Defection in the garb of a merger: The protagonists of the merger need to revisit the tenth schedule of the Indian Constitution

Defection in the garb of a merger: The protagonists of the merger need to revisit the tenth schedule of the Indian Constitution

There is a deluge of views emanating from distinguished persons on the raging controversy regarding the validity of changing of side in the garb of a merger by the five MLAs of Haryana Janhit Congress (BL) with the Indian National Congress in Haryana and the whipping boy is the tenth schedule of the Indian Constitution enshrining the anti-defection law. The self-fulfilling interpretation of the provisions of the anti-defection law by the legal eagles to suit a desired end, the suspicion on the non-partisanship of Hon’ble Speaker of the Legislative Assembly and lack of definitive judicial pronouncement on the subject has cast serious doubts on the efficacy of the anti-defection law, and accentuates the need to put the relevant law in its true perspective.
In fact, the para 4 of the tenth schedule of the Constitution enabling the merger of a political party is highly democratic envisaging a “collaborative and participatory working” between the political party concerned and its legislature party consisting of elected representatives in the State Legislature or Parliament whatever may be the case. The law strives to strike a fine balance between the interests of political party and the aspirations of the elected representatives (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 and procedure as delineated 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. Only a well-considered decision in consequence of due deliberations in concert with each other will sanctify the merger. Hence, it is seemingly erroneous to contend that unilateral decision of the two-third members of the legislature party bypassing the political party ipso facto seals the fate of the latter.
The Apex Court in Ravi S. Naik (1994) while interpreting para 3 of said schedule (has since been repealed by the Constitution (Ninety-first Amendment) Act, 2003, w.e.f. January 1st, 2004) dealing with split in a political party had intoned that “even if there is 100% merger of the legislature party, without a split in the original party there can be no split”. It is noteworthy that said law of split enshrined in the repealed para 3 contemplated a lesser evil inasmuch as not immediately annihilating the existence of original political party. In consequence of split in original political party, the members of the breakaway faction constituted a separate political party and at the same time the original political party also retained its existence Where as in the present case under para 4 of the tenth schedule of the Constitution, the moment the merger is deemed to be valid, the existence of the original political party (read Haryana Janhit Congress) is wiped out entailing grave identity crisis for its founder & supremo Sh. Kuldeep Singh Bishnoi and other worthy members of the party not having countenanced to such a merger- a bizarre and unthinkable result which could never be intended by the anti-defection law as enshrined in the tenth schedule of the Constitution. Hence, as a corollary to above mentioned legal and factual position, it can be propounded that if split could not legally be effected in a political party under the law of split as was adumbrated in repealed para 3 of the tenth schedule of the Constitution without a split in original political party notwithstanding the fact that all members of the legislature party break away from the political party concerned , a fortiori, the merger of a political party into another political party becomes highly untenable just at the instance of members of the legislature party irrespective of their numbers in the absence of any decision of the political party concerned for such a merger.
However, courtesy to the peculiar constitutional scheme of things, and also relying on the hindsight, it can conveniently be prophesized that by the time any litigative churning-up will settle down and adjudication will attain finality, the term of the present legislative assembly will come to an end.
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.
Dr RAJENDER GOYAL, Advocate and
Visiting Faculty in Law
CPJ College of Higher Studies & School of Law, Delhi

Unwarranted glorification of M.Phil in derogation of Ph.D

Kurukshetra University is pleased to invite application, inter alia, for the post of Assistant Professor in Law in the Department of Law vide advt. no. 4/2011. In addition to the requirement of minimum qualification for eligibility, the University has laid down criteria enumerating the various categories for short listing the candidates to be called for interview in case the number of eligible candidates for one post exceeds fifteen. For every additional post, maximum fifteen additional candidates will be invited for interview. It further sets out that in case the number of eligible candidates is more than the above prescribed number of candidates, the screening committee shall short list the candidates, in the descending order, in the light of the prescribed criteria in addition to conditions laid down for the eligibility.
Bare facedly, the said short listing criteria bear out that those candidates who are NET + Ph.D simpliciter do not find any place in any of the categories except the residuary Category-7 that reads as “All the candidates who do not fall in any of the above category if fulfill the eligibility conditions will be called for interview.” Conversely, the candidates who are NET + M.Phil simpliciter enjoy weightage/preferential treatment and are privileged to find place in Category-6 that reads as “NET/SLET with 2nd Class M.Phil” i.e. one notch above the residuary category-7 wherein only the NET + Ph.D simpliciter may find a place as per the prescribed criteria.
The above factual narration clearly shows that said short listing criteria has assigned M.Phil a superior place in derogation of Ph.D. that is highly unnatural, untenable, unreasonable and arbitrary.
It is further brought out that said short listing criteria assigning weightage/preferential treatment to M.Phil. in one manner or other seems to be unwarranted and undesirable as far as discipline of Law is concerned, keeping in view the fact that, no University (whether State or Private or Deemed) or any other Institute in and around Haryana offers M.Phil Course in Law.
Dr. RAJENDER GOYAL

