Jump to content
News Ticker
  • NPAs under PM Modi's Mudra scheme jumped 126% in FY19
  • shows RTI
  • RTI query reveals banking frauds of ₹ 2.05 Trillion reported in the last 11 years
  • 509 per cent rise in cases under child labour law: Study
  • The Central Information Commission has allowed disclosure of file notings on the mercy petition of a rape and murder convict, rejecting the government's contention that the records cannot be disclosed as these are privileged documents under Article 74(2) of the Constitution.
  • Electoral bonds worth over ₹5,800 crore were bought by donors to fund political parties between March 1, 2018 and May 10, 2019, a Right to Information reply has said.
  • Don't pay 500/- for answer sheet now- Supreme Court says if Answer sheet is asked under RTI, RTI Fees will be governed
sidmis

RTI Act does not apply to my office: CJI

Recommended Posts

Shrawan

Kindly resist from making remarks on individuals, I have moderated most of posts here made by members expressing personal remarks.

 

As this thread carries important issue, I am letting it continue.

 

Thank You!

Share this post


Link to post
Share on other sites
colnrkurup

Here the question is beyond the RTI. No one can challenge the authority of the Constitution, powers of the law making agency and democratic process as such. I wish the President of India could say what our Hon'ble Speaker has said : " EVERYTHING IS UNDER THE CONSITUTION AND THE ENACTMENTS MADE UNDER IT"

Share this post


Link to post
Share on other sites
karira

Front Page Editorial in telegraphindia.com on 25 April 2008:

The Telegraph - Calcutta (Kolkata) | Opinion | none exempt

NONE EXEMPT

 

The fear of transparency is so embedded in the Indian system of administration that the Right to Information Act is often seen as a devilish instrument. A commitment to transparency would have automatically led to a more welcoming attitude towards the RTI Act. Often some ruse or excuse is found to keep certain offices and institutions outside the purview of the said act. It was thus important that the chief information commissioner, Wajahat Habibullah, reiterated the point — even though it seems somewhat self-evident to most people — that no constitutional authority is exempt from the RTI Act. The reiteration came in the context of a comment reportedly made by the chief justice, K.G. Balakrishnan. The latter apparently made the claim that the office of the chief justice was outside the RTI Act. Mr Balakrishnan said that the chief justice was not a public servant, but a constitutional authority and was therefore outside the act. Mr Habibullah was quick to point out to his lordship that the act covered all constitutional authorities. Mr Habibullah received strong, if gratuitous, support from the speaker of the Lok Sabha, Somnath Chatterjee.

 

This exchange would not have entered even an episodic history of contemporary India had it not involved the holder of the highest judicial office in the land and had it not appeared that the chief justice of India was trying to protect his office from the RTI Act. It needs to be pointed out that the RTI Act is not something from which an office or an institution needs protection. The free flow of information is an integral part of a democratic polity. Citizens have the right to know in detail how an institution functions. This is not to erode the authority or the position of the institution; rather it is to enrich that institution. In a democracy power flows from the citizens, and it follows that they should, individually and collectively, have access to information. It is difficult to understand what principled objection there can be to this position. Any office or institution that is dependent on funds provided by tax-payers should fall within the purview of the RTI Act. The distinction between a public servant and constitutional authority in such a context becomes an otiose and an irrelevant one. The RTI should be more inclusive than restrictive, and the Supreme Court should ensure that the act is adhered to without a single violation.

Share this post


Link to post
Share on other sites
karira

 

As this thread carries important issue, I am letting it continue.

 

Thank You!

 

The way it is going, it will beat the "ACR disclosure" thread in number of posts and number of views.

Share this post


Link to post
Share on other sites
nukebomb

dear sirs . tomoro Chief minister will say RTI does not appy to me and next day BABUS of all govt offices will say tRTI is not for me . eventually I think RTI will die like minimum wages act

Share this post


Link to post
Share on other sites
opsharma

clear.gifNew ideas needed to make it more effective

by Justice S.S. Sodhi (retd)

IT is a pity that a lawyer linked to the infamous Punjab Public Service Commission scam was recommended by the collegium of judges of the High Court of Punjab and Haryana for appointment as a judge of the High Court. Had this attempted move been successful, it would have evoked widespread disbelief and suspicion about the way our system of appointment of judges of the High Court functions. Luckily, the Supreme Court collegium of judges has thwarted what was definitely a questionable move.

Obviously, the recent statement of our Prime Minister that corruption is a challenge facing the judiciary manifests a decline in the reputation of the judiciary as also of the legal profession. Public confidence in the credibility of our judiciary, which is our most respected institution, is too precious to be allowed to get eroded. If that were to happen, the rule of law or even our democracy would be endangered.

As is well known, the stature and credibility of any institution is founded upon the quality and merit of those that belong to it. In other words, what is needed is the quality of the judges on the Bench and not just their number. The reference here is to the oft-heard statements emanating from the powers that be expressing a keen intent to appoint more judges.

For over a decade and a half ago, the predominant role in the appointment of judges of the High Courts and even the Supreme Court has vested almost entirely in the judiciary. Despite this, the overwhelming view in the legal profession appears to suggest that this has not eliminated delays in appointments or brought about any qualitative improvement in the appointments.

At the same time, one increasingly hears of unbecoming conduct on the part of some judges, even some chief justices and also lawyers, and they all seem to get away with their acts of commission and omission with impunity. Such being the state of affairs, there is clearly a need for transparency in the process of appointment of judges and also accountability for those appointed.

So long as appointments to the higher judiciary are considered and recommended by a small and exclusive group of judges - that too behind closed doors — this process cannot be considered immune from some of the undeserving coming on to the Bench, with the deserving being left behind.

