If good intentions could lead to good governance, we could already be living in Utopia or Ram Rajya or some such la la land of abundant peace and prosperity for all.
Recent directive by Ministry of Home Affairs to convert all police complaints into FIR is a knee-jerk reaction (yes reaction) to the recent news of an ex-DGP's indictment in a molestation case. However reprehensible that case is, the idea that conversion of all police complaints into FIR will lead to justice in society is a fantastical idea at best.
Firstly, don't the citizens have the right to know that if so far all police complaints were not being converted into FIRs, then what was the rationale behind that? Does it mean we were living in law of the jungle so far? If yes, then was Home ministry sleeping till this one incident came to light? If no, then what is the rationale now? Given the fact that most people are scared of going to police and would resort to that as a last option, what great benefit will accrue to citizens knowing that their complaint will be converted into FIR.
Is there a study conducted on how many people are able to get FIR copy easily, without paying bribe or through influence etc ? What will change regarding that now?
Read the news in deccan herald here:
http://www.deccanherald.com/content/43900/discipline-them.html
Discipline them
“Govt should first ensure discipline of the police.”
The Union Home Ministry’s proposed directive to state governments that police stations be advised to treat all complaints they receive as first information reports (FIRs) is fraught with danger. The step is, without sounding cynical, all bark and no bite. Yes, S P S Rathore, the lecherous former Haryana director-general police, whose creepy behaviour caused Ruchika Girhotra to end her own life, exemplifies the abuse of authority. And yes, it has come to dismay a nation already weary of the canoodling and peccadilloes of a governor. Indian society has become a cesspool of tolerance.
As Indians, our collective memory is woefully short. It was not too far back in the past that one of India’s best known cops, K P S Gill, a former Punjab police chief, was let off lightly by the law after being proved he had slapped a lady IAS officer’s backside and ‘outraged’ the lady’s ‘modesty’. This country treats its VIPs, whether criminals in khaki or khadi, very well. There is no denying that there can be value, and even justice, in ensuring that bad and wayward behaviour, that is protected and even condoned, is exposed. But directing police stations to treat all complaints as FIRs is not the answer. A few years back, the Justice Malimath Committee on reforming the criminal justice system had pointed out that police stations routinely refuse to lodge even credible complaints.
While there are men in power who use their positions to shield themselves from the law, there are also innumerable number of cases in which alleged victims of spousal, sexual, workplace and other kinds of harassment have cynically, wilfully and deviously used specific provisions of the Indian Penal Code to their advantage. There are citizens who will attest to the vicious and malicious use of the IPC’s Section 498A that deals with dowry-related cases of cruelty. Also, fake police complaints are routinely used to settle scores, often by city-bred people. It is society’s under-privileged and dis-empowered whose valid and well-founded complaints are ignored and not taken cognisance of by police stations across the country. The Indian police and legal non-systems reflect a dangerous dysfunction. The Centre need not offer platitudes to state the obvious — that police stations must treat all complaints as FIRs. It must, along with the state governments, ensure that the police is disciplined — if need be by awarding exemplary punishments to individual offenders.
Wednesday, December 30, 2009
Tuesday, December 29, 2009
People of India are bigger than President, CJI, Parliament, MPs, MLAs etc
PREAMBLE OF INDIA
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Purpose of Having a Preamble:
The Preamble to our Constitution serves two purposes: -
A) It indicates the source from which the Constitution derives its authority;
B) It also states the objects, which the Constitution seeks to establish and promote.
JAI HIND……..
Prepared by SIDDHARTH MURARKA advocate high court 09324175771
siddharthmurarka@gmail.com
for this article and more see http://fightyourrights.blogspot.com/
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Purpose of Having a Preamble:
The Preamble to our Constitution serves two purposes: -
A) It indicates the source from which the Constitution derives its authority;
B) It also states the objects, which the Constitution seeks to establish and promote.
The Preamble seeks to establish what Mahatma Gandhi described as The India of my Dreams, "…an India in which the poorest shall feel that it is their country in whose making they have an effective voice; …an India in which all communities shall live in perfect harmony. There can be no room in such an India for the curse of untouchability or the curse of Intoxicating drinks and drugs. Woman will enjoy as the same rights as man."
The Keynote of the Preamble was to emphasize the positive aspect, “the unity of the Nation”, as much as the “dignity of the individual”. “Dignity” was a work of moral and spiritual import: it implied an obligation on the part of the Union to respect the personality of the citizen and to create condition in which every citizen would be a sovereign in himself and will cherish and fulfill his desire of self-fulfillments and self-satisfaction
It must be noted that the Supreme Court may have power to strike down a legislation as unconstitutional, but still it derives its powers from the Constitution. If one reads the source of the Constitution, it starts with a declaration “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India in a Sovereign…..”. Thus, it is not the Court, the CJI, the PM, the President who has declared the Constitution, but it is we, the sovereign citizens, the people of this Nation, who in exercise of their powers, have declared this nation as a Sovereign, Socialist, Secular, Democratic, Republic. All others including the CJI, PM, CM, MP, MLA, PRESIDENT are under this constitution and not over it. It is we, who have ourselves decided to subject our own selves to the Judiciary and law. This does not mean that we have empowered any one to be a Constitutional Authority, and those who claim so, are living in the world of illusions, and must be shown the mirror of truth. Truth is painful and bitter for one or a handful, but gives peace of mind to al,l as we feel save under the umbrella of truth and are sure that our dignity and life will not be snatched.
We have put Justice before liberty and equality. This is because the drafters were well conscious that unless there is Justice, liberty is meaningless and would not survive for truth but will be a weapon of destruction. They were sure that once Justice and liberty is there, equality will blossom automatically, as Justice is the seed, Liberty is the tree and equality is the flower of the tree. Naturally, last but not least fraternity is the sweet and cherished fruit of this tree.
This is to remind you all and myself that we have forgotten who we are. We have forgotten the best gift we got at the time of independence and have started living the life of slaves of our own “PUBLIC SERVANTS”. This is to remind you that you were born free, born independent, born with right of Justice first followed by liberty, equality and Fraternity.
Please rise tomorrow and remind your self of this preamble and remind your mind and soul that you are the person who controls everything, you are a sovereign citizen, and have a right to Justice and no one can stop you. If the person claims to be too powerful, then go back to the preamble and read the message to him and yourself also, “WE THE PEOPLE........”, calling us to unite and fight, and enjoy the services of our “RESPECTED AND HONOURED PUBLIC SERVANTS” and not be subjected to them.
JAI HIND……..
Prepared by SIDDHARTH MURARKA advocate high court 09324175771
siddharthmurarka@gmail.com
for this article and more see http://fightyourrights.blogspot.com/
If you are innocent - Beware of Police!
It is the fact of how government runs in India, that most of government machinery (because humanity seems to be absent), has no disincentive on making mistakes or gross negligence. Doctors can be sued if they leave a scissor inside patient's stomach, but it seems police can just get away with any kind of 'mistake' they commit. Read below:
http://timesofindia.indiatimes.com/city/patna/What-IPC-Cops-set-to-arrest-kids-for-killing-bhabhi/articleshow/5389977.cms
SASARAM: Can Class I and LKG kids torture and assault a woman to death? Or, to be more liberal, can children of this age collude with their grown-up kin to execute a killing in their household? Indian Penal Code (IPC)'s Section 82 says: "Nothing is an offence which is done by a child under seven years of age." But either Kaimur police have not read the rule book or they care a damn about it.
In yet another instance of sham police investigations making ridiculous conclusions in criminal cases, Chaniya Khatun, 6, and her sister Soni Khatun, 5, along with six other family members have been held guilty by police of having killed an 18-year-old woman.
With Kaimur superintendent of police P K Srivastava agreeing to the Bhabhua DSP Sanjay Kumar's supervision note and ordering the arrest of the accused, the eight, including the two girls, are likely to be arrested "any moment now". "I have already procured a warrant of arrest against the eight accused," said R K Singh, station house officer of Sonhan police station.
It was the Sonhan PS which lodged an FIR in the case on September 2 this year after the court of Bhabhua chief judicial magistrate (CJM) forwarded a complaint case to it for investigation. In his complaint, filed in the CJM's court on August 18, one Shah Mohammad of Khair village alleged that his 18-year-old daughter Akhtari Begum, who was married to one Md Tajuddin of Pawandi village in Rohtas district, was killed by her husband and in-laws on July 26 for dowry. As it happens in such cases, all the in-laws were named as accused.
On September 24, Bhabhua DSP Kumar along with the investigating officer visited Pawandi and supervised the case. He also interrogated the minor sisters and arrested the girl's father-in-law. His supervision note concluded that the accusation appeared to be true as those named accused had tortured and assaulted Akhtari to death for dowry. Akhtari was the wife of the brother of Chaniya and Soni, who study in a primary school.
Srivastava just okayed the DSP's findings and ordered the arrest of the accused. In case they elude police, their property will be attached, he further ordered.
Ironically, Srivastava on Monday evening told TOI: "Aisi galtiya hote rahti hai (Such mistakes keep happening)" if the children are named accused and witnesses also corroborate the accusation. When told about IPC and asked about police wisdom, he said: "We will do something about it now."
A senior lawyer and member of the Bihar Bar Council described the police action as illegal. "Nor only does it border on incredulity, but it also reveals an insensitive face of the state police," said Akhauri Mangala Charan Srivastav.
No this is not a one-off case of its kind. Earlier this month, this newspaper reported how an SP found the accusation true against all the members of a family in a case of kidnapping that never took place. So, all of them, including an octogenarian, were jailed for months.
In another case, an alleged murderer fooled police into arresting two innocent persons for the crime he had committed.
Taking cognizance of the two cases of "violation of rights of innocent persons by police" the State Human Rights Commission has sought a reply from director-general of police Anand Shankar.
http://timesofindia.indiatimes.com/city/patna/What-IPC-Cops-set-to-arrest-kids-for-killing-bhabhi/articleshow/5389977.cms
SASARAM: Can Class I and LKG kids torture and assault a woman to death? Or, to be more liberal, can children of this age collude with their grown-up kin to execute a killing in their household? Indian Penal Code (IPC)'s Section 82 says: "Nothing is an offence which is done by a child under seven years of age." But either Kaimur police have not read the rule book or they care a damn about it.
In yet another instance of sham police investigations making ridiculous conclusions in criminal cases, Chaniya Khatun, 6, and her sister Soni Khatun, 5, along with six other family members have been held guilty by police of having killed an 18-year-old woman.
With Kaimur superintendent of police P K Srivastava agreeing to the Bhabhua DSP Sanjay Kumar's supervision note and ordering the arrest of the accused, the eight, including the two girls, are likely to be arrested "any moment now". "I have already procured a warrant of arrest against the eight accused," said R K Singh, station house officer of Sonhan police station.
It was the Sonhan PS which lodged an FIR in the case on September 2 this year after the court of Bhabhua chief judicial magistrate (CJM) forwarded a complaint case to it for investigation. In his complaint, filed in the CJM's court on August 18, one Shah Mohammad of Khair village alleged that his 18-year-old daughter Akhtari Begum, who was married to one Md Tajuddin of Pawandi village in Rohtas district, was killed by her husband and in-laws on July 26 for dowry. As it happens in such cases, all the in-laws were named as accused.
On September 24, Bhabhua DSP Kumar along with the investigating officer visited Pawandi and supervised the case. He also interrogated the minor sisters and arrested the girl's father-in-law. His supervision note concluded that the accusation appeared to be true as those named accused had tortured and assaulted Akhtari to death for dowry. Akhtari was the wife of the brother of Chaniya and Soni, who study in a primary school.
Srivastava just okayed the DSP's findings and ordered the arrest of the accused. In case they elude police, their property will be attached, he further ordered.
Ironically, Srivastava on Monday evening told TOI: "Aisi galtiya hote rahti hai (Such mistakes keep happening)" if the children are named accused and witnesses also corroborate the accusation. When told about IPC and asked about police wisdom, he said: "We will do something about it now."
A senior lawyer and member of the Bihar Bar Council described the police action as illegal. "Nor only does it border on incredulity, but it also reveals an insensitive face of the state police," said Akhauri Mangala Charan Srivastav.
No this is not a one-off case of its kind. Earlier this month, this newspaper reported how an SP found the accusation true against all the members of a family in a case of kidnapping that never took place. So, all of them, including an octogenarian, were jailed for months.
In another case, an alleged murderer fooled police into arresting two innocent persons for the crime he had committed.
Taking cognizance of the two cases of "violation of rights of innocent persons by police" the State Human Rights Commission has sought a reply from director-general of police Anand Shankar.
