Judicial Credibility in India in 21st century

1. Judicial Credibility in India in 21st century byMission Justice, MumbaiApril 2010 Serial No. 0001

2. Disclaimer All the matter is these slides has been compiled from various newspapers, news-clippings and case laws. We are not responsible in any error at the source document. If the matter, as reported in source document, has any errors, we take no responsibility for the same. This presentation is replica of the matter, as reported in source document. We have not found any challenge to the source documents. Thus, we consider the contents as reliable and true. The slide show is backed by a collection of news clippings and other sources. These can be inspected by any interested party with due notice OR we will be publishing all the clippings in a pdf file format, in due course, to have full transparency.

3. Preamble Why are we concerned? • Justice is above equality and fraternity. This means that, for other things to survive Justice is must. • If Judiciary is good, or rather, as per our expectations exceptional and marvelous, then Justice will be done. • Hardly 30 people form part of Supreme Court Judiciary to give final Justice to 100 crore plus people and hence they must be near perfect human beings.

4. Preamble If wrong impression is created by conduct of Higher Judiciary, the lower Judiciary also collapses as it has no or reduced fear and no or reduced  respect for higher Judiciary. Higher the Court, the Higher must be the conduct of the Judge, so as to make lower court accountable. Supreme Court is infallible only because it has been made and given supremacy. The Judges get all the facilities from our tax payments. All seminars and conferences/ travelling/ pension is taken care of from taxpayers monies. 4

5. Overview Justice Dinakaran case Justice NirmalYadav case Justice SaumitraSen case Justice R Raghupathi case Other Judges caught in corruption Declaration of Assets of Judges Justice Credibility Radha Krishna Episode – An insult to Hindu God Faith in Judiciary RTI Spectre Quid Pro Quo Code of conduct for Higher Judiciary in India What we want 5

6. Justice P D Dinakaran Case • Started as tenant but became landlord (as alleged) of 199 acres of fertile land during his career and even rises to become CJ of Karnataka High Court. • SC collegium recommended to elevate him as SC Judge. Despite Govt. pointing out allegation, the collegium reiterated the recommendations. Fali Nariman exhorted his fratenity to keep away from benches of collegium judges and stated ‘‘People will spit on us if we don’t boycott the collegium members,’’

7. Justice P D Dinakaran Case • Nariman said: "The gentleman (justice Dinakaran) should have been dropped like a hot cake the moment serious allegations supported by documentary evidence surfaced against him. I have no faith in the collegium system.“ • Apart from Nariman, eminent lawyers like Anil B Divan, Prashant Bhushan and Shanti Bhushan, too, are aggrieved by the collegium's attitude in keeping justice Dinakaran in the reckoning for the apex court.

8. Justice P D Dinakaran Case • Allegations against him: • Disproportionate assets, unlawful securing plots, benami transactions, agriculture land beyond ceiling limit, illegal encroaching of government land, deprive dalits and poor of livelihood, violation of human rights against dalits and destruction of evidence. • Collector of Tiruvellur confirmed the charges. • TN government also confirms this.

9. Justice P D Dinakaran Case • Top Jurist protested and Karnataka judges do not cooperate with CJ • 75 MPs serve impeachment notice • Collegium passes call on Government to get out of the critics and public outrage. Govt. does not accept this and resends it to collegium. SC collegium withholds the promotion as SC judge after initial hesitation • As on this date no data is being given whether his name is dropped or still pending.

10. Justice P D Dinakaran Case • SC collegium asks him to proceed on leave • Dinakaran defies SC collegium. • The law minister claims that Dinakaran is not above law and has to abide. • But still the will of Dinakaran prevails. • SC transfers him to Sikkim HC • Sikkim HC bar protests • Mayavati and Buta Singh gives caste / class colour

11. Justice P D Dinakaran Case • Just think… • For a case of disproportional assets, illegal encroaching, of government land, depriving dalits and poor of livelihood, violation of human rights against dalits and destruction of evidence any other person would have been arrested, inquired. Senior Advocate P P Rao said that judges had ‘‘failed’’ to live up to the responsibility of selecting judges on merit. • But, a CJ of high court is enjoying differential treatment – WHY?? (sources – Hindustan Times, Times of India and DNA of various dates)

12. Justice Nirmal Yadav Case • A Cash packet of Rs. 15 Lakhs was delivered to Justice Nirmaljit Kaur, a judge of Punjab and Haryana High Court (PHHC). • She reported to police and it was revealed that the cash was for Justice Nirmal Yadav (having same first name.) • Three independent enquiries by local police, CBI and in-house judges’ panel concluded that charges of corruption are valid prima facie against Justice Nirmal Yadav.

