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B.K.GUPTA... (ADVISOR) 28 April 2011

We need answerable judiciary

There is much hue & cry for accountability of Judiciary,be it through Judicial Accontability Bill which we do not know when it would be implemented and other through Lokpal Bill which is in the process of drafting.

What we need is ANSWERABLE JUDICIARY b'cause a layman is not confident of JUSTICE as the truth and facts of the case are very well misplaced in the jungle of citations and nobody has power to ask the judge.

A general discussion and demand for ANSWERABLE JUDICIARY is warranted.

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11 Replies

Kiran Kumar (Lawyer) 28 April 2011

much has been discussed on this issue but in the absence of legal literacy and awareness of legal provisions no major change is going to happen.

no doubt a sustantial part of the judiciary has gone corrupt but the people are also responsible for this situation.

G.Nagarajeshwar Rao (Advocate) 15 May 2011

I accept the comments of the author Mr. B.K. Gupta, now a days the post of the judge in tial court is not based upon the legal knowledge. The recruitment of the judges depends upon somany factors. Judiciary is influenced by corruption. One of my friend says that "Judicial officer is a buetiful girl. Advocates are those who are trying to flat that girl with a proposal for love. They throw flowers on that girl frequently to flat that girl. It is to the Judicial officer to accept that proposal or not. If that girl is honest, she will not flat to the guys. If the girl is not honest she will be accept the proposal of the guy". On that comment I observed that somany people try to flat a beutiful girl [i.e. Judicial officer]. If the girl is honest, no body will get success to bribe the Judicial officer. I think the judicial officer is nothing but God. They should not bend for the cheap tricks and they should not accept any bribe. The judgments should not be based upon citations on every occasion. The judgments should be coupled with "NYAYA & DHARMA". Nyaya is diferent from Dharma. When Nyaya is coupled with Dharma, we will see the better society. There is one proverb in sanskrit " Durbhalasya balam Raja". Now a days there are no rajas. The power of judge is like raja. therefore they should be cautious while rendering judgments.

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B.K.GUPTA... (ADVISOR) 28 May 2011

The analysis by Mr.Hemanth regarding inherent powers of the court is appreciable and all the more appropriate looking to the quality of justice which is deteriorating day by day.Previously lower courts were responsible and as these judges are promoted to higher courts the quality of justice in higher courts ai also diminishing.
Refresher courses for judges should be held to train the judges about such powers and to guide them about natural justice.
Citations in judgements is another problem which byepasses the truth and facts of the case and help in making the judiciary corrupt.
Judges in lower courts have started mentioning the phrase like- clean hands- to byepass the facts of the case.
Looking to the state of the judiciary these days "MAKING JUDICIARY ANSWERABLE" is important.

B.K.GUPTA... (ADVISOR) 28 May 2011

Making judiciary answerable is more important than making judiciary corruption- free.If the judiciary is made answerable one can ask for the reason for arriving at a particular decision and the probability of questioning would restrict the judge to decide the matter suitable to the interest/mindset of the judge and it naturally would improve the quality of justice and corruption would be controlled automatically.

SO RAISE YOUR VOICE FOR MAKING JUDICIARY ANSWERABLE

Sarvesh Kumar Sharma Advocate (Advocacy) 09 June 2011

There one more ANNA HAJARE is needed for the reform in judiciary!

B.K.GUPTA... (ADVISOR) 14 June 2011

Dear Mr Sarvesh

It appears very difficult to extract desirable results from Lokpal Bill.Anna Hazare's proposed Jan Lokpal Bill Draft if accepted by the Govt as proposed would be of no help as its clause 17 ,which restricts the Lokpal to consider matters which are sujudice,alone ,is strong enough to keep away the Lokpal.As you are advocate you can very well understand that how easy it is to file a case in court remotely related with the matter that may be proposed to lokpal and keep the lokpal away.

So We need Anna Hazares but they should be able to analyse the anomalies of the system.

In my opinion ACTUALLY We need ANSWERABLE EXECUTIVE,ANSWERABLE LEGISLATION & ANSWERABLE JUDICIARY .

B.K.GUPTA... (ADVISOR) 08 July 2012

Union law minister Salman Khurshid suggested Friday that judges should evolve guidelines and be more careful while making observations during court proceedings.

The minister suggested court proceedings be telecast live, citing the example of Britain.
“As far as reporting guidelines on court proceedings are concerned, please try to help the courts arrive at some rational guidelines. Judges also have to have guidelines for themselves, because a lot of things which are reported are said during trials,” Mr Khurshid said. The minister was speaking at a seminar organised by the Editors’ Guild of India.
Mr Khurshid stressed the need for the media to engage the judiciary on some agreed guidelines. “That way the courts cannot complain of misreporting or that you are putting a spin... and people won’t have to speculate and worry about what happened in court.”

