Booklet for cf ja&r


Published on

  • Be the first to comment

  • Be the first to like this

No Downloads
Total views
On SlideShare
From Embeds
Number of Embeds
Embeds 0
No embeds

No notes for slide

Booklet for cf ja&r

  1. 1. Credits:Members of the organizing committee: Rohit K. Singh (9868250545), Devvrat (9811818730), D.Leena (9811137421), Prashant Bhushan (9811164068), Indu Prakash Singh (9313327669),Reclaiming the judicial system in India: Background paperHas the judiciary turned its back to poor?A report of the seminar held on4th November 2006 atIndian Society for International Law : Compiled by D.LeenaMajesty of JusticeArticle by Justice V.R.Krishna Iyer: ASIAN AGEContempt of court: need for a second lookArticle by Justice Markandey Katju: THE HINDUComments of the Committee on JudicialAccountability on the JudgesEnquiry Bill, 2006: Committee for Judicial AccountabilityRight to information and the judiciary Prashant BhushanHas the philosophy of the supreme courton public interest litigation changed inthe era of liberalisation? Prashant BhushanCampaign Support: see back coverPrinter: Printcraft (9891094240)Cover and Layout: D.LeenaPublished: Campaign for Judicial Accountability and ReformsYear: 2007, New DelhiAddress: 14, Supreme Enclave, Tower No. 2, Mayur Vihar, Phase – 1, New Delhi 110 091
  2. 2. RECLAIMING THE JUDICIAL SYSTEM IN INDIA (Background paper for the National Convention on restructuring the judicial system)While the corporate media often lionises the judicial system as the only workingwing of the State and projects it as the only in stitution which stands in the wayof a government controlled by criminals, the vast majority of the country do notsee the judicial system as capable of providing any modicum of justice to them.The system is totally inaccessible to the poor of the country, being so formal andprocedurally complex that it can only be accessed with the help of lawyers,whom the poor cannot afford. Even those who can access it cannot hope to gettheir disputes adjudicated within a reasonable time. The majority of undertrialsspend more time during trials than the maximum sentence that can be imposedupon them. Even if they are out of jail during this time, the agony of defendingthemselves during this long trial is more painful and taxing than serving thesentence that could b e imposed. In fact, the agony of a trial through the judicialsystem has become the easiest way for the police and powerful persons who canhave the police at their beck and call, to harass, intimidate and silenceinconvenient persons, especially political activists who are trying to change theoppressive and exploitative system of the country.Even if one can get one’s case decided by the court, the course of justice is oftenperverted by corruption within the judiciary and indeed within the entire systemof administration of justice. The corruption within the judicial system is no lessthan that of any other institution of the State, and is well known to those whohave had to deal with it. It is less visible because of the lack of any system ofaccountability of the judiciary, and because the media is unwilling to talk aboutit, due to the fear of contempt. The corruption within the judiciary is exacerbatedby the total lack of accountability of the judiciary in the present system. Not onlyis there no system for disciplining corrupt judges (other than an unworkablesystem of impeachment), the Supreme Court has by a self serving judgmentremoved judges even from the ambit of criminal investigation. Thus one cannoteven register an FIR against a judge taking bribes openly without the priorpermission of the Chief Justice of India, which has never been given. Thejudiciary protects its own very zealously.On top of all this immunity to the judiciary is the power of contempt of Court,which can be and has been used by the judiciary to stifle public criticism, oreven an honest evaluation of the judiciary. This threat of contempt hasprevented a frank discussion of the judiciary by the media, which is partly thereason why there hasn’t been any serious public debate about the state of thejudiciary. And now the judiciary is even seeking to remove itself from thepurview of the Right to Information Act. After having loudly pronounced that thecitizens have a right to know everything that goes on in every public institution,the Supreme Court asks the government to effectively exempt it from the purviewof the Act by removing the jurisdiction of the independent appellate authority,the Central Information Commission over the Registrar of the Court. It was alsorecommended that the Chief Justice should be the final word in deciding 1
  3. 3. whether any information about the Court should be given out or not. Most HighCourt have not even appointed a public information officer under the Act, andthe Delhi High Court has framed rules which prohibits the release of non judicialinformation about the court, such as purchases and appointments. All this hasensured that the judiciary becomes a law unto itself, totally non transparent,and accountable to none.It is this complete in sulation from all accountability, which has led to a situationwhere it can easily transgress its jurisdiction by interfering in matters of theformation and implementation of executive policy. Under the cover of itsexpansive interpretation of Article 21 (which by itself is not objectionable),particularly the right to environment, the judiciary has been ordering theremoval of slums from the Yamuna Pushta, hawkers and rickshaw pullers fromthe streets of Delhi, and has even directed the government to take up the highlycontroversial project of interlinking of rivers. Sometimes these arbitrary powersare being exercised against the wishes of the executive, but often in connivancewith the executive, allowing the executive to do what a democraticallyaccountable government dare not do, such as demolish the Yamuna Pushtaslums of Delhi or take up the project of interlinking of rivers.The recent orders regarding the sealing of commercial establishments running inresidential areas in Delhi is another example of judicial high handedness.Though it was well within the powers of the judiciary to stop the violation of theMaster plan, it could have ordered the government to consider altering themasterplan just as they were ordering the sealing of commercial users.Moreover, it was totally beyond the jurisdiction of the Courts to order the sealingof properties even after the Master Plan had been amended to allow commercialuser in some areas, merely because they had been made to give affidavits earlierthat they would stop the commercial user by a certain date.It is this lack of accountability which has allowed the judiciary to take decisionswhich are against their declared creed regarding the rights of the poor andtrample upon their rights with such impunity. Thus, after having declared thatthe Constitution guarantees every citizen the right to shelter and livelihood, thecourts have nonetheless ordered the homes of hundreds of thousands of slumdwellers of Delhi and Bombay to be ruthlessly bulldozed, without providing themwith any alternative dwelling. They have also ordered hundreds of thousands ofhawkers and rickshaw pullers to be driven off the streets of Delhi and Mumbai,thus depriving them of their livelihood, without making any alternativearrangement for them. While this is partly due to the elitist background of thejudges and the impact of the new economic policies on their thinking, wherehuman rights have also been left to market forces, such wanton disregard forbasic constitutional values is also facilitated by the impunity engendered by thistotal lack of accountability of the judiciary. For the poor therefore, the judiciarylike the police has become an instrument of oppression rather than aninstitution for the protection of their rights. T hey have come to fear and hate thejudiciary almost as much as they fear and hate the police.The ruling establishment, particularly successive law commissions have devotedconsiderable thought to some of the problems which afflict the judiciary,particularly to that of the lethargy of the system. However, not much thought 2
  4. 4. has been devoted to some of the other problems such as access of the poor to thesystem or the elitist sensitivities and bias of the judges, or even to the issue ofjudicial accountability. And the law commissions, manned as they have been,largely by retired judges, have displayed their own establishmentarian and elitistbiases in their reports. They have therefore suggested patchwork solutionsrather than the radical restructuring of the judiciary that is required.Though a radical recommendation of a five-fold increase in the number of judgeshad been made to deal with the problem of delays, adequate thought has notbeen devoted to simplifying the judicial procedures. Hardly any thought hasbeen given to reforming the system of appointing judges so as to make it moretransparent, fair and sensitive to the poor. The solution suggested for judicialaccountability has been a feeble in house system where sitting judges aresupposed to hold their own brothers to account. And in the unlikely event thatthey hold their brother guilty, they again send the matter to Parliament forconsidering the impeachment of the judge. This is one of those recommendationsof the Law Commission which is acceptable to both the government and thejudiciary, keeping the feeble accountability introduced within the judicial family.The Judicial Council bill cleared by the Cabinet recently, seeks to give statutorystatus to the “In house procedure” for inquiring into complaints against judgeswhich was adopted by a Chief Justices conference almost 10 years ago, butwhich has hardly ever been used.However the Law Commission’s recommendations made 20 years ago about a 5fold increase in the number of judges have been gathering dust as are most of itseven somewhat radical recommendations. Neither the government nor thejudiciary has made any effort to have those adopted. The record of both theexecutive and the judiciary regarding judicial reforms does not inspire anyconfidence that they are serious about making the judicial system work. Itappears that both are content with the present non-functional andunaccountable judicial system. And for good reason too. The judges are happywith the total lack of accountability and impunity that they have in the systemand the government is happy with the non-functioning of an institution whichcould hold them to account. The media hyped skirmishes that we see betweenthe judiciary and the executive mask a much bigger partnership between theinstitutions, where they have teamed up together to do what they want withimpunity but also appropriate land and other resources from the poor and givethem away to large vested commercial interests.It appears clear that unless there is a people’s movement and a popularcampaign for judicial reforms in general and judicial accountability in particular,which puts pressure on the ruling establishment, they are not going to take anyserious steps to change the state of affairs. Unfortunately, so far, such acampaign hasn’t taken shape, partly because the people and the media haveshied away from a critical examination of the judicial system, partly also becauseof the fear of contempt.However, with the judiciary becoming more and more powe rful and increasinglyarbitrary and anti poor, allowing the administration of justice to remain in thehands of the elitist ruling establishment would be suicidal for the commonpeople of the country. Time is running out for all of us. The people need to take 3
