Judiciary Least Honest And
Least AccountableBy Udit Raj
09 August, 2003
Every human being is product of social structure in which he is born
and brought up and so is the case with Indian Judges. Do they perform
marriage, rituals and other essential expressions of life outside
caste and customs, barring a few? How can we expect that they will
behave completely differently from ordinary citizens? A person who
had not suffered poverty and hunger, how can he be expected to feel
the pain of the have-nots ? Nearly a hundred years ago, the US
president Roosevelt said in the decisions of the courts on economic
and social philosophy."A judge's mind is not a mechanical legal
slot machine. His judgment is influenced ,at least unconsciously, by
his likes and dislikes, prejudices and predilections, his entire
philosophy of life in the atmosphere of the ongoing social struggles
in the country, the resultant bitterness can not leave the judge
without being influenced in their judgment as to the right or wrong
of the struggle . Being members of the struggling communities they are bound to be partisan, because they share the sentiments and prejudices of their communities." Our Judiciary too is manned by such people and hence there must be effective control to keep reminding them of their duties whenever they fall apart. Framers of the Indian Constitution took exceptional care to
protect the Judiciary more than was required. It does not mean that
Judiciary behaves like oligarchy. Judges now murmur that there is no
one between them and God during litigation and court proceedings.The observation of a judge in Best Bakery case reads like "H. U.
Mahida, judge, who acquitted all the 21 accused in the case has an
answer, in fact several answers: the then British policy of divide
and rule; the emphasis on industrialization at the expense of
villages; frustration among "meritorious" people because of
reservations." Is this so called learned judge not a by product
of our caste ridden social system? Can a dalit expect any justice
from judges in respect of reservation, who are so biased? This
learned judge was so biased that he went completely out of context.
In 1996, the Supreme Court held that there are three parties in any
litigation and two of them are litigants and third one is judge
himself. If it appears that the litigants are hand in glove and are
not assisting the court to reach at conclusion, then it becomes the
duty of the judge to extract the truth from witnesses. But in case of
Best Bakery, the judge has failed to discharge his accountability.The constitution is the mother and the judiciary , Executive,
Legislature are its children but the judiciary has now defiled its
mother by misinterpreting and diluting it in many ways,. In 1981 in
the 1st Judge case - S.P. Gupta V/s Union of India (1991) the Supreme
Court held that the opinion of the Chief Justice of India does not
hold primacy in appointment and transfer matters of judges and
constitutional functionaries like the President, P.M., Governor,
Ministry of Law as per article 217 of the Indian Constitution must
be consulted. In 2nd Judge case S.C. Advocates on Record Association
V/s Union of India ,1993, Supreme Court held that the Chief Justice
of India holds primacy in transfer and posting of judges and the
process of selection of judges of Supreme Court must be initiated by
the CJI. This is complete departure from constitutional provisions.
In the case of reference case (1998) it again confirmed the primacy
of CJI. Unfortunately , there is no law to govern judiciary in this country. In the appointment of judges, no objective procedure can be followed in the present situation to judge the character, capacity and ability of a judge and sycophancy, nepotism and favoritism are the order of the day. Since plurality of hands like President, P.M., Governor, Ministry of Law are not allowed to
play a role in their appointment, therefore, appointment is bound to
be corrupt and biased. Who has given power to CJI to appoint judges?
Neither people nor the constitution of this country have given this
power to him. How can they assume and snatch executive power? Before
this the executive had a say in appointment of judges and that was
more or less fair because the executive is answerable to the people
of the country. What is the criteria of merit to select a judge?A dalit judge in Allahabad had to suffer from the behavior of his
colleague upper caste incumbent Judge , Ashok Srivastav, who washed
his chamber and furniture with Gange's water on 3rd June,1997 and
when the matter was reported, the humiliated judge, Mr. B. Brashad,
was reprimanded and was compulsorily retired. The distt. judge who
shielded the erring judge was promoted to the High Court . A judge of
Jaipur revealed his caste feeling in case of Bhanwari Devi ,he said
how can upper caste rape her? A High Court judge of Delhi compounded
the sentence under civil procedure code when a matter went before
him after sentence was conferred under Food and Adulteration Act by
lower court. Number of culprits went scot free by just paying a few
thousands of rupees whereas they would have languished in jail for
months and years. Can there be such lawlessness elsewhere and
erring persons allowed to go scot free ! Impossible .A committee on the welfare of Scheduled Castes and Scheduled Tribes
(1999-2000), comprising of 30 Members of Parliament headed by one Mr.