Supreme Court verdict raises a vital issue of bearing of Morality on Law

A Bench comprising Justices Dalveer Bhandari and Deepak Verma of the Hon’ble Supreme Court of India in a verdict on 29th September has rightly ruled that people’s right to own property fell very much with in the domain of human rights. However, it also raises a vital issue of bearing of morality on law. It is no gainsaid to emphasize that law of adverse possession under which any person in illegal possession of a property for 12 years could claim legal ownership of it in preference to real owner, if certain other requisite legal imperatives are satisfied, is immoral per se.
Does law and morality not have any nexus with each other? Can a law be formulated in total oblivion of moral considerations? If a law is bereft of morality, can it be enforced efficaciously? Is Law in force in India has underpinnings of morality in it? A bird’s eye view of various laws in force in India will bear out that it is not entirely devoid of morality viz. Law against immoral trafficking including Prostitution, Child Labour; Exemption of certain movable and immovable property from attachment and sale in execution of a decree; Complete exoneration of criminal acts of a child under seven years of age; Plethora of social welfare Legislations; Special provisions for Women, Children and other Vulnerable sections of the Society; Quota based Reservation Policy as a part of Affirmative Action are worth mentioning in a ocean that abounds with such provision.
However, human rights as appendages of “fundamental right of life and personal liberty” as enshrined in the Indian Constitution are inalienable. Going by that yardstick, once Supreme Court holds that right to property is one of the human rights, shouldn’t the law of adverse possession become ultra vire the Constitution of India and hence, a dead letter.
As a Corollary, doesn’t the law that declare a debt as time barred if no legal proceedings initiated for recovery with in three year from the time when it became due also deserves the protective cover of human rights? Doesn’t every rigor of law of limitation impinge on one or other human right?

National Judicial Oversight Committee

THE TRIBUNE, NEW DELHI, SEPT 09, 2011, P.8
Oversight committee
This refers to the news report “Judicial Accountability: Legal community divided on inclusion of MPs in oversight committee” (September 5). I want to point out that this report has wrongly stated, “Under the provisions of the Bill introduced in Parliament, all the members of the oversight committee would be nominated by the Chief Justice of India”.
On the contrary, Section 18 of the Judicial Standard and Accountability Bill, 2010, says:
(1) The National Judicial Oversight Committee shall consist of the following, namely:
(a) a retired Chief Justice of India appointed by the President, after ascertaining the views of the Chief Justice of India-- Chairperson;
(b) a judge of the Supreme Court nominated by the Chief Justice of
India-- Member;
(c) the Chief Justice of a High Court nominated by the Chief Justice of India-- Member ex-officio;
(d) the Attorney General for India—ex-officio Member;
(e) an eminent person nominated by the President-- Member
Hence, it can be culled out that all the members of the oversight committee are not envisaged to be appointed by the Chief Justice of India. Kindly put the record straight accordingly.
Dr RAJENDER GOYAL, Advocate,
Bahadurgarh

The Report of Parliamentary Standing Committee on Law and Justice and Personnel on the Judicial Standards and Accountability Bill, 2010