  5. 5. charge and drive this campaign to reclaim the judicial system. Every citizen ofthe country has a vital stake in the proper functioning of the judicial system.Ignoring it will not only intensify the judiciary’s assault on the poor, it is thepath to anarchy. The rule of law cannot survive in the absence of a properlyfunctioning system for the administration of justice. The people need to reclaimthe judiciary by having it restructured in accordance with the needs of thecommon people.These considerations and concerns have prompted us to take this first step ofcalling this National Convention on Judicial reforms. All people’s movements,consumer organisations, and indeed all organisations and individuals workingon any issue of public interest are in vited to attend this 2 day convention. Wehope to initiate the discussion on all the above issues relating to the functioningof the judicial system. We hope that this convention will kickstart the process offorming a national campaign organisation and begin a national campaign on thisissue. **** 4
  6. 6. HAS THE JUDICIARY TURNED ITS BACK ON THE POOR? A Report on the Seminar 4 th November 2006 At Indian Society for International Law 9, Bhagwan Dass Raod, New Delhi A film by Ruzbeh N.Barucha – “yamuna gently weeps” was shown in the beginning of the seminar. The film was very emotive and reflected the trauma the oustees have undergone in Yamuna Pushta Demolition drive ordered by the Delhi High Court in January 2004.Welcome by Shri Prashant Bhushan,Advocate, Supreme CourtHowever, it was a very powerful film as we saw just now. There was a time, notso long ago, when the Supreme Court of India waxed eloquent about theFundamental right to life and liberty guaranteed by Article 21 of the Constitutionto include all that it takes to lead a decent and dignified life. They thus held thatthe right to life includes the right to food, the right to employment and the rightto shelter: in other words, the right to all the necessities of life.All that seems a distant dream now, given the recent role of the courts in notjust failing to protect the rights of the poor that they had themselves declarednot long ago, but in fact spearheading the massive assault on the poor,particularly since the era of economic liberalisation. This is happening in caseafter case, whether they are of the tribal oustees of the Narmada Dam, or theurban slum dwellers whose homes were being ruthlessly bulldozed withoutnotice and without rehabilitation. Similarly, the hawkers of Delhi and Mumbaihave been evicted from the streets pursuant to the orders of the court.Public Interest Litigation has been turned on its head. Roadside hawkers arebeing evicted on the orders of the Courts. Rickshaw pullers have been directedby the Delhi High Court to be removed from certain parts of Delhi, deprivingthousands of people of their livelihood, and thousands of others of a non-polluting and convenient means of transport.In cities like Delhi and Bombay, the poor no longer regard the judiciary as aprotector of their rights. It is being increasingly seen as an instrumentality of thewealthy and influential sections of society, which is now being used in tandemwith other instrumentalities of the ruling elite, like the police, to deprive the poorof whatever natural resources that they still have access to. The judiciary hascome to play an increasingly important role in the governance of the country andits role affects everyone, even those who may not be accessing the courts fortheir individual disputes. It is therefore important that there is informed public 5
  7. 7. discussion and debate on the recent role of the judiciary, particularly betweenthinking citizens who work with the poor and the judges themselves. It isimportant that the judges understand what responsible citizens are thinkingabout the role of the courts and they in turn understand the viewpoint of thejudges. We invited sensitive judges to this forum but it does not seem to happen.There is an immediate need to form a campaign and demand the accountabilityof the judges in giving anti-poor judgments; there is also a need to ask forconstructive judicial reforms.Inaugural Address by Justice J.S.VermaIt is important to begin from the infamous role of Supreme Court in A.D.M.Jabalpur case during emergency, which let down the people. The judges whowere responsible for passing the judgment had put many of us in shame. It isalso a misconception to think that it was in Maneka Gandhi’s case in 1978 thatfor the first time ‘fairness’ and ‘reasonable’ was incorporated in Article 14. It wasactually the judge Vivan Bose who in 1952 said that ‘fair justice’ and ‘reasonable’is the requirement of Article 14.We all have to make judges to do serious introspection and examine the merits.In the recent past three news items caught my attention, which is seeminglyunrelated, but to my mind they ought to be integrated. One item was thereporting on the high degree of pollution in Vapi in Gujarat. Then few days later,another news report a judgment by a single judge of Gujarat High Court, whichnot only dismissed a writ, which had allegation of pollution by an industry inVapi, but also imposed a penalty of Rs 48 lakhs on the petitioner. Even if the PILwas motivated but still Rs 48 Lakhs as penalty in India is a huge amount.In Law of Evidence, there are three things; proved, not proved and disproved. If itis not proved then there is not enough evidence. Only when it is positivelydisproved then one goes to the extent of judging against the petitioner. If this isthe case, then how many people would take the risk of filing a PIL and end –uppaying Rs. 48 lakhs.The third news was the headlines in Hindustan Times, which says GujaratMuslims give up right to buy peace. It was very sad read this item, when I amstill waiting for a culmination of the Gujarat communal violence case in which Iwas initially involved. If they give up their rights to buy peace it is the worstthing.The Directive Principles of State Policy in Article 37 was merely brought s o thatpeople do not directly bring the writ to the court. But this is what the SupremeCourt did; it read Directive Principles of State Policy into the fundamental rightsso to enlarge the scope.Well, one of the focuses of today’s meeting is displacement of slum dwellers. Thefilm also mentioned about Akshardham Temple. Every time I pass NizamuddinBridge especially at night, I am so upset seeing such a well-lit temple. Where isthe distributive justice that we have promised in the Directive Principles of State 6
  8. 8. Policy? Article 37 says these are fundamental principles in governance, whichthe legislative and the executive have to keep in mind while making laws. Thejudiciary should also keep those in mind for the purpose of interpreting the laws.Likewise, one would not consider right to food, health not merely as the right toget some food, but the right to be free from hunger, if directive principles are notread into it. The right to adequate means of livelihood in Article 39 is anobligation of the state which compels state to ensure that everyone is able tohave adequate means of livelihood. So that one is empowered enough not todepend on someone else’s charity to get food, that is our concept for a welfarestate and of distributive justice.The area occupied by the displaced families is not more than the area occupiedby the Common Wealth Games or the Akshardham Temple. There is elitepopulation, having more than one houses and have been allotted more houses inthe same area. Governments make these discretionary allotments and courtsupheld it. Olga Tellis, twenty years back, had held the right to shelter as ahuman right, right to development a basic human right and right to adequatemeans of livelihood as envisaged in Article 39. The rights in all the internationalcovenants are included in Article 14 and 21. These are the things, whichjudiciary has done earlier and if the judiciary is reversing this approach , then itis a matter of serious concern more for those who are in the judiciary.There should be greater public awareness and the people should haveparticipatory role in governance. That’s what democracy is all about. People’srole is not merely to vote at sporadic elections but to monitor constantly theperformance of all institutions including the judiciary. Judicial Accountabilityincludes all these things. There is considerable rather almost total lack of anyeffort at fair criticism of the judgments and role of judiciary.There is a ‘law quarterly review’, which reviews the modern judgments, whichcould help the judges to do self-introspection, but most of the articles written bythe advocates are to please the judges. We need to write articles which shouldobjectively analyze judgments and render a fair view.According to me, the misuse of the contempt power is something, which erodesthe credibility of the judiciary most. Even before the Act was amended, truthshould be a permissible defense. People, who don’t want to say something, takethe pretext of the contempt of court but we s hould remove this misapprehensionby encouraging honest criticism.The cause of the migration towards urban areas is related to lack of goodgovernance. The standard of education in Delhi is much higher and mostdevelopment happens in Delhi. So anyone who can afford comes here whilethose who cannot afford comes and lives in slums.If we strictly speak on legal terms then we have the law of Adverse Possession.Wherein a person occupying a piece of land for more than 12 years (againstprivate citizen) and 60 years (against the govt.) which is now for 30 years, willhave to be made owner of the land. When these provisions have legally 7
