What is the “test” to
measure the effectiveness of Collegium Scheme of Appointment
1.
In this write up, I am
trying to invent a “test” to measure the effectiveness of Collegium Scheme of
Appointment of Judges at High Courts and at Supreme Court of India.
2.
The Collegium scheme of
Appointment, the center of controversy, first of all, it must be understood,
and in my view, is opposed because of complete lack of transparency in its
process, and is not opposed per se.
3.
Whereas the current CJI
R. M. Lodha defends the “indefensible” this Non transparent system, I ask
myself, what could be the authentic test to measure the effectiveness of this
scheme. And why I say it is
"indefensible", is because, said "opaque Scheme" is
justified in the backdrop, where "open court" is the hallmark and
chief attribute of any justice dispensation scheme.
4.
I believe, for this, we
should be vising Article 50 of our Constitution, the premise on which this
system was engineered. The Article reads as – Separation of Judiciary
from executive: The State shall take steps to separate the judiciary
from the executive in the public services of the State.
5.
Therefore, broadly
speaking, the whole idea of engineering this scheme was to restrict the
interference of Executive Government in the functioning of judiciary, so that
the Judges so appointed, may safeguard the Constitutional mandate, norms and
standards, without any influence / “fear or favour” emanating from
the Executive Govts.
6.
Therefore, the authentic
test, in my view, is WHETHER the Judges appointed under the said “Collegium
System” have been able to – “Generate fear” among the deeply corrupt Executive
/ Bureaucracy of India, in their brazenly frustrating Constitutional mandate /
norms and standards.
7.
I believe, the Executive
Govts / Bureaucracy, assumes “NO FEAR” from present tribe of Judges who are
appointed under the Collegium system; and they brazenly and with near impunity
frustrate the Constitutional mandate / norms and standards.
8.
There would be countless
precedent from the Apex Court itself, assailing the brazen and never ending deceitful
behaviour of Executive Govts. & Bureaucracy of India. The “Police Reform”
judgment, which is passed in the year 2006, is a demonstrative illustration of
brazen defiance of Apex Court Orders, by all Executive Govts. The Corruption, is
lingering restlessly in the social atmosphere like an unfinished question [some
of the said observations are listed at the end of this write up].
Sandeep Jalan
Advocate.
Observations made by
Apex Court in respect of criminalization of Politics in India, in the case of
Union Of India Versus Association For Democratic Reforms [2002 (5) SCC 294 :
AIR 2002 SC 2112] –
In Para 2: During the
course of hearing, we got an impression that learned counsel for all the
parties, including the Union of India and the Election Commission of India, are
agreed that there is a need to check criminalization of politics and misuse of
money or muscle power during elections. So far as this aspect is concerned,
therefore, all the parties appear to be in agreement.
Para 6.2 of the report
of the Vohra Committee of the Government of India, Ministry of Home Affairs,
which reads as follows:-
"6.2 Like the
Director CBI, the DIB has also stated that there has been a rapid spread and
growth of criminal gangs, armed senas, drug Mafias, smuggling gang, drug
peddlers and economic lobbies in the country which have, over the years,
developed an extensive network of contacts with the bureaucrats/Government
functionaries at the local levels, politicians, media persons and strategically
located individuals in the non State sector. Some of these Syndicates also have
international linkages, including the foreign intelligence agencies. In this
context the DIB have given the following examples _
(i) In certain States
like Bihar, Haryana and UP, these gangs enjoy the patronage of local level
politicians, cutting across party lines and the protection of Governmental
functionaries. Some political leaders become the leaders of these gangs, armed
senas and over the year get themselves elected to local bodies State Assemblies
and the national Parliament. Resultantly, such elements have acquired
considerable political clout seriously jeopardising the smooth functioning of
the administration and the safety of life and property of the common man
causing a sense of despair and alienation among the people;
(ii) The big smuggling
Syndicates having international linkages have spread into and infected the
various economic and financial activities, including havala transactions,
circulation of black money and operations of a vicious parallel economy causing
serious damage to the economic fibre of the country. These Syndicates have
acquired substantial financial and muscle power and social respectability and
have successfully corrupted the Government machinery at all levels and yield
enough influence to make the task of Investigating and Prosecuting agencies
extremely difficult; even the members of the Judicial system have not escaped
the embrace of the Mafia;
(iii) Certain elements
of the Mafia have shifted to narcotics, drugs and weapon smuggling and
established narco-terrorism networks specially in the States of J and K,
Punjab, Gujarat and Maharashtra. The cost of contesting elections has thrown
the politician into the lap of these elements and led to a grave compromise by
officials of the preventive/detective systems. The virus has spread to almost
all the centres in the country, the coastal and the border States have been
particularly affected;
(iv) The Bombay bomb
blast case and the communal riots in Surat and Ahmedabad have demonstrated how
the India underworld has been exploited by the Pak ISI and the latter's network
in UAE to cause sabotage subversion and communal tension in various parts of
the country. The investigations into the Bombay bomb blast cases have revealed
expensive linkages of the underworld in the various governmental agencies,
political circles, business sector and the film world".
