Damayanti Datta India Today February 25, 2011
"I am a virgin. But I know everything about everything," Mimi, a 15-year-old Bangalore girl, flips her ponytail, looking around to make sure all eyes are on her. "Everyone I know has touched first base, at least." That's "kissing and necking", she explains to her parents. Notes are regularly exchanged between girls after sexual encounters and discarded i-Pill packs are often found in the bathrooms of the posh convent she studies in. "I'm sure you won't remain a virgin by the time you turn 18," her mother interjects tearfully. "Dude, will you let me finish," Mimi rebukes. "I'm not stupid enough to get into trouble."
Trouble is the one certain truth about her: she is a teenager. A face among the nation's 250 million adolescents- the world's largest. But how well does the nation know her? Not enough, going by the furore over the new Protection of Children From Sexual Offences Bill, 2010 proposed by the Ministry of Women and Child Development ("Does it mean 12-year-olds will start having sex?"). But now a host of surveys is figuring out what it means to be a teenager: they pack in 38 hours of activities into a day- work, chat, browse, talk, SMS, Twitter, Facebook, smoke, drink, splurge, do drugs, have sex, get pregnant-and they can't wait for the future to arrive. Unknown to the nation at large, teenage seems to have taken on a whole new meaning. To Delhibased counsellor Gitanjali Kapoor, it's a cultural moment: "Constant exposure of different types of media is enhancing their inquisitiveness, encouraging them to question and stretch their boundaries."
Not that the teens care. For them, it's LOL (Lots Of Love) all the way. Sex is cool because, gosh, everybody's doing it. Twenty-five out of 100 teenage girls in a big-city school are sexually active, reports the Indian Association of Paediatricians. But to Taki, 19, a Delhi girl (who prefers to be known by her nickname like the rest of her peer group in this story), that's a gross underassessment: "Over 75 per cent of my classmates are not virgins". Some of them are into serious romance, some are "just FWBs" ("Friends With Benefits. Not dating but together... just a convenience thing".) Some boys carry condoms in their pockets because they don't know when "they might get lucky". During high school socials, dark corners of the venue are "reserved" by couples beforehand, so that they can go and "do it" in a crowded room, "just for the thrill of it", Mimi explains.
In the world of adults, statistic is truth. And surveys reveal*, it's a generation that spends 10 hours a day on some sort of a media, two hours on social networking sites, 1.6 hours on the phone, four hours 23 minutes a week on computer games. While 66 per cent carry mobile phones to school, 47 per cent can't live without TV. Over 45 per cent drink alcohol five times a month and 14 per cent use tobacco. Yet 70 per cent teens show signs of depression and 48 per cent think about suicide. A survey released by one of Bollywood's biggest hits last year, Udaan-all about a 17-year-old boy, who gets expelled from boarding school for sneaking out to watch a semi-porn film-shows: one in five teens watches porn before age 13; every second teen necks and kisses, 15 per cent in the school loo; one out of five claims to have had sex; 90 per cent believe in premarital sex, with 45 per cent of girls opting for clandestine abortions.
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Sunday, April 03, 2011
SC judge-lawyer link raises query
Ajmer Singh, INDIA TODAY, New Delhi, April 1, 2011
The code of conduct for judges states that close association with individual members of the bar, particularly those who practice in the same court, shall be eschewed.A piquant situation has arisen in the Supreme Court as a senior advocate regularly appears before judges – who are also office bearers of an organisation of which this former apex court bar association (SCBA) president is the secretary general.A Supreme Court advocate J.N. Taneja, has made a written complaint to Prime Minister Manmohan Singh and Union law minister, alleging that senior advocate Pravin H. Parekh appears before the same judges who are office bearers of the International Institute of Human Rights Society.
Chief Justice of India (CJI) S.H. Kapadia and Justice Altmas Kabir are president and vice-president of the International Institute of Human Rights Society respectively, while Parekh is the permanent secretary general of this body.Taneja, in his letter, has also attached list of various Chief Justices of India and Supreme Court judges – who have been office bearers of the human rights society from the year 2000 onwards.The names mentioned in the list included former CJI A.S. Anand, Justice Santosh Hegde, CJI Kapadia and Justice Kabir. CJI Kapadia has been the president of the institute from 2006 onwards, according to the complaint. Taneja has requested the Prime Minister to have this matter enquired into and stated that it is not proper for judges to allow Parekh to appear before them and vice versa. The institute’s registered office, as mentioned before the Registrar of Societies – 134, Lawyers Chambers, Supreme Court compound – is also the personal chamber of Parekh.
This address is also mentioned on Parekh’s personal letterhead, on which he has issued invitation letters to many, including senior judges. The cases filed by Parekh before the court also mention the same address. The litigants can get influenced by this, alleged the complainant. Justice R.S. Sodhi (retd) said the judges have to isolate themselves and stop being members of such institutes. They should be out of this as judiciary is already under tremendous gaze for allegations, right from nepotism to favouritism. The lawyers make judges chairman and president of such organisations just to get close to them, he said.
Former law minister Shanti Bhushan, however, stated that conflict arises only if some power is exercised or influence wielded; here the purpose of the institute is promotion of activities related to law.
