Revision as of 12:53, 8 February 2014

Advice of retired SC judges

From the archives of The Times of India 2010

Can retired SC judges’ advice be used in courts?

Manoj Mitta | TNN

New Delhi: Opening a new front in the battle for judicial accountability, the Delhi HC has directed the government to take a stand under oath on whether retired Supreme Court judges could give advice to litigants and whether they could also take up arbitration work while they are holding official positions.

A bench comprising acting Chief Justice Madan Lokur and Justice Mukta Gupta asked the Union law ministry on March 10 to file an affidavit on a PIL filed by Delhi-based NGO, Common Cause, alleging that former SC judges were violating the Constitution ‘‘in letter and spirit’’ by tendering legal opinions, which were being produced in various forums of adjudication to influence judgment.

This matter was first taken up last month by the then chief justice of HC, A P Shah, who had just before his retirement asked the government to respond to the PIL. In the subsequent hearing, Justice Lokur came up with the direction for the affidavit as the government had failed to disclose its stand even orally.

Arguing on behalf of Common Cause, advocate Prashant Bhushan said that the lucrative chamber practice among retired SC judges of giving legal opinions was contrary to Article 124(7), which forbids them to ‘‘plead or act in any court or before any authority within the territory of India’’.

In a narrow and self-serving interpretation, former SC judges have construed the expression ‘‘plead or act’’, figuring in Article 124(7), as a bar only on their appearance in courts. The PIL has therefore requested Delhi HC to declare that the act of giving a written advice to be tendered in a court of law also ‘‘comes within the mischief of Article 124(7)’’.

The PIL has also decried the widespread practice among retired judges, both from the SC and the other high courts, to take up arbitration assignments from litigants despite holding constitutional or statutory posts as chairpersons or members of various commissions or tribunals. Though arbitration is encouraged as an alternative dispute resolution (ADR) to expedite high-stake commercial cases, Common Cause pointed out the danger of allowing such private assignments to be given to judges who had already been entrusted with post-retirement tasks of public importance.

Details of some of the payments made to retired Supreme Court judges were obtained by Common Cause from public sector enterprises, which come under the purview of RTI. Former CJI, Justice R C Lahoti, received Rs 3,25,000 from National Thermal Power Corporation Ltd for a legal opinion in 2006-07. He also received Rs 3,25,000 from Rashtriya Ispat Nigam Ltd for a legal opinion during the same period.

In response to an RTI query, the law ministry has stated that there is no written policy in respect of allowing retired SC and HC judges to take up arbitration work while heading a Commission of Inquiry constituted by the Union government and that there are no conditions attached as such to the grant of such permission.

The selection of district judges

From the archives of The Times of India 2010

Dist judges’ merit quota down 15%

Most Posts To Be Filled On Seniority

Dhananjay Mahapatra | TNN

New Delhi: The merit-based selection window to fill posts of district judges, who are key to the functioning and efficiency of the lower judiciary, will shrink by a huge 15% margin from 2011, the Supreme Court ordered on Tuesday. The large number of vacancies in the posts of district judges, who head the functioning of subordinate courts in the concerned district subordinate judiciary, weighed on the mind of the apex court and it ordered that the merit quota be reduced from 25% to 10% from January 1, 2011.

In 2002, the SC had ordered that of the total vacancies in district judges posts, 50% would be filled by senioritycum-merit from among the senior civil judges while another 25% would be filled by a limited departmental competitive examination to fasttrack promotion for the meritorious among senior civil judges. The rest 25% were filled through direct recruitment from the Bar.

But, the large number of vacancies — in some states more than 50 accumulated over the years under the 25% competition examination quota — made a Bench comprising Chief Justice K G Balakrishnan and Justices Deepak Verma and B S Chauhan to wear their thinking caps. On one hand, amicus curiae and senior advocate Vijay Hansaria reeled out statistics about the large number of vacancies in the posts of district judges and the mounting pendency of cases, while on the other major high courts — Bombay, Gujarat, Madhya Pradesh, Rajasthan and Orissa — opposed any reduction in the 25% merit-quota in recruitment.