Karya Munda ,M.P., presented a detailed second report to Lok Sabha
on 15-3-2000 and the same was laid in Rajya Sabha on 15-3-2000. This
report was with special reference to appointment of SCs/STs judges
in higher judiciary. The committee recommended that the relevant
articles 124 and 127 of the constitution may be amended suitably to
include especially judiciary wing of the state within the ambit of
reservation , and simultaneously a Judiciary Act may be enacted to
spell out the governing principles of the proper functioning of the
judiciary, the Supreme Court and High Court .The Committee further noted that at present, majority of the High
Courts have made provisions for reservation in services for SCs and
STs under them by framing suitable rules of recruitment. However, no
such rules have so far been made by the Supreme Court. The whole
attitude of the Supreme Court is very surprising. Its Registry has
intimated that the requisite information regarding representation of
SCs and STs is not available with that office.It is further noted there has been not only no reservation for SCs
and STs in the appointment of officers and staff of the Supreme Court
but framing of codified rules regarding their recruitment has also
not been finalised during the last half century. How can the weaker
sections of the society have any faith left in such a court. The
committee was, therefore of the view that when the Supreme Court is
receiving the salaries from the Consolidated Fund of India for its
staff, it is a condition that the Chief Justice and companion judges
of the Supreme Court as well as high Courts should also implement
reservation in recruitment and promotion of the officers and servants
at various levels at the prescribed percentage and the backlog of
vacancies in the categories of Scheduled Castes and Scheduled Tribes
must be filled up by conducting special recruitment drive.When the Committee wanted to have clarification on the uneven policy
followed by the various High Courts in regard to reservation in
employment for SCs and STs in their establishment and whether this
question was ever discussed at the Chief justices' Conference held
periodically, the Ministry of Law, Justice and Company Affairs in
their post-evidence reply have stated that the agenda of the
Conference is finalized by the Supreme Court and the Department of
Justice has no role to play. They have further stated that as per
information available with them, the question of reservation in
employment of SCs/ STs in the establishments of High Court has not
been discussed in the Chief Justices' Conference held during the
last eight years. However, the information in this regard was not
supplied by the Supreme Court of India.On enquiring about figures of actual representation and percentage
of SCs & STs in the total number of officers and staff separately for
Subordinate Judicial Services, Higher Judicial Services and
Ministerial Service for each state, the Ministry of Law, Justice and
Company Affairs in their post-evidence reply have stated that
primarily the Subordinate Judicial Services and Higher Judicial
Services are the concern of the respective state Government and its
High Court. The control of the Ministerial service in the
establishment of the High Court is the exclusive domain of each High
court. The information in respect of actual representation of SCs
and STs in various High Courts' establishments is as under:-
In the order of State, Total Number of Employees, Total Number of SC Employees, And their percentage in brackets, Total Number of ST Employees, And their percentage in brackets
Allahabad 2583 Information not received
Andhra 1304 106( 8.12%) 9 (.69%) (OBC 231)
Bombay 2171 238 (10.96%) 23 (1.06%)
Calcutta 563 38 (6.75%) 8 (1.42%)
Delhi Information not received
Gauhati 462 41 (8.87%) 37 (8.00%)
Gujarat 685 60 (8.76%) 43 (6.28%)
H.P. 351 55 (15.67%) 2 (0.57%)
J & K. 354 22 (6.22%) 11 (3.11%)Karnataka 1253 103 8.22 20 1.60
Kerala* 400 30 (7.50%) ---
---Madhya Pradesh 1224 48 (3.92%) 21 (1.72%) (OBC 271)
Madras 1277 146 (11.43%) 2 (0.15%)
Orissa 595 68 (11.43%) 5(0.84%)
Patna 1151 115 (10%) 49 (4.25%)
Punjab & Haryana 684 70 (10.23%)
Rajasthan 933 42 (4.50%) 5 (0.54%)
Sikkim 107 9( 8.41%) 37 (31.58%)
*Ministerial Services
From the information furnished, the Committee found that the said
information relates to only total number of employees and the number
of SCs and STs among them and not according to categories as asked
for. However, two of the High Courts, namely Allahabad and Delhi,
have not furnished any information at all in this regard which cannot
be expected from these esteemed organizations. The Committee also
observes that the representation of SCs and STs employees in the
establishment of various High Courts is deplorable. The Committee
desired that full information relating to officers and grade wise
servicewise details in respect of employees of all the High Courts
with the break-up of SCs and STs therein should be made available to
the Committee at an early date.The Committee noted that a proposal for setting up of National
Judicial commission was made by the Commissioner for Scheduled Castes
and Scheduled Tribes more than a decade ago, which had also been
reiterated by the Law Commission of India in its 121st Report. The
Committee regretted to note that the matter was still under
examination by the Government. The Committee, therefore, strongly
recommended that a National Judicial Commission including one member
from Scheduled Caste and one member from Scheduled Tribe be set up
early in dealing with the appointment, transfer and placement of the
judges of the High courts and Supreme Court. This should be
supplemented by constituting an All India Judicial Service.The committee was surprised to see that out of 481 High
Court judges only 15SCs and 5STs were in position as on 1-5-1998 . It
held a view in the reports that the judges take oath that they uphold
the constitution and the laws. But the Supreme Court and a few High
Courts claiming power above the constitution, practice untouchablity
and are disobeying the constitution with regard to Ats. 16(4) and
16(4A).Recent incidents regarding behaviour of judges have left no doubt to
leave the system like this would spoil the whatever democratic values
are left. Poor Sumit Mukherjee was jailed because he was not
enjoying immunity and such characters are not a few but must be in
plenty. They hear those lawyers who have face value , tacit
understanding and ,of course, their relatives. Judges should not be
posted in the places where their relatives are practicing law but
examples of Delhi High Court will put to rest all doubts where 12
judges's relatives are practicing and in Allahabad, such judges are
27 in number .Thus present set up judiciary is neither honest nor
accountable. On behalf of All India Confederation of SC/ST
Organizations and Justice Party, I assure the august gathering that
our movement is with this pious mission.This paper was presented on 2nd August,03 in the convention
held on Judicial corruption and accountability at Agha Khan Hall ,
Bhagwan Das Road, N.Delhi. I thank organizers Mr.Hardev Singh,
Mr.Prashant Bhushan,Dr.Anoop Saraya ,D.C.Atri and all those who have
taken pain to rise to the occasion.Udit Raj is the National President of Justice Party