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  1. #41
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    Re: RTI Act does not apply to my office: CJI


    I think BCI should invite views from litigants/victims of justice if they really mean business.The advocates/lawyers are not the sufferers. Most of the time they have no interest in justice. Just interested in the client and that to only to the extent they can make their fees.


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  2. #42
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    Re: RTI Act does not apply to my office: CJI


    I agree with Shri Chaudhary. The litigants should have say in the survey, otherwise it will not give real picture of the situation. Ultimately, we are seeking improvement in system for the benefit of users of legal system. RIGHT 2 JUSTICE is useless unless judiciary improves its functioning. At present, perhaps inefficient judiciary is the main cause of injustice and social tension. Every body wants to take law into its hand, as common man is losing faith in judicial 'justice'.
    It takes each of us to make difference for all of us.

  3. #43
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    Re: RTI Act does not apply to my office: CJI


    Thanks jps50. I have no. of cases where one can clearly make out from ordersheet it self that delay in justice is not because of lack of judges.

  4. #44
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    Re: RTI Act does not apply to my office: CJI



    I think our discussion is going away from the RTI Act.
    Any way let me add following. Will any Survey Team will ever contact any affected litigant ? He may be having evidence of his own judgment showing that something wrong done to him ? Such evidence may not suit the terms of references of the survey or the pre-conceived aim of the survey. We cannot use the terminology of corruption when we mention anything on judiciary fearing Contempt of Courts Act.

    Still I am quotting below examples of two judgements of Munsiff's Court, Tellicherry,
    Kerala which I am ready to produce to any genuine Survey Team

    1. The Revenue authorities have fraudulently shown 4.58 acres of land worth Rs.10 crores in the name of a vested interest in the revenue records and started collecting land revenue. In a suit filed seeking a declaration that the above party has NO title deed to above land was beaten around bush. During interrogatories issued they had to admit that they are not in posession of such a title deed. Of cource this statement is not in the judgment.However on the previous date of hearing of the case they produced an order of Taluk Land Board showing this land in their name based on report of Tahsildar. All pleas by me before the Munsiff that this ocument should not be admitted as evidence without PROVING was not cared. The declaration sought for was denied based on the above unproven and unmarked evidence. Of cource I had gone for appeal seeking PROOVING of this document., I think I should stop at this point.

    2. In another case a suit seeking declaration on similar line in another plot was dismissed by the Munsiff on the plea that the plaintiff has failed to prove his title. The funniest part is that his judgement contain the list of my marked documents where Exhibit.A and B are my documents of title.

    Please tell me how this can be explained in a democratic country ?

  5. #45
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    Judges are public servants, not bosses


    Judges are public servants, not bosses

    By Justice V.R. Krishna Iyer in The Hindu on May 02, 2008

    -----------------------------------------------------------------------
    Contrary to what the Chief Justice of the Supreme Court recently said,
    the Right to Information Act does cover ‘constitutional authorities.’

    -----------------------------------------------------------------------

    Absolute power and egregious error will be totally incompatible, even when the matter involves the judiciary. Justices of the court are no higher than great Homer who, as Lord Byron put it, sometimes nods off. The ‘robed brethren’ on the High Bench do sometimes blink.

    Perhaps it is a rare occurrence, but this is what happened when the Chief Justice of India, the country’s highest judicial functionary, claimed that the Chief Justice is not a ‘public servant’ but a ‘constitutional authority.’ It may be true. But every judge is oath-bound to dispense public justice “without fear or favour, affection or ill-will.” Public justice is public service, and obviously judges are public servants.

    The Right to Information Act, therefore, does cover ‘constitutional authorities’, contrary to what the Chief Justice said. His absolutist obiter, coming as it does from a legal luminary for whom I have high regard, is bizarre and it is a faux pas. Unfortunately, he has, in my legal perception, slipped into an accidental innocence of jurisprudence.

    This may, however, be justly overlooked, having regard to the heavy burden he bears. He has to manage the court, handle a load of judicial work, frequently make ceremonial journeys, give erudite speeches and interviews, and bear the tremendous strain involved in selecting higher judicial personnel.
    Under public pressure or out of vanity, judges often undertake a tremendous amount of non-judicial work, sacrificing valuable time so necessary to study dockets, hear prolix and logomachic arguments, and write (although some of them do not do that) judgments laying down the law of the land. Considering this onerous background, we must forsake criticism of occasional forensic failings.

    Grave goof-up

    How else can one explain a grave goof-up, made unwittingly, in his saying that judges are not public servants but ‘constitutional authorities’? The latter are, in simple semantics, a higher category of public functionaries. They are a finer, nobler group of public servants, democratically more accountable and qualitatively more liable than others to furnish information to the people about themselves and their functions, if it is relevant to the public interest.