In the meantime, the record of SC proceedings of November 10 and 11, 2010, accessed by Mail Today revealed that Parekh’s name figures in the list of advocates (WP343/10) in the case of Jaya Prada vs Union of India and Amar Singh vs Union of India (WP 317/2010). These cases were heard by Justice Kabir and Justice Cyriac Joseph. Similarly on January 10, 2011, Parekh appeared for respondents in a case, CIT Mumbai vs Pankaj Mehta, before the CJI and other judges. And on February 25, 2011, Parekh again appeared for respondents (Commissioner of Income Tax vs Chandravadan K. Bagdia) before CJI, Justice K.S. Panicker Radhakrishnan and Justice Swatanter Kumar.Parekh, when contacted, said there is no conflict of interest as bar and bench are two wheels of a chariot and have to work together.
“This institute was founded by Justice R.S. Pathak, former CJI and I am the secretary general for the last 20 years. The purpose is judicial reforms and promotion of human rights,” he said. “There is no question of influencing as no one can take a favour from a judge, they are made of sterner stuff. Yes, judges have been members of this institute and I have been appearing before them but no judge has ever objected,” Parekh said. The restatement of values of judicial life or the code of conduct doesn’t bar judges from becoming members of a society or association connected with the law but it asks to shun association with those who practice in the same court.
The code of conduct for judges states that close association with individual members of the bar, particularly those who practice in the same court, shall be eschewed.A piquant situation has arisen in the Supreme Court as a senior advocate regularly appears before judges – who are also office bearers of an organisation of which this former apex court bar association (SCBA) president is the secretary general.A Supreme Court advocate J.N. Taneja, has made a written complaint to Prime Minister Manmohan Singh and Union law minister, alleging that senior advocate Pravin H. Parekh appears before the same judges who are office bearers of the International Institute of Human Rights Society.
Chief Justice of India (CJI) S.H. Kapadia and Justice Altmas Kabir are president and vice-president of the International Institute of Human Rights Society respectively, while Parekh is the permanent secretary general of this body.Taneja, in his letter, has also attached list of various Chief Justices of India and Supreme Court judges – who have been office bearers of the human rights society from the year 2000 onwards.The names mentioned in the list included former CJI A.S. Anand, Justice Santosh Hegde, CJI Kapadia and Justice Kabir. CJI Kapadia has been the president of the institute from 2006 onwards, according to the complaint. Taneja has requested the Prime Minister to have this matter enquired into and stated that it is not proper for judges to allow Parekh to appear before them and vice versa. The institute’s registered office, as mentioned before the Registrar of Societies – 134, Lawyers Chambers, Supreme Court compound – is also the personal chamber of Parekh.
This address is also mentioned on Parekh’s personal letterhead, on which he has issued invitation letters to many, including senior judges. The cases filed by Parekh before the court also mention the same address. The litigants can get influenced by this, alleged the complainant. Justice R.S. Sodhi (retd) said the judges have to isolate themselves and stop being members of such institutes. They should be out of this as judiciary is already under tremendous gaze for allegations, right from nepotism to favouritism. The lawyers make judges chairman and president of such organisations just to get close to them, he said.
Former law minister Shanti Bhushan, however, stated that conflict arises only if some power is exercised or influence wielded; here the purpose of the institute is promotion of activities related to law.
In the meantime, the record of SC proceedings of November 10 and 11, 2010, accessed by Mail Today revealed that Parekh’s name figures in the list of advocates (WP343/10) in the case of Jaya Prada vs Union of India and Amar Singh vs Union of India (WP 317/2010). These cases were heard by Justice Kabir and Justice Cyriac Joseph. Similarly on January 10, 2011, Parekh appeared for respondents in a case, CIT Mumbai vs Pankaj Mehta, before the CJI and other judges. And on February 25, 2011, Parekh again appeared for respondents (Commissioner of Income Tax vs Chandravadan K. Bagdia) before CJI, Justice K.S. Panicker Radhakrishnan and Justice Swatanter Kumar.Parekh, when contacted, said there is no conflict of interest as bar and bench are two wheels of a chariot and have to work together.
“This institute was founded by Justice R.S. Pathak, former CJI and I am the secretary general for the last 20 years. The purpose is judicial reforms and promotion of human rights,” he said. “There is no question of influencing as no one can take a favour from a judge, they are made of sterner stuff. Yes, judges have been members of this institute and I have been appearing before them but no judge has ever objected,” Parekh said. The restatement of values of judicial life or the code of conduct doesn’t bar judges from becoming members of a society or association connected with the law but it asks to shun association with those who practice in the same court.
Supreme Court to proceed against Prashant Bhushan in contempt case
J. Venkatesan
The Hindu, Friday, Jan 14, 2011
Bench had sought an apology for his interview alleging corruption in judiciary
New Delhi: With advocate Prashant Bhushan — facing contempt of court charges for his interview alleging corruption in judiciary — making it clear that he would not tender an apology, the Supreme Court on Thursday decided to proceed with the case on merits.
On December 7, 2010, a Bench of Justices Altamas Kabir, Cyriac Joseph and H.L. Dattu, hearing a contempt petition against Mr. Bhushan and Managing Editor of Tehelka magazine Tarun Tejpal for publishing the interview, had asked the two contemnors to consider offering an apology.