The Report of Parliamentary Standing Committee on Law and Justice and Personnel on the Judicial Standards and Accountability Bill, 2010, has rightly clamored for a better system of appointment of judges. The report in most unequivocal terms intones that “the law formulated by the government for maintaining judicial accountability would have “limited success ” till the “most significant lacunae” related to the present method of appointment of judges are removed at the earliest”.
It is trite to say that concept of Independence of Higher is of colossal significance in a Democratic Republic Federal State. The “scheme and procedure of selection and appointment, transfer and removal of Judges in Higher Judiciary” is having an unexceptionally indispensable role in establishing, asserting and perpetuating the Independence of Higher Judiciary. Only competent, meritorious and qualified persons of great legal caliber, expertise, meticulousness, precision, immaculate honesty, impeccable integrity, unimpeachable character, undaunting courage and unwavering determination selected through a transparent, merit-oriented, efficacious and holistic methodology having security of tenure and necessary safeguards in place against unregulated and arbitrary transfer and removal, and discharging their duties and functions without fear or favour, and sufficiently protected against Executive’s interferences and prejudices can bring home the most cherished constitutional ideal of the ”Independence of Higher Judiciary.”
Whereas the Bill of 2010 provides for setting up of a ‘broad based’ “National Judicial Oversight Committee”(NJOC) and an ‘all Judges’ “Scrutiny Committee”, the Parliamentary Standing Committee has recommended that composition of NJOC should be broadened further representing all the three organs of the State namely, Executive, Legislature and Judiciary, and that Scrutiny Panel should also include non-judicial members.
However, needless to emphasize that Judicial accountability, transparency and independence are interwoven. To protect the sacrosanct “Independence of Higher Judiciary”, the final decision making body i.e. NJOC should comprise of ‘all judges’. Conversely, the Scrutiny Committee should be broad based as much as possible. Moreover, the matter of appointment of the judges in higher judiciary could also be entrusted to a wider body with representation from the judiciary, the executive and legislature and civil society than the present ‘Judicial Collegium’. It is suggested that it could be entrusted to the broad based "Scrutiny Committee" as proposed above which could initially screen the names and thereafter, refer the same to the NJOC for final recommendation. 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. The Constitution of India may be amended appropriately, if need arises, to legally put in the place the mechanism as above enumerated.
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.

UNDESIRABILITY OF INCLUSION OF HIGHER JUDICIARY WITHIN LOKPAL's NET

THE TRIBUNE, NEW DELHI, AUGUST 2, 2011, P. 8
Judicial Bill
This refers to the report, “UPA keeps PM, judiciary out of Lokpal purview; Anna cries foul” (July 29), and subsequent editorial, “Countdown to Lokpal: Eradicating corruption will be a tall order” (July 30).
I hold the view that bringing the higher judiciary within the purview of the Lokpal would spell doom for the much-cherished judicial independence. The demand from various quarters, including the civil society group led by Anna Hazare for including the higher judiciary within the purview of the Lokpal, is undesirable.
It would be right to have a mechanism for effective judicial oversight of senior judges by their peers, assisted by a body reflecting the inclusion of the concerns of other stakeholders. Independence of the higher judiciary is sacrosanct. The judiciary commands a special constitutional position in the task of delivering all-encompassing justice to “We, the people”, and in bringing home the numerous other ideals enshrined in the Constitution of India.
The Judicial Standards and Accountability Bill is hanging fire for some time. It should be made into a law without any further delay.
Dr RAJENDER GOYAL, Bahadurgarh

