Judiciary system
• In '1937, US, Roosevelt replace many SC judges by puppet as they are obstructing him to pass a bill which ↑↑deficit of US, by Judicial Procedure Reform Bill, although his intention = noble, + it also not compromised judicial independence,
• But in India = its intention = differ,
• Collegium = small/powerful/unaccountable → RS passed bill to scrap it,
• Art 124 estb& determine SC,
• Many say if this time then again further parlia amend laws → make JAC sys total in there favor, & it became then easier to amend such law again,
• UPA in furry to pass this bill on sacrificing independence of SC, = is to hide there culprits in all there scams like:-- coal, 2G & other fancy scams, before '14 election as @'14, 10SCJ are retiring, → make UPA a good chance to win to reap this benefit, it also benefit them for flagships like:-- NFSB, & Land acquisition,
• But this short term govt reputation gain → affect our long term goal of separation of power,
Some remaining work @judicial reform
• Key area of reform in Law
Appointment of judges,
Working of judicial sys
Modernization key economic legislation
Restoring independence & dignity of law officer of govt
National Judicial appointment commission (JAC)
• Appointment of judge @current in constitutional court is by collegiums(made'93by judges) HC&SC judge, but now political sys influence(as politician say it not work) this collegiate → need to replace it with JAC
o But only making JAC not work, we have to estb SOP's for JAC, with transparency,
o It also note down setting of JAC not done by legislation alone
Some new against JAC
o Its endless debate to decide who appoint judges,
o Art 222 says presi appoint HC judge court with consult of CJI,
o But proposal of JAC = great threat to judicial independence, although it require a consi amendment,
o As JAC bill seek appointment of JAC for SC/HC judges,
o Minister say we both have equal stake so both have equal right,
• But bill only seek Union Govt demand, & not seek collegium reform,
• Principally say that sys = not transparent, + personal like & there interest are there, as meritorious candidates are sidelined many times, without reason,
o But even SC say "consult with CJI" is only due to prevent appointment from political interference, as present sys of collegium also a result of SC two case decision & apply from'1990
• So complaint of CG that they not consulted in process = wrong as presi = there candidate
o But executives are upset as they have fucked many times, like:-- 2G coalgate, + also fucked by CAG CEC etc
o But we can see history full of events to undermine constitutional body independence, like:--
• Next day afterkeshavananda case verdictindira remove 3 judges ( which give verdict against CG ) & appoint a her side judge & win 3 case → bank nationalisation, kesavnanda, privy purse
• This all led to protest as it is a great threat to judicial independence,
• Also after '75 emergency & losing case of using state power for election, she transferred 16 judges, → sucks morale of fearless judges,
o + @ emergency, consti is extensively amended, like:--
• Judicial review eliminated, 2/3majority of judges = mandated to invalidate legislation, press censored, & opposition leader detained, without trial,
o @second term of indiragandhi he again try to access judge independence → SC make CJI review mandatory,
o Post-'80, it was widely seen that CJI recommendation = neglected by executives,
o 1993-till date, collegium sys, although it have some shortcomings, but it need reform not abolished& replaced with a already failed sys that take independence of judicial,
• As JAC structure show they have a politician majority like:--
• CJI +2 SCJ - on one side
• Law minister, 2 eminent person, justice secretary, leader of opposition, PM → other side ( = people representatives )
o but we see present sys is now superior one but need some reform only,
o & attempt to restore political dominance @ judicial appointment only subvert basic consi structure, → became a recipe for disaster, so resist it,
• Centre to likely dismantle collegiums sys to appointment of judges
o @collegiums sys: 2/more judges only appoint judge
o @ JAC: there are govt politician also
Advocates are against collegium as it appoint bad judges via nepotism, but they also disagree with CG-JAC = which is also other tool to play nepotism,
• @jun 276/904 vacancy @ HC,
o Most states canvassing for appointment based on : caste, community, political, & other (non-merit)considerations.
