Game: Find the clean ex-CJI!

http://www.tehelka.com/story_main47.asp?filename=Ne021010Chief_Injustices.asp

From the affidavits given by Mr Prashant Bhushan in contempt case against him, it is prima-facie evident that corrupt judges in SC have been spared only because many MPs do not want to sign on impeachment motions, since they have their own cases pending in SC!

So judiciary is independent of legislature, but legislators are not independent from judiciary!

Waking up to reality beyond making new laws!

Finally, Mr Moily has said something (he makes statements often) which has elements of rationality beyond making newer laws to fix problems.  This should be considered by lawmakers who are ever ready to create new laws to tackle honour killings, and what else – supposedly under pressure from media and public.

Without the ability to execute on newly created laws, they are in danger of going the same way as of 38 lakh number of pending cheque bouncing cases.  You are carrying a bounced cheque in one pocket? No problem… file a criminal case and carry the papers in another pocket!

http://www.hindustantimes.com/Before-making-a-law-assess-extra-burden-on-courts-Moily/Article1-599124.aspx

With crores of cases pending in courts across the country, the Law Ministry has suggested that Law Ministry should make fresh laws only after assessing the extra burden they are likely to impose on the courts and ensuring the provision of money required for the purpose. "Assessment must be made for the purpose of estimating the extra load any new bill or legislation may add to the burden of courts and expenditure required for the purpose," Law Minister M Veerappa Moily has said in a letter to Finance Minister Pranab Mukherjee.

Nearly three crore cases are pending in courts (lower courts and higher judiciary) across the country, and the backlog is on a steady increase. According to government estimates based on 2009 figures, it takes 15 years on an average to finally decide a court case in India.

Moily's letter, based on the recommendations of the task force on Judicial Impact Assessment, says the government can anticipate the likely cost of implementing a legislation through the courts by a judicial impact assessment.

The task force, which based its findings on the research work by former Law Secretary T K Viswanathan, who is now Advisor in the Law Ministry, had recommended that it should be made mandatory to provide an estimate of the burden likely to be imposed on courts by every bill passed by Parliament or state legislatures.

In a similar letter recently, Moily had stressed the need for immediate setting up of special courts to deal with "surmounting" cases under Section 138 of the Negotiable Instruments Act. In that letter, also addressed to the Finance Minister, Moily had said that there are about 38 lakh cheque bouncing cases pending in the trial courts and this need to be speedily addressed by setting up special courts.

Judiciary cannot see the writing on wall!

This speech by a Supreme Court judge merits point by point rebuttal, to let judiciary know what is wrong.

http://www.thehindu.com/news/states/kerala/article496951.ece

Cyriac Joseph, judge of the Supreme Court of India, on Friday came down heavily on the “unfair criticism” levelled against the judiciary and wondered why cultural leaders and institutions such as the Bar Association were silent on the issue.

Comments: Cultural leaders? … that’s a debate on its own.  In India, there are religious gurus, political leaders, film stars, cricket leaders, some intellectual ‘leaders’ who debate with one another mostly or pat each other on the back.   About Bar association: I bet they are lot more busy handling things like agitations or rowdyism by lawyers in court premises, or by one lawyers’ group against another, to be able to worry about such finer things!

Delivering the first K.K. Mathew Memorial Law Lecture series on the ‘Role of Judiciary in Democratic India,' organised as part of the centenary celebrations of the Kottayam Bar Association here, Mr. Joseph said the “abuse and intemperate outbursts” from any quarters were only a display of “ignorance of the constitutional provisions” as also a mark of “lack of culture.”

The people of India as represented by the Constituent Assembly had given shape to the Constitution and had “entrusted the judiciary with the responsibility of upholding the Constitution, constitutional values and constitutional institutions. Thus the people of India, through the Constituent Assembly, had assigned the role of a watchdog and corrective force for the judiciary in its functioning so that parliamentary democracy could flourish,” he said.

