty of misappropriating funds before he became a judge, when he was an ordinary citizen.
However, once he was appointed a judge, there was no other way to penalise him except through impeachment- a process so inefficient that not a single judge has been impeached in the last 67 years. In the case of Nirmal Yadav (who has the ignonimity of being the first judge to be chargesheeted while still in office), even though a three-judge panel recommended her prosecution, then-CJI Balakrishnan simply transferred her to a different High Court.
The Bill is a paradigm shift from the Judges (Inquiry) Act, 1968 because it allows ordinary citizens to file complaints against judges, mandates the disclosure of assets by judges and their close relatives and allows for punishments other than the arduous process of impeachment.
The most important development in the Bill is the definition of what constitutes “misbehaviour” by a judge because the constitution provides for the removal of a judge only in cases of “proven misbehaviour”. It has done so by giving statutory recognition to judicial standards that were adopted by the Supreme Court in 1997.
The Oversight Committee can issue advisory or warning or recommend minor punishment if the case does not warrant a removal. For serious charges, the Oversight Committee would request the judge to resign. Only a judge as obtuse and insolent as A Raja would continue beyond this point; in which case the Oversight Committee would recommend his removal to the President.
The Oversight Committee, which is the nodal institution to investigate complaints, includes three senior judges, the Attorney General and an eminent person appointed by the President. It is a welcome change from the current in-house system of grievance redressal in which judges are very reluctant to take strict action against their fellow “brother judges”, a tendency that Fali Nariman has equated with trade unionism. The Bill also gives the Scrutiny Panel and the Investigation Committee powers of a civil court which means that they have the right to summon witnesses and place documents on record.
The Bill should have been passed in the Rajya Sabha because it was not a contentious political issue and all major parties agreed with its provisions after the government had the good sense to remove a controversial clause that gagged judges. Now that the session is over, let’s hope that (for once) the ordinance-making power is put to good use and the country is “put into a stable order quickly”. Corruption is judiciary has a perverse multiplier effect on the national well-being because it shields all other forms of corruption by removing the “rod of punishment”. A huge backlog of cases and scarcity of judges at all levels further incentivises corruption. The heavy workload of High Court judges leaves them little time to supervise the functioning of lower courts.
Transparency International’s Global Corruption Barometer 2013 reported that 45 percent of surveyed households in India considered judiciary to be ‘corrupt’ or ‘extremely corrupt’ and 36 percent of households who had contact with the judiciary in 2012 reported to have paid a bribe. Something as simple as enforcing a commercial contract is a nightmare for companies. It requires them to undergo an average of 46 administrative procedures, takes an average of 1420 days and costs more than 39 percent of the actual claim. If the public starts losing faith in the judicial process, they resort to extra-judicial means of grievance redressal. This explains the rise of khap panchayats in Haryana and kangaroo courts like the one West Bengal which ordered the gruesome gang rape of a woman recently. In the words of Justice Brandeis, if we want the public to respect law, we must first make law respectable.
Opponents of the Bill raise important issues about the bill compromising judicial independence. For example, the Attorney General, who is part of the Oversight Committee, is the senior most law officer of the Union government and may regularly appear in the court of judges against whom complaints may be filed. The argument is that this may compromise judicial independence. They have also raised concerns about the possibility that frivolous complaints may be filed by the losing side in a dispute.
These opponents are free to suggest alternate measures to keep a check on judiciary. We could have a system of periodic referendum on continuance of judges, as is the case in USA and Japan. But the judiciary needs to understand that there is a limit to what we will do to protect judicial independence and the limit is well on this side of judicial accountability.
The costly tyranny of secrecy
As long as the process of judicial appointments remains opaque, selection of judges on considerations other than merit will continue
As of June 2013, there were 276 vacancies out of a total sanctioned strength of 904 permanent and additional judges in all the High Courts of India. With almost a third of the vacancies to be filled, most States are witnessing major canvassing on caste, community, political and other considerations for appointment as judges. As allegations and counter-allegations over the appointment of favourites fly thick and fast, the debate over the process of judicial appointments is once again heating up.
Collegium experiment
The Emergency and the post-Emergency era witnessed attempts by the executive to muzzle the judiciary. It was to check this erosion of independence of the judiciary that the ‘Collegium’ system was evolved, by which the senior-most judges of the High Court and the Supreme Court selected judges with the executive merely being consulted. But 20 years after the Collegium experiment, the appointment of judges “by the judges” is being perceived as appointments “for the judges.” There is growing evidence that the current system of judicial appointments has resulted in incompetent, inefficient, ethically compromised individuals being appointed as judges.
In May 2013, over 1,000 lawyers of the Punjab and Haryana High Court protesting the recommendation of seven names by the High Court Collegium for appointment as judges wrote: “The independence and integrity of the judiciary has been put at stake by the Collegium while recommending the names of advocates for elevation as judges ... the decisions of the Collegium seem to have been based on considerations other than merit and integrity of the candidate”. They added, “it has now become a matter of practice and convenience to recommend advocates who are the sons, daughters, relatives and juniors of former judges and Chief Justices. Nepotism and favouritism is writ large. We all need to rise to the occasion and oppose such recommendation.”