  9. 9. empowered the occupier of a particular land that the state should not be evictinginhabitants living on the land for more then 30 years.In Pannalal’s case justice Vivan Bose delivered a good judgment on AdversePossession, which was reported in AIR 1937, Nagpur. The judgment raised thatunder the Specific Relief Act, possession alone is sufficient to sue for restorationof possession of a displaced, when the suit is brought within 6 months.This shows that a person living for a long time cannot be uprooted. Whilemaking orders, the courts must read Article 21 with Article 39. So thank youvery much for inviting me, I have spoken with as much reserve as I am capableof. Session I: Impact of Recent Court Judgements on Labour Chair: Baba AdhavPresentation by Prem Krishan SharmaAdvocate, Supreme CourtAfter independence, the concept of social justice was introduced and the labourlaw developed more as a judgment law. There were various laws but with theintervention of judiciary, the labour law was moving in a progressive direction.The issues concerning the labour matters such as wage, minimum wage, fairwage, employment security, social security, etc. were initiated, right from theExpress Newspaper’s case.Between 1970 and 1980, the definition of industry was widened; employmentsecurity was given to workman as a right. The right to get the back wages if thedismissal of the workman was found to be unjustified, and the worker’s right tostrike was declared as legitimate weapon for collective bargaining. Till 1980’s,the labour laws were developed to suit the interest of working class. But now therecent judgements show that the judiciary has taken a U-turn.In the SAIL case, the courts denied the workman the right of permanentemployment while in the famous Tamil Nadu case, the right to strike was calledmorally and legally incorrect. Earlier a lawyer could successfully argue in thecourts that by striking, a workman do not lose his right of employment. But withUP State Corporation case, it has been laid down that if the workman continuesto be on strike then the employer can declare that he has voluntarily abandonedhis services.Since 1968, the burden of proof was on the party filing case against the worker.But in Municipal Corporation Faridabad’s case, the burden of proof has beencast on the worker. If the worker was retrenched, still he has to prove that heworked for 240 days, while the attendance records are with the employer. Inrecent case of Uma Devi, the court remarked that the worker does not have anyright to service even if he worked for 10 - 20 years as millions are waiting foremployment. 8
  10. 10. When it is declared that by striking a workman can lose his job, the right toprotest is lost. It is futile for the working class to fight at individual level, it canonly assert through collective bargaining. The strike is the most peaceful way toassert. The right to work includes the right to not to work but when that right isdenied, as a consequence of losing job, the workers can’t strike.After centuries of struggle, the working class got some security of employmentand the right for fair opportunity and enquiry but it has been nullified. Theworker was given the opportunity of fair hearing before he is thrown out even if ithad its own limitations. In Guzari Steel’s case, it was held that in case of thedispute between the management and the worker, the management could provethe worker guilty, the order of dismissal will be from the date when labour courthas passed the order and will not date back to the earlier order of dismissal bymanagement. But now in the recent Punjab National case, it has been laid downthat if the charge is proved against the worker in the labour court then the orderwill date back to the day of dismissal by the management.What is the practical impact of this decision? An employer can hire and fire anyworkman any time without any e nquiry and without any opportunity of hearing.And if the workman raises an industrial dispute, it takes 2 -3 years for the caseto get referred to the labour court. For instance, in Rajasthan even if theworkman goes directly to the labour court, he has to prove whether he was anemployee in the industry, which takes years. After that the management willcome into picture and defend itself.The Supreme Court in one of the recent judgements stated that the managementis the best judge to decide about the conduct of an employee and such decisionshould not be made subject to judicial review. It is only in the condition whenthe judge becomes suspicious of the role of management that the judicial reviewcomes into play but it is never practiced. It is clear that the Magna Carta createdis for the employer not for the workman. According to Justice S. B. Sinha in U.PBrass case, the interpretation of labour laws, in this changed scenario ofprivatisation and globalisation, cannot be the same as it was in 80’s.During 70s and 80s, the success rate was 95 percent in the labour courts andthe Rajasthan High Court. It was not necessary that the worker always got therelief but the judgements were upheld by High Courts and even Supreme Courtin favour of the worker. But gradually after 90’s the success rate has dropped to5 percent.Earlier when the judiciary was in support of the working class, it was not due toits pro-working class stand or greater understanding of socialism, as was in thecase of E.M.S Namboodaripad. In fact, in those days the bourgeoisie and theruling class were in need of the working class. But today the trade unionsmovements have became scattered and weak. The trade unions leaders aredependent on judicial decisions than taking the movement forward.As a trade unionist, I feel that instead of struggling with the workers on thestreets, most of our time was spent in the courts. It was nothing but betrayal ofworking class movement. Today’s judgements have defied all employmentsecurity, and the right to strike. The positive impact was that we must come out 9
  11. 11. of the illusion that the judicial system can help the struggle of working class.Judiciary is nothing but a tool in the hands of ruling classes. E.M.S.Namboodaripad had said this and was punished. In this age of privatisation andglobalisation, we cannot implement labour laws in its true sense. We need tohasten the process of coming out of this illusion and struggle with the workingclass.Dr. Baba AdhavHammal Panchayat, Pune7% of the total work force is organized labour while 93% is unorganized with nolaw to protect them. Supreme Court in Madras case denied workers the right tostrike but the doctors’ strike was termed legal. This shows what is governing thepsychology of the judiciary. We are untouchables here. For these 93% of theworkforce we demanded social security laws, which are pending since 2002.MP’s Salary bill and the 6th pay commission were passed within 24 hours.Ravinder Verma Commission worked on the umbrella legislation for 37 croreunorganized sector workers which includes social security, insurance,compensation at the time of accident and pension. Both Sonia Gandhi andManmohan Singh have given passing comment on the bill inspite of the fact theCommon Minimum Programme has felt the need of this bill. Most of thecountries like US and China have Social security laws in place.People of our country want some sort of security and self-respect. For instance,when women waste pickers took out a rally on 15 th August, they demandedSharad Pawar (then Chief Minister) that they have not come for flag hoistingceremony but want to highlight the issue of sexual abuse by police when they gofor waste picking in the morning.The government tries to find way to keep the Bill at bay; Chidamdram said thatthe government has no funds for it. It is also necessary to learn from MathadhiProtection Act in Maharashtra, where a collie have got provident fund, bonus,gratuity without taxing on anyone. So there is a lack of political will. SupremeCourt has repetitively ignored Constitutional right to livelihood, so where will theworking class go.Discussion:Com. Kelkar: 80% workers in Pune are contractual, they are modern –daybonded labour. Supreme Court, while passing anti-worker orders has neveraddressed contractual labour issue. Attempts have been made to reducepermanent workers by voluntary retirement schemes, which is also a systematicattack on the working class. It has turned the working class into slavery with noright what so ever. Employer can do and undo whatever he wants.Question: The sudden change as Sharmaji referred is due to over protectiongiven by judiciary for a long time or due to lack of interpretation of theconstitutional or legal provisions or is it d ue to the globalisation, liberalisations?Prem Krishan Sharma’s Reply: The Bangalore Suraj case, which widened thedefinition of industry, has done more harm than benefit. Earlier, High Courts 10
  12. 12. were giving certain relief to the workers, but now widening the definition, allcases has to go to labour courts. The change is due to the political thinking,earlier the ruling class was in need of the working class’s support. Now they arein need of the support of private industries.Baba Adhav’s reply: Earlier the courts used to talk about their socialistviewpoint, but now they are dictated by Liberalisation, Privatisation andGlobalisation.Lalit Batra: It seems there is no relation between the organized and theunorganized sector. The representation of the Central Trade Unions has beentoken while talking about a social security comprehensive legislation for 37 croreworkers. When NPMO was formed by central trade unions, there were 2 rallies inDelhi with more than 2 lakh people participating. But they have never showntheir strength to support the unorganized sector. Is it possible to bring these twosectors together? We should also look into the conspiracy of the government, as2nd labour commission attacked the organized sector, it is proposing the socialsecurity for the unorganized sector workers.Prem Krishan Sharma’s reply: Very well, the attempts should be made to bringtogether these two sectors.Baba Adhav’s reply: Attempts have been already made. There has been twomeetings where the central tra de unions have come together and as far as NGOsare considered, talks to involve them is on.Dunu Roy: Question to Sharmaji is that when he said that instead of strugglingin the street with the workers, they were struggling in the court rooms, whichaccording to him was a betrayal to the working class movement. Isn’t it that theunorganized sector bill will be second betrayal?Prem Krishan Sharma’s reply: The presentation showed the interpretations ofjudiciary. If the implementation policies of laws will be the same, then nothingwill change. But if new concepts are devised then things will be different.Prashant Bhushan: As the government wanted to climb to the next level ofeconomic reforms, the concept of liberalisation, privatisation and globalisationwas debated in formulating labour reforms. But politically, the left parties haveobstructed to these reforms, so the State had to get all these things donethrough judicial interventions, which would not damage their political credibility.The concept of Special Economic Zone was introduced as only way to bring incontractual labour and revive the industries. SEZs have labour flexibility, withmany provisions of the Industrial Dispute Act, Contract Labour Laws and manyother labour friendly laws not be en applicable. According to Section 49 of SEZAct, the Central Government by notification can exempt any or all SEZs from theoperations of any or all laws. This is totally unconstitutional for excessivedelegation. The court should take the issue suo-moto and should squash suchan Act. The SEZ has become a new weapon to finish the labour protection laws. 11
