Judges appointment | SabrangIndia News Related to Human Rights Fri, 20 Jan 2023 04:43:49 +0000 en-US hourly 1 https://wordpress.org/?v=6.2.2 https://sabrangindia.in/wp-content/uploads/2023/06/Favicon_0.png Judges appointment | SabrangIndia 32 32 Independent Views, Gender Orientation must not affect candidacy for judgeship: SC https://sabrangindia.in/independent-views-gender-orientation-must-not-affect-candidacy-judgeship-sc/ Fri, 20 Jan 2023 04:43:49 +0000 http://localhost/sabrangv4/2023/01/20/independent-views-gender-orientation-must-not-affect-candidacy-judgeship-sc/ Making public the union government's objections to recent recommendations by the Supreme Court (SC) Collegium, the latter has reiterated its earlier choices and recommended the elevation of 17 advocates and three judicial officers as judges of the high courts of Karnataka, Allahabad and Madras.

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judge appointment
Image: The Leaflet

At a crucial meeting of the Collegium held on January 17 the apex court has reiterated the selection of five names and significantly recorded that the Centre can’t repeatedly send back proposals. Thereby, the Collegium has now recommended the elevation of 17 advocates and three judicial officers as judges of the high courts of Karnataka, Allahabad and Madras. The five names of advocates that have been sent back by the SC collegium for elevation as HC judges are Saurab Kirpal, son of former CJI BN Kirpal, Amit Banerjee, Sakya Sen, Somasekhar Sundareshanand R John Sathyan. 

The Collegium consisting of Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul and Justice KM Joseph held.

“All citizens have the right to free speech and expression under Article 19(1)(a) of the Constitution. Expression of views by a candidate does not disentitle him to hold a constitutional office so long as the person proposed for judgeship is a person of competence, merit and integrity.” 

With this decision significant developments have taken place. In recommending, again, it’s last year’s recommendation to the Centre to appoint Advocate Somasekhar Sundaresan as Judge of the Bombay High Court the Supreme Court has held that his views on social media cannot be used to infer he’s highly biased opinionated person.

Background: The Collegium of Bombay High Court recommended the name of Advocate Somasekhar Sundaresan on  October 4, 2021. On February 16, 2022, the Supreme Court Collegium recommended the name of Somasekhar Sundaresan for appointment as a Judge of the Bombay High Court. On 25 November, 2022, the Government has sought reconsideration of the said recommendation.

Reportedly, the Centre’s objection was that he has aired his views in the social media on several matters which are the subject matter of consideration before the courts. According to media reports, reiterating Advocate Somasekhar Sundaresan’s name the Collegium said,

“The manner in which the candidate has expressed his views does not justify the inference that he is a “highly biased opinionated person” or that he has been “selectively critical on the social media on the important policies, initiatives and directions of the Government” (as indicated in the objections of Department of Justice) nor is there any material to indicate that the expressions used by the candidate are suggestive of his links with any political party with strong ideological leanings.”

The remarks added that Advocate Sundaresan has specialised in commercial law and would be an asset to the Bombay High Court which has a large volume of cases of commercial and securities laws, among other branches. “The Department of Justice has adverted to paragraph 175 of the Second Judges Case [(1993) 4 SCC 441] to the effect that the candidate to be selected must possess high integrity, honesty, skill, high order of emotional stability, firmness, serenity, legal soundness, ability and endurance. The candidate fulfils these qualities.”

“The Collegium, therefore, resolves to reiterate its recommendation dated February 16, 2022 for appointment of Shri Somasekhar Sundaresan, Advocate, as Judge of the Bombay High Court.”

In addition, the Supreme Court Collegium has reiterated its recommendation for elevation of Advocate R. John Sathyan as a Madras High Court Judge, after Centre returned the file citing an online article critical of Prime Minister Narendra Modi that was shared by Sathyan.

The Collegium comprising CJI DY Chandrachud, Justices SK Kaul and KM Joseph has further said that all the consultee-Judges at the relevant time, when the recommendation was first made, had found him suitable for elevation and that nothing adverse has come to notice against his integrity. Reportedly, Sathyan had also shared a post he had shared a news article which was critical of PM Narendra Modi which was objected to by the union of India. His file was also returned since he had shared a post regarding an alleged suicide of a medical aspirant in 2017.regarding a medical aspirant committing suicide in 2017, which contained tags such as tag ‘political betrayal’, ‘shame of you India’.

