SENIORITY FOR CJI's APPOINTMENT?

                     SENIORITY FOR CJI's APPOINTMENT ?

     TOI( Delhi Edn.DT.24 August 2014) carries a write up by Markandeya Katju J. Former Judge of Supreme Court of India and presently Chairman of Press Council of India wherein he says that for appointment to the office of Chief Justice of India,merit should be the criteria and not the seniority.He quotes many examples of US Supreme Court and UK's highest Court where people of exemplary merits were appointed as Chief Justice and they excelled in their persuit.He quotes the name of Earl Warren who was not part of the Judiciary as he was Governed of California.Warren no doubt exceplled as Chief Justice of US Supreme Court.The present Chief Justice John Roberts was not even a Judge of US Supreme Court when he was appointed Chief Justice of US Supreme Court.John Roberts is very efficiently leading the US Supreme Court.These examples are undoubtedly leading examples.
         But Katju J contradicts himself in Indian context that when M.C.Chagla, Chief Justice of Bombay High Court was proposed to be appointed directly as Chief Justice of India,all the judges of the Supreme Court threatened to resign en block. He further forgets that when a person is appointed as a Judge of High which is feeder cader for Supreme Court,is he appointed strictly on merits or there are various other considerations? Certainly there are many other considerations.Caste factor ,community factored,sex factor,regional factors are a few considerations which eclipse the appointment on merits.
          He has also forgotten that a little slackness on the part of other judges lead Mrs.Indira Gandhi to effect first supersession in 1973 when A.N.Ray being number four in seniority was appointed Chief Justice of India resulting in the resignation of three senior most judges of the Supreme Court.There was huge uproar in the Bar and in the country which had shaken confidence in Indira Gandhi.Justice H.R.Khanna was supercede and not appointed Chief Justice and Justice M.H.Beg was appointed Chief Justice not because Khanna J was less meritorious than Beg J.Khanna J was punished for upholding the rights of life and liberty in Fundamental rights Case( ADM Jabalpur's Case ).
           I would like friends to recall that when John Major was PM of UK,his son was arrested for certain violation and was brought to the Police Station.The officer in Charge called the father of the erring boy who was Prime Minister to the Police Station was given a warning by the Officer.The Prime Minister accepted the warning and son was let off.Also recall when George Bush was President of US,his daughter was arrested for drunken driving and was brought to Police Station She had pay the penalty before she was let off.The President could not influence the course of dept.of justice.ARE SUCH THINGS POSSIBLE IN INDIA?
        A LITTLE DEVIATION FROM THE SENIORITY RULE WILL GIVE ENOUGH ELBOW ROOM TO TINKER WITH THE HIGHEST OFFICE IN JUDICIARY.
        So long Seniority Rule is adheared to,we get good Chief Justice or bad chief justice but once the seniority rule is abandoned,there will be horse trading for the appointment and I shall not be surprised that one day the office will be mutely auctioned.I am making this statement in full since and fullest responsibility as a member of the Bar having spent more than 41 yes.at the Bar.For the shake of dignity of office of Chief Justice and dignity of written words,I am refraining from making statements which may not behove me well.