    All important constitutional authorities, such as Judges, Ministers, the Comptroller and Auditor General, the Accountant General, the Election Commissioner, and the Speaker of the Legislature, are a fortiori public servants with superior and more profound obligations. These are not two antithetical categories but are, in public law, of the same class. My candid constitutional camera perceives both as owing public duties and being liable to pay penalties for any failures — subject to the limitations laid down by law.

    The great judge Jerome Frank, in his book Courts on Trial, said he had little patience with, or respect for, the view that it is dangerous to tell the public unpalatable truths about the judiciary. He wrote: “I am unable to conceive… that in a democracy, it can ever be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions… The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts.”

    Democratic instrumentality

    I stand solidly for a judiciary that is a democratic instrumentality, not an occult class of divinity. David Pannick, QC, observed: “We need judges who are trained for the job, whose conduct can be freely criticised and is subject to investigation by a Judicial Performance Commission; judges who abandon wigs, gowns and unnecessary linguistic legalisms; judges who welcome rather than shun publicity for their activities.”

    Information about judges’ wealth, other activities and even private doings, if they affect judicial duties, cannot be kept secret. To cite David Pannick again: “The judiciary is not the ‘least dangerous branch’ of government… They send people to prison and decide the scope and application of all manner of rights and duties with important consequences for individuals and for society. Because the judiciary has such a central role in the government of society, we should (in the words of Justice Oliver Wendell Holmes), wash…. with cynical acid this aspect of public life. Unless and until we treat judges as fallible human beings whose official conduct is subject to the same critical analysis as that of other organs of government, judges will remain members of a priesthood who have great powers over the rest of the community, but who are otherwise isolated from them and misunderstood by them, to their mutual disadvantage.”

    Let us not confuse between the papacy and the judiciary.
    Judges, like Ministers, Governors, Presidents, Speakers and a host of other functionaries, are constitutional authorities. And, most emphatically, they are public servants, not absolutist bosses with vast political power but above democratic accountability. They should have functional transparency and be fundamentally incorruptible.

    Indeed, judges must be free from graft, nepotism, abuse of power, and arrogance. They should be the paradigm of clean personal life, open and accessible custodians of public justice and paragons of moral excellence and humanist simplicity, sans consumerist craving and greed to grab. They are a higher cadre with a more sublime calibre.

    Trustees of judicial power

    In short, justices wear robes on oath under the Constitution as trustees par excellence of judicial power, of course within their legal jurisdiction and constitutional jurisprudence. The Supreme Court, in a ruling of the Constitution Bench in K. Veeraswami vs. Union of India (1991 SCC P-655), held that the expression ‘public servant’, used in the Prevention of Corruption Act, is undoubtedly wide enough to denote every judge, including judges of the High Court and the Supreme Court. Judges are under the law, not above it. Your public life, and even private life to the extent it influences your judicial role, should be accountable and transparent to the public. A plea of secrecy is sinister allergy. Democracy is a disaster if the President, the Speaker, the Prime Minister and the Chief Justice hide their wealth and dealings from the scrutiny of ‘We, the People of India’, the sovereign of the nation.

    To err is human and to forgive is divine. Chief Justice K.G. Balakrishnan is a fine citizen, a sublime soul, a versatile jurist, a graceful instance of dignity and refinement. If I have erred in disagreeing with his disclaimer of judges being public servants, he will forgive me. But judges certainly are not divine.

    The Indian judiciary must accept Frankfurter, that frank and superlative U.S. Judge who wrote: “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”

    Our judges shall remain awake and alert and accept the Preamble to the Constitution that makes clear that this republic is ‘socialist, secular, democratic.’

    We meanwhile need a judicial appointments and performance commission of supreme stature, its members selected from among the highest judicial, political and public-spirited wonders of popular confidence.
    This is essential to ensure that the finest and most independent members of the fraternity would exercise judicial power, and that they would be held in the highest esteem by the enlightened wisdom of the people of India. This desideratum demands a diamond-hard constitutional code that covers every dimension of judicial performance.

  6. #46
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    Re: RTI Act does not apply to my office: CJI


    Interview with former Chief Justice J S Verma in timesofindia.indiatimes.com on 5 April 2007:
    'In a democracy, no one is unaccountable'-Interviews-Opinion-The Times of India

    'In a democracy, no one is unaccountable'

    Former chief justice of India J S Verma speaks to Manoj Mitta on the ongoing debate on transparency and accountability in the judiciary:


    What do you think of the growing disenchantment with your 1993 judgment which gave primacy to the judiciary in judicial appointments?

    This is due to a misreading of the judgment, which merely formalised what was already a convention. The judgment does not give absolute authority to the judiciary. It clearly says that it is a joint exercise which combines the judiciary's opinion about the legal acumen of the candidate with the executive's input on his antecedents. Further, it empowers the executive not to appoint if the candidate is found unsuitable or if the judiciary's recommendation is not unanimous. But if the executive never exercises this option, the judgment is not to blame.