Saturday, December 26, 2009
Justice D V Shylendra Kumar on judicial accountability through power to the people
Justice Kumar writes this article on Judicial Accountability on his official website, where he talks about judicial accountability, appointment of judges, constitution's protection to judges, role and authority of Chief Justice of India etc:
http://sites.google.com/site/justdvskumar/netizens-1
And do not forget to send your message of support to justdvskumar@gmail.com
Some of the important highlights of the article followed by my comments:
I have contributed an article titled Judicial Accountability, at the request of the organizers of IX Conference of Karnataka State Advocates, sponsored by the Karnataka State Bar Council, Bangalore and cosponsored by the Bar Association, Hubli, which is being inaugurated on 27th December, 2009 at Hubli, on which occasion, a souvenir containing my said article will be released.
While judges of the subordinate judiciary, which is judiciary up to the level of district courts in a state, i.e. on the civil side, civil judge (junior division), civil judge (Senior Division) and district judge and on the criminal side, comprising of judicial magistrates of first class, chief judicial magistrates and sessions judges, are all made accountable in respect of their acts, judicial or non-judicial, as they are amenable to the disciplinary control enforced and supervised by the respective high courts of the states within which the subordinate courts are located, and that can definitely, to a great extent, take care of the need for ensuring judicial accountability of the judges in the subordinate judiciary.
However, the position insofar as judges of the superior courts i.e. the judges of the high courts and the supreme court, are concerned, it is strictly governed by the provisions of the Constitution of India and in so far as the judges of the superior courts are concerned, the only way of disciplining an errant judge of a High Court or the Supreme Court is by way of impeachment by the Parliament as provided in Article 124 of the Constitution of India, particularly, sub-articles (4) and (5) of Article 124, reads as under:
Comment: So this exposes the flaws of the system. Citizens can approach High Court in appeal against order of lower courts, and that may lay to rest any sense of injustice if they have had from the lower courts. However when it comes to incentives and dis-incentives present for judges of superior courts, they are all governed only by constitution and not answerable for misconduct to another authority except by an impeachment procedure which is more difficult to execute than pulling rabbit out of a hat.
...a high court being not a court subordinate to the supreme court, supreme court cannot have any say in the matter of the functioning of the high courts and the only authority of the supreme court vis-a-vis high courts is on the appellate side, as provided under the laws and under the Constitution.
...
The Chief Justice of India, in so far as the relative position for such purpose is concerned, is more like a serpent without fangs, who can only hiss, but not bite, which will be an open secret in no time and the serpent will not be feared by any one, however manacing it may look, however loud it may hiss! Unfortunately, that is the reality. ...
With the constitutional mechanism and the inside mechanism failing to usher in any measure of judicial accountability, the only alternative is by taking the issue to the people who are the masters in our polity.
...
...
Comment: It is clear that Justice Kumar believes situation to be serious enough that the existing mechanisms of control, good sense, moral authority etc within judiciary are not going to work! So the mechanism left is for common citizens to raise their voice and shape the emergence of new standards of judicial accountability.
...
...
The first persons who come to know that a judge is not conducting properly while functioning on the judicial side are the lawyers who are appearing in the case the moment an order is passed by the Judge in the court hall ! Of course, a judgment reserved and rendered later may also send signals as to the manner in which the judgment is produced, whether the judge was guided by the merits of the matter and on the submissions made in the course of hearing and on a proper evaluation of the whole thing, or on other considerations. This will be obvious to the lawyers the moment they go through the judgment.
It is for the lawyers of this state/country to ensure that the judges behave and conduct themselves in a proper manner in the course of discharge of their judicial functions. That alone can ensure a degree of judicial accountability and as a result we can have an independent, responsible and effective judiciary, with the help and assistance of the enlightened, responsive, vigilant members of the Bar and not otherwise.
Comment: It is commendable that Justice Kumar is trying to involve the legal community into reforms on judicial accountability. However a suspicion in public remains, and this is by no means due to the low trust public has of lawyers in general, that if legal community makes its living by functioning in courts; can they retain their sense of independence and raise voice against judicial misconduct?
It is the duty and the responsibility of the members of the Bar to ensure that the judiciary not only remains fiercely independent, upright, effective and useful for the people of the country, but also that the members of the judiciary do not go astray, do not deviate from their duties and responsibilities, do not misuse or abuse their powers and achieve this objective by boldly and openly bringing to the notice of the judge himself/herself, if there are such instances or signs of deviations. This is a very onerous responsibility bestowed on the members of the Bar in our legal system and unless the lawyers fulfill this obligation towards the society, they will be failing in their professional duty !
Our courts are open courts and the functioning of judges is in open courts and to the glare and visibility of members of the public. That is the greatest safety and assurance of an upright quality judiciary...
Comment: Indeed, this seems to me the greatest safeguard against usurpation of control by self-seeking authorative powers in a democracy. This can work provided a critical mass of judiciary is seen to be non-corrupt and of high moral authority. There is a critical point of no return which one crossed can destroy all confidence of public in the systems and institutions of democrary.
Following are excerpts from a book ‘JUDGES’ written by Sir David Pannick, quoted by Justice Kumar in the same article:
Unless and until we treat judges as fallible human beings whose official conduct is subject to the same critical analysis as that of other organs of government, judges will remain members of a priesthood who have great powers over the rest of the community, but who are otherwise isolated from them and misunderstood by them, to their mutual disadvantage.
...
...
It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions … The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts [Cited in Jerome Frank, Courts on Trial (1949) (1973 Ed.), p.40].
...
...
It is unlikely that men and women will ever cease to wound, cheat, and damage each other. There will always be a need for judges to resolve their disputes in an orderly manner. As people grow ever less willing to accept unreservedly the demands of authority, the judiciary, like other public institutions, will be subjected to a growing amount of critical analysis. The way in which ‘Judge & Co.’ [Jeremy Bentham’s term for the judiciary: in The Works of Jeremy Bentham (ed.Bowring, 1843), vol.5, p.396] is run is a matter of public interest and will increasingly become a matter of public debate.”
http://sites.google.com/site/justdvskumar/netizens-1
And do not forget to send your message of support to justdvskumar@gmail.com
Some of the important highlights of the article followed by my comments:
I have contributed an article titled Judicial Accountability, at the request of the organizers of IX Conference of Karnataka State Advocates, sponsored by the Karnataka State Bar Council, Bangalore and cosponsored by the Bar Association, Hubli, which is being inaugurated on 27th December, 2009 at Hubli, on which occasion, a souvenir containing my said article will be released.
I am herewith posting the article in advance for information and the benefit of all viewers of my web-site, particularly for the benefit of the advocate viewers, who can, on reading the article, debate the contents in the conference in a meaningful way.
Comment: It is heartening that the spirit of discussion, openness, debate is being fostered in the judicial and legal community. Without support from within, it will be difficult to act against entrenched interests that hold judiciary in a inactive, inert state.While judges of the subordinate judiciary, which is judiciary up to the level of district courts in a state, i.e. on the civil side, civil judge (junior division), civil judge (Senior Division) and district judge and on the criminal side, comprising of judicial magistrates of first class, chief judicial magistrates and sessions judges, are all made accountable in respect of their acts, judicial or non-judicial, as they are amenable to the disciplinary control enforced and supervised by the respective high courts of the states within which the subordinate courts are located, and that can definitely, to a great extent, take care of the need for ensuring judicial accountability of the judges in the subordinate judiciary.
However, the position insofar as judges of the superior courts i.e. the judges of the high courts and the supreme court, are concerned, it is strictly governed by the provisions of the Constitution of India and in so far as the judges of the superior courts are concerned, the only way of disciplining an errant judge of a High Court or the Supreme Court is by way of impeachment by the Parliament as provided in Article 124 of the Constitution of India, particularly, sub-articles (4) and (5) of Article 124, reads as under:
Comment: So this exposes the flaws of the system. Citizens can approach High Court in appeal against order of lower courts, and that may lay to rest any sense of injustice if they have had from the lower courts. However when it comes to incentives and dis-incentives present for judges of superior courts, they are all governed only by constitution and not answerable for misconduct to another authority except by an impeachment procedure which is more difficult to execute than pulling rabbit out of a hat.
...a high court being not a court subordinate to the supreme court, supreme court cannot have any say in the matter of the functioning of the high courts and the only authority of the supreme court vis-a-vis high courts is on the appellate side, as provided under the laws and under the Constitution.
...
The Chief Justice of India, in so far as the relative position for such purpose is concerned, is more like a serpent without fangs, who can only hiss, but not bite, which will be an open secret in no time and the serpent will not be feared by any one, however manacing it may look, however loud it may hiss! Unfortunately, that is the reality. ...
With the constitutional mechanism and the inside mechanism failing to usher in any measure of judicial accountability, the only alternative is by taking the issue to the people who are the masters in our polity.
It is so, as we are a federal system governed by a written Constitution, which proclaims that our country is a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC, as envisaged in the preamble of our Constitution, reading as under:
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:...
...
Comment: It is clear that Justice Kumar believes situation to be serious enough that the existing mechanisms of control, good sense, moral authority etc within judiciary are not going to work! So the mechanism left is for common citizens to raise their voice and shape the emergence of new standards of judicial accountability.
...
...
The first persons who come to know that a judge is not conducting properly while functioning on the judicial side are the lawyers who are appearing in the case the moment an order is passed by the Judge in the court hall ! Of course, a judgment reserved and rendered later may also send signals as to the manner in which the judgment is produced, whether the judge was guided by the merits of the matter and on the submissions made in the course of hearing and on a proper evaluation of the whole thing, or on other considerations. This will be obvious to the lawyers the moment they go through the judgment.
It is for the lawyers of this state/country to ensure that the judges behave and conduct themselves in a proper manner in the course of discharge of their judicial functions. That alone can ensure a degree of judicial accountability and as a result we can have an independent, responsible and effective judiciary, with the help and assistance of the enlightened, responsive, vigilant members of the Bar and not otherwise.
Comment: It is commendable that Justice Kumar is trying to involve the legal community into reforms on judicial accountability. However a suspicion in public remains, and this is by no means due to the low trust public has of lawyers in general, that if legal community makes its living by functioning in courts; can they retain their sense of independence and raise voice against judicial misconduct?
It is the duty and the responsibility of the members of the Bar to ensure that the judiciary not only remains fiercely independent, upright, effective and useful for the people of the country, but also that the members of the judiciary do not go astray, do not deviate from their duties and responsibilities, do not misuse or abuse their powers and achieve this objective by boldly and openly bringing to the notice of the judge himself/herself, if there are such instances or signs of deviations. This is a very onerous responsibility bestowed on the members of the Bar in our legal system and unless the lawyers fulfill this obligation towards the society, they will be failing in their professional duty !
Our courts are open courts and the functioning of judges is in open courts and to the glare and visibility of members of the public. That is the greatest safety and assurance of an upright quality judiciary...
Comment: Indeed, this seems to me the greatest safeguard against usurpation of control by self-seeking authorative powers in a democracy. This can work provided a critical mass of judiciary is seen to be non-corrupt and of high moral authority. There is a critical point of no return which one crossed can destroy all confidence of public in the systems and institutions of democrary.
Following are excerpts from a book ‘JUDGES’ written by Sir David Pannick, quoted by Justice Kumar in the same article:
Unless and until we treat judges as fallible human beings whose official conduct is subject to the same critical analysis as that of other organs of government, judges will remain members of a priesthood who have great powers over the rest of the community, but who are otherwise isolated from them and misunderstood by them, to their mutual disadvantage.
...
...
It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions … The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts [Cited in Jerome Frank, Courts on Trial (1949) (1973 Ed.), p.40].
...
...
It is unlikely that men and women will ever cease to wound, cheat, and damage each other. There will always be a need for judges to resolve their disputes in an orderly manner. As people grow ever less willing to accept unreservedly the demands of authority, the judiciary, like other public institutions, will be subjected to a growing amount of critical analysis. The way in which ‘Judge & Co.’ [Jeremy Bentham’s term for the judiciary: in The Works of Jeremy Bentham (ed.Bowring, 1843), vol.5, p.396] is run is a matter of public interest and will increasingly become a matter of public debate.”
Monday, December 21, 2009
Mr Prashant Bhushan's reply to contempt petition filed by Supreme Court on him
Mr Prashant Bhushan, a lawyer in Supreme Court and a campaigner for judicial reforms and accountability, was slapped with contempt of court notice by Supreme Court of India for his interview remark to Teheleka magazine that " about half of the last 16 chief-justices of Supreme Court were corrupt"...
This is the affidavit and reply filed by Mr Prashant Bhushan in this contempt petition.