The proposal to elevate him was made in February last year. The IB report notes that he does not have any overt political leanings. In this backdrop, the Collegium said,

adverse comments of the IB extracted above in respect of posts made by him i.e. sharing an article published in ‘The Quint’ and another post regarding committing of suicide by a medical aspirant candidate in 2017 will not impinge on the suitability, character or integrity of Shri Sathyan. The Collegium is of the considered opinion that Shri R. John Sathyan is fit and suitable for being appointed as a Judge of the Madras High Court.

The Collegium therefore reiterated its earlier proposal and recommended that he be given precedence in the matter of appointment as Judge over certain names separately recommended today for appointment as Judges of the Madras High Court.

Victory for Gay Rights, Diversity

Pushing forward with a historic move towards diversity in gender orientation, the SC Collegium has yet again recommended the name of Advocate Saurabh Kirpal for elevation as a judge of the Delhi High Court (HC). Kirpal’s name was recommended unanimously by the Collegium of the Delhi HC in 2017 and has been pending for over five years. Kirpal’s elevation to the bench is being objected to by the union government due to the Swiss nationality of his partner as well as his intimate relationship and openness about his sexual orientation. 

Rejecting the centre’s objection to his sexuality, the SC collegium in its resolution has said, “The fact that Mr Saurabh Kirpal has been open about his orientation is a matter which goes to his credit. As a prospective candidate for judgeship, he has not been surreptitious about his orientation.”

“In view of the constitutionally recognised rights which the candidate espouses, it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground.”

The resolution further says that he possesses competence, integrity and intellect, and his appointment would add value to the Bench of the Delhi HC, and provide inclusion and diversity.

On the issue of the union government’s objection to his partner’s nationality, the resolution says, “There is no reason to pre-suppose that the partner of the candidate, who is a Swiss National, would be inimically disposed to our country since the country of his origin is a friendly nation. Many persons in high positions including present and past holders of constitutional offices have and have had spouses who are foreign Nationals. Hence, as a matter of principle, there can be no objection to the candidature of Shri Saurabh Kirpal on the ground that his partner is a foreign National.”

While reiterating the names of advocates Amit Banerjee and Sakya Sen, whose names were first approved by SC collegium in 2019 for elevation as Calcutta HC judge but were sent back, the Collegium on Wednesday said, “It was not open to the Department to repeatedly send back the same proposal which has been reiterated by SC Collegium after duly considering the objections of the Government.”

Interestingly, advocate Banerjee is the son of former apex court judge Justice U C Banerjee, who headed a commission that in 2006 ruled out conspiracy angle in the 2002 Sabarmati Express fire tragedy at Godhra that killed 58 ‘kar sevaks’. The Godhra incident had triggered widespread communal riots in Gujarat.

Advocate Sen is the son of Justice Shyamal Sen, who was elevated as a permanent judge of the Calcutta High Court in February 1986 and later became the chief justice of the Allahabad High Court. Justice Sen also served as the Governor of West Bengal from May 1999 to December 1999. Justice (retd) Sen had headed an inquiry commission which probed the multi-crore Saradha Group ponzi scam.

The Collegium in its remarks made public, also stated that views on social media attributed to the candidate, do not furnish any foundation to infer that he is biased.

The collegium also recommended for giving precedence to him in the matter of appointment over three other names (Judicial officers Periyasamy Vadamalai, Ramachandran Kalaimathi and K. Govindarajan Thilakavadi) which the collegium further recommended for elevation as Madras HC judges. 

(Based on reports by New Indian Express and LiveLaw)

Related:

Centre returns Saurabh Kirpal’s file to Collegium for the 5th time

SC Collegium recommends elevation of first openly gay judge to Delhi HC

Madras HC bats for LGBTQIA+ again, issues more directions to police, media

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Centre returns Saurabh Kirpal’s file to Collegium for the 5th time https://sabrangindia.in/centre-returns-saurabh-kirpals-file-collegium-5th-time/ Tue, 29 Nov 2022 06:55:36 +0000 http://localhost/sabrangv4/2022/11/29/centre-returns-saurabh-kirpals-file-collegium-5th-time/ If elevated as judge, he will become India’s first openly gay judge

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Saurabh KripalImage: Times of India

Among the files returned by the Centre to the Supreme Court Collegium for elevation as High Court judges, includes Senior Advocate Saurabh Kirpal who had openly declared that he is homosexual. Kirpal happens to be the son of former Chief Justice of India BN Kirpal. His recommendation by the collegium is among the 9 files which were reiterated, yet returned by the Centre.