“Judge of integrity”
During the resumed hearing on Thursday, senior counsel Ram Jethmalani, appearing for Mr. Bhushan, submitted a written statement on behalf of Mr. Bhushan which said: “My remarks regarding the present Chief Justice of India, S.H. Kapadia, in my interview published by Tehelka magazine, appears to have given rise to some misunderstanding about the purport of those remarks. It is wrong and most unfortunate that my remarks appear to have been misconstrued by some as imputations of financial corruption. Justice Kapadia is widely perceived to be a Judge of absolute financial integrity and I fully share that perception.”
“On March 25, 2010, my senior counsel Mr. Jethmalani made a statement in my presence and with my concurrence on this issue which has been recorded by the court to the effect that: let it also be recorded that it has been submitted by Mr. Ram Jethmalani, senior counsel appearing for Mr. Prashant Bhushan that his client has the highest regard for Justice S.H. Kapadia and no disrespect was meant to his Lordship in regard to certain statements attributed to him which have been published in the Press.
“I have thus made it clear at every stage of the proceedings that I have the highest respect for the integrity and character of Justice Kapadia, the present CJI. Under the circumstances, I do not think that I owe any further explanation and this explanation should suffice to put an end to any misunderstanding about the purport of my remarks.”
When Justice Kabir, after perusing the statement, asked counsel “why can't Mr. Prashant tender an apology or regret,” Mr. Jethmalani said: “You [court] cannot extract an apology from my client. Contempt proceedings should not proceed under somebody's threat. Only cowards who are not willing to face the proceedings will tender such an apology. I will not advice my client to tender [an] apology.”
When the Bench passed a brief order that it was not accepting the statement and would go ahead with the case on merits, Mr. Jethmalani said, “If the proceedings are allowed to go on, it would open a can of worms.” Justice Kabir replied: “If they are to be opened, open it.”
Mr. Jethmalani said: “Everyone knows what is happening in this court for the last two years but no one dared to speak. If people should suffer for talking truth then millions of people are ready to go behind bars.” Justice Kabir replied, “Let it be.”
Senior counsel Rajeev Dhavan, appearing for Mr. Tejpal, said his client was adopting the stand of Mr. Bhushan and said: “If truth is going to be the defence then some of the former CJIs will come under X-ray.”
Justice Cyriac Joseph observed: “Sometimes even Judges express regret to the counsel if they feel that a particular thing was understood in a particular manner and which was not the intention of the counsel. Similarly, there may be nothing wrong in offering regret by the contemnors if the perception of others is that what they said is contempt.”
When the former Union Law Minister, Shanti Bhushan, who had alleged that there was corruption in the judiciary and wanted his application to be heard, the Bench said it would consider it on the next date of hearing. The Bench, which had already held that the contempt petition was maintainable, would hear the case on merits from April 13.
The Hindu, Friday, Jan 14, 2011
Bench had sought an apology for his interview alleging corruption in judiciary
New Delhi: With advocate Prashant Bhushan — facing contempt of court charges for his interview alleging corruption in judiciary — making it clear that he would not tender an apology, the Supreme Court on Thursday decided to proceed with the case on merits.
On December 7, 2010, a Bench of Justices Altamas Kabir, Cyriac Joseph and H.L. Dattu, hearing a contempt petition against Mr. Bhushan and Managing Editor of Tehelka magazine Tarun Tejpal for publishing the interview, had asked the two contemnors to consider offering an apology.
“Judge of integrity”
During the resumed hearing on Thursday, senior counsel Ram Jethmalani, appearing for Mr. Bhushan, submitted a written statement on behalf of Mr. Bhushan which said: “My remarks regarding the present Chief Justice of India, S.H. Kapadia, in my interview published by Tehelka magazine, appears to have given rise to some misunderstanding about the purport of those remarks. It is wrong and most unfortunate that my remarks appear to have been misconstrued by some as imputations of financial corruption. Justice Kapadia is widely perceived to be a Judge of absolute financial integrity and I fully share that perception.”
“On March 25, 2010, my senior counsel Mr. Jethmalani made a statement in my presence and with my concurrence on this issue which has been recorded by the court to the effect that: let it also be recorded that it has been submitted by Mr. Ram Jethmalani, senior counsel appearing for Mr. Prashant Bhushan that his client has the highest regard for Justice S.H. Kapadia and no disrespect was meant to his Lordship in regard to certain statements attributed to him which have been published in the Press.
“I have thus made it clear at every stage of the proceedings that I have the highest respect for the integrity and character of Justice Kapadia, the present CJI. Under the circumstances, I do not think that I owe any further explanation and this explanation should suffice to put an end to any misunderstanding about the purport of my remarks.”
When Justice Kabir, after perusing the statement, asked counsel “why can't Mr. Prashant tender an apology or regret,” Mr. Jethmalani said: “You [court] cannot extract an apology from my client. Contempt proceedings should not proceed under somebody's threat. Only cowards who are not willing to face the proceedings will tender such an apology. I will not advice my client to tender [an] apology.”