Even those states where the HCs were opposed to reduction in the merit quota, there were a large number of vacancies in district judges posts. However, the court did not interfere with the ongoing process for selection of district judges under the 25% quota. But, what it ordered was that from January 2011, the quota would be reduced from 25% to 10% and if still posts remained vacant, they would be filled through regular promotions.

This means, the quota for selecting district judges through regular promotion would now swell from 50% to 65% of the total vacancy.

Two-shift trial court system

From the archives of The Times of India 2010

SC: Two-shift trial court system Two-shift a failure, won’t cut pendency

Dhananjay Mahapatra | TNN

New Delhi: Four years after hitting upon the simple yet effective idea of operating trial courts in two shifts to tackle the 3 crore pendency in subordinate judiciary, the Supreme Court on Tuesday appeared sceptical about the experiment. A bench comprising CJI K G Balakrishnan and Justices Deepak Verma and B S Chauhan said the idea was implemented to dispose of petty cases and not to hold regular trials during the morning and evening shifts.

“It will be a little too much to ask the trial judge to come in the morning and hear cases till late in the evening,” the bench said and suggested that the only way out was to increase the number of judges, whose strength at present was woefully inadequate to tackle the backlog. This stand assumes significance as PM Manmohan Singh had said on Saturday that the backlog and delay in disposal of cases had diminished the inherent strength of the judiciary.

Amicus curiae C S Vaidyanathan agreed with the bench and said, “An amount of Rs 2,500 crore is being provided to facilitate setting up of morning and evening courts in all the 14,825 district and subordinate courts in the country. This is an impractical and unfeasible proposal. Only petty criminal or compoundable cases were intended to be disposed of in such morning/ evening courts.”

'Lower' judiciary

From the archives of The Times of India 2010

Crisis of merit in lower judiciary

Not Enough Qualifying In Competitive Test For District Judge Posts, SC Told

Dhananjay Mahapatra | TNN

New Delhi: Judiciary faces a crisis of merit at a crucial layer as majority of the states are finding it difficult to fill 25% of district judge posts through a limited departmental examination that was devised to give talent a speedy promotion route.

This became clear before the Supreme Court on Tuesday as senior advocate Vijay Hansaria as amicus curiae pointed to the large number of vacancies in district judge posts, which is the highest level in the lower judiciary responsible for fighting the huge pendency of nearly 2.6 crore cases.

The large number of posts falling under the cadre of Higher Judicial Service was mainly vacant due to failure of existing judicial officers to clear the tough departmental competitive test. The situation is so bad that in Tripura, eight posts were advertised under the speedy promotional route but only two candidates applied, Hansaria said.

Taking up an application filed by Rajasthan Judicial Service Officers’ Association through counsel A D N Rao, a bench comprising Chief Justice K G Balakrishnan and Justices Deepak Verma and B S Chauhan said this was the situation in almost all states.

Rao gave a chart of the vacancies under 25% quota for speedy promotion through competitive examination. It said West Bengal had 50 vacancies, Uttar Pradesh 24, Maharashtra 42 and Orissa 12. The apex court had noticed on January 13 that in Bihar, though 16 posts were available, the HC could fill only two.

The bench issued notice to high courts for their response to the proposal — fill the existing vacancies through promotion based on seniority and reduce the competitive examination quota from 25% to 5%.

At present, 50% of posts of district judge are filled through promotion, 25% through direct recruitment from lawyers and 25% through limited departmental examination. Though the bench felt 25% posts through departmental examination could be filled through an all-India competitive examination, it veered around to the idea of reducing the quota.

The HCs have been asked to send their responses to the apex court before April 20, when the matter will be taken up for hearing afresh.

LOWERING THE BAR?

States finding it difficult to fill 25% of district judge posts through limited examination meant to give talent a speedy promotion route Bengal had 50 vacancies, UP 24, Maharashtra 42 and Orissa 12 SC bench issued notice to HCs for their response to proposal to fill existing vacancies through promotion based on seniority and reduce competitive exam quota from 25% to 5% At present, 50% district judge posts filled through promotion, 25% through direct recruitment & 25% through exam