----------------------------------------------------------
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
CRIMINAL CONTEMPT PETITION NO. 10 OF 2009
IN I.A. NO. 1374, 1474, 2134 OF 2007
IN WRIT PETITION (c) NO. 202 OF 1995
IN THE MATTER OF: AMICUS CURIAE …PETITIONER
VERSUS
PRASHANT BHUSHAN & ANOTHER …RESPONDENTS
AFFIDAVIT IN REPLY ON BEHALF OF RESPONDENT NO.1
I, Prashant Bhushan s/o Shri Shanti Bhushan, r/o B-16, Sector 14, Noida, do hereby solemnly state and affirm as under:
1. That I am the first Respondent in this Contempt Petition and am fully acquainted with the facts of this case. I have read and understood the contents of the Contempt Petition filed by Shri Harish Salve in his capacity as Amicus Curiae and my reply to it is as under:
2. From the report in Tehelka, which is relied upon as the basis of the alleged contempt, reliance has been placed on the following sentences:
Firstly, “In my view, out of the last 16 to 17 Chief Justices, half have been corrupt. I can’t prove this, though we had evidence against Punchhi, Anand, and Sabharwal on the basis of which we sought their impeachment”. This could have been better phrased, but, by the word corrupt, I meant, “of doubtful integrity".
The second part of the interview relied upon is my answer to the question as to whether there were other ways in which judicial corruption manifests itself. In response to which I had said: “There are so many---“. Here again, when I said, “There are so many”, it was only with reference to non financial behaviour, or other kinds of conflict of interest or misconduct by judges. It is in this context that my answer to the question should be understood.
3. I have been involved in the Campaign for Judicial Accountability since 1991 when the impeachment proceedings began against Justice V. Ramaswami. Since then, I have been an active member of the Committee on Judicial Accountability and subsequently the Convenor of the Campaign for Judicial Accountability and Reforms which was set up in early 2007. It has been my
understanding at least since 1991, and even prior to that, that there has been considerable corruption in the higher judiciary, the main reason for which has been the lack of credible mechanisms for securing accountability of the higher judiciary. The focus of our Campaign for Judicial Accountability, therefore, has been to generate public opinion for putting in place credible legal institutions and mechanisms for investigating complaints against judges and for holding judges committing misconduct to account. I, along with my colleagues in the Campaign, have always held the view that an independent full time National Judicial Commission should be
created for a transparent method for selecting and appointing judges of the higher judiciary, as well as for investigating complaints against them.
Copies of some of the resolutions passed in the National Conventions on Judicial Accountability organised by our Committee on Judicial Accountability between 1991 and 2003 to this effect, are collectively annexed hereto as Annexure-A which would attest to these publicly stated
perceptions.
4. Our campaign has also repeatedly highlighted the fact that the lack of accountability in the higher judiciary is not only on account of the lack of a credible mechanism for investigating complaints against judges, but also by the virtual prevention of criminal investigation of judges by the Veeraswami judgement. This lack of accountability is further accentuated by the takeover of the power of appointing judges by the judiciary through the SCAORA judgement (Supreme Court Advocate-on-Record Association vs. UOI, (1993) 4 SCC 441). Appointments by the judiciary after this judgement have often been made arbitrarily and with complete lack of transparency. Even after the passage of the Right to Information Act, the Supreme Court has refused to share any information with the public about the manner in which judges have been selected for appointment and transfers. It has gone to the extent of filing Special Leave Petition directly to the Supreme Court against
orders of the Central Information Commission asking the Court to disclose information about the manner of selection and appointment of judges. On top of all this, contempt powers have also often been sought to be used to silence outspoken criticism and public exposure of corruption in the judiciary. The Campaign for Judicial Accountability and Reforms has
taken up all these issues of judicial accountability and has made constructive suggestions for the legal and constitutional changes required to redress these problems.
In order to build public opinion to bring the required constitutional and other legal changes for securing judicial accountability, it is necessary to freely and frankly discuss the existing state of affairs including the existing state of corruption in the judiciary, including the higher judiciary. In fact, the problem of judicial accountability or rather the lack of it, is mainly with the higher judiciary since the lower judiciary is accountable to the High courts. It has been our perception that corruption in the higher judiciary is not and would not be substantially lower than that in the lower judiciary, since in that case, the High courts would take serious steps to curb corruption in the lower judiciary which can be curbed if the High courts have the will to do it. The recent Ghaziabad Provident Fund scam is a stark illustration of some of the reasons why the higher judiciary is benignly tolerant of corruption in the lower judiciary.
5. Due to my personal observations during more than 26 years that I have been practicing in the Supreme Court and in the Delhi High Court, and also because of my close involvement in the Campaign for Judicial Accountability for the last 20 years or so, I have become aware of a good deal of corruption that has prevailed in the courts in which I have practiced as well as in other parts of the country. In order to develop a perception of corruption in the judiciary in general and particularly in the court where one practices, one does not need to have actual documentary evidence of corruption. This perception is formed on the basis of various kinds of circumstantial evidence surrounding judicial and administrative acts of judges which one learns from ones own experience as well as from the experience of other responsible and reliable lawyers and observers, apart from occasional documentary evidence. Documentary evidence about corruption
in the higher judiciary is rarely and only fortuitously obtained, since all investigation into such corruption is prohibited except by the written permission of the Chief Justice of India. However, as one of the active members of the Campaign for Judicial Accountability, I have also had the
occasion to examine, sift through, and deal with a large volume of documentary evidence which discloses what in my view must be called acts of judicial corruption. I would like to clarify, however, that financial corruption is by no means the only kind of corruption prevalent in the
judiciary, and whenever I use the word “corruption” in relation to the judiciary, it is not used in the narrow sense of financial corruption by way of taking direct bribes, but in a more general sense of anything which corrupts or influences by extraneous considerations, the judicial process.
Thus, I regard the act of a judge who decides the cases of a political party or sits in a Commission of Enquiry involving that political party and thereafter, after retirement, gets elected to the Parliament, on the ticket of a political party, as an act of corruption. Similarly, if a judge hears and decides the case of a person, who is so friendly with the judge that his grand daughter’s wedding is held in the judge’s official residence, it ought to be regarded as a case of corruption of the judicial process. So also the judicial acts of a Judge who takes up cases (even part heard cases) of a particular company during vacations to decide in their favour by convoluted reasoning would be clear indicators of corruption of the judicial process.
Thus, when asked as to what made me get involved in this Campaign for Judicial Accountability, I referred to my experience with the Judiciary, and in this spirit I said that it was my perception that roughly half of the last 16/17 chief justices have been corrupt. That is my honest and bonafide perception. It is a belief formed on the basis of direct and circumstantial evidence about judicial acts and other acts, as well as on the basis of information gathered from other responsible lawyers and judges including former Chief Justices of India.
6. Such an expression of honest and bonafide opinion about my perception of corruption at the very top of the judiciary cannot be regarded as Contempt of Court. If it were to be so regarded, it would stifle free speech and would constitute an unreasonable restriction on Article 19 (1) (a) of the Constitution. It is the essence of a democracy that all institutions, including the judiciary, function for the citizens and the people of this country, and they have every right to freely and fairly discuss the state of affairs within any institution, and build public opinion in order to reform
the institutions. This is what I have always believed, and have, therefore, always freely and frankly expressed my honest views about the state of affairs within the judiciary and what needs to be done to remedy them.
7. It may not be out of place to point out that several responsible observers of the court including former chief justices have publicly and privately voiced their views about the extent of corruption prevailing in the higher judiciary. Newspaper reports of the views expressed by some of the judges including former Chief Justices such as Justice Bharucha are annexed hereto as Annexure-B. The fact that there will be difference in the perception among different persons about the extent and level of corruption prevalent in the judiciary would not make any difference to the question of whether expression of such views amounts to Contempt. In fact, Transparency
International, a respected global anti-corruption institution, has also done global as well as national surveys of corruption perception within various institutions in the country including the judiciary, which also showed the judiciary to be perceived by the people as among the most corrupt institutions in the country. Copy of the relevant pages of the report of the Transparency International is annexed hereto as Annexure-C.
8. In this context, it is pertinent to remember the words of Lord Denning in R Vs. Metropolitan Police Commissioner, Ex parte Blackburn (1968) 2 All England Reporter, Page 319, where while dealing with a particularly harsh criticism of the Court of Appeal by Mr. Quintin Hogg, he observed as follows:
“This is the first case, so far as I know, where this court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us, but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For, there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast to make fair comment, even outspoken comment, on matters of public interest.”
It is the application of this doctrine enunciated by Lord Denning that the Contempt of Court jurisdiction of “scandalizing the court or lowering the authority of the court” gradually fell into disuse in UK .
9. It is a mistaken notion to think that the authority or dignity of the courts can be maintained by using the contempt of court jurisdiction to punish and thus stifle public criticism, however harsh, of the judiciary, or even public discussion of the perception of the extent or levels of corruption prevailing in the judiciary, be they at the apex of the judiciary. The dignity, authority and public confidence in the courts or judges cannot be maintained by seeking to silence outspoken criticism or even outspoken expression of perception of corruption in the judiciary. That confidence is maintained by the public perception of the actions of the judiciary and the conduct of its judges, and whether they are perceived to be generally just, fair and in public interest. The public perception of the conduct of the judiciary and its judges is built on the basis of observation over a long period of time and by the shared perception of a large number of people.
Any wild accusation or allegations by irresponsible persons or disgruntled litigants are dismissed by the people with the contempt that they deserve. It is only when persons, who are generally perceived to be responsible, are voicing opinion and criticism which is perceived by the public to be responsible and based on facts and circumstances which are relevant, that such opinion or criticism is taken seriously by the people and is going to affect their perception about the judiciary. This is exactly how it should be in a democracy. Any attempt to use contempt of court jurisdiction to silence such voices of criticism or dissent or such airing of corruption perception by such people, would cause far greater damage to the image, the public perception of, and public confidence in the judiciary.
It would in fact lead people to suspect that things are more seriously amiss in the judiciary than even they had suspected, and it will engender great resentment and even contempt for the judiciary. Such actions would have exactly the opposite effect of what law of Contempt seeks to prevent.
This is also obvious from the backlash that has followed two of the most celebrated cases of contempt recently. The sentencing of Arundhati Roy for contempt, for merely saying in her reply affidavit (in response to another contempt petition, in which the notice was finally discharged) that for the court to have issued contempt notice on an ex-facie absurd petition showed a disquieting inclination on the part of the court to stifle criticism and muzzle dissent, led to such a backlash that it only succeeded in lowering the image of the Supreme Court in the eyes of the people. Similarly, the sentencing of the journalists of Midday for having written well-documented investigative stories about Justice Sabharwal, a former Chief Justice of India who heard and passed orders for sealing of commercial properties, which had the effect of benefiting his own sons who were in partnership with shopping mall and commercial complex developers, also outraged civil
society and the media. The result of the use of the contempt power against these
journalists was again to heighten suspicion about corruption in the judiciary. These actions have contributed in no small measure to a drastic increase of the perception of corruption in the judiciary in the eyes of civil society. This has also been accentuated by the eruption of corruption scandals about the judiciary in quick succession recently. The recent judicial scandals involving Justice Soumitra Sen of Calcutta , the Ghaziabad Provident fund scam, the cash at judges door scam at Chandigarh , and the case of Justice Dinakaran, among others have been given a lot of publicity by the media recently. The resentment caused by the use of or threatened use of the contempt power to stifle outspoken comment (as in the Arundhati Roy case) or to silence the exposure of corruption (as in the Midday case), have contributed in no small measure to the increasingly widespread and outspoken coverage of judicial scandals in the media.
In conclusion on this issue, I wish to state that what I have stated about corruption at the apex of the judiciary is what I honestly believe to be true and have said so with a full sense of responsibility. I have not said anything which is at variance with my bonafide belief. Even Mr. Salve has not accused me of making false statements in this regard.
10. Regarding the Vedanta-Sterlite matter, it may be stated at the outset that this question and my answer was in the context of “other kinds of corruption of the judicial process different from bribe taking or financial corruption”. This is why in my response, I have clarified what exactly I
meant by “corruption” in this case. If some people have understood my response to the question to mean that I have accused Justice Kapadia of financial corruption, that would be wrong and most unfortunate, for that was certainly not what I meant or intended to say. Justice Kapadia is widely perceived to be a judge of financial integrity and I have no reason to doubt that perception. However, I do believe that Justice Kapadia acted improperly by hearing a matter involving very large financial stakes of a company and proceeding to pass orders on it, while he had shares in the company in whose favour he passed those orders. However, I may not have been impelled to say what I did, if I did not feel that quite apart from the impropriety of Justice Kapadia having heard and passed orders in the case of a company in which he held shares, the orders that he passed were quite extraordinary and totally unwarranted.