When the Bench passed a brief order that it was not accepting the statement and would go ahead with the case on merits, Mr. Jethmalani said, “If the proceedings are allowed to go on, it would open a can of worms.” Justice Kabir replied: “If they are to be opened, open it.”
Mr. Jethmalani said: “Everyone knows what is happening in this court for the last two years but no one dared to speak. If people should suffer for talking truth then millions of people are ready to go behind bars.” Justice Kabir replied, “Let it be.”
Senior counsel Rajeev Dhavan, appearing for Mr. Tejpal, said his client was adopting the stand of Mr. Bhushan and said: “If truth is going to be the defence then some of the former CJIs will come under X-ray.”
Justice Cyriac Joseph observed: “Sometimes even Judges express regret to the counsel if they feel that a particular thing was understood in a particular manner and which was not the intention of the counsel. Similarly, there may be nothing wrong in offering regret by the contemnors if the perception of others is that what they said is contempt.”
When the former Union Law Minister, Shanti Bhushan, who had alleged that there was corruption in the judiciary and wanted his application to be heard, the Bench said it would consider it on the next date of hearing. The Bench, which had already held that the contempt petition was maintainable, would hear the case on merits from April 13.
Thursday, March 31, 2011
Judicial Standards and Accountability Bill
Ajit Prakash Shah
In a system where half the litigants must necessarily lose their cases and where most complaints against judges are frivolous, the Bill, if implemented, would mark the beginning of the end of the judiciary.
The last two decades have marked the extraordinary rise of India. This has however been tinged with cynicism about our major democratic institutions and a pessimism about their future. The judiciary, which till now has been looked upon as the strongest pillar of Indian democracy, has been beset with unprecedented problems. In recent times, the working of the judges of superior courts (High Courts and the Supreme Court) has come in for intense scrutiny and grave doubts have been cast against the conduct of some judges. The pressing call for greater institutional accountability in the Indian judiciary is now stronger than ever. It is in this light that Parliament’s proposed Judicial Standards and Accountability Bill, 2010 must be seen.
This Bill appears to be a hurried and knee-jerk reaction to recent events, and has the potential to seriously undermine judicial independence. It seeks to devise a new “complaint procedure” under which any person may be able to file a complaint in writing against any judge of a superior court. Upon such a complaint being filed and examined, the Judicial Oversight Committee (proposed to be constituted under the statute), may either dismiss the complaint or make a reference to Parliament for the removal of the judge, issue advisories, warnings, withdraw judicial work or make a request for voluntary retirement.
The issue of Judicial Standards must be seen in the context of Art 124(4) of the Constitution which provides for the process of impeachment of a judge on the grounds of “proved misbehaviour or incapacity.” Art 124(5) empowers Parliament only to make laws to regulate the procedure for presentation of address of impeachment, and for the investigation and proof for the misbehaviour or incapacity of a judge.
Cleverly disguised Bill
The present Bill, cleverly disguised as being permissible under Art 124(5), is an example of the most blatant violation of constitutional safeguards and is a cure that is surely worse than the disease. Article 124(5) does not empower Parliament to create any other forum for recommending impeachment proceedings, or allow complaints to be made by any person, or to make a judge liable for minor penalties. What can be done only by a hundred or more members of the Lok Sabha or fifty or more members of the Rajya Sabha (i.e. initiation of impeachment proceedings) can now theoretically be done by only one person.
It is true that judicial commissions exist in other countries like the U.S. and Canada, but their reach does not extend to the apex court. Also, adopting such structures from other countries without having regard to the unique conditions existing in ours, is untenable and fraught with the danger of destabilising our delicate constitutional balance.
Outlined below are some of the other major defects in the Bill:
Definition of misbehaviour: The Bill seeks to provide a straight jacketed definition of misbehaviour in Clause 2(j), but by laying down a strict definition, the concept loses its elasticity and becomes both under-inclusive and over-inclusive. Over-inclusive, that absent a de minimis exception, even a minor breach of judicial standards, say late filing of assets declaration, could constitute misconduct; and under-inclusive that to the extent that the definition is exhaustive (since it uses the word “means”), it is incapable of catching within its fold any “misbehaviour” that might not be covered by this provision. The Constitution framers had been careful not to define the term misbehaviour, let alone define it exhaustively. Implicit in this understanding was the belief that if the power of removal was vested in high constitutional authorities, they would be in the best position to judge when misbehaviour (or incapacity) had been occasioned.
Statutory provision for judicial standards: The Bill also provides a list of standards of judicial conduct to which all judges are expected to adhere. Sixteen of the 18 enumerated standards are derived from the “Restatement of the Values of Judicial Life” adopted at a Full Court Meeting of the Supreme Court on May 7, 1997. However, the very idea of statutorily providing for judicial standards, irrespective of their content, is violative of judicial independence.
A significant portion of litigation before higher courts today is public in nature and involves the State as one of the parties. Laws are also routinely impugned for their unconstitutionality. Given this, investing the legislature with the power to lay down and amend the standards which all sitting judges must adhere to (or risk the proposed penalties), has the potential to severely threaten impartial and effective adjudication.