In November last year, the news had broken out that Kirpal was recommended by the collegium to be elevated as judge of the Delhi High Court, making him the first openly gay candidate to be considered for becoming a judge of a High Court.

The Centre returning his files makes this the 5th time his candidature being deferred. The first time his name was recommended was in 2017 by the Delhi High Court Collegium then headed by Justice Gita Mittal. But the government reportedly shot down the proposal citing intelligence reports of Kirpal’s partner being a Swiss national. Kirpal’s partner Nicholas Bachmann is a human rights activist. Kirpal’s name was recommended again, and the recommendation was deferred in September 2018, January 2019, and April 2019.

In November last year, then CJI NV Ramana after consultation with two other senior members of the judiciary, Justices UU Lalit and AM Khanwilkar, paved the path for recommending Kirpal’s elevation.

It was touted that his recommendation was not accepted by the Centre due to security concerns over his partner being a foreign national. However, Kirpal has refuted these claims in an interview a couple of years ago. “Justice Vivian Bose, one of India’s greatest judges, in the Supreme Court who had an American wife,” he said, also giving examples of former Chief Justices Ravi Dhawan and Patnaik who also had foreign nationals as wives. “So having a foreign partner surely can be no grave security risk to the post of a High Court judge,” he said.

Who is Saurabh Kirpal?

Saurabh Kirpal is a lawyer who has vociferously advocated for the rights of the LGBTQIA community. He was a part of the team of lawyers, including Arundhati Katju and Menaka Guruswamy, that was at the forefront of the litigation that led to the historic reading down of Section 377 on September 6, 2018. Kirpal was counsel for Navtej Johar and Ritu Dalmia, two of the main petitioners in the case. The court had on that day decriminalised consensual sex between two adults of the same sex.

He is the son of former Supreme Court Chief Justice BN Kirpal. He has a B.Sc (Hons) from Delhi’s prestigious St. Stephen’s College, following which he read law at Oxford University. He holds a Masters in Law from the University of Cambridge. He has previously worked with the United Nations in Geneva. He has also served as a junior to Mukul Rohatgi. Kirpal has practiced law for over two decades. In March this year, Kirpal was designated as a senior advocate at the Delhi High Court.

Related:

SC Collegium recommends elevation of first openly gay judge to Delhi HC

Madras HC bats for LGBTQIA+ again, issues more directions to police, media

Madras HC issues guidelines for sensitisation of stakeholders in LGBTQIA+ matters

When a judge allows himself to be counselled, justice can mean a transformation

 

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Haphazard Appointment Of Judges Worsening High Court Judicial Delays https://sabrangindia.in/haphazard-appointment-judges-worsening-high-court-judicial-delays/ Mon, 12 Feb 2018 06:16:46 +0000 http://localhost/sabrangv4/2018/02/12/haphazard-appointment-judges-worsening-high-court-judicial-delays/ New Delhi: High courts nationwide are 37% short of judges, and ad hoc appointments–not posting judges to courts that need them most–are worsening delays and affecting India’s economy, according to our analysis of data released by the department of justice.     There were over 4.2 million cases pending in the 24 high courts of […]

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New Delhi: High courts nationwide are 37% short of judges, and ad hoc appointments–not posting judges to courts that need them most–are worsening delays and affecting India’s economy, according to our analysis of data released by the department of justice.

 


 
There were over 4.2 million cases pending in the 24 high courts of India on February 4, 2018, according to the National Judicial Data Grid, with 49% of these cases more than five years old.
 
Data from central ministries show that infrastructure projects of close to Rs 52,000 crore are affected by court orders, according to the Economic Survey 2017-18.
 
India’s judicial delays are legendary, and the shortage of judges is well documented, as IndiaSpend has previously reported (here, here, here and here).

 

 
The Allahabad high court has the highest number of pending cases, exceeding 900,000 cases in 2016 and 2017.
 
The number of pending cases has declined during 2017 by a slight margin in only three of 24 high courts.
 
