Saturday, May 14, 2016

754 Greater transparency needed in appointment of Supreme Court Judges


There is a somewhat overused legal maxim which reads: "Justice should not only be done, but also appear to have been done". In the appointment of four Supreme Court Judges recently, the Supreme Court of India, might have done justice. In respect of elevation of High Court Justices to Supreme Court, the Supreme Court Collegium might have followed the established customs. In respect of elevation of an Advocate directly Supreme Court, the ratio decidendi for the appointment, is apparently not available in public domain. Consequently, there will be some mist for the citizens who are studying the incongruences which are going on between the Executive (which has also taken cudgels on behalf of the Legislature), and the Supreme Court of India, over the validity of the National Judicial Appointments Commission Act, 2014, and the lack of transparency in Judicial Appointments being done by the Collegium for appointment of Judges.

With regard to the quote of Justice V.R. Krishna Iyer appearing in the above image, I must first thank the website: http://pages.cs.wisc.edu/~muthian/quotes.html , from which I gathered it. I have not seen the actual judgement of Late Justice Krishna Iyer.

There is another quote available on net, which is similar to the Krishna Iyer's quote, which is worth mentioning. This quote is attributed to Robert H. Jackson:

"...We are not final because we are infallible, but we are infallible only because we are final...".

Robert H. Jackson was : United States Attorney General (1940–1941) and an Associate Justice of the United States Supreme Court (1941–1954). He was also the chief United States prosecutor at the Nuremberg Trials, as per WikiQuotes.org.


Supreme Court of India's Collegium, while recommending the elevation of Shri Lavu Nageswara Rao, to the Apex Court, might have followed its own internal customs, guidelines, norms, procedures, which as outsiders we netizens do not know. Supreme Court's Collegium may be correct and infallible.

Yet, as a lay man, I am tempted to express some humble personal opinion:--

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.


Apart from Shri Lavu Nageswara Rao, there may be among the members of Supreme Court Bar, who fulfil the requirements to become Supreme Court Justices. Some of them may be as much capable as Shri Lavu Nageswara Rao. They may also be sufficiently Senior. They might have expected a call from the Supreme Court, but might have been disappointed. They might not have come out openly, because HUMANS LIVE ON HOPE, AND THEY MAY BE EXPECTING FUTURE CALLS FROM THE COLLEGIUM. Hesitation to come out openly, may be for various obvious reasons such as, a fear that criticism may jeopardise their pending cases in the Supreme Court. Any slip in words, sentences, used in the criticism, or their misinterpretation may lead to contempt of court.

One unfortunate consequence which resulted by Collegium not following the system of releasing advertisement / notification, calling for applications / nominations from the Supreme Court Lawyers expecting elevation, is: Those Supreme Court Advocates who maintain a low profile and do not canvass for themselves, might not have got their names noticed by the Supreme Court Collegium. If Collegium released advertisement / notification , after submitting required application / nomination , aspirants will have at least at least got a confidence that their name has gone to the notice of the Supreme Court.

The Collegium ought to have at least called for names and biodata of eligible Supreme Court Advocates , from the Supreme Court Bar Association and/or the Bar Council of India. This does not appear to have been done.

Inviting and receiving large number of applications from the Supreme Court Lawyers, might have resulted in PREVENTION OF APPEARANCE OF BIASES such as caste bias, religion bias, region bias, etc. As appointments to Supreme Court are not done on the basis of caste / religion / language / region , how randomisation of social justice is to take place, unless large number of applications / nominations are called for and considered?
ERROR OF PROXIMITY?


Supreme Court Collegium seems to be suffering from an ERROR OF PROXIMITY. By error of proximity, somebody who appears nearby will get noticed and considered. It will be like this: We go to the kirana shop nearest to our home. Why? First preference is to proximity. In case of kirana shops such preference for proximity is Okay, but how can it be taken for Judicial Appointments?

