On 05 November 2022, a
report at https://www.barandbench.com/news/not-satisfied-collegium-system-majority-judges-agree-with-me-law-ministerkirenrijiju informed its readers that the Union Law Minister,
Kiren Rijju, had made a serious observation about the Collegium system. He had
said: "The politics that we
politicians do is nothing in front of the politics which happens inside
judiciary. It is not visible but it is intense politics".
I, for one, believe him
totally.
I know how the apex court
usurped the powers of the Executive to appoint judges to the higher judiciary.
Nowhere in the dictionary could I find the word consultation as meaning advice of the consultee binding on the
consulter. It was the first step towards
the constitution of the Collegium and a blatant subversion of the provisions of
the Constitution. Nowhere in the world does such a system exist where judges
appoint judges.
Another report, ‘People
unhappy with collegium, govt should appoint judges: Law minister Rijju’, (Oct 18, 2022 at https://www.indiatoday.in/india/story/people-unhappy-with-collegium-govt-should-appoint-judges-law-minister-rijiju-2286604-2022-10-18)
says that
Rijju had also driven home another serious issue: The
executive and the legislature are bound and regulated by the judiciary. But if
the judiciary goes astray, there is no mechanism to control it. Succinctly
put, I must say. And this is the same idea I had been harping on for more than
a decade now in the following words:
Among these three organs of our
Constitution the law-makers are (theoretically, at least) controlled by the
people, bureaucracy (yes, bureaucracy, because without the active support of
the bureaucracy no politician can do any wrong!) and finally the judiciary; the
law-enforcers, that is, the Executive, are also controlled by the law-makers
and the judiciary. And then there are the ears and eyes of the people- the
media waiting to sensationalize every news involving the misdemeanor of these
authorities.
In spite of such strict supervision and
control all that we can hear these days are about
politician-bureaucrat-underworld nexus even though the fact remains that none,
worth the name, from this unholy nexus have ever been punished by the
holier-than-thou judiciary.
So now think how bad a system can be
which is not only NOT subject to supervision but also kept beyond critical
observation. Well isn’t our judiciary just that? And do I need to recapitulate
that quip: power corrupts and absolute power corrupts absolutely?
Parliamentary Standing
Committee of the Ministry of Law and Justice, then headed by Rajya Sabha member
E.M.S Natchiappan, had said, 'Judges appointing
judges is bad enough in itself; judges judging judges is worse.' This
truism does not warrant any debate.
It brings me to the more
important requirement of a National Judicial Commission to inquire into and
punish judges for any and all offences, of omissions and commissions that are
applicable to ordinary citizens. And, as the judiciary itself has been harping
that unequals cannot be treated as equals, shouldn’t the punishment for the law
qualified people be more severe than for ordinary citizens, typically, double
for the lawyers and four times more serious for the judges. However, a bill to constitute a National Judicial
Accountability Commission has been gathering dust for decades now. And, with
the apex court trashing even the National Judicial Appointments Commission Act
will this bill ever see the light of the day?
The opaqueness in the
judiciary’s functions is not a feature of the Collegium only. It was the first
to begin subverting the Right to Information Act, with the Chief Justices, as
competent authorities to frame rules, fixing Rs 500/- as application fee and Rs
5/- per page of photocopied information, against Rs 10/- and Rs 2/-
respectively as fixed by other public authorities.
Also, we saw in Subhas
Agarwal’s case, how the judiciary stonewalled providing information and the
matter was decided against the public authority not only by the Central
Information Commission and two benches of the Delhi High Court but also by a
bench of the apex court itself. It is also pertinent that , it took the apex
court almost a decade after the division bench of the Delhi High Court had
given its decision, even introducing an unlawful provision that the Public
Information Officers could seek reasons for seeking the information when the
Act explicitly forbids it.
Horror of horrors, the
Rules laid down by the respective Chief Justices have also kept the information
about the judicial functions out of purview of the RTI Act.
To dig the last nail on
transparency, the apex court has not even complied completely with the
provision for suo moto disclosure mandated by Section 4(1)(b) of the RTI Act.
The yardstick I have been
using to gauge transparency in a public authority is by seeking compliance with
Section 4(1)(b), particularly with sub sections (ix) and (x) whereby the public
authorities are required to publish a
directory of its officers and employees and also the monthly remuneration received by each of its officers and employees,
including the system of compensation as provided in its regulations.
