THE RIGHT TO FREE EDUCATION

THE TRIBUNE, NEW DELHI, APRIL 18, 2011, P. 8
Right to free education
The RTE Act, 2009, which guarantees free and compulsory elementary education to the children between the age of 6 and 14 is unprecedented. Now the onus lies on the parents or guardians of the children to enroll them in a suitable neighbourhood school. The governments, local authorities and prominent members of civil society are under an obligation to sensitise every stakeholder to make the best out of this coveted opportunity. Some knotty challenges like defining, identifying and notifying the neighbourhood schools; modalities for enrolments towards a 25% quota in private unaided schools (specifically considering that the screening test in any form is forbidden); furnishing of infrastructure; skepticism about the replacement of the admission criterion of ‘skill-appropriate class’ with ‘age-appropriate class’; repercussions of opening admissions round the year, etc, need to be addressed immediately after eliciting the views of all stakeholders. However, going beyond the realm of the said law, the moot point is to bring home the realisation about the wholesome impact of the ‘holistic education’ in the life of a human being.
RAJENDER GOYAL, Bahadurgarh

Reference is salutary

The reference by a Division Bench of the Supreme Court to the Chief Justice of India -a PIL entitled Suraz India Trust vs Union of India and Anr- to constitute an appropriate larger bench to revisit the extant collegium system of appointment of judges in higher judiciary is apt and laudable. The present collegium system was put in place in the year 1993 through a ruling of nine-judge Bench in a case titled SC Advocates on Record Association versus Union of India and it was further reaffirmed by the Supreme Court in the case of Special Reference No.1 of 1998. However, it has raised the hackles of different sections of the civil society from its very inception. More importantly, the Law Commission of India in its 214th and 230th Reports has also recommended the reconsideration of the collegium system. It has suggested two alternatives. One is to seek a reconsideration of the abovee cited cases before the Hon’ble Supreme Court. Other is to enact a law to restore the primacy of Chief Justice of India and power of the executive to make the appointments.
However, it is no gainsaid to emphasize that every individual and institution in the country has heavy stakes in the well being and wholesomeness of the higher judiciary – the custodian of the Indian Constitution. Hence, it will be desirable to evolve a system which is all-inclusive and reflective of various facets of our ‘the body politic’ while keeping at the helm the “Independence of Judiciary”.
It is strongly felt that there is a need for a all-judges National Judicial Commission (NJC) to undertake the work of appointment of the Judges of the Higher Judiciary- consisting of the Chief Justice of India (CJI) and the four senior most Supreme Court judges in the case of appointments in the Supreme Court, and of the CJI, two senior most Supreme Court judges and two senior most High Court Chief Justices in the case of High Court. The Chief Justice of India should be the Chairman of the Commission. In case of appointment of judges in the High Court, the Chief Justice of the concerned High Court and the Chief Minister of the State where that High Court is situated shall also be the Members. It is suggested that there should be another broad based authority juxtaposed with the NJC. The authority being suggested here will be in addition to the NJC that shall be performing the work of a screening committee and thereafter, refer the same to the NJC for final recommendations. This Committee could be named as "Empowered Committee". It could have one member as a Chief Justice of India or his nominee, two Members as the Speaker, Lok Sabha and Chairman, Rajya Sabha or their nominees. There could be one nominated representative of the Prime Minister and one representative of the Bar Council of India. An outstanding law academician would also be the member. He shall be elected by the confederation of Law institutes, the department of Laws of various Universities, the specialized Law Universities like National Law Schools and deemed Law Universities like Indian Law Institutes.

