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Posts Tagged ‘Judiciary

Justice Bedi voices concern for subordinate judiciary

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SC RETIRED, JUSTICE HARJIT SINGH BEDI

The Supreme Court Bar Association on Friday organised a farewell function for Justice Harjit Singh Bedi whose official term in office ends on September 5.
Speaking on the occasion, Justice HS Bedi said that the last two decades of his judicial career have been very satisfying. He said that his association with the Bar, such as Chandigarh, Bombay, and the Supreme Court would be a memory that he will cherish forever.

During the speech, Justice HS Bedi commented on the persistent sniping that goes on at the judicial system. Justice Bedi stated, “the criticism is sometimes justified and it has to be accepted in that spirit but I find that some of the remarks are unnecessarily sweeping and uncharitable as my experience shows that for every bad Judge there are many good ones whose contributions are completely ignored.”

Blaming the pressures, under which the Judges of the lower judiciary have to function, Justice HS Bedi said that it was responsible for the Judges to avoid taking decisions in controversial matters.

“The subordinate judiciary is at the receiving end not only from the litigant, as one side has to lose, but also from the public, the politician, the media, from unscrupulous lawyers, and, more importantly, from its superiors in the judicial hierarchy. It is this fear in the lower judiciary that is, in many ways, responsible for the creation of excessive and avoidable litigation in the higher courts as subordinate Judges play safe and let Judges higher in the hierarchy take decisions in controversial matters,” Justice HS Bedi said.

Justice Bedi during his speech also commented on the assessment made on the level of corruption in the judiciary. “We have High Court and Supreme Court Judges making assessments about the extent of corruption in the judiciary and offering widely differing figures from 20% to 80%.  How they come about these figures is a mystery to me. Undoubtedly allegations of corruption leveled against a Judge must be strictly dealt with, and that is invariably the case,” Justice Bedi said.

Chief Justice SH Kapadia, speaking on the occasion said that Justice Bedi has been a distinguished colleague who by joining the higher judicial office had continued the family tradition as his father Justice Jagjit Singh Bedi was a distinguished Judge of the Punjab and Haryana High Court.

The Chief Justice said that the judgments pronounced by Justice Bedi were always well structured and there was no element of judicial overreach. He said that his judgments and speeches were always appropriate and well balanced.

“He never crossed the lakshman rekha. His judgments indicate a very fine balance also between judicial activism and judicial restraint,” Chief Justice SH Kapadia said.

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Judges must be beyond all suspicion

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ARUN JAITLEY

While speaking on the motion for the removal of Justice Soumitra Sen, a Judge of the Calcutta High Court, Leader of Opposition in the Rajya Sabha, Arun Jaitley, highlighted that those who occupy high offices must live through the scrutiny of highest standards of probity.

 Excerpts from his speech:

 

THIS is a sad but historic moment in the Indian democracy. We have assembled to decide the fate of a man who decided the fate of others. This political house is here to perform a judicial function. We have heard a detailed presentation in the defence of the Judge sought to be impeached.

 

The power of removal/impeachment of a Judge of the Supreme Court or the High Court is a power which is to be used in the rarest of the rare cases. We invoke this jurisdiction to remove a man and save the dignity of the office, which is paramount.

 

Judges no longer live in ivory towers. Today, they live in glasshouses where the bar, litigants, public and the media watch them from close proximity. But then we have all to exercise utmost restraint. Judges cannot defend themselves against unfounded allegations. They must neither be summarily tried nor be thrown to the wolves. A Judge, under inquiry, must be candid. He cannot plead only technical defences. He cannot be too clever by half. He cannot invoke a right to silence like an ordinary accused, and shy away from speaking the truth.

 

In this case, when the Judge under inquiry says that his offence must be proved ‘to the hilt’ or ‘proved beyond reasonable doubt’ , he relies on technicalities rather than substance. A Judge is like Caesar’s wife. He must be beyond suspicion. Those who occupy high offices must live through the scrutiny of highest standards of probity. A Judge must be unsuspectable.

