Judiciary: India
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All India Judicial Service:rejected by High Courts
Feb 05 2015
TURF WAR - HCs reject proposal on All-India Judicial Service
The government’s proposal to form an All India Judicial Service for recruitment of judicial officers in the lower courts on the lines of civil services has been rejected by many of the high courts. At an advisory council meeting held by the law ministry recently, law minister Sadanand Gowda informed that “most of the high courts have not favoured the proposal”.
The law ministry had prepared a comprehensive proposal for the All India Judicial Service (AIJS) and the committee of secretaries approved the same in November 2012. Later, at the chief ministers and chief justices conference in April 2013, the higher judiciary sought more time for further deliberations.
The advisory council meeting was held on January 21 with the law minister on the chair. Those who attended included minister of state for home Kiren Rijiju, law commission chairman Justice A P Shah, the attorney general, chairman of the bar council and senior ministry officials.
Unless the high courts and states agree to the constitution of AIJS, the Centre cannot impose the judicial service on states. “The administrative control over the members of subordinate judiciary vests with the HC concerned,” a senior law ministry official said.
Also it is for the state governments to frame rules and regulations, in consultation with the high courts. Already most of the states have framed state judicial services rules governing service conditions of their judicial officers.
It had found favour with the Parliamentary standing committee which in its report in February last year had asked the government to fast track creation of AIJS without any further delay so that the judiciary gets the best talent available.
District judges, the selection of
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.
Fast-Track Courts
Bihar tops in justice delivery with 179 fast-track courts
TIMES NEWS NETWORK The Times of India Mar 04 2015
Bihar continues to operate the highest number of fast-track courts in the country , with 179 of them functional as of last month. Maharashtra, Madhya Pradesh, UP, Bengal, Andhra Pradesh and Gujarat are others with high number of such courts. The Centre plans to encourage setting up of at least 1,800 fast-track courts (FTCs) to deal with cases of heinous crimes, cases involving senior citizens, women, children, disabled and disputes involving land acquisition and property pending for more than five years.
Besides, the government has also proposed setting up 460 family courts in the next five years in districts with a population of one million or more, where these courts are not already present. The funding of these projects will come through the 14th Finance Commission awards.
Earlier, in 2000, the central government had allocated financial resources to the states for setting up fast-track courts when 1,734 FTCs were set up. The central grant was made available for a fixed time period of five years but was extended till 2011. Some of the states such as Bihar, Himachal and Maharashtra have continued FTCs with their own resources.
However, during a recent meeting of the advisory council of the National Mission for Justice Delivery and Legal Reforms, chaired by law minister Sadananda Gowda in January, an opinion was expressed against encouraging FTCs. A view was expressed that fast tracking certain categories of cases results in slow tracking other categories.Law commission chairman Justice A P Shah had suggested that a more holistic approach be adopted for pendency reduction.
After the Nirbhaya gangrape incident of December 2012 in Delhi, the law ministry had decided to provide funds up to Rs 80 crore per annum on a matching basis from states till March 2015.However, the Centre specified that this grant money will be used only for the purpose of meeting salaries of judges required for running these FTCs.
After the Delhi incident, states and chief justices had resolved to set up additional FTCs relating to offences against women, children differently abled persons and senior citizens and marginalized sections of society.
According to a status report of the law ministry , 212 FTCs have been set up so far for the purpose of fast tracking cases against women and children in 16 states.
'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
Shortages: of judges, courtrooms stifles justice delivery
Pradeep.Thakur@timesgroup.com New Delhi:
The Times of India Jul 30 2014
Justice delivery has been hamstrung under successive governments for want of resources to provide enough courtrooms to accommodate the existing sanctioned strength of judges in high courts and subordinate judiciary .
An assessment by the law ministry in 2011 on funds requirement for infrastructure development in the subordinate courts had pegged it at Rs 7,346 crore for a period between 2011 and 2016. Against this, only Rs 2,200 crore has been released till March 2014.