Collegium experiment
• Emergency & post emergency witness of attempt to muzzle judiciary by executives, here are from where idea of collegium developed, in which senior most HCJ/SCJ appoint other judge without/merely consulting executive, but after 20 yr sys experienced corruption → & last in sys there are judges with incompetent, inefficient, ethically compromised
o In may'13, 1k lawyer of Pun & Haryana HC protest for 7 names recommendation @collegium sys, saying "nepotism/favoritism"
o @jun'13 Madras HC Advocate association gave presentation to CJ-HC about low standard of collegium recommended names & say appointment based on other factors, We @ bar deeply distressed, even alarmed by this partisan appointment, → a deep future where judicial institution interest have sacrificed at alter of personal interest
Consequences of poor judges
• Long delay (even many judge retire w/o giving judgment)
• Inability to organize time effectively for there board → main = wasting other member's time
• Lack of clarity & clean reasoning in judgment
• Lack of knowledge even basic principal of laws
• Lack of ability & willingness to learn
• Ghost writing of judgment
Ultimately eroding of respect & confident in judicial process, even many people conception is also like this that "judgment delivered is based on states canvassing&personal affinities with particular member of bar/litigantthis all give pain to us & also to state, it put down moral & motivation of lawyer Make them weak to perform thereduty → @ last they want transparency in appointment criteria of those judges
o For many yr although bar council demand transparency in judicial appointment, but now major concern secrecy surround appointment
o Real issue is "how judges appointed" & not who appointed, irrespective whether it executive/judiciary/JAC as long as appointment is opaque & made on personal consideration,
Solution :
• Sys of UK JAC:@UK Constitutional Reform Act'05 make merit =sole base for judge selection, + need a good character also, while JAC try to diverse selection from many sectors,
• JAC's criteria based on 5 terms:
Intellectual capacity:
• High level of expertise @ chosen/specific area of there professional
• Ability to quickly absorb & analyze info
• Appropriate knowledge of law & understanding of principal
• Ability to acquire this knowledge where necessary
Personal qualities:
• Integrity & independence of mind
• Sound judgment
• Decisiveness
• Objectivity
• Ability & wiling to learn & develop professionally
• Work constructive
3. Understanding & dealing fairly:
• Treat each one with respect & sensitivity whatever there background
• Willing to listen with patience & courtesy
4. Authority & communication skills:
• Ability to explain procedure & any decision reached clearly
• Maintain authority when challenged
5. Efficiency:
• Work speedy @ pressure
• Organize time efficiently & produce clear reasoned judgment expeditiously
• All above quality based on evidence only,
• Public hearing of senate to appoint senior judge @US =another example of transparency, although it not possible for us but atleast we can apply principals of transparency/accountability/citizen participation in our sys,
As transparency inspire confidence in people,
At same time transparency in collegium = not new topic, itshave its root from 20yrs from SC to HC also,
o As judge bear responsibility of ensuring respect for "rule of Law" → ensure that govt is based on Consti principle & vision
Country deserve nothing less than, a learned person whose conduct is beyond doubt ' as a judge
Irrespective of whether appointment is based on, collegium/JAC/other bar council member also need to be consulted,
Our nation future is not only b/c powerful want remain powerful
Winds of change sweeping the world demanding greaterparticipation, inclusion, equity, accountability & transparency
Pendency of cases
Indian judicial sys = overloaded, understaffed, bursting as it seems,
o Case Pendency ↑↑↑↑
Many suggest → solution=↑↑judge, currently 11/1million ratio, global=50 →but it not a issue to pendency, real problem in sys of judge working As : if no new case, major state's pendency clears in 1-2yrs, → no solution to ↑↑nos of judges
National litigation (judicial proceedings)policy
A pendency problem (or judiciary) can be solved by transforming govt into responsible & efficient litigant, as most of cases are of against states
A well drafted "National litigation policy" mooted@2010 →but not implemented,
Similarly provision like:-
o Imposing actual cost of litigations → ↓↓frivolous cases + ↓↓adjournments, → so sys should work together to implement them,
With all those measures, more immediate measure to improve judiciary sys is enhance quality of justice given to high value cases (in money terms) ' esp @ foreign investment, as "commercial draft" of HC Bill scrapped @ LS @2011, as it suffered from many drafting flaws, →revised version of bill in cold storage hope so it came out now
Many important law require immediate attention:
o Key amendment to Arbitration & conciliation Act 1996, which reduce judicial intervention, & streamline ADR, →not passed yet
o Even many minister say similar amendment require to strengthening regulation on bank & insu
Law officer of govt AG, SG, ASG →now only serve there clients, president empowered to appoint AG as qualify for SC judge, but recently resignations by them spread furor → as it became many time to compromise there dignity @UPA rule → preferred to quit
Institution eroded
Fucking of 2 law officer @coalgate, →show erosion of Indian democracy/judiciary,