Karnataka Imbroglio: propriety of Governor’s decision

It is one of the fundamental postulates of the administration of criminal justice that anyone can set the criminal law into motion unless the statute enacting the offence makes a special provision to the contrary. Purity of public life is one of the cardinal principles which must be upheld as a matter of public policy. No man is above the law. The question for consideration is whether a Governor can act in his discretion and against the aid and advice of the Council of Ministers in a matter of grant of sanction for prosecution of Chief Minister/Ministers for offences under the Prevention of Corruption Act and/or under the Indian Penal Code.
Under Article 163 of the Indian Constitution, normally the Governor acts on the aid and advice of the Council of Ministers except in the cases where the Governor is by or under the Constitution required to exercise his function or any of them in his discretion. If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
It is against all canons of justice to make a man judge in his own cause. Sometimes bias is likely to operate in a subtle manner. Decision makers may not even be aware of the extent to which their opinion gets influenced. It is possible to contend that a Council of Ministers may not take a fair and impartial decision when his Chief Minister or other members of the Council face prosecution. Hence, when there is to be a prosecution of the Chief Minister, the Governor should, while determining whether sanction for such prosecution should be granted or not, as a matter of propriety, necessarily act in his own discretion and not on the advice of the Council of Ministers. For the interest of democratic Government and its functioning, the Governor must act in such a case on his own without being motivated by extraneous political considerations. Otherwise, he will become an instrument for serving the personal and selfish interests of some other person(s) and in turn, will be seen protecting his/her own vested interest.

Rejoinder to my comment entitled "Regulating Research" (January 14) apropos Ramesh Gupta's Article "Improving the quality of PhD research" (Jan 4)

THE TRIBUNE, NEW DELHI, 02.02.2011, P. 12
Research quality
The article “Improving the quality of PhD research” (Jan 4) by Ramesh Gupta and subsequent letters “Regulating research” by Rajender Goyal and “Quality of research is more vital’ by Sanjeev Trikha, caught my attention. If Indians really want to move forward in frontier areas not only of scientific research, but also of social sciences with new vision, the quality of PhD theses that students produce (its number is more than 8,500 per year in India) year-after-year under the so-called active guidance of their peers, they have to really be honest and sincere.
For the poor quality of PhD research, only the non-innovative, dishonest, lazy and greedy guide is responsible and not the student who is malleable and can be given any shape by a master craftsman.
RANBIR SINGH, New Delhi

Rejoinder to my comment entitled "Regulating Research" (January 14) apropos Ramesh Gupta's Article "Improving the quality of PhD research" (Jan 4)

THE TRIBUNE, JANUARY 19, 2011, P. 10
Quality of research is more vital
Ramesh Gupta’s article “Improving the quality of PhD research” (Jan 4) and comments by Rajender Goyal (Jan 14), highlighted the need for streamlining and regulating research process and subsequent effective evaluation procedures by the universities and institutions conducting various research pursuit. However, I would like to add that the writer seems to be obsessed with the need to develop such a system which would restrict the registration of the topic on which work has already been done. If authorities or people at the helm of academic affairs of various institutions handling research activities become rigid about not allowing any topic to be re-registered, this would no doubt fail the basic aim and spirit of the ‘re-search’. Various academic pursuits have clearly shown that social and economic results tend to vary with time and changing circumstances. New research with new and better means evolves new visions, new outlooks on which fresh destinations can be targeted. Research based on fresh topics, if done only to gain or earn degree tags, to cross hurdles of point system to reach higher pay bands would surely not serve the basic objective of the research programme.
Contrary to the viewpoint expressed by the writer and supported by Mr Goyal, I am of the view that fresh research pursuits should be equally encouraged on topics on which work has already been done. The work already done with constraints and limitations of limited availability of means and limited access to information and data in comparison to the improved information technology scenario of today undoubtedly asks for fresh effort. Hence research conducted even on old topics can give better and more effective results in the changing social and economic scenario. Let the old topics be reopened and researched. Remarkable and astonishing results are bound to flow.
Research committees approving research topics should give due weightage to the effectiveness and relevance of the topic to the present-day and prospective problems confronting the nation. PhD registrations by the universities to earn better accreditation grades, writing PhD theses by the researchers just to scale the pay grade ladder, evaluating PhD theses by the ‘academic dons,’ just to unload the obligation would not serve the basic purpose of academic research.
PhD theses which do not confine themselves to the library shelves, which are helpful in evolving new line of thinking, developing new visions, exploring new paths and destinations should be encouraged, initiated and suitably rewarded.
SANJEEV TRIKHA, Associate Professor, M.M.(PG) College, Fatehabad