13. Justice Nirmal Yadav Case • There are reports that CJI took opinion of Attorney General of India and dropped the charges. • CJI rejected CBI’s request to sanction prosecution against her after discussion with Mr. Veerappan Moily, Minister for Law and Justice. The CBI makes application to withdraw and states that CJI has asked so. • Later, she was transferred to Uttarakhand High Court.

14. Justice Nirmal Yadav Case • CJI says that the matter is in between CBI and Government. • Law Ministry refused to disclose information on the recommendations by CJI. • The case seems to have been buried and closed (HT 18/01/2010) • The CBI blames CJI. • Why not hold CBI guilty for Contempt if this statement is false. • Punjab and Haryana Bar flayed the CJI. Other Bars silent

15. Justice Nirmal Yadav Case • Just think.. • For a case of outright corruption, any other person would have been arrested, inquired. • The information as to the facts of this case as sought under RTI is also denied. • But, CJI seems to be in no mood to let the truth being unveiled and covers it by sec.8 of RTI Act. • But, a judge of high court is enjoying differential treatment? WHY?? (sources – Hindustan Times, Times of India and DNA of various dates)

16. Justice Saumitra Sen Case • Misappropriated Rs. 33 Lakhs public money as court approved receiver in 1993. • Became judge of Calcutta High court. • Matter of misappropriation come to light. • Judges committee indicted him of fraud. CJI recommended for impeachment.

17. Justice Saumitra Sen Case • Matter pending in Rajya Sabha since Feb 2009 for want of a member, which CJI has most probably now appointed. • Just think.. • Before appointing a high court judge, should not the background check be conducted. After disclosure of matter, why it should take years to prosecute? • Why the plain criminal proceedings for misappropriation, frauds, breach of trust not framed against him. A judge like all public servants be brought under Prevention of corruption Act.(sources – Hindustan Times, Times of India and DNA of various dates)

18. Justice R ReghupathyCase • Justice R Raghupathi of the Madras High Court in the open court had alleged that a Union Minister through his lawyer, spoke to him on telephone seeking favours in a case being probed by CBI. CJI asks for non interference by ministers. • CJI declares that the said Judge has written to him stating that the minister did not spoke to him directly.

19. Justice R ReghupathyCase • The name of the minister is kept secret. • The letter by the Judge to the CJI – secret. • If the minister tried to influence a judge then why not hold him for contempt as he is interfering with the due process of law? • However, if the Judge made a false statement then the Judge is guilty of misconduct.. • What is the truth? How will the people know it? Will the truth be buried? Why not disclose it?

20. Judges Involved in Corruption • Justice V Ramaswami, SC Judge • Was to face impeachment proceedings in parliament but saved by Congress. • Retired sitting at home. No punishment for wrongs done. • Justice A M Bhattacharjee, CJ of Bombay High Court • Forced to resign in 1995 after receiving a disproportionate high sum of USD 800,000 as royalty from West Asia

21. Judges Involved in Corruption • Justice Aurn Madan, judge of Rajasthan HC • Forced to resign in 2003 after being indicted by judges’ committee for corruption. Also charged for sexual harassment of a woman doctor. • In a letter to President A.P.J. Abdul Kalam, Bar vice-chairman Praveen Balwada said "The burning question is whether mere obtaining of the resignation would be the just and proper punishment which ought to have been meted out to a person who has been found guilty of corruption and misconduct in the inquiry,” (sourcehttp://www.telegraphindia.com/1030519/asp/nation/story_1982947.asp)

22. Is sexual harassment not similar to Ruchika and Rathod case? Why just resignation? Higher the authority, more is responsibility and severe must be punishment for any misconduct and offence, as it is not an offence which has to be considered but also the fact that the offence has been committed by those who are the custodians of the judicial system. • Justice ShamitMukerjee, judge of Delhi HC • Forced to resign in 2003 following CBI probe of his involvement in multi-crore DDA scam.