Shri Lavu Nageswara Rao has worked as Additional Solicitor General 2/3 times, representing the Government, he might have appeared before the Supreme Court many times, enabling the Court to appreciate his Legal and orational/oratorial acumen, while other Senior Supreme Court Advocates might not have got that opportunity. This right to opportunity to submit application / nomination, seems to be ESSENTIAL FOR ADMINISTRATION OF NATURAL JUSTICE, and akin to the legal maxim AUDI ALTERIM PARTEM.

In case of the previous appointments 'direct from Advocate to Supreme Court Judge, without working as High Court CJs' of Shri Rohinton Fali Nariman, and Shri Uday Umesh Lalit also, this error of proximity seems to have taken place. Inviting a person to join as Supreme Court, and inviting guests to attend a son/daughter/self's marriage, it may not be reasonable to view as similar things. Inviting guests for marriages will be purely a matter of discretion of the persons extending/sending the invitations. Inviting people for weddings may be a family affair, whereas inviting Advocates directly to join Supreme Court as judges is a National goal and object. Though some consultation takes place between the Government and the Supreme Court, irrespective of whether Collegium will have an upper hand or the Government will have an upper hand, the process itself should have a solid foundation of both Natural Justice and Statutory Law, and openness.

PROCESS OF APPOINTMENTS SHOULD TAKE PLACE IN PUBLIC GLARE, and NOT IN SHADOWS.



The process of appointments should be both deep and wide, extensive and intensive. That means, inviting applications (where ambitious persons do not hesitate to show their own initiative to present their own cases) / nominations (where qualified persons will hesitate to apply and support one's own cases with documents), from the qualified persons should become the starting point. There will be nothing wrong in having some written tests. Some debating and elocutions can also be conducted. Supreme Court Judges can also be appointed on the basis of specialisations, just as we have specialists in different branches of medicine. Whatever processes are done, they have to take place in public glare, and not in shadows.

OUTDATED PRINCIPLE OF BRITISH JURISPRUDENCE



Though some Senior Lawyers take shelter under a principle of Jurisprudence that a Lawyer cannot refuse to accept a brief when a client approaches him (I recall reading one Indian Express Article penned by Reputed Senior Lawyer Shri Ramjeth Malani, a few years back, when he was questioned why he was arguing on behalf of the accused in Delhi Parliament Attack case) . That principle of jurisprudence seems to be somewhat jaded and outdated. It may be valid in British Environment during the times of Merchant Law and Common Law of Marine Trade and Colonialisation, but may not be applicable for a poor country like India. Lawyers practising in Higher Courts, charge huge amounts as fee from already convicted super-rich persons for arguing their appeals in Higher Courts, while a poor person cannot even get an interview from them, to file an appeal or a writ. This is the general situation prevailing in India.

In case of appeals, where trial courts have already convicted a person, Senior Lawyers taking up appeals in Higher Courts may have to take into consideration not only the fee which is being offered by the super-rich person or a celebrity, but also the the total genuineness of case.

SENIOR LAWYERS NEED NOT BE DETECTIVES, BUT CITIZENS EXPECT DUE DILIGENCE FROM THEM



It is not my object to say that Senior Lawyers taking up appeals on behalf of convicted super-rich persons, should give blind credence to the verdicts given by lower courts, or that they should act like detectives, investigate the case again, and pre-decide before taking up the appeal, on behalf of the convicted rich celebrities. I wish to highlight that it will not be reasonable for ENLIGHTENED BRILLIANT SENIOR LAWYERS, TO ACCEPT CASES AS A MATTER OF ROUTINE, because large fees are forthcoming from celebrities.

Though the British Jurisprudence may say that lawyers are only assistants of Court in exploration of truth(s) by courts, at least as far as Indian Socio-Economic Administrative and Judicial Environment is concerned, we have to keep in mind that Indian Courts do not have resources and wherewithal to reach truth, only on the basis of what goes in Court Rooms. It will be necessary for lawyers to make reasonable grass-root ground level investigations to make sure that they take up cases only on behalf of really innocent persons, notwithstanding the common judicial maxim that an Accused is to be deemed innocent till convicted by court.