Illustrative of this is the instance of a lawyer recommended for appointment as a judge being denied the appointment as the intelligence report described him to be a “boozer”. No reason was conveyed to him for being denied the appointment. As told by a former Chief Justice of India, it was purely by chance that he discovered that the report regarding this lawyer being “fond of the bottle” was wholly incorrect. It transpired that as he was, in fact, a teetotaller, his friends had given him the nickname “boozer” and hence the intelligence report described him as one.

When these facts came to light, he was eventually appointed a judge of the High Court. But it was almost a year later that this happened. This lack of transparency has at times also tended to ascribe to “judicial politics”, a role larger than is perhaps warranted. An obvious antidote to this would be to make available information pertaining to the appointment of judges under the Right to Information Act. Unfortunately, the judiciary at the moment appears reluctant to accept it.

In the appointment of judges, the key role is that of the Chief Justice of the court - a judge who came from another High Court to be the Chief Justice of that particular High Court. Many in the legal profession look upon this as a practice that has little to commend itself. To begin with, it leaves senior judges due for consideration for appointment as Chief Justice not knowing if or when and to which High Court they will be transferred to take over as Chief Justice. That apart, when appointed, they would come to head a High Court not knowing their colleagues, the District and Sessions Judges, the other members of the subordinate judiciary, not even the lawyers practising in that court.

Sometimes the local language may be one they do not understand. It invariably takes a couple of months or may be even more, depending upon the size of the court, before they get the feel of and begin to know the court they are presiding over. Inevitably, in such a situation, they have perforce to rely upon their senior and some other colleagues for their help and advice in managing the court.

This being the situation, one wonders why a person who has for years functioned as judge in his own state and thus knows and understands his court should be barred from being Chief Justice there in his due turn. Not surprisingly, appointments of Chief Justices too have begun to be looked upon as another arena for “judicial politics” to flourish.

As regards tackling the problem of arrears in courts and hastening up our justice delivery processes, our present system of administration has clearly not been able to devise steps to bring about any significant improvement. Therefore, there is need to consider innovative ideas to deal with this situation.

One that suggests itself is the concept of having some senior and experienced lawyers to deal with a particular category of cases as part-time judges. Being over the age of superannuation of judges should be no bar in their case. After all, if lawyers can continue with their flourishing practice well into ripe age where lies the problem in having them decide some cases too? The category of cases that they may be called upon to deal with and the method and terms of their appointment as part-time judges can be worked out.

Next to consider is whether in the context of the workload in our courts, can we really afford the luxury of providing for three appeals - one to the District Judge, then to the High Court and finally to the Supreme Court? What if the court of the District Judge were to be the trial court with an appeal from its decision to the High Court? In other words, do away with the judicial courts below the District Judge. This would not only cut out one appeal but would also provide a trial court manned by senior and more experienced persons.

These are some ideas to generate a debate for new thinking on how to make our justice delivery system speedy and more effective. The writer is a former Chief Justice of the High Court of Allahabad

 

The above article appeared in The Tribune, Friday the 25th April 2008.

Share this post


Link to post
Share on other sites
bbmurali_2000

Hi all,

 

In one way, CJ is correct in saying that RTI is not applicable to his office. I have understood that he is asking "What a common man or an ordinary citizen has to do with my(CJ) office?"

 

On the other hand, he has a responsibility of directing the issue/RTI petition/query to the respective person/department concerned.

Share this post


Link to post
Share on other sites
sidmis

WHY NOT ? ? ?:o :mad: :confused:

Share this post


Link to post
Share on other sites
bbmurali_2000

Please read the other posts. My reply is based on the collective judgement of reading those information.

Share this post


Link to post
Share on other sites
colnrkurup

I repeat again that the issue is not RTI Act alone. The Hon'ble CJI has proclaimed that the RTI Act is not applicable to his office. RTI Act is only one of the enactments made by our Parliament by virtue of the powers vested in them under the Constitution. The Indian Penal Code, CrPC and all other Acts ivogue in India are made accordingly. If IPC is not applicable to a particular person, Murder is not an offence as for as he is concerned. He can kill a man and nothing could be done. Similarly by contending that RTI Act is not applicable he need not obey the orders of CIC. The RTI Act does not say that the CIC will not exercise his powers to constitutional authorities. The question is whether a cityzen of India, whomsoever can say that some of the Acts so made is not applicable to them ? My answer is NO. In fact the judiciary should stand for giving equity of justice. The judiciary should never have an element of doubt that each and every enactment under the constitution is equally applicable to every cityzen of India.

Share this post


Link to post
Share on other sites
karira

There is a old saying:

 

Justice should not only be done, but should also "appear" to have been done.

 

Perceptions are as important as the actual action.

Share this post


Link to post
Share on other sites
karira

A letter in indianexpress.com on 28 April 2008:

IndianExpress.com :: Benefit of judiciary

 

My regards for your editorial suggestion to the Indian Judiciary “to balance the distortions” that creep into politics (‘Towards disclosure’). Your words were guarded, restrained and dignified. Since I have spent the last 66 years of my life either as an advocate or a judge, I believe that I can be more assertive on the subject.

 

The Indian Constitution rightly safeguards judicial independence so that judges can discharge their duty objectively. Articles 32 and 226 of the Constitution invest vast judicial powers in the hands of Supreme Court and high court judges, which sometimes enable them to control all important aspects of the administration for safeguarding the fundamental rights of the citizens. This makes the judiciary the most important organ of the state and also our ultimate chance of making corrections or balancing the distortions.

 

It is, however, important to note that all the safe-guards and immunities given to the judiciary relate to the discharge of judicial functions and not administrative ones. The law recognizes this because it doesn’t amount to contempt of court if the administrative functions discharged by the judiciary are criticized or legally challenged. Every Indian citizen is entitled to know as to how judicial appointments are made, how the revenue meant for judicial administration is utilized, how arrears of disputed cases are accumulated and what steps are taken to clear them, etc.