Para 11: Mr. K.K.
Venugopal, learned senior counsel appearing on behalf of Election Commission
exhaustively referred to the counter affidavit filed on behalf of Election
Commission. At this stage, we would refer to some part from the said affidavit.
It is stated that issue of persons with criminal background' contesting
election has been engaging the attention of the Election Commission of India
for quite some time; even Parliament in the debates on 50 years of independence
and the resolution passed in its special Session in August, 1997 had shown a
great concern about the increasing criminalisation of politics; it is widely
believed that there is criminal nexus between the political parties and
anti-social elements which is leading to criminalisation of politics; the
criminals themselves are now joining election fray and often even getting
elected in the process. Some of them have even adorned ministerial berths and,
thus, law breakers have become law makers.
Para 48: In
Dinesh Trivedi, M.P. and Others V/s. Union of India and Others [(1997) 4 SCC
306], the Court dealt with a petition for disclosure of a report submitted by a
Committee established by the Union of India on 9/07/1993 which was chaired by
erstwhile Home Secretary Shri N.N. Vohra which subsequently came to be
popularly known as Vohra Committee. During July, 1995, a known political
activist Naina Sahni was murdered and one of the persons arrested happened to
be an active politician who had held important political posts and newspaper
report published a series of articles on the criminalisation of politics within
the country and the growing links between political leaders and mafia members.
The attention of the masses was drawn towards the existence of the Vohra
Committee Report. It was suspected that the contents of the Report were such
that the Union Government was reluctant to make it public.
(Congress + NCP Govt.)
In the case of State of Maharashtra versus Sarangdharsingh
Sihivdassingh Chavan (2011) 1 SCC 577, the Apex Court observed to
say that –
Para 36 We cannot shut our eyes to the stark realities. From the National
Crime Records Bureau (NCRB), it is clear that close to two lakh farmers
committed suicide in India between 1997 and 2008. This is the largest sustained
wave of suicides ever recorded in human history. Two thirds of the two lakh
suicides took place in five states and those five states are Maharashtra,
Andhra Pradesh, Karnataka, Madhya Pradesh and Chhattisgarh. Even though
Maharashtra is one of the richest state in the country and in its capital
Mumbai twenty five thousand of India's one lakh dollar millionaires reside, the
Vidarbha region of Maharashtra, in which is situated Buldhana, is today the
worst place in the whole country for farmers.
Para 54 However, what has happened in last few decades has given rise to
serious apprehensions whether we will be able to achieve the objectives which
were in the mind of the makers of the Constitution. The gap between 'haves' and
'haves not' of the society which existed even in pre- independent India has
widened to such an extent that it may take many decades before even a token
equality is restored. A small fraction of the population has evolved a new
value system which is totally incompatible with the values and ideals cherished
by the Indian society for centuries together. They believe in achieving their
goals without regard to purity of the means.
Para 56 ….However, the cases involving pervasive misuse of public
office for private gains, which have come to light in last few decades tend to
shake the peoples' confidence and one is constrained to think that India has
freed itself from British colonialism only to come in the grip of a new class,
which tries to rule on the same colonial principles. Some members of the
political class who are entrusted with greater responsibilities and who take
oath to do their duties in accordance with the Constitution and the law without
fear or favour, affection or ill will, have by their acts and omissions
demonstrated that they have no respect for system based on rule of law.