  13. 13. Prem Krishan Sharma’s reply: In China in 1984, there were 18 SEZ, but theyhave not removed labour protection laws from these zones. So if our country isfollowing China, it should do it entirely. Session II: The Impact of recent court the judgements on the rural poor Chair: Miloon KothariPresentation by Prof. Babu MathewCountry Director Action Aid International-IndiaThis debate is quite crucial, which is reminiscent of what happened withjudiciary during the period when India was trying to abolish Zamindari systemand introduce land reforms. While reflecting on the judiciary and its impact onthe rural poor, the most popular analysis is the class analysis but one shouldnot confine to it alone, one should also consider caste analysis. We must alsoremember the indigenous people. (They do not like to be called ‘Adivasi’ or‘Tribal’ in the North-East and perhaps the expression ‘indigenous people ’ is moreappropriate). Our general experience in civil society process is a tremendousreluctance to identify Muslims as a group of people who are also among the ruralpoor. The fisher folk, weavers, etc are the most backward communities in India.The figures show that together this section constitutes more than half of India’spopulation. So what we are witnessing today is displacement of unprecedentednature, one is at the level of scale and the other is that it is encompassing everysingle segment of the excluded. There is a tremendous relationship between thegrowth model and the model which has been imported since June 1991.Thatgrowth model is tremendously volatile and it seems the higher the growth rate is,the more would be the destruction of live lihood.According to one of the best economists Prof. Deepak Nair’s recent analysis,there was virtually no growth during the 1 st phase of imperialism in India and itbegins during the 2 nd phase. Obviously that raises a number of questions but itis important to note that a kind of a structural breakthrough vis-à-vis thegrowth which is only after independence.Prof. Nair’s analysis shows that it is not that the post-new economic policyperiod which witnessed the highest growth but in fact it begins in 1980’s itself.We are talking of a GDP of 5.9% and the government is talking of 8% and 10%.What is important here is to see the relationship between this growth model anddisplacement and the destruction of livelihood.If we think about the displacement and destruction then the indigenous peopleare worst affected. For instance, in the North East there are 168 new damsplanned, and in Andhra Pradesh 40 new dams. In terms of the mineral wealthextraction as in Orissa, Jharkhand, and Chhatisgarh, the affected population inthe region is of 70 million. Dalits, which is about 170 million, have beenagricultural labourers, there is massive displacement due to privatisation andmodernisation of agriculture. With fisher folks, it’s disaster capitalism as what 12
  14. 14. ne o-liberalism could not enter before Tsunami but was able to do it afterTsunami. So capitalism now waits for a disaster to penetrate even that segmentof the economy. This has completely destroyed the livelihood of the fisher folkthrough modernisation of the ports, fishing sector, and introduction of tourismindustry. It has destroyed their right to traditional habitat and efforts are goingon in a big way aided by the World Bank, Asian Development Bank, etc.As regards the Muslims, tremendous destruction of their artisanal occupationhas occurred. A study conducted with the Indian Social Institute reveals thatthere plight is as bad as that of Dalits and Adivasis. In the context of urban poorthe pauperisation process, is the accumulated result of what is happening inother sectors. For those who are somehow living in slum areas have to undergothe urban reform process which has been unleashed in sixty cities to destroytheir human rights to housing ad livelihood. Finally, the peasantry , which hassuffere d not only because of the agrarian crisis, but also due to the SpecialEconomic Zones.The kind of protection, which was enjoyed in the past, could have come throughconstitutional provision or through statutes or through budgetary allocations.While the judiciary could only subvert the systematic remedy (such as 5 th & 6 thSchedule) it will be more generous if it is a safety net package.The excluded population may be broadly put into three models. 1. Model A: This is a situation where the Indian State p rovided an alternate paradigm to co-exist with the dominant paradigm through a constitutional arrangement. It was semi permanent arrangement such as the fifth and the sixth schedule or legislation. 2. Model B: It is situation where the dominant paradigm accommodated transitional paradigm, through reservations. 3. Model C: It is the present situation where the dominant paradigm will exclude and destroy all other paradigms.Professor Upendra Bakshi says that the judiciary is now structurally adjusted.Through the protection of Civil Rights Act, Dalits had enjoyed some rights. Butjudiciary discovered a new category called ‘Insult Simpliciter’ in Phool Singh VsState of Madhya Pradesh, wherein the Dalits will no longer have the protection ofCivil Rights Act. M ethods to water down not only social, economic and culturalrights but also even civil and political right were sought. Simultaneously, in caseof tribal, the Samata judgement has been diluted further through theGodavaram process.It is also important to understand that the judiciary, legislature and executiveare hand in glove, which makes sure that the excluded suffer. The situationtoday is, when the executive attempts to give protection then the legislature willundo it and vice-a-versa, so it is necessary to understand the correlation.During the earlier era, the ninth schedule, which is been debated now, wasnecessary to protect land reform legislations due to the presence of the self-reliance approach. In the present era, when the liberalisationprocess has seeped 13
  15. 15. in, what are we going to really protect using the 9 th schedule? The Governmentin power knows that they will pay a prize if they blatantly follow anti -poor stand.Today, democracy is the only instrument to give some kind of protection, w hilethe neo-liberalism will get even more pro-n e o-liberal judges and of lesser qualityalso. So that’s the kind of a crisis in which we are.The expression used by jurists as the foundation of the society is ‘grundnorm’.So if we have to see the Constitution of India, today, as the grundnorm, then theelites in India would like to see this grundnorm over thrown. When Chief Justiceor the Prime Minister or the President is sworn to uphold the Constitution, itmeans that the Constitution still offers hope for the poor. But still the poor hasto make sure that the Constitution of India remains alive and retained. It neednot be that it can be achieved by Public Interest Litigations but it will be retainedby building a new political bloc. A new political bloc should include themarginalized working class, the organized and the unorganized with theprofessionals and the organic intelligentsia. This is a big challenge that awaitsus. Session III - Impact of Recent Judgements on Urban Poor Chair: Miloon KothariPresentation by Prashant BhushanAdvocate, Supreme CourtOne broad category of urban poor is the slum dwellers living in unorganizedhousing sector, having occupation of street vendors, rickshaw pullers, etc. Thisis the section, which has suffered the maximum onslaught of judicial decision inthe recent past.The earlier paradigm laid down in a number of judgments of the Supreme Courtsuch as Chameli Singh case, PUDR judgment relating to the Asiad workers,which stated that the right to live with dignity is the part of the right to life,which includes right to shelter, right to food, water, health care, education. InChameli Singh case, it was categorically said that every citizen of this countryhas a fundamental right to shelter and it is the o bligation of the state to provideshelter to those who do not have. It also becomes the responsibility of thejudiciary, as an institution to enforce the rights of the people, to take note of thesituation of homelessness and suo-moto try to find out ways in which theproblem of homelessness be addressed. Instead, PILs filed to defend these rightshave been put in cold storage such as was the case filed by Aashray AdhikarAbhiyan about four years ago.To add to it, Delhi High Court has been ordering removal of slum dwellers fromthe Yamuna Pushta on the ground of alleged pollution or on issue ofencroachment of public land. Instead of helping the people, what we saw in acase filed on behalf of National Alliance of People’s Movement, which prayed toget basic civic amenities to the slum dwellers, the court adjourned the matter formany years. But in the petition filed by middle class colonies asking for theeviction of slum-dwellers whether on Yamuna Pushta or near their middle class 14
  16. 16. colonies, the courts have ordered their removal without providing for anyalternative place, bypassing the relocation policy.It is necessary to examine the ideology and sensitivity of the judges towardsthese kinds of issues of the urban poor. Existing judiciary with a close system ofappointment will appoint more neo-liberal judges, which is seriously due to lackof judicial accountability. First they appropriate the power of appointment tothemselves, and then pass self-serving judgment as in Vira Swami’s case, whichruled that an FIR couldn’t be lodged against a judge without the consent of theChief Justice of India. So this is a catch 22 situation.I am only emphasizing to say that judiciary has become embolden to pass thesekind of judgments with impunity. It is because they enjoy immunity from anykind of scrutiny whatsoever wherein no disciplinary action is taken againstthem.Miloon Kothari’s addressIt is quite clear from both presentations that there has been a massive failure onpart of the judiciary. It is true that the basic human rights principles asenshrined in various UN conventions and covenants with regard to the displacedpopulation have not been respected. While the very basic Human Rightsprinciple is of protection of the rights of the most vulnerable has been violated,but it has moved into a direction where there is an assault on the poor andcriminalisation of the poor.DiscussionRamit Basu from United Nation Development Programme.While examining the performance of the parliament, the judiciary, the executiveand local self-governance, on the rights perspective, we believe it is important tostrengthen the governance structure. We should lessen the need to go to judicialredressal. If we look into the Supreme Court observations with regard to hungerdeaths from1998 to 2001, where, there has been gross violation of theimplementation of scheme which did not reach the poorest of the poor. When thebudget distribution systems have failed, FCI have failed; why can not we makethe judiciary ensure that people get food? why can not the Supreme Court alsotake suo-moto case and dispense a pro -poor judgement on the basis of thenewspaper reports?Babu Mathew’s replyThat every judge has his own ideology, there is no neutral judge. So from wherethe judge derives this ideology, it is from contemporary society, with neo-liberalinfluences. So the judges are no longer upholding the Constitution beyond thelegislature and the executive and the overall mode is the neo-liberal mode. 15