 

It may be noted that the Right to Information Act doesn’t exempt (and rightfully so) the Supreme Court or the high courts from disclosing such administrative facts to enlighten the citizens who are the ultimate masters of this land and with whose money the administration runs. It should also be noted that the function of the RTI Act is merely to disclose facts, not to monitor or guide any department of the state. In a democracy, all organs of the state, including the judiciary, function subject to the provisions of the relevant law.

 

If disclosures do reveal any distortion, those at the helm of the judiciary should welcome such disclosures because these provide opportunities for correction and thereby enhancing the reputation of the judiciary itself. It is very important to recognize the present reality that the integrity of the Indian judiciary has greatly suffered in comparison to what it was only a decade ago. If this is indeed so, your guarded suggestion does gather more weight.

— T.U. Mehta

 

Chief Justice (Retd), Shimla

Share this post


Link to post
Share on other sites
karira

As reported by TNN on timesofindia.indiatimes.com on 30 April 2008:

House panel insists judiciary comes under RTI Act purview-India-The Times of India

House panel insists judiciary comes under RTI Act purview

 

NEW DELHI: In what could sharpen the divide between the legislature and judiciary, Parliament's standing committee has not only said that judiciary comes under the RTI Act but also called the current system of appointment of judges of Supreme Court and High Courts as being "against democratic principles".

 

If this was not enough, the parliamentary panel has expressed displeasure at the SC's reluctance to have a Bench outside Delhi and recommended that the first one be set up on a trial basis in Chennai.

 

Only two weeks ago, Chief Justice of India K G Balakrishnan had made contrary assertions on both counts. He had said that the office of CJI does not come under the purview of the Right to Information Act since he is a constitutional authority.

 

He had also not found fault with the current system of appointment of judges. But the Standing Committee on Personnel, Public Grievances, and Law and Justice is unambiguous. On applicability of RTI, it said the law is applicable on all constitutional authorities including judiciary. It also asked the government to take "necessary steps to ensure that the fruits of the RTI Act, which is a historic piece of legislation, are enjoyed by the public".

 

After discussing section 2(h) of the RTI Act, that deals with definition of public authority, the panel came to the conclusion that all constitutional authorities come under the definition of public authority. The committee said, "It is conscious of the fact that all the three wings of state — executive, legislature and judiciary — are fully covered under this Act, since all organs of the State are accountable to the citizens of India in a democratic state."

 

RTI, the panel felt, is more applicable in case of judiciary since it has a dual role: administrative and judicial. "Except the judicial decision making, all other activities of administration and the persons included in it are subject to the RTI Act. This is the pith and substance of this enactment."

 

As for the current system of appointment of SC and HC judges, the panel said the collegium system should be dispensed with and the pre-1993 arrangement involving the executive should be put in place.

 

"Transparency, inclusiveness and merit should be the way of appointing judges," it said. The committee said aspirants to various vacancies should be allowed to apply and appear before the selection committee. "The closed system prevailing now is not getting meritorious persons called to the Bench... Till the warrant of appointment is issued by the President, it is maintained as secret. It is against democratic principles," the committee said, adding that aspirants' names, merits and the selection process should be made public and transparent, through the HC and SC websites.

 

Also, a report, at various levels in department of justice and home, should be on the website of the department till the final stage of issuing the warrant of appointment.

 

On setting up the SC Bench, the panel asked the government to "come forward with a necessary constitutional amendment to address this deadlock". It said that even Article 130 of the Constitution makes provisions for it. Earlier also, the parliamentary panel had made a similar recommendation. Setting up a Bench outside Delhi, the panel felt, "would be of immense help to the poor who cannot afford to travel from their native places to Delhi."

Share this post


Link to post
Share on other sites
colnrkurup

WE THE PEOPLE OF INDIA in general and members of this forum who participated in discussing this issue should be proud of the outcome. Our Parliamentary Committee expressed more or less the same view expressed by this forum. Our Hon'ble Speaker Sri.Somanath Chaterjee deserve our salute. The sad part of it is that our Hon'ble CJI could not change his Britishraj mind-set. Anyway the RTI has survived another ambush.

Share this post


Link to post
Share on other sites
opsharma

Are courts corrupt? Bar wants to know

 

Satya Prakash, Hindustan Times

 

New Delhi, May 02, 2008

First Published: 01:23 IST(2/5/2008)

Last Updated: 02:14 IST(2/5/2008)

 

DropShadow_BotLeft.gifDropShadow_BotRight.gif

As demands for transparency in the judiciary get shriller, the Bar Council of India (BCI) has taken an unusual step. The top regulator of the legal profession in India is conducting a nationwide “confidential survey” among lawyers on what ails the judiciary and the state of the profession.

The survey, the first of its kind, covers the controversial issues of judicial corruption, appointment of judges to the Supreme Court and high courts. The BCI also wants to know about nepotism in judiciary or what in bar parlance has come to be known as the concept of “uncle judges”.

The BCI has sent an elaborate questionnaire to the chairmen of all state bar councils and presidents of high court bar associations along with a letter asking them to circulate it among their members for responses within a month from the date of its receipt.

The two-part, nine-page questionnaire contains 36 questions. The first part deals with the state of the legal profession and aims to ascertain the strength and weaknesses of the profession. The second part deals with some very controversial issues in the judiciary.

The BCI wants to know if there was rampant corruption in judiciary and how to deal with it. On the present secretive mode of appointment of judges to the SC and HCs, which has come under attack from a parliamentary panel, the BCI asked: “Is it fair and impartial? If not, what is your suggestion to make it transparent and fair?”