A Letter To Law Minister

                      A Letter To Law Minister

  Dear Law Minister,
          I send my heartiest congratulations to you for showing exemplary courage,wisdom and professionalasim shown in piolating the two bills amending Article 124 of the Constitution relating to the appointment of Judges and for setting up Judicial Commission and that too with God speed that in just three days both the bills were passed by both Houses.
       I also congratulate NaMo for his resolute determination in going ahead with the two bills.Such controversial subjects were aimed by him and it was accomplished.No politician ever dared to put his hand in the jaw of a Lion but NaMo took the courage and did it with unanimity.
         When the second matter was going to open before Nine Judge Bench, we expected that the then Attorney general would ask for review of the Advocate On Record case of 1993 but Sri Solo J Sorabjee as Attorney General got up to inform the Court that he is not asking for reconsideration of the Judgment by which Constitution was rewritten by 5:2 by Supreme Court snatching away the power of appointment of Judges from the Executives as was originally envisaged under Article 124 of the Constitution.The innovation of the Judiciary was hailed by all as if the Judiciary got the most prized catch.Ahmadi and Punchi JJ had rendered dissenting judgments which were not taken in good taste.
         When the first Judgment was rendered in 1993, I was Hon. Secretary of the Supreme Court Bar Association and thus at times sitting on driver's seat at times.I used to have direct interaction with many players and have had direct access to many facts which are burried in my head and I can not disclose them as many players had confided with me in confidence.But I can say now with my 41 yes.of practice at Supreme Court level with some knowledge of functioning of the Government as Advocate General for a few yes.that when big cases are decided,some Judges have their personal agenda to peruse.It happened in S.P Gupta's case wherein I represented Bihar State Bar Council.
           In 1993,when AOR Case was going to be decided,the next CJI was going to be someone whose wings had to be clipped.The Judgment was used as a device to accomplish the cut task forgetting that the incumbent was going to be so smart that despite fractured recommendations,all desired appointments were obtained through the help of Executives.The two Judges sitting on two flanks of Court 1 remained always aghast.All these facts are within my personal knowledge and as Law Minister you can verify the records of 1994-1997.
         What I mean to say is that it was a sinister design to create a Collegium in 1993 which failed in all respect.I was watching Live the proceedings of two House and I was aghast to find that amongst Legislatures there was not even one defender of Collegium System.All members one after another spoke ill of the System.Sitting in two Houses and listening to the debates you must also have had the same feeling as I was having.All those who had propounded or Authored or Signalled the System had later on condemned the system except that all CJI 's have been defending the System.
          This was only to give vent to my feelings and not to educate you.You are wise enough.I hope the new system put in place without any further loss of time.
                With warm regards,
                                                               Affectionately Yours'
                                                           
                                                            (  Ashok Kumar Srivastava, )
                                                                 Senior Advocate,Supreme Court.

Corruption In Judiciary

                      Corruption In Judiciary

      I fully endorse the painful statement made by the Chief Justice Of India R.M.Lodha today while disposing of a PIL that if Society is not perfect,we are also not perfect.We are also part of the society and society is reflected in us also.He further said that there is a smear campaign to malign the Collegium which have final say in the appointment and transfer of  the Judges.
         Ever since the Executives have mooted the idea of National Judicial Commission, the Supreme Court have resisted the formulation.As Katju J again blurred out about Corruption in Judiciary and blamed the CJI's of having done nothing to root out corruption except transferring the erring Judges from one High to another but never made reference for their impeachment, raises certainly an alarm.Corruption in Government is not a new phenomenon, it is there since its inception but Corruption in Judiciary is alarming.We hear whenever a Judge is transfered that there were allegation of corruption against him but it rest at that.There had never been in house inquiry against the erring Judge,the after transfer remains under cloud for ever,he also never demands that if he is transfered,simultaneously there should be a probe too.The vicious circle keeps rotating without any result.
          In the past also CJI's have made disclosures about corruption in Judiciary.Late Venkataramaiah after he retired as CJI made a startling statement that 90% of the Judges wine and dine.Chief Justice Bharucha made the statement that 20% Judges are corrupt.Recently Katju J disclosed about the charges of corruption against a Madras Judge Ashok Kumar.These statements shake the confidence of public in Judiciary.To that extent CJI Lodha is not right that there is a smear campaign against the Judiciary.No serious effort has been made by Judiciary also in addressing this Cancer of Judiciary.One corrupt Judge is enough to shake the very foundation of the Judiciary,Katju J named five corrupt Judges from Allahabad High Court.Judiciary is like a white sheet where a small blot is visible.Where a sitting CJI said that 20% Judges are corrupt,what serious effort was made to arrest the corruption.Katju J is right in saying brushing under carpet constantly make it more visible.
          Other day I was talking to a retired Judge of the Supreme Court who said that wrong judgments are not obtained by corruption rather for doing right thing Judges in Lower Judiciary demand money.This is more condemnable.
          Any way,now there should be any relaxation on the part of Executive,Legislatures and Judiciary curb this mailese for all time to come.The Modi Government must go out whole hog to address this problem of the Society.

