Spreading the light of humanity & freedom
By Indira Jaising
A midst the rising din of the demand for death penalty for rapists comes the news that three judges of the Karnataka High Court have been involved in what has come to be described as a 'sex scandal' on the outskirts of Mysore at a place called Roost Resorts.
Our attention is now directed to those who dispense justice rather than those who knock at the doors of justice. In both cases, we are talking about the use and abuse of women — those who are victims of sexual abuse, and those who are used as sexual objects, willingly or unwillingly.
After the reports in local newspapers that three high court judges were found with women at a resort, there was the usual crop of denials. Although the Mysore police were called in to settle a brawl, on being told that the persons in question were judges they said that they heard no evil and saw no evil.
And everyone thought the matter ended there.
Attempts to get the names of the judges or of the women in question drew a blank. The bar association also drew a blank as most people said, "Don't quote me… but…"
On November 30, the Bangalore edition of The Times of India published a front-page story giving the names and photographs of the three judges and confirming that the Intelligence Bureau had done an investigation and come to the conclusion that the incident had indeed occurred. There were still no details of the incident, though it was stated that the report has been given to the chief justice of India.
There were reports on the same day that the Karnataka High Court chief justice had sought the transfer of the three judges to Patna, Jammu and Kashmir and Guwahati. Apparently, the chief justice has agreed to this request and the transfer orders have been issued.
Then came the news that the chief justice of India has set up a committee of inquiry under the 'in-house' procedure consisting of the chief justice of the Andhra Pradesh High Court, the chief justice of the Madras High Court and the chief justice of the Patna High Court.
There were still no details in the press about the actual incident and the entire episode continued to be referred to as a 'sex scandal'.
What is interesting about these reports is not what they reveal, but what they conceal. It is a conspiracy of silence. If the information is now available to the chief justice of India, why is it not being made public? Do we, the public, not have the right to information? Ironically, the morning newspapers brought the news that the Freedom of Information Act has been passed. What are the legitimate limits of the right to freedom of information and the requirement of keeping information a secret? This episode would make an interesting case study.
What exactly is at stake here? There is much that should concern the nation about the incident. This is not a case about the private morality of the judges, be that as it may, but about the abuse of office that they hold. What has not been made known is that the three women in question are women lawyers practising in their courts.
What is at stake here is the pollution of the stream of justice at its very source. There must be countless cases in which these women appeared before these very judges day in and day out of their routine practice. Can one honestly say that in such a situation justice is being done "without fear or favour"? Judges swear on oath of allegiance to "bear true faith" to the Constitution and do justice "without fear or favour". How well have these judges honoured this oath?
What is at stake here is the cynical use of women as sexual commodities. The usual justifications have already begun making the rounds. If the women have not complained, what objection can anyone else have, it is asked. What is lost sight of is the fact that the judges are in a position of dominance vis-à-vis the women, in a position to do favours that pertain to their office.
What is at stake here is the cynical use of public office, the seat of justice, for personal petty gain. It is irrelevant whether the women consented or not. The usual blame game will now begin — blaming the victim rather than the perpetrator; the usual loose talk about the character of the woman in question; the usual attempt to cover up by diverting attention from the actual incident to the motives of those who brought the incident to light.
What is at stake here is the perception of women as sexual commodities by those who are responsible for sitting in judgment over cases brought for and on behalf of women.
The issues at stake here concern one half of Indians. With what faith can Indian women approach the courts demanding the right to equality, the right to be free from sexual harassment or rape and the right to live with dignity, if the persecution of judges who sit in judgment over them is non-negotiable?
In the circumstances, the suggested solution is worse than the offence — to transfer them to Patna, Guwahati and Jammu and Kashmir. Why these particular cities? Are they not an integral part of the country, or are they mere islands within the country that are considered 'punishment postings' where people are sent a la 'crossing Kala Pani' of the old days? To the credit of the Guwahati Bar Association, it protested against the proposed transfer.
The only decent thing to do is for the chief justice of India to disclose full details of the incident so that rumour-mongering comes to an end. This would be in the best interest of the judiciary itself.
As things stand, the rumours are making the rounds that there were more than three judges involved, that the women were professional call girls, many of which are baseless. We, the people, have the right to know. The conspiracy of silence must be broken.
The judges in question must neither be assigned any judicial functions pending an inquiry nor be transferred to sit in judgment over others. Two of the judges are stated to be additional judges. They must not be confirmed. If there is prima facie evidence against the one remaining judge, the chief justice must recommend his impeachment.
It is time for all concerned bar associations, bar councils and other male-dominated bodies of legal professionals to act and ensure that there is no cover-up. There is little point in showing sympathy to women in judgments and in seminar rooms, or in recommending the death penalty for rape if we cannot deal with the men who dispense justice.