The issue of lack of funds for new courts was recently raised by Chief Justice of India R M Lodha who sought additional allocation for the judiciary to fill up vacancies. There are at least 270 vacancies of judges across 24 high courts in the country. Situation is worse in the subordinate judiciary where there are more than 4,300 vacancies. The Narendra Modi government too has allocated a paltry Rs 1,100 crore in 201415 against the government's total plan expenditure of Rs 5.75 lakh crore. Out of the plan outlay of department of justice, only Rs 94 crore has been earmarked for justice delivery and Rs 936 crore for infrastructure development.
A review of existing infrastructure at some of the high courts revealed that even the projected new courtrooms in the next few years were not sufficient to accommodate the existing sanctioned strength in many of them.
Special courts: funds not utilised
Mar 24 2015
80% of funds for special courts remain unutilized
Law Minister blames bar associations
The government has said that more than 80% of funds allocated in the last five years for setting up of special courts and training of judicial officers have remained unutilized as a result of resistance faced from bar associations in states. Law minister Sadananda Gowda, responding to a Parliament question last week, had cited non-availability of judges and geographical constraints as some of the other reasons for not meeting the target of spending the Rs 5,000 crore funds allocated as per the 13th finance commission grants.
Only Rs 970 crore, or less than 20% of the allocation, was spent for the purpose for which the grants were allocated for the period 2010-15.
The minister's response is at odds with the remarks made by the higher judiciary which has often expressed concern about non-availability of adequate funds. In his statement, Gowda said Rs 2,500 crore was sanc tioned for constituting special morning and evening courts. However, just Rs 234 crore out of that was utilized even though the government had released Rs 835 crore till February 2015.
The government had allocated Rs 700 crore for setting up of Lok Adalats and legal aid and towards training of judicial officers and public pros ecutors. However, under these heads, the total utilization from states so far has been not more than Rs 222 crore.
The low utilization of funds over the years has resulted in pendency of cases remaining high in courts across the country .
Gowda said utilization of funds for morning, evening and shift courts has been very low also due to non-availability of retired judicial officers for these courts. Even for the regular courts, there are huge vacancies.
Against a sanctioned strength of 984 judges in 24 HCs, there are only 636 judges at present. Almost 348 posts are vacant-highest being in the Allahabad HC which has 75 vacancies against a sanctioned strength of 160 judges.
The lack of manpower has resulted in large pendency. At last count, the pendency of cases in all courts was as high as 3.2 crore.
Trial courts: Two-shift 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.”
Recusal of judges
Feb 23, 2015
Seeking recusal of judges now a trend in high-profile cases
Dhananjay Mahapatra
Stepping into the Supreme Court premises for the first time as a student of law was an exhilarating experience. It literally gave goosebumps. We had read landmark judgments given by this great institution which kept ‘rule of law’ and ‘equality’ secure in the stormiest periods. Covering the Supreme Court on a day-to-day basis for the last two decades has been no less exhilarating. The court always gives a distinct impression that it strictly adheres, or as far as possible, to the maxim: “be you ever so high, the law is above you”.
These immortal words by 17th century English churchman and historian Thomas Fuller read, “Be ye ever so high, still the law is above you.” Celebrated English judge Lord Alfred Thompson Denning, in the case Goriet vs Union of Postal Workers, modified the maxim a bit in 1977 and wrote, “Be you ever so high, the law is above you.” In the last 38 years, Supreme Court judges have used it in umpteen number of cases where the high and mighty attempted to dodge the long arm of the law by hiring top legal brains.
There have been several examples in the last two decades where the court remained unfazed by the tactics of litigants and accused to overawe the court and seek recusal of judges by alleging bias against them. The intention was to see an “uncomfortable” judge recuse from hearing their case.
The Sohrabuddin Sheikh fake encounter case is one such. It was being heard by a bench headed by Justice Aftab Alam. Then Gujarat minister Amit Shah was granted bail but asked to stay out of the state to allow a fair probe. Later on, there were pleas for cancellation of Shah's bail. His counsel Ram Jethmalani argued “bias“ on Justice Alam's part. It was unprecedented to find a counsel as famous, respected and knowl edgeable as Jethmalani telling a telling a judge bluntly that it would be better if he recused from the hearing.