In June 2013, the Madras High Court Advocates Association (MHAA) gave a representation to the Chief Justice of the High Court regarding a list of 15 names forwarded by the Collegium, pointing out, “the proposed list of persons recommended for elevation to the high constitutional office falls far short of the standards set out in the various judgments of the Supreme Court. It appears that the names have been proposed on extraneous criteria such as caste, religion, office affiliations, political considerations and even personal interests and quid pro quo. We at the Bar are deeply distressed, concerned and even alarmed at the partisan manner in which the selection is made. It exhibits a total indifference to the future of the Judiciary as an institution where institutional interests have been sacrificed at the altar of personal pursuits.”
‘Erosion of respect’
The MHAA representation highlighted the consequences of the appointment of poor quality judges: “Long delay in delivering judgements (there have been a disturbingly large number of instances where many judges have delayed judgements for several years and even retired without delivering judgements), inability to organize time effectively and manage their board efficiently, lack of clarity and clear reasoning in judgements, lack of knowledge of even basic principles of law and lack of ability and willingness to learn, ghost writing of judgements … This has resulted in eroding respect and confidence in the judicial process. This is compounded by the increasingly common experience and perception that judgements are delivered on the basis of … partisan considerations such as caste, regional and personal affinities with particular members of the Bar/litigants. It pains us to state all this. But at the same time we would be failing in our duty to the institution of judiciary if we do not raise these issues of grave concern now.” The MHAA demanded transparency in appointments and said the names of the advocates shortlisted for consideration should be disclosed in advance.
For many years, Bar Associations throughout India have been continuously demanding transparency and openness in the appointment process. Today the greatest concern is the secrecy shrouding the appointments.
The real issue is not who appoints judges but how they are appointed. Irrespective of whether it is the executive, the judiciary or a Judicial Commission that appoints judges, as long as the process is opaque and appointments are made on personal considerations, we will have variations of the same problem of favouritism, nepotism and appointments on criteria other than merit and capability. The crucial need , therefore, is to evolve objective criteria to assess a candidate and make appointments on the basis of assessments against such stated criteria. We may usefully refer to the system adopted by the Judicial Appointments Commission in the United Kingdom to assess candidates.
Merit, sole basis
The U.K. Constitutional Reform Act, 2005 made merit the sole basis of selection to the judiciary; a person must not be selected unless the selecting body is satisfied that he or she is of good character. While the Judicial Appointments Commission must have regard for the need to encourage diversity in the range of persons available for selection for appointments, it is subject to merit criteria.
The JAC assesses candidates against five merit criteria:
1. Intellectual capacity: Nominated candidates ought to demonstrate (a) a high level of expertise in chosen areas or profession with the (b) ability to quickly absorb and analyse information. They should have (c) appropriate knowledge of the law and its underlying principles or the ability to acquire this knowledge where necessary.
2. Personal qualities: ranging from (a) integrity and independence of mind, (b) sound judgment, (c) decisiveness, (d) objectivity, (e) ability and willingness to learn and develop professionally and (f) ability to work constructively with others.
3. An ability to understand and deal fairly: This includes (a) the ability to treat everyone with respect and sensitivity whatever their background and (b) willingness to listen with patience and courtesy.
4. Authority and communication skills: The nominated person is expected to have (a) the ability to explain the procedure and any decisions reached clearly and succinctly to all those involved with the further (b) ability to inspire respect and confidence and (c) maintain authority when challenged.
5. Efficiency: The ability to work at speed and under pressure and the ability to organise time effectively and produce clear reasoned judgments expeditiously.
The U.K. system made assessment in respect of all criteria evidence-based. Selection will be rejected if there is not enough evidence that the person is suitable for the office concerned, or there is evidence that the person is not the best candidate on merit.
The ‘public’ senate hearings for appointments of judges to superior courts in the U.S. are another example of transparency. We may not find the U.S. system implementable as it is; but nothing prevents us from incorporating the key principles of transparency, accountability and citizen participation underlying the U.S. system for selection of judges.
Transparency will inspire confidence in people. Appointment of judges being in the public domain should be open and visible. Considering the views of the Bar is a healthy process of consultation as it is privy to a lot more information than the general public.
Criticism of biased, partisan and compromised judicial appointments is not new. Yet for the last 20 years, successive Supreme Court Collegiums steadfastly refused to “clean the stables” and evolve a transparent, open and accountable procedure to ensure that the best persons were appointed as judges to the High Courts and the Supreme Court. Judges to these constitutional courts bear the great responsibility of ensuring respect for the “rule of law” and ensuring that governance is based on constitutional principles and vision.
The country deserves nothing short of the most competent, learned persons as judges whose ethical conduct is beyond doubt. Irrespective of whether appointments are Collegium based or through a new Judicial Commission, members of the Bar as also citizens need to participate in the selection process. Our nation’s future cannot be totally compromised because the powerful want to ensure their power in perpetuity.
The winds of change sweeping the world demanding greater participation, inclusion, equity, accountability and transparency will eventually engulf the judiciary too. We hope the wise persons in the judicial system will read the signs.
Discussion Of The Conduct Of The Judges In The Legislature:
“In accordance with the Universal Declaration of Human Rights, members of the judiciary are entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary." [10] Neither in Parliament nor in a State Legislature a discussion can take place with respect to the conduct of the Supreme Court in discharge of his duties.