Suffice to say, this has
been a catalyst for subversion of this law by other public authorities,
including the Information Commissions. To begin with, at least the suo moto
disclosures of the Central Information Commission was a model that could be
used as an example for other public authorities but now it has also been reduced
to a farce.
Given the fate of this simplest
of laws, which was enacted with the purported aim of containing corruption and to hold Governments and their
instrumentalities accountable to the governed, it can easily be imagined
what a mockery is being made of the other laws of the land. Isn’t it a common
refrain that our laws are like cobwebs that trap insects and let the birds fly
through?
I can vouch, on the
strength of the decisions of the information commissioners of the Central
Information Commission and the Kerala State Information Commission, that these
commissions have been reduced to another cesspool of corruption, in its
broadest meaning as accepted recently by the Indira Banerjee judgment in
Advocate Prashant Bhushan’s contempt of court case. Obviously, it doesn’t rule
out corruption in its narrowest sense either.
I am among those who believe
that the RTI Act can be misused only by the information commissioners who can
fail to impose the penalty mandated by Section 20 of the law without assigning
reasons or giving false/misleading reasons. And if this is not corruption, nothing can be.
I am also aware that this
is an offence punishable under Section 219 of the Indian Penal Code which reads
as whoever being a public servant,
corruptly or maliciously makes or pronounces in any stage of a judicial
proceeding, any report, or order verdict, or decision which he knows to be
contrary to law shall be punished with imprisonment of either description for a
term which may extent to seven years or with fine or with both.
Let me recollect two more
facts brought out by the Law Minister (‘Why law minister Kiren Rijju wants a
reboot of the collegium system of judges’ appointments, Sep 20, 2022; https://www.indiatoday.in/india-today-insight/story/why-law-minister-kiren-rijiju-wants-a-reboot-of-the-collegium-system-of-judges-appointments-2002484-2022-09-20)
One,
the vacancies have added to the
judiciary’s burden, multiplying the case load—there are more than six million
cases pending in the Supreme Court and high courts across the country. The rate
of disposal of cases in the apex court has dropped from 67 per cent in 2018 to
25 per cent this year (till July 31). The disposal rate in high courts has
dropped from 39 per cent in 2018 to just 9 per cent this year (till July 31).
And,
Two,
the delay (in appointment of judges) starts at the level of HC collegiums. While
there were 380 vacancies in high courts till the end of July (between December
1, 2021 and July 27, 2022), the Supreme Court collegium recommended only 140
names (127 fresh and 13 reiterated) for appointments.
The Empire, nay,
Judiciary, strikes back.
On November 11, 2022, a
report (‘Supreme Court Issues Notice to Law Secretary Says- Keeping Collegium
recommendations on hold is Unacceptable’) at https://lawtrend.in/supreme-court-issues-notice-to-law-secretary-says-keeping-collegium-recommendations-on-hold-is-unacceptable/ quoted a bench of Sanjay Kishan Kaul and AS Oka as having
stated in its order that “Only the
appointment must be issued after the second reiteration. Putting names on hold
is not acceptable; it is becoming a tool to force these people to withdraw
their names, as has happened.”
This, to say the least, is
preposterous. The judges seem to be forgetting that the law making authority,
as per our Constitution, is the Parliament and the legislative assemblies in
the States. The courts are empowered only to interpret the law in the context
of the facts of particular cases, where more than one interpretation is
possible, subject to the framework, as outlined in its introduction or
Preamble.
In practice, court orders
are enforced only through follow up executive orders, even in cases where the
judiciary is not a party to the case. That is why even after bandhs were held
illegal by the Kerala High Court and that order was upheld by the apex court,
they have continued to disrupt routine life in the name of hartals. Interestingly, the copies of the orders were denied to me by
the Home and Law Departments of the Government of Kerala. The Kerala High Court
itself denied them to me stating that they, being part of judicial proceedings,
were out of purview of the RTI Act.
In the context of the
current notice to the Law Secretary, I wish the Executive could reply that the
Parliament has considered the recommendation and rejected it.