23. Judges Involved in Corruption • Gaziabad Provident Fund scam • Thirty-six judges including one sitting Supreme Court judge, 11 Allahabad and Uttarakhand High Court Judges and 24 District Court judges are facing investigation in Rs 7 crore Ghaziabad District Court GPF scam. • No judge, out of the above, is facing impeachment as on this day.

24. Judges Involved in Corruption • Just think.. • After disclosure of matters, why it should take years to prosecute? • Why have plain criminal proceedings for misappropriation, frauds, breach of trust not been framed against these judges? Let them prove their innocence. • These cases have given belief that Corruption can also be there in Courts of Law. And has lowered the authority of Courts and those responsible are in Contempt. (sources – Hindustan Times, Times of India and DNA of various dates)

25. Declaration of Assets of Judges • Conference of Chief Justices, adopted in 1997 and other conventions adopted some cannons for Judiciary. • In 2007, S C Aggarwal files RTI application seeking details of implementation of the resolution in declaration of assets. • Supreme Court refused to provide information saying CJI is not covered in RTI. This is confirmed by CJI. • Aggarwal goes to CIC • In 2009, CIC directs SCI to disclose judges assets.

26. Declaration of Assets of Judges • SC moves Delhi HC. • Single bench of Delhi HC confirms CIC decision. The order is against CJI. • SC challenges the verdict before bench of Delhi HC. • 3 judge bench again confirms CIC decision. There is criticism against non disclosure by CJI. Now Supreme Court itself will here the case against itself. • CJI wants to change the RTI Act to put CJI out of RTI. • Wrote to PM in Sept 2009. The protocol must be that he addresses only to Law ministry.

27. Declaration of Assets of Judges • 'CJI is not the big boss of judiciary' was the stand of Karnataka high court justice DV Shailendra Kumar . legal luminaries unanimously supported the stance. • CJI retaliated saying “The public has a right to know what is happening in the judiciary and I am telling them. I stand by what I have said on disclosure of assets by judges," . However so far actions are opposite • Speaking on Justice Kumar's views on the matter, he said, "He wants publicity and such a thing is not good for a judge. Judges should not be publicity-crazy."

28. Declaration of Assets of Judges • Justice Kumar stated that the top-most judge is more like a “serpent” without fangs who can only hiss but not bite. • Many former chief justices, judges of the Supreme Court, including justice Krishna Iyer, justice J S Verma and justice V N Khare as well as eminent jurists like Ram Jethmalani, Shanti Bhushan, Fali Nariman and Soli Sorabjee publicly aired their views in favour of public declaration of judges’ assets. Justice Kanan and Justice DV Shailendra Kumar are in favour of declaration.

29. Declaration of Assets of Judges • Under public pressure, SC placed the assets details of few SC Judge’s assets on SC website. The details of dates of acquisition of assets etc. missing. Its half hearted work done. Some Judges did not disclose Bank balance also. • Then removed part of data (the Bank account details which existed for some Judges), as it is claimed that some one wrote in a post card/letter that these details can be misused. • Even a post card/letter does wonders, when it concerns the own interests. Ecommerce, Bank details and lot of information exist online. Is the total world going to be off Nets because of a fear of misuse. It’s a lame excuse. • It was SC, which forced candidates, who contest elections, to declare their assets publicly. Right to information is a right given by the Parliament and it cannot be amended, to suit needs of even the President or Prime Minister, by Courts of law.

30. Declaration of Assets of Judges • Just think.. • Why CJI is interested in exemption under RTI? • What is intended to be hidden from public? • Why transparency is not being followed? Are judges above law? We have a right to know the facts in Dinakaran case and NirmalaYadav case. • If Judges don’t abide by law then how will they enforce it on others? (sources – Hindustan Times, Times of India and DNA of various dates) 30

31. Justice Credibility: Delayed Justice • At the end of 2009 • Cases pending in SC – 55000 (estimated to be 87909 by 2015). • Cases Pending in HCs – about 45 lakhs. • Cases pending in lower courts – about 2.72 crores • Despite all press statements of concerns by CJI, the piling is on in his tenure also at a much faster pace. • It will take 320 years to clear backlog as per Justice VV Rao of AP HC. • Over 10 Crore people are waiting for justice.