11. Consider the orders which were passed, and the facts and circumstances in which they were passed. Sterlite Industries had transferred an Alumina Refinery Project to be built at Lanjigarh, Orissa to its subsidiary company M/s Vedanta Alumina Limited (VAL). Environmental clearance for this Refinery had been granted by the Ministry of Environment and Forest . On 12th May 2005, at the instance of Shri Harish Salve, Amicus Curiae in the case, the Court asked the Centrally Empowered Committee (CEC) of the Court, which is the court’s own expert body to examine this clearance and give its report within eight weeks. The Committee gave a detailed report in September 2005.
The CEC in its report, observed that the environmental clearance for the Refinery had been fraudulently obtained by Vedanta without disclosing that the Refinery Project was linked to the mining project. In this Project, the Alumina Refinery required the diversion of 58.93 hectares of forest land for the Refinery and 672.018 hectares of forest land for the mining. After examining the matter in great depth, the CEC concluded that the refinery and the mining projects in this place would destroy the forests, the wildlife, the water sources, and the lives and livelihoods of thousands of a rare and vanishing species of tribals living in this area. The CEC finally recommended:
“32. The CEC is of the considered view that the use of the forest land in an ecologically sensitive area like the Niyamgiri Hills should not be permitted. The casual approach, the lackadaisical manner and the haste with which the entire issue of forests and environmental clearance for the
alumina refinery project has been dealt with smacks of undue favour/leniency and does not inspire confidence with regard to the willingness and resolve of both the State Government and the MoEF to deal with such matters keeping in view the ultimate goal of national and public interest. In the instant case had a proper study been conducted before embarking on a project of this nature and magnitude involving massive investment, the objections to the project from environmental/ecological/ forest angle would have become known in the beginning itself and in all probability the project would have been abandoned at this site.
33. Keeping in view all the facts and circumstances brought out in the preceding paragraphs it is recommended that this Hon'ble Court may consider revoking the environmental clearance dated 22.9.2004 granted by the MoEF for setting up of the Alumina Refinery Plant by M/s and directing them to stop further work on the project. This project may only be reconsidered after an
alternative bauxite mine site is identified."
The CEC also noted that Vedanta started construction on the Alumina Refinery in violation of the guidelines of the MoEF even prior to obtaining forest clearance for the forest land to be diverted for the Refinery. A copy of the CEC’s report is annexed as Annexure D.
12. When the matter was taken up for hearing on 26th October 2007, before the Forest Bench, the Bench, virtually without discussing the CEC report, and without even allowing Mr. Sanjay Parikh, who was appearing for the tribals in a connected Writ Petition challenging the environmental clearance to the Project, to make submissions on the various objections to the
project, straightaway proceeded to discuss the terms on which the mining should be allowed to be carried on!
Eventually, after hearing the Counsel for Vedanta, the Orissa Mining Corporation (which was to be a partner of Vedanta in the mining), the State of Orissa (which had granted the mining lease and permission to set up the Refinery Project to Vedanta) and the Counsel for the Ministry of Environment and Forest (which had granted environmental clearance for the Alumina Refinery) and briefly the Junior Amicus, Shri Uday Lalit, the court reserved the judgment. It proceeded to pronounce its order on 23th November 2007, which is authored by Justice Kapadia. In this judgment, it is stated that since Vedanta Resources, UK , the holding company of Vedanta Alumina Ltd., had been blacklisted by Norway for non-compliance of labour laws and human rights, it would not be proper to give this Project to Vedanta Alumina Ltd. However, the judgment proceeds to grant liberty to Sterlite Industries Limited, which is noted in the judgment to be the holding company of VAL, to
make an application for this Project! It is astounding as to how the court could even consider granting liberty to apply for this Project to a related company owned and controlled by the same holding company i.e. Vedanta Resources Ltd. UK, which is blacklisted and thus not considered fit to receive any concession by the court. If one subsidiary (VAL) was
disqualified on this basis, surely the other subsidiary, Sterlite would also be disqualified on the same logic. Moreover, the court almost totally glosses over the very detailed report of the CEC about the seriously adverse environmental and social impacts of the Project and after merely noting the CEC’s conclusions, goes on to talk about the poverty of the local people living in Lanjigarh including the tribal people. In the words of the court, “CEC has objected to the grant of clearance as sought by M/s VAL on the ground inter alia that the refinery is totally dependent on the mining of bauxite from Niyamgiri Hills, Lanjigarh, which is the only vital wildlife habitat, part of which constitutes elephant corridor and also on the ground that the said project, including the mining area, would obstruct the proposed wildlife sanctuary and the residence of tribes like Dongria Kandha.
According to CEC, Niyamgiri Hills would be vitally affected if mining is allowed in the above area as Niyamgiri Hills is an important water source for two rivers. According to CEC, the project would also destroy flora and fauna of the entire region and it would result in soil erosion. According to
CEC, use of forestland in an ecologically sensitive area like Niyamgiri Hills should not be permitted.”
“On the other side, we have a picture of abject poverty in which the local people are living in Lanjigarh Tehsil including the tribal people. There is no proper housing. There are ho hospitals. There are no schools and people are living in extremely poor conditions which is not in dispute.
“Indian economy for last couple of years has been growing at the rate of 8 to 9% of GDP. It is a remarkable achievement. However, accelerated growth rate of GDP does not provide inclusive growth. Keeping in mind the two extremes, this court thought of balancing development vis-Ã -vis protection of wildlife ecology and environment in view of the principle of Sustainable Development.”
Thus, without discussing and overruling the serious objections of the court’s own expert body of the Project on the forests, the environment, on water, on the lives of tribals and the wild life, in fact, rather cruelly using the poverty of the tribals as an argument to further impoverish them, the court just brushed them aside with the now clichéd rhetoric of providing “inclusive growth.” This when the local tribals who ought to be credited with the intelligence to be the best judges of their own welfare, had been and continue to be totally opposed to the refinery as well as the mining and had filed a detailed Writ Petition against it. The court refused to even consider the writ petition. Worse still, though the issue before the court was only regarding the clearance for diversion of the 58.943 Hectares of forest land for the Alumina Refinery, the court in the next order of 8th August 2008 proceeded to grant clearance for the diversion of 606.749
hectares of forest land for the bauxite mining of the Niyamgiri Hills! This is even before the government had granted environmental clearance or forest clearance for the diversion of the forest in the matter of the bauxite mines. Copies of the courts orders dated 23/11/07 and 8/8/08 are collectively annexed as Annexure E.
13. It was under these circumstances, coupled with the fact that Justice Kapadia had shares in Sterlite, that I made my comments. It may be noted that there were many observers present in the court in the hearing on 26th October 2007 and many e-mails were contemporaneously sent detailing the proceedings. A copy of the detailed note sent the very next day by Mr. Felix Padel, a highly respected social anthropologist working in Orissa for the last several decades and another detailed contemporaneous report by another responsible observer present in court that day about the hearing that they witnessed on 26th October 2007 are collectively annexed hereto as
Annexure-F. These are only two of the several detailed reports of the hearing that I had seen and heard when I made my comments on this case.
14. Regarding the issue of Code of Conduct of Judges and the fact that Justice Kapadia had disclosed his shareholding in Sterlite, and since nobody objected, his continuing to hear the case was in accordance with the Code of Conduct and, therefore, not objectionable, I beg to differ. Firstly, Justice Kapadia’s disclosure about his shareholding in Sterlite came only on 26th
October 2007, though he had been hearing this case at least from 2005 onwards. Secondly, the disclosure of his shareholding was casually made in the context of Sterlite being a listed company as opposed to Vedanta which is a non-listed company. According to several observers who were present at the hearing, no one expressly was asked and no one expressly said that they had no objections to his continuing to hear the matter. In fact, at the stage at which Justice Kapadia had disclosed his shareholding in Sterlite, the effective party before the court was Vendanta. Sterlite came back into the matter only after the order of 23rd November 2007 where the order itself
permitted Sterlite to make an application.
15. Moreover, the only counsel who could have objected and who had an adverse interest to Vedanta in the matter was Mr. Sanjay Parekh who was appearing in a connected Writ Petition on behalf of the tribals. However, he was not permitted to even argue his case, and was told in no uncertain terms that he would not be heard, since the Amicus was good enough to represent the tribals. All the other counsel present i.e. of Vedanta, Orissa Mining Corporation (which was in partnership with Vedanta for the mining), State of Orissa (which had granted the lease) and the Ministry of Environment and Forest (which had granted environmental clearance for the Project) had a common interest. Moreover, the senior Amicus in this case, Mr. Harish Salve, already had a retainer from Vedanta and it was left to Mr. Uday Lalit, the junior Amicus to object or not to object to Justice Kapadia’s continuing to hear the case. The fact that Mr Uday Lalit did not object in no way
excuses Justice Kapadia’s non recusal in the matter.
16. It is well settled in India as well as internationally that any Judge who has the slightest pecuniary interest in a case must automatically recuse himself from hearing the case. Shareholding in a company, particularly in a case where the order would have enormous impact on the financial status and thus share values of that company as in the case of Vedanta/Sterlite, is certainly a pecuniary interest.
In Manak Chand Vs. Dr. Premchand, (AIR 1957 SC 425), the Supreme Court held that, “It is obvious that pecuniary interest, howsoever small, it may be in the subject matter of the proceedings, would wholly disqualify a member from acting as a judge”. While saying this, the Supreme Court has followed a long line of English decisions starting with Dimes Vs. Grand Junction Canal, (1852 3 HLC 759) where the judgement of the Lord Chancellor who decided the case of a company while he had shares in the company, was set aside by the House of Lords, observing, “This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such influence.” It has thereafter been consistently held in a long line of English cases that “the least pecuniary interest in the subject matter of the litigation will disqualify any person from acting as a
judge” (R Vs. Farrant, 1987 QB 58), (R Vs. Rand, 1866 LR 1, QB 230), (R Vs. Myer 1875 1
QBD 173).
H.M. Seervai has also authoritatively pronounced on this principle in his Constitutional Law of India, where he says:
“Least pecuniary interest in the subject of the litigation will disqualify any person from acting as a judge: the pecuniary interest may be so small that no one will think it likely to produce bias in a judge, e.g. if a judge held shares worth five pounds in a company with a capital of five million; where pecuniary interest exists, the law does not allow any further inquiry as to whether or not the mind was actually biased by the pecuniary interest; the rule applies to judge of the highest tribunal as it does to tribunals and bodies of persons obliged to act judicially or quasi-judicially”.
The basis for this principle is a higher principle which has been clearly stated by Justice Venkatachalaiah in Ranjit Thakur v. UOI and Ors. AIR 1987 SC2386
“The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely. A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non-judice".
“As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party.
The proper approach for the judge is not to look at his own mind and ask himself, however, honestly, "Am I biased?" but to look at the mind of the party before him.”
The principle of automatic recusal if a judge holds shares in the company is the norm in the US as well. Quite recently, 4 judges of the US Supreme Court recused themselves (due to their shareholding) from a case filed by 50 companies that did business in apartheid era South Africa leading to the automatic affirmation of the lower court’s judgement. A copy of the New York Times report to that effect is annexed as Annexure G.
17. In these circumstances, in my opinion, the Code of Conduct which was internally adopted by the courts, does not provide an adequate justification to Justice Kapadia to continue to hear the case. The consent of lawyers is not a safe basis for deciding whether one should recuse oneself from a case.
Most lawyers who appear before a judge every day would be reluctant to ask a judge to recuse himself from a case, even if they feel that there is a serious conflict of interest. This is because asking a judge to recuse himself seems like an expression of no confidence in the ability of the judge to rise above his personal interest. That is why, after this controversy arose, most judges have come to accept that the Code of Conduct does not provide the correct guide for recusal in such matters. Judges should automatically recuse themselves from hearing the cases of those companies in which they hold shares. Recognizing this fact, after this controversy, many judges including Justice Kapadia have recused from hearing cases where they had shares, despite the lawyers saying that they had no objection. Newspaper reports to this effect are annexed as Annexure H.
18. In these circumstances, my comment on Justice Kapadia’s role in the Vedanta-Sterlite matter is a legitimate opinion which I am entitled to express.