UGC Regulation- 2009 can go a long way in improving the quality of Ph.D. Research

The Tribune, New Delhi, January 14, 2011, P. 10
Regulating Research
Ramesh Gupta’s article “Improving the quality of PhD research” (Jan 4) was timely. The writer has rightly batted for the establishment of “Central Registration Agency” which can provide data before registration of a particular topic and show whether same topic or in a modified form is being pursued at some other university or not.
However, the UGC (Minimum Standards and Procedure for Award of M.Phil/Ph.D Degree) Regulation, 2009 provides for a “Depository with UGC” where following the successful completion of the evaluation process and announcements of the award of M.Phil/Ph.D. the university has to submit a soft copy of the M.Phil /Ph.D thesis to the UGC within a period of 30 days. The judicious use of this provision can eliminate the chances of the same or modified topic registered at two or more universities at the same time.
Further, not only the examiners but also the supervisors of the Ph.D. thesis should be related to their field of specialisation. The said regulation of 2009 mandates that the allocation of the supervisor for a selected student shall be decided by the department in a formal manner depending on the number of students per faculty member, the available specialisation among the faculty supervisors, and the research interest of the student. The allotment/allocation of supervisor shall not be left to the individual student or teacher.
Moreover, to emphasise that while sending PhD thesis/M.Phil dissertation for evaluation to external examiners, the identity of both supervisors as well as candidates should be kept a closely guarded secret.
RAJENDER GOYAL, Bahadurgarh

OVERBEARING BAR BROWBEATING THE JUDICIARY

A special CBI judge, hearing a bribery case against a member of Bar Council of India, was allegedly held hostage inside his court in Patiala House, New Delhi on December 23 by a group of unruly lawyers for over an hour. Official sources said judge OP Saini was also verbally abused by some 40-50 lawyers, who had gathered in the Patiala House courts in support of the accused who was allegedly caught while taking bribe for granting affiliation to a law college in Ghaziabad. Honesty and integrity of both lawyers and judges are indispensable for the wholesomeness of the justice delivery system. The legal practice has traditionally been looked as a “noble profession” and judges considered the personification of justice and addressed as “Your Honour” or “My Lords”.
However, over the years, undesirable elements among the lawyers have come to be as an intolerable menace for administration of justice. The unruly conduct of the lawyers (i.e. officers of the court) brings the authority of the court and the administration of justice into disrespect and hence, undermines the very foundation of the judiciary by shaking the confidence of the people in the ability of the court to deliver free and fair justice.
The lawyer’s bodies have a definite role to play in dispensing unadulterated justice without fear or favour and hence, they should go all out after the unscrupulous, rowdy and overbearing mavericks who are blot on the noble profession and try to pollute the stream of justice through their coercive tactics for their own vested interests and thereby, brings whole lawyers fraternity to disrepute and public censure. The lawyer community owes an abiding duty in bringing home the immortal words of Chief Justice Coke that “Be you ever so high, the law is above you”. However, what is sauce for goose is the sauce for gander. The judges should also come out of ivory towers and be considerate enough to the real world problems of the lawyers and litigants. The increasing cases of judicial apathy and corruption are a colossal menace for the justice delivery system.

VICTIM COMPENSATION SCHEME

The rights of the victims of the crimes in the extant criminal justice system specifically regarding the monetary compensation and rehabilitation of them are quite crucial from the perspective of human rights. The basic Code of criminal procedure i.e. CrPC, 1973 has ample provisions to provide succour to the victims. Section 357 of the said Code empowers the Courts to pass orders to pay monetary compensations to the victims. Unfortunately, owing to want of judicial wisdom and sensitivity, this provision is sparingly made use of. Moreover, the Code of Criminal Procedure (Amendment) Act, 2008 enforced w.e.f. 31-12-2009 has inserted a new section 357A envisioning a “Victim compensation scheme”. It mandates that:
(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry-award adequate compensation by completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.
Hence, the need of the hour is to frame a scheme as envisaged in the aforesaid section 357A forthwith and to implement it in letter and spirit.