In terms of increase in pending cases, Karnataka high court is the most stressed court with an increase in pendency of 36,479 cases followed by Hyderabad and Punjab & Haryana with 32,548 and 30,195 pending cases, respectively.
 
The working strength of judges has not changed for the three high courts of Jharkhand, Meghalaya and Sikkim.

 

 
The number of judges has declined in Calcutta (seven), Himachal Pradesh (three), Gujarat and Tripura (two) and Manipur and Orissa (one).
 
The working strength has increased in all other courts with Madras witnessing the maximum increase of 16 judges, followed by Bombay with 10 judges, and Patna, Rajasthan, Gauhati and Chhattisgarh with six judges each.
 
One would expect that the most stressed courts should get a good share of new judges. The simplest metric to compute the stress is the average pending cases per judge. The higher the average case burden per judge, more stressed the court.
 

Workload Per High Court Judge & Corresponding Allocation Of Judges
Court Workload Per Judge in 2016 Workload Per Judge in 2017 Change In Working Strength Of Judges, 2016-17
Calcutta 5,208 6,533 -7
HP 2,344 3,212 -3
Karnataka 9,500 10,103 2
Orissa 8,991 9,559 -1
Gujarat 2,800 3,305 -2
Tripura 747 1,247 -2
Hyderabad 11,148 11,528 2
Jharkhand 4,928 5,287 0
Punjab and Haryana 6,300 6,648 2
Manipur 790 1,126 -1

Note: Click here for data on all high courts.
Source: Supreme Court Annual Reports 2015-16 and 2016-17
 
In 2016, although Bombay had a lower workload per judge than Calcutta, Bombay saw an increase of 10 judges while Calcutta saw a decline of seven judges.
 
Rajasthan and Gauhati got the same increase in judges while Rajasthan had twice the workload per judge than Gauhati.
 
Madras and Bombay have got disproportionally high allocation of judges, while Allahabad, Hyderabad, Karnataka and Jammu & Kashmir have lower allocation despite high caseloads.
 
New judges should be allotted–or transfers made–to courts depending on pending cases.  And the judicial appointments and transfers should be based on the metric of workload per judge.
 
Currently, the collegium (which comprises of the Chief Justice of India and four senior most judges of the Supreme Court) recommends the appointments and transfers of judges. The collegium does not have any place in the Constitution.
 
The government had recommended the National Judicial Appointments Commission (NJAC) as a constitutional body to replace the collegium system of appointments of judges. However, the Supreme Court rejected the NJAC Act.
 
“Given the high pendency of cases and high vacancy in the Allahabad High Court, transparency in the allocation of judges is very important,” said Vinod Kumar Singh, senior advocate, High Court of Allahabad (Lucknow bench). “I hope the collegium makes the allocation process more transparent.”
 
“But for the system to heal, the process of higher judicial appointments needs a fundamental rejig,” Member of Parliament Baijayant ‘Jay’ Panda, wrote in The Times of India on January 18, 2018. “SC would do well to review its NJAC decision; if it does not, Parliament must re-enact something similar.”
 
(Mathur is the executive director at Vision India Foundation, a non-profit policy research and training organisation based in New Delhi. Mandal is a BTech student at NSIT, New Delhi.)

Courtesy: India Spend
 
 

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GOI “callous” to Problems of Litigants, Rejects 13 names as Allahabad HC judge: CJAR https://sabrangindia.in/goi-callous-problems-litigants-rejects-13-names-allahabad-hc-judge-cjar/ Tue, 10 Jan 2017 07:22:42 +0000 http://localhost/sabrangv4/2017/01/10/goi-callous-problems-litigants-rejects-13-names-allahabad-hc-judge-cjar/ The Campaign for Judicial Accountability and Reforms (CJAR), led by top anti-corruption crusader, Supreme Court advocate Prashant Bhushan, has taken strong exception to the Government of India (GoI) rejecting 13 names recommended as judges for the Allahabad High Court by the Supreme Court collegiums. Image: Indian Express Calling it “an affront to the institutional independence […]

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The Campaign for Judicial Accountability and Reforms (CJAR), led by top anti-corruption crusader, Supreme Court advocate Prashant Bhushan, has taken strong exception to the Government of India (GoI) rejecting 13 names recommended as judges for the Allahabad High Court by the Supreme Court collegiums.