Another controversial matter raised by the BCI is the issue of “uncle judges”. “What is your view on the judges sitting in the same court centre where their near relatives, like children, nephews, in-laws etc. are practising?”

The BCI asked the lawyers to articulate their view on the quality and performance of the judiciary in their state, particularly, the high court.

In the letter dated February 22, BCI Chairman S. Gopakumaran Nair said the exercise was aimed at collecting relevant data on a national basis to make an authoritative “empirical study” on the current status of the Indian legal profession.

The BCI said the findings would be used for all official purposes in future to improve the standard of the profession.

Assuring confidentiality to the lawyers, Nair said: “This is a very responsible job and part of your duty to assist the apex body to make a realistic study and arrive at right conclusions.” The BCI also asked the lawyers for their views on the entry of foreign lawyers and foreign law firms. It asked if there was a need for a central law like Advocates’ Protection Act on the lines of the Judges’ Protection Act, in view of “the increasing number of interference and onslaught on advocates’ professional freedom”.

Asked about the need for conducting such a survey, BCI member Jagdev told HT: “Basically we want to know from advocates whether the present system is transparent or not and how to improve it.” The Delhi High Court Bar Association has accepted the BCI’s request and started the process of sending the questionnaire to its members.

Share this post


Link to post
Share on other sites
slchowdhary

I think BCI should invite views from litigants/victims of justice if they really mean business.The advocates/lawyers are not the sufferers. Most of the time they have no interest in justice. Just interested in the client and that to only to the extent they can make their fees.

Share this post


Link to post
Share on other sites
jps50

I agree with Shri Chaudhary. The litigants should have say in the survey, otherwise it will not give real picture of the situation. Ultimately, we are seeking improvement in system for the benefit of users of legal system. RIGHT 2 JUSTICE is useless unless judiciary improves its functioning. At present, perhaps inefficient judiciary is the main cause of injustice and social tension. Every body wants to take law into its hand, as common man is losing faith in judicial 'justice'.

Share this post


Link to post
Share on other sites
slchowdhary

Thanks jps50. I have no. of cases where one can clearly make out from ordersheet it self that delay in justice is not because of lack of judges.

Share this post


Link to post
Share on other sites
colnrkurup

I think our discussion is going away from the RTI Act.

Any way let me add following. Will any Survey Team will ever contact any affected litigant ? He may be having evidence of his own judgment showing that something wrong done to him ? Such evidence may not suit the terms of references of the survey or the pre-conceived aim of the survey. We cannot use the terminology of corruption when we mention anything on judiciary fearing Contempt of Courts Act.

 

Still I am quotting below examples of two judgements of Munsiff's Court, Tellicherry,

Kerala which I am ready to produce to any genuine Survey Team

 

1. The Revenue authorities have fraudulently shown 4.58 acres of land worth Rs.10 crores in the name of a vested interest in the revenue records and started collecting land revenue. In a suit filed seeking a declaration that the above party has NO title deed to above land was beaten around bush. During interrogatories issued they had to admit that they are not in posession of such a title deed. Of cource this statement is not in the judgment.However on the previous date of hearing of the case they produced an order of Taluk Land Board showing this land in their name based on report of Tahsildar. All pleas by me before the Munsiff that this ocument should not be admitted as evidence without PROVING was not cared. The declaration sought for was denied based on the above unproven and unmarked evidence. Of cource I had gone for appeal seeking PROOVING of this document., I think I should stop at this point.

 

2. In another case a suit seeking declaration on similar line in another plot was dismissed by the Munsiff on the plea that the plaintiff has failed to prove his title. The funniest part is that his judgement contain the list of my marked documents where Exhibit.A and B are my documents of title.

 

Please tell me how this can be explained in a democratic country ?

Share this post


Link to post
Share on other sites
sidmis

Judges are public servants, not bosses

 

By Justice V.R. Krishna Iyer in The Hindu on May 02, 2008

 

-----------------------------------------------------------------------

Contrary to what the Chief Justice of the Supreme Court recently said,

the Right to Information Act does cover ‘constitutional authorities.’

 

-----------------------------------------------------------------------

 

Absolute power and egregious error will be totally incompatible, even when the matter involves the judiciary. Justices of the court are no higher than great Homer who, as Lord Byron put it, sometimes nods off. The ‘robed brethren’ on the High Bench do sometimes blink.

 

Perhaps it is a rare occurrence, but this is what happened when the Chief Justice of India, the country’s highest judicial functionary, claimed that the Chief Justice is not a ‘public servant’ but a ‘constitutional authority.’ It may be true. But every judge is oath-bound to dispense public justice “without fear or favour, affection or ill-will.” Public justice is public service, and obviously judges are public servants.

 

The Right to Information Act, therefore, does cover ‘constitutional authorities’, contrary to what the Chief Justice said. His absolutist obiter, coming as it does from a legal luminary for whom I have high regard, is bizarre and it is a faux pas. Unfortunately, he has, in my legal perception, slipped into an accidental innocence of jurisprudence.

 

This may, however, be justly overlooked, having regard to the heavy burden he bears. He has to manage the court, handle a load of judicial work, frequently make ceremonial journeys, give erudite speeches and interviews, and bear the tremendous strain involved in selecting higher judicial personnel.

Under public pressure or out of vanity, judges often undertake a tremendous amount of non-judicial work, sacrificing valuable time so necessary to study dockets, hear prolix and logomachic arguments, and write (although some of them do not do that) judgments laying down the law of the land. Considering this onerous background, we must forsake criticism of occasional forensic failings.