It embarrassed the judge.But Justice Alam kept his cool and adhered to the “you be ever so high, the law is above you“ principle and decided the pleas.
Sahara chief Subrata Roy was sent to jail on March 4 last year for continuously violating SC orders directing two group companies to refund Rs 24,000 crore with interest to three crore investors through market regulator Sebi. True, the court found that the mon ey was raised through onetime fully convertible debentures in a suspicious manner. But there was hardly any complaint from investors against the Sahara group companies.
Roy had hired top legal brains. One of them, Rajeev Dhavan, argued bias against a bench of Justices S Radhakrishnan and J S Khehar and used Jethmalani's `blunt' method to seek their recusal from the case.
Justice Khehar demolished the arguments of bias and said it was a handle used by senior advocates to browbeat the judges. The bench rendered a judgment, but the ‘bias’ argument left it very anguished. The judges knew it was a ‘bench-hunting’ tactic.
Yet, they decided to recuse from the case.
In both these cases, bias was attributed directly to the judges in open court. Yet, the CJIs felt that rule of law did not warrant shifting the case to another bench.
The trend was somewhat clouded by the recent decision of the CJI who changed the bench that first heard the anticipatory bail plea of social activist Teesta Setalvad and her husband Javed Anand, who were accused of misusing donations received for welfare of riot victims.
A bench of Justices S J Mukhopadhaya and N V Ramana heard the pleas for close to half-an-hour. It did ask some uncomfortable questions but allowed Setalvad’s counsel to file additional documents.
The bench stayed her arrest for six days and promised that there would be justice.
The uncomfortable questions appeared to have unnerved advocates who were present in large numbers in the court room to express solidarity with the human rights activist. Immediately after the case was adjourned, a focused campaign was unleashed.
It portrayed an apprehension that the judges could possibly be biased against Setalvad because PM Narendra Modi had attended the wedding of their children. And who does not know the bitter tussle between Setalvad and the then Gujarat government headed by Modi.
Extending the same rule, would the campaign be not termed biased? Were the advocates behind the campaign not very friendly with Setalvad? Well, no one can dare ask such questions to human rights activists.
A new bench of Justices Dipak Misra and Adarsh Goel further extended the stay on the couple’s arrest and promised them anticipatory bail.
Given the nature of the case against Setalvad, the decision is correct. But this could also have been the decision of the bench of Justices Mukhopadhaya and Ramana.
The manner in which the bench was changed, just because of a few uncomfortable questions, reminded us of the SC’s golden words in S P Gupta case (AIR 1982 SC 149), “Judges should be stern stuff and tough fire, unbending before power, economic or political, and they must uphold the core principle of rule of law which says ‘be you ever so high, the law is above you’.”
Retired SC judges' advice
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.
Judicial oddicers' immunity from arrest
From the archives of “The Times of India” :2008
Dhananjay Mahapatra
Judicial officers not immune to arrest
Some years ago, then Chief Justice of India S P Bharucha had said that “80% of judicial officers are honest”. It had invited an immediate “I told you so” reaction from people, abreast with the state of affairs in lower judiciary, who firmed up their view that 20% were corrupt.
Past controversies involving former judges like K Veeraswami, V Ramaswami and Shamit Mukherjee may be rare in judicial history but it would be naive to assume that the cancer of corruption that has weakened the sinews of every sphere of life and governance has not mysteriously touched the judiciary.
Justice B N Agrawal, the senior-most judge of the Supreme Court, remarked during hearing of the Rs 23 crore PF scam that “judges have not descended from heaven but have come from the same society which produces corrupt politicians and corrupt babus”.
Justice Agrawal, held in high esteem by the legal fraternity, later recused himself from hearing the matter being unable to stomach provocative arguments advanced by former law minister and senior advocate Shanti Bhushan and his advocate son Prashant Bhushan, who wanted registration of FIRs against judicial officers accused of committing a crime.
The spat was unnecessary, more so because a three-judge SC Bench, nearly two decades back in the Delhi Judicial Service Association vs State of Gujarat [1991 SCC (4) 406] case, had unanimously held that a judicial officer facing criminal charges could most certainly be probed and even arrested.