Scheme of filing complaints: Under the Bill, “any” person may file a complaint in a prescribed format. Further, the proposed Judicial Oversight Committee will just act as a post-office and refer each complaint to a Scrutiny Panel. This is likely to lead to a multiplicity of complaints and even though the Bill proscribes false and vexatious complaints under Clause 53, this is unlikely to prove much of a deterrent, and since each of them will have to be checked by the Scrutiny Panel, it is also likely to result in a colossal waste of time.
Clause 18 provides that the Oversight Committee shall consist of five persons with two serving and one retired judge, an appointed eminent person and the Attorney-General of India. The presence of the Attorney-General on the Oversight Committee is highly suspect. The Attorney-General has the responsibility of regularly appearing on behalf of the government before the court. On occasions, the possibility of his appearing before a judge against whom a complaint has been filed cannot be ruled out. In such a circumstance, there is clearly a conflict of interest since the Attorney-General will be a member of the Oversight Committee to look into the complaints made against the former.
The Scrutiny Panel is to consist of three members, two of whom will be judges sitting in the same court as the judge against whom the complaint is made. Since these judges would be colleagues sitting in the same court, it is likely that this will, either way, influence their conduct. It would be difficult for judges to dispassionately decide a case against one of their own and sitting with them day in and day out.
Furthermore, the composition and tenure of the Investigation Committee which is to be constituted for the purpose of enquiry into misbehaviour by a judge is undefined. Theoretically, therefore, it is possible for a lay person without any knowledge, experience or standing to be a part of an inquiry panel against a sitting judge of a superior Court.
Minor punishments: The idea of “minor” punishments is unworkable and has the potential to seriously undermine judicial status. If sitting judges are issued advisories and warnings and thereby publicly censured, but still continue on the bench and decide cases, this damages the credibility of the entire system.
Atmosphere of secrecy: Through Clause 43, the Bill completely excludes the operation of the RTI. This establishes an atmosphere of total secrecy more regressive than the present system, and for which, there does not appear to be any rational reason to make a change.
Conclusion
It is totally impermissible for the legislature to strike upon the independence and fearlessness of the judiciary. A judge of a superior court cannot be treated as an employee of the government. The present Bill is incapable of salvage and must be rejected in totality. In a system where half the litigants must necessarily lose their cases, and where most of the complaints against judges are frivolous and made by disgruntled litigants, this bill, if implemented, would mark the beginning of the end of the judiciary.
Demands for change to existing systems in the judiciary must be met rationally, bearing in mind the objectives sought to be achieved. The first site of change must be in the process of judicial appointments. The present system where judges of the superior courts are chosen based on undisclosed criterion in largely unknown circumstances reflects an increasing democratic deficit. The legitimacy of the judiciary ultimately flows from public support, which cannot be maintained without a transparent and open selection process.
The guiding principle should always be this: accountability there is and must be, but let it always be commensurate with judicial independence and impartiality. Ultimately, the appropriate balance between competing principles must be found in something that is best suited to our constitutional setup and is, in that sense, uniquely Indian. The citizens of India deserve no less.
(Justice Ajit Prakash Shah is former Chief Justice of the Madras and Delhi High Courts.)
In a system where half the litigants must necessarily lose their cases and where most complaints against judges are frivolous, the Bill, if implemented, would mark the beginning of the end of the judiciary.
The last two decades have marked the extraordinary rise of India. This has however been tinged with cynicism about our major democratic institutions and a pessimism about their future. The judiciary, which till now has been looked upon as the strongest pillar of Indian democracy, has been beset with unprecedented problems. In recent times, the working of the judges of superior courts (High Courts and the Supreme Court) has come in for intense scrutiny and grave doubts have been cast against the conduct of some judges. The pressing call for greater institutional accountability in the Indian judiciary is now stronger than ever. It is in this light that Parliament’s proposed Judicial Standards and Accountability Bill, 2010 must be seen.
This Bill appears to be a hurried and knee-jerk reaction to recent events, and has the potential to seriously undermine judicial independence. It seeks to devise a new “complaint procedure” under which any person may be able to file a complaint in writing against any judge of a superior court. Upon such a complaint being filed and examined, the Judicial Oversight Committee (proposed to be constituted under the statute), may either dismiss the complaint or make a reference to Parliament for the removal of the judge, issue advisories, warnings, withdraw judicial work or make a request for voluntary retirement.
The issue of Judicial Standards must be seen in the context of Art 124(4) of the Constitution which provides for the process of impeachment of a judge on the grounds of “proved misbehaviour or incapacity.” Art 124(5) empowers Parliament only to make laws to regulate the procedure for presentation of address of impeachment, and for the investigation and proof for the misbehaviour or incapacity of a judge.
Cleverly disguised Bill
The present Bill, cleverly disguised as being permissible under Art 124(5), is an example of the most blatant violation of constitutional safeguards and is a cure that is surely worse than the disease. Article 124(5) does not empower Parliament to create any other forum for recommending impeachment proceedings, or allow complaints to be made by any person, or to make a judge liable for minor penalties. What can be done only by a hundred or more members of the Lok Sabha or fifty or more members of the Rajya Sabha (i.e. initiation of impeachment proceedings) can now theoretically be done by only one person.