 

Grave goof-up

 

How else can one explain a grave goof-up, made unwittingly, in his saying that judges are not public servants but ‘constitutional authorities’? The latter are, in simple semantics, a higher category of public functionaries. They are a finer, nobler group of public servants, democratically more accountable and qualitatively more liable than others to furnish information to the people about themselves and their functions, if it is relevant to the public interest.

 

All important constitutional authorities, such as Judges, Ministers, the Comptroller and Auditor General, the Accountant General, the Election Commissioner, and the Speaker of the Legislature, are a fortiori public servants with superior and more profound obligations. These are not two antithetical categories but are, in public law, of the same class. My candid constitutional camera perceives both as owing public duties and being liable to pay penalties for any failures — subject to the limitations laid down by law.

 

The great judge Jerome Frank, in his book Courts on Trial, said he had little patience with, or respect for, the view that it is dangerous to tell the public unpalatable truths about the judiciary. He wrote: “I am unable to conceive… that in a democracy, it can ever be unwise to acquaint the public with the truth about the workings of any branch of government. 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.”

 

Democratic instrumentality

 

I stand solidly for a judiciary that is a democratic instrumentality, not an occult class of divinity. David Pannick, QC, observed: “We need judges who are trained for the job, whose conduct can be freely criticised and is subject to investigation by a Judicial Performance Commission; judges who abandon wigs, gowns and unnecessary linguistic legalisms; judges who welcome rather than shun publicity for their activities.”

 

Information about judges’ wealth, other activities and even private doings, if they affect judicial duties, cannot be kept secret. To cite David Pannick again: “The judiciary is not the ‘least dangerous branch’ of government… They send people to prison and decide the scope and application of all manner of rights and duties with important consequences for individuals and for society. Because the judiciary has such a central role in the government of society, we should (in the words of Justice Oliver Wendell Holmes), wash…. with cynical acid this aspect of public life. 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.”

 

Let us not confuse between the papacy and the judiciary.

Judges, like Ministers, Governors, Presidents, Speakers and a host of other functionaries, are constitutional authorities. And, most emphatically, they are public servants, not absolutist bosses with vast political power but above democratic accountability. They should have functional transparency and be fundamentally incorruptible.

 

Indeed, judges must be free from graft, nepotism, abuse of power, and arrogance. They should be the paradigm of clean personal life, open and accessible custodians of public justice and paragons of moral excellence and humanist simplicity, sans consumerist craving and greed to grab. They are a higher cadre with a more sublime calibre.

 

Trustees of judicial power

 

In short, justices wear robes on oath under the Constitution as trustees par excellence of judicial power, of course within their legal jurisdiction and constitutional jurisprudence. The Supreme Court, in a ruling of the Constitution Bench in K. Veeraswami vs. Union of India (1991 SCC P-655), held that the expression ‘public servant’, used in the Prevention of Corruption Act, is undoubtedly wide enough to denote every judge, including judges of the High Court and the Supreme Court. Judges are under the law, not above it. Your public life, and even private life to the extent it influences your judicial role, should be accountable and transparent to the public. A plea of secrecy is sinister allergy. Democracy is a disaster if the President, the Speaker, the Prime Minister and the Chief Justice hide their wealth and dealings from the scrutiny of ‘We, the People of India’, the sovereign of the nation.

 

To err is human and to forgive is divine. Chief Justice K.G. Balakrishnan is a fine citizen, a sublime soul, a versatile jurist, a graceful instance of dignity and refinement. If I have erred in disagreeing with his disclaimer of judges being public servants, he will forgive me. But judges certainly are not divine.

 

The Indian judiciary must accept Frankfurter, that frank and superlative U.S. Judge who wrote: “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”

 

Our judges shall remain awake and alert and accept the Preamble to the Constitution that makes clear that this republic is ‘socialist, secular, democratic.’

 

We meanwhile need a judicial appointments and performance commission of supreme stature, its members selected from among the highest judicial, political and public-spirited wonders of popular confidence.

This is essential to ensure that the finest and most independent members of the fraternity would exercise judicial power, and that they would be held in the highest esteem by the enlightened wisdom of the people of India. This desideratum demands a diamond-hard constitutional code that covers every dimension of judicial performance.

Share this post


Link to post
Share on other sites
karira

Interview with former Chief Justice J S Verma in timesofindia.indiatimes.com on 5 April 2007:

'In a democracy, no one is unaccountable'-Interviews-Opinion-The Times of India

 

'In a democracy, no one is unaccountable'

Former chief justice of India J S Verma speaks to Manoj Mitta on the ongoing debate on transparency and accountability in the judiciary:

 

What do you think of the growing disenchantment with your 1993 judgment which gave primacy to the judiciary in judicial appointments?

This is due to a misreading of the judgment, which merely formalised what was already a convention. The judgment does not give absolute authority to the judiciary. It clearly says that it is a joint exercise which combines the judiciary's opinion about the legal acumen of the candidate with the executive's input on his antecedents. Further, it empowers the executive not to appoint if the candidate is found unsuitable or if the judiciary's recommendation is not unanimous. But if the executive never exercises this option, the judgment is not to blame.

 

In fact, there is a growing perception in the judiciary that the judgment is not being observed in its letter and spirit by the collegium (committee of senior judges). The need, therefore, is to ensure that neither the executive nor the judiciary has a decisive say. It is time to make the joint exercise more explicit in the Constitution.

 

How do you view CJI K G Bala-Krishnan's controversial statement that being a constitutional office holder he was not answerable under RTI?

In a democracy, no one is un-accountable. The mode of enforcement of accountability may, can and should vary according to the nature and position of the public functionary. The CJI is no exception to this rule. The Constitution provides for his removal, which is the ultimate form of accountability. He is accountable even for his judicial functioning. He has to hear cases in open court and give reasoned decisions which are subject to public scrutiny. So, where is the scope to suggest that he can't be accountable for his administrative functioning?