 

Proven misconduct?

 

Justice Sen is guilty of a continued ‘proven misbehavior’ from his days as a lawyer when he was appointed as a Receiver; and this continued well in to his tenure as a Judge of the Calcutta High Court. He never rendered the accounts as directed by the courts both as a lawyer and as Judge. He created encumbrances, by withdrawing monies, which were in his custody as a Receiver of the court. He transferred these monies unauthorizedly to persons not authorized to receive them. He withdrew the monies himself. He transferred the money to another account, which he maintained as a special officer in Calcutta Fans case. Even after his elevation as Judge in 2003, he continued the misappropriation of monies. His case squarely falling under Section 403 of the IPC of temporary misappropriation of monies is a criminal offence. In any case, he continued to retain these monies till 2006. He only returned the monies under the coercive order of the court and not otherwise.

 

During his tenure as Judge, he put a false defence before the single Judge, the Division Bench, the in-house inquiry committee and the impeachment inquiry that he had invested these monies in a company which went into liquidation. The liquidated company had nothing to do with these monies. The Division Bench judgment is a judgment with consent of all parties. It does not lay down the law. It is a judgment in personam, which is binding only on the parties, and not a judgment in rem, which binds the rest of the world. It does not, in any way, restrain the jurisdiction of this House under Article 217 from examining a case of ‘proven misconduct’.

 

Justice Soumitra Sen’s conduct as a litigant was unfortunate. He led no evidence. He hardly cross-examined witnesses. He claimed the right of silence. He then misrepresented and put up a false defence. He has been held guilty, both by the in-house committee appointed by the Chief Justice of India, and also by the committee appointed by the Chairman, Rajya Sabha. He is conclusively guilty of an offence. A case of ‘proven misconduct’ is made out against him. A Judge has to lead by example. A Judge cannot rely on technicalities and try to escape the rigours of law. Litigants cannot be Judged by a Judge, who himself is stigmatized. The defence of Justice Sen has thus to be rejected.

 

Who must appoint the Judges?

 

The Constitution of India empowers the government, in consultation with the Chief Justice of India to appoint Judges. Since the government has the last word, the independence of judiciary was being seriously compromised. The theory of social philosophy of Judges was propounded in the early 1970s in order to provide for a ‘Committed Judiciary‘ in India. The failure of a section of the judiciary during the Emergency and thereafter compelled the revisiting of the debate as to who should have the last word in the appointment of the Judges. The Supreme Court in 1982, by a narrow majority of 4 against 3, maintained the status quo. This enabled further politicization in matters of judicial appointments. In 1993, the balance of power shifted. The advice of the Chief Justice of India became binding upon the government. In 1998, the authority of the Chief Justice of India was diluted to provide for a collegium to appoint Judges.

 

The quality of judicial appointments, the best available not willing to become Judges, has not improved. Both the earlier systems have not succeeded. Thus the system of Judges alone appointing Judges must now change. India needs a National Judicial Commission to appoint Judges. It must be a combination of members of the judiciary, the executive and citizens’ representatives in public interest who must collectively appoint Judges.

 

The more important question is what should be the criteria on which Judges should be appointed. Today, Judges perform the Executive function of appointment in an unguided manner. The discretion of the National Judicial Commission, if it is so appointed, or the collegium as at present must now be restricted and regulated by the provisions of the Article 14 of the Constitution of India. There must be objective criteria introduced with regard to the qualification of persons under consideration, their academic credentials, their experience at the bar, their quality of judgments if they belong to the judicial institutions, details of cases argued, details of judgments reported with regard to the cases the lawyer has argued, the number of juniors trained, academic papers authored, amount of income tax paid, and the reputation and integrity etc. Unless these objective criteria enable a candidate to cross the threshold, he cannot enter the zone of consideration.

