#India – Judges have to watch their scorecard


V. VENKATESAN

The deplorably small number of judgments by Justice Cyriac Joseph, especially when courts have a huge backlog of cases, is valid enough reason for concern at his suitability for the National Human Rights Commission

The Indian Supreme Court is an extraordinarily powerful institution in the world. It can make and unmake laws; it can keep the executive accountable, and seek to ensure the autonomy of institutions. It can rewrite the Constitution the way it wants, through its creative interpretation yet remain largely unaccountable for its omissions and commissions. Its collegium has the responsibility to choose judges to fill its own vacancies, but it sees little merit in adopting an open and transparent process while exercising it.

As a result, very little is known about the merits of a judge, before he or she is appointed to the Supreme Court, unless there are serious allegations damaging to the judge’s integrity. There is a vast pool of post-retirement jobs that awaits a retiring judge from the Supreme Court, in the form of membership of statutory tribunals and commissions, yet there is no mechanism to evaluate the suitability of former judges to these bodies.

The Government’s proposal to nominate the former judge of the Supreme Court, Justice Cyriac Joseph, to the National Human Rights Commission (NHRC), has brought into focus the issue of performance-evaluation of a judge.

While the members representing the Government on the NHRC selection committee appear to have favoured his nomination, the two members belonging to the Opposition, Ms Sushma Swaraj and Mr. Arun Jaitley, have submitted dissenting notes pointing to an adverse report of an intelligence agency about the unsuitability of the proposed nominee on the basis of his tenure at the Supreme Court.

Facts

The facts regarding Justice Joseph can be gathered from the Supreme Court’s website.

He authored exactly seven judgments during his tenure, from July 7, 2008 to January 27, 2012. However, he was a signatory to as many as 309 judgments, and 135 orders, all authored by his colleagues on the Bench. The website lists the judgments and the orders authored and/or signed by a judge together, and it requires considerable effort to identify those which were authored and not merely signed by a judge, as the author’s name is affixed on the top of a judgment.

Thus, Justice Joseph authored concurring judgments in two cases, namely, Action Committee, Unaided Private Schools & Ors v. Director of Education & Ors (August 7, 2009), and Haryana State Warehousing Corporation v. Jagat Ram (February 23, 2011). His judgment in the Action Committee, Unaided Private Schools seems to have been necessitated because of the compulsion to resolve the disagreement between the other two judges on the Bench, Justices S.B. Sinha and S.H. Kapadia. Justice Joseph opted to agree with Justice Kapadia in order to help arrive at the ratio of the judgment.

The website also shows that Justice Joseph wrote judgments in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi (December 16, 2010), State of Haryana & Ors v. M/s Malik Traders (August 17, 2011), Deepa Thomas & Others v. Medical Council of India & Others (January 25, 2012), Mohd.Asif v. State of Maharashtra (January 27, 2012), and A.V. Padma v. R.Venugopal (January 27, 2012).

Evaluation

Critics of the Government’s efforts to nominate Justice Joseph to the NHRC have pointed to the number of judgments authored and delivered by him as the factor weighing against him.

While they have a case against him, it has to be admitted that the number of judgments written by a judge alone cannot be a determining factor about his or her competence. As the Supreme Court mostly sits in benches of two or three judges, the senior-most on a bench decides once the hearing is complete, who among them will write the judgment, depending on the interest of the judge. The judge writing the judgment, then circulates the draft for the perusal of the other judge/s, who are then free to agree, or write concurring judgments, or dissents. Superfluous, concurring judgments can make the process of arriving at the ratio of a judgment challenging, and leave the litigants confused. But that cannot be an excuse for a judge to avoid judgment-writing altogether.

Scholars of the Supreme Court have never attempted to evaluate the performance of each judge, on the basis of the number of judgments and orders authored by him or her. It is probably because such a study is likely to lead to comparison, and the drawing of inferences regarding the competence of a judge, which may invite the charge of contempt of court.

George H. Gadbois Jr., who made a seminal contribution compiling the biography of the judges in his recent book, Judges of the Supreme Court of India, 1950-1989, is also silent on this aspect. He perhaps thought that compiling such data could only aim at evaluating the importance or contributions of a judge, which he has consciously avoided.