Prashant Bhushan
Image: Indian Express

Calling it “an affront to the institutional independence of the judiciary”, even as suggesting “callous disregard to the problems of the ordinary litigant”, CJAR in a statement has said, “As per the law well settled by the Supreme Court in the Second and Third Judges' cases, the GoI is not entitled to engage in an endless back and forth over the recommendations for appointment of judges to the High Court and the Supreme Court.”

CJAR says, “Once the recommendations are re-iterated by the collegium of judges, the GoI is constitutionally obligated to process the recommendations and appoint such persons as judges at the earliest.”
Calling GoI's action “unwarranted and unconstitutional”, CJAR underlines, “The Allahabad High Court suffers from the highest number of vacancies in judicial posts, and thereby a crippling problem of delay and arrears in disposing of cases.”

It adds, “Far from working with the judiciary to address these issues and ensuring the quick reduction of vacancies, the GoI has stalled the process for ulterior motives.”

Asking the GoI to cease the current “charade” and “resolve to act in accordance with the law and the Constitution and address the problems of the litigants by immediately appointing all the recommended persons to the Allahabad High Court”, CJAR says, “The repeated raising of petty objections suggests that the GoI has no intention of letting the judiciary fill the posts with competent, independent minded judges.”

Condemning the “disturbing trend”, and asking the judiciary to remain “firm, independent and uncompromising check on the government”, CJAR has characterized 2016 as the “year of abrasive disagreement between the judiciary and the government especially over the issue of judicial appointments”.

It says, there has been “complete opacity” on the part of both GoI and the Supreme Court in “disclosing a draft of the memorandum of procedure for appointments to the High Court and Supreme Court.”
“This process has been shrouded in secrecy”, it says, emphasizing, it excludes “public participation in this crucial process”. It adds, repeated requests from CJAR for a draft of the memorandum to be shared and have discussions on it have “received no response.”

Giving other instances of GoI’s “disregard” for law, CJAR says, “The government has not appointed Lokpal despite Parliament enacting the law in 2014. The Whistleblowers Protection Law also remains un-notified.”

Worse, it says, “Existing bodies such as the Information Commission have suffered due to large number of vacancies for long periods, with the resultant inability to carry out their mandate, which further undermines the objective of the law.”

Then, referring to the VIP copter scam, “in which politicians may now to be a focus of CBI probe”, CJAR says, “It becomes apparent why the government in a deliberate dereliction did not convene a meeting of the selection committee to select a full-fledged CBI director as mandated under the law.”

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Chief Justice TS Thakur slams Modi govt for ‘sitting’ over transfer of HC judges https://sabrangindia.in/chief-justice-ts-thakur-slams-modi-govt-sitting-over-transfer-hc-judges/ Mon, 02 Jan 2017 12:05:42 +0000 http://localhost/sabrangv4/2017/01/02/chief-justice-ts-thakur-slams-modi-govt-sitting-over-transfer-hc-judges/ The Supreme Court on Monday questioned the Centre as why judges and chief justices of high courts are not being transfered despite the recommendations of the collegium and asked it to file a status report on such pending transfers with detailed reasons in two weeks. The apex court said it gives rise to “speculation and […]

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The Supreme Court on Monday questioned the Centre as why judges and chief justices of high courts are not being transfered despite the recommendations of the collegium and asked it to file a status report on such pending transfers with detailed reasons in two weeks.

HC judges

The apex court said it gives rise to “speculation and misgivings” due to continuance of such judges in the same high court and instead of sitting over the recommendation, the Centre should return back to the collegium for reconsideration.

“Continuance of judges in the same high courts despite being transferred is giving rise to speculation and misgivings. If you (the Centre) have any problem with the recommendations then send it back to us. We will look into it.

There is no point sitting over it,” a bench headed by Chief Justice T S Thakur told Attorney General (AG) Mukul Rohatgi.

Justice Thakur, who is demitting office tomorrow as the Chief Justice of India, has been regularly questioning the government over the appointment of judges for higher judiciary and both (the Centre and the judiciary) are at loggerheads with each other over the issue.

The AG said that the collegium has sent back 37 names of judges to the government which is looking at them.

“What about the transfers of judges which has been recommended by the collegium? You are sitting over them for over 10 months,” a bench also comprising Justices A M Khanwilkar and D Y Chandrachud said.

Rohatgi said he needs to take instructions on the pending recommendations of transfers and sought three weeks of time.

Senior advocate Ram Jethmalani said the top law officer of the government should have all the information.