  17. 17. Sucharita from Lok Raj Sangathan:Prof. Babu talked about the relationship between the executive, the legislativeand the judiciary, while Prashant said the judiciary seems to have lost itsconscience. It makes us ponder that what dictates their conscience, is it the bigmonopolies or the SEZs? Moreover, working class have been giving vitalcontribution to the economy, to the industry, to the transport and to every thingthat makes the city work. Calling them ‘pick pockets’ or giving them anti-sociallabels and criminalisation of the poor needs to be highlighted. Can the city reallyfunction without all of these services? The land use has been violated numeroustimes when the State needs to build commercial structures or Akshardhams.But it is called violation of Master Plan when the traders, small shopkeepers orslum dwellers want it as their right and are named as illegal occupants. In OkhlaIndustrial Area, when the industries were setting up, they allowed the slums todevelop, as they wanted cheap labour. And today, when Okhla is developed theseslums are called encroachers. We need a united platform of all affected sections,to assert our right to life.Biju Lal from Indian Social InstituteAre we following Constitution of India or Manusmriti? In several places in Indiaone can see that Manusmriti in practice, which says that the so called lowercaste people should not own any other things than dogs and donkeys. And ifthey own a cow, then they will have livelihood. The Indian judicial system shouldbe fundamentally reviewed and the processes should involve people who areactually excluded. The BJP government had tried to revise the wholeConstitution in a very bad way, negating the livelihood rights of the people.Indu Prakash Singh from Action Aid IndiaThe biggest challenge today in the country is judiciary. I would like to ask isthere any judicial norms, can a sitting judge in full court room call people pickpockets, cheats, robbers, etc. Is there any basic ethics, which forms the part ofjudiciary? Even the parliament is scared of taking judiciary by its own; they arescared of the contempt against them. Why shouldn’t there be contempt ofconstitution against the judiciary? Prashant has mentioned about the VasantKunj Mall issue, which has been approved and cleared. At the same time wehave Bhatti Mines on the ridge where 25000 people are living for last 30 years.But it has been issued notices of eviction. The elite are spared, the poor areprosecuted. Then there is the issue of relocation of the slum dwellers who havebeen given plots 45 – 50 kms away from the city and on the basis of licenses of 5–10 years. The fear of eviction is always hanging. The preamble of theConstitution says that we the people of India give ourselves to this Constitution.But now it has become ‘we’ the judges of India have given this constitution to thecountry and its people and ‘we’ are the vanguards of this country.Swami AgniveshWe should criticise the judiciary but at the same time we should not absolve theexecutive and the bureaucracy, they are the real perpetrators. Who is taking 16
  18. 18. decision to throw people out of the slums, it’s the government and judiciary isonly stamping it. Our Prime Minister sent his minister to Narmada but did notgive cognizance to the report. It was ju diciary which asked the Prime Minister tointervene but in vain. We have no expectations from the parliamentarians. In thebonded labour case, during the demonstration Madhu Dandvate asked us tostop the protest and assured to resolve the issue. But the police lathicharged theworkers and killed 12 workers. Police illegally took thumb impressions ofworkers and fabricated against us. No hearing was given in the Supreme Court.Justice Bhagwati the then chief justice reserved the judgement. We planned aprote st, which was published in newspapers and immediately Upendra Bakshicalled up a meeting with P.N.Haskar, Nikhil Chakravarti at Justice Desai’s houseand then Justice Bhagwati was made to give the judgement during vacation.Prashant Bhushan’s replyWe can’t say that all judges have lost all their conscience, but it depends notonly on the external milieu, but also the external constraints and accountabilityof that judge. If you remove all accountability from judges which is what hashappened today the n you will have a situation where even conscience will slowlydiminish. Sucharita had said that judiciary has assumed the role of thelegislature and the executive but while interpreting the constitution if the judgesstart misusing their powers, then noth ing is above them. In fact theinterpretation of article 21 can be easily misused. They are governed by theirown predilections, if they find that interlinking of rivers is beneficial, they stillcan’t order for implementation. Judiciary has no reason to dictate to makeamendments, while they should intervene and ask the authorities to follow dueprocess. The arrogance of power has inherently corrupted their thinking andmade them not just arrogant, but also insensitive.Therefore, even though the judiciary is an important institution of the state andhas the potential of enforcing the rule of law and protecting the fundamentalrights of people, etc. But this does not mean that the judiciary should not becriticised or should not be made accountable. The point Indu raised is also anaspect of accountability. After insulating themselves from accountability, thejudges are resisting National Judicial Commission. They have recommendedamendment to the Right to Information Act suggesting that if the Chief Justiceorders that certain information cannot be given then nobody can question.So the Campaign need to debate about the kind of accountability, question theprovision of contempt of court, implementation of the Right to Information Act.And save the judiciary from getting lost.Babu Mathew’s replyWe must destroy that very process which feels that the judiciary is infallible. TheConstitution of the country is supreme so it is important to have accountableand healthy judiciary. Today when there is hegemony of neo-liberalism, our jobis to build counter hegemony, which can be done by attacking all institutions.The doctrine of separation of powers was invented to make sure that we do not 17
  19. 19. have a tyrannical institution with all powers vested in it. One of the tasks of thisplatform would be to restrain judiciary from becoming some such tyrant.Miloon KothariIt is a very good beginning and the strategies on holding the judges accountableshould be explored along with appeals to international forums. One of thepreconditions of these appeals is to exhaust local remedies, which we havealready exhausted. A collective submission from all the groups in this forum canbe addressed to the United Nations Human Rights Council and to the HighCommissioner for Human Rights. The international community has highadmiration for the Indian courts. Session IV - Changing Trends in Public Interest Litigation Chair: Swami AgniveshPresentation by Sanjay ParikhAdvocate, Supreme CourtIt is important to discuss about t reasons for developing a tool like Public heInterest Litigation and how it has transformed recently. While criticizingjudiciary one must not forget about the executive inactions of last ten years andthe recent laws passed by the legislature. It is necessary to substantiate by twoexamples, one is aquaculture case which permitted the multinationalcorporations to have their aquaculture activities at the cost of the traditionalfishermen. The second was the case on Electoral Reform wherein it wasmandatory for the candidate to give declaration of assets, immediately anordinance was brought in.When the PILs were getting developed, it was an understanding that the job ofthe courts is not to work to interpret the laws but also make the States carrytheir executive actions. Even the limited understanding of judiciary reviewcannot provide justice to what constitutes the social wrong, they are wrong tothe general public; there may be perpetuation of illegalities and executiveaccesses, either on an individual or on the society as a whole. The failure toperform public duty should not go unchecked and should not promotedisrespect for the rule of law.As the purpose of the concept of Public Interest Litigation was to make theconstitutional rights of the deprived sections meaningful. In the meantime,courts have evolved their own guidelines and principles for entertaining PublicInterest Litigation. It is also true that individuals or institutions have done agreat service to the people by addressing the issues concerning the rights ofwomen, civil liberties, custodial deaths, environment, public health and thecourts have given bold and far reaching judgements on some of these issues.At this juncture, it is pertinent to see globalisation which has the po tential towipe away the social, economic, and cultural rights of the people and nullify the 18
  20. 20. Constitution and democracy. What role the courts will have to play within theconstitutional parameters? Can the courts simply brush aside the decisions,widely affecting the rights of the people? There cannot be any just or fair reasonto depart from the march of Public Interest Litigations towards achievingequality. The debate can only be about the controlling mechanism and how toprevent its abuse, but the abuse of it by busy-bodies or persons with self servinginterest cannot give any justification to depart from PIL jurisdiction.On one hand the court has taken the right to food seriously, but on the othertook away the benefit of employment or the source of livelihood from contractlabours, daily wagers and even individual workers seeking reinstatement.Similarly, on the one hand protection of environment, forest reserves has beentaken up vigorously, but in the name of development construction of hotels andresidential apartments has been permitted in sensitive areas, big hydel projectshave been allowed by saying that precautionary principle does not apply tothem.While the industries were polluting the river Yamuna in the name ofenvironment protection, people living in the slums have been asked to shiftwithout realizing that there is a deep-rooted problem of migration. The state’sobligation to protect the life and livelihood is not meant only for haves, but alsofor have-nots.Corruption impedes deve lopment and infringes on human rights in variousprocesses of empowerment. It is realized that electoral reforms alone can bring intrue democracy to free and fair elections. But the political parties, havecompletely eroded the democratic values of the constitution, resulting in moneyand muscle power of the ruling class.For centuries the agriculture farmers had complete control over seeds,agricultural operations, etc, but it is not there today. The Breeders’ Acts, SeedAct have been amended and Protection of the Plant Varieties and Farmer’sRights Act 2001 has been introduced. These provisions have forced the farmersto shift from their traditional breeders’ rights. International law has becomerelevant while determining the legal and constitutional rights including of thepeople of our country. For example, through the intervention of the courts thepatents of Basmati rice was retained by India.Swamiji pointed out that there are very few advocates left to file the PublicInterest Litigation. There is no doubt that the executive negligence in action andviolation, corruption and political life and the legislatures has brought enormouspressure on the court. It is indeed a testing time not to give up but to fight withknowledge and conviction.Shanti Bhushan jiSenior Advocate, Supreme Court of IndiaParikh has shown as to how this principle has evolved over the years and whyPublic Interest Litigation was conceived. The judges conceived it in 70’s and 80’s 19