Another report that
becomes relevant is the decision of the apex court to review its decision in
the JMM bribery case. The report at https://timesofindia.indiatimes.com/india/1998-jmm-verdict-review-sc-to-examine-legislative-immunity-in-bribe-for-vote/articleshow/95543205.cms (‘1998 JMM verdict review: SC to examine legislative
immunity in bribe-for-vote’, Nov 16, 2022) informs us that Nearly 24 years after a five-judge Constitution bench by a 3:2 majority
held in the JMM bribery case that MPs cannot be prosecuted in a criminal court
for allegedly taking bribes for voting in the House, a bench of same strength
will now take a call on whether the 1998 verdict needs a relook and said that
it would refer the case to a larger bench, if needed.
I
personally believe that the 1998 verdict was flawed. But the logic that
Parliament is not a place for trading in votes cannot be a new concept or a new
moral high ground. And it should apply
not only to politicians but also judges, babus and public servants of every
hue. In fact, JMM bribery case along with St Kitts case and pickle tycoon Lakhubhai
Patel case, all involving the then Prime Minister P V Narasimha Rao, formed the
triology of cases that I first began to analyze from the point of view of our
laws, their interpretation by the judiciary and simple plain logic.
For
now, it is important to recollect that there was this cash at door step scam
involving a judge of the Punjab and Haryana High Court. On August 13, 2008, a bag containing Rs 15 lakhs
was delivered at the residence of judge Nirmaljit Kaur. A three member committee was set up by the then CJI K G Balakrishnan
and this committee drew an inference that the money delivered at the residence
of Justice Nirmaljit Kaur was in fact meant for Justice Nirmal Yadav. As
per a report dated 06 November 2021 at https://www.barandbench.com/columns/the-cash-at-judges-door-case-a-chronological-revisit (‘The Cash at Judge's Door case: A chronological
revisit’) the trial of Justice Yadav is
still inconclusive!
And
that’s not all. The apex court is after the appointment of Chief Election
Commissioner and Election Commissioners. ‘Need CEC who can’t be bulldozed, T N
Seshan happens once in a while: Supreme Court’, reads a report, datelined November
23, 2022 (https://indianexpress.com/article/india/need-cec-who-cant-be-bulldozed-t-n-seshan-happens-once-in-a-while-supreme-court-8283854/). ‘‘Will ensure independence’: Supreme Court moots
inclusion of CJI in consultative process for CEC appointment’, reads another
one, of the same date, at https://www.financialexpress.com/india-news/will-ensure-independence-supreme-court-moots-inclusion-of-cji-in-consultative-process-for-cec-appointment/2887587/. At this point
can we forget how the apex court usurped the powers of the Executive to appoint
judges of the higher judiciary by preposterously misinterpreting the meaning of
the word consultation?
A
more interesting report is there at https://www.news18.com/news/india/total-recall-as-sc-questions-election-commissioner-goels-appointment-it-mustnt-forget-tn-seshans-fate-6464131.html (‘Total Recall: As SC Questions Election Commissioner
Goel's Appointment, It Mustn't Forget TN Seshan's Fate’, November 25, 2022). It
reminds the apex court as much as its readers thus: The Supreme Court is worried about the independence of the Election
Commission and it is feeling the absence of a Chief Election Commissioner like
TN Seshan. The only problem is that it’s the same Supreme Court that had made
Seshan weaker by its decision when he was the CEC. (Order dated 14 July
1995 in WP(C) 805 of 1993)
Let me conclude this part
with two quotes: '...for judges of the Madras High Court and the Supreme Court, the PCA
Act is a dog is a monkey is a bear is an elephant; intriguingly, a dog is also
not a dog on another day.' (High Court and Supreme Court ‘jallikattu’ the
PCA Act, Radha Rajan; 21 Feb 2012; http://www.vijayvaani.com/FrmPublicDisplayArticle.aspx?id=2195)
Already citizens are frustrated with the justice
delivery system and only less than 10%
of the litigants who have disputes are approaching the court," Justice Kirubakaran. (‘Rise in contempt of
court cases irks Madras high court’, A Subramani; Feb 24, 2013; http://timesofindia.indiatimes.com/india/Rise-in-in-contempt-of-court-cases-irks-Madras-high-court/articleshow/18651932.cms?intenttarget=no)
P M Ravindran/ raviforjustice@gmail.com 27
November, 2022
No comments:
Post a Comment