B.K.GUPTA... (ADVISOR) 24 August 2012

Judicial autonomy

“The new bill prescribes less exacting procedures.”

The chief justice of India SH Kapadia’s comments on the independence of the judiciary and its accountability in a system of checks and balances are significant in the context of the discussion on the Judicial Standards and Accountability bill which is before the Rajya Sabha now. The Lok Sabha has passed the bill and the Upper House is yet to take it up. The need for the bill, which replaces the Judges Inquiry Act, has been well accepted because it provides a better system to deal with complaints of misconduct or other failings of members of the higher judiciary. The existing system which has nothing short of impeachment proceedings for effective action against an errant judge has been found to be inadequate in practice. The new bill which prescribes less exacting procedures is therefore welcome.

But some provisions of the bill have caused concern in judicial circles and the chief justice may have been giving expression to it. The clause that seeks to prevent judges from making any comments on or criticism of constitutional functionaries, statutory bodies or officials in the form of obiter dicta is seen as a gag order on the judiciary. Many such comments from the bench have helped to put the issues before the court in a better perspective, though some have been controversial too. Banning them altogether may amount to restricting judicial freedom. There is also some disquiet over the provision to have non-judicial members in the oversight committee proposed by the bill. On the other hand, the scrutiny panel which makes a study of the complaint against a judge is proposed to have only members of the same court where the judge functions. This may cast doubts about the credibility of the vetting process. These issues call for more detailed discussions. This is especially important because the Lok Sabha passed the bill earlier this year without a debate.

An important lacuna in the bill is that it is silent on judicial appointments. The present collegium system, evolved by the Supreme Court, has been criticised for its lack of transparency. The setting up of an independent commission has often been suggested for selection of judges. This may call for separate legislation and should be considered. The government has said that it is ready to make changes in order to make the bill more effective and acceptable. This will not be difficult if judicial independence and accountability are considered interdependent, as the chief justice indicated.

B.K.GUPTA... (ADVISOR) 04 September 2012

Raise the Bar for Justice
Mythili Bhusnurmath
Monday September 03, 2012, 11:32 AM

An independent and accountable judiciary is the best safeguard of citizens’ rights in a democracy

The judiciary is (once again ?) in the eye of the storm. First we had West Bengal chief minister Mamata Banerjee allege that court judgments can be bought. Soon after, we saw former finance minister and senior BJP leader Yashwant Sinha allege the Centre is ‘managing’ appointments to the higher judiciary by confirming the appointment of only those judges who are likely to give favourable judgments. Both statements — together with the Chief Justice of India (CJI) S H Kapadia’s statement cautioning the government against doing anything that would interfere with the independence of the judiciary — have put the spotlight firmly on the judiciary.

Add to that the Committee of Secretaries’ recommendation for hiking reservation in the proposed Indian Judicial Service from 25% to 50% — never mind that ‘reservation’ in the judicial services is contrary to the very idea of justice! — and it is clear it will be a while before the judiciary is back to being the least public of the three branches of the state: the legislature, the executive and the judiciary. In theory, all three are equal. In practice, according to Alexander Hamilton, a Founding Father of the US and one of its first constitutional lawyers, the judiciary is the weakest branch of the state as it has “neither sword nor purse” .

Yet, till recently, few in India would have agreed with Hamilton’s view of the judiciary. It might not have had sword or purse but it made for that with an abundance of courage and independence and had men of rare calibre and integrity. If democracy has taken root in India, unlike in Pakistan or Bangladesh, it is in no small measure because we had people like Justice Hans Raj Khanna. His decisive vote in the landmark Keshvanand Bharati case — where the Supreme Court ruled that Parliament cannot amend the Constitution to alter its basic structure — has not only ring-fenced the fundamental rights of citizens but also ensured there can be no subversion of democracy by a future rapacious state. His subsequent stand in the ADM Jabalpur case during the Emergency was equally admirable . He alone among the five judge Bench had the courage to dissent against the majority judgment that upheld the suspension of Fundamental Rights during the Emergency, a stand that was vindicated by the Supreme Court 34 years later.

If, since then, the judiciary’s image has been dented, part of the reason lies with the judiciary itself. As a result, the judiciary today is often seen as no less corrupt and, what is worse , as less accountable. Yet, the CJI, in urging the government to ensure that independence is not sacrificed at the altar of accountability, was only reiterating a principle that lies at the very heart of our Constitution: the separation of powers between the executive , the legislature and the judiciary. He was also speaking on behalf of every citizen of this country for whom access to court and judicial review are the final refuge against the excesses of the other two arms of the state. However, since his remarks came at a time when Parliament is close to passing the Judicial Standards and Accountability Bill that seeks to replace the old Judges (Inquiry) Act, 1968, and ensure better accountability of the higher judiciary , many are likely to look askance at the CJI’s remarks.