Comment: Public is tired of hearing the same old lectures given from a pulpit.  With more than 3 crore pending cases, what justice and constitution are we talking about?  Does not constitution say that speedy justice is a right of citizens?

“Judges think, speak and act in accordance with the provisions of the Constitution and cannot act like bull in a china shop,” Mr. Joseph said and added that whatever powers the judges have are derived from the Constitution. “They are not an unwanted, unauthorised group of people who wield self-acquired powers unaccounted for,” he said

Stating that unfair criticism of the judiciary would undermine democracy and the rule of law in the country, Mr. Joseph said India was ranked high internationally on account of its vibrant democracy which ensured elections every five years and the presence of an independent judiciary. “Independent judiciary is the hallmark of Indian democracy,” he said and added that the decision not to have an elected judiciary was a principled decision of the Constituent Assembly. “This does not make them less authentic,” he said and added that they are appointed on the basis of well laid out rules and guidelines.

Comment: This seems another attempt to stifle dissent against collegium based appointments in Supreme Court.  When even a high court judge like Justice Shylendra Kumar raises voice, the SC is quite eager to shut him down with a judge having “tears in his eyes”.  Of course they don’t have tears in eyes when a so called Chief Justice of Karnataka high court is barred from judicial functions by the lawyers themselves!  After all, on paper he is Chief justice, and that is according to constitution so it must be all hunky dory!

“Judgments were not above criticism and any judgment could be subject to constructive criticism at an academic and intellectual level,” he said and stressed that judges who passed judgments that one does not agree with cannot be subjected to unfair criticism, abuse and ridicule. The Constitution provides for revision of judgments and the aggrieved parties should take recourse to such avenues, he said.

Comment: Except for the practical fact that taking recourse to revision or appeal is practicable for only well-heeled, powerful people.

“Unlike in a game of football, there is no provision to show the Red Card, though some believe that the provision for Contempt of Court was one such stipulation. “But, I fear even this would become ineffective if people are ready to go to jails,” he quipped.

Comment: So it is clear that there is so much widespread opposition to judiciary that even if contempt of court was used against public, the already struggling business in courts will grind to a halt!

Describing the late Justice K K Mathew, former judge of the Supreme Court of India, as a “saint among judges,” Mr. Joseph said he considered K.K. Mathew as the greatest jurist produced by Kerala.

K P Presanna Kumar, District and Sessions judge, presided. Senior lawyer and former Minister M P Govindan Nair; senior lawyer V.K. Satyavan Nair; George Boban, president of Kottayam Bar Association; and others spoke.

Another cockroach in cabinet – judiciary having control of public funds

Justice Shylendra Kumar of Karnataka HC recently posted a new entry on his blog as given below.

http://sites.google.com/site/justdvskumar/netizens-citizens-vii-22-05-2010

What was a new revelation was about the extent of funds available (Rs 13 Crore) to judiciary at their discretion, under aegis of Karnataka State Legal Services Authority, and the disclosure by Justice Kumar that he himself had to wait for 3-4 months to get information related to certain expenditures under category of ‘hospitality expenditures’  from the Karnataka high court registry!

Here is information about what Legal Services Authority is all about from their website here: http://www.kslsa.kar.nic.in/aims_objectives.htm

The Legal Services Act 1987 is basically aimed to provide free and competent legal Service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.

Creating Legal awareness, Legal Aid and Settlement of disputes through amicable settlement are the main functions of the Authority.

Needless to say, it is an authority with mandate of delivering effective justice, and esp to help poor people who may not be able to afford lawyers.

Here are the relevant part of Justice Kumar’s blog post with important points in bold:

Recently, I heard that there were some malpractices, particularly, some illegalities having taken place in the matter of expenditure incurred by the High Court under the head ‘hospitality expenditure’, more so, during the stewardship of Justice P D Dinakaran as Chief Justice of the Karnataka High Court.

Being a little disturbed with such development, I had sought for some factual information from the registry and the information which I received has not put me at ease, but on the other hand has put me to great uneasiness and anxiety, particularly about the way and the direction which our High Court is heading.