Articles 121 and 211 provide immunity to the members of Higher Judiciary, with respect to the conduct of the Judges in the discharge of their duties. Article 211 amounts to an absolute constitutional prohibition against any decision in the Legislature of a State in respect of the judicial conduct of the Supreme Court or of the High Court. Article 121 on the other hand provides for a general rule that no discussion shall take place in the Parliament with respect to the conduct of any judge of the Supreme Court or of the High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the judge under the circumstances stated in the Constitution. Thus, reading Article 121 and 211 together, it is clear that the judicial conduct of a judge can not be discussed in the State Legislature. It can be in Parliament only, upon a motion for presenting an address to the President praying for the removal of the Judge. The Constitutional makers attached so much importance to the independence of judiciary that they thought necessary to place them beyond any controversy except in the manner provided in Article 121.
The fact that Article 211 appears under a topic dealing with “Procedure Generally" cannot mean that the prohibition prescribed by it is not mandatory. In trying to appreciate the full significance of this provision, Article 121 and 211 should be read together. It is true that Article 194(2) in terms provide for immunity of action in any court in respect of a speech made by a member or a vote given by him in the Legislative Assembly. Undoubtedly, the Speaker would not permit a member to contravene Article 211, but, if inadvertently or otherwise, a speech is made within the legislature which contravenes Article 211, the Constitution-makers have given protection to such speech from any action in any court. The House itself may and would, no doubt, take action against the member. [11]
Removal Of A Judge:
“A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge." [12]
“Judges shall be subject to suspension or removal only for reasons of incapacity or behavior that renders them unfit to discharge their duties." [13]
“All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct." [14]
“Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings." [15]
The manner of removal of a Judge, as brought out and made clear by Constitutional provisions, SC interpretations and the Judges Inquiry Act, 1968, and Judges Inquiry Rules, 1969, stands summed up in Krishna Swami v. UOI [16] as follows, “Every judge of the Supreme Court & High Court on his appointment is irremovable from office during his tenure except in the manner provided in Cls. (4) & (5) of Art. 124. The law made by the Parliament under Art. 124(5), namely the Judges Inquiry Act, 1968, (and Judges Inquiry Rules, 1969 framed there under) are to be read along with Article 124(4), to find out the constitutional scheme….for the removal of a judge. The law so made under Art. 124(5), provides that any accusation against a sitting Judge to initiate the process of his removal has to be by not less than minimum number of members of the Parliament specified in the Act, all other method being excluded. On initiation of the process, the Speaker/Chairman has to decide whether the accusation requires investigation. If he chooses not to act, the matter ends there…..otherwise on a consideration of the material available and after consulting such persons as he thinks fit, forms opinion that a prima facie case is made out, he constitutes a Committee in accordance with s.3(2) of the Act. If this …..Committee….. records a finding that a Judge is not guilty, the process ends there…..If the finding of the Inquiry Committee is that the Judge is guilty, then the Parliament considers the motion for removal of the Judge along with the Committee’s Report and other available materials including the cause, if any, shown by the Judge concerned against his removal for which he has to be given an opportunity after the submission of the report to the Speaker/Chairman under s. 4(2) of the Act…..If the Parliament does not adopt a motion for removal of the Judge, the process ends there…If the motion is adopted by the requisite majority of the Parliament, culminating in the order for removal of the Judge by the President of India under Art.124(4), then only the Judge shall have remedy of Judicial Review available on the permissible grounds against the order of removal…."
CONCLUSION
In mater of appointment, a lot has been said about the dangers of substituting absolute Executive authority with absolute ‘Chief Justice Authority’. It is important to have a more important broad based appointing body in the legal system, incorporating undoubtedly the higher judicial functionaries but also giving representation to some outside elements form the categories of eminent jurists, academics and both the ruling executive and the opposition. Moreover this process would certainly be more transparent and open. In such broad based appointing body at least two leading members of the bar must find representation. The manner of selection/ nomination of those persons should be carefully thought out to ensure objectivity and absence of conflict of interest.
The second crucial aspect which cannot be separated from the first is the vital necessity of a workable mechanism for regulating judicial conduct, taking corrective action and if necessary disciplining the errant judges shot of and up to removal.
Unless one puts in place a reasonable, internal, fair, expeditious and effective in house regulatory regime short of impeachment, allegations against judges will always be on the rise.
The general dissatisfaction with the Courts self appointed role in appointment and transfer of Judges has led to suggestions that it is high time that a National Judicial Commission should be appointed which would not only consist of high judicial members but also other non-judicial members and which would make recommendations for such appointments. The suggestion for a National Judicial Commission has been made by the 80th and 121st reports of the law commission of India. [17] A constitutional amendment (67th Amendment) bill 1990 was formulated by the ministry of Justice in 1990 for setting up such a body but the bill lapsed on the dissolution of the parliament. [18]
The independence of judiciary is an important concept being the basic principle of the constitution but what has to be realized is that it is not an end in itself but only a means to achieve an end. The end is to secure efficient, expeditious and impartial delivery of justice. The main intention behind this principle is that the people should get justice, irrespective of their status. This principle is required to instill confidence of the people in its Justice Delivery System. Confidence is very important. Our society is usually peaceful, not because there is a police force and lawyers to take you to the court. It is because people respect the courts and the laws they apply. If, however, people loose confidence in the courts and think that they would not receive a fair hearing, they might disrespect the law generally.