Is the judiciary apprehensive of what may happen when the present convoluted process — under which judges of high court and the Supreme Court can be removed from office only through impeachment — is replaced by the mechanism envisaged in the Bill? Since the Bill has been passed by the Lok Sabha and is pending in the Rajya Sabha, could the CJI be mounting a rear-guard action to ensure that judicial accountability remains only on paper? After all, not a single judge has been impeached to date and it can be nobody’s case that there is no corruption in the ranks of the higher judiciary. It is, therefore, good that the CJI has clarified he is not against judicial accountability . He merely wants accountability to be balanced with judicial independence so that the independence of the judiciary is not compromised. This is essential to preserve the system of checks and balances envisaged by the Constitutionmakers and ensure that no single arm of state becomes so powerful that it is no longer subservient to the ultimate authority : the Constitution of India.

Winston Churchill, the larger-than-life British Prime Minister during the Second World War put it well, “The independence of the courts is, to all of us, the guarantee of freedom and the equal rule of law… It must, therefore, be the first concern of the citizens of a free country to preserve and maintain the independence of the courts of justice, however inconvenient that independence may be, on occasion, to the government of the day.” Churchill’s remarks were made in the context of President Franklin D Roosevelt’s run-ins with the US Supreme Court that repeatedly struck down many of his New Deal programmes as contrary to the US Constitution.

To his thinking , it was incredible that in the US (as in India), and unlike in the UK, “anyone may bring a test case challenging not merely the interpretation of a law, but the law itself, and if the court decides for the appellant, be he only an owner of a few chickens, (and) the whole action of the legislature and the executive becomes to that extent null and void” . In India, where courts have stepped in innumerable times to protect the rights of citizens against the state, we need the confidence that courts can rule for the ‘owner of a few chicken’ without fear or favour even against an all-powerful state. But for that, the judiciary must first clean its own stables. Accountability and independence are not mutually exclusive
(This article is from The Economics Times Blog)

B.K.GUPTA... (ADVISOR) 04 September 2012

Judicial reforms should have priority: Moily
Hyderabad

Judicial reforms are necessary to usher in other positive changes, said M Veerappa Moily, Union Minister for Corporate Affairs, here on Sunday.

Citing the example of Singapore, Moily, a former Law Minister, highlighted the importance of judicial reforms. "In Singapore, the economic situation was in doldrums. The first thing Singapore addressed was judicial reform. It is only thereafter the economic prosperity of Singapore came.

"Just like right to information, right to employment, I think the day should come when we should have the right to justice in this country. Then we can definitely take our society far ahead," he said in his convocation address at the NALSAR University of Law here.

"Indian judiciary always served the great cause. Whenever we find that there is some confusion in terms of justice system, it is always judiciary which led the country forward," said Moily.

Talking about legal education, he said, "My slogan for legal education is expansion, inclusion and excellence. Expansion means we will have more manpower to fuel an efficient justice system...It is estimated that reducing the pendency (of cases) alone can add about two percent to our GDP."

Diversification of legal profession, especially by including lawyers from less privileged communities, would enhance the potential for representative democracy, he said.

"By practising inclusion, US law schools have ensured that underprivileged communities have sufficient representation....None other than Barack Obama used to work for the colored underprivileged community in Chicago before entering politics."

B.K.GUPTA... (ADVISOR) 04 September 2012

Judiciary must improve its credibility : former CJI

The judiciary needs to look within and finds ways of improving its credibility in the eyes of the public so that it can attract academically brilliant youngsters to join the institution, a former Chief Justice of India said on Sunday.
Former CJI Justice JS Verma said that the debate on improvement of judiciary should focus on quality of judges rather than their quantity.

"If the head of country's judiciary soon after taking oath says that integrity is his only asset then he is clearly bothered about the public image of the institution he heads," Justice Verma told a gathering of former police officers. He was referring to the statement of CJI SH Kapadia, who had immediately after taking oath in May 2010, stated that the only asset he possessed was his integrity.

Justice Verma said efficient judges held the key to proper administration of justice for citizens of the country.

"If you have judges of good quality in lower judiciary, the headache of high courts and the Supreme Court would automatically reduce, but for that to happen, you need to attract good talent," the former CJI said.

"The failure of the judiciary and even the executive in convincing all the stakeholders for conducting a national-level exam to appoint judges is a big example of self defeat," he said.