I am placing the particulars of expenditure incurred as furnished by the registry for the information and perusal of the general public, an information which is otherwise available to you all under the Right to Information Act, and to form your own opinion and of course to react and respond suitably.

Under our constitutional scheme, judiciary does not have financial independence and the expenses in the judiciary is also part of the budgetary proposal and being voted by the State legislatures and the Union in the Parliament and therefore to that extent judiciary was blissfully kept independent of any financial responsibilities and the concomitant accountability with regard to expenses.

While that is the scheme under our Constitution, in recent times, with all sorts of additional responsibilities having sprouted on the courts, particularly, at the level of the High Courts and the Supreme Court and the High Courts and the Supreme Court getting more and more active on the administrative side, have been privy to considerable extent of State funds and whom the amount is being spent at the sole discretion of the Members of the Judiciary.

The checks and balances which are available under the Constitutional scheme and the statutory scheme in respect of any State expenditure, particularly, the scrutiny by the Comptroller and Auditor General of India under Article 148 of the Constitution of India is not fully or strictly applied in respect of expenditure incurred by the Judiciary in respect of funds which are available at the disposal of the Judiciary wherein the discretion of the Chief Justices matters. The State making available vast funds as part of the services made available to the general public under the Karnataka State Legal Services Authorities Rules, 1996 and being at the sole discretion of the Executive Chairman who is a Member of the Judiciary and Judge in the High Court, while has given considerable financial independence and capability to the Judge heading this Authority, the manner of utilization/application of such large amount has come in for criticism and over a period of time, the public opinion is that Judges are most ill suited to occupy the position of a Executive Chairman of the Legal Services Authority and it should be looked after by other persons who do not have the onerous judicial responsibilities to discharge.

Well, opinions may differ, but the fact remains that Judges becoming privy to large or vast amounts has not been a healthy trend if one should look at the developments during the past two decades and it certainly calls for a debate, a rethinking and suitable changes if so felt and warranted.

I learnt that Karnataka State Legal Services Authority had received not less than Rupees Thirteen Crores for its annual expenses during the year 2009-10 and I was not very happy with the manner of the funds allocated to expenditure of this Authority and I had called for information about the same when I was serving at the Circuit Bench of the High Court at Gulbarga during November-December 2009.

It took more than three to four months for the Member Secretary of the Karnataka State Legal Services Authority to part with this information even to a Judge of the High Court and it is only with some pressure and threats I was able to get the information. This again is not a very healthy development, particularly, if persons who are entrusted with public funds are asked for accounting the same, it should be available at a minute’s notice and at fingertips, and not furnished after three months like some Judges, declaring the particulars of their assets and liabilities!.

Supreme Court concerned about judges throwing mud on other judges!

This was bound to happen… The image of judiciary has taken a severe beating in last few years.  Now even Supreme Court is concerned that at least judges don’t throw mud at their own brethren.  It is difficult enough when public is doing it!  News below:

http://beta.thehindu.com/news/national/article440114.ece

The Supreme Court has cautioned the High Courts against using intemperate language and passing castigating strictures on judges of the lower judiciary. For, doing so would diminish the image of judiciary in the eyes of the public.

A vacation Bench of Justices G.S. Singhvi and C.K. Prasad, quoting earlier judgments, stressed the need for the High Courts adopting the utmost judicial restraint against using strong language as in such matters the judicial officer concerned had no remedy in law to vindicate his position.

The Bench allowed an appeal filed by a senior judicial officer against certain observations made by the Andhra Pradesh High Court. The Bench expunged them, holding that these remarks were bound to adversely affect the appellant's image in the eyes of the public and his credibility as a judicial officer, and would also affect his career.

As Principal District Judge, Kadapa, the appellant granted a temporary injunction in favour of plaintiffs in a suit and restrained the defendants from interfering with the plaint schedule property.