So any new step towards revamping the Judicial System should aim at balancing in the best possible manner judicial independence and judicial accountability.
Independent of the validity of the across-the-board arguments favouring transparency and accountability in judicial appoints all-round, India’s Finance Minister Arun Jaitley might have over-stated his position and that of the government by publicly questioning the ‘tyranny of the unelected’ as ‘flawed’ and against the ‘basic structure’ of the Constitution. Criticisms of the Supreme Court’s recent judgment, striking down the constitutional amendment and relevant laws on the creation of a ‘National Judicial Appointments Commission’ (NJAC), with political representation for the first time, by Jaitley and his ministerial colleagues like Ravishankar Prasad and Law Minister, Sadananda Gowda, smacks of a first step towards a ‘committed judiciary’, of the Indira Gandhi kind, which her Steel Minister Mohan Kumaramangalam had advocated in their time.
Facts may be recalled — Emergency followed, in an environment facilitated by political observations of the Kumaramangalam kind, and supersession in the appointment of the Chief Justice of India (CJI), with A N Ray being named over the head of three of his seniors. It was before the Bench headed by CJI Ray that then Attorney-General, Niren De argued that the citizen did not have right to life when Emergency was in vogue and the Government had suspended his Fundamental Rights guaranteed under the Constitution. The Supreme Court’s verdict, string down the citizen’s right to moving a ‘habeas corpus’ petition in the nation’s High Courts (ADM Jabalpur vs Shukla, 1975-76) is not remembered, even by the legal fraternity that much. The nation still remembers the post-emergency electoral verdict of 1977. The Congress Party, which Prime Minister Indira Gandhi headed, never really and not certainly wholly, recovered from the shock, in moral, political, electoral – hence, physical – terms.
Stoning glass-house
It’s sad that the BJP ministers, otherwise credited with long memories and sharp retorts, have ended up in hyperboles that do not bring relief. They have referred to the US and other western democracies, wherever members of the Judiciary are elected, or face incisive interrogation by legislative panels, and at times, full-house vote, too. They have forgotten to mention that the questioning over there is as much over the political ideology of the candidate, as about his/her personal integrity. Despite the ‘independence’ of the Judiciary and of the legislative processes, both in terms of institutions and individual parliamentarians, the voting is invariably on political lines.
Issues are delayed hearing, wantonly, by either the State or the Bench, owing to the composition of the higher Judiciary (invariably the US Federal Supreme Court). Reams are written in the Press about the socio-political and socio-economic ideologies of individual Judges on the SC Bench at any given point in time – to argue why a particular case would not come up for hearing, or why a particular judgment could go in a particular way.
If nothing else, Indian Judiciary and polity has not reached a stage wherein a healthy discourse could happen on the conduct of either institutions and/or individuals manning them. For that to happen with respect to the nation’s most hallowed of all institutions, the polity and the society have to prove their innocence, not ignorance, before attempting any change of the kind – arrogance is not a virtue for anyone concerned in handling what has already become a hyper-issue.
Independent of whoever is in power, Governments in India would have to look itself up on the mirror before commenting other institutions and individuals. They cannot afford to sit in glass houses and afford to throw stones. The stones, in this case, does not travel long distances, to hit at the target. It brings down the edifice that they are seated in. Definitely, it is not what the likes of Minister Jaitely at least have in mind, just now.
It’s anybody’s guess why the Government of Prime Minister Narendra Modi took up the NJAC law as among the nation’s topmost priorities after coming to power. True, the predecessor Congress Government had talked openly about it for long. Then Union Law Minister M Veerappa Moily even publicly promised to bring up a draft Bill for Parliament’s consideration in the winter session of 2011, only weeks ahead. Maybe because the ‘2-G cases’ sprang to life or otherwise, none from UPA-II found the moral bearing to pilot a Bill of the kind at the time or even later – or, so it seems.
For their part, the Jaitley-Prasad combo and others in the Modi Government should ask themselves why they did not have a candidate for Kerala’s Governor’s post other than the recently retired CJI, in P Sathasivam. It is not to cast any aspersions on the personality or integrity of CJI Sathasivam, but only to question the ‘politically flawed’ nature of his choice, or that of anyone else in his place. It also goes with the choice of Gen V K Singh, the recently-retired Army chief, as a Minister in the Modi Government, or the UPA-II’s Home Secretary, R P Singh, for a BJP nomination for a Lok Sabha seat, which he won.
The less said about the Congress-BJP mutual whip-lash over the political misuse of the CBI, or other Central agencies when in power, the better. After all, T N Chaturvedi, who as the Comptroller and Auditor-General (CAG), who exposed the ‘HBW submarine scam’ involving a predecessor Congress Government, became a BJP member of the Rajya Sabha not long after retirement – and the Governor of Karnataka, when the Vajpayee-led BJP-NDA was in power at the Centre.
It was no way different when the Congress rival was in power. Apart from all the accusations levelled against the party in terms of appointments to other ‘independent institutions’ such as the CAG and CBI (even after the SC verdict and directions in the ‘Vineet Narain case’, including the UPA-II’s last appointment of the CAG, the Congress Government of the day also ensured that Parliament decided the first-ever ‘impeachment’ proceedings against a sitting judge (Justice V Ramaswami), in political, and not legal, judicial or moral terms.