(BJP Govt.) In the case
of Nandini Sunder versus State of Chhatisgarh (2011) 7 SCC 547, the Apex Court
observed to say that –
Para 3 As we heard more and more about the situation in Chattisgarh, and
the justifications being sought to be pressed upon us by the respondents, it
began to become clear to us that the respondents were envisioning modes of
state action that would seriously undermine constitutional values. This may
cause grievous harm to national interests, particularly its goals of assuring
human dignity, with fraternity amongst groups, and the nations unity and
integrity. Given humanity's collective experience with unchecked power, which
becomes its own principle, and its practice its own raison d'etre, resulting in
the eventual dehumanization of all the people, the scouring of the earth by the
unquenchable thirst for natural resources by imperialist powers, and the
horrors of two World Wars, modern constitutionalism posits that no wielder of
power should be allowed to claim the right to perpetrate state's violence
against any one, much less its own citizens, unchecked by law, and notions of
innate human dignity of every individual. Through the course of these
proceedings, as a hazy picture of events and circumstances in some districts of
Chattisgarh emerged, we could not but arrive at the conclusion that the
respondents were seeking to put us on a course of constitutional actions
whereby we would also have to exclaim, at the end of it all: "the horror,
the horror."
Para 4 People do not take up arms, in an organized fashion, against the
might of the State, or against fellow human beings without rhyme or reason.
Guided by an instinct for survival, and according to Thomas Hobbes, a fear of lawlessness
that is encoded in our collective conscience, we seek an order. However, when
that order comes with the price of dehumanization, of manifest injustices of
all forms perpetrated against the weak, the poor and the deprived, people
revolt. That large tracts of the State of Chattisgarh have been affected by
Maoist activities is widely known. It has also been widely reported that the
people living in those regions of Chattisgarh have suffered grievously, on
account of both the Maoist insurgency activities, and the counter insurgency
unleashed by the State. The situation in Chattisgarh is undoubtedly deeply
distressing to any reasonable person. What was doubly dismaying to us was the
repeated insistence, by the respondents, that the only option for the State was
to rule with an iron fist, establish a social order in which every person is to
be treated as suspect, and any one speaking for human rights of citizens to be
deemed as suspect, and a Maoist. In this bleak, and miasmic world view
propounded by the respondents in the instant case, historian Ramchandra Guha,
noted academic Nandini Sunder, civil society leader Swami Agnivesh, and a
former and well reputed bureaucrat, E.A.S. Sarma, were all to be treated as
Maoists, or supporters of Maoists. We must state that we were aghast at the
blindness to constitutional limitations of the State of Chattisgarh, and some
of its advocates, in claiming that any one who questions the conditions of
inhumanity that are rampant in many parts of that state ought to necessarily be
treated as Maoists, or their sympathizers, and yet in the same breath also
claim that it needs the constitutional sanction, under our Constitution, to
perpetrate its policies of ruthless violence against the people of Chattisgarh
to establish a Constitutional order.
Para 5 The problem, it is apparent to us, and would be so to most
reasonable people, cannot be the people of Chattisgarh, whose human rights are
widely acknowledged to being systemically, and on a vast scale, being violated
by the Maoists/Naxalites on one side, and the State, and some of its agents, on
the other. Nor is the problem with those well meaning, thoughtful and
reasonable people who question those conditions. The problem rests in the
amoral political economy that the State endorses, and the resultant
revolutionary politics that it necessarily
spawns.
Para 6 That violent agitator politics, and armed rebellion in many
pockets of India have intimate linkages to socio-economic circumstances,
endemic inequalities, and a corrupt social and state order that preys on such
inequalities has been well recognized. In fact the Union of India has been
repeatedly warned of the linkages. In a recent report titled "Development
Challenges in Extremist Affected Areas", Report of an Expert Group to
Planning Commission, Government of India (New Delhi, April, 2008), an expert
group constituted by the Planning Commission of India makes the following
concluding observations:
"The development
paradigm pursued since independence has aggravated the prevailing discontent
among the marginalized sections of the society.... The development paradigm as
conceived by policy makers has always imposed on these communities.... causing
irreparable damage to these sections. The benefits of this paradigm have been
disproportionately cornered by the dominant sections at the expense of the
poor, who have borne most of the costs. Development which is insensitive to the
needs of these communities has inevitably caused displacement and reduced them
to a sub- human existence. In the case of tribes in particular it has ended up
in destroying their social organization, cultural identity and resource
base.... which cumulatively makes them increasingly vulnerable to
exploitation.... The pattern of development and its implementation has
increased corrupt practices of a rent seeking bureaucracy and rapacious
exploitation by the contractors, middlemen, traders and the greedy sections of
the larger society intent on grabbing their resources and violating their
dignity." [paras 1.18.1 and 1.18.2, emphasis supplied]
Para 7 It is also a well known fact that Government reports understate,
in staid prose, the actuality of circumstances. That an expert body constituted
by the Planning Commission of India, Government of India, uses the word
"rapacious", connoting predation for satisfaction of inordinate
greed, and subsistence by capture of living prey, is revelatory of the degree
of human suffering that is being visited on vast sections of our fellow
citizens. It can only be concluded that the expert body, in characterizing the
state of existence of large numbers of our fellow citizens, in large tracts of
India, as "sub- human," is clearly indicating that such an existence
is not merely on account of pre-existing conditions of significant material
deprivation, but also that significant facets that are essential to human
dignity have been systematically denied by the forces and mechanisms of the
developmental paradigm unleashed by the State. Equally poignantly, and indeed
tragically because the State in India seems to repeatedly insist on paying
scant attention to such advice, the Expert Group further continues and advises:
"This concludes our
brief review of various disturbing aspects of the socio-economic context that
prevails in large parts of India today, and that may (and can) contribute to
politics such as that of the Naxalite movement or erupt as other forms of
violence.