What data shows

When Justice Joseph joined the Supreme Court in 2008, the strength of the Court rose from 26 to 31, following a Constitutional amendment. Based on the number of judges, the average number of judgments and orders written by each judge could be easily arrived at, given the total number of judgments and orders in a calendar year.

Thus between 2008 and 2012, the average number of judgments and orders per judge varied from 88 (2008) to 27 (2012). The average was just nine in 1955, 14 in 1959, 25 in 1969, 17 in 1977, 15 in 1987 and 71 in 1996. During this period, the strength of the Supreme Court kept on increasing from: eight to 11 (1956), 14 (1960), 18 (1978), and 26 (1986).

Based on this data, it would be hazardous to infer the competence of a judge/judges in a particular year or era. As Gadbois would put it, some of those judges were giants who will be remembered a century from now. Others, to quote Gadbois again, are blips on the radar screen, sidebars to the history of the Supreme Court, likely to be recalled only by the closest of court watchers. In the history of the Supreme Court, some judges are celebrated merely because of their salient contributions to the interpretation of the law and the Constitution, and not because they wrote more judgments than their colleagues.

Yet, the number of judgments written by a judge cannot be dismissed as being irrelevant, especially in the context of the Court’s efforts to limit its own backlog of cases. If the number of judgments authored by a judge is deplorably and consistently below average, then it is an important factor in the evaluation of a judge. The concerns that such a judge may prove to be unequal to the demands of an institution like the NHRC are valid.

A test for government

The Supreme Court, in its March 3, 2011 judgment, set aside the appointment of Mr. P.J. Thomas as Central Vigilance Commissioner, even though the majority in the selection committee had recommended him. The Court quashed his appointment by emphasising the concept of institutional integrity. The key test for institutional integrity, it said, is to ask whether the incumbent would or would not be able to function and whether the working of the institution would suffer following the appointment. This test is as relevant in the appointment of Justice Joseph, as it was in the case of Mr. Thomas.

The Supreme Court held in the same judgment that if the selection committee decides to overrule any dissent while recommending a person for the appointment, it should record clear and cogent reasons for doing so.

In April, the Government appointed Mr. S.C. Sinha, Director of the National Investigation Agency to the NHRC, overruling dissent within the selection committee, pointing out that he did not have the knowledge, or practical experience in matters relating to human rights, as required under the Human Rights Act.

The reasons why the majority in the selection committee overruled the dissent have not been made public, and it is not known whether the Supreme Court’s directive has been complied with.

The appointment of Justice Joseph will constitute another test of legitimacy for the Government.

venkatesan.v@thehindu.co.in

 

CBI encounters ‘ Narendra Modi hand’ in triple-murder


, TNN | May 19

 MODI1
AHMEDABAD: After the chargesheeting of Gulab Chand Kataria, the former home minister of Rajasthan and the present leader of opposition in the Rajasthan assembly , BJP leader Arun Jaitley lost no time in announcing that the real target of the CBI was the Gujarat chief minister Narendra Modi. He quoted a CBI officer’s noting in the documents before the court in the Sohrabuddin-Kauserbi-Tulsiram killings as saying, “I especially underline the importance of Annexure-C for its potential in respect to the chief minister also.”
Case documents available with TOI quotes the CBI as saying, “Amit Shah was instrumental in the acts of commission and omission by the officers in the investigation of this case. Although the files for these administrative decisions in respect of these officers were definitely put up to the chief minister also for final orders as per the rules of business in respect of All India Service officers, the primary responsibility for suggesting at the ministerial level the course of action was of Amit Shah.”

In the said annexure, the investigating officer had pointed out to the fact that the government in the middle of December 2006, a few days before Tulsiram Prajapati was murdered at Ambaji near the Gujarat-Rajasthan border, transferred D G Vanzara from ATS Ahmedabad to the post of DIG, Border Range, from where he had carried out the entire operation of the kidnapping and fake encounter of Prajapati . This decision to transfer Vanzara could not have been taken by Amit Shah as per the rules of the business and it was only the chief minister who could have finally passed the order. Other instance of decisions which only Modi could have taken have been enumerated by the CBI.