How could then the likes of Minister Jaitley indicate that ‘elected’ representatives of the people are not involved – they are involved in sacking, not appointing a judge? In a way, the ‘appointing authority’ in the President not having the power to sack a Judge, and the ‘sacking authority’ in Parliament doing so without being the appointing authority in the first place, should be against the tenets of constitutional behaviour – and in a way against the ‘basic structure’ of the Constitution.
Corrections within
It is not unlikely that the SC judgment in the ‘NJAC case’ derived not from the speeches made in Parliament or outside, but by the Government’s lawyers and the rest within the court halls. The sketchy newspaper reports at the time and substantial portions of the 4-1 majority verdict are indicative of such thinking. Hence, the solution to the current problem of ensuring transparency in judicial appointments, promotions and transfers could and should also flow from the SC verdict itself.
The fact is that any other harsh observations of the Jaitely-Prasad kind are not going to change the reality. Nor should the BJP continue to be in the ‘Opposition’ political mode even one and half years after coming to power at the Centre, and try to embarrass and ‘fix’ the present-day Opposition, on what essentially remains an ‘academic issue’ – and in the process challenge the authority of the only constitutional institution in the country on which the nation has maximum faith in. It can cut in more ways than one – the BJP and the nation could well be the worse sufferers, and not necessarily in that order.
At least this time round, the BJP /Government leadership should consult the political Opposition in Parliament with sincerity, and not bent on pushing them into a corner or score a debating point, all over again. Reading between the lines, the majority verdict provides enough material for the Government to push through additional reforms to the just struck-down processes. There being clear unanimity among parliamentarians and political parties on holding the Judiciary accountable, and judicial appointments transparent, a solution could still be found within the pages of the majority verdict on the one hand, and the four walls of the Constitution, otherwise.
Filling the vacuum
In its Jan Sangh avtar, the BJP was not known to have questioned the ‘basic structure’ theory enunciated by the Supreme Court in the ‘Keshavananda Bharati case’ (1973), without definition but only through application. On the occasion, the SC held that ‘Judicial Review’ was a ‘basic structure’ of the Constitution. Maybe because it hurt the political ego of the Congress rulers of the day than the non-existent Opposition of the day, the Jan Sangh and the rest of the Opposition did not complain.
There is a larger lesson from political philosophy for the BJP rulers and the nation from the ‘NJAC case’ verdict. Independent of what the SC has ruled and what Government and Parliament intend doing – starting possibly with a ‘review petition’, which again will go to the same Bench — it is but natural in government systems, particularly vibrant democracies like India’s, that one institution fills the vacuum, created in reality or otherwise, by the momentary absence/weakness of one or the other of the rest.
It was thus that when the Executive became weak, or perceived as being weak, and the Legislature was considered a rubber-stamp of the former, the Election Commission (EC) filled the vacuum in the Nineties, and kept the all-round democratic hopes of the people alive. Today, when the Government at the Centre commands an absolute majority in Parliament (and for the first time in 25 years, and thus for a new generation of voters from that era), the SC could be deemed to have stepped in, to fill the vacuum (whatever the occasion and circumstances).
When all institutions failed, as was during the Emergency era, the people filled the vacuum themselves, when it came to their turn, in the 1977 elections. There is a lesson in it, not just for PM Modi, his Government and the BJP, or for the polity alone. There is a lesson in it for everyone else, and every institution, starting with the present-day voter, too!
Legal Notice to Honourable Chief Justice of India
To,
Honourable Chief Justice of India,
SUPREME COURT OF INDIA,
New Delhi.
Honourable Sir ,
Subject : Legal Notice to Chief Justice of India
Are Judges , Police PERFECT ? Satya Harishchandra ?
Hereby , I challenge Chief Justice of India in the exercise of my FUNDAMENTAL DUTIES as a citizen of india , that subject to conditions I will legally prove the crimes of few judges , police , public servants within the government service and other criminals. Is the CJI ready to book those criminals , traitors , anti nationals ?
Since 25 years I am appealing to apex court for justice concerning various public issues , no justice in sight but injustices meted out one after another. But the same judges are SHAMELESSLY taking huge pay perks for years now are also poised to get almost triple fold salary increase. Parasites feeding on Indian Public. Whenever questions of accountability are asked judges level contempt charges against the questioner or police fix him in fake cases or he is silenced by threats , murders , denial of jobs , etc. Since 25 years in many ways they are trying to silence me. Just take the recent example of Justice Karnan who leveled corruption charges against specific judges with CJI. Instead of conducting a fair investigation into the matter , CJI tried to silence him by serving him contempt notice.
Our Judges , Police are NOT Perfect Not Satya Harischandras . There are criminals as well as honest people side by side in judiciary & police. We whole heartedly respect honest few in judiciary , police & public service. But we detest corrupt judges , corrupt police. Honest Judges & Police are not coming into open to prosecute their corrupt colleagues, why ? silenced ?