On an appeal by the defendants, a Division Bench of the High Court set aside the order and made scathing criticism of the appellant as a judicial officer, and recorded highly disparaging remarks.

Allowing the appeal by the judicial officer for expunction of the remarks, the Supreme Court said: “The judges in the higher courts have also a duty to ensure judicial discipline and respect for the judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticised intemperately and castigated publicly. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary than when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other.”

Judicial authoritarianism

It said: “The Division Bench of the High Court may be fully justified in setting aside the order of injunction, but there was absolutely no justification for its making highly disparaging remarks against the appellant as a judicial officer, casting doubts on his ability to decide the cases objectively. The use of the words ‘out of sheer arrogance and disrespect to the lawful order' and the expression ‘judicial authoritarianism' show that the Division Bench ignored the words of caution administered by this court in several judgments.”

And they say judges need independence – from kin maybe!

http://www.tribuneindia.com/2010/20100523/main6.htm

Chandigarh, May 22
The Punjab and Haryana High Court has as many as 16 Judges with their kith and kin practising in the same court. The Chief Justice of the Punjab and Haryana High Court has already forwarded their list to the Union Ministry of Law and Justice.

The list was sent in response to a communication received by the high court from the ministry. In the beginning of this year, the ministry had asked the high courts across the country to identify and furnish the list of all such judges who have their kith and kin practising in the same court.

Available information suggests that some of the judges here not only have their sons, daughters but also their siblings and other relations like nephews and brothers-in-law practising in the same court. At least four judges have their relatives working in the office of the Punjab and Haryana advocates-general office. Some other judges have relatives appearing before the Bench in the same court.

The list forwarded by the high court mentions the names of Justice Adarsh Kumar Goel, Justice Ashutosh Mohunta, Justice M.M. Kumar, Justice S.K. Mittal, Justice Hemant Gupta, Justice V.K. Sharma, Justice TPS Mann, Justice Mahesh Grover, Justice S.D Anand, Justice K.C Puri, Justice K.S. Ahluwalia, Justice Sabina, Justice Jora Singh, Justice M.S. Sullar, Justice Gurdev Singh and Justice Harbans Lal.

The issue again gained momentum only recently after Union Law Minister Veerappa Moily told The Tribune in an exclusive interview that the Law Ministry was asking the judges to give an undertaking at the time of their elevation that they would not function in a court where their relatives were practising.

Moily’s assertion had come in the presence of Attorney-General Goolam E. Vahanvati, Additional Solicitor-General Mohan Jain and Haryana Chief Minister Bhupinder Singh Hooda at a ceremony to felicitate the law minister.

The Law Commission has discussed the issue in its 230th report as well. The commission has made it clear that it is against the policy of transferring Chief Justices; and he should rather be from the same high court. But while making appointment of judges, advocates with kith and kin practising in a high court, should not be posted in the same high court. This would eliminate “uncle judges”, it said.The Punjab and Haryana High Court’s former chief justice, Justice B. K. Roy, too had earlier issued an administrative order barring a group of 10-12 judges from hearing any case argued by their relatives. In his order, Justice Roy had said: “It was generally believed that A, B, C and D (all judges) constituted a mutual cooperative society in the sense it was believed that each of the four judges (A, B, C and D) would protect the sons of the three other judges.” The order had led to widespread protests.

List of judges

Justice Adarsh Kumar Goel

Justice Ashutosh Mohunta

Justice M.M. Kumar

Justice S.K. Mittal

Justice Hemant Gupta

Justice V.K. Sharma

Justice TPS Mann

Justice Mahesh Grover

Justice S.D Anand

Justice K.C Puri

Justice K.S. Ahluwalia

Justice Sabina

Justice Jora Singh

Justice M.S. Sullar

Justice Gurdev Singh

Justice Harbans Lal

Not the end of story regarding Cash at door scam

Only in India if a High court judge gets Rs 15 lakh cash delivered at door, the powers that be will look the other way!  Now it seems the law ministry is siding with CPIO of Supreme Court on the matter of disclosure of information under RTI.  If CJI was not enough in holding lid on happenings inside Supreme Court, now law ministry is backing him up as a spokesperson.

http://www.dnaindia.com/india/report_secrecy-in-yadav-case-moily-supports-chief-justice-of-india_1364645

CPIO had earlier this month denied information to RTI applicant Abhishek Shukla regarding chief justice of India (CJI) KG Balakrishnan’s inputs on transferring Punjab and Haryana high court judge Nirmal Yadav to another HC, saying the matter was confidential.