It is true that judicial commissions exist in other countries like the U.S. and Canada, but their reach does not extend to the apex court. Also, adopting such structures from other countries without having regard to the unique conditions existing in ours, is untenable and fraught with the danger of destabilising our delicate constitutional balance.
Outlined below are some of the other major defects in the Bill:
Definition of misbehaviour: The Bill seeks to provide a straight jacketed definition of misbehaviour in Clause 2(j), but by laying down a strict definition, the concept loses its elasticity and becomes both under-inclusive and over-inclusive. Over-inclusive, that absent a de minimis exception, even a minor breach of judicial standards, say late filing of assets declaration, could constitute misconduct; and under-inclusive that to the extent that the definition is exhaustive (since it uses the word “means”), it is incapable of catching within its fold any “misbehaviour” that might not be covered by this provision. The Constitution framers had been careful not to define the term misbehaviour, let alone define it exhaustively. Implicit in this understanding was the belief that if the power of removal was vested in high constitutional authorities, they would be in the best position to judge when misbehaviour (or incapacity) had been occasioned.
Statutory provision for judicial standards: The Bill also provides a list of standards of judicial conduct to which all judges are expected to adhere. Sixteen of the 18 enumerated standards are derived from the “Restatement of the Values of Judicial Life” adopted at a Full Court Meeting of the Supreme Court on May 7, 1997. However, the very idea of statutorily providing for judicial standards, irrespective of their content, is violative of judicial independence.
A significant portion of litigation before higher courts today is public in nature and involves the State as one of the parties. Laws are also routinely impugned for their unconstitutionality. Given this, investing the legislature with the power to lay down and amend the standards which all sitting judges must adhere to (or risk the proposed penalties), has the potential to severely threaten impartial and effective adjudication.
Scheme of filing complaints: Under the Bill, “any” person may file a complaint in a prescribed format. Further, the proposed Judicial Oversight Committee will just act as a post-office and refer each complaint to a Scrutiny Panel. This is likely to lead to a multiplicity of complaints and even though the Bill proscribes false and vexatious complaints under Clause 53, this is unlikely to prove much of a deterrent, and since each of them will have to be checked by the Scrutiny Panel, it is also likely to result in a colossal waste of time.
Clause 18 provides that the Oversight Committee shall consist of five persons with two serving and one retired judge, an appointed eminent person and the Attorney-General of India. The presence of the Attorney-General on the Oversight Committee is highly suspect. The Attorney-General has the responsibility of regularly appearing on behalf of the government before the court. On occasions, the possibility of his appearing before a judge against whom a complaint has been filed cannot be ruled out. In such a circumstance, there is clearly a conflict of interest since the Attorney-General will be a member of the Oversight Committee to look into the complaints made against the former.
The Scrutiny Panel is to consist of three members, two of whom will be judges sitting in the same court as the judge against whom the complaint is made. Since these judges would be colleagues sitting in the same court, it is likely that this will, either way, influence their conduct. It would be difficult for judges to dispassionately decide a case against one of their own and sitting with them day in and day out.
Furthermore, the composition and tenure of the Investigation Committee which is to be constituted for the purpose of enquiry into misbehaviour by a judge is undefined. Theoretically, therefore, it is possible for a lay person without any knowledge, experience or standing to be a part of an inquiry panel against a sitting judge of a superior Court.
Minor punishments: The idea of “minor” punishments is unworkable and has the potential to seriously undermine judicial status. If sitting judges are issued advisories and warnings and thereby publicly censured, but still continue on the bench and decide cases, this damages the credibility of the entire system.
Atmosphere of secrecy: Through Clause 43, the Bill completely excludes the operation of the RTI. This establishes an atmosphere of total secrecy more regressive than the present system, and for which, there does not appear to be any rational reason to make a change.
Conclusion
It is totally impermissible for the legislature to strike upon the independence and fearlessness of the judiciary. A judge of a superior court cannot be treated as an employee of the government. The present Bill is incapable of salvage and must be rejected in totality. In a system where half the litigants must necessarily lose their cases, and where most of the complaints against judges are frivolous and made by disgruntled litigants, this bill, if implemented, would mark the beginning of the end of the judiciary.
Demands for change to existing systems in the judiciary must be met rationally, bearing in mind the objectives sought to be achieved. The first site of change must be in the process of judicial appointments. The present system where judges of the superior courts are chosen based on undisclosed criterion in largely unknown circumstances reflects an increasing democratic deficit. The legitimacy of the judiciary ultimately flows from public support, which cannot be maintained without a transparent and open selection process.
The guiding principle should always be this: accountability there is and must be, but let it always be commensurate with judicial independence and impartiality. Ultimately, the appropriate balance between competing principles must be found in something that is best suited to our constitutional setup and is, in that sense, uniquely Indian. The citizens of India deserve no less.
(Justice Ajit Prakash Shah is former Chief Justice of the Madras and Delhi High Courts.)