Criminalization of all wings of government has taken place , unfit people are in the positions of power. Corruption in judiciary , police , CBI , CVC , Public service is rampant. Now MAFIA is at work. Only few scandals , scams become public , many are buried. If one criminal public servant is caught other public servant who is also a criminal conducts name sake investigation , gives report , clean chit. Law courts rely on the government reports as evidences , courts are not bothered about credibility of reports or investigations. It is quid pro quo. Therefore technically criminal public servants are never proved for their crimes & convicted , as investigation itself is not fair.
A Crime may happen without the knowledge of police but cann’t continue for years without the connivance of police. A Crime reported to court cann’t continue for years without connivance of judges.
At the bottom of the paper , I have given web sites about few ACB raids on government officials and unearthing of crores worth property. How they have earned it , by misusing their official positions. Therefore government reports , records prepared by these officials , investigations conducted by corrupt police are suspect. But Law courts in various cases , considers government reports , records , statements of government officials as sacrosanct . Therefore in many cases injustice is meted out by court , as they depend on reports of corrupt government officials , corrupt 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 ?
"Power will go to the hands of rascals, , rogues and freebooters. All Indian leaders will be of low calibre and men of straw. They will have sweet tongues and silly hearts. They will fight among themselves for power and will be lost in political squabbles . A day would come when even air & water will be taxed." Sir Winston made this statement in the House of Commons just before the independence of India & Pakistan. Sadly , the forewarning of Late Winston Churchill has been proved right by some of our criminal , corrupt people’s representatives , police , public servants & Judges.
I don’t know whether secretariat staff of CJI office & DARPG / DPG officials are forwarding my appeals for justice , e-mails to you or not. They will be held accountable for their lapses if any. This notice is against the repeated failure of constitutional duties & indirect collusion with criminals by previous CHIEF JUSTICEs OF INDIA. Notice is served against them , to the office of CJI , NOT personally against you.
Please refer my appeal for justice through DARPG ;
DLGLA/E/2013/00292
DEPOJ/E/2013/00679
In india democracy is a farce , freedom a mirage. the most basic freedom RIGHT TO INFORMATION & EXPRESSION , is not honoured by the government,as the information opens up the crimes of V.V.I.Ps & leads to their ill-gotten wealth. The public servants are least bothered about the lives of people or justice to them. these type of fat cats , parasites are a drain on the public exchequer . these people want ,wish me to see dead , wish to see HUMAN RIGHTS WATCH closed . so that, a voice against injustices is silenced forever , the crimes of V.V.I.Ps closed , buried forever.
To my numerous appeals , HRW’s appeals to you ,you have not yet replied. It clearly shows that you are least bothered about the lives of people or justice to them .it proves that you are hell bent to protect the criminals at any cost. you are just pressurising the police to enquire me ,to take my statement, to repeatedly call me to police station all with a view to silence me.all of you enjoy “legal immunity privileges” ,why don’t you have given powers to the police / investigating officer to summon all of you for enquiry ?or else why don’t all of you are not appearing before the police voluntarily for enquiry ?at the least why don’t all of you are not sending your statement about the case to the police either through legal counsel or through post? you are aiding criminals ,by denying me job oppurtunities in R.B.I CURRENCY NOTE PRESS mysore , city civil court ,bangalore , distict court , mysore ,etc & by illegally closing my newspaper. Even Press accreditation to me as a web journalist is denied till date. there is a gross, total mismatch between your actions and your oath of office. this amounts to public cheating & moral turpitude on your part.
1.you are making contempt of the very august office you hold.
2.you are making contempt of the constitution of india.
3.you are making contempt of citizens of india.
4.you are sponsoring & aiding terorrism & organized crime.
5.you are violating the fundamental & human rights of the citizens of india and of neighbouring countries.
6.you are violating & making contempt of the U.N HUMAN RIGHTS CHARTER to which india is a signatory.
7.you are obstructing me from performing my fundamental duties as a citizen of india.
8. As a result of your gross negligence of constitutional duties you have caused me damages / losses to the tune of RUPEES TWO CRORE ONLY.
DLGLA/E/2013/00292
DEPOJ/E/2013/00679
In india democracy is a farce , freedom a mirage. the most basic freedom RIGHT TO INFORMATION & EXPRESSION , is not honoured by the government,as the information opens up the crimes of V.V.I.Ps & leads to their ill-gotten wealth. The public servants are least bothered about the lives of people or justice to them. these type of fat cats , parasites are a drain on the public exchequer . these people want ,wish me to see dead , wish to see HUMAN RIGHTS WATCH closed . so that, a voice against injustices is silenced forever , the crimes of V.V.I.Ps closed , buried forever.
To my numerous appeals , HRW’s appeals to you ,you have not yet replied. It clearly shows that you are least bothered about the lives of people or justice to them .it proves that you are hell bent to protect the criminals at any cost. you are just pressurising the police to enquire me ,to take my statement, to repeatedly call me to police station all with a view to silence me.all of you enjoy “legal immunity privileges” ,why don’t you have given powers to the police / investigating officer to summon all of you for enquiry ?or else why don’t all of you are not appearing before the police voluntarily for enquiry ?at the least why don’t all of you are not sending your statement about the case to the police either through legal counsel or through post? you are aiding criminals ,by denying me job oppurtunities in R.B.I CURRENCY NOTE PRESS mysore , city civil court ,bangalore , distict court , mysore ,etc & by illegally closing my newspaper. Even Press accreditation to me as a web journalist is denied till date. there is a gross, total mismatch between your actions and your oath of office. this amounts to public cheating & moral turpitude on your part.