RICH CLIENT-RICH LAWYERS, POOR CLIENT-POOR LAWYERS MATRIX / CONUNDRUM



Notwithstanding whatever the British Jurisprudence says, if lawyers are assistants of court for exploration of FACTS and TRUTH(s), and NOT SERVANTS OF CLIENTS though they pay fees, then Courts should select lawyers for representing clients, instead of allowing rich clients go to rich-in-good-demand lawyers, and acquiescing while poor clients are forced by circumstances to go to poor lawyers. If courts select a rich lawyer for a poor client on the basis of need of the case (assuming that the particular rich lawyer is the best among the available lot, to argue the case, in that particular Center/City, then Court should force rich lawyers to take up the case, even if fee is low.

If a Court appoints a poor lawyer to represent a rich client, then the Court should be able to force the Rich Clients to accept the poor lawyer to argue on their behalf. In British Jurisprudence, Courts may say that they are not concerned with prosperity and poverty of lawyers (and their fee behavior), and the prosperity and poverty of clients. But for the purpose of Indian Jurisprudence, Courts cannot ignore socio-economic realities. If they ignore, Courts will be doing injustice to the cause of Justice.

The fine difference between a grass-root level pre-trial case and an appeal case may have be kept in mind. In case of a grass-root level pre-trial cases, everything will be raw or semi-finished. But in a case, where trial court has already convicted a super-rich person, after some years of hearing, examinations and cross examinations, some brain-storming has already taken place among the legal brains [judges, prosecutors, defence counsel(s)] at trial court level, all that work cannot be totally overlooked and trashed, though errors and some corrections are possible.

VERY INTERESTING THE-HINDU NEWS PAPER REPORT



http://www.thehindu.com/news/national/jayalalithaa-seeks-adjournment-disproportionate-assets-case-appeals/article8167331.ece . This THEHINDU news report is worth reading, along with 15 comments of the Citizens, which are equally worthy of reading.

One Chief Minister is, after EIGHTEEN years of hearing, examination of large number of witnesses, scrutiny of numerous documents, series of arguments, is convicted by the Trial Court in a different State (the Chief Minister requested for her trial in a different State, because she cannot get justice in her own State), for HAVING ASSETS DISPROPORTIONATE TO KNOWN SOURCES OF INCOME, files an appeal. If the appeal is taken by Senior Advocates in a routine manner, and the Higher Court goes as per the Letter of the Law and Rules, rather than the spirit of law, justice may be done or justice might have been done. But does justice appear to get done?

The Senior Lawyer who represented the Chief Minister Ms. Jayalalithaa is said to be Shri Lavu Nageswara Rao, who is now appointed as Supreme Court Judge, directly. I am not doubting the eminence, honesty and sincerity of Shri Nageswara Rao. At the same time, one question which should linger in the mind of any conscientious person is: Can't Senior Lawyers be more diligent before taking up appeals, in respect of already convicted persons, particularly when the matter was examined in depth for 18 years? I do not wish to say that appeals of super rich persons and celebrities should not be taken at all. But, is there nothing to be considered for taking up brief, except fees? The question in Ms. Jayalalithaa's case is: What will happen for the EIGHTEEN YEARS HARD WORK AND TOIL of the Trial Court? If the trial was not going on proper lines, why the case was allowed to get prolonged for 18 years? Karnataka High Court ought to have intervened and put the Trial Court on the right track.

In the Jayalalitha Disproportionate assets case, if we see the reason sought by her, for seeking adjournment, from the above Hindu News Report, and the 15 comments made by Netizens, one is constrained to get an impression, that either Ms. Jayalalithaa (and her advocates), or the Prosecution (at whose instance no body knows), might have dragged on the case for 18 years, seeking repeated adjournments. --As the matter is sub-judice, this matter cannot be discussed in depth.

WHO HAS TO APPEAL TO THE SUPREME COURT AGAINST THE JUDGEMENT OF KARNATAKA HIGH COURT, REVERSING CONVICTION OF MS. JAYALALITHA BY TRIAL COURT?