Para 8 Rather than heeding such advice, which echoes the wisdom of our
Constitution, what we have witnessed in the instant proceedings have been
repeated assertions of inevitability of muscular and violent statecraft. Such
an approach, informing the decisions of the Government of Chattisgarh with
respect to the situations in Dantewada, and its neighbouring districts,
seemingly also blinds them to the fact that lawless violence, in response to
violence by the Maoist/Naxalite insurgency, has not, and will not, solve the
problems, and that instead it will only perpetuate the cycles of more violent,
both intensive and extensive, insurgency and counter-insurgency. The death toll
revealed by the Government of Chattisgarh is itself indicative of this. The
fact that the cycles of violence and counter-violence have now lasted nearly a
decade ought to lead a reasonable person to conclude that the prognosis given
by the expert committee of the Planning Commission to be correct.
Para 14 What is ominous, and forebodes grave danger to the security and
unity of this nation, the welfare of all of our people, and the sanctity of our
constitutional vision and goals, is that the State is drawing the wrong
conclusions, as pointed out by the Expert Group of the Planning Commission
cited earlier. Instead of locating the problem in the socio-economic matrix,
and the sense of disempowerment wrought by the false developmental paradigm
without a human face, the powers that be in India are instead propagating the
view that this obsession with economic growth is our only path, and that the
costs borne by the poor and the deprived, disproportionately, are necessary
costs.
Para 15 As if the above were not bad enough, another dangerous strand of
governmental action seems to have been evolved out of the darkness that has
begun to envelope our policy makers, with increasing blindness to constitutional
wisdom and values. On the one hand the State subsidizes the private sector,
giving it tax break after tax break, while simultaneously citing lack of
revenues as the primary reason for not fulfilling its obligations to provide
adequate cover to the poor through social welfare measures. On the other hand,
the State seeks to arm the youngsters amongst the poor with guns to combat the
anger, and unrest, amongst the poor.
Para 16 Tax breaks for the rich, and guns for the youngsters amongst poor,
so that they keep fighting amongst themselves, seems to be the new mantra from
the mandarins of security and high economic policy of the State. This,
apparently, is to be the grand vision for the development of a nation that has
constituted itself as a sovereign, secular, socialist and democratic republic.
Consequently, questions necessarily arise as to whether the policy makers, and
the powers that be, are in any measure being guided by constitutional vision,
values, and limitations that charge the State with the positive obligation of
ensuring the dignity of all citizens.