So now consider JAC-which appoint judges, this will even insulate these officer from political pressure, & also reduce any charge of govt management of sensitivity before consi courts, ( as the 2 law officer fucked by UPA )
These reform necessary as confidence of public eroded out from judiciary sys , not just by recent event but also via many structural & institutional flaws @present sys,
"consi confer power but not ensure that power exercised wisely (with high capacity & integrity )"
Even if consi successfully work, an attempt to improve political atmosphere,
Art 124(3) say three condition to appoint a SC judge
• HCJ +5yr or 2x HCJ
• Advocate HC + 10yr or 2x Advocate HC
• presi consent as "distinguished jurist"
1&2 can good but 3 ones definition is vague, or have a over-explanation like:-- a scholar who break common level by research → & indrajeet have to debate all that why a professor needs to such a situation where we need new things,
• Lawyer are against JAC, opposed current Collegium, actually they seek there involvement, & only sough to make collegium sys more transparent
• They say if JAC → "cure will be worse than disease"
Really awake some concepts
• This all not solve democratic accountability, → first reason why collegium scrapped,
In consti, SC judge have given power of check & balances → they strike down law made by parli, it they violate consi, (Keshavnanda Bharti'73) → so its totally undemocratic if selection of such powerful body is done by some law learned wo/men, who are unelected & not represent people, & @ last virtually irremovable, esp. a stringent impeachment process,
Judge choose judge on basis of only technically qualification
o But in this time we also need social & constitutional philosophies this should be taken in appointment process,
o even when a HC lawyer is selected it : they look @ his level of practice, income, major argument, etiquette @court, etc
o But HC judge chosen on bases of seniority
o But we sought only one philosophy = consi philosophy
o
o A question on various judgment by SC, like:-- holding reservation in superspeciality/PG in AIIMS = unconstitutional, by saying to maintain talent → totally uncertain judgment which not involve any qualification, just a bald statement
• Although it may be due to pressure on judges, but it can't justify this judgment, as reservation = 63yr old phenomenon practicing by nation,
• Sibbal say: he continue existing reservation sys,
Judiciary not have knowledge of HR management, as we already saw many judge have tenure of days only there nepotism give chance to all to became apex, 14- 18 days are there tenure,
o Its serious affect is that no one give a good governance/inputs,
o So proposed sys give a HR man to ensure a sufficient tenure,
o Similar situation is @HC - here tenure = 3-6 months
Above point also raise a new point that, is these HC/SC short term judges give good recommendation for appointment of another judge, can they measure there ability in such a short time, can even they worry/investigate about quality of thereSucceeders,
o Is they give CJ post so that after retiring they extract CJ benefits, are they not cartel to give benefit to all,
• Even when they found it mandatory a 2 yr term for DGI(Police)
The hindu compilation on various article
Indrajeet singh
• In '1937, US, Roosevelt replace many SC judges by puppet as they are obstructing him to pass a bill which ↑↑deficit of US, by Judicial Procedure Reform Bill, although his intention = noble, + it also not compromised judicial independence,
• But in India = its intention = differ,
• Collegium = small/powerful/unaccountable → RS passed bill to scrap it,
• Art 124 estb& determine SC,
• Many say if this time then again further parlia amend laws → make JAC sys total in there favor, & it became then easier to amend such law again,
• UPA in furry to pass this bill on sacrificing independence of SC, = is to hide there culprits in all there scams like:-- coal, 2G & other fancy scams, before '14 election as @'14, 10SCJ are retiring, → make UPA a good chance to win to reap this benefit, it also benefit them for flagships like:-- NFSB, & Land acquisition,
• But this short term govt reputation gain → affect our long term goal of separation of power,
Some remaining work @judicial reform
• Key area of reform in Law
Appointment of judges,
Working of judicial sys
Modernization key economic legislation
Restoring independence & dignity of law officer of govt
National Judicial appointment commission (JAC)
• Appointment of judge @current in constitutional court is by collegiums(made'93by judges) HC&SC judge, but now political sys influence(as politician say it not work) this collegiate → need to replace it with JAC
o But only making JAC not work, we have to estb SOP's for JAC, with transparency,
o It also note down setting of JAC not done by legislation alone
Some new against JAC
o Its endless debate to decide who appoint judges,
o Art 222 says presi appoint HC judge court with consult of CJI,
o But proposal of JAC = great threat to judicial independence, although it require a consi amendment,
o As JAC bill seek appointment of JAC for SC/HC judges,
o Minister say we both have equal stake so both have equal right,
• But bill only seek Union Govt demand, & not seek collegium reform,
• Principally say that sys = not transparent, + personal like & there interest are there, as meritorious candidates are sidelined many times, without reason,
o But even SC say "consult with CJI" is only due to prevent appointment from political interference, as present sys of collegium also a result of SC two case decision & apply from'1990