The Shameless Erring Judge

                       The Shameless Erring Judge

        The reports by Times of India this morning about the ugly conduct of the Administrative Judge of Madhya Pradesh High Court at Gwallior Bench brought shame to the entire legal fraternity.I hang my head with shame over this conduct of a sitting Judge of the High, that too against an officer of Madhya Pradesh Higher Judicial Service posted at Gwallior.She was chairperson of Vishkha Committee against the sexual assault.She had to quit the the office of Additional District and Sessions Judge ,Gwallior and a brilliant carreear came to an abrupt end.Just imagine how miserable and defenceless the women officer must have felt over the sexual harrassement she had to undergo those days.
        The erring Judge is Justice Surendra Kumar Gangele posted as Administrative Judge at Gwallior Bench of High Court.I rang up a friend at Gwallior just to find out whether the Judge is still sitting in Court and I was astonished to know that the Judge completed his business listed before his Court.The Chief Justice of the High Court should have delisted him from the conduct of business of the Court.It appears to me that the Chief Justice has not taken the matter seriously enough.
          In 1990s there were allegations against a sitting Judge of the Supreme Court namely Justice V.Ramaswamy .The allegations were of financial irregularities during the period when he was Chief Justice of Punjab and Haryana High Court.Then I was Hon.Secretary of the Supreme Court Bar Association.We made representation to the then Chief Justice of the Supreme Court Justice Sabyasachi Mukherjee.On our representation, the Hon'ble Chief Justice took off the Judge from the cause list of the Court namely the Judge was not allotted cases to be heard by him in the Court Room.The Judge used to come to Supreme Court and just sit in his chamber till 04.00.
           Those days series of meetings used to be held on the requisition signs by the members of the Bar for or against the Judge. A political Party was backing him up which ultimately bailed him out when impeachment motion was moved in Parliament and the Judge had gone scot free despite findings of guilt by an enquiry committee of the Judges presided over by Justice P.B Sawant.
             When the matter misconduct on the part of Justice Bhattacharjee,Chief Justice of Bombay High Court came to the fore,it was ruled by the Supreme Court that an in-house inquiry can be held for reaching a primafacie conclusion of the guilt of the judge.Hopefully,the Chief Justice of India will take this route.Thereafter,CJI can give permission for the prosecution of the under section 154 of Indian Penal Code as he has committed the offence of sexual harrassement. The permission of the CJI is mandatory under a judgment of the Supreme Corurt rendered in Veeraswamy's case.
        The Constitution lays down procedure for removal of a sitting Judge of the high Court under Article 124 and 217 according to which a Judge can be removed from the office by way of impeachment on a motion moved in Parliament.Before that an inquiry has to be held by a committee of three Judges, a sitting judge of the Supreme Court,a sitting Chief Justice of a High Court and a judge of the H.C.This shall give full opportunity to the erring Judge to defend himself.If  he is found guilty,then the report shall be sent to the President of India who shall send the motion to the Parliament for impeachment.There also the Judge gets an opportunity to defend himself.
         The procedure of impeachment is encumber some that it takes considerable time.In 1996-7,this problem had arisen in the cases relating to Justice Bhattacharjee,Chief Justice of Bombay High Court and Justice Vijaya Bahuguna,another judge of Bombay High Court.There were several serious complaints against them.The then Chief Justice of India Justice took a novel route and held discreet enquiry against them,collected lot of materials against them and confronted them with those materials and forced them to resign and got rid of them.
          I am told that this Gwallior Judge had earned the notorious reputation of specially by at as swing women judicial officers.awhile he was sitting atvIndore Bench,he was caught red handed but the case was hushed up.I have no concrete proof of such allegations and my allegations are subject to verification but members of the Bar at Gwallior are not very happy with the conduct of this Judge.
         I hope,stern and timely action is taken against this erring judge to restore confidence in the Judiciary.