(BJP + Congress + JD(U)
+ JMM) The Apex Court in the case of State Of Jharkhand & Anr vs Harihar
Yadav & Ors. on 22 November, 2013 CIVIL APPEAL NO. 10515 OF 2013 (Arising
out of S.L.P. (C) No. 30291 of 2011) [(2014) 2 SCC 114)
Para 2. How does a
constitutional court respond to a situation when a human problem of great
magnitude frescoed on constitutional canvas gets painfully projected with
intense sincerity, possibly realizing pain is one of the “sovereign masters of
mankind”? How is the Court required to react in law when the workmen are forced
to grapple with a colossal predicament of sense of belonging due to a situation
created making them feel that they are neither here nor there? We consider it
as an unbearable tragedy faced by the unfortunate employees warranting serious
attention of this Court, for some employees have breathed their last due to
starvation, constant stress being unable to meet the keen demands of appetite,
and the impecuniosity that hampered them to avail timely treatment, and some
families have been unwillingly driven to a state of unmeaningful survival – an
animal existence – sans proper food, sans clothes and sans real shelter. It is
not because of any natural calamity beyond human control but because two
States, namely, State of Jharkhand and State of Bihar deliberately have chosen
to create an Everstine catastrophe by their act of abandonment of
responsibility to pay despite availing work for some years and thereafter disowning
them and nonchalantly shifting the burden to other’s shoulder and ultimately
arguing in chorus that Jharkhand Hill Area Lift Irrigation Corporation (JHALCO)
and Bihar Hill Area Lift Irrigation Corporation (BHALCO) being companies
registered under the Companies Act, 1956, it is open to the aggrieved employees
or their legal representatives to initiate necessary winding up proceedings to
get their dues. We can only say that the stand and stance so adroitly put forth
by both the States are shorn of their constitutional accountability and
statutory answerability. In a way, it seems to be orchestrated by some kind of
abstruse and unfathomable idea fostered in fertile mind that loves to keep
helpless and hapless people in a state of despair where hope dies an
unceremonial death or it lives in a state of “Trishanku”. It indubitably
depicts a startlingly unhappy situation commanding urgent surgical intervention
so that the injury does not become malignant.
(Samajvadi Party )
Supreme Court holds Akhilesh govt guilty of negligence, orders arrest of all
Muzaffarnagar accused
Indian Express
Written by Utkarsh Anand |
New Delhi | March 26, 2014 10:22 pm
In the case of Prakash
Kadam versus Ramprasad Vishwanath Gupta (2011) 6 SCC 189, the Apex Court
observed to say that –
Para 30: Before
parting with this case, it is imperative in our opinion to mention that our ancient
thinkers were of the view that the worst state of affairs possible in society
is a state of lawlessness. When the rule of law collapses it is replaced by
Matsyanyaya, which means the law of the jungle. In Sanskrit the word `Matsya'
means fish, and Matsyanyaya means a state of affairs where the big fish devours
the smaller one. All our ancient thinkers have condemned Matsyanyaya vide
`History of Dharmashastra' by P.V. Kane Vol. III p. 21. A glimpse of the
situation which will prevail if matsyanyaya comes into existence is provided by
Mark Antony's speech in Shakespeare's `Julius Caesar' quoted at the beginning
of this judgment.
This idea of matsyanyaya
(the maxim of the larger fish devouring the smaller ones or the strong
despoiling the weak) is frequently dwelt upon by Kautilya, the Mahabharata and
other works. It can be traced back to the Shatapatha Brahmana XI 1.6.24 where
it is said "whenever there is drought, then the stronger seizes upon the
weaker, for the waters are the law," which means that when there is no
rain the reign of law comes to an end and matsyanyaya beings to operate.
Para
31 Kautilya says, `if danda
be not employed, it gives rise to the condition of matsyanyaya, since in the
absence of a chastiser the strong devour the weak'. That in the absence of a
king (arajaka) or when there is no fear of punishment, the condition of
matsyanyaya follows is declared by several works such as the Ramayana II, CH.
67, Shantiparva of Mahabharat 15.30 and 67,16. Kamandaka II. 40, Matsyapurana
225.9, Manasollasa II. 20.1295 etc.
Thus in the Shanti Parva
of Mahabharat Vol. 1 it is stated:-
"Raja chen-na
bhavellokey prithivyaam dandadharakah Shuley matsyanivapakshyan durbalaan
balvattaraah"
This shloka means that
when the King carrying the rod of punishment does not protect the earth then
the strong persons destroy the weaker ones, just like in water the big fish eat
the small fish. In the Shantiparva of Mahabharata Bheesma Pitamah tells
Yudhishthir that there is nothing worse in the world than lawlessness, for in a
state of Matsyayaya, nobody, not even the evil doers are safe, because even the
evil doers will sooner or later be swallowed up by other evil doers.
Para 33 We
have referred to this because behind the growing lawlessness in the country
this Court can see the looming danger of matsyanyaya.
Legal issues !!
If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts., including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR, deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders of the Courts / Tribunals, among others.
or
If you are looking for draft of any legal proceeding; or if you want to know the nature and attribute of any legal proceeding; or if you want to know the procedure followed in any legal proceeding; or if you want to know the grounds on which any order of the court / tribunal is challenged; or if you are facing any frivolous litigation.
Law
Referencer: https://www.litigationplatform.com/
Thank you.
Comments