 

Why has the judiciary reacted uneasily to RTI?

 

The RTI Act does not confer any new right. It only operationalises the existing fundamental right to free speech and expression under Art 19(1)(a) in which the right to know is implicit, and provides for reasonable restrictions under Art 19(2). One could seek information earlier too by filing a writ petition. The difference RTI has made is, one can now proceed expeditiously under a statutory procedure.

 

Doesn't the judiciary's hostility to RTI make a mockery of the three resolutions of judicial accountability passed by the SC judges under your leadership?

When those three resolutions were unanimously adopted on May 7, 1997, i did hope that they would be institutionalised in due course. Much as i admire the SC ruling that every political candidate should disclose his antecedents, i cannot imagine how a judge can hold others to a standard he does not apply to himself.

Share this post


Link to post
Share on other sites
opsharma

DAILY MAIL , Monday,May 5, 2008.

 

 

As custodians of the Constitution and its law, judges must value transparency

by Rajeev Dhavan

 

 

THE major controversy between the Chief Justice of India, K. G. Balakrishnan and Lok Sabha Speaker Somnath Chatterjee over lifting the veil of secrecy over the judiciary has been stoked by the Parliamentary Standing Committee on Law and Justice’s Report of 30 April 2008. Accordingly, public interest will be better served if the judiciary is exposed to Right to Information scrutiny in its judicial decision making. Courts enact a daily costume drama. What the judges say and do is prime news. Public servants must accept a certain degree of probing in their lives. Even responsibly made statements which are later found to be wrong should be permissible. This is a good rule of thumb. The present controversy arises of a statement by the CJI resisting the declaration of assets and income by judges on the basis that judges were not just public servants but constitutional authorities. It followed that the Chief Justice of India and his brother judges were not obliged to disclose their income and assets. This led Somnath Chatterjee to question the reticence of the Chief Justice. The issue arose as to whether the Right to Information Act ( RTIA) applies to the judiciary. At the Katju Memorial Lecture on 23 April, 2008, CJI Balakrishnan declared that judges do file their incomes and assets but there was no reason for routinely locating this information in the public domain. The information was there not to be revealed when necessary. Could Mr Hoover of America’s FBI have asked for more! This is an unsatisfactory explanation even if true. This is not a game of kissing and not telling, but an issue of public interest.

 

Information

It is important to make a distinction between the duties imposed by the law and those that should be part of public policy. The purpose of the RTI is not to manufacture information that is not there. At present there is no requirement for judges to declare their incomes or assets. Their formal income is public income. Their private income from assets is known to the taxman. If the private income is not known to the taxman, it is black money. Their declared expenditure is known to the taxman. Their other “ black” acquisitions, if any, are known only to the judges. What is to be done with all this information? How much are we entitled to know about our judges? At what point does public interest end and a judge’s right to privacy begin? All citizens have a right to privacy of information given to the tax authorities. Income and expenditure represents personal choices and lifestyle. Prima facie , judges, too, are entitled to privacy unless this information is required for judicial proceedings or impeachment.

 

Public

Public officials, other than judges, are differently placed. All Members of Parliament ( MPs) and the Members of Legislative Assemblies ( MLAs) have to declare their assets and incomes as a matter of democratic constitutional duty. This information is available as part of public record and does not have to be created. Some of the declarations made by the MPs and MLAs seem so outrageous and fantastically low that they invite disbelief. Civil servants are also required to declare their assets and incomes. The judges are not. For RTI purposes, this generates an important difference. The right of the public under the RTI Act is to obtain information that is on record unless it comes under any of the exceptions in the RTI Act. The RTI Act is to reveal information existing on record and does not force people to make revelations that they are otherwise not obliged to make. So, at present, information about judges not being on record is not accessible under RTI procedure. Matters cannot stop there. Judges may not be under a legal duty to disclose their financial details. But should they be under the public duty to do so? CJI Balakrishnan had made a distinction between “ constitutional functionaries” and “ public officials”. Even that distinction may not be entirely correct in so far as it relates to the judiciary. Justice Krishna Iyer has rightly criticised the view that judges are not public officials. If not, what are they? The concept of a “ public official” has different meanings in anti- corruption law, criminal law, trust law, civil law and constitutional law. We are here concerned with “ public official” in the general sense of those who serve the public in exercise of a public power. This is a distinct class of people, which includes judges who possess public power which they may exercise perversely or in exchange for favours. This could be anybody whether they are civil servants or judges. No doubt, their financial antecedents can be exposed when they are accused of a criminal act. That may be too little, too late. There is nothing preventing judges from setting an example for all public servants by inaugurating a policy of candour to disclose their income and assets in public interest. They should not only declare their income and assets but do so every year so that any variation in their wealth across the years may be easily visible. This will virtually be asking judges to voluntarily incriminate themselves — but not if they are not behaving like judges. The Chief Justice of India is the head of the judicial family. In the first instance, he can persuade himself and his colleagues to take a collective decision in favour of financial transparency. The High Courts and the lower judiciary should follow suit. Like Caesar’s wife, judges should be above suspicion. In Caesar’s case, his statement was a mocking challenge. Here it is a matter of public interest. There is another important offshoot of this controversy. The judiciary is both an open and secret institution. Its hearings are heard in public. Its judgments are delivered in open court. Beyond that, the judiciary is heavily guarded by its veil of secrecy. In America, Woodward and Bernstein’s The Brethren gave an excellent example of what happens behind the scenes at the US Supreme Court. We may never know so much about our judges. But, apart from judicial decision making, each court has an administrative side concerning finances, promotions, allocations of cess, discussions of the lower judiciary and appointments of the entire judiciary, including the High Courts and the Supreme Court. After the decisions of 1973- 1998, the Supreme Court has a stranglehold over the judicial appointments to the higher judiciary.