The lie of the land
The court presses home its power to intervene when ‘little Indians lose their small property’ to land acquisition by state governments
M J Antony, NNLRJ INDIA,New Delhi March 30, 2011, 0:33 IST
Parliament has not been able to pass an updated land acquisition law for several years, though this is a burning issue and innocent blood has been shed in many states. Meanwhile, the Supreme Court continues to deliver judgments in which disputes arose several decades ago. Two such decisions in recent weeks deal with the governments’ claim of urgency in land takeovers. The governments’ subsequent conduct showed the acquisition was neither pressing nor imperative. The court, therefore, underlined that the landowner’s right cannot be “flattened and steamrolled” on a mere declaration that the acquisition is urgent.
Section 17 of the Land Acquisition Act of 1894 empowers the government to acquire land for urgent reasons without following the procedure of giving land losers a hearing. This provision is prone to great abuse, as illustrated in the two judgments.
Incidentally, this is not the only provision that has been consistently manipulated by governments to benefit powerful interests. The omnibus term “public purpose” is a woolly and hard-to-contradict excuse for land acquisition. The rate of compensation is another sore point in the acquisition law, because of which farmers have to climb the shaky ladder of law up to the Supreme Court to demand a just amount. The litigation often turns out to be the only bequest for their children.
Returning to the urgency clause, the judgment in the appeal case State of West Bengal vs Prafulla Churan reveals the high-handedness of the state government. The land in Kolkata was acquired first in 1944 under the Defence of India Act. While the government still held possession, it invoked the West Bengal Requisition and Control Act in 1959 to continue to hold on to the land. This was challenged by the owner and the Calcutta High Court asked the government to return the land to the owner. But the government invoked the “urgency” clause in the Land Acquisition Act on the grounds that the land was required for the state ceramic development board. The litigation continued with the government losing all the way. Now it has lost in the Supreme Court too.
The court stated that all schemes relating to development of industrial and residential areas must be urgent in the context of the country’s need for increased production and more residential accommodation. Yet, the very nature of such development schemes does not appear to demand emergent action to eliminate summary enquiries that are imperative. The development of an area or a city takes many years so there is no reason that summary enquiry as contemplated under Section 5-A may not be held and objections of landowners may not be considered.
In the second judgment dealing with the “urgency” claim, Dev Sharan vs State of UP, the government wanted to build a new jail in Shahjahanpur because of congestion — 1,869 people are lodged in a 140-year-old, dilapidated building at present. But the noble intention would not justify the deprivation of the property rights of the agriculturists. The government moved slowly and took nearly a year to complete the acquisition process. There was sufficient time to give the landowners a hearing. Unfortunately, the writ petitions of the farmers were dismissed by the Allahabad High Court; it approved of the emergency requirement of the government.
On appeal, the Supreme Court noted the recent negative trend in land acquisition and pointed out how it affected the property rights of the citizens. The law is of colonial, pre-constitutional vintage, said the judges, and it is “drastic and expropriatory in nature as it confers on the state a power which affects person’s property right. Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the state, it has to be accepted that without right to some property, other rights become illusory. This court is considering these questions especially in the context of some recent trends in land acquisition.”
What follows after a discussion on the rampant misuse of the amorphous phrase, “public purpose”, should awaken state governments eager to take over land and give it to industries. The judgment reads: “The courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the state. If public purpose can be satisfied by not rendering common man homeless and by exploring other avenues of acquisition, the courts, before sanctioning an acquisition, must in exercise of their power of judicial review, focus their attention on the concept of social and economic justice.” Even during the current election fever, no political party has seriously taken up this raging issue.
M J Antony, NNLRJ INDIA,New Delhi March 30, 2011, 0:33 IST
Parliament has not been able to pass an updated land acquisition law for several years, though this is a burning issue and innocent blood has been shed in many states. Meanwhile, the Supreme Court continues to deliver judgments in which disputes arose several decades ago. Two such decisions in recent weeks deal with the governments’ claim of urgency in land takeovers. The governments’ subsequent conduct showed the acquisition was neither pressing nor imperative. The court, therefore, underlined that the landowner’s right cannot be “flattened and steamrolled” on a mere declaration that the acquisition is urgent.
Section 17 of the Land Acquisition Act of 1894 empowers the government to acquire land for urgent reasons without following the procedure of giving land losers a hearing. This provision is prone to great abuse, as illustrated in the two judgments.
Incidentally, this is not the only provision that has been consistently manipulated by governments to benefit powerful interests. The omnibus term “public purpose” is a woolly and hard-to-contradict excuse for land acquisition. The rate of compensation is another sore point in the acquisition law, because of which farmers have to climb the shaky ladder of law up to the Supreme Court to demand a just amount. The litigation often turns out to be the only bequest for their children.
Returning to the urgency clause, the judgment in the appeal case State of West Bengal vs Prafulla Churan reveals the high-handedness of the state government. The land in Kolkata was acquired first in 1944 under the Defence of India Act. While the government still held possession, it invoked the West Bengal Requisition and Control Act in 1959 to continue to hold on to the land. This was challenged by the owner and the Calcutta High Court asked the government to return the land to the owner. But the government invoked the “urgency” clause in the Land Acquisition Act on the grounds that the land was required for the state ceramic development board. The litigation continued with the government losing all the way. Now it has lost in the Supreme Court too.