Need to rework the compositions of the committees, and broaden the scope in/of the proposed law

The introduction of the Judicial Standards and Accountability Bill, 2010 in the ongoing winter session of Parliament is laudable. The majesty and sanctity of the judiciary rest on the respect and confidence it enjoys among the people. The Bill seeks to ensure greater judicial accountability and transparency. It provides for provisions for declaration of assets and liabilities of judges of higher judiciary, and a mechanism to tame the judicial indiscipline and corruption even at the instance of an ordinary private person. It provides for setting up of a broad based “National Judicial Oversight Committee”(NJOC) and an all Judges “Scrutiny Committee”.The NJOC would consist of a retired Chief Justice of India (CJI), a Judge of the SC and the Chief Justice (CJ) of a HC. The Attorney General would be the ex-officio member and an eminent person would be nominated by the President as its member. The Scrutiny Committee for the SC would consist of a former CJI and two Judges of the SC. The Scrutiny Committee for the HCs would consist of a former CJ of that HC and two Judges of that HC.
The NJOC would first refer the complaints to the appropriate Scrutiny Committee. The Scrutiny Committee would submit their reports to the NJOC within a maximum period of three months. The NJOC would constitute an investigation committee to go into the complaints recommended by the Scrutiny Committee. The NJOC and investigations committees would have the power to summon persons from any part of India and ask for any public record. The investigation committee would also have the power of “search and seizure.”
Under Clause 34 of the proposed Act, the NJOC would have the power to dismiss complaints or impose minor penalties such as warnings and advisories. If the charges were of the “serious nature warranting” removal, it could request the Judge to voluntarily resign “and if he fails to do so, then advise the President accordingly who shall refer the matter to the Parliament.”
However, needless to emphasize that Judicial accountability, transparency and independence are interwoven. To protect the sacrosanct “Independence of Judiciary”, the final decision making body i.e. NJOC should comprise of all judges. Hence, if a complaint is against a Supreme Court judge, the NJOC should consist of the Chief Justice of India (CJI) and the four senior most Supreme Court judges. If the complaint is against a High Court judge, the NJOC should consist of the CJI, two senior most Supreme Court judges and two senior most High Court Chief Justices. The Chief Justice of India should be the Chairman of this Committee. Further, the Scrutiny Committee should be broad based and it could have one member as a Chief Justice of India or his nominee, two Members as the Speaker, Lok Sabha and Chairman, Rajya Sabha or their nominees. There could be one nominated representative of the Prime Minister and one representative of the Bar Council of India. An outstanding law academician could also be the member. He may be elected by the Confederation of Law Colleges, the department of Laws of various Universities (including private and deemed universities), the specialized Law Universities (National Law Schools) and deemed Law Universities like Indian Law Institute, Delhi.
Moreover, the matter of appointment of the judges in higher judiciary could also be entrusted to a wider body other than the present collegium with representation from the judiciary, the executive and legislature and civil society. It is suggested that it could be entrusted to the suggested restructured "Scrutiny Committee" which could initially screen the names and thereafter, refer the same to the NJOC for final recommendation (hitherto now recommendations are made by the Supreme Court Collegium. It is noteworthy that composition of the suggested restructured NJOC and the extant Supreme Court Collegium is mostly the same). In case of appointment of judges in the High Court, the Chief Justice of the concerned High Court and the Chief Minister of the State where that High Court is situated should also be the Members. The matter of the transfer of the Judges/Chief Justices of the High Courts should be entrusted to the NJOC only without any interference of the Scrutiny Committee and its decision should be final.
Under the proposed law, the Higher Judiciary including the office of the Chief Justice of India should specifically be made amenable to the command of the Right to Information Act.