  21. 21. with an objective that rule of law requires, the rights of the downtrodden, humanrights and legal rights, to be enforced as the poor were not able to come to thecourts to enforce their individual or collective rights. Thus, PIL was devised asmachinery.Those were the days when we had judges like justice Krishna Iyer, justiceChinnappa Reddy, justice Bhagwati, etc. Since the tone of Supreme Court haschanged this also determines the tone of the High Courts. The Supreme Court,some years back, ruled that no commercial activity in the residential area bepermitted according to Master Plan of Delhi. There could have been twoapproaches to deal with this case - one where courts have blatantly stopped thecommercial activity and rendered lakhs jobless and the other is to direct thegovernment to amend the Master Plan according to the needs of this population.If the Supreme Court would have consisted of elected judges who weredependent on the votes of the people, they would have preferred the laterapproach. The concept of democracy depends on votes; the constitution gavepower to the votes only so that the interest of the poor could be protected.Why has this change come out in the judiciary, it’s because sometimes people ina high position including those in the judiciary think that they are the ru lers andthe people are their subjects. So, they have only replaced the Britishers.Pre-1993 era, the judges were appointed by the government that was answerableto the elected house committed to the social cause. But in 1993, a nine-judgebench of the Su preme Court gave a judgment, which took away this power fromthe executive and giving independent power to a collegium of five judges to dothe appointments of new judges. Today, the judiciary itself has appropriated thispower. Even in the U.S, Supreme Co urt judge cannot be appointed unless heappears before the senate committee and the president. The situation ofappointments in India is such that the Supreme Court judges would themselvesdecide to appoint some like-minded judges who are away from the soc ialphilosophy and reality of India. The judges belong to the most affluent class whohas never acquainted themselves with the pain and suffering of the workingpeople. This is also one of the reasons why the Public Interest Litigation concepthas taken ba ck stage.Now the PILs filed by the affluent sections are allowed and immediate orders forthe removal of slum dwellers are passed. Now the need of the hour is reformswithin judicial appointments, the campaign should demand a separate bodywhere people have power of selecting judges. If the campaign will be able toachieve that I think there would again be a reversal in the principles of publicinterest litigation.Anuradha from Hazard Center.Whether public interest is defined in any Act or Statute. Or is it a total discretionof judges to decide what constitutes public interest.Shantibhushan jiPublic interest is not defined anywhere, it depends largely on the discretion ofthe judiciary. That is why it is necessary that the social philosophy of the judgeconcerned must be on the right track. He must feel that public interest means 20
  22. 22. the public interest which is the interest of the voiceless and the downtroddenmasses who are suffering from centuries of oppression.Siddharth from Pune UniversityThe idea of the Supreme Court to hire the judges would have only occurredperhaps to remove the influence of the legislature. Hence, the mechanism was tobring about the judiciary to be independent in itself. Now, decade later it seemsthat judiciary itself have gone on an absolute power mode. So in a sense onecould say the judiciary may not be corrupt, but the judiciary has becomeautocratic.Shanti Bhushanji’s replyToday, we are talking about the corruption among the politician but a few yearsback the si tting Chief Justice of India, justice Barucha declared that atleast 20%judges in higher judiciary were corrupt. When I joined practice in 1948, it wasimpossible to think that a judge could be corrupt. Under the code of criminalprocedure, if a person has committed a crime and a FIR is lodged than the policeshould make investigation. But in case of corruption in judiciary which is clearfrom the Vera Swami case in 1990. Vera Swami was chief justice of Madras HighCourt and cash worth lakhs was recovered; the explanation given was that thechief justice’s wife was carrying on diary business. When the matter came to theSupreme Court, it laid down a new principle to maintain the independence of thejudiciary, that an FIR for any offence cannot be recorded ag ainst the judge of theHigh Court or the Supreme Court without the permission of the Chief Justice ofIndia. Chief Justice of India will never give permission for the lodging an FIRagainst his brother judges.Therefore, the judges feel that they are totally immune so they have a liberty tobe corrupt. Recently the Committee for Judicial Accountability had written tothe Chief Justice of India giving him evidence against a judge’s wife who hadpurchased land worth lakhs for only 5 lakhs and asking for permission to lodgean FIR. We are yet to receive an answer, but it is not enough to remove a corruptjudge but it is necessary to send them to jail.Vishnu PrakashjiThe impact of the liberalisation and globalisation is also on the media. The rightsof the poor have been systematically dismissed. For instance, the demolitions arehappening everywhere but the press is not reporting it at all.Swami AgniveshOnce we were protesting outside the Supreme Court, a case of contempt wasfiled against Arundhati Roy, although she was sitting peacefully and we weremaking most of the noise. The tool of Public Interest Litigation was the need andis a very important tool for advocating our rights. Though there are aberrationsbut still we have to protect this tool. Major contribution was also on part ofjudges. For instance the Master Plan of Delhi has become ball game for the two 21
  23. 23. political parties, who violated the same plan many times. It is not only judiciarybut also the executive, which is corrupt.When I was in the Janata Party and a minister there, my own governmentapplied Section 144 in industrial area of Faridabad for almost a year. When theworkers took processions, the police opened fire and 12 workers were killed.When I raised the issue in the Parliament, I was questioned and asked not toraise the issue as I was the cabinet minister. I was asked to resign and Iresigned. The very party, the Janata Party changed its stand for working for therights of the poor. There is something which changes everything just after theycome to power.This calls for the need for judicial accountability, as the judiciary has absolvedthemselves from any scrutiny, right to information, FIRs, etc. Vote of ThanksPrashant BhushanThis is only the beginning of this whole issue and the debate has to be takenforward. All of us should take the lead to organize into the strong movement onthis whole issue of judicial accountability and judicial reforms etc.Indu Prakash Singh95 people participated today, so it shows that pe ople are interested in thiscampaign. Thank you for joining. ***** 22
  24. 24. Majesty of the Judiciary By V.R. Krishna IyerAsian Age: New Delhi: 17 th February 2007The judiciary is the most sublime instrumentality in the country and I haveserved it for nearly a decade during the best part of my life. This article, writtenout of reverence for the judicature, has a benign intent meant to arrest itscorruption and decline now creeping into its vitals.David Pannick, in his delectable book Judges, wrote, "Judicial independence wasnot designed as, and should not be allowed to become, a shield for judicialmisbehaviour or incompetence or a barrier to examination of complaints aboutinjudicious conduct on apolitical criteria."That a man who has an arguable case that a judge has acted corruptly ormaliciously to his detriment should have no cause of action against the judge isquite indefensible."Quoting Judge Jerome Frank — a great author (Courts on Trial) — Pannickwrote, "Some politicians, and a few jurists, urge that it is unwise or evendangerous to tell the truth about the judiciary. Judge Jerome Frank of the USCourt of Appeals sensibly explained that he had little patience with, or respectfor, that suggestion. I am unable to conceive … that, in a democracy, it can everbe unwise to acquaint the public with the truth about the workings of anybranch of government. It is wholly undemocratic to treat the public as childrenwho are unable to accept the inescapable shortcomings of man-madeinstitutions… The best w ay to bring about the elimination of those shortcomingsof our judicial system which are capable of being eliminated is to have all ourcitizens informed as to how that system now functions. It is a mistake, therefore,to try to establish and maintain, through ignorance, public esteem for ourcourts…"Justice Jackson of the US Supreme Court once remarked, "We are not finalbecause we are infallible. We are infallible because we are final."Judges are human, though they are ordinarily of high standards and rarelycommit serious solecisms, fundamental flaws and grave goofs. Justly, therefore,even high bench pronouncements do desiderate decisional review andcorrectional reversal. So we must abandon the populist superstition aboutjudicial supremacy or curial papacy. Judges are under the Constitution, not overit. It becomes necessary to make a thorough scrutiny of the robed brethren’smoral, materialist and value-based opinions if they stultify established principlesof justice and violate Constitutional vision.Equally necessary is the need to scan the candidates for the selection of judges,especially because our country is poor, our swaraj is anti -colonial, our Republicis socialist, secular, democratic, humanist, pro-labour and pro-agrarian. Many"Lordships" hardly deserve the high office, since in their rulings they do not 23