 

Practice

Since 1998, they have violated their own ground rules many times over. They have become autocratic in their explication of their biases and preferences — of which there are many. Mrs Gandhi packed the Supreme Court between 1969 and 1973. Since 1998, over 300 ad hoc appointments were made to the High Courts only by the CJI and Law Minister without consulting the collegium. The role of the Chief Justice and the Law Minister needs to be known. There is no reason why this should not be subject to scrutiny by the public in public interest. It is failures within the system that is responsible for the proposal for a National Judicial Commission on appointments and disciplinary measures. Judges should be exposed to a clean air of transparency so that people may know how this all too important institution, which is the custodian of the Constitution and the rule of law, works. This is over and above the need of individual judges to publicly and regularly declare their assets and incomes.

Share this post


Link to post
Share on other sites
opsharma

Jurists want judges to be role models

 

Nagendar Sharma, Hindustan Times

Email Author

New Delhi, May 06, 2008

DropShadow_BotLeft.gifDropShadow_BotRight.gif

Already facing criticism for refusing to make public their wealth details, the Supreme Court judges on Monday faced fresh demands on the issue from top jurists, including former Law Ministers Ram Jethmalani and Shanti Bhushan, to set an example for the country by “voluntarily declaring their assets”. In a letter to all the judges of the Supreme Court, the group known as Campaign For Judicial Accountability and Reforms, said though Chief Justice KG Balakrishnan was against the move, judges were free to voluntarily do so. “Though one can take the view that the Chief Justice cannot disclose information regarding the assets of judges given to him in confidence, that is clearly no impediment whatsoever before any judge voluntarily disclosing his assets publicly,” the letter signed by Jethmalani and Bhushan said.

The jurists’ group reminded the judges that it was a Supreme Court judgment in 2003, that made it mandatory for candidates contesting the elections for the Parliament and state assemblies to declare their assets. “The rationale given by the Supreme Court for the need for disclosure of assets of candidates contesting elections would equally apply to all public servants occupying crucial positions of authority,” the campaigners’ group supported by former Supreme Court judges, VR Krishna Iyer and PB Sawant, said.

The jurists’ group appealed to the judges to use the opportunity to set an example for the country. “At a time when people have become cynical about the integrity of public servants, voluntary disclosure of assets by judges would be setting an example of transparency in the country which would then be emulated by others.”

The CJAR said the judiciary had a chance to make the Right to Information Act popular in the country. “Such a step would greatly advance the cause of transparency and probity in public life. It would also advance the objectives of the RTI Act and would be applauded as an act of statesmanship by the country.”

The CJAR letter to the Supreme Court judges mounts a fresh attack on the judiciary, which has so far been successful in resisting the pressure for public scrutiny of its administrative functioning.

 

 

 

 

 

 

 

 

 

 

 

 

 

DropShadow_TopRight.gif

Share this post


Link to post
Share on other sites
karira

Opinion in dnaindia.com on 6 May 2008:

DNA - Opinion - In the name of the law - Daily News & Analysis

 

By A G Noorani - The writer is an eminent lawyer

 

In the name of the law

 

The right to information is universal and judges cannot be exempt from public scrutiny

 

The citizen is understandably disturbed when he sees conflict between the judiciary and Parliament or the government. The latest in the recent series is particularly worrisome. It affects the people’s right to know, embodied in the Right to Information Act, 2005.

 

The Chief Justice of India KG Balakrishnan told the media on April 19 that the “CJI is not a public servant in the strict sense. He is a constitutional functionary and constitutional authorities are not covered under the RTI.” A fortnight later, on May 5, he accepted that the CJI is indeed a public servant, but argued that he is not a public authority under the RTI. He overlooked, however, that if India’s lawmakers considered judges as public servants for over a century, they would not conceivably have excluded them from the category of public authority in this day and age. The record establishes that.

 

To begin with, one of the most important and oldest laws, the Indian Penal Code of 1860 says, in section 21, that the words ‘public servant’ include every judge. For good measure, it adds an explanation which clarifies that the persons it lists ‘are public servants, whether appointed by the government or not’.

 

Around Independence, the Prevention of Corruption act, 1947, took over the IPC’s definition of ‘public servant’. The Prevention of Corruption Act, 1988, likewise defines him to include ‘any judge’. The Supreme Court endorsed this in 1991 in the case of the former chief justice of the Madras High Court, K Veeraswami. It categorically rejected his plea that judges of the Supreme Court and High Courts are not within the purview of the Prevention of Corruption act.

 

It is farthest from our mind that a judge of the Supreme Court or the High Court will be immune from prosecution for criminal offences committed during the tenure of his office under the provision of the Prevention of Corruption Act.

 

Can the law be different where the citizen’s right to know is involved? The speaker of the Lok Sabha Somnath Chatterjee, himself once a distinguished member of the Supreme Court Bar, rightly said on April 21, “My view is that nothing should be held back from the people, except on matters related to security.” Suppression of information affects the credibility of the institution.

 

However, the Speaker made an important point which is often overlooked. The Supreme Court has repeatedly ruled that the citizen’s right to know, although not expressly embodied in the Constitution, follows inescapably from the fundamental right to freedom of speech and expression guaranteed by Article 19 (1) (a).

 

The right to know is, therefore, enforceable — and, indeed, has been enforced — like any fundamental right on a writ petition to the Supreme Court or a High Court. What the Right to Information Act does is simply to provide a speedy and inexpensive mechanism which is available even in the districts.