“I have no information about the transfers. Give me some time. I will come back in three weeks with full details,” Rohatgi said.

 

Jethmalani said that transfer recommendation of Justice M R Shah of the Gujarat High Court is pending since February 2016.

“I do not understand why is the government so interested to keep this man over there,” he said.

At the outset, senior advocate Yatin Oza said, “Things are really bad. I cannot say a lot of things in open court in the presence of journalists and media. Recommendations which were made six months after Justice Shah’s have seen light of the day.”

Oza said that the court should pass some orders on the issue in the interest of justice and institution.

The bench asked the Attorney General to file the status report with detailed reasons in two weeks.

The apex court had on 18 November, last year said that it has not accepted the Centre’s stand of rejecting the 43 names recommended by the Supreme Court Collegium for their appointment as judges of the various high courts and most of the names have been sent back for reconsideration.

The Centre had told the court that it has cleared 34 names out of the 77 recommended by the collegium for appointment as judges in various high courts in the country.

Rohatgi, on 11 November, had told the court that the Centre had already sent the fresh draft of the Memorandum of Procedure (MoP) for consideration of the collegium on 3 August, last year, but so far no response has been received by the government.

The apex court had earlier rapped the government for delay in appointments to higher judiciary despite recommendations made by the collegium in this regard and had said the entire institution cannot be brought to a grinding halt.

Maintaining that the appointment process “cannot be stalled” due to non-finalisation of the MoP, the court had criticised the tardy progress in processing files pertaining to judges’ appointment and even warned that it may summon the secretaries of the PMO and the Ministry of Law and Justice to ascertain the factual position.

The Attorney General had said that non-finalisation of the MoP was one of the issues and had assured the bench that more progress will be seen in the near future on the appointment of judges.

The apex court had said it would not tolerate “logjam in judges’ appointment” and would intervene to “fasten accountability as the justice delivery system is collapsing”.

The bench had said that if the government had reservation about any name, it could always come back to the collegium.

Courtesy: Janta Ka Reporter

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Process of appointment of judges cannot be ‘hijacked’: CJI TS Thakur https://sabrangindia.in/process-appointment-judges-cannot-be-hijacked-cji-ts-thakur/ Fri, 02 Dec 2016 06:57:50 +0000 http://localhost/sabrangv4/2016/12/02/process-appointment-judges-cannot-be-hijacked-cji-ts-thakur/ Amid the judiciary-government tussle, Chief Justice of India T S Thakur on Thursday asserted the process of appointment of judges cannot be “hijacked” and judiciary needs to be independent as it plays a role in the eventuality of a “tyrannical regime”. He also made it clear that judiciary cannot depend on executive in choosing judges. […]

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Amid the judiciary-government tussle, Chief Justice of India T S Thakur on Thursday asserted the process of appointment of judges cannot be “hijacked” and judiciary needs to be independent as it plays a role in the eventuality of a “tyrannical regime”. He also made it clear that judiciary cannot depend on executive in choosing judges. He said judiciary must be independent regarding internal matters of judicial administration, including assignment of cases to the judges within the court, as unless there is an independent judiciary, the rights which are conferred by the Constitution would be “meaningless”.

TS Thakur

The remarks, made by the CJI while delivering the 37th Bhimsen Sachar memorial lecture here on ‘Independent Judiciary – Bastion of Democracy’, assume importance in the wake of mounting tension between the judiciary and executive over the appointment of judges for higher judiciary as both the organs of the State have been blaming each other for the increasing vacancies of judges and to remain within a ‘lakshmanrekha’.

Justice Thakur, who will be demitting office of CJI on January 3 next year, said the National Judicial Appointments Commission (NJAC) Act 2014, which was struck down last year by the Supreme Court, was an attempt which would have affected the independence of judiciary.

He added the “powerful and assertive Parliament” tries to assert for a greater say in the matter of judicial appointments.

Asserting that independence of judiciary was paramount for a democracy, he said judiciary cannot depend on the executive for discharging its duties and since the government was the “biggest litigant”, one cannot say that executive can choose the judges to hear a case.

Referring to the NJAC verdict by a five-judge constitution bench headed by Justice J S Khehar who will succeed him as the CJI, Justice Thakur said, “The recent decision by the constitution bench striking down constitutional amendment by which NJAC was supposed to be set up also goes into all these aspects.”