The court stated that all schemes relating to development of industrial and residential areas must be urgent in the context of the country’s need for increased production and more residential accommodation. Yet, the very nature of such development schemes does not appear to demand emergent action to eliminate summary enquiries that are imperative. The development of an area or a city takes many years so there is no reason that summary enquiry as contemplated under Section 5-A may not be held and objections of landowners may not be considered.
In the second judgment dealing with the “urgency” claim, Dev Sharan vs State of UP, the government wanted to build a new jail in Shahjahanpur because of congestion — 1,869 people are lodged in a 140-year-old, dilapidated building at present. But the noble intention would not justify the deprivation of the property rights of the agriculturists. The government moved slowly and took nearly a year to complete the acquisition process. There was sufficient time to give the landowners a hearing. Unfortunately, the writ petitions of the farmers were dismissed by the Allahabad High Court; it approved of the emergency requirement of the government.
On appeal, the Supreme Court noted the recent negative trend in land acquisition and pointed out how it affected the property rights of the citizens. The law is of colonial, pre-constitutional vintage, said the judges, and it is “drastic and expropriatory in nature as it confers on the state a power which affects person’s property right. Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the state, it has to be accepted that without right to some property, other rights become illusory. This court is considering these questions especially in the context of some recent trends in land acquisition.”
What follows after a discussion on the rampant misuse of the amorphous phrase, “public purpose”, should awaken state governments eager to take over land and give it to industries. The judgment reads: “The courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the state. If public purpose can be satisfied by not rendering common man homeless and by exploring other avenues of acquisition, the courts, before sanctioning an acquisition, must in exercise of their power of judicial review, focus their attention on the concept of social and economic justice.” Even during the current election fever, no political party has seriously taken up this raging issue.
Wednesday, March 16, 2011
Snake bites model's breast, dies of silicon poisoning
ANI | Mar 16, 2011, 04.50am IST
LONDON: A snake attacked an Israeli model during a sexy photoshoot by biting into her surgically enhanced breast and later died from silicone poisoning.
Orit Fox, a B-list model and actress initially looked comfortable during the shoot in Tel Aviv, wrapping the massive boa constrictor around her legs, waist and neck while doing her best to look sexy, reports the Daily Mail.
In a figure hugging red and white striped dress, which revealed maximum cleavage, she gamely tried to take their bonding to the next level by licking the snake's face. As she manoeuvered the animal into position for the 'kiss' Fox loosened her grip on its neck, and after being licked the reptile reacted angrily.
It aimed straight for Fox's prized assets and sunk its teeth deep into her left breast. An assistant rushed in to help her pull the snake off and after a few seconds of struggle the creature released its grip. The peroxide-blonde model was rushed to a nearby hospital and given a tetanus shot. However, the snake wasn't so lucky and died from silicone poisoning.
LONDON: A snake attacked an Israeli model during a sexy photoshoot by biting into her surgically enhanced breast and later died from silicone poisoning.
Orit Fox, a B-list model and actress initially looked comfortable during the shoot in Tel Aviv, wrapping the massive boa constrictor around her legs, waist and neck while doing her best to look sexy, reports the Daily Mail.
In a figure hugging red and white striped dress, which revealed maximum cleavage, she gamely tried to take their bonding to the next level by licking the snake's face. As she manoeuvered the animal into position for the 'kiss' Fox loosened her grip on its neck, and after being licked the reptile reacted angrily.
It aimed straight for Fox's prized assets and sunk its teeth deep into her left breast. An assistant rushed in to help her pull the snake off and after a few seconds of struggle the creature released its grip. The peroxide-blonde model was rushed to a nearby hospital and given a tetanus shot. However, the snake wasn't so lucky and died from silicone poisoning.
Tuesday, March 15, 2011
President Pratibha Patil cancels Thomas's appointment as CVC
IANS | Mar 14, 2011, 11.07pm IST
NEW DELHI: President Pratibha Patil on Monday cancelled the appointment of PJ Thomas as chief vigilance commissioner (CVC) following the Supreme Court declaring the appointment void.
"The President has cancelled the warrant of appointment of Thomas," a Rashtrapati Bhavan spokesman said.
Six months after he was appointed to the post, the Supreme Court on March 3 struck down Thomas' appointment as CVC for his alleged involvement in a corruption case in Kerala in the 1990s.
The court said the appointment made by the high-powered committee, consisting of Prime Minister Manmohan Singh, home minister P Chidambaram and leader of opposition in Lok Sabha Sushma Swaraj does not exist in law. Swaraj had dissented with Thomas' selection.
NEW DELHI: President Pratibha Patil on Monday cancelled the appointment of PJ Thomas as chief vigilance commissioner (CVC) following the Supreme Court declaring the appointment void.
"The President has cancelled the warrant of appointment of Thomas," a Rashtrapati Bhavan spokesman said.
Six months after he was appointed to the post, the Supreme Court on March 3 struck down Thomas' appointment as CVC for his alleged involvement in a corruption case in Kerala in the 1990s.
The court said the appointment made by the high-powered committee, consisting of Prime Minister Manmohan Singh, home minister P Chidambaram and leader of opposition in Lok Sabha Sushma Swaraj does not exist in law. Swaraj had dissented with Thomas' selection.
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