32. Justice Credibility: Delayed Justice • SC’s stand • Says NO to night courts, NO to SC branches in Western, Eastern and Southern India (ToI 31/03/2010) • HC branches in states like UP, MP required • Opposed by vested interests. Yet, cases of the powerful and mighty are either taken up on priority or delayed beyond normal average period depending on their needs • Shortage of Judges (April 2010): • SC: 4 out of sanctioned 31 (13%). Women Judges missing. • HC: 265 out of sanctioned 895 (30%) • Lower Courts: 2800 out of 16,721 (17%) (sources – Hindustan Times of 22/03/2010)

33. Radha Krishna Episode • To corroborate its judgment AND to justify illegal relations and live in relations the Supreme Court Bench headed by CJI went all the way out to compare live in relation with that of Radha and Lord Krishna. • It is expected that the CJI and the pious Judges must know that Radha Krishna relation was not physical in nature and their statement is on one hand insulting the sentiments of Hindus and at the same time reduces morality count of the Nation.

34. Faith in Judiciary • “Court delays impacting FDI. Court delays eating up 2% of GDP, leading to corruption, low investment and inflation” • Pranab Mukerjee (Finance Minister) (HT – 22/03/2010) • “People losing faith in system and also leading to civil unrest, Maoist violence and vigilante justice” • Veerapan Moily (Law Minister) (HT – 22/03/2010)

35. Faith in Judiciary • If a common man is denied Justice or Justice is delayed to a point, where it is worth nothing, then he has more faith in the Parallel Judiciary of Goondas than in the system. • Who is responsible for it? • If the person doing injustice enjoys fruits of his wrong doings then the wrong message is sent and injustice is promoted

36. Judicial Accountability • Some burning examples (recent) • Justice Dinakaran • Justice Nirmal Yadav • Justice Saumitra Sen • Justice Ramaswami • RTI, SC and CJI • Statement on Rape victims by CJI • Insulting statement for Lord Krishna and Radha • Colleguim system for promotion and selection. • “Most of the Judges are corrupt” -CJ of Gujarat

37. RTI Spectre • RTI Act means transparency in governance (many times confused with ruling) • It exempts some organisations on the basis of their nature of work related to internal and external security; BUT NOT THE JUDICIARY. • RTI has exposed many wrongs and help in making these wrongs into right. • It has scared many corrupt and dishonest officers. • The citizen has a right to know all, which is not related to internal and external security, effecting sovereignty or relations with friendly governments.

38. RTI Spectre • Office of CJI and/or the SC should set an example of transparency and open governance. • If office of CJI wants exemption, the natural question is – Why? What does this office have to hide? • If CJI is unbiased, as he must be, as the head of judiciary, then why hide? • Why office of CJI should be a black box? The opinion of CJI is like an open court judgment. • To an ordinary citizen, denial of Information is injustice, lowering the prestige of the judiciary.

39. RTI Spectre • SC declining information on (some examples only) • Enquiry against Judges. • P D Dinakaran’s elevation to SC. • Correspondence with regard to Justice Nirmala Yadav. • Correspondence with Prime Minister (though PMO has provided some information). • Code of conduct and conferences of Judges. • Collegium system and minutes of meeting. • Logs of People meeting CJI. WHY? Are there skeletons in any cupboard?

40. RTI Spectre • In an application by A G Bhat, the CPIO of SC referred the application to CJI and CJI has virtually taken over the role of CPIO and directed CPIO to deny information. • As per the Act, CJI has no decision making role • These are not state secrets or compromise with India’s integrity and sovereignty. • This happens only when there is a fear of something

41. Quid pro quo • CJI writes to PM to exempt office of CJI under RTI. PM agrees. WHY? (HT 05/03/2010&13/4/21010/ToI 14/04/2010) • (Thankfully, Mrs. Sonia Gandhi, disagrees to changes in the Act) • CJI says that SC can not order probe into corrupt acts of politicians. (HT and ToI 26/03/2010) • SC bails out Mr. Lallu P Yadav in disproportionate asset cases (HT & ToI 02/04/2010) • Govt. defers Judges Standards and Accountability Bill • The pressure is on from Judiciary for the same. Can there be any link or Quid pro quo?