“It discusses how the court cannot have a situation where independence of judiciary gets affected by reason of appointment process being hijacked. If you have the Law minister and two nominees of the government in the panel that is going to appoint judges, the court saw this as an attempt to affect the independence of judiciary,” he said.

 

“The powerful and assertive Parliament tries to assert for a greater say in the matter of judicial appointments. An attempt to take away from judiciary the power to appoint judges was seen by the judiciary as an attempt to affect the independence of judiciary.

“Constitutional amendment seeking to set up NJAC was one such attempt. It was seen as an attempt that would affect the independence of judiciary,” he said.

The CJI further said, “Judiciary must be independent as to the internal matters of judicial administration including the assignment of cases to judges within the court. Who should hear which case should not be decided by anybody except the judiciary.”

“You cannot say the executive will choose its judges. Judiciary must have complete freedom in assigning as to who would be the judges who will decide a case,” he said.

Referring to Article 144 of the Constitution, he said that it itself mentions all authorities in the country must act in aid of the judiciary.

“There is no option for statutory or non-statutory authorities except to fall in line. Judiciary is a guard who is always on the lookout like a watchman. Keeps its eyes open, that is the role judiciary plays against a tyrannical regime.”

“This country has seen many ups and downs. Over the past 60-70 years, we have seen judgements full of situation in which the executive has gone far beyond its legitimate sphere. If you have to protect the citizens against tyrannical regimes, you need a judiciary. The entire chapter on Fundamental Rights will be rendered meaningless without an independent judiciary.

“Principle of independence of judiciary was not meant for personal benefits of judges but was created to protect humans against abuses of power,” the CJI said.

He said that everything is regulated under Constitution and appointment of judges is no exception.

“The Supreme Court has had many occasions to interpret this provision of appointment of judges. The much-maligned collegium system has also been evolved while interpreting this provision,” he said.

“If you talk of independent judiciary, you cannot have a judiciary which will depend on the executive for discharge of its functions. Judiciary must have complete freedom to decide who should be the judge to hear a matter,” the CJI said.

He said that issue of promotion of judges must be based on objective factors and the question of accountability of judges on ethical and professional behaviour must be dealt by a fully impartial organ ensuring due process of law.

“If the proceedings against judges are taken up by the politicians or bureaucracy, it would seriously infringe upon the independence of the judiciary,” he said.

Thakur also said that the judiciary is a “guardian” of the rights of the people and government has to respect judgements given by the judiciary.

He also advocated for complete separation of judiciary from the executive.

Besides Thakur, veteran journalist Kuldip Nayar also addressed the gathering.

(With inputs from PTI)

Courtesy: Janta Ka Reporter
 

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कैसे मिलेगा न्याय जब 24 उच्च न्यायालयों में जजों के 43 फीसद जगह खाली हैं https://sabrangindia.in/kaaisae-mailaegaa-nayaaya-jaba-24-ucaca-nayaayaalayaon-maen-jajaon-kae-43-phaisada-jagaha/ Wed, 02 Nov 2016 08:06:37 +0000 http://localhost/sabrangv4/2016/11/02/kaaisae-mailaegaa-nayaaya-jaba-24-ucaca-nayaayaalayaon-maen-jajaon-kae-43-phaisada-jagaha/ देश के 24 उच्च न्यायालय जजों की भारी कमी का सामना कर रहे हैं। नियुक्ति प्रक्रिया में सहमति न बनने की वजह से मामला लटकता जा रहा है। नई दिल्ली(जेएनएन)। न्यायिक व्यवस्था में सुधार की वकालत की जाती है। लेकिन हालात ये है कि जजों की कमी से लंबित मुकदमों की संख्या में तेजी से […]

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देश के 24 उच्च न्यायालय जजों की भारी कमी का सामना कर रहे हैं। नियुक्ति प्रक्रिया में सहमति न बनने की वजह से मामला लटकता जा रहा है।