Selections in the Selectors (PSCs)

The Supreme Court on November 12, 2010 gave the nod for the removal of suspended Haryana Public Service Commission (HPSC) Chairman and its suspended members for their failure to “maintain the required standards of integrity and rectitude in performance of their constitutional duties”. A three-member Bench headed by Chief Justice SH Kapadia ruled that “There exist justifiable grounds” for their removal and “resultantly, the reference, made by the President of India to this court, is answered in the affirmative”. The other members of the Bench were Justices KS Radhakrishnan and Swatanter Kumar.
The Constitution mandates that as nearly as may be one-half of the members of every Public Service Commission (PSC) shall be persons who at the dates of their respective appointments have held office for at least ten years either under the Government of India or under the Government of a State. Further, the power vests with the President or the Governor as the case may be to determine the number of members of the Commission and their condition of service. However, the State Public Service Commissions, of the late, have become dumping grounds for pliable retired bureaucrats and the henchmen of the Chief Minister who can piously do his bidding.
The Selection of the Chairman and the Members of the PSC should be made by the President/Governor on the recommendation of a Committee comprising the Prime Minister/Chief Minister, Chief Justice of India/Chief Justice of the High Court of the State and the Leader of the Opposition in Lok Sabha/Vidhan Sabha from a panel of outstanding retired civil servants and others with impeccable integrity as the case may be. The Article 319 enumerating certain prohibitions as to the holding of offices by the Ex-Chairman or Ex-Members of the Commission should be amended to bar such Chairman or Members to engage in active politics or to occupy a political post even in an honorary capacity after demitting the office.

High time to keep the Speaker out of the loop in adjudicating over the question of disqualification on the score of defection

The anti-defection law has now become the handmaid of the vagaries of the Speaker of the House be it State or Union Legislature who in turn dances to the tune called by his political boss in ruling regime as seen, of the late, in Haryana and Karnataka. Hence, time brooks no delay in amending the Constitution suitably to keep the Speaker out of the loop in adjudicating the question of defection in a given case. The President and the Governor should be vested with the power to decide on disqualification of MPs and MLAs respectively on the score of defection on the binding advice of the Election Commission of India (ECI) a proposal mooted by the ECI and endorsed by the Second Administrative Reforms Commission.

Further, not all is bad with the anti-defection law. The whipping boy the para 4 of the Tenth Schedule of the Constitution enabling the merger of a political party, in fact, is highly democratic. It envisages a collaborative and participatory working between the political party concerned and its legislature party consisting of all members of the given House for the time being belonging to that political party in the State Legislature or Parliament whatever may be the case. The law tends to strike a fine balance between interests of political party and the aspirations of the Legislators (denoting the will of the people) comprising the legislature party concerned. The contents and intent of the said law lend emphatic credence to the inference that any decision for such merger can only be taken by the original political party in accordance with the rules thereto as embodied in the constitution of that political party, and to take it further to any logical conclusion must find favour with not less than two-thirds of the elected members of the legislature party concerned. Hence, the contention as being articulated from certain quarters that unilateral decision of the two-third members of the legislature party bypassing the political party ipso facto seals the fate of the latter is untenable. Since there is no direct authoritative ruling of the Apex Court on the para 4 of the Tenth Schedule of the Constitution and the vacuum is being rampantly misused/abused by the unscrupulous political parties and politicians, hence, it will be in the fitness of the things to invoke Article 143 of the Constitution to seek the opinion of the Supreme Court through a Presidential reference on the vexed question.

When should the justice retire?