42. Code of Conduct • On 07/05/1997, a 16 point “Code of Conduct for Higher Judiciary in India” drafted • Adopted by judges of SC and HC, to ensure proper conduct amongst members of higher judiciary • Gujarat HC was the sole dissenter • Named as “The restatement of value of life”, is believed to have been effective since then • Drafted by a committee of five judges, headed by Justice Dr. A S Anand, with Justice S P Barucha, Justice K S Paripoornan, Justice M Srinivasan and Justice D P Mohapatra as other members (Penunbra of Natural Justice, II ed, 2001 – page 385-387) (Times of India 18/10/1999 and 07/12/1999)

43. Code of Conduct • Any Act of a judge of Supreme Court of High Court, whether in official or personal capacity, which erodes the judiciary’s credibility has to be avoided • A judge should not contest election to any office of a club, society or other association. • He should not hold any elective office except in a society or association connected with the law. • Close association of a judge with individual members of the bar, particularly those who practice in the same court must be eschewed.

44. Code of Conduct • A judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if he or she is a member of the bar, to appear before him or even associated in any manner with the case to be dealt by him. • A member of the judge’s family, if he or she is a member of the bar, should not be permitted to use the residence in which the judge actually resides and use certain facilities meant for the judge for his professional work.

45. Code of Conduct • A judge should practice a degree of aloofness consistent with the dignity of his office. • A judge should not hear and decide a matter in which a member of his family, a close associate or a friend is concerned. • A judge must not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination. • A judge is expected to let his judgments speak for themselves. • He will not give interviews to the media.

46. Code of Conduct • A judge will not accept gifts or hospitality except from his family, close relatives and friends. • A judge will not hear and decide a matter concerning a company in which he holds shares unless he has disclosed his interest and no objection to his hearing the matter is raised. • A judge shall not speculate in shares, stocks or the like. • A judge should not engage directly or indirectly in trade or business either by himself or in association with any other person.

47. Code of Conduct • Publication of a legal treatise or any activity in the nature of hobby will not be constructed as trade or business. • A judge should not seek or accept contributions or otherwise actively associate himself with the raising of fund for any purpose. • A judge should not seek financial benefit in the form of perquisite, privilege attached to his office unless it is clearly available.

48. Code of Conduct • Thereafter, the Chief Justice’s conference approved a resolution which, recalling an earlier resolution of 1992, said: • “Resolved that an in-house procedure should be devised by the hon’ble Chief Justice of India to take suitable remedial action against judges, who by their acts or omissions or commission do not follow the universally accepted values of Judicial life, including those indicated in the ‘Restatement of Values of Judicial Life’….

49. Code of Conduct • Resolved further that every judge should make a declaration of all his/her assets in the form of real estate or investments (held by him/her in his/her own name or in the name of his/her spouse or any person dependent on him/her) within a reasonable time of assuming office and in case of a sitting judge within a reasonable time of adoption of the resolution and thereafter whenever any acquisition of a substantial nature is made, it shall be disclosed within a reasonable time. • The declaration so made should be to the Chief Justice of the court. The Chief Justice should make a similar declaration for the purpose of the record. The declaration made by the judges or the Chief Justice as the case may be, shall be totally confidential”. (A.G.Noorani, ‘Judges Code-I’, The Statesman, Calcutta, 03/11/1999)

50. Code of Conduct: Just think.. • The ‘Restatement of Values of Judicial Life’ and the above resolution was adopted in the Chief Justice’s conference in 1997. • Is this is not applicable on higher judiciary? Then why have such conventions where the organisation cost is huge and is paid from taxpayers monies. • This also is a drain on Judicial Time, when cases are pending for years. • Does it mean - what ever conferences are organised and resolutions are passed will not have any binding effect on next in line judges. • Then why waste taxpayers’ money?