    In fact, there is a growing perception in the judiciary that the judgment is not being observed in its letter and spirit by the collegium (committee of senior judges). The need, therefore, is to ensure that neither the executive nor the judiciary has a decisive say. It is time to make the joint exercise more explicit in the Constitution.

    How do you view CJI K G Bala-Krishnan's controversial statement that being a constitutional office holder he was not answerable under RTI?

    In a democracy, no one is un-accountable. The mode of enforcement of accountability may, can and should vary according to the nature and position of the public functionary. The CJI is no exception to this rule. The Constitution provides for his removal, which is the ultimate form of accountability. He is accountable even for his judicial functioning. He has to hear cases in open court and give reasoned decisions which are subject to public scrutiny. So, where is the scope to suggest that he can't be accountable for his administrative functioning?

    Why has the judiciary reacted uneasily to RTI?

    The RTI Act does not confer any new right. It only operationalises the existing fundamental right to free speech and expression under Art 19(1)(a) in which the right to know is implicit, and provides for reasonable restrictions under Art 19(2). One could seek information earlier too by filing a writ petition. The difference RTI has made is, one can now proceed expeditiously under a statutory procedure.

    Doesn't the judiciary's hostility to RTI make a mockery of the three resolutions of judicial accountability passed by the SC judges under your leadership?

    When those three resolutions were unanimously adopted on May 7, 1997, i did hope that they would be institutionalised in due course. Much as i admire the SC ruling that every political candidate should disclose his antecedents, i cannot imagine how a judge can hold others to a standard he does not apply to himself.

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    Re: RTI Act does not apply to my office: CJI


    DAILY MAIL , Monday,May 5, 2008.


    As custodians of the Constitution and its law, judges must value transparency
    by Rajeev Dhavan


    THE major controversy between the Chief Justice of India, K. G. Balakrishnan and Lok Sabha Speaker Somnath Chatterjee over lifting the veil of secrecy over the judiciary has been stoked by the Parliamentary Standing Committee on Law and Justice’s Report of 30 April 2008. Accordingly, public interest will be better served if the judiciary is exposed to Right to Information scrutiny in its judicial decision making. Courts enact a daily costume drama. What the judges say and do is prime news. Public servants must accept a certain degree of probing in their lives. Even responsibly made statements which are later found to be wrong should be permissible. This is a good rule of thumb. The present controversy arises of a statement by the CJI resisting the declaration of assets and income by judges on the basis that judges were not just public servants but constitutional authorities. It followed that the Chief Justice of India and his brother judges were not obliged to disclose their income and assets. This led Somnath Chatterjee to question the reticence of the Chief Justice. The issue arose as to whether the Right to Information Act ( RTIA) applies to the judiciary. At the Katju Memorial Lecture on 23 April, 2008, CJI Balakrishnan declared that judges do file their incomes and assets but there was no reason for routinely locating this information in the public domain. The information was there not to be revealed when necessary. Could Mr Hoover of America’s FBI have asked for more! This is an unsatisfactory explanation even if true. This is not a game of kissing and not telling, but an issue of public interest.

    Information
    It is important to make a distinction between the duties imposed by the law and those that should be part of public policy. The purpose of the RTI is not to manufacture information that is not there. At present there is no requirement for judges to declare their incomes or assets. Their formal income is public income. Their private income from assets is known to the taxman. If the private income is not known to the taxman, it is black money. Their declared expenditure is known to the taxman. Their other “ black” acquisitions, if any, are known only to the judges. What is to be done with all this information? How much are we entitled to know about our judges? At what point does public interest end and a judge’s right to privacy begin? All citizens have a right to privacy of information given to the tax authorities. Income and expenditure represents personal choices and lifestyle. Prima facie , judges, too, are entitled to privacy unless this information is required for judicial proceedings or impeachment.