Lawyers update, November, 2010, Letters to the Editor
“The Cover Story, “WHEN SHOULD THE JUSTICE RETIRE?” by HemRaj Singh in the September 2010 issue was timely. Amongst others, the retirement age of the Judges of higher judiciary has profound bearing on the independence of higher judiciary in India. The retired judges of the higher judiciary are offered government employment of some kind or other viz. chairmanship, membership of tribunals, statutory commissions, committees and so forth. The lure of such prospective offices and associated perks and pelf have ample potential to subject some of the serving judges to extraneous considerations in the discharge of their duties and it may undermine the independence of higher judiciary. The apprehension becomes more marked in view of the constitutional prohibition restraining the retired Supreme Court Judges and the retired High Court Judges to practice law before any court or authority in India and in the High Court(s) where they held office as a permanent judge respectively.
As pointed out in the story, in USA, a Judge of the Supreme Court holds office during good behaviour, which means that he can continue to occupy office for life. The secured judicial tenure leading virtually up to the last breath of the judge free of the post-retirement anxieties greatly subserves the independence of judiciary in the USA.
In India, the present position of difference in age of retirement has colossal potential to inveigle some of the High Court judges to curry favour with the Supreme Court’s collegium (entrusted with the function to make appointments and transfers in higher judiciary) to secure an extended tenure of three more years in the Supreme Court.
The Constitution Amendment Bill introduced in the Lok Sabha in the last monsoon session to raise the retirement age of High Court Judges from 62 to 65 is salutary but not adequate. In this matter, either the Indian Constitution should appropriately be amended on the line of the American Constitution or any how, the age of retirement of both the High Court and Supreme Court Judges be fixed at 70 years in line with the present normal life expectancy in India.
However, needless to emphasize that Judicial accountability, transparency and independence are interwoven. The Judicial Standards and Accountability Bill cleared by the Union Cabinet recently needs to be made into law forthwith. Moreover, the proposed Scrutiny Committee and Judicial Oversight Committee in the said Bill should also be involved along with the existing machinery of the present Collegium system in making judicial appointments and transfers in the higher judiciary. It will help tremendously in mitigating the scourge of “Judges appointing the Judges”.”
Rajender Goyal
Advocate, Bahadurgarh
(Haryana)

The Protection of Women Against Sexual Harassment at Workplace Bill, 2010

THE TRIBUNE, NEW DELHI, 11.11.2010, P. 10
Sexual harassment
Thirteen years after the Supreme Court delivered the Vishakha judgment detailing guidelines for the protection of women at workplaces, the Union Cabinet’s nod to the Protection of Women Against Sexual Harassment at Workplace Bill, 2010 for introduction in the Parliament’s forthcoming winter session is heartening (editorial “Protecting career women: Bill to prevent sexual harassment at offices”, Nov 8).
The apex court had relied upon the Convention for Elimination of All Forms of Discrimination against Women (CEDAW), which India had signed. As stated in the editorial, the Bill is broad-based in its nature and scope as it includes women working in all enterprises — public, private, organised and unorganised. It will apply even to establishments with less than 10 employees, but their complaints will be directed to a local complaints committee at the district level.
Moreover, any woman who enters the workplace as a client, customer, apprentice, daily wage earner or in an ad hoc capacity, students and research scholars in colleges and universities, patients in hospitals will have the right to complain against sexual harassment. However, it is rightly urged upon to bring the domestic help into the ambit of the present legislation in view of the increasing cases of exploitation and molestation of the domestic help in recent times.
RAJENDER GOYAL, Advocate, Bahadurgarh

MOCKERY OF AN EXAMINATION

THE TRIBUNE, NEW DELHI, PULL-OUT OF HARYANA PLUS, OCTOBER 26, 2010, P. 2
Mockery of an examination
An eerie sense of distrust, skepticism, unpredictability and dilly-dallying is generally seen to shroud the selection processes undertaken by the Haryana Public Service Commission (HPSC). For appointments in HCS (Judicial Branch), the HPSC conducted preliminary examination on 11.07.2010. The result that was declared on 14.07.2010 wadded into troubled waters. Some unsuccessful candidates hauled up the HPSC and the selection committee of the Punjab and High Court over some grave errors in the question paper and answer key.
Justice Ajay Lamba then directed the Selection Committee and the HPSC to constitute an empowered committee to redraft the answer key and recheck the papers of all candidates. However, without doing so, the HPSC notified the schedule for main examinations (October 1 to October 3). While the aggrieved candidates grumbled at the indiscretion of the HPSC, the successful candidates were also on tenterhooks over the legal sanctity of the examination. Later, the answer key was rectified and the revised merit list was published on 27.09.2010. Consequently, it occasioned the induction of 45 more candidates. However, there was no deferment of the main examination which took place as per notified schedule. Will the authorities explain as to how it is feasible to brace up for an examination for the post of the Civil Judge-cum-Judicial Magistrates in a short notice of four days? The disappointment further deepens because of the fact that High Court is also involved in the selection process.
Rajender Goyal
Bahadurgarh