Fast Tracking Cases Of Legislatures

                            Fast Tracking Cases Of Legislatures.

      "Politics ,Politicians and Surrounding should be clean" -This is desired by everyone including our Hon'ble Judges who have rendered invaluable judgments in the recent past which created  ripples in political circles.Some prominent politicians were debarred from the membership of the House and were prevented from contesting recently concluded election.
        The steps taken by the Supreme Court in cleansing the politics and medias far cry forced political parties to make solemn promises to keep the politics clean.Cabinet presided over by Dr.Manmohan Singh decided to safeguard the membership of some politicians boiled the blood of one Office bearer of a leading political party running the last government to call the Ordinance a Nonesence and presents theatrics to tear it apart.That was the salutery effect of the Judgment of the Supreme Court.
        Sri Narendra Modi the then Prime Ministerial candidate of BJP made an election plank to tell the people in many public meetings which he addressed seeing electioneering that if his party comes to power,he will make a request to the Hon'ble Supreme Court to fast track all the cases pending against the legislature so that they are either ousted from the House on the finding of guilt against them and if they get acquittal, the stigma would go.This one promise amongst other promises also persuaded people to vote stunningly in favour of Modi who became Prime Minister with majority of his party.
          As a gentleman politician,Sri Modi to keep up his solemn promise to cleanse the legislatures,made a request to the Supreme Court through Ld.Attorney General to fast track the cases pending against the legislatures which was declined by a Bench presided over by by Hon'ble Chief Justice on the ground that fast tracking cases of legislature will delay other cases which are pending against other accused.The Ld.CJI reminded the Attorney General that Judiciary lacks manpower and infrastructure to cope up with pendency.No doubt,pendency of criminal cases are hampering the rights of the accused who are languishing in jail for longer period than that  if they would have been found guilty.The Criminal Disposal System is in a very poor state rather I have no hesitation to say that it is in pathetic condition.
            I would  concead that all accused deserve equal treatment as Speedy Trial is fundamental right of every accused and that fast tracking one set of cases will certainly delay other set of cases.I would also concead that Judiciary lacks manpower and infrastructure but the demand of the Ld. CJI calling upon the Government to provide better manpower and infrastructure to enable the Judiciary to fast track the cases of Legislature.
         Here I have a caveat to lodge.Fast tracking the cases of Legislatures is need of the hour as clean politics and politicians are desired by everyone including the Courts.Though the rights of a pick pocket and Legislature are equal but a clean politician will administer the nation better than a politician who is under a cloud.A politician who is part of Legislature must be above all suspicion and the nation must back him fully to prove his innocence so that he can administer the nation without any sence of guilt.Secondly,if the manpower and infrastructure have been in poor state,no government can improve it in one day.Judiciary had been always treated as step son on whom no government wanted to spend though Judiciary screamed for it from time to time.
          My submission ,therefore,is that the Hon'ble Supreme Court ought to have given a fair chance to the Legislature to prove their innocence failing which they deserved disqualified.

Appointment Of Judges.