Modi rewards

CBI says these are 3 rewards only Modi could have given.

P C Pande

The then DGP P C Pande was rewarded with a post-retirement berth as the chairman of Gujarat State Police Housing Corporation which enables him to retain his official bungalow and allied perks.

O P Mathur

The then ADGP O P Mathur was given the promotion to the rank of DGP, though a departmental enquiry having serious charges of moral turpitude was pending against him. The chargesheet in the above enquiry was dropped in September 2008 and he was promoted thereafter. And even after his retirement he was appointed as the director general of Raksha Shakti University.

Geetha Johri

A departmental enquiry was dropped against Anil Johri, IFS, husband of Geetha Johri, which included serious charges of corruption. This enquiry was later diluted in October 2008. A residential plot which was initially allotted to Geetha Johri and Anil Johri at a concessional rate by the government was later changed to some other plot of Geetha Johri’s choice without charging the premium. Geetha Johri’s name was recommended by the home department for the award of President’s Police Medal for distinguished services in the year 2009, even though reportedly she did not figure in the panel initially proposed by the DGP.

 

Freedom of speech in India is for the rich and the powerful #censorship


FEBRUARY 14, 2013
by , kafila.org

While freedom of speech and expression in India is under attack from all sides, have you noticed how the rich and the powerful can say what they like without getting arrested, facing FIRs and courts, hiring lawyers and so on?

While an innocuous tweet or Facebook status update can land you in police lock-up on a Saturday night or Sunday morning 5 am, a Digvijaya Singh can say sexist crap against Rakhi Sawant and get away with it.

Here’s another example from Twitter recently. Lalit Modi of IPL infamy, who wants us to believe his coming to India and facing the law is a security threat to him, tweeted that the BJP’s  Arun Jaitley would lose his deposit if he contested the Lok Sabha seat from Jaipur. (Lalit Modi thinks he’s the Maharaja of Rajasthan.) In response to that, one Ankush Jain replied…

lalit-modi-arun-jaitley-barkha-dutt-radia-tapes

You can see there, Barkha Dutt’s threat to sue three people,one of whom said nothing, was merely tagged there. Ankush Jain was so terrified he deleted not just his Tweet but even his twitter account! I don’t blame him. He’s probably a student or a government employee or runs a shop somewhere… he wouldn’t want to face legal notices and police stations and court-rooms. Lalit K Modi on the other hand has no such problem. He counter-threatened Barkha Dutt with legal notices. Jain’s offending tweet still exists in the form of a manual RT by Lalit Modi, as you can see in the screenshot above.

You can see here a good summary of what happened on Twitter over this.

Some people then pointed out on Twitter that a similar allegation was made by Vinod Mehta in his book Lucknow Boy but Dutt never sued Mehta. Here is a screenshot from the Google Books version of Mehta’s book:

Lucknow Boy A Memoir - Vinod Mehta - Google Books - Mozilla Firefox_2013-02-13_23-40-57

So while an Ankush Jain is bullied into deleting his Twitter account, a Vinod Mehta can sit pretty.

The Indian Constitution promises freedom of speech and equality. Both promises are just that. The Internet’s democratisation of public discourse hurts the rich and the powerful and they are striking back. The rest of us feel helpless.

Lawrence Liang’s two posts from Kafila archives are worthy of recall:

This sentiment reminds me of Anatole France’s famous statement that the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. The quick equation of an individual blogger with the might of a newspaper or a magazine is a little troubling. Individuals do not have the same kind of power, money or reach to be able to defend themselves in the way that newspapers may be capable of. [Bloggers and Defamation]

And:

So why is the punishment redundant? Because it doesn’t really matter. The mere fact that the provision exists and the fact that it allows for the possibility for someone to file a police complaint or threaten police action serves the purpose of intimidating speakers, reader, organizers regardless of the fact that in most cases if it were to go to trial, it would be highly unlikely that the offending act would be found to be in violation of the provisions. The courts have laid down reasonably high standards for interpreting what would amount to a violation of these laws, and have even acknowledged their misuse. [The process is the bloody punishment]

Where the mind is without fear, where the head is held high…

 

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