The mounting unfilled vacancies in judiciary also negates constitutional mandate

Echoing concern over the prevailing delay in disposal of Civil litigations, the Hon’ble Apex Court has laid down the procedures to be followed by the trial courts as well to curb frivolous litigation. A Bench of Justices Dalveer Bhandari and Deepak Verma in a judgment rendered on 04-07-2011 in the case of Ramrameshwari Devi, pronounced: "The courts have to ensure that there is no incentive to uncalled-for litigation. It is a matter of common experience that the court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled-for cases."
The scourge of frivolous litigation is a colossal menace for efficient administration of justice. The Hon’ble Supreme Court of India has struck the hammer right on its head. Frivolous litigations take heavy toll on judicial resource and time. Besides, the Constitution of India mandates, inter alia, that the State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity.
Referring to a study, the Apex Court observed: “Ninety per cent of our court time and resources are consumed in attending to uncalled-for litigation, which is created only because our current procedures and practices hold out an incentive to the wrongdoer. Those involved receive less than full justice and there are many more in the country, in fact, a greater number than those involved who suffer injustice because they have little access to justice, in fact, lack of awareness and confidence in the justice system.”
The Judgment further records that "as civil litigation was largely based on documents, it would be the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the peadings and documents filed by the parties. The court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Civil Procedure Code. Imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency on the litigants to introduce false pleadings and forged and fabricated documents. Imposition of heavy costs would also control unnecessary adjournments". "In appropriate cases, the courts may consider ordering prosecution, otherwise it may not be possible to maintain the purity and sanctity of judicial proceedings."
It further says: "Courts have to be extremely careful in granting ad-interim ex-parte injunction. If injunction has been granted on the basis of false pleadings or forged documents, then the concerned court must impose costs, grant realistic or actual mesne profits and/or order prosecution. This must be done to discourage the dishonest and unscrupulous litigants from abusing the judicial system. In substance, we have to remove the incentive or profit for the wrongdoer."
It, in essence, intones that "Litigation should not be permitted to turn into a fruitful industry so that the unscruplous litigants are encouraged to invoke the jurisdiction of the court. No litigant should be allowed to derive benefit from the mere pendency of a case in a court of law and no party can take any benefit of his own wrongs. The institution of litigation can not be permitted to confer any advantage on a party by delayed action of courts. It is the bounden duty and obligation of the court to neutralise any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay can not be permitted to be conferment of additional right upon the litigating party.The persons in wrongful possession should not only be removed from the place of wrongful possession as early as possible but also be compelled to pay for wrongful use by way of fine, penalty and cost".
Giving an example of the problem, the Bench said: “It is a matter of common knowledge that lakhs of flats and houses are kept locked for years, particularly in big cities, because the owners are not certain that even after the expiry of the lease or licence period, the house, flat or the apartment would be vacated. It takes decades for the final determination of the controversy and wrongdoers are never adequately punished. Pragmatic approach of the courts would partly solve the housing problem.”
Some time back, Andhra Pradesh High Court Judge Justice V V Rao said, "If one considers the total pendency of cases in the Indian judicial system, every judge in the country will have an average load of about 2,147 cases. Indian judiciary would take 320 years to clear the backlog of 31.28 million cases pending in various courts including High courts in the country”.
About 55,000 cases are currently pending with the Supreme Court, 42 lakh with High Courts and 2.8 crore with subordinate courts. Pendency has increased by 148% in the Supreme Court, 53% in High Courts and 36% in subordinate courts in the last 10 years.
However, we can choose to lose sight of the fact at our own peril that awesome pendency of cases and consequent denial of justice to the teeming litigants also have close and inextricable nexus with the mounting unfilled vacancies in judiciary. The sanctioned strength of judges is 31 for the Supreme Court, 895 for the High Courts and 17,151 for the subordinate judges. 33% of the sanctioned positions in High Courts are currently vacant. Among High Courts, the highest number of vacancies are in the Allahabad High Court (60%), followed by the Punjab and Haryana High Court (38%) and the Calcutta High Court (28%). Vacancies in subordinate courts equal 18% of the total sanctioned strength. The corresponding figure for the Supreme Court is 6%. What adds to the woes is that the vacancies are not filled timely and adequately notwithstanding the numerous judgments of the Apex Court on this score.

Higher judiciary should be out side of the purview of the Lokpal

Independence of Higher Judiciary is sacrosanct. Each and every institution and individual in India have profound stakes in the independence of higher judiciary. Judiciary commands a special constitutional position in the task of delivering all-encompassing, comprehensive and holistic justice to “We, the People”, and in bringing home the numerous other ideals enshrined in the Constitution of India. It is the only Institution which has paid some respect to the “Constitutional tryst with destiny”. Hence, the judiciary is cornerstone of the magnificent edifice of the Constitution of India.
The demand from various quarters including the Civil Society Group led by Sh. Anna Hazare for including the Higher Judiciary within the purview of Lokpal is undesirable. For a democratic government, the rule of law is a basic requirement, and for the maintenance of the rule of law, there must be an independent and impartial judiciary. It is the first condition to protect and safeguard the inalienable & indefeasible constitutional liberties and other rights of the citizens. In a federal Constitution, it plays another important role: it determines the limits of the power of the Centre and State.
However, it is nobody’s case that Higher Judiciary should be left unchecked. The not so uncommon reports of the impropriety, misconduct and corruption in the Higher Judiciary is highly perturbing and is subliminally undermining the faith and confidence of the People in the Institution of Higher Judiciary. The Judicial Standards and Accountability Bill is hanging fire for some time in its various rechristened variants. The grim situation brooks no delay for the bill to be made into law forthwith. The Bill envisages a broad based “National Judicial Oversight Committee” (NJOC) and an all Judges “Scrutiny Committee”. However, it is urged upon that to preserve the sacrosanct “Independence of Higher Judiciary”, the final decision body i.e. “National Judicial Oversight Committee” (NJOC) should consist of Judges only and conversely to usher in judicial accountability the proposed “Scrutiny Committee” should be broad based.

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)