Yadav is mired in a controversy related to the scam in which Rs15 lakh was recovered from outside the door of her official residence nearly 19 months ago.

On Sunday, the law ministry defended CPIO, saying the CJI input on Yadav was indeed confidential and could not be made public.
CPIO had told Shukla that his query, whether CBI approached CJI in connection with the scam, was “confidential and exempted from disclosure under section 8(1)(e) and (j) of the RTI Act”. “You have no right to access the said information,” CPIO said.

The ministry, which has been working hard to introduce certain amendments in the RTI Act, which Congress president Sonia Gandhi has termed “landmark”, said the CJI input to law
minister Veerappa Moily on the issue was “in the nature of advice tendered by the cabinet” which is exempted from disclosure under the RTI Act.

The ministry cited section 8(1)(i) of the Act in its defence. The section exempts “disclosure of cabinet papers, including records of deliberations of the council of ministers, secretaries and other officers”, provided “the decisions of the council of ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken and the matter is complete”.

Meanwhile, in a setback to the moves by a section in the government to put a lid on the scam, a special court in Chandigarh refused last Friday to accept the CBI plea for closing the case. Judge Darshan Singh asked CBI to probe the case further.

Mission Justice’s presentation on judicial accountability

Mission Justice has made a presentation on corruption, lack of accountability, lack of transparency, and so on in high judiciary of the country.  The presentation is a clear eye-opener for those who still have faith that all is well with High Courts and Supreme Court in India.

You can download and read the presentation here:

http://dl.dropbox.com/u/2371641/Judiciary/MJ-2010-04-judicial-accountability-0001.pps

Judges really need a course in RTI!

When I said in earlier post on this blog that judges need a course in RTI, I thought it applied to a few of them.  But now I am seriously thinking that many judges are used to conducting them imperiously and above any kind of answerability.  They do not think that Right to Information is a fundamental right of citizens and cannot be denied without good grounds.  Maybe they should spend some time reading the RTI act.

http://www.deccanherald.com/content/58410/gulbarga-judge-rejects-rti-application.html

The information sought included index catalogues of files, a public authority is bound to maintain under Section 4 (1) (a) of the RTI Act, and suo motu declaration of office functioning required to be obliged under Section 4 (1) (b) of the RTI Act; copy of the notification/order appointing PIO and Assistant PIOs, and copy of the record retention schedule.

Though the information sought was specific and clear, the PIO in his letter dated
November 13, 2009 stated that the application for issue of copies of documents has been rejected by an order of the Principal District and Sessions Judge for want of full particulars.

PM Manmohan Singh will lose respect at this rate

Recent news of PM wanting to cut citizens’ rights under RTI act is highly deplorable.   This is the same PM who has reportedly vouched for aam-aadmi in his speeches, and at one instance chided Indian business houses on dangers of crony capitalism.  Well, now he has to answer who will benefit by following actions:

1. Chief justice of India will be outside purview of RTI act.  Isn’t it some kind of cronyism developing between Executive and Judiciary?

2. No frivolous queries will be allowed.  The courts in India have 3 crore pending cases.  No body checks how many are frivolous.  In elections, 100s of candidates can stand for an election seat.  Inspite of huge cost incurred due to so many candidates, no body condemns that some of the candidates are ‘frivolous’.  But when it comes to RTI, the frivolous ones must be disallowed.  And of course, it goes without saying, the information behind decision to decide what is frivolous will not be disclosed so that the bureaucrats are safe.  So it is some kind of crony bureaucratism.

http://ibnlive.in.com/news/pm-says-no-to-sonia-wants-rti-act-amended/111065-37.html?from=tn

New Delhi: Prime Minister Manmohan Singh and Congress President Sonia Gandhi are reportedly split over amending the Right to Information Act.

