On Judicial Reforms: Ethics or Independence?

Thinking Beyond

Anoop Swarup

Anoop Swarup
Anoop Swarup

In a surprise move, the Supreme Court in a decision of four to one on a five Judge Constitution Bench headed by Justice J S Khehar has now struck down Modi government’s move to take away the power of appointing judges from judiciary and vesting it on a more transparent body. The fact though remains that the apex court has promised to usher in reforms to make the Collegium system more transparent and accountable. But indeed the move opens up a Pandora’s Box as it puts the Higher Judiciary in a direct confrontation with the government that may bring in a second law to take over the power of appointing Judges. It was alleged that the proposed Bill could have destroyed judicial independence, but on the other hand the fact remains that in no country judges are appointed by judges themselves!

Let us re-examine the call for judicial reforms in its entirety as the start point for country’s reformation and renewal process. It may not at all be a surprise to many that in India we have the unfortunate distinction that 66% of prison population is of undertrails, more than 28% of the 2 crore cases pending in subordinate courts are over five year old, of the total pendency record 21 lakh cases across the country are more than ten years old and 15 lakh of these are criminal cases where many innocents may be behind bars. Though the Supreme Court monitored e-Courts project has brought several changes in the justice delivery system in the 15000 courts in our country through computerization and connectivity to the National Judicial Data Grid (NJDG) open to public. Yet, we do not have the performance of the 24 High Courts on the NJDG; it remains dismal to say the least. The disposal rate of cases has largely been in the negative domain as the total pendency of cases in all courts was 3.07 crore in 2014.

Do we have to emphasize anymore that we need large-scale and urgent judicial reforms in our country that have to be politically motivated. Reforms in the past have included codification and ratios on common law practices and movement from an inquisitorial system to adversarial system with strong judicial independence but the independence of the prosecution remains a moot issue where systemic reforms are the need of the day. Purportedly justice is done when the most effective adversary is able to establish to the judge that his case is the correct one. I may recount what Peter Murphy in his Practical Guide to Evidence had to say in the words of a frustrated English judge in an adversarial matter when after the barrister produced conflicting accounts ‘Am I never to hear the truth?’ ‘No, my Lord, merely the evidence’, replied the counsel. Not far from the truth as such in India, as in most cases. Let understand that in both adversarial and inquisitorial systems the powers of the State are separated between a prosecutor and the judge and allow the defendant the right to counsel. In criminal trials as we see in the matters where CBI is involved was initially not accepted in some adversarial systems. It was believed that the facts should speak for themselves, and that lawyers would just blur the matters. As a consequence, it was only in 1836 that England gave suspects of felonies the formal right to have legal counsel. Indeed it was Baron Erskine who helped usher in the adversarial court system used in most common law countries such as in India today.

On the appointment of Judges, Japan’s process for selecting Judges is longer and more stringent than the process in United States as Assistant judges are appointed from those who have completed their training at the “Legal Training and Research Institute” in Wako City. Once appointed, assistant judges still may not qualify to sit alone until they have served for five years, and have been appointed. Judges do require at least ten years of experience in practical affairs, public prosecutor, or practicing attorney. In Mexican Supreme Court Justices are appointed by the President, and then are approved by the Senate to serve for a life term whereas in United States the Justices are appointed by the President and approved by the Senate. As in Mexico, justices serve for a life term or until retirement. The Supreme Court of the United States is located in “Washington D.C”. The Federal court system consists of 94 federal judicial districts. The 94 districts are then divided into twelve regional circuits. The United States consist of five different types of courts subordinate to the Supreme Court. These are the U.S bankruptcy Courts, U.S Courts of Appeal for the federal circuit, U.S Court of International Trade, U.S Courts of Appeal, and U.S District Courts.

Let us have an inside view of the Collegium in India that has evolved as a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place in the Indian Constitution. Under Article 124 which deals with the appointment of Supreme Court judges, the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary and the Chief Justice is to be consulted in all appointments, except his or her own. Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the Chief Justice of India and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.

The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”. The S P Gupta case (December 30, 1981) is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years. Let us also understand as to how the primacy of the Judiciary got evolved. On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case — the “Second Judges Case”. This was what ushered in the Collegium system. The majority verdict written by Justice J S Verma said “justiciability” and “primacy” required that the Chief Justice should have the “primal” role in such appointments. It overturned the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.”

Interestingly enough, Justice Verma’s majority judgment saw dissent within the bench itself on the individual role of the CJI. In a total of five judgments delivered in the Second Judges case and for the next five years, there was confusion on the roles of the CJI and the two judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions without consulting two colleagues. Besides, the President became only an approver. To overcome the confusion in 1998, President K R Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really implied in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The issue, led the Supreme Court to lay down nine guidelines for the functioning of the Coram for appointments/transfers. and a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, strongly reinforced the “primacy” of the highest judiciary over the executive and came to be known as “Third Judges Case”. The pros and cons of the Collegium are critical as the burden of appointing and transferring judges without a separate mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees often would lead to a closed-door affair without a formal and transparent system apart from the limitation of the Collegium’s choice to only the senior judges from the High Court for ap-pointments to the Supreme Court. Thus the Law Commission in its 214th Report on ‘Proposal for Reconsideration of Judges cases I, II and III’ recommended two solutions, firstly to seek a reconsideration of the three judgments before the Supreme Court. and secondly for a law to restore the primacy of the Chief Justice of India and the power of the executive to make appointments.