• So complaint of CG that they not consulted in process = wrong as presi = there candidate
o But executives are upset as they have fucked many times, like:-- 2G coalgate, + also fucked by CAG CEC etc
o But we can see history full of events to undermine constitutional body independence, like:--
• Next day afterkeshavananda case verdictindira remove 3 judges ( which give verdict against CG ) & appoint a her side judge & win 3 case → bank nationalisation, kesavnanda, privy purse
• This all led to protest as it is a great threat to judicial independence,
• Also after '75 emergency & losing case of using state power for election, she transferred 16 judges, → sucks morale of fearless judges,
o + @ emergency, consti is extensively amended, like:--
• Judicial review eliminated, 2/3majority of judges = mandated to invalidate legislation, press censored, & opposition leader detained, without trial,
o @second term of indiragandhi he again try to access judge independence → SC make CJI review mandatory,
o Post-'80, it was widely seen that CJI recommendation = neglected by executives,
o 1993-till date, collegium sys, although it have some shortcomings, but it need reform not abolished& replaced with a already failed sys that take independence of judicial,
• As JAC structure show they have a politician majority like:--
• CJI +2 SCJ - on one side
• Law minister, 2 eminent person, justice secretary, leader of opposition, PM → other side ( = people representatives )
o but we see present sys is now superior one but need some reform only,
o & attempt to restore political dominance @ judicial appointment only subvert basic consi structure, → became a recipe for disaster, so resist it,
• Centre to likely dismantle collegiums sys to appointment of judges
o @collegiums sys: 2/more judges only appoint judge
o @ JAC: there are govt politician also
Advocates are against collegium as it appoint bad judges via nepotism, but they also disagree with CG-JAC = which is also other tool to play nepotism,
• @jun 276/904 vacancy @ HC,
o Most states canvassing for appointment based on : caste, community, political, & other (non-merit)considerations.
Collegium experiment
• Emergency & post emergency witness of attempt to muzzle judiciary by executives, here are from where idea of collegium developed, in which senior most HCJ/SCJ appoint other judge without/merely consulting executive, but after 20 yr sys experienced corruption → & last in sys there are judges with incompetent, inefficient, ethically compromised
o In may'13, 1k lawyer of Pun & Haryana HC protest for 7 names recommendation @collegium sys, saying "nepotism/favoritism"
o @jun'13 Madras HC Advocate association gave presentation to CJ-HC about low standard of collegium recommended names & say appointment based on other factors, We @ bar deeply distressed, even alarmed by this partisan appointment, → a deep future where judicial institution interest have sacrificed at alter of personal interest
Consequences of poor judges
• Long delay (even many judge retire w/o giving judgment)
• Inability to organize time effectively for there board → main = wasting other member's time
• Lack of clarity & clean reasoning in judgment
• Lack of knowledge even basic principal of laws
• Lack of ability & willingness to learn
• Ghost writing of judgment
Ultimately eroding of respect & confident in judicial process, even many people conception is also like this that "judgment delivered is based on states canvassing&personal affinities with particular member of bar/litigantthis all give pain to us & also to state, it put down moral & motivation of lawyer Make them weak to perform thereduty → @ last they want transparency in appointment criteria of those judges
o For many yr although bar council demand transparency in judicial appointment, but now major concern secrecy surround appointment
o Real issue is "how judges appointed" & not who appointed, irrespective whether it executive/judiciary/JAC as long as appointment is opaque & made on personal consideration,
Solution :
• Sys of UK JAC:@UK Constitutional Reform Act'05 make merit =sole base for judge selection, + need a good character also, while JAC try to diverse selection from many sectors,
• JAC's criteria based on 5 terms:
Intellectual capacity:
• High level of expertise @ chosen/specific area of there professional
• Ability to quickly absorb & analyze info
• Appropriate knowledge of law & understanding of principal
• Ability to acquire this knowledge where necessary
Personal qualities:
• Integrity & independence of mind
• Sound judgment
• Decisiveness
• Objectivity
• Ability & wiling to learn & develop professionally
• Work constructive
3. Understanding & dealing fairly:
• Treat each one with respect & sensitivity whatever there background
• Willing to listen with patience & courtesy
4. Authority & communication skills:
• Ability to explain procedure & any decision reached clearly
• Maintain authority when challenged
5. Efficiency:
• Work speedy @ pressure
• Organize time efficiently & produce clear reasoned judgment expeditiously
• All above quality based on evidence only,
• Public hearing of senate to appoint senior judge @US =another example of transparency, although it not possible for us but atleast we can apply principals of transparency/accountability/citizen participation in our sys,
As transparency inspire confidence in people,
At same time transparency in collegium = not new topic, itshave its root from 20yrs from SC to HC also,