In a rare instance, the Prime Minister has said a firm no to Sonia's suggestions and has decided to go ahead with amendments in the RTI Act.

Singh has reportedly written a letter to Sonia saying that changes are needed in the RTI Act after the Congress President expressed her doubts and made it clear that she does not want it to be amended.

The proposed changes in RTI by the Prime Minister will keep the Chief Justice of India out of purview of the Act.

Some of the amendments proposed to the RTI Act are:

• Chief Justice of India would be outside the purview of the Act.

• Discussions on policy decisions cannot be made public.

• No frivolous queries would be allowed and necessary changes in the Act would have to be made.

The Congress President, who is also the Chairperson of the United Progressive Alliance, had written to the Prime Minister about two months ago explaining her why she does not want any amendment to the Act, which was a landmark legislation of UPA 1 and seen as her baby.

Her views on not amending the RTI have been endorsed by NGOs and the Left parties.

But with the Prime Minister himself stepping in and saying no to her, changes in the Act seem inevitable.

Blame judges for adjournments and 3 crore pending cases!

Justice S N Dhingra of Delhi High Court believes that it is both judges and lawyers who are responsible for culture of adjournment in courts. We will come to the part where we decide who is to get more blame between judges and lawyers, but first let’s read the news below:

http://timesofindia.indiatimes.com/city/delhi/HC-judge-lashes-out-against-culture-of-adjournments-/articleshow/5511075.cms

NEW DELHI: A Delhi high court judge has blamed his colleagues for the "culture of adjournment'' that often prolongs cases for years.

Rueing the "latitude shown by the high court'' to lawyers who plead for adjournments, justice S N Dhingra said: "It appears as if there is an understanding between the courts and advocates that come what may the orders of trial courts refusing adjournments shall be set aside on mercy pleas and one more opportunity shall be granted.''

Claiming that courts often grant adjournments on "frivolous grounds'', Dhingra said: "A separate breed of advocates has cropped up who are experts in pleading for adjournments and dragging cases. This culture has to be brought to an end,'' the HC noted, while upholding a order passed by a guardianship court in a child custody dispute between a couple. The court refused to adjourn the case when the woman's lawyer claimed that he had left the case files in his car which was stolen 11 days ago.

The last line shows the cute argument by the lawyer! If you think that a lawyer will not lie about his car being stolen, maybe you need an education in what lawyers in India can get away with. In BMW hit and run case by Nanda, the ‘well-respected’ defence lawyers who influenced a key witness and were caught in a sting operation were fined a mere Rs 2,000 by the bar council and were not allowed to take cases for 2 months. Long live bar councils! I am not saying that, lawyers are.

The HC agreed with the decision of the lower court to proceed with the hearing and close cross examination of witnesses, despite protests by the advocate of the child's mother. "Adjournments are sought in the name of strikes, elections, personal difficulties of the senior or briefing counsels or because two counsels agree to an adjournment...

Did you read the last part… two counsels agree to an adjournment… so now if you have a doubt how come your case drags on for so long, don’t just blame other party’s lawyer; it could well be your own lawyer is a willing party to this adjournment game at your expense.

This whole culture of adjournment is a major reasons why a case or a petition, which should be decided in two or three hearings, is disposed of in more than 100 hearings,'' the HC noted while dismissing the appeal filed by the child's mother against the lower court's order.

This is a damning indictment of judiciary and judges. On one hand, prime minister, law minister, and chief justice rue about 3 crore plus cases pending in courts; but if a case is dragged from 3 hearings to more than 100, even god in his next avatar cannot reclaim the judiciary from sinking down.