FOOD CRISIS amidst GRAIN DRAIN

THE HINDUSTAN TIMES, NEW DELHI, October 25, 2010
Starved of compassion
With reference to Grain rot deeper than govt claim: SC (October 19), allowing millions of tonnes of foodgrain, procured at heavy cost to the State exchequer to rot, while millions starve in the country is nothing but inhuman. The prime minister owes a public apology to the nation on the emotive issue of the food crisis and grain drain.
RAJENDER GOYAL, DELHI

The policy of the appointment of Chief Justice of a High Court from outside is salutary

THE TRIBUNE, NEW DELHI, October 20, 2010, P. 10
Debate on CJs’ appointment
I read The Tribune debate on the policy of appointment of High Court Chief Justice from outside the state (Sept 9, 13, 14 and Oct 6). The present policy is based on the decision to have one-third of the judges of a High Court from outside the state following serious deliberations in the Constituent Assembly, the States Reorganisation Commission, the Law Commission, the Administrative Reforms Commission, etc. The Supreme Court, in its various rulings, has also ratified it.
The common grouse against the present policy is that the Chief Justice from outside the state is not familiar with the local Bar, the practices and rules of the new High Court and the subordinate judiciary and that his tenure generally is too short to enable him find his feet in the new High Court. The Supreme Court in SC Advocates-On-Record Association v Union of India (1994) ruled: “It may be desirable to transfer in advance the seniormost Judge due for appointment as Chief Justice to the High Court where he is likely to be appointed Chief Justice, to enable him to take over as Chief Justice as soon as the vacancy arises and, in the meantime, acquaint himself with the new High Court”.
The recent transfer of Justice Ranjan Gogoi, Acting Chief Justice of the Guwahati High Court to the Punjab and Haryana High Court is in line with the said decision of the Supreme Court and needs to be replicated invariably in every case. Moreover, while denouncing the present policy of transfer, we must not lose sight of the rampant scourge of “uncle judges” that is badly sullying the judiciary’s fair image.
RAJENDER GOYAL,
M.D. University, Rohtak

Judiciel Standards and Accountability Bill

The Union Cabinet’s nod for the introduction of the Judicial Standards and Accountability Bill in the coming winter session of the Parliament is laudable. The majesty and sanctity of the judiciary rest on the respect and confidence it enjoys among the people. The Bill provides for provisions for declaration of assets and liabilities of judges of higher judiciary, and a mechanism to tame the judicial indiscipline and corruption even at the instance of an ordinary private person. To weed out frivolous complaints, a scrutiny committee is envisaged to examine the authenticity of the complaint. Only thereafter, a broad based judicial oversight committee will look into the complaint, and take/recommend suitable action against errant judge. Hence, the Bill is a fine blend of judicial accountability, transparency and independence.
However, in the Bill, the Higher Judiciary including the office of the CJI should specifically be made amenable to the command of the RTI. Moreover, the proposed Scrutiny Committee and Judicial Oversight Committee should also be involved along with the present Supreme Court Collegium (that practically makes appointments and transfers of the judges in higher judiciary) in effecting judicial appointments and transfer in the higher judiciary.