  25. 25. share the basic values of their oath, being under the illusion of irremovable officeand aristocratic class bias. Luckily, learned, humanist and morally exemplaryjudges maintain the maje sty and high dignity of our courts, with the insolent,ignorant, corrupt and dubiously lazy, still being in a minority.A more careful investigation into their appointments is necessary, tuned to thesocialist, secular, democratic values of the Preamble. When beyond criticism,blanketed by curious "contempt law", arbitrary judges are apt to behaveunbecomingly and delay writing judgments, and even fail to write rulings.Constant vigilance of court performance is fundamental. The elitist, oligarchicand deli nquent brethren must be subjected to disciplinary action. Many of theirLordships have little concern for the spiritual-compassionate perspective ofswaraj jurisprudence and poverty-oriented justice for which India struggled andgained freedom. To shape our basic structure according to Yankee yen, MNCvalues and "Westoxication" is a betrayal of our heritage, history and commitmentto the developmental policy for the backward billions whose resources are beinggreedily privatised by billionaires, foreign and indigenous. With privatisation andglobalisation, mega-corporations are competing for power, holding our wealthand bribing our executive. So it is obligatory that our rulers, executive,parliamentarian and judicative, are scanned sedulously so that theycan upholdthe interest of the masses and the suppressed. These criteria apply a fortiori tothe judiciary in which power vests finally over the validity of the two othercrucial instrumentalities. The judiciary, claiming counterfeit finality, with no oneto question its constitutionality, usurps even executive roles and challengeslegislative autonomy.The judicature has a sublime status and commands the reverence of the peoplewhich is a great tribute to this national institution. Necessarily, judges have thehighest duty to the people of administering justice, based on fearless truth,moral rectitude and negation of addiction to power and lucre. Austerity, neverostentation, is the essence of forensic parameters. Declaration of wealth andhigh code of con duct are binding principles. High education, professional ability,advanced technology and mega-factories and wealth belong to the rich and theycontrol the country’s resources, police power and incarceratory power. If thissuperior class manages to gain judicial power too, Indian law is likely to beinterpreted and adjudicated in favour of the creamy layer and the robber sector.The weaker sector finds law to be its enemy if the instrument of law is in thehands of the higher class."There is no doubt that we are surrounded in our adult life with a wealth ofhumbugs: fame humbugs, wealth humbugs, patriotic humbugs, politicalhumbugs, religious humbugs and humbug poets, humbug artists, humbugdictators and humbug psychologists," said Lin Yutang.Prof. Griffith has observed in his book, "Judges are the product of a class andhave the characteristics of that class. Typically coming from middle-classprofessional families, independent schools, Oxford or Cambridge, they spend 20to 25 years in successful practice at the bar, mostly in London, earning veryconsiderable incomes by the time they reach their 40s. This is not the stuff ofwhich reformers are made, still less radicals." 24
  26. 26. Once Winston Churchill said in the Commons, "The courts hold justly a high,and I think, unequalled pre -eminence in the respect of the world in criminalcases, and in civil cases between man and man, no doubt, they deserve andcommand the respect and admiration of all classes of the community, but whereclass issues are involved, it is impossible to pretend that the courts commandthe same degree of general confidence. On the contrary, they do not, and a verylarge number of our population have been led to the opinion that they are,unconsciously, no doubt, biased."As David Pannick wrote, "We need judges who are trained for the job, whoseconduct can be freely criticised and is subject to investigation by a JudicialPerformance Commission; judges who abandon wigs, gowns, and unnecessarylinguistic legalisms; judges who welcome rather than shun publicity for theiractivities."(Justice V.R. Krishna Iyer is a former judge of the Supreme Court) **** 25
  27. 27. Contempt of court: need for a second lookIn a democracy the people should have the right to criticise judges. The purpose ofthe contempt power should not be to uphold the majesty and dignity of the courtbut only to enable it to function.Markandey KatjuTHE HINDU, MONDAY, JANUARY 22, 2007THE BASIC principle in a democracy is that the people are supreme. It followsthat all authorities — whe ther judges, legislators, Ministers, bureaucrats — areservants of the people. Once this concept of popular sovereignty is kept firmly inmind, it be -comes obvious that the people of India are the masters and allauthorities (including the courts) are their servants. Surely, the master has theright to criticise the servant if the servant does not act or behave properly. Itwould logically follow that in a democracy the people have the right to criticisejudges. Why then should there be a Contempt of Courts Act, which to someextent prevents people from criticising judges or doing other things that areregarded as contempt of court?In a democracy, the purpose of the contempt power can only be to enable thecourt to function. The power is not to prevent the master (the people) fromcriticising the servant (the judge) if the latter does not function properly orcommits misconduct.Article 19(1)(a) of the Constitution gives the right of freedom of speech andexpression to all citizens. But Articles 129 and 2 15 give the power of contempt ofcourt to the higher judiciary, and this power limits the freedom granted byArticle 19(1)(a). How are these two provisions to be reconciled?Once it is accepted that India is a democracy and that the people are supreme,the reconciliation can only be affected by treating the right of the citizens to freespeech and expression under Article 19(1)(a) to be primary, and the power ofcontempt to be subordinate. In other words, the people are free and have theright to criticise judges, but they should not go to the extent of making thefunctioning of the judiciary impossible or extremely difficult.The test to determine whether an act amounts to contempt of court or not isthis: does it make the functioning of the judges impossible or extremely difficult?If it does not, then it does not amount to contempt of court even if it is harshcriticism.Much of our contempt law is a hangover from British rule. But under Britishrule India was not free and democratic. Also, there was no Constitutioncontaining provisions such as Article 19(1)(a). How then can the law of thosedays be applicable today? The only situation where I would have to take someaction was if my functioning as a judge was made impossible. For example, ifsomeone jumps up on to the dais of the court and runs away with the court fileor keeps shouting and screaming in court or threatens a party or a witness. 26
  28. 28. In a speech delivered on the topic “The Law of Contempt — is it being stretchedtoo far?” the doyen of the Indian Bar Fali Nariman said the offence ofscandalising the court is a mercurial jurisdiction in which there are no rules andno constraints.He and others are perfectly correct in saying there should be certainty in thelaw, and not uncertainty. After all, the citizen should know where he or shestands. There are two reasons for the uncertainty in the law of contempt ofcourt. In the Contempt of Courts Act, 1952, there was no definition of‘contempt.’ Secondly, even when a definition was introduced by the Contempt ofCourts Act, 1971 (vide Section 2), there was no definition of what constitutesscandalising the court, or what prejudices, or interferes with, the course ofjustice. What could be regarded as scandalous earlier may not be regarded asscandalous today and what could earlier be regarded as prejudicing orinterfering with the course of justice may not be so regarded today.The view about the contempt power was first stated in England by Wilmot J. in1765 in a judgment that was, in fact, never delivered (R. vs. Almon). In thatopinion, Wilmot J. observed that this power in the courts was for vindicatingtheir authority, and it was coeval with their foundation and institution and wasa necessary incident to a court of justice. Successive courts not only in Englandbut also in other countries thereafter followed the above dictum.But from where did this authority and dignity of the court come from? InEngland, it came from the king who, in earlier times, would decide cases himself.It was only subsequently that the judicial function was delegated to judges. Thusin a monarchy the judge really exercises the delegated functions of the king, andfor this he requires dignity and majesty as a king must have to get obediencefrom his subjects. The situation becomes totally different in a democracy; herethe judges get their authority delegated to them by the people.Hence in a democracy there is no need for judges to vindicate their authority ordisplay majesty or pomp. Their authority will come from the p ublic confidence,and this, in turn, will be an outcome of their own conduct, their integrity,impartiality, learning, and simplicity.The view expressed above is, in fact, accepted now even in England. As observedby Lord Salmon in AG vs. BBB: “The description ‘Contempt of Court’ no doubthas a historical basis, but it is nonetheless misleading. Its object is not toprotect the dignity of the Courts but to protect the administration of justice.”As observed by Lord Denning in R vs.Commissioner of Police(1968): “Let me sayat once that we will never use this jurisdiction as a means to uphold our owndignity. That must rest on surer foundations. Nor will we use it to suppressthose who speak against us. We do not fear criticism, nor do we resent it. Forthere is something far more important at stake. It is no less than freedom ofspeech itself.”The best shield and armour of a judge is his reputation of integrity, impartiality,and learning. An upright judge will hardly ever need to use the contempt power 27
  29. 29. in his judicial career. I submit that the law of contempt of court can be madecertain once it is accepted that the purpose of the contempt power is not tovindicate or uphold the majesty and dignity of the court (for it is automaticallyvindicated and uphe ld by the proper conduct of the judge, not by threats ofusing the contempt power) but only to en-able the court to function. Thecontempt power should only be used in a rare and exceptional situations where,without using it, it becomes impossible or extremely difficult for the court tofunction. In such situations, the contempt power should not be used if a merethreat to use it suffices.There may, of course, be differences of opinion about what acts prevent, or makevery difficult, the functioning of a judge. For instance, do comments by thepublic (including lawyers, journalists, etc.), or publicity in the media about apending case cause this? I think not. A judge should have the equanimity andinner strength to remain unperturbed and unruffled in any situation. Theexpression ‘preventing or making it extremely difficult for the judge to function’should ordinarily be understood with reference to a judge who has a true judge’stemperament — one that is detached, calm, with equanimity, and with broaden ough shoulders to shrug off baseless criticism or at-tempts to influence himwithout being perturbed.A fresh, modern, democratic approach, like that in England, the United States,and Commonwealth countries, is now required in India to do away with the o ldanachronistic view. Contempt jurisdiction is now very sparingly exercised inthese western countries. Thus in Defence Secretary v. Guardian Newspapers(1985) 1 A.C. 339 (347), Lord Diplock observed that “the species of contemptwhich consists of ‘scandalising the judges’ is virtually obsolescent in Englandand may be ignored.”Moreover, it must always be remembered that contempt jurisdiction isdiscretionary jurisdiction. A judge is not bound to take action for contempt evenif contempt has, in fact, be en committed.Before concluding, I may refer to the book Judges by David Pannick in which hestates: “Some politicians, and a few jurists, urge that it is unwise or evendangerous to tell the truth about the judiciary. Judge Jerome Frank of the USCourt of Appeals sensibly explained that he had little patience with, or respectfor, that suggestion. I am unable to conceive ... that, in a democracy, it cannever be wise to acquaint the public with the truth about the workings of anybranch of government. It is wholly undemocratic to treat the public as childrenwho are unable to accept the inescapable shortcomings of man-madeinstitutions… The best way to bring about the elimination of those shortcomingsof our judicial system which are capable of being eliminated is to have all ourcitizens in -formed as to how that system now functions. It is a mistake,therefore, to try to establish and maintain, through ignorance, public esteem forour courts.”In this connection reference may be made to the recent amendme nt to theContempt of Courts Act (the Contempt of Courts Amendment Act, 2006), whichhas introduced a new Section 13(b) that states: “The courts may permit, in anyproceedings for contempt of court, justification by truth as a valid defence if it is 28