 

At present we have an in-house mechanism, which judges the Judges. It is an extra constitutional mechanism which has not succeeded. The process of impeachment is a near impossibility. The National Judicial Commission thus, in matters of judicial discipline, should be the Judicial Lok Pal.

 

Threats to judicial independence

 

The appointment of political activists as Judges at times has compromised the judicial independence. The lack of integrity can be on account of several reasons, which influence the administration of justice. These include judgments delivered because of collateral reasons and prejudices on account of religion, caste or personal reasons.

 

There is an increased trend of the Executive distributing jobs to Judges post retirement. This has seriously compromised the independence of judiciary. In recent times , the cases of Judges delivering judgments in politically sensitive cases on the eve of retirement and getting jobs the very next day from the Government is on the rise. I believe that no Judge should be entitled to a job after retirement. If the age of retirement is sought to be increased in the case of High Courts, as per the existing Bill pending, the same must be accompanied by a constitutional amendment, which prohibits jobs after retirement. The Judge strength of High Courts can be increased and all judicial tribunals must be manned by serving Judges.

 

Separation of powers

 

The separation of powers is one the most valuable principles of the Indian democracy. Separation of powers is infringed upon when the Legislature or the Executive encroach upon the Judiciary’s space or Vice Versa. It is only judicial statesmanship which prevents a confrontation between the institutions. Of late, with the weakening of the political Executive and serious division in the polity, the tendency of the judicial institution to encroach upon the Legislative or Executive space has increased. It has been argued that if the Executive does not perform its job, the Judges have to step in. This is a dangerous argument. By the same logic, if the judiciary does not perform its job, can somebody else step in? The answer is NO in both the situations. Recent comments and pronouncements with regard to whether India should have liberalized economy or regulated economy do not fall within the judicial space. How terror is to be fought is in the Executive domain. What should be the land acquisition policy, is a concern which belongs to the Parliament and the Executive. Whether a Pakistani prisoner in India should be released or exchanged for Indian prisoners in Pakistan, is to be determined by the Government and not the Supreme Court. Whether FDI is needed in the economy or not is an area that belongs to be Executive or Parliament. Unfortunately, recent aberrations in the separation of powers, have all been on account of judicial activism. Activism and restraint are two sides of the same coin. Each institution must respect the Lakshman Rekha.

 

A breach of trust

 

Finally Sir, we have before us a case of ‘proven misbehaviour’ by Justice Soumitra Sen. It is not that his misbehaviour is restricted to his tenure as a lawyer. There is a thread of continuity in his ‘proven misbehaviour’. He became a Receiver of a court property. He opened a bank account in his own name. He was a Trustee of somebody else’s fund. He misappropriated the funds. He put them for an alternative use. This he did as a lawyer.

 

In 2003, when he became a Judge, he continued the misappropriation. He did not ask the court to discharge him. When the court issued him notice, he did not respond. When the court passed strong strictures against him, he under coercive direction of the court returned the money in 2006 along with interest. He mis-representated to the court that he had invested the money in a private company and that the money got lost when the company became insolvent. No part of this money was ever invested in a private company. When the Chief Justice of India called him for an explanation, he moved the Division Bench through his mother and got an order of the single Judge set aside on the basis of concessions made by the advocates. The order shows the members of the bar not in good light. Before the in-house committee, appointed by the CJI, he persisted with his false defence. The committee found him guilty. Before the Parliamentary Committee, he did not volunteer the entire evidence. He resorted to technicalities and silence. He resorted to false defence.

 

His acts, both as a lawyer and a Judge, had all the ingredients of culpability of breach of trust. He misappropriated the money and he put up a false defence. He was not truthful or candid. This is a case of ‘proven misbehaviour’.

 

I, therefore, support the address to be made to the President, that Justice Soumitra Sen be removed from office as a Judge of the Calcutta High Court. He is undeserving to occupy that office. We recommend the removal of an undeserving man to save the dignity of the office.

 

 


 http://www.tribuneindia.com/2011/20110819/edit.htm#6