1.you are making contempt of the very august office you hold.
2.you are making contempt of the constitution of india.
3.you are making contempt of citizens of india.
4.you are sponsoring & aiding terorrism & organized crime.
5.you are violating the fundamental & human rights of the citizens of india and of neighbouring countries.
6.you are violating & making contempt of the U.N HUMAN RIGHTS CHARTER to which india is a signatory.
7.you are obstructing me from performing my fundamental duties as a citizen of india.
8. As a result of your gross negligence of constitutional duties you have caused me damages / losses to the tune of RUPEES TWO CRORE ONLY.
9. You are responsible for crime cover ups mentioned in my RTI Appeals , PILs and continuation of those crimes unabated.
10. You are responsible for denial of information, which vindicates the crimes of powers that be.
11. You are responsible for physical assaults , murder attempts on me.
12. You are responsible for job denials to me at NIE , PES Engineering college , RBI Press , Mysore , Bangalore Courts.
13. You are responsible for my illegal retrenchment from RPG Cables , denial of medical care to me towards occupational health problems.
14. You are responsible for denying me legal aid.
15. You are responsible for illegal closure of my news paper.
16. You are responsible for denial of press accreditation to me as a web journalist till date.
17. You are responsible for repeatedly passing on my appeals to police. So that they can take statements , close the file under the threat of police power.
18. You have violated my Human Rights & Fundamental Rights.
19. In terms of Integrity , Honesty You & other public servants are nowhere near Baba Saheb B R Ambedkar , Mahatma Gandhi & Satya Harishchandra . Many Public servants are UNFIT to be in their posts.
You are hereby called upon to Pay damages to me and SHOW-CAUSE within 30 days , why you cann’t be legally prosecuted for the above mentioned crimes . If you don’t answer it will be admission of the charges by you. It will amount to confession of crimes on your own.
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 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 , etc , the jurisdictional police together with above mentioned accussed public servants , Chief Justice of India & Jurisdictional District Magistrate 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.
if anything untoward happens to me or my dependents , 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 judges , police officials , public servants & Constitutional fuctionaries.
Thanking you. Jai Hind , Vande Mataram.
Send reply to :
Nagaraja Mysuru Raghupathi
Editor , SOS e Voice for Justice & SOS e Clarion of Dalit,
LIG 2 , NO 761 , HUDCO First Stage,
Laxmikantanagar , Hebbal ,
Mysuru – 570017.
Date : 05.03.2017……………………………………………..your’s sincerely,
Place : Mysore , India………………………………………….Nagaraja Mysuru Raghupathi
Date : 05.03.2017……………………………………………..your’s sincerely,
Place : Mysore , India………………………………………….Nagaraja Mysuru Raghupathi
PIL – Fundamental Duties of Citizens Vs Corrupt Government Officials
IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION
CRIMINAL WRIT PETITION NO. OF 2017
IN THE MATTER OF
NAGARAJA . M.R
editor SOS e Clarion of Dalit & SOS e Voice for Justice
# LIG 2 , No 761 ,, HUDCO First Stage , Laxmikantanagar ,
Hebbal , Mysore – 570017 , Karnataka State
....Petitioner
Versus
Honourable Chief Justice of India & Others
....Respondents
PETITION UNDER ARTICLE 12 to ARTICLE 35 & ARTICLE 51A OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS UNDER ARTICLE 32 & ARTICLE 226 OF THE CONSTITUTION OF INDIA.
To ,
Hon'ble The Chief Justice of India and His Lordship's Companion
Justices of the Supreme Court of India.
The Humble petition of the Petitioner above named.
MOST RESPECTFULLY SHOWETH :
1. Facts of the case:
Fundamental Duties of Citizens and Constitutional Duties of Public Servants are complementary to each other. Nowadays criminalization of politics , judiciary , police , etc has taken place and many unfit candidates are in public service. These corrupt , unfit public servants are misusing their offices and putting legal seal on illegal acts , making those illegal acts technically legal. Here raises the conflict between FUNDAMENTAL DUTIES OF AN INDIAN CITIZEN and ILLEGAL ACTS OF GOVERNMENT OFFICIALS.
For example real estate mafia grabs BEML Quarters lake , Kaynes Hootagalli Lake , Ningaih lake , Hebbal lakes in mysuru creates fake title deeds and even gets it registered by sub registrar all with the help corrupt officials in government. Even police protect the rich land grabber. When a case is made out in the court of law for eviction of lake encroachers , judge simply goes through the technicalities of government documents. Based on official documents he gives a green signal to encroacher and orders for protection of his encroached properties. Lakes are nobody’s property , it is a public property and to be preserved for public usage. The good Samaritan Indian Citizen who did his “Fundamental Duties of Protecting Lakes “ lost money , time, faced abuses / remarks from the judge , faced life threat from land mafia & police. All for nothing.
One more example , a citizen while passing through a public road witnesses an accident , takes the injured to the hospital for emergency treatment to save life and informs police regarding accident making vehicle. Instead of appreciating his good work , police fits him in the case , case drags on for years making the good citizen loose his money , time & job. Also , he is threatened by vehicle owner who made the accident , no protection to the citizen for doing his :Fundamental Duties”.