The case related to police excesses on a chief judicial magistrate, who had angered police by stricturing them every now and then for not cooperating with the courts for effecting summons, warrants and notices. The Nadiad police had brought the CJM to the police station, tied him with ropes, forced him to drink liquor, handcuffed him and called press photographers to take snaps of an inebriated CJM, that was front paged in many local dailies. An independent inquiry followed and the policemen were taken to task by the Supreme Court.
The assault on an honest “no nonsense” judicial officer made the SC wake up to the urgent need to protect lower court judges, who could otherwise face false cases the moment they rubbed the police and administration the wrong way. The court, except for giving some allowances to protect the independence of judiciary, made no attempt to distinguish a judicial officer from a common man, when both of them were on the wrong side of the law.
“No person, whatever his rank or designation may be, is above law and he must face the penal consequences of infraction of criminal law. A magistrate, judge or any other judicial officer is liable to criminal prosecution for an offence like any other citizen,” it said.
Having said this, the apex court did not feel comfortable in making judges, who are empowered to scrutinise the investigations by police in various cases, whipping boys at the hands of the law enforcers.
To find a balance between independence of judiciary and probing a judge accused of breaching law, it laid down comprehensive guidelines. The main points were:
A judicial officer can be arrested for an offence under intimation to the district judge or the high court.
If immediate arrest of a judicial officer of the subordinate judiciary is necessary, a technical or formal arrest may be effected. Arrest should be immediately communicated to the district judge and Chief Justice of high court
Arrested judicial officer will not be taken to police station without prior directions from the district judge
There should be no handcuffing of the arrested judicial officer. But if he turns violent, and there is a danger to life and limb, he can be handcuffed with intimation to district judge as well as to the CJ of the HC concerned
If the handcuffing and arrest are found to be unjustified, the police officers concerned will be suitably penalised by the HC concerned
These guidelines were again discussed by a five-judge constitution Bench, which on August 14, 2002, unanimously approved them saying these were “sufficient to protect the independence of judicial officers”.
As the law laid down by the apex court does not bar the police from investigating judges of the subordinate judiciary, the sound and fury shown by the eminent and experienced lawyers before a Bench headed by Justice Agrawal on Thursday was unnecessary, to say the least. Wish, they had bothered to present their arguments based on the 1991 judgment!
It is another matter that two months prior to the laying down of guidelines, a five-judge constitution Bench of the Supreme Court in K Veeraswami case [1991 SCC (3) 655] had ruled that though the judges of HCs and the SC were public servants, they could not be proceeded against unless the President accorded sanction after a mandatory consultation with the CJI.
Rift with government
The Times of India, Jun 01 2015
A subramani
33% of Madras HC judicial seats lying empty
It is a constitutional vacuum few are interested in resolving at the earliest, except, perhaps, the legal fraternity . At least 125 names, shortlisted and recommended by collegiums of various high courts in the country , for appointment as judges, are stuck even as the Centre is involved in a bitter legal battle with the higher judiciary over the National Judicial Appointments Commission's constitutionality, composition and powers. As on date, no fresh appointments or even transfers of judges in higher judiciary are possible since the collegium system has been disbanded and the proposed NJAC is nowhere near reality . “For instance, onethird of the 60-member Madras high court is vacant and there is need for a few transfers as well. But though the court had forwarded nine names for appointment as judges more than four months ago, there has been no whisper from the Centre or SC,“ a top jurist told TOI.
The vacancy position in the HC plummeted below the one-third mark, with the retirement of senior judge Justice V Dhanapalan. In a fortnight another judge -Jus tice R S Ramanathan is set to retire. So, by mid-June, the court will have only 38 judges.Of them, Justice S Palanivelu, who has been ailing for more than a year now, is in no position to discharge his judicial work in a normal manner. Justice K B K Vasuki will retire in September, bringing the sitting strength to 37 by year-end.
“No exemptions or special approach to Madras high court is possible, as more than 100 names recommended for appointment as high court judges too are stuck,“ the jurist said.
Thanks to the revised norms wherein only the main cases are taken into account for both disposals and arrears, the Madras HC had 2.63 lakh pending cases on December 31, 2014.