o As judge bear responsibility of ensuring respect for "rule of Law" → ensure that govt is based on Consti principle & vision
Country deserve nothing less than, a learned person whose conduct is beyond doubt ' as a judge
Irrespective of whether appointment is based on, collegium/JAC/other bar council member also need to be consulted,
Our nation future is not only b/c powerful want remain powerful
Winds of change sweeping the world demanding greaterparticipation, inclusion, equity, accountability & transparency
Pendency of cases
Indian judicial sys = overloaded, understaffed, bursting as it seems,
o Case Pendency ↑↑↑↑
Many suggest → solution=↑↑judge, currently 11/1million ratio, global=50 →but it not a issue to pendency, real problem in sys of judge working As : if no new case, major state's pendency clears in 1-2yrs, → no solution to ↑↑nos of judges
National litigation (judicial proceedings)policy
A pendency problem (or judiciary) can be solved by transforming govt into responsible & efficient litigant, as most of cases are of against states
A well drafted "National litigation policy" mooted@2010 →but not implemented,
Similarly provision like:-
o Imposing actual cost of litigations → ↓↓frivolous cases + ↓↓adjournments, → so sys should work together to implement them,
With all those measures, more immediate measure to improve judiciary sys is enhance quality of justice given to high value cases (in money terms) ' esp @ foreign investment, as "commercial draft" of HC Bill scrapped @ LS @2011, as it suffered from many drafting flaws, →revised version of bill in cold storage hope so it came out now
Many important law require immediate attention:
o Key amendment to Arbitration & conciliation Act 1996, which reduce judicial intervention, & streamline ADR, →not passed yet
o Even many minister say similar amendment require to strengthening regulation on bank & insu
Law officer of govt AG, SG, ASG →now only serve there clients, president empowered to appoint AG as qualify for SC judge, but recently resignations by them spread furor → as it became many time to compromise there dignity @UPA rule → preferred to quit
Institution eroded
Fucking of 2 law officer @coalgate, →show erosion of Indian democracy/judiciary,
So now consider JAC-which appoint judges, this will even insulate these officer from political pressure, & also reduce any charge of govt management of sensitivity before consi courts, ( as the 2 law officer fucked by UPA )
These reform necessary as confidence of public eroded out from judiciary sys , not just by recent event but also via many structural & institutional flaws @present sys,
"consi confer power but not ensure that power exercised wisely (with high capacity & integrity )"
Even if consi successfully work, an attempt to improve political atmosphere,
Art 124(3) say three condition to appoint a SC judge
• HCJ +5yr or 2x HCJ
• Advocate HC + 10yr or 2x Advocate HC
• presi consent as "distinguished jurist"
1&2 can good but 3 ones definition is vague, or have a over-explanation like:-- a scholar who break common level by research → & indrajeet have to debate all that why a professor needs to such a situation where we need new things,
• Lawyer are against JAC, opposed current Collegium, actually they seek there involvement, & only sough to make collegium sys more transparent
• They say if JAC → "cure will be worse than disease"
Really awake some concepts
• This all not solve democratic accountability, → first reason why collegium scrapped,
In consti, SC judge have given power of check & balances → they strike down law made by parli, it they violate consi, (Keshavnanda Bharti'73) → so its totally undemocratic if selection of such powerful body is done by some law learned wo/men, who are unelected & not represent people, & @ last virtually irremovable, esp. a stringent impeachment process,
Judge choose judge on basis of only technically qualification
o But in this time we also need social & constitutional philosophies this should be taken in appointment process,
o even when a HC lawyer is selected it : they look @ his level of practice, income, major argument, etiquette @court, etc
o But HC judge chosen on bases of seniority
o But we sought only one philosophy = consi philosophy
o
o A question on various judgment by SC, like:-- holding reservation in superspeciality/PG in AIIMS = unconstitutional, by saying to maintain talent → totally uncertain judgment which not involve any qualification, just a bald statement
• Although it may be due to pressure on judges, but it can't justify this judgment, as reservation = 63yr old phenomenon practicing by nation,
• Sibbal say: he continue existing reservation sys,
Judiciary not have knowledge of HR management, as we already saw many judge have tenure of days only there nepotism give chance to all to became apex, 14- 18 days are there tenure,
o Its serious affect is that no one give a good governance/inputs,
o So proposed sys give a HR man to ensure a sufficient tenure,
o Similar situation is @HC - here tenure = 3-6 months
Above point also raise a new point that, is these HC/SC short term judges give good recommendation for appointment of another judge, can they measure there ability in such a short time, can even they worry/investigate about quality of thereSucceeders,
o Is they give CJ post so that after retiring they extract CJ benefits, are they not cartel to give benefit to all,
• Even when they found it mandatory a 2 yr term for DGI(Police)
The hindu compilation on various article
Indrajeet singh
No comments:
Post a Comment