    Public
    Public officials, other than judges, are differently placed. All Members of Parliament ( MPs) and the Members of Legislative Assemblies ( MLAs) have to declare their assets and incomes as a matter of democratic constitutional duty. This information is available as part of public record and does not have to be created. Some of the declarations made by the MPs and MLAs seem so outrageous and fantastically low that they invite disbelief. Civil servants are also required to declare their assets and incomes. The judges are not. For RTI purposes, this generates an important difference. The right of the public under the RTI Act is to obtain information that is on record unless it comes under any of the exceptions in the RTI Act. The RTI Act is to reveal information existing on record and does not force people to make revelations that they are otherwise not obliged to make. So, at present, information about judges not being on record is not accessible under RTI procedure. Matters cannot stop there. Judges may not be under a legal duty to disclose their financial details. But should they be under the public duty to do so? CJI Balakrishnan had made a distinction between “ constitutional functionaries” and “ public officials”. Even that distinction may not be entirely correct in so far as it relates to the judiciary. Justice Krishna Iyer has rightly criticised the view that judges are not public officials. If not, what are they? The concept of a “ public official” has different meanings in anti- corruption law, criminal law, trust law, civil law and constitutional law. We are here concerned with “ public official” in the general sense of those who serve the public in exercise of a public power. This is a distinct class of people, which includes judges who possess public power which they may exercise perversely or in exchange for favours. This could be anybody whether they are civil servants or judges. No doubt, their financial antecedents can be exposed when they are accused of a criminal act. That may be too little, too late. There is nothing preventing judges from setting an example for all public servants by inaugurating a policy of candour to disclose their income and assets in public interest. They should not only declare their income and assets but do so every year so that any variation in their wealth across the years may be easily visible. This will virtually be asking judges to voluntarily incriminate themselves — but not if they are not behaving like judges. The Chief Justice of India is the head of the judicial family. In the first instance, he can persuade himself and his colleagues to take a collective decision in favour of financial transparency. The High Courts and the lower judiciary should follow suit. Like Caesar’s wife, judges should be above suspicion. In Caesar’s case, his statement was a mocking challenge. Here it is a matter of public interest. There is another important offshoot of this controversy. The judiciary is both an open and secret institution. Its hearings are heard in public. Its judgments are delivered in open court. Beyond that, the judiciary is heavily guarded by its veil of secrecy. In America, Woodward and Bernstein’s The Brethren gave an excellent example of what happens behind the scenes at the US Supreme Court. We may never know so much about our judges. But, apart from judicial decision making, each court has an administrative side concerning finances, promotions, allocations of cess, discussions of the lower judiciary and appointments of the entire judiciary, including the High Courts and the Supreme Court. After the decisions of 1973- 1998, the Supreme Court has a stranglehold over the judicial appointments to the higher judiciary.

    Practice
    Since 1998, they have violated their own ground rules many times over. They have become autocratic in their explication of their biases and preferences — of which there are many. Mrs Gandhi packed the Supreme Court between 1969 and 1973. Since 1998, over 300 ad hoc appointments were made to the High Courts only by the CJI and Law Minister without consulting the collegium. The role of the Chief Justice and the Law Minister needs to be known. There is no reason why this should not be subject to scrutiny by the public in public interest. It is failures within the system that is responsible for the proposal for a National Judicial Commission on appointments and disciplinary measures. Judges should be exposed to a clean air of transparency so that people may know how this all too important institution, which is the custodian of the Constitution and the rule of law, works. This is over and above the need of individual judges to publicly and regularly declare their assets and incomes.
    Last edited by opsharma; 05-05-08 at 09:51 AM.

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    Re: RTI Act does not apply to my office: CJI


    Jurists want judges to be role models

    Nagendar Sharma, Hindustan Times
    Email Author
    New Delhi, May 06, 2008

    Already facing criticism for refusing to make public their wealth details, the Supreme Court judges on Monday faced fresh demands on the issue from top jurists, including former Law Ministers Ram Jethmalani and Shanti Bhushan, to set an example for the country by “voluntarily declaring their assets”. In a letter to all the judges of the Supreme Court, the group known as Campaign For Judicial Accountability and Reforms, said though Chief Justice KG Balakrishnan was against the move, judges were free to voluntarily do so. “Though one can take the view that the Chief Justice cannot disclose information regarding the assets of judges given to him in confidence, that is clearly no impediment whatsoever before any judge voluntarily disclosing his assets publicly,” the letter signed by Jethmalani and Bhushan said.
    The jurists’ group reminded the judges that it was a Supreme Court judgment in 2003, that made it mandatory for candidates contesting the elections for the Parliament and state assemblies to declare their assets. “The rationale given by the Supreme Court for the need for disclosure of assets of candidates contesting elections would equally apply to all public servants occupying crucial positions of authority,” the campaigners’ group supported by former Supreme Court judges, VR Krishna Iyer and PB Sawant, said.
    The jurists’ group appealed to the judges to use the opportunity to set an example for the country. “At a time when people have become cynical about the integrity of public servants, voluntary disclosure of assets by judges would be setting an example of transparency in the country which would then be emulated by others.”
    The CJAR said the judiciary had a chance to make the Right to Information Act popular in the country. “Such a step would greatly advance the cause of transparency and probity in public life. It would also advance the objectives of the RTI Act and would be applauded as an act of statesmanship by the country.”
    The CJAR letter to the Supreme Court judges mounts a fresh attack on the judiciary, which has so far been successful in resisting the pressure for public scrutiny of its administrative functioning.














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