Since lawyers do their job in representing their clients, the majority of blame lies with judges in granting adjournments at the drop of a hat.

Justice Shylendra Kumar rues about corruption in judiciary

Justice Shylendra Kumar of Karnataka High court takes stock of the situation in country on 26th Jan, Republic Day on his personal blog:

http://sites.google.com/site/justdvskumar/republic-day-message

Interestingly, he is of the opinion that both Executive and Judiciary have failed people, but some flashes of hope are seen from Legislature.

Excerpt here:
A vocal and aggressive Executive Government is attempting to regulate and takeover Judiciary even by corrupting the Judiciary. An inept and corrupt Judiciary is playing second fiddle to the Executive. It is only the legislature albeit corrupt, rudderless and inefficient, has nevertheless on an occasion or two, has adhered to its assigned role, has occasionally flashed sparks of brilliance by competent performances, is holding out a ray of hope!

Comments:Let's hope the body and limbs also start to move in coordinated fashion if the brain is doing some things right.

Further...

Though all three organs of the State have miserably failed in playing their respective roles, the real hope and strength, is emanating from the goodness of the common man of the country, the right values the common man of the country has, a nascent, intrinsic perception of rights and wrongs, which is imbedded in the psyche of every citizen of this country, that sustains an optimist like me.

Comments: This is the real hope. If we, the people give power to ourselves, and act in a powerful way for benefit of nation, only then we can deserve to live in a just nation.

Further he says...

I am of the opinion that amongst the three organs of the State, Judiciary has to take the major share of the blame, as the Judiciary by not being alright and upright by itself, has failed to check and keep the other two organs of the State in control and in the right mode.

Comments: What is sad is that common person is scared of accessing judiciary, leave alone police. There is a saying that justice should not only be done, but it should also be seen to be done. Maybe it is right time for people in judiciary to rise to the occassion, and give the confidence to Indian public that they will uphold justice in its fullest sense, and not merely go through motions of legal procedures.

Thumbs up to Delhi HC: Supreme court credibility ... further down the slopes

The Delhi High Court on Tuesday reinforced its earlier verdict that the office of the Chief Justice of India (CJI) was within the purview of the Right to Information (RTI) Act.




http://www.deccanherald.com/content/46384/supreme-court-loses-rti-battle.html

Comments:What was a single judge order of Delhi HC has not got the stamp of approval of a 3 judge bench of Delhi HC.

Further,

The apex court registry is likely to challenge this judgment before the Supreme Court.
A three-judge bench comprising Chief Justice A P Shah and Justices Vikramjeet Sen and S Muralidhar said that the CJI cannot be said to have a fiduciary relationship (between a trustee and a beneficiary) with other judges.

Comments: Now the options of the Supreme Court are to appeal against this decision, and finally to get its back broken completely! Because even if they win somehow in appeal to Supreme Court, sooner or later a law or mechanism will be passed to break this nexus where asset declaration of judges to CJI are being held like they are a top-secret information. History will judge the decision to appeal to SC as a very absurd one at best.

Further,

According to the bench, judges of the superior courts should make public their assets as they were not “less accountable” than the judicial officers of the lower courts, who were bound by service rules to declare assets.

Comments: So if you are still in doubt if judges of lower courts are bound to do more disclosure, here is presented a quote from Justice Shylendra Kumar's article on RTI for judges' disclosure of assets (here):

In fact, it is a misnomer to think that the judges of the superior courts are not ready to disclose their assets. The judges of the High Courts are appointed after being drawn from the Bar or on promotion from the subordinate judiciary in the ratio of 2: 1 which means that for every promotee judge, there will be two judges appointed directly from the Bar. Judges promoted from the subordinate judiciary happen to be occupants of the post of district judge and every district Judge is required to declare his/her assets every year, as part of the conditions of service. The judges drawn from the Bar and appointed to the High Courts would all have disclosed their income for the previous five years. This is an essential requirement.

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 27^th 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.”

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-à-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

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.