One more example , a citizen complained to authorities regarding business of a liquor bar in a residential location much close to religious building & schools. The bar owner had secured license from state excise department much against the norms. Police called the good citizen for questioning repeatedly , court judge called him to court repeatedly and finally based on the license given by corrupt government official allowed the bar to operate , fined the complainant. Goons of bar owner roughed up the good citizen making him to move away from the locality itself.
An Indian citizen requests for information from authorities regarding llegalities , irregularities , misuse of office in working by judges , police , etc from supreme court of india and other related authorities under RTI Act. So that based on RTI reply from concerned authorities he can legally prosecute the guilty judges , police , public servants , can get the injustices rectified by court of law and put an end to further crimes by those guilty , corrupt public servants all in public interest. This is an effort by that Indian citizen as his “FUNDAMENTAL DUTIES” to uphold law , constitution of india. But PIOs , RTI Appellate authorities of supreme court of india & other bodies didn’t give full truthful information at all . Thereby , they committed one more crime of of covering up another crime and aiding criminals to continue with their crimes unabated. Thereby , guilty judges , police , other public servants obstructed the citizen from performing his FUNDAMENTAL DUTIES , Violated his FUNNDAMENTAL RIGHTS & HUMAN RIGHTS TO EQUITABLE JUSTICE. No justice in sight till date to good Samaritan Indian citizen , more injustices were meted out to him by judges , police , public servants - he suffered physical assaults , murder attempts , jobs denied , news paper closed , press accreditation denied , PILS he sent to apex court were not admitted , all to silence him.
In this way , there are numerous cases of Indian Citizens , whistle blowers , RTI Activists , Journalists who themselves suffered gross injustices for raising public causes , for doing their Fundamental Duties. No Justice to them even from apex court till date.
Every citizen of india must perform his / her “Fundamental Duties” without fail, before demanding his fundamental rights. Every public servant must do their constitutional duties without fail.
A citizen performs fundamental duties without any rewards or pay or perks where as a government official / public servant does his / her duties for huge pay & perks.
A citizen while performing his fundamental duties often has to spend his own money , time to fight legal cases , etc. Whereas a public servant spends nothing during the course of his public duties, everything is borne by state exchequer.
A citizen while performing his fundamental duties faces rowdy elements , physical assaults in few instances even resulting in his own murder. His family doesn’t get even a penny compensation from exchequer. Whereas a public servant enjoys the full police protection in the course of his duties and even if anything untoward happens his family will get compensation.
Obstructing a Citizen from performing his fundamental duties doesn’t attract any legal prosecution whereas obstruction of public servant’s constitutional duties is a crime under IPC.
2. Question(s) of Law:
Are Fundamental Duties of Indian Citizens Supreme or the Illegal acts , orders by corrupt Government officials (Legalizing illegal acts) Supreme ?
3. Grounds:
Requests for equitable justice , Prosecution of corrupt judges , police , public servants responsible for injustices , obstructions to Fundamental Duties of citizens.
4. Averment:
Please read details at :
Traitors in Judiciary & Police
Crimes by Khaki
FIRST Answer Judges Police
SHAME SHAME JUDGEs - Atrocities against DALITs by Judges
“There is a higher court than the court of justice and that is the court of conscience It supercedes all other courts. ”
- Mahatma Gandhi
Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the concerned public servants in the cases mentioned at above web sites , to perform their duties & to answer the questions.
The Petitioner has sent many letters / appeals / petitions to supreme court of india & other courts through e-mail , DARPG website & through regular mail requesting them to consider those as PILs. But none of them were admitted , even acknowledgement for receipts were not given. See How duty conscious ,our judges are & see how our judges are sensitive towards life , liberty of citizens , common men & see how careless our judges are towards anti national crimes , crimes worth crores of rupees. That the present petitioner has not filed any other petition (which are admitted by courts) in any High Court or the Supreme Court of India on the subject matter of the present petition.
PRAYER:
In the above premises, it is prayed that this Hon'ble Court may be pleased:
1. To make obstruction of “Fundamental Duties of an Indian Citizen” a legally punishable offence on par with the obstruction of a public servant’s duties.
2. To pay compensation of Rupees Two Crores and above to RTI Activists , Whistle Blowers , Journalists , ordinary citizens who paid with their lives or suffered injuries in the course of their fundamental duties.
3. To order for inspection , investigation of each & every issue raised by a citizen in the course of his fundamental duties instead of simply relying on government records alone prepared by corrupt officials.
4. To order all public servants including judges , Members of Parliament , Members of Legislative Assemblies , IAS officers , other public servants to do their constitutional duties as well as their FUNDAMENTAL DUTIES properly.
5. To admit all the PILs sent by me to supreme court of india and to order the concerned public servants to give proper reply to all RTI Appeals made by me.
FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL BE DUTY BOUND, EVER PRAY.
Dated : 26.02.2017……… ………………….FILED BY: NAGARAJA.M.R.
Place : Mysuru , India……………………. PETITIONER-IN-PERSON
Notice To Chief Justice of India
Judicial Tyranny
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posted by DALIT online @ 10:21 AM
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