                                 Appointment Of Judges

          However aloof you may be from the Courts,Lawyers and Judges,still your life is influenced by Judges;sometimes directly if you are a litigant or indirectly when Judges decide important questions of law and thereafter,executives implement those directions of the Court.Many of us have not witnessed the Proceedings in Courts to realise how debates go on in the Courts and how lawyers put in their hard work in presenting the view point and how much Judges exercise their minds to come to a conclusion as he knows the judgment is going to influence the lives of millions of countrymen.Umpteen number of maxims or principles of law and precedents come in their way to obstruct their thinking's so that they are not wrong or they do not lay down wrong principles as the ratio of the case become binding precedents for all Courts and Hans are tied to decide only in that manner and in no other manner.
          It is not that the principles once laid can not be altered or varied but normally Courts are loath or reluctant to deviate from the principles already enunciated.Once a principle is followed in large number of cases,it becomes more difficult to deviate.In the past,several cases are reconsidered by larger benches and new principles are laid down.This is being followed by the Courts through out the world.
          In the above premises,appointment of Judges should be considered.There have been always two sources of appointment,members of the Bar are directly appointed as Judges and members of the Judicial Services are also elevated to High Courts.Normally from Services when they are appointed,they are appointed from the Cadre of District and Sessions Judges who come to High Courts at the very fag end of their career. Very seldom Service Judges reach Supreme Court level though there had been few distinguished Service Judges who not only reached Apex Court,became Chief Justice of India.
          When Services Judges are considered for appointment,their entire service records are before the Recommending and Appointing Authorities.It is much easier.However,when a member of the Bar is considered for appointment,that pose a problem because of independence shown by the Advocates in their long professional career.
           Constitution of India under Articles 124 for Supreme Court and under Article 217 for High Courts lay down the procedure for appointment of Judges.Before 1980 ,there were not many problems in appointment as the Chief Justice of the High Courts would send the recommendations to the Executives and invariably appointments used to go through.It would be the duty of the member of the Bar to honour the words of the Chief Justice if he called upon the member of the Bar seeking his consent to be a Judge.No member of the would refuge the call of duty.Even the Chief Justice of the High Courts would feel confident in recommending the names.The day his consent is taken,he would thereafter refrain from appearing in Courts.
            But  upsetting the election of Indira Gandhi on corruption charges by Justice Jagmohan Lal Sinha of Allahabad High Court changed the scenario and when She came back to power in 1980,controversies started.Indira Gandhi was intolerrent of Judiciary which lead to infamous supercession of Judges in 1973 and appointment of A.N.Ray as Chief Justice of India.Before Shah Commission there was a case of Justice U.R.Lalit ,a judge of Bombay High Court who was not confirmed which was cited as one of the emergency excesses.Indira Gandhi was always upset with Judiciary as it did not behave like an obedient child and always asserted its independence.
            Many methods were deviced by Mrs.Gandhi to pack the Courts by her henchmen and she succeeded through two Law Ministers Sri P.Shivshankar and Sri Hans Raj Bhardwaj.But still it was not possible to infect the entire Judiciary.But A few infiltration itself was bad enough.Such a fear phycosis was let loose by her that even a Constitution Bench of the Supreme Court lost its glory in fundamental right case( ADM Jabalpur Case ).Judge's transfer also became a boiling issue in 1980s when inconvenient judges would be transfered without consent.
       Then came 1990s when a question was raised as to who should have primacy in appointment of Judges,the Executives or the Chief Justice of India.A seven Judge Bench of Supreme Court by majority of 5:2 held that a collegium of Three Judges (  Later Five Judges ) shall have primacy in appointment of Judges.It was laid down that to maintain the independence of Judiciary it is imperative that unanimous recommendations of the Collegium of the Supreme Court shall have primacy and the Executive shall be bound to appoint the Judges.
            The Collegium system became a tool in the hands of Supreme Court to appoint Judges of their choice and the executives just remained an onlooker.After 10 years it was realised that Collegium is not functioning with transparency, latest was appointment of Justice Ashok Kumar of Madras High Court who was perceived to be corrupt.Justice Katju raised this issue of 2005 appointment now.Suffice to say,the Collegium System had not developed any institutional safeguards and it was lacking in transparency.
            For the last few years a National Judicial Commission is being talked about which every government proposes and the Supreme Cort always opposes.The Commission is still in formative stage and consultation process is still going on.Unless it takes some shape,it will not be prudent for me to comment upon.