19. There is however another important aspect of this contempt petition and the manner in which it has been initiated. This Contempt Petition has been filed by a person who has repeatedly misused his position as Amicus Curiae and has taken briefs/retainers to appear for various private parties in matters in which he has been appearing as Amicus Curiae as well. In the case
of Vedanta/Sterlite which is the subject matter of this complaint against me, Shri Salve first appeared as Amicus in this matter, and then took a retainer from Vedanta/Sterlite, after which he asked Shri Udai Lalit to appear as Amicus in the case. For a person who is Amicus and who has not only appeared as Amicus in a matter involving a particular party, to subsequently accept a brief or retainer on behalf of that party, in my view amounts to professional misconduct. Once he has been appointed Amicus in a matter by the Court, he has no business to accept a brief or retainer on behalf of a private party in the same matter. In fact, in my view, in either case, whether he took retainer on behalf of a private party after appearing as Amicus in the same matter or appeared as amicus though he was holding retainer of a private party in the same matter amounts to serious professional misconduct. Even in this application, he has misled the court
by consciously concealing his retainership and connection with Vedanta/Sterlite, once again misusing his position as Amicus. For this reason alone, this application filed by him should not be entertained. In fact the Court should discharge him as Amicus in the matter. Copies of the orders showing Shri Salve was appearing as Amicus and the newspaper report showing his retainership with Vedanta-Sterlite are collectively annexed hereto as Annexure-I
20. This is however not the only instance where Shri Salve has misused his position and accepted a brief of a private party in cases where he is also acting as Amicus. He was Amicus in the forest matter when the issue of the Delhi Ridge and constructions of hotels/shopping malls on the Ridge came up before the Forest Bench. He still chose to take up a brief of M/s Unison Hotels which involved construction on 92 hectares of forest land on the Ridge. Subsequently, in another Writ Petition of Mr. Santosh Bhartiya challenging the construction by Unison Hotels (now called the Grand Hyatt Hotel) on the Delhi Ridge, Shri Salve appeared again in the matter, this time for the DDA. Copies of orders in the aforementioned cases related to Vasant Kunj Ridge area and the officer report dated 06.12.06 in Ridge Bachao Case are collectively annexed hereto as Annexure-J.
21. In the case of the construction of statues in the Noida Park , Shri Salve appeared as Amicus, though he had already been appearing on behalf of the UP Government in the same or connected matters involving construction of statues at the Noida Park and at other places. (Writ Petition No. 266 of 2009, Ravi Kant & Another Vs. State of U.P. ). Copies of the orders in the two cases showing Shri Salve appearing as Amicus in the Noida Park matter and on behalf of the State of UP in Ravi Kant’s case involving the same park as well as the relevant pages of the petition of Ravi Kant’s case, are collectively annexed hereto as Annexure-K.
22. However, these are not isolated instances of professional misconduct on the part of Shri Salve, who has chosen to style himself as Amicus Curiae in this Contempt Petition. In a large number of cases, Shri Salve has accepted briefs/retainers from one party and thereafter gone on to appear on behalf of the other party by just returning the retainer despite the protest of the
opposite party. Some instances of these cases are the case of K.K. Birla Vs. Lodha and the case of Lilavati Hospital (Charu Kishore Mehta vs. Lilavati Kirtilal Mehta M. Trust & ors., SLP (C) No.4911/2007). Copies of the correspondence between Shri Birla and Shri Salve published in Shri Birla’s autobiography to this effect are collectively annexed hereto as Annexure-L.
Copy of the order of 26/3/07 and a copy of a newspaper report regarding Shri Fali Nariman’s public expression of outrage at Shri Salve’s totally unprofessional behaviour in the Lilavati Hospital matter where after being briefed by one party, he chose to appear for the opposite party is annexed hereto as Annexure-M.
23. I have been constrained to point out these instances of professional misconduct of Shri Salve in this context because he has repeatedly misused his position as Amicus and involved himself in conflict of interest situations which has influenced the course of justice.
Deponent
Verification:
I the deponent above named do hereby verify that the contents of the above affidavit are true and correct to my knowledge and nothing material has been concealed therefrom.
Verified at New Delhi on this the 7th day of December 2009.
Deponent
This is the affidavit and reply filed by Mr Prashant Bhushan in this contempt petition.
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IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
CRIMINAL CONTEMPT PETITION NO. 10 OF 2009
IN I.A. NO. 1374, 1474, 2134 OF 2007
IN WRIT PETITION (c) NO. 202 OF 1995
IN THE MATTER OF: AMICUS CURIAE …PETITIONER
PRASHANT BHUSHAN & ANOTHER …RESPONDENTS
AFFIDAVIT IN REPLY ON BEHALF OF RESPONDENT NO.1
I, Prashant Bhushan s/o Shri Shanti Bhushan, r/o B-16, Sector 14, Noida, do hereby solemnly state and affirm as under:
1. That I am the first Respondent in this Contempt Petition and am fully acquainted with the facts of this case. I have read and understood the contents of the Contempt Petition filed by Shri Harish Salve in his capacity as Amicus Curiae and my reply to it is as under:
2. From the report in Tehelka, which is relied upon as the basis of the alleged contempt, reliance has been placed on the following sentences:
Firstly, “In my view, out of the last 16 to 17 Chief Justices, half have been corrupt. I can’t prove this, though we had evidence against Punchhi, Anand, and Sabharwal on the basis of which we sought their impeachment”. This could have been better phrased, but, by the word corrupt, I meant, “of doubtful integrity".
The second part of the interview relied upon is my answer to the question as to whether there were other ways in which judicial corruption manifests itself. In response to which I had said: “There are so many---“. Here again, when I said, “There are so many”, it was only with reference to non financial behaviour, or other kinds of conflict of interest or misconduct by judges. It is in this context that my answer to the question should be understood.
3. I have been involved in the Campaign for Judicial Accountability since 1991 when the impeachment proceedings began against Justice V. Ramaswami. Since then, I have been an active member of the Committee on Judicial Accountability and subsequently the Convenor of the Campaign for Judicial Accountability and Reforms which was set up in early 2007. It has been my
understanding at least since 1991, and even prior to that, that there has been considerable corruption in the higher judiciary, the main reason for which has been the lack of credible mechanisms for securing accountability of the higher judiciary. The focus of our Campaign for Judicial Accountability, therefore, has been to generate public opinion for putting in place credible legal institutions and mechanisms for investigating complaints against judges and for holding judges committing misconduct to account. I, along with my colleagues in the Campaign, have always held the view that an independent full time National Judicial Commission should be
created for a transparent method for selecting and appointing judges of the higher judiciary, as well as for investigating complaints against them.
Copies of some of the resolutions passed in the National Conventions on Judicial Accountability organised by our Committee on Judicial Accountability between 1991 and 2003 to this effect, are collectively annexed hereto as Annexure-A which would attest to these publicly stated
perceptions.
4. Our campaign has also repeatedly highlighted the fact that the lack of accountability in the higher judiciary is not only on account of the lack of a credible mechanism for investigating complaints against judges, but also by the virtual prevention of criminal investigation of judges by the Veeraswami judgement. This lack of accountability is further accentuated by the takeover of the power of appointing judges by the judiciary through the SCAORA judgement (Supreme Court Advocate-on-Record Association vs. UOI, (1993) 4 SCC 441). Appointments by the judiciary after this judgement have often been made arbitrarily and with complete lack of transparency. Even after the passage of the Right to Information Act, the Supreme Court has refused to share any information with the public about the manner in which judges have been selected for appointment and transfers. It has gone to the extent of filing Special Leave Petition directly to the Supreme Court against
orders of the Central Information Commission asking the Court to disclose information about the manner of selection and appointment of judges. On top of all this, contempt powers have also often been sought to be used to silence outspoken criticism and public exposure of corruption in the judiciary. The Campaign for Judicial Accountability and Reforms has
taken up all these issues of judicial accountability and has made constructive suggestions for the legal and constitutional changes required to redress these problems.
In order to build public opinion to bring the required constitutional and other legal changes for securing judicial accountability, it is necessary to freely and frankly discuss the existing state of affairs including the existing state of corruption in the judiciary, including the higher judiciary. In fact, the problem of judicial accountability or rather the lack of it, is mainly with the higher judiciary since the lower judiciary is accountable to the High courts. It has been our perception that corruption in the higher judiciary is not and would not be substantially lower than that in the lower judiciary, since in that case, the High courts would take serious steps to curb corruption in the lower judiciary which can be curbed if the High courts have the will to do it. The recent Ghaziabad Provident Fund scam is a stark illustration of some of the reasons why the higher judiciary is benignly tolerant of corruption in the lower judiciary.
5. Due to my personal observations during more than 26 years that I have been practicing in the Supreme Court and in the Delhi High Court, and also because of my close involvement in the Campaign for Judicial Accountability for the last 20 years or so, I have become aware of a good deal of corruption that has prevailed in the courts in which I have practiced as well as in other parts of the country. In order to develop a perception of corruption in the judiciary in general and particularly in the court where one practices, one does not need to have actual documentary evidence of corruption. This perception is formed on the basis of various kinds of circumstantial evidence surrounding judicial and administrative acts of judges which one learns from ones own experience as well as from the experience of other responsible and reliable lawyers and observers, apart from occasional documentary evidence. Documentary evidence about corruption
in the higher judiciary is rarely and only fortuitously obtained, since all investigation into such corruption is prohibited except by the written permission of the Chief Justice of India. However, as one of the active members of the Campaign for Judicial Accountability, I have also had the
occasion to examine, sift through, and deal with a large volume of documentary evidence which discloses what in my view must be called acts of judicial corruption. I would like to clarify, however, that financial corruption is by no means the only kind of corruption prevalent in the
judiciary, and whenever I use the word “corruption” in relation to the judiciary, it is not used in the narrow sense of financial corruption by way of taking direct bribes, but in a more general sense of anything which corrupts or influences by extraneous considerations, the judicial process.
Thus, I regard the act of a judge who decides the cases of a political party or sits in a Commission of Enquiry involving that political party and thereafter, after retirement, gets elected to the Parliament, on the ticket of a political party, as an act of corruption. Similarly, if a judge hears and decides the case of a person, who is so friendly with the judge that his grand daughter’s wedding is held in the judge’s official residence, it ought to be regarded as a case of corruption of the judicial process. So also the judicial acts of a Judge who takes up cases (even part heard cases) of a particular company during vacations to decide in their favour by convoluted reasoning would be clear indicators of corruption of the judicial process.
Thus, when asked as to what made me get involved in this Campaign for Judicial Accountability, I referred to my experience with the Judiciary, and in this spirit I said that it was my perception that roughly half of the last 16/17 chief justices have been corrupt. That is my honest and bonafide perception. It is a belief formed on the basis of direct and circumstantial evidence about judicial acts and other acts, as well as on the basis of information gathered from other responsible lawyers and judges including former Chief Justices of India.
6. Such an expression of honest and bonafide opinion about my perception of corruption at the very top of the judiciary cannot be regarded as Contempt of Court. If it were to be so regarded, it would stifle free speech and would constitute an unreasonable restriction on Article 19 (1) (a) of the Constitution. It is the essence of a democracy that all institutions, including the judiciary, function for the citizens and the people of this country, and they have every right to freely and fairly discuss the state of affairs within any institution, and build public opinion in order to reform
the institutions. This is what I have always believed, and have, therefore, always freely and frankly expressed my honest views about the state of affairs within the judiciary and what needs to be done to remedy them.
7. It may not be out of place to point out that several responsible observers of the court including former chief justices have publicly and privately voiced their views about the extent of corruption prevailing in the higher judiciary. Newspaper reports of the views expressed by some of the judges including former Chief Justices such as Justice Bharucha are annexed hereto as Annexure-B. The fact that there will be difference in the perception among different persons about the extent and level of corruption prevalent in the judiciary would not make any difference to the question of whether expression of such views amounts to Contempt. In fact, Transparency
International, a respected global anti-corruption institution, has also done global as well as national surveys of corruption perception within various institutions in the country including the judiciary, which also showed the judiciary to be perceived by the people as among the most corrupt institutions in the country. Copy of the relevant pages of the report of the Transparency International is annexed hereto as Annexure-C.
8. In this context, it is pertinent to remember the words of Lord Denning in R Vs. Metropolitan Police Commissioner, Ex parte Blackburn (1968) 2 All England Reporter, Page 319, where while dealing with a particularly harsh criticism of the Court of Appeal by Mr. Quintin Hogg, he observed as follows:
“This is the first case, so far as I know, where this court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us, but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For, there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast to make fair comment, even outspoken comment, on matters of public interest.”
It is the application of this doctrine enunciated by Lord Denning that the Contempt of Court jurisdiction of “scandalizing the court or lowering the authority of the court” gradually fell into disuse in UK .