As a much welcome alternative to the Collegium and unfortunately so the setting up of a National Judicial Commission (NJC) was still a proposal until struck down now. The Constitution (98th Amendment) Bill in 2003 provided for the constitution of an NJC to be chaired by the CJI and with two of the senior-most judges of the Supreme Court as its members. The Union Law Minister would be a member along with an eminent citizen to be nominated by the President in consultation with the Prime Minister. The Commission would decide the appointment and transfer of judges and probe cases of misconduct by judges, including those from the highest judiciary. Let us also examine Supreme Court guidelines on appointments that provided, that the term “consultation” with the Chief Justice of India in Articles 124 (2), 217(1) and 222 (1) requiring consultation with a plurality of judges in the formation of the opinion of the CJI; that the CJI can only make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice and as far as the High Courts are concerned, the recommendation must be made in consultation with the two senior-most judges of the Supreme Court.

Strangely cogent reasons do not have to be recorded as justification for a departure from the order of seniority in respect of each senior judge who has been passed over, instead what was proposed to be recorded is the “positive reason for the recommendation”. Though the views of the judges consulted should be in writing and should be conveyed to the Government of India by the CJI along with his views to the extent set out in the body of this opinion and the CJI is obliged to comply with the norms and the requirement of the consultation process in making his recommendations, the recommendations by the CJI are not binding upon the government. The fact remains that the CJI is not entitled to act solely in his individual capacity, without consultation with other judges of the Supreme Court, in respect of materials and information conveyed by the Government for non-appointment of a judge recommended for appointment but the CJI can consult any of his colleagues on the appointment of a HC judge to the Supreme Court or transfer of a puisne judge.

There is a lot of firework in store as the news headlines scream but the common man may perhaps has more to wait for meaningful reforms that may bring down the absolute numbers and the undertrails languishing in jails to quick justice so that this national shame may end soon. As one of the Judges of Higher Judiciary recently shared with me: of course ‘justice delayed is justice denied’ but and indeed ‘justice hurried is also justice buried ’. Very true, but how fast we achieve both and in equal measure is the real question. Here, lies the true test of our democracy and our success for both the government and the Judiciary and more than anyone else for the ‘common man’.

Housing for All by 2022: MP Government’s bonanza for urban poor

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Housing for all2Bhopal: The Madhya Pradesh Cabinet, presided by Chief Minister Shivraj Singh Chouhan, today took the decision to give a grant of Rs. 2 lakh each to the urban poor who live in slums. This would be in addition to the grant of Rs. 1.5 lakh available to them under the Prime Minister’s Housing scheme.

For the benefit of the poor not residing in urban slums, the State Cabinet has taken the decision to offer a grant a Rs. 1 lakh besides Rs. 1.5 lakh available to them as central grant for constructing their own dwelling units. This is to achieve the target of “Housing for All by 2022”.

“Housing for All by 2022” – National Mission for Urban Housing

The Union Cabinet chaired by the Prime Ministe Narendra Modi, on June 17 this year had given its approval for launch of “Housing for All by 2022” aimed for urban areas with following components/options to States/Union Territories and cities:

a) Slum rehabilitation of Slum Dwellers with participation of private developers using land as a resource;

b) Promotion of affordable housing for weaker section through credit linked subsidy;

c) Affordable housing in partnership with Public & Private sectors and

d) Subsidy for beneficiary-led individual house construction or enhancement.

Central grant of Rs. one lakh per house, on an average, will be available under the slum rehabilitation programme. A State Government would have flexibility in deploying this slum rehabilitation grant to any slum rehabilitation project taken for development using land as a resource for providing houses to slum dwellers. Under the Credit Linked Interest Subsidy component, interest subsidy of 6.5 percent on housing loans availed upto a tenure of 15 years will be provided to EWS/LIG categories, wherein the subsidy pay-out on NPV basis would be about Rs.2.3 lakh per house for both the categories. Central assistance at the rate of Rs.1.5 lakh per house for EWS category will be provided under the Affordable Housing in Partnership and Beneficiary-led individual house construction or enhancement. State Government or their para statals like Housing Boards can take up project of affordable housing to avail the Central Government grant.

The scheme will be implemented as a Centrally Sponsored Scheme except the credit linked subsidy component, which will be implemented as a Central Sector Scheme. The Mission also prescribes certain mandatory reforms for easing up the urban land market for housing, to make adequate urban land available for affordable housing. Houses constructed under the mission would be allotted in the name of the female head of the households or in the joint name of the male head of the household and his wife.