My wife's olive branch on Ayodhya verdict

THE TRIBUNE, NEW DELHI, OCTOBER 12, 2010, P. 10
Ayodhya: Need to move beyond ruling
The Ayodhya verdict is getting mixed reactions. One set of views declares it a triumph of Indian ethos of secularism, pluralism, tolerance, and unity in diversity and peaceful co-existence. Others brand it as a political verdict contrary to facts and law, affirmation of Hindu majoritarianism, judicial perpetuation of a gross illegality, an attempt to supplant the much cherished ‘rule of law’ with the ‘divine rule’ and so on.
Be that as it may, the core issue involved in the Ayodhya matter is essentially political. It will be foolhardy to seek a legal solution of a political and religious problem. In 1994, the apex court had returned the Presidential Reference unanswered on the question: “whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Babri Masjid (including the premises of the inner and outer courtyards of such structure)” on the count that the reference was superfluous, unnecessary, opposed to secularism and favoured one religious community.
The momentous verdict of the Lucknow Bench of the Allahabad High Court has given an opportunity to leave the past behind and press on with new resolve and vigour. We should shun internecine belligerent positions and should reach out to each other to hammer out a mutually acceptable solution more or less in line with the Ayodhya verdict.
NEETI GOYAL, Bahadurgarh

The hullabaloo over AFSPA is deafening

Gen (retd) VP Malik’s Article “Revisiting AFSA:Don’t blame it for Kashmir problems”, The Tribune, New Delhi, Sept 20, was enlightening and gave an apt snapshots of the various provisions of the Armed Forces (Special Powers) Act, 1958 (AFPSA) vis-à-vis its need in view of the extant disturbed, subversive conditions in many parts of the Country, and its practical utility and efficacy. The real thorn in the flesh of the problem lies in the socio-politico-economic grievances of the people and the political authorities concerned only can address it. To pass the buck on the Armed Forces for the present vitiated state of affairs is highly reprehensible and self-defeating.
The AFSPA arms the security forces with sweeping powers that are absolutely necessary to pulverize the diabolic designs of the subversive element in the disturbed areas. Amongst others, the whipping boy is the Para 6 of the AFSPA. It confers some protection to the members of the security forces deployed in the disturbed areas against frivolous prosecutions etc. inasmuch that prior sanction of the Central Government is mandatory before any prosecution, suit or legal proceeding is instituted against them for any alleged acts of commission or omission done under the AFSPA . The detractors of the AFSPA must know that even an ordinary public servant, while acting or purporting to act in the discharge of his official duty, enjoys largely similar protections under the general law of the land. Even in the absence of the AFSPA , the members of the armed forces will enjoy somewhat identical protection as envisaged in said Para 6, under section 197 (2) of the code of criminal procedure.
The need of hour is to chalk out cogent and comprehensive roadmap to redress the grievances of the aggrieved people in the disturbed areas. However, the security forces require potent legal cover, optimal logistics support and adequate operational freedom to crush the menace of terrorism and insurgency.

Retirement age of the Judges and independence of Higher Judiciary

The Sunday Tribune, New Delhi, Sept 26, 2010, P. 12
Raising judges’ tenure will strengthen judicial independence
Justice A.R. Lakshmanan’s article, “Retirement of judges: Raise the age to streamline the higher judiciary” (Sunday Oped, Aug 29) was thought-provoking. The increase in the retirement age of the judges of higher judiciary will have a profound bearing on the judicial independence.
The retired judges are offered government employment of some kind or other which may subject some of them to extraneous consideration and thus undermine judicial independence.
It is more so in view of the constitutional embargo prohibiting a retired Supreme Court and High Court judge to practice law before any court or authority in India and in the High Court(s) where he held office as a permanent judge respectively. In the US, a Supreme Court Judge holds office during good behaviour, which means that he can continue to occupy office for life. Of course, a judge is at liberty to retire on attaining the age of 70 years and on completing ten years of service at the Supreme Court.
The Constitution Amendment Bill in the Lok Sabha to raise the retirement age of High Court Judges from 62 to 65 is laudable but not adequate. Either the Constitution should be amended on the lines of the American Constitution or the retirement age of judges be fixed at 70 years in consonance with the normal life expectancy in India.
RAJENDER GOYAL, Advocate, Bahadurgarh