 

Two former CJIs, Justices JS Verma and VN Khare, expressed strong disagreement with the opinion of Balakrishnan. The Chief Information Commissioner Wajahat Habibullah said on April 22, “No constitutional authority is exempt from the Right to Information Act”. The controversy is particularly unfortunate against the background of an earlier one on disclosure of judge’s assets.

 

However, the Report of the Standing Committee of Parliament on Personnel, Law and Justice, tabled in the House on April 28, shows that the CJI’s fears are as unfounded, as his stand on the law is erroneous and dissented from by all others. The Report makes two points. First, and basically, judges do fall within the definition of “public authority” as formulated in the RTI, “Public authority or body… established or constituted by or under the Constitution.” That knocks for a six the argument that as constitutional authorities judges are not covered by the RTI.

 

Secondly, the report allays the CJI’s fears completely. The veil of secrecy will not be pierced to expose the judicial deliberations within the Judges’ chambers to the public view at all, but only to their administrative decisions.

 

It points out that the judiciary has a dual role: administrative function and judicial decision-making. Except the judicial decision making, all other activities of the administration and the persons included in it are subject to the RTI Act. This, surely, is unexceptionable. It strikes a very fair balance.

 

The object of the RTI is to empower the people and enforce accountability. When constitutional authorities like the Prime Minister and the Speaker of the Lok Sabha are covered by the RTI, judges cannot claim to be exempt from the people’s concerns. Their right to know is as sacred as the independence of the judiciary.

Share this post


Link to post
Share on other sites
sidmis

I am a public servant: CJI

reported by Dhananjay Mahapatraspacer.gif,spacer.gifTNN 06 May 2008

 

NEW DELHI: "I am a public servant," declared Chief Justice of India K G Balakrishanan settling the dust that had arisen over whether or not judges of the Supreme Court and high courts were public servants or not.

His remarks at the conclusion of the annual conference of Chief Justices of the high courts and the chief ministers had opened a big debate over the status of the judges of the higher and superior judiciary.

 

The clarification from the CJI came on the day when the judiciary took the historic first step to allow TV cameras to videograph the “people's court” proceedings held inside the SC's court rooms, which are always out of bound for cameras.

 

Speaking to The Times of India, Justice Balakrishnan laughed away the question whether judges of the SC and the HCs were public servants or not.

 

“How can any judge argue that he is not a public servant?” he counter questioned. It is a well settled position of law, as laid down in the five-judge constitution bench judgment of the Supreme Court in the Veeraswamy case, that judges of the high courts and the Supreme Court were public servants, he said.

 

I am a public servant: CJI-India-The Times of India

Share this post


Link to post
Share on other sites

  • Similar Content

    • Priya De
      By Priya De
      Find here the original Supreme court judgement on Aadhaar.
      (1)        The requirement under Aadhaar Act to give one's demographic and biometric information does not violate fundamental right of privacy.
      (2)        The provisions of Aadhaar Act requiring demographic and biometric information from a resident for Aadhaar Number pass three­fold test as laid down in Puttaswamy (supra) case, hence cannot be said to be unconstitutional.
      (3)        Collection of data, its storage and use does not violate fundamental Right of Privacy.
      (4)    Aadhaar Act does not create an architecture for pervasive surveillance.
      (5)        Aadhaar Act and Regulations provides protection and safety of the data received from individuals.
      (6)        Section 7 of the Aadhaar is constitutional. The provision does not deserve to be struck down on account of denial in some cases of right to claim on account of failure of authentication.
      (7)        The State while enlivening right to food, right to shelter etc. envisaged under Article 21 cannot encroach upon the right of privacy of beneficiaries nor former can be given precedence over the latter.
      (8)        Provisions of Section 29 is constitutional and does not deserves to be struck down.
      (9)        Section 33 cannot be said to be unconstitutional as it provides for the use of Aadhaar data base for police investigation nor it can be  said to violate protection granted under Article 20(3).
      (10)      Section 47 of the Aadhaar Act cannot be held to be unconstitutional on the ground that it does not allow an individual who finds that there is a violation of Aadhaar Act to initiate any criminal process.
      (11)      Section 57, to the extent, which permits use of Aadhaar by the State or any body corporate or person, in pursuant to any contract to this effect is unconstitutional and void. Thus, the last phrase in main provision of Section 57, i.e. “or any contract to this effect” is struck down.
      (12)      Section 59 has validated all actions taken by the Central Government under the notifications dated 28.01.2009    and 12.09.2009 and all actions shall be deemed to have been taken under the Aadhaar Act.
      (13)      Parental consent for providing biometric information under Regulation 3 & demographic information under Regulation 4 has to be read for enrolment of children between 5 to 18 years to uphold the constitutionality of Regulations 3 & 4 of Aadhaar (Enrolment and Update) Regulations, 2016.
      (14)      Rule 9 as amended by PMLA (Second Amendment) Rules, 2017 is not unconstitutional and does not violate Articles 14, 19(1)(g), 21 & 300A of the Constitution and Sections 3, 7 & 51 of the Aadhaar Act. Further Rule 9 as amended is not ultra vires to PMLA Act, 2002.
      (15)      Circular dated 23.03.2017 being unconstitutional is set aside.
      (16)      Aadhaar Act has been rightly passed as Money Bill.  The decision of Speaker certifying the Aadhaar Bill, 2016 as Money Bill is not immuned from Judicial Review.
      (17)      Section 139­AA does not breach fundamental Right of Privacy as per Privacy Judgment in Puttaswamy case.
      (18)      The Aadhaar Act does not violate the interim orders passed in Writ Petition (C) No. 494 of 2012 and other Writ Petitions.

    • Priya De
      By Priya De
      In this context a reference was made to the Hon’ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under: 35.....
      “It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.” 

Announcements

×
×
  • Create New...

Important Information

By using this site, you agree to our Terms of Use & Privacy Policy