The scheme will cover the entire urban area consisting of 4041 statutory towns with initial focus on 500 Class I cities and it will be implemented in three phases as follows, viz. Phase-I (April 2015 – March 2017) to cover 100 Cities to be selected from States/UTs as per their willingness; Phase – II (April 2017 – March 2019) to cover additional 200 Cities and Phase-III (April 2019 – March 2022) to cover all other remaining Cities.

 

Australia approves Adani’s Carmichael coal project

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Australia coal projectMelbourne, Australia : Australian government on Monday approved Indian businessman Gautam Adani’s firm – Adani Mining (P) Ltd and gave a go ahead for its A$16.5 billion ($15.5 billion) Carmichael coal and rail project in Queensland, subject to strict conditions to protect groundwater.The Carmichael mine, which is poised to become Australia’s largest coal mine at 60 million tonnes a year, had been in the centre of controversies and had sparked protests from green groups and marine tour operators, who expressed their concerns and worries about carbon pollution and export of the coal from a port near the Great Barrier Reef.

Despite the adverse conditions and challenges regarding environmental issues, Adani and compatriot GVK, which is working on a rival Galilee Basin coal project with Australia’s richest woman, Gina Rinehart, are still planning to build large new mines, rail lines and a port terminal. Adani expressed his satisfaction over the deal and said, ‘We welcome the Minister’s approval of the Carmichael Mine and Rail project, which takes us another step closer to delivering our multi–billion dollar mine, rail and port development.’

The environmental conditions imposed on Adani’s project were revolving around concerns raised by landowners who were worried that coal projects in the area would affect groundwater supply from the Great Artesian Basin.To solve these issues, the Australian government coded strict norms and added the parameters while approving the Carmichael coal project deal. ‘The strict conditions will ensure the protection of the environment as a paramount concern,’ Australia’s environment minister, Greg Hunt, said in a statement.

Greenpeace lined outs its apprehensions regarding this project and said the conditions imposed on the project would do little to protect the environment from the bigger impact of shipping through the World Heritage-listed reef and burning the huge amounts of coal the mine will produce.’A massive coal mine that will damage the Great Barrier Reef and do damage to the local environment and fuel climate change is not protecting the environment,’ said Ben Pearson, Australia Pacific program director for Greenpeace.

The Carmichael coal lode is in the outback Galilee Basin, where massive reserves of coal remain untapped due to the hefty costs of building ports and rail lines to the east coast nearly 500 kilometers (310 miles) away. Stumbling blocks have built up for this project have increased as coal prices have sunk to near five-year lows. Additionally, global pressure to cut coal to curb carbon emissions has stoked uncertainty over long-term demand, making it tough to raise funds for projects.

Bihar polls – 2nd phase voting begins amidst tight security

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bihar polls 2nd phasePatna : Bihar electorate began its vote-cast from early morning hours of Friday today, as the assembly elections execute their second phase of polling, bring Bihar residents to the voting booths, giving them the power of exercising their voting rights and helping in sealing the fate of upcoming government in Bihar state.

The bidding has begun for 32 constituencies spread across six Maoist prone districts of Bihar, from where 456 candidates have filed in their nominations and are poised to test electoral waters in the second phase today. The battle for Bihar entered its round two today, with around 86 lakh voters set to decide the fate of contestants aspiring to take a legislative seat in Bihar assembly.

Voting has begun in 9,119 polling stations covering the districts of Kaimur, Rohtas, Arwal, Jehanabad, Aurangabad and Gaya. Time schedule for voting ranges between 7 am to 5 pm, and has been staggered to terminate as early as 3 pm in some districts, whereas others would continue polling till 5 pm closing time.

The day began with Prime Minister Narendra Modi taking to twitter and urging the residents of Bihar to cast their votes and exercise their electoral rights. The Election Commission has begun its survellience and tightened security as the areas going to poll today are heavily maoist-hit regions where security plays a big role in extending support to the voters. Voters have mustered courage to come out and lodge their votecast and women, senior citizens and youth are observed participating in huge numbers.The second phase voting poses a great challenge for the security personnel as the six districts are heavily affected by Maoist movement.

In view of the security concerns, a total of 993 companies of Central Para Military forces and state police are deployed to ensure peaceful voting. As many as 334 companies would be in service in Gaya, 201 in Rohtas and 193 in Aurangabad.

The first phase saw an estimated 57% of electorate cast their votes on October 12. The present Bihar polls has presented a two-sided contest where the BJP-led NDA is up against a so-called grand alliance of the Janata Dal (United), Rashtriya Janata Dal and the Congress.

The most-talked about seat of this second phase is the one from where a Mahadalit leader is bidding for his seat. While contests on all the seats is intense, the battle at Imamganj (reserved SC seat) would be closely watched where former chief minister Jitan Ram Manjhi of Hindustani Awam Morcha (HAM) is locked in a straight contest with the Speaker of the outgoing assembly, Uday Narain Chaudhary of JD-U. Chaudhary is a five-term MLA from the seat. Not taking any chances of uncertainity, Manjhi is also contesting from Makhdumpur seat in Jehanabad.