There are contempt of court petitions pending in the Karnataka High Court against some of the publications for disclosing details of the incident. Civil society and women's organisations must demand that justice is now done when it comes to the judges themselves.
The law of contempt can offer no solution to the crisis of credibility in the judiciary that this incident has thrown up. One positive aspect of the incident is that it is only after the chief justice of the high court issued a public notice inviting information that he received 20 representations, which led to the discovery of the truth.
Let the truth now be made public.
- Mahatma Gandhi
Are bribes for bail endemic now?
Read more at: http://indiatoday.intoday.in/story/corruption-in-judiciary--sc-wants-corrupt-judges-thrown-out/1/137730.html
Read more at: http://indiatoday.intoday.in/story/corruption-in-judiciary--sc-wants-corrupt-judges-thrown-out/1/137730.html
There are enough indications that corruption in the higher judiciary has reached unacceptable levels. For instance, in March this year, Justice Shamit Mukherjee of the Delhi High Court had to tender his resignation, following which he was arrested by the Central Bureau of Investigation under sections of the Anti-corruption Act, 1988 and sections of the Criminal Procedure Code for criminal conspiracy. Rampant corruption, which has steadily undermined the credibility of and popular faith in the judicial mechanism, was clearly to be expected in a situation where the higher judiciary enjoys enormous powers without accountability.
Power sans accountability inevitably breeds corruption and abuse. Consider the situation. Once appointed, a judge of a high court (the highest judicial mechanism in the states) or the Supreme Court, cannot be touched except by a complicated procedure of impeachment. As per the constitutional provisions, a judge of a high court or the Supreme Court can only be removed by impeachment after 100 members of the Lok Sabha (the lower house) or 50 members of the Rajya Sabha (the upper house) move the speaker, who may refer the charges to a committee of judges whose verdict is put up before both the houses of Parliament. The judge can only be removed if a two third-majority of members present and voting approve the verdict of the committee.
Today impeachment remains the only option since the judicial system has insulated itself from criminal investigation through a Supreme Court ruling. This happened in 1991 in a case arising from the discovery of huge quantities of money in the residence of Justice K Veeraswamy, then Chief Justice of the Madras High Court. When the Central Bureau of Investigation prosecuted for corruption, the Supreme Court ruled that no First Information Report can be registered against a judge, nor a criminal investigation be initated, without prior consent of the Chief Justice of the Supreme Court. This effectively excluded the higher judiciary from the ordinary laws of the land, since there is no possible circumstance under which an investigating agency can approach the Chief Justice for consent to investigate a judge without any concrete evidence against him. This is the reason why no judge has ever been subjected to a criminal investigation after the Veeraswami judgment. In the meanwhile, armed with this legal immunity judicial corruption has continued to flourish.
This immunity is doubly reinforced by the fact that the procedure for impeachment of judges is not only cumbersome, it is also eminently susceptible to political interference. The existing system of impeachment was found to be practically unworkable in the V Ramaswamy case, where the judge survived in office despite being found guilty on several serious charges of corruption by a statutory committee of three fellow judges. This was because members of the Congress, then in power during the prime ministership of PV Narasimha Rao, abstained from voting due to a whip issued by the party leadership when the impeachment motion was put to vote in Parliament in May 1993. In that particular case, however, it was at least possible to initiate the process, because the charges against the judge dealt with irregularities in purchases made in his official capacity. These purchases were audited by the Accountant General and it was in that process that the evidence of corruption came out. As a result, it was possible to frame charges for his impeachment and have the relevant procedural motions signed by 100 members of Parliament. In normal cases of judicial corruption however, it is difficult to produce evidence of the judge’s corruption in the absence of official investigation. Thus, it is not possible to even initiate the process of impeachment, let alone carry one through to the bitter end.
Apart from enjoying immunity from removal and investigation, the higher judiciary further enjoys virtually unlimited powers of punishing people for contempt of court. Any person making any allegation of corruption against a sitting judge can be charged and punished for contempt, even if he is in a position to substantiate the charge. The contempt proceedings are so biased in favour of the judicial system that the very judge against whom the allegation of corruption has been made can prosecute the charge for contempt. The judge can even sit in judgment on his or her own cause, and can actually refuse to permit the alleged contemnor to lead evidence to prove the charge. This is such a vast and unchecked power that it can easily be and has been misused by the judiciary.
The excessive power that the judiciary wields in respect of contempt is in reality a way of shielding itself from legitimate criticism even when such criticism does not otherwise prejudice or obstruct the administration of justice. The existence of this arbitrary power is undoubtedly one of the main reasons why public exposure of judicial corruption has been