Monday, April 25, 2016

737 (Part 2/100 of Judicial Reforms) Why should the TOP Ministers and the Senior Supreme Court Judges should sit together in a closed room? Why they cannot meet in a more transparent manner?

This is in continuation of our blogpost No. 587 (Click to go to Post No.587, if you wish to) . Mr. T.S. Thakur, CJI of India, becoming emotional, and going into tears, about the present problems of Indian Judicial System, owing to an apathetic and callous attitude of the Government of India, in filling the vacancies of Judges, providing infrastructure, the tug of war going on between the State and Central Governments about meeting the needs of Judicial System, - at a Meeting of CMs and Judges in New Delhi, on 24th April 2016, have raised ripples in the Media. But, I do not feel that it will move the hard heart of the Govt. of India, considering its behavioral patterns both during the UPA Rule and the NDA Rule. But, we must keep in mind that nobody expected much from the UPA Govt. The apathy of the Congress Regimes since the days of Indira Gandhi, are well known. People are expecting much from the NDA Govt. led by Mr. Narendra Modi, and "that much" is not forthcoming. Judiciary kO achchE din nahI AyA. After the tears also, the GOI may not change.

ybrao-a-donkey's humble comments. वैबीराव एक गधे के विनम्र राय . వైబీరావ్ గాడిద వినమ్ర వాణి. You have every right to differ with me. I respect your right. आपको मेरे मत से भिन्न राय रखने के संपूर्ण हक है। मै उस अधिकार को परिपूर्ण रूप से गौरव देता हुँ. మీకు, మీ భిన్నమైన అభిప్రాయాన్ని కలిగిఉండే సంపూర్ణ హక్కు ఉంది. దానిని ఎంతో నేను గౌరవిస్తాను. However, pl. examine this donkey's views also. परन्तु एस गधे के दृष्टिकोण को भी अनुशीलन कीजिये. కానీ ఈ గాడిద దృష్టికోణాన్ని కూడ ఓర చూపుతో కంటజూడుమీ, క్రీగంట జూడమీ.

Like the Congress and UPA regimes of the past, Mr. Narendra Modi's Administration too seems to want that Judiciary should be pliable. To make the judiciary pliable, It seems to long to control the appointment of Judges to the Supreme Court and High Courts. It does not seem to like Judicial Activism.

First of all, there does not appear to be any need for a meeting of Judges and Chief Ministers. By arranging that type of meeting, and addressing it, Prime Minister of India and his associates (Not only present Prime Minister Mr. Narendra Modi, but also previous Prime Ministers also) seem to have wanted to demonstrate that the Judiciary is subordinate to it. There seems to be an intention to brainwash the Judges, and make them more pliable.

In my humble view, the Government's role vis-a-vis the Judiciary should be FACILITATING (providing infrastructure, etc.) and NOT ADVISORY. PM or CMs have no business to pontificate the CJI or Chief Justices of High Courts on what they should do or , what they should not do.

In the blog post No. 587, I have reproduced a Face Book post by Shri Arun Jaitley, the Finance Minister of India, and the apparent de-facto adviser to our Prime Minister Mr. Narendra Modi.

In that Face Book Post Shri Arun Jaitley referred to the Superiority of five Instruments namely 1. Parliamentary Democracy 2. President 3. Leader of Opposition 4. Law Minister representing the Council of Ministers, 5. Prime Minister representing the Elected Government, -- over the Supreme Court.

The manner in which Presidential Rule was introduced in Arunachal Pradesh and Uttarakhand, by the so called Superiority of five Instruments namely 1. Parliamentary Democracy 2. President 3. Leader of Opposition 4. Law Minister representing the Council of Ministers, 5. Prime Minister representing the Elected Government shows that every instrument in Democracy can be subverted.

Of course, even High Courts and Supreme Courts can be subverted. But that is to be dealt with separately. The existence of corruption both in lower and higher judiciary, is conceded even by some Supreme Court Judges. It is not a secret. At the most we can say, that it is unproven secret. Unfortunately, Collegium of Supreme Court has not been able to pay sufficient attention to this crucial problem.