Allahabad High Court

नई दिल्ली(जेएनएन)। न्यायिक व्यवस्था में सुधार की वकालत की जाती है। लेकिन हालात ये है कि जजों की कमी से लंबित मुकदमों की संख्या में तेजी से बढ़ोतरी हो रही है। एक आंकड़े के मुताबिक देश के 24 उच्च न्यायालयों में जजों के 43 फीसद जगह खाली हैं। देश के सभी उच्च न्यायलयों में जजों के 1079 पद स्वीकृत हैं। लेकिन 464 पदों पर भर्ती नहीं हो सकी है। राज्यवार आंकड़ों पर नजर डालें तो आंध्रप्रदेश में सर्वाधिक 63 फीसद जगह खाली हैं। कानून मंत्रालय के मुताबिक कुल 464 खाली जगहों में से 355 पद सिर्फ 10 उच्च न्यायलयों में खाली हैं। इलाहाबाद हाइकोर्ट में जजों के 83 पद खाली हैं।

आंध्र प्रदेश हाइकोर्ट- 38 पद(कुल क्षमता का 62 फीसद जगह खाली)

कर्नाटक हाइकोर्ट- 36 पद (कुल क्षमता का 58 फीसद जगह खाली)

इलाहाबाद हाइकोर्ट- 83 पद (कुल क्षमता का 52 फीसद जगह खाली)

पंजाब-हरियाणा हाइकोर्ट- 39 पद (कुल क्षमता का 39 फीसद जगह खाली)

न्यायपालिका बनाम कार्यपालिका की लड़ाई

कुछ दिन पहले प्रधान न्यायधीश की अगुवाई वाली तीन सदस्यीय पीठ ने कहा था कि हाइकोर्ट में जजों की भर्ती न होने के लिए कार्यपालिका जिम्मेदार है। उन्होंने कहा कि कॉलेजियम की तरफ से जो सिफारिशें भेजी गई हैं, उस पर सरकार कार्रवाई नहीं कर रही है। केंद्र सरकार की तरफ से तर्क ये है कि जजों की संख्या में भारी कमी सिर्फ बैकलॉग पदों के न भरे जाने की वजह से हुई है। लेकिन जानकारों का कहना है कि केंद्र सरकार और सुप्रीम कोर्ट में नियुक्ति प्रक्रिया के नियमों में मतभेद की वजह से जजों की भर्ती नहीं हो पा रही है।

पूरी खबर के लिए यहाँ क्लिक करे

Source: Jagran.com

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You cannot bring the entire Institution to a grinding Halt: SC slams Modi Govt https://sabrangindia.in/you-cannot-bring-entire-institution-grinding-halt-sc-slams-modi-govt/ Fri, 28 Oct 2016 12:03:41 +0000 http://localhost/sabrangv4/2016/10/28/you-cannot-bring-entire-institution-grinding-halt-sc-slams-modi-govt/ Expressing anguish over the delay caused in appointment of judges, Supreme Court slammed Modi government for its inaction and reportedly said, “You cannot bring the entire institution (of judiciary) to a grinding halt.” While the government and the judiciary have been in a gridlock over the procedure of appointment of judges and finalisation of Memorandum […]

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Expressing anguish over the delay caused in appointment of judges, Supreme Court slammed Modi government for its inaction and reportedly said, “You cannot bring the entire institution (of judiciary) to a grinding halt.”
While the government and the judiciary have been in a gridlock over the procedure of appointment of judges and finalisation of Memorandum of Procedure (MoP), the government has stalled appoint of judges adding to the issue of dearth of judges in the country.

Supreme Court

Chief Justice of India T S Thakur reportedly spoke in a harsher tone, “Today we have a situation where court rooms are locked because there are no judges. It’s happening in Karnataka. Why not have the whole institution locked up and lock out justice to people.”

The court warned that it may summon the secretaries of the Prime Minister’s Office and the ministry of law and justice to ascertain the factual position.

“There should not be any deadlock. You have committed to process the files for appointment of judges without finalisation of the MoP. Finalisation of MoP has nothing to do with the appointment process in the judiciary,” the bench, which also included Justices D Y Chandrachud and L Nageswara Rao, said.

Attorney General Mukul Rohatgi, appearing for the Centre, said that non-finalisation of the MoP was one of the issues and assured the bench that more progress will be seen in the near future on the appointment of judges, as per a news report.

Earlier, the apex court had said it would not tolerate “logjam in judges’ appointment” and would intervene to “fasten accountability as the justice delivery system is collapsing”.

The bench had said that if the government had reservation about any name, it could always come back to the collegium.

The court fixed the matter for further hearing on November 11.

In April, Justice Thakur had broken down at a meeting in the presence of PM Modi while talking about the pressure on judges and the need to appoint more.

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