It appears that Ms. Jayalalithaa has raised an objection that Karnataka Government has no locus stand to appeal against the judgement of the Karnataka High Court, as the matter pertained to Tamil Nadu State and Tamil Nadu Government. Here one crucial question arises: Suppose, Karnataka Government had not appealed. Would the Tamil Nadu Government headed by Jayalalithaa, have appealed to the Supreme Court? Such things of an accused appealing against his-her own acquittal might have happened during the days of Bodhisatva in ancient mythological India. In 21st Century India, it may not happen. If given freedom, Tamil Nadu Government would not have appealed against the conviction of their own Chief Minister.

Another incidental, probably an inconsequential observation: All the three Sitting Supreme Court Judges hailing from Andhra Pradesh, i.e. Hon. Justice Chalameswar, Hon. Justice N.V. Ramana, Hon. Justice Lavu Nageswara Rao, all APPARENTLY belong to the same caste. Of course, caste may not be a criteria for Supreme Court Appointments, but random dispersal of castes may be needed to dispel irrational doubts among people, that one LANDED POLITICALLY POWERFUL caste is monopolising all appointments.

Without malice to any person or institution.

TODAY'S TELUGU SONG. FILM: DHANAMA DAIVAMA. YEAR: 1973. WRITER OF THE LYRIC: DR. C. NARAYANA REDDY. SINGER: Smt. P. Suseela. . MUSIC: T.V. RAJU. On screen: Senior NTR and Jamuna.



This song is connected to a lawyer's dilemma who was caught between MONEY and GOD. The title of the film is DHANAMA DAIVAMA itself denotes a conflict between MONEY and GOD. Of course, films have their own strengths, weaknesses and idosyncracies. They are fictional. Real Lives may differ.
Approx. English translation has been given at the end of each line. Exact English rendering is difficult for me.


Youtube link for those who wish to read this song: click to go to youtube ni madi challaga song.


నీ మది చల్లగా... స్వామీ నిదురపో While your intellect gets cooled ... Oh my Lord, Sleep Well
దేవుని నీడలో... వేదన మరచిపో... In the Shelter of God ... forget the anguish and pain ...
నీ మది చల్లగా... While your intellect gets cooled...

ఏ సిరులెందుకు?... ఏ నిధులెందుకు? What for are fortunes and wealth(s)? ... What for are the treasures?
ఏ సౌఖ్యములెందుకు?... ఆత్మశాంతి లేనిదే.. What for are comforts and luxuries? ... if without peace of mind ...
మనిషి బ్రతుకు నరకమౌను... Life becomes a hell for humans.
మనసు తనది కానిదే... If one's own conscience is not one's own.

నీ మది చల్లగా... స్వామీ నిదురపో While your intellect gets cooled ... Oh my Lord Sleep Well
దేవుని నీడలో... వేదన మరచిపో... In the Shelter of God ... forget the anguish and pain ...
నీ మది చల్లగా... While your intellect gets cooled

చీకటి ముసిరినా?... వేకువ ఆగునా? Even if darkness surrounds ... Will dawn stop ?
ఏ విధి మారినా... దైవం మారునా? Even if some fate changes ... Will God change ?
కలిమిలోన లేమిలోన... Both in prosperity and in poverty ...
పరమాత్ముని తలచుకో... think of God ...

నీ మది చల్లగా... స్వామీ నిదురపో While your intellect gets cooled ... Oh my Lord Sleep Well
దేవుని నీడలో... వేదన మరచిపో... In the Shelter of God ... forget the anguish and pain ...
నీ మది చల్లగా... While your intellect gets cooled

జానకి సహనము... రాముని సుగుణము ... The endurance of Sita ... The virtuosity of Rama ...
ఏ యుగమైనను నిలచె ఆదర్శము ... stands as ideal and standard, in any age ...
వారి దారిలోన నడచువారి జన్మ ధన్యము... Lives of those who tread their path (Rama & Sita) will be fulfilled ...

నీ మది చల్లగా... స్వామీ నిదురపో ... While your intellect gets cooled ... Oh my Lord, Sleep Well
దేవుని నీడలో... వేదన మరచిపో... In the Shelter of God ... forget the anguish and pain ...
నీ మది చల్లగా... While your intellect gets cooled.


Subject to corrections and deletions. A lot more is to be added. To continue. सशेष. ఇంకా ఉంది.

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