It will not be desirable to leave all the powers relating to Judicial Appoinments only in the hands of a Collegium. It may be necessary for Parliament to create a separate Independent Investigation and Adjudication Organisation. Some of these issues, we have already covered in post No. 587. A brief essence of that arrangement, we shall recapitulate:


1. Executive, whether reprewented by / representing the Cabinet, Law Minister, Law Ministry, President acting under forced advice from Cabinet , should have no role in Judicial Appointments Commission, Judicial Disciplinary Commission. The Judicial Appointments Commission, Judicial Disciplinary Commission Members should get their automatic membership. This is possible if we have Retired CJIs, Supreme Court Judges, High Court Chief Justices, automatically become members of the Judicial Appointments, and Judicial Discipline Commission. The moment a Judge retires, the Registrar of the Court should communicate the Retirement details to the Registrar of the Judicial Appointments and Judicial Discipline Commissions (two separate Commissions). The Registrars of the Judicial Appointments Commission, and the Judicial Disciplinary Commission should automatically add the names of the Retired Judges into the Membership Register of both the Commission. In the same manner, we can have another Judicial Administration Commission.


2. The Commissions have to elect their Executive Committees through secret ballot. Appointments of Judges will have to be done through open Advertisements through Media, inviting applications. There should be suitable online Written Tests. There should be no need of interviews or recommendations of State and Central Governments, or Collegiums of the Supreme Court. Biodata of all the preliminarily successful candidates are to be placed on the Web pages of the Commission. Then, the Commission General Body Members can further carry out the process of selection through another online Secret ballot.


So far, there is no instance in the History of Free India, where Parliament has corrected an error made by Supreme Court. This is because our MPs do not care for the Rule of Law. Instead, Parliament in order to circumvent correction of errors made by Legislature, Executive, has made new laws repeating he same errors in a round-about manner. The best example for this type of Executive / Legislative error can be seen in the Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844), commonly referred to as the Shah Bano case, where Rajiv Gandhi to please the Muslim Clerics made the Waqf Board to pay Maintenance to Muslim Divorcee wives, instead of the erring husbands.


Even now, it is not too late. Our Parliament Members can take interest in what the Supreme Court and High Courts are doing, and write some articles containing their analyses, where and how Supreme Court and High Courts have gone wrong. It is high time that Lok Sabha in India proves its legal acumen and competence, by showing its competence and efficiency. Then there will be no need to wail that Supreme Court, an UNELECTED BODY is trying to overact and impose its jurisdiction over Parliament. In fact, Parliamentary competence and efficiency will reduce the burden of the Supreme Court and State High Courts. Then, very few people will approach High Courts and Supreme Court, under Art. 226 and Art. 32, writ jurisdictions.

Mr. Arun Jaitley, and Mr. Narendra Modi have their own Web sites. They can take any single case where the Supreme Court has gone wrong, in respect of which Parliament has acted correctly. It will not be sufficient for them to say that Parliamentary Democracy is superior or Prime Minister is superior or Law Minister is superior.

Mr. Narendra Modi is reported to have said: "If Constitutional barriers do not create any problems, ten top Ministers and Senior Supreme Court Judges can sit together in a closed room to find a solution to the room".

The hard reality in our country is: The top Ministers in our so called glorified democracy are "glorified clerks" of the Prime Ministers and Chief Ministers, because they can be swept away from the Cabinet with a jhAdu (broom) whenever Prime Ministers and Chief Ministers want. Our Presidents and Governors are just rubber stamps. Incidentally, what the Ministers have got to talk to Judges? Give them lectures? Then why a closed room?
>br />Out of 170 names sent by Collegium for High Court Judge appointments, 169 names are reported to be pending wih the Government of India. If this information is correct, then we may have a reason to believe that GOI is deliberately blocking and delaying Judicial Appointments, because Judiciary wanted to continue the existing practices and procedures of appointments. The Government, ethically and also keeping in mind the problems of the People, should have cleared some of the pending applications recommended by Collegium on merits. This can be done, while the Government -- making it clear, that their action of the clearing the applications is without prejudice to its right to devise new methods and procedures for future Judicial Appointments.

I request my Readers not to forget about the superiority of NATURAL JUSTICE over Parliament and Supreme Court. Though there is no clear-cut definition of what constitutes Natural Justice and what does not constitute Natural Justice, many times it can be found that children and adolescents can identify what is just and what is not just, by applying their minds, on natural justice. The peculiarity of Natural Justice is, persons who have a conscience can easily identify it, because it is not clouded by selfishness.

Shall finish shortly.

(To continue. और लिखने का है। ఇంకా వ్రాయాల్సింది ఉంది.

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