  30. 30. satisfied that it is in public interest and the request for invoking the said defenceis bona fide.”Thus, truth is now a defence in contempt of court proceedings if it is in thepublic interest and is bona fide. This amendment is in the right direction, andwas long overdue.(The writer is a judge of the Supreme Court. This article is adapted from a lecturehe delivered at the Indian Society of International Law, New Delhi, on January 17,2007.) **** 29
  31. 31. COMMITTEE ON JUDICIAL ACCOUNTABILITY 66 Lawyers Chambers S upreme Court of India, New DelhiMembers: Ram Jethmalani, Shanti Bhushan, D.S. Tewatia, Anil B. Divan, Indira Jaisingh,Kamini Jaiswal, Prashant Bhushan, Arvind K. Nigam, Convener: Hardev SinghComments of the Committee on Judicial Accountability on the Judges Enquiry Bill, 2006. Before making detailed comments on the Bill, it is necessary tounderstand the problem of Judicial Accountability, which this Bill seeks toaddress. The problem of Judicial Accountability, or rather the lack of it, hasbeen gradually increasing due to the progressive whittling down of whatever littleaccountability of the higher judiciary that existed earlier. This lack ofaccountability has been further accentuated by the increasing exercise of powersby the higher judiciary making inroads into by passing orders even on matterswhich are within the domain of executive policy such as interlinking of rivers,demolition of Jhuggis from the Yamuna Pushta, laying down the policy forhawkers, cycle rickshaws, etc. It is this increasing assertiveness of the judiciarycoupled with an almost total lack of accountability has led to a situation wherelarge sections of the judiciary have effectively sought to declare themselves abovethe Right to Information Act and claimed i mmunity from it. Thus, while manyHigh Courts have not even appointed Information Officers, others like the DelhiHigh Court have framed rules which prohibit the release of information onadministrative matters such as expenditures on the Judges and appointments ofclass III & IV staff of High Court by the Judges. The Supreme Court has evenrecently asked the Government to amend the Right to Information Act to removethe Supreme Court from the purview of an independent Central InformationCommission and also to provide that the Chief Justice of India can interdict therelease of information which shall not be questioned. The problem of Judicial Accountability is as follows: (i) The actions of the Judiciary on the premise of independence of the Judiciary while understandable cannot be at the expense of accountability. Accountability and independence are not mutually exclusive. (ii) The disciplinary control via the process of impeachment, which, as seen in Justice V. Ramaswami’s case, is an impractical and extremely difficult process to pursue in practice. (iii) The additional immunity with which the judges have cloaked themselves in Justice R. Veeraswamy’s case, to the effect that even an FIR for any crime committed by a Judge, can not be registered against him without the prior permission of the Chief Justice of India. (iv) The failure to even make known/disclose the complaints against judges and the action taken thereon by the so -called in -house mechanism coupled with the exemptions/exclusion being sought from the RTI. (v) The persistent failure to recognize truth as a defense in an action for contempt of court proceedings and the exercise of the power of Contempt of Court which can be and has been occasionally used to punish even legitimate criticism of the judiciary. Even if the power of 30
  32. 32. contempt has been rarely used, it is a sword which hangs over the neck of people, particularly that of the media, and has undoubtedly intimidated them from exposing the rot within the judiciary. The recently introduced amendment that truth may be a good defence in a contempt action, while mitigating the problem, does not solve the problem because, apart from the fact that it may sometimes be difficult to prove the truth of an allegation which has been made in good faith, one often needs to prove the truth of that allegation before the same Judge against whom the allegation has been made. The threat of contempt, has insulated the judiciary even further from any semblance of accountability. Of course, the judiciary, unlike the Parliament, or the Government, is not democratically accountable in the sense that it does not have to seek re-election. Now the judiciary has even sought to remove itself from the purview of Right to Information Act.It is in the above context of total lack of accountability, that this currentproposed Judges Enquiry Bill must be examined. The bill seeks to amend theJudges Enquiry Act and provide for a National Judicial Council consisting of theChief Justice of India, two senior-most Judges of the Supreme Court and twoChief Justices of the High Courts (two more Judges of the Supreme Court in thecase of an enquiry against a Supreme Court Judge) as members to enquire intoallegations of misbehavior against the Judges of the Supreme Court and theHigh Courts. The Bill also provides in section 6 that the Council may alsoinvestigate into the conduct of any person other than the Judge if it considersnecessary to do so. One change from the existing Judges Enquiry Act is thechange of composition of the Enquiry Committee from a sitting Judge of theSupreme Court, a Chief Justice of the High Court and one other Jurist (to beselected by the Speaker as provided in the existing Act), to this ex-officioCommittee of 5 sitting Judges provided in this Bill. The other change is that theenquiry, apart from being initiated on an impeachment motion presented inParliament, can also be initiated on a complaint made to the Judicial Council.The Bill further provides that the complainant must verify the complaint andalso disclose the source of his information and if the complaint is found to befrivolous, or made in bad faith or with the intent to harass the Judge, he shall bepunished with imprisonment which may extend up to one year and also to afine.If, after the enquiry, the Council holds the Judge to be guilty of misconduct, itcan, if it considers the charges do not warrant any removal of the Judge, issueadvisories, warnings, censure or admonition including requesting the Judge tovoluntarily retire or withdraw judicial work for a limited time. If it is, however,satisfied that the charges are so serious so as to warrant his removal, it shalladvise the President accordingly and the matter will be laid in the Parliament inaccordance with the procedure for impeachment and removal provided in theConstitution. It also provides that the Judge aggrieved by the order of removal ofthe President or from the final order of the Council imposing any other minorpenalty of censure, etc., may file an appeal before the Supreme Court. The Billfurther provides in Section 33 that all papers, documents and records ofproceedings related to a complaint, shall not be disclosed to any person in anyproceeding except as directed by the Council. Section 36 of the Bill further 31
  33. 33. provides that the restatement of judicial values adopted in the Chief Justices’Conference of 1999 shall be record of conduct and can be further amended bythe Judicial Council. These are the salient features of the Bill.The positive features of the Bill are that it creates another statutory procedurefor initiating an enquiry into the allegations of misconduct of a Judge. Whileearlier it could only be done by an impeachment motion, it can now also be doneagainst complaints made by individuals to the Judicial Council. The otherpositive feature is that the restatement of judicial values of 1999 adopted by theChief Justices’ Conference is given statutory status by this Bill.However, the above relatively minor positive features of this Bill, areovershadowed by far more serious problems with the Bill which, in our opinion,is going to reduce whatever little accountability of Judges remained under thepresent Judges Enquiry Act. This is for the following reasons: (a) The Committee of 3 Judges/Jurists under the existing Judges Enquiry Act, 1968 are to be selected by the Speaker and at least one of these three could be outside the sitting judiciary. In the present Bill, the Judicial Council is an in-house Council of sitting Judges which is similar to the Judicial Council proposed when the restatement of judicial values was adopted by the Chief Justices’ Conference in 1999. This in-house body of sitting judges, hardly ever enquired into allegations against judges, much less recommended any action against judges in the last many years it existed. Even in the recent case of serious allegations against Justice Jagdish Bhalla which was backed by documentary evidence and official reports, the in house procedure under the restatement of judicial values was not resorted to by the Chief Justice of India and instead the Collegium, without even causing an enquiry to be made into the charges, recommended his elevation as Chief Justice of Kerala. Even in the other case of a serious charge against Justice Vijendra Jain of the Delhi High Court, when he had decided the case of a litigant (Hari Ram) in his favour despite the fact that he knew the litigant well enough that his grand daughter’s marriage had taken place from his official residence, it was ignored by the Chief Justice by saying that the Supreme Court did not have disciplinary powers against judges. However, when it was pointed out that under the restatement of judicial values, charges against the Judge to be enquired by an in- house Committee of Judges, the Chief Justice said that he had looked into the charge and did not find any merit in it. He thus dismissed the charge without even any in -house enquiry and without assigning any reasons. (b) The in-house Committee of Judges is not an appropriate mechanism to enquire into the conduct of their brother judges with whom they sit in the Court every day. It is common knowledge that Judges regard their brother judges as part of their judicial family and also find it very embarrassing to hold any of their brother judges guilty o f any misconduct. It is, therefore, highly unlikely that they would be able to dispassionately decide allegations against their own brother judges with whom they are sitting in and out of courts day after day. It is in fact more likely that the complainant would be strictured and even 32