9. It is a mistaken notion to think that the authority or dignity of the courts can be maintained by using the contempt of court jurisdiction to punish and thus stifle public criticism, however harsh, of the judiciary, or even public discussion of the perception of the extent or levels of corruption prevailing in the judiciary, be they at the apex of the judiciary. The dignity, authority and public confidence in the courts or judges cannot be maintained by seeking to silence outspoken criticism or even outspoken expression of perception of corruption in the judiciary. That confidence is maintained by the public perception of the actions of the judiciary and the conduct of its judges, and whether they are perceived to be generally just, fair and in public interest. The public perception of the conduct of the judiciary and its judges is built on the basis of observation over a long period of time and by the shared perception of a large number of people.
Any wild accusation or allegations by irresponsible persons or disgruntled litigants are dismissed by the people with the contempt that they deserve. It is only when persons, who are generally perceived to be responsible, are voicing opinion and criticism which is perceived by the public to be responsible and based on facts and circumstances which are relevant, that such opinion or criticism is taken seriously by the people and is going to affect their perception about the judiciary. This is exactly how it should be in a democracy. Any attempt to use contempt of court jurisdiction to silence such voices of criticism or dissent or such airing of corruption perception by such people, would cause far greater damage to the image, the public perception of, and public confidence in the judiciary.
It would in fact lead people to suspect that things are more seriously amiss in the judiciary than even they had suspected, and it will engender great resentment and even contempt for the judiciary. Such actions would have exactly the opposite effect of what law of Contempt seeks to prevent.
This is also obvious from the backlash that has followed two of the most celebrated cases of contempt recently. The sentencing of Arundhati Roy for contempt, for merely saying in her reply affidavit (in response to another contempt petition, in which the notice was finally discharged) that for the court to have issued contempt notice on an ex-facie absurd petition showed a disquieting inclination on the part of the court to stifle criticism and muzzle dissent, led to such a backlash that it only succeeded in lowering the image of the Supreme Court in the eyes of the people. Similarly, the sentencing of the journalists of Midday for having written well-documented investigative stories about Justice Sabharwal, a former Chief Justice of India who heard and passed orders for sealing of commercial properties, which had the effect of benefiting his own sons who were in partnership with shopping mall and commercial complex developers, also outraged civil
society and the media. The result of the use of the contempt power against these
journalists was again to heighten suspicion about corruption in the judiciary. These actions have contributed in no small measure to a drastic increase of the perception of corruption in the judiciary in the eyes of civil society. This has also been accentuated by the eruption of corruption scandals about the judiciary in quick succession recently. The recent judicial scandals involving Justice Soumitra Sen of Calcutta , the Ghaziabad Provident fund scam, the cash at judges door scam at Chandigarh , and the case of Justice Dinakaran, among others have been given a lot of publicity by the media recently. The resentment caused by the use of or threatened use of the contempt power to stifle outspoken comment (as in the Arundhati Roy case) or to silence the exposure of corruption (as in the Midday case), have contributed in no small measure to the increasingly widespread and outspoken coverage of judicial scandals in the media.
In conclusion on this issue, I wish to state that what I have stated about corruption at the apex of the judiciary is what I honestly believe to be true and have said so with a full sense of responsibility. I have not said anything which is at variance with my bonafide belief. Even Mr. Salve has not accused me of making false statements in this regard.
10. Regarding the Vedanta-Sterlite matter, it may be stated at the outset that this question and my answer was in the context of “other kinds of corruption of the judicial process different from bribe taking or financial corruption”. This is why in my response, I have clarified what exactly I
meant by “corruption” in this case. If some people have understood my response to the question to mean that I have accused Justice Kapadia of financial corruption, that would be wrong and most unfortunate, for that was certainly not what I meant or intended to say. Justice Kapadia is widely perceived to be a judge of financial integrity and I have no reason to doubt that perception. However, I do believe that Justice Kapadia acted improperly by hearing a matter involving very large financial stakes of a company and proceeding to pass orders on it, while he had shares in the company in whose favour he passed those orders. However, I may not have been impelled to say what I did, if I did not feel that quite apart from the impropriety of Justice Kapadia having heard and passed orders in the case of a company in which he held shares, the orders that he passed were quite extraordinary and totally unwarranted.
11. Consider the orders which were passed, and the facts and circumstances in which they were passed. Sterlite Industries had transferred an Alumina Refinery Project to be built at Lanjigarh, Orissa to its subsidiary company M/s Vedanta Alumina Limited (VAL). Environmental clearance for this Refinery had been granted by the Ministry of Environment and Forest . On 12th May 2005, at the instance of Shri Harish Salve, Amicus Curiae in the case, the Court asked the Centrally Empowered Committee (CEC) of the Court, which is the court’s own expert body to examine this clearance and give its report within eight weeks. The Committee gave a detailed report in September 2005.
The CEC in its report, observed that the environmental clearance for the Refinery had been fraudulently obtained by Vedanta without disclosing that the Refinery Project was linked to the mining project. In this Project, the Alumina Refinery required the diversion of 58.93 hectares of forest land for the Refinery and 672.018 hectares of forest land for the mining. After examining the matter in great depth, the CEC concluded that the refinery and the mining projects in this place would destroy the forests, the wildlife, the water sources, and the lives and livelihoods of thousands of a rare and vanishing species of tribals living in this area. The CEC finally recommended:
“32. The CEC is of the considered view that the use of the forest land in an ecologically sensitive area like the Niyamgiri Hills should not be permitted. The casual approach, the lackadaisical manner and the haste with which the entire issue of forests and environmental clearance for the
alumina refinery project has been dealt with smacks of undue favour/leniency and does not inspire confidence with regard to the willingness and resolve of both the State Government and the MoEF to deal with such matters keeping in view the ultimate goal of national and public interest. In the instant case had a proper study been conducted before embarking on a project of this nature and magnitude involving massive investment, the objections to the project from environmental/ecological/ forest angle would have become known in the beginning itself and in all probability the project would have been abandoned at this site.
33. Keeping in view all the facts and circumstances brought out in the preceding paragraphs it is recommended that this Hon'ble Court may consider revoking the environmental clearance dated 22.9.2004 granted by the MoEF for setting up of the Alumina Refinery Plant by M/s and directing them to stop further work on the project. This project may only be reconsidered after an
alternative bauxite mine site is identified."
The CEC also noted that Vedanta started construction on the Alumina Refinery in violation of the guidelines of the MoEF even prior to obtaining forest clearance for the forest land to be diverted for the Refinery. A copy of the CEC’s report is annexed as Annexure D.
12. When the matter was taken up for hearing on 26th October 2007, before the Forest Bench, the Bench, virtually without discussing the CEC report, and without even allowing Mr. Sanjay Parikh, who was appearing for the tribals in a connected Writ Petition challenging the environmental clearance to the Project, to make submissions on the various objections to the
project, straightaway proceeded to discuss the terms on which the mining should be allowed to be carried on!
Eventually, after hearing the Counsel for Vedanta, the Orissa Mining Corporation (which was to be a partner of Vedanta in the mining), the State of Orissa (which had granted the mining lease and permission to set up the Refinery Project to Vedanta) and the Counsel for the Ministry of Environment and Forest (which had granted environmental clearance for the Alumina Refinery) and briefly the Junior Amicus, Shri Uday Lalit, the court reserved the judgment. It proceeded to pronounce its order on 23th November 2007, which is authored by Justice Kapadia. In this judgment, it is stated that since Vedanta Resources, UK , the holding company of Vedanta Alumina Ltd., had been blacklisted by Norway for non-compliance of labour laws and human rights, it would not be proper to give this Project to Vedanta Alumina Ltd. However, the judgment proceeds to grant liberty to Sterlite Industries Limited, which is noted in the judgment to be the holding company of VAL, to
make an application for this Project! It is astounding as to how the court could even consider granting liberty to apply for this Project to a related company owned and controlled by the same holding company i.e. Vedanta Resources Ltd. UK, which is blacklisted and thus not considered fit to receive any concession by the court. If one subsidiary (VAL) was
disqualified on this basis, surely the other subsidiary, Sterlite would also be disqualified on the same logic. Moreover, the court almost totally glosses over the very detailed report of the CEC about the seriously adverse environmental and social impacts of the Project and after merely noting the CEC’s conclusions, goes on to talk about the poverty of the local people living in Lanjigarh including the tribal people. In the words of the court, “CEC has objected to the grant of clearance as sought by M/s VAL on the ground inter alia that the refinery is totally dependent on the mining of bauxite from Niyamgiri Hills, Lanjigarh, which is the only vital wildlife habitat, part of which constitutes elephant corridor and also on the ground that the said project, including the mining area, would obstruct the proposed wildlife sanctuary and the residence of tribes like Dongria Kandha.
According to CEC, Niyamgiri Hills would be vitally affected if mining is allowed in the above area as Niyamgiri Hills is an important water source for two rivers. According to CEC, the project would also destroy flora and fauna of the entire region and it would result in soil erosion. According to
CEC, use of forestland in an ecologically sensitive area like Niyamgiri Hills should not be permitted.”
“On the other side, we have a picture of abject poverty in which the local people are living in Lanjigarh Tehsil including the tribal people. There is no proper housing. There are ho hospitals. There are no schools and people are living in extremely poor conditions which is not in dispute.
“Indian economy for last couple of years has been growing at the rate of 8 to 9% of GDP. It is a remarkable achievement. However, accelerated growth rate of GDP does not provide inclusive growth. Keeping in mind the two extremes, this court thought of balancing development vis-Ã -vis protection of wildlife ecology and environment in view of the principle of Sustainable Development.”
Thus, without discussing and overruling the serious objections of the court’s own expert body of the Project on the forests, the environment, on water, on the lives of tribals and the wild life, in fact, rather cruelly using the poverty of the tribals as an argument to further impoverish them, the court just brushed them aside with the now clichéd rhetoric of providing “inclusive growth.” This when the local tribals who ought to be credited with the intelligence to be the best judges of their own welfare, had been and continue to be totally opposed to the refinery as well as the mining and had filed a detailed Writ Petition against it. The court refused to even consider the writ petition. Worse still, though the issue before the court was only regarding the clearance for diversion of the 58.943 Hectares of forest land for the Alumina Refinery, the court in the next order of 8th August 2008 proceeded to grant clearance for the diversion of 606.749
hectares of forest land for the bauxite mining of the Niyamgiri Hills! This is even before the government had granted environmental clearance or forest clearance for the diversion of the forest in the matter of the bauxite mines. Copies of the courts orders dated 23/11/07 and 8/8/08 are collectively annexed as Annexure E.
13. It was under these circumstances, coupled with the fact that Justice Kapadia had shares in Sterlite, that I made my comments. It may be noted that there were many observers present in the court in the hearing on 26th October 2007 and many e-mails were contemporaneously sent detailing the proceedings. A copy of the detailed note sent the very next day by Mr. Felix Padel, a highly respected social anthropologist working in Orissa for the last several decades and another detailed contemporaneous report by another responsible observer present in court that day about the hearing that they witnessed on 26th October 2007 are collectively annexed hereto as
Annexure-F. These are only two of the several detailed reports of the hearing that I had seen and heard when I made my comments on this case.
14. Regarding the issue of Code of Conduct of Judges and the fact that Justice Kapadia had disclosed his shareholding in Sterlite, and since nobody objected, his continuing to hear the case was in accordance with the Code of Conduct and, therefore, not objectionable, I beg to differ. Firstly, Justice Kapadia’s disclosure about his shareholding in Sterlite came only on 26th
October 2007, though he had been hearing this case at least from 2005 onwards. Secondly, the disclosure of his shareholding was casually made in the context of Sterlite being a listed company as opposed to Vedanta which is a non-listed company. According to several observers who were present at the hearing, no one expressly was asked and no one expressly said that they had no objections to his continuing to hear the matter. In fact, at the stage at which Justice Kapadia had disclosed his shareholding in Sterlite, the effective party before the court was Vendanta. Sterlite came back into the matter only after the order of 23rd November 2007 where the order itself
permitted Sterlite to make an application.
15. Moreover, the only counsel who could have objected and who had an adverse interest to Vedanta in the matter was Mr. Sanjay Parekh who was appearing in a connected Writ Petition on behalf of the tribals. However, he was not permitted to even argue his case, and was told in no uncertain terms that he would not be heard, since the Amicus was good enough to represent the tribals. All the other counsel present i.e. of Vedanta, Orissa Mining Corporation (which was in partnership with Vedanta for the mining), State of Orissa (which had granted the lease) and the Ministry of Environment and Forest (which had granted environmental clearance for the Project) had a common interest. Moreover, the senior Amicus in this case, Mr. Harish Salve, already had a retainer from Vedanta and it was left to Mr. Uday Lalit, the junior Amicus to object or not to object to Justice Kapadia’s continuing to hear the case. The fact that Mr Uday Lalit did not object in no way
excuses Justice Kapadia’s non recusal in the matter.
16. It is well settled in India as well as internationally that any Judge who has the slightest pecuniary interest in a case must automatically recuse himself from hearing the case. Shareholding in a company, particularly in a case where the order would have enormous impact on the financial status and thus share values of that company as in the case of Vedanta/Sterlite, is certainly a pecuniary interest.
In Manak Chand Vs. Dr. Premchand, (AIR 1957 SC 425), the Supreme Court held that, “It is obvious that pecuniary interest, howsoever small, it may be in the subject matter of the proceedings, would wholly disqualify a member from acting as a judge”. While saying this, the Supreme Court has followed a long line of English decisions starting with Dimes Vs. Grand Junction Canal, (1852 3 HLC 759) where the judgement of the Lord Chancellor who decided the case of a company while he had shares in the company, was set aside by the House of Lords, observing, “This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such influence.” It has thereafter been consistently held in a long line of English cases that “the least pecuniary interest in the subject matter of the litigation will disqualify any person from acting as a
judge” (R Vs. Farrant, 1987 QB 58), (R Vs. Rand, 1866 LR 1, QB 230), (R Vs. Myer 1875 1
QBD 173).
H.M. Seervai has also authoritatively pronounced on this principle in his Constitutional Law of India, where he says:
“Least pecuniary interest in the subject of the litigation will disqualify any person from acting as a judge: the pecuniary interest may be so small that no one will think it likely to produce bias in a judge, e.g. if a judge held shares worth five pounds in a company with a capital of five million; where pecuniary interest exists, the law does not allow any further inquiry as to whether or not the mind was actually biased by the pecuniary interest; the rule applies to judge of the highest tribunal as it does to tribunals and bodies of persons obliged to act judicially or quasi-judicially”.
The basis for this principle is a higher principle which has been clearly stated by Justice Venkatachalaiah in Ranjit Thakur v. UOI and Ors. AIR 1987 SC2386
“The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely. A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non-judice".
“As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party.
The proper approach for the judge is not to look at his own mind and ask himself, however, honestly, "Am I biased?" but to look at the mind of the party before him.”
The principle of automatic recusal if a judge holds shares in the company is the norm in the US as well. Quite recently, 4 judges of the US Supreme Court recused themselves (due to their shareholding) from a case filed by 50 companies that did business in apartheid era South Africa leading to the automatic affirmation of the lower court’s judgement. A copy of the New York Times report to that effect is annexed as Annexure G.
17. In these circumstances, in my opinion, the Code of Conduct which was internally adopted by the courts, does not provide an adequate justification to Justice Kapadia to continue to hear the case. The consent of lawyers is not a safe basis for deciding whether one should recuse oneself from a case.
Most lawyers who appear before a judge every day would be reluctant to ask a judge to recuse himself from a case, even if they feel that there is a serious conflict of interest. This is because asking a judge to recuse himself seems like an expression of no confidence in the ability of the judge to rise above his personal interest. That is why, after this controversy arose, most judges have come to accept that the Code of Conduct does not provide the correct guide for recusal in such matters. Judges should automatically recuse themselves from hearing the cases of those companies in which they hold shares. Recognizing this fact, after this controversy, many judges including Justice Kapadia have recused from hearing cases where they had shares, despite the lawyers saying that they had no objection. Newspaper reports to this effect are annexed as Annexure H.
18. In these circumstances, my comment on Justice Kapadia’s role in the Vedanta-Sterlite matter is a legitimate opinion which I am entitled to express.
19. There is however another important aspect of this contempt petition and the manner in which it has been initiated. This Contempt Petition has been filed by a person who has repeatedly misused his position as Amicus Curiae and has taken briefs/retainers to appear for various private parties in matters in which he has been appearing as Amicus Curiae as well. In the case
of Vedanta/Sterlite which is the subject matter of this complaint against me, Shri Salve first appeared as Amicus in this matter, and then took a retainer from Vedanta/Sterlite, after which he asked Shri Udai Lalit to appear as Amicus in the case. For a person who is Amicus and who has not only appeared as Amicus in a matter involving a particular party, to subsequently accept a brief or retainer on behalf of that party, in my view amounts to professional misconduct. Once he has been appointed Amicus in a matter by the Court, he has no business to accept a brief or retainer on behalf of a private party in the same matter. In fact, in my view, in either case, whether he took retainer on behalf of a private party after appearing as Amicus in the same matter or appeared as amicus though he was holding retainer of a private party in the same matter amounts to serious professional misconduct. Even in this application, he has misled the court
by consciously concealing his retainership and connection with Vedanta/Sterlite, once again misusing his position as Amicus. For this reason alone, this application filed by him should not be entertained. In fact the Court should discharge him as Amicus in the matter. Copies of the orders showing Shri Salve was appearing as Amicus and the newspaper report showing his retainership with Vedanta-Sterlite are collectively annexed hereto as Annexure-I
20. This is however not the only instance where Shri Salve has misused his position and accepted a brief of a private party in cases where he is also acting as Amicus. He was Amicus in the forest matter when the issue of the Delhi Ridge and constructions of hotels/shopping malls on the Ridge came up before the Forest Bench. He still chose to take up a brief of M/s Unison Hotels which involved construction on 92 hectares of forest land on the Ridge. Subsequently, in another Writ Petition of Mr. Santosh Bhartiya challenging the construction by Unison Hotels (now called the Grand Hyatt Hotel) on the Delhi Ridge, Shri Salve appeared again in the matter, this time for the DDA. Copies of orders in the aforementioned cases related to Vasant Kunj Ridge area and the officer report dated 06.12.06 in Ridge Bachao Case are collectively annexed hereto as Annexure-J.
21. In the case of the construction of statues in the Noida Park , Shri Salve appeared as Amicus, though he had already been appearing on behalf of the UP Government in the same or connected matters involving construction of statues at the Noida Park and at other places. (Writ Petition No. 266 of 2009, Ravi Kant & Another Vs. State of U.P. ). Copies of the orders in the two cases showing Shri Salve appearing as Amicus in the Noida Park matter and on behalf of the State of UP in Ravi Kant’s case involving the same park as well as the relevant pages of the petition of Ravi Kant’s case, are collectively annexed hereto as Annexure-K.
22. However, these are not isolated instances of professional misconduct on the part of Shri Salve, who has chosen to style himself as Amicus Curiae in this Contempt Petition. In a large number of cases, Shri Salve has accepted briefs/retainers from one party and thereafter gone on to appear on behalf of the other party by just returning the retainer despite the protest of the
opposite party. Some instances of these cases are the case of K.K. Birla Vs. Lodha and the case of Lilavati Hospital (Charu Kishore Mehta vs. Lilavati Kirtilal Mehta M. Trust & ors., SLP (C) No.4911/2007). Copies of the correspondence between Shri Birla and Shri Salve published in Shri Birla’s autobiography to this effect are collectively annexed hereto as Annexure-L.
Copy of the order of 26/3/07 and a copy of a newspaper report regarding Shri Fali Nariman’s public expression of outrage at Shri Salve’s totally unprofessional behaviour in the Lilavati Hospital matter where after being briefed by one party, he chose to appear for the opposite party is annexed hereto as Annexure-M.
23. I have been constrained to point out these instances of professional misconduct of Shri Salve in this context because he has repeatedly misused his position as Amicus and involved himself in conflict of interest situations which has influenced the course of justice.
Deponent
Verification:
I the deponent above named do hereby verify that the contents of the above affidavit are true and correct to my knowledge and nothing material has been concealed therefrom.
Verified at New Delhi on this the 7th day of December 2009.
Deponent
Saturday, December 19, 2009
Justice D V Shylendra Kumar's open letter to citizens
Justice D V Shylendra Kumar has written an open letter to public about worsening situation about corruption in judiciary and specifically about continutation of Chief Justice of Karnataka high court P D Dinakaran in administration even though he is barred from doing judicial duties.
http://www.deccanherald.com/content/42040/extraordinary-situations-call-extraordinary-measures.html
Extraordinary situations call for extraordinary measures
By Justice D V Shylendra Kumar
No one can, and should, sit as a judge in his own cause
I had never imagined that I will be getting back to you so soon. But we are not living in normal times and even high court judges like me are driven to a state of despair and helplessness and are being compelled to approach the masters in our constitutional scheme ie the citizens of our country, time and again.
Extraordinary situations call for extraordinary remedies and I am testing one such remedial measure.
The judicial system in our country has been shrouded in mystery, and secrecy as is perhaps the position elsewhere in the world and judges are expected to maintain distance, aloofness and should be inaccessible to the common people outside their office and outside normal course of judicial function, which is performed only in the court halls.
Well, I am a little different, I am not averse to take issues to the people of this country, I am not averse for inviting the people of this country to express their reactions and opinions to the happenings even within judiciary and particularly when, in-house corrective measures fail and I have a very strong feeling that things are going radically wrong even within the judicial system.
I am now confronted with such an extraordinary situation and as a judge of the High Court of Karnataka, I feel morally and constitutionally compelled to take certain steps and measures which can better the situation, improve the situation and at any rate at least arrest the negative developments.
In the wake of the news that the chief justice of Karnataka High Court is not sitting on the Bench and will not be discharging judicial function until notified otherwise having been very extensively covered in the press and other media today morning, I naturally expected that the chief justice will gracefully proceed on leave and will henceforth desist from exercising any functions which are part of the duties and responsibilities of a chief justice of the high court and even if one should not proceed on leave, I expected the chief justice not to exercise any authority and act on the administrative side of the high court which power and authority is a very important incidental function of the chief justice of the high court.
While it may not be necessary to go into all the details of the powers and functions exercised by the chief justice of a high court on the administrative side, for the present purpose it is suffice to inform you that the chief justice, exercises vast and important powers on the administrative side also. If a person exercising such vast powers on the administrative side is a suspect person, is a person under cloud, is a person whose past conduct and exploits does not inspire the confidence of the people and can possibly misuse and abuse the powers of a chief justice on the administrative side also, then it is highly desirable that the chief justice of the high court is prevented from exercising and using his powers on the administrative side also.
Administration
After I read the news items which had been prominently covered by the press, that the chief justice of our high court, will not henceforth exercise any judicial functions till notified otherwise, I was curious to know as to whether the chief justice is exercising powers on the administrative side and to learn about the same, I had called R B Budihal, registrar general of the High Court of Karnataka at Bangalore over the phone, to ascertain the position. I was shocked and surprised to know that the chief justice has continued to exercise his power and authority on the administrative side, though he is not, now discharging his duties on the judicial side.
I immediately felt this is a strange and extraordinary situation and unless corrected immediately things may continue to deteriorate.
To work out the modalities, I was of the sincere opinion that all judges of the high court, should sit together, discuss the matter and take a collective decision to prevail upon the chief justice to refrain from discharging any administrative duties also, and for such purpose sent a communication to Budihal, to circulate a letter amongst my colleagues apprising them of the meeting of the judges to take place at 11 am on Saturday, Dec 19, to take a decision in this regard.
I learnt on the evening of Dec 17, from Budihal, that the chief justice before whom the matter was placed for orders, has declined permission for the meeting to take place on Saturday.
Now, this development is the cause for my present communication. This kind of response from the chief justice, to a proposal to hold a meeting of all judges of the high court to discuss an issue involving the conduct of the chief justice himself and is definitely not a matter over which the chief justice should take a decision by himself, has only confirmed my worst fears that the chief justice may even now continue to abuse and misuse his powers (including the power to recommend the names of persons to be appointed as judges of the high court after eliciting the views of his colleagues in the collegium) even when he is no more discharging his duties as chief justice of the high court.
In fact, grace and propriety require that a file containing a proposal of this nature, should have been directed to be placed before any other judge of the high court for orders, if at all an order is needed.
Well grace, propriety and good conduct are definitely not the strong points of our chief justice. Well, I will work out a way. But the point here is, that the people of the state and the country should be aware of such developments and also react to the same. It is for this purpose, I am posting this communication on the net.
Your response may be aired in public and also sent to justdvskumar@gmail.com.
I may get back to you as and when further developments take place and as and when the situation so warrants.
No one can and should sit as a judge in his own cause — even the chief justice of a high court.
My comment: Please send personal email at justdvskumar@gmail.com to show your support for the cause of corruption free judiciary and judicial accountability.
http://www.deccanherald.com/content/42040/extraordinary-situations-call-extraordinary-measures.html
Extraordinary situations call for extraordinary measuresBy Justice D V Shylendra Kumar
No one can, and should, sit as a judge in his own cause
I had never imagined that I will be getting back to you so soon. But we are not living in normal times and even high court judges like me are driven to a state of despair and helplessness and are being compelled to approach the masters in our constitutional scheme ie the citizens of our country, time and again.
Extraordinary situations call for extraordinary remedies and I am testing one such remedial measure.
The judicial system in our country has been shrouded in mystery, and secrecy as is perhaps the position elsewhere in the world and judges are expected to maintain distance, aloofness and should be inaccessible to the common people outside their office and outside normal course of judicial function, which is performed only in the court halls.
Well, I am a little different, I am not averse to take issues to the people of this country, I am not averse for inviting the people of this country to express their reactions and opinions to the happenings even within judiciary and particularly when, in-house corrective measures fail and I have a very strong feeling that things are going radically wrong even within the judicial system.
I am now confronted with such an extraordinary situation and as a judge of the High Court of Karnataka, I feel morally and constitutionally compelled to take certain steps and measures which can better the situation, improve the situation and at any rate at least arrest the negative developments.
In the wake of the news that the chief justice of Karnataka High Court is not sitting on the Bench and will not be discharging judicial function until notified otherwise having been very extensively covered in the press and other media today morning, I naturally expected that the chief justice will gracefully proceed on leave and will henceforth desist from exercising any functions which are part of the duties and responsibilities of a chief justice of the high court and even if one should not proceed on leave, I expected the chief justice not to exercise any authority and act on the administrative side of the high court which power and authority is a very important incidental function of the chief justice of the high court.
While it may not be necessary to go into all the details of the powers and functions exercised by the chief justice of a high court on the administrative side, for the present purpose it is suffice to inform you that the chief justice, exercises vast and important powers on the administrative side also. If a person exercising such vast powers on the administrative side is a suspect person, is a person under cloud, is a person whose past conduct and exploits does not inspire the confidence of the people and can possibly misuse and abuse the powers of a chief justice on the administrative side also, then it is highly desirable that the chief justice of the high court is prevented from exercising and using his powers on the administrative side also.
Administration
After I read the news items which had been prominently covered by the press, that the chief justice of our high court, will not henceforth exercise any judicial functions till notified otherwise, I was curious to know as to whether the chief justice is exercising powers on the administrative side and to learn about the same, I had called R B Budihal, registrar general of the High Court of Karnataka at Bangalore over the phone, to ascertain the position. I was shocked and surprised to know that the chief justice has continued to exercise his power and authority on the administrative side, though he is not, now discharging his duties on the judicial side.
I immediately felt this is a strange and extraordinary situation and unless corrected immediately things may continue to deteriorate.
To work out the modalities, I was of the sincere opinion that all judges of the high court, should sit together, discuss the matter and take a collective decision to prevail upon the chief justice to refrain from discharging any administrative duties also, and for such purpose sent a communication to Budihal, to circulate a letter amongst my colleagues apprising them of the meeting of the judges to take place at 11 am on Saturday, Dec 19, to take a decision in this regard.
I learnt on the evening of Dec 17, from Budihal, that the chief justice before whom the matter was placed for orders, has declined permission for the meeting to take place on Saturday.
Now, this development is the cause for my present communication. This kind of response from the chief justice, to a proposal to hold a meeting of all judges of the high court to discuss an issue involving the conduct of the chief justice himself and is definitely not a matter over which the chief justice should take a decision by himself, has only confirmed my worst fears that the chief justice may even now continue to abuse and misuse his powers (including the power to recommend the names of persons to be appointed as judges of the high court after eliciting the views of his colleagues in the collegium) even when he is no more discharging his duties as chief justice of the high court.
In fact, grace and propriety require that a file containing a proposal of this nature, should have been directed to be placed before any other judge of the high court for orders, if at all an order is needed.
Well grace, propriety and good conduct are definitely not the strong points of our chief justice. Well, I will work out a way. But the point here is, that the people of the state and the country should be aware of such developments and also react to the same. It is for this purpose, I am posting this communication on the net.
Your response may be aired in public and also sent to justdvskumar@gmail.com.
I may get back to you as and when further developments take place and as and when the situation so warrants.
No one can and should sit as a judge in his own cause — even the chief justice of a high court.
My comment: Please send personal email at justdvskumar@gmail.com to show your support for the cause of corruption free judiciary and judicial accountability.
Justice D V Shylendra Kumar takes a stand - Again
Justice D V Shylendra Kumar may seem like a lone warrior in judiciary against corruption seeping through high judiciary, but he is not alone as most Indian citizens are behind him. There are other campaigners outside of judiciary like Mr Prashant Bhushan but Justice Shylendra Kumar seems to be the only one from within judiciary who is speaking out against judicial corruption.
First news item below where he has spoken out against Justice PD Dinakaran continuing his administrative duties in high court when he is not allowed to function in judicial duties as chief justice of Karnataka high court.
http://www.deccanherald.com/content/42091/brother-judge-tells-justice-dinakaran.html
Subhash Chandra N S, Dec 18,Bangalore:
The Karnataka High Court was on Friday plunged into a fresh bout of turmoil when a sitting judge publicly asked a beleagured Chief Justice P D Dinakaran to proceed on leave.
Justice D V Shylendra Kumar’s stand came on a day when Chief Justice of India K G Balakrishnan said Justice Dinakaran’s name had not been dropped from consideration for elevation to the Supreme Court, but only held in abeyance in view of the Rajya Sabha chairman admitting a motion of impeachment against him.
Refuting media reports, Justice Balakrishnan said: “(There is) no question of bringing him in at this stage; it (his name) has been kept in abeyance.”
But Justice Shylendra Kumar, who is at present camping in Gulbarga where he is presiding over the Circuit Bench, described Justice Dinakaran as “a mis-conducting judge” who is “continuing to remain in office and perpetuating misconduct to the great detriment of the public interest and at the cost of the exchequer.” In August this year, Justice Kumar was one of the first judges of any high court in the country to have made public his assets.
Demanding nothing less than Justice Dinakaran proceeding on leave, Justice Kumar stepped up his anger and anguish at his senior colleague continuing to perform administrative functions. In an article, which he posted on his website on Thursday, Justice Kumar says: “The Chief Justice may even now continue to abuse and misuse his powers (including the power to recommend names of persons to be appointed as Judges of the High Court after eliciting the views of his colleagues in the collegium) even when he is no more discharging his duties as Chief Justice of the High Court.”
Meeting of judges
This prompted him to “direct” the high court Registrar General R B Budihal on Thursday to convene a meeting of all judges of the Karnataka High Court, including the Chief Justice, “for the purpose of discussing the propriety, the justification and the desirability of the Chief Justice...exercising functions on the admininstrative side...”
In his missive, Justice Kumar writes that he wanted to “share his views with my colleagues on the bench and after discussing the matter, for taking appropriate decision with (the) other judges.”
Justice Kumar’s direction to Budihal was to “circulate a requisition immediately”, fixing the meeting time for 11 am on Saturday at the high court’s conference hall.
But in a December 18 letter, communicated to the High Court Additional Registrar General, Budhial states that “after perusing the same (Justice Kumar’s faxed letter of December 17), the Hon’ble Chief Justice has directed to file the same”.
In the same letter, Budhial “requested” the Additional Registrar General to “bring the above said fact to the notice of His Lordship, Hon’ble Shri Justice D V Shylendra Kumar.”
When contacted by Deccan Herald, Budhial refused to clarify what he meant by the expression “directed to file the same.”
But in his article (see Panorama page) Justice Kumar makes it clear: “The Chief Justice, before whom the matter was placed for orders, has declined permission for the meeting to take place on Saturday.”
From his various letters it seems Justice Kumar will go hammer and tongs at the issue. In one of his letters, he writes: “Grace and propriety require that a file containing a proposal of this nature should have been directed to be placed before any other judge of the HC for orders, if at all an order is needed....Well, grace, propriety and good conduct are definitely not the strong points of our Chief Justice.”
First news item below where he has spoken out against Justice PD Dinakaran continuing his administrative duties in high court when he is not allowed to function in judicial duties as chief justice of Karnataka high court.
http://www.deccanherald.com/content/42091/brother-judge-tells-justice-dinakaran.html
Subhash Chandra N S, Dec 18,Bangalore:
The Karnataka High Court was on Friday plunged into a fresh bout of turmoil when a sitting judge publicly asked a beleagured Chief Justice P D Dinakaran to proceed on leave.
Justice D V Shylendra Kumar’s stand came on a day when Chief Justice of India K G Balakrishnan said Justice Dinakaran’s name had not been dropped from consideration for elevation to the Supreme Court, but only held in abeyance in view of the Rajya Sabha chairman admitting a motion of impeachment against him.
Refuting media reports, Justice Balakrishnan said: “(There is) no question of bringing him in at this stage; it (his name) has been kept in abeyance.”
But Justice Shylendra Kumar, who is at present camping in Gulbarga where he is presiding over the Circuit Bench, described Justice Dinakaran as “a mis-conducting judge” who is “continuing to remain in office and perpetuating misconduct to the great detriment of the public interest and at the cost of the exchequer.” In August this year, Justice Kumar was one of the first judges of any high court in the country to have made public his assets.
Demanding nothing less than Justice Dinakaran proceeding on leave, Justice Kumar stepped up his anger and anguish at his senior colleague continuing to perform administrative functions. In an article, which he posted on his website on Thursday, Justice Kumar says: “The Chief Justice may even now continue to abuse and misuse his powers (including the power to recommend names of persons to be appointed as Judges of the High Court after eliciting the views of his colleagues in the collegium) even when he is no more discharging his duties as Chief Justice of the High Court.”
Meeting of judges
This prompted him to “direct” the high court Registrar General R B Budihal on Thursday to convene a meeting of all judges of the Karnataka High Court, including the Chief Justice, “for the purpose of discussing the propriety, the justification and the desirability of the Chief Justice...exercising functions on the admininstrative side...”
In his missive, Justice Kumar writes that he wanted to “share his views with my colleagues on the bench and after discussing the matter, for taking appropriate decision with (the) other judges.”
Justice Kumar’s direction to Budihal was to “circulate a requisition immediately”, fixing the meeting time for 11 am on Saturday at the high court’s conference hall.
But in a December 18 letter, communicated to the High Court Additional Registrar General, Budhial states that “after perusing the same (Justice Kumar’s faxed letter of December 17), the Hon’ble Chief Justice has directed to file the same”.
In the same letter, Budhial “requested” the Additional Registrar General to “bring the above said fact to the notice of His Lordship, Hon’ble Shri Justice D V Shylendra Kumar.”
When contacted by Deccan Herald, Budhial refused to clarify what he meant by the expression “directed to file the same.”
But in his article (see Panorama page) Justice Kumar makes it clear: “The Chief Justice, before whom the matter was placed for orders, has declined permission for the meeting to take place on Saturday.”
From his various letters it seems Justice Kumar will go hammer and tongs at the issue. In one of his letters, he writes: “Grace and propriety require that a file containing a proposal of this nature should have been directed to be placed before any other judge of the HC for orders, if at all an order is needed....Well, grace, propriety and good conduct are definitely not the strong points of our Chief Justice.”
Supreme Court vs Chief Information Commissioner -- does it get better or worse from here?
Supreme court has moved appeal via Special leave petition (SLP) against RTI's Chief information commissioner (CIC) to disclose details on appointments of judges to supreme court.
The two appeals by SC are given as below from the news item:
In one appeal, it challenged the CIC order directing the SC to give details of the decision not recommending the elevation of Justice A P Shah, Chief Justice of Delhi HC, to SC even as the collegium headed by the CJI suggested names of chief justices of four other HCs for appointment to the apex court.
In the second appeal, it sought setting aside of the CIC order asking SC to furnish details to RTI applicant S C Agrawal of the correspondence between the CJI and Justice R Regupathy of Madras HC on the incident in the court in Chennai when the judge had alleged that a Union minister had tried to influence him in a case pertaining to grant of anticipatory bail to a person.
Full news below:
http://timesofindia.indiatimes.com/india/SC-stays-CIC-order-on-judges-appointment-and-correspondence/articleshow/5299228.cms
The two appeals by SC are given as below from the news item:
In one appeal, it challenged the CIC order directing the SC to give details of the decision not recommending the elevation of Justice A P Shah, Chief Justice of Delhi HC, to SC even as the collegium headed by the CJI suggested names of chief justices of four other HCs for appointment to the apex court.In the second appeal, it sought setting aside of the CIC order asking SC to furnish details to RTI applicant S C Agrawal of the correspondence between the CJI and Justice R Regupathy of Madras HC on the incident in the court in Chennai when the judge had alleged that a Union minister had tried to influence him in a case pertaining to grant of anticipatory bail to a person.
Full news below:
http://timesofindia.indiatimes.com/india/SC-stays-CIC-order-on-judges-appointment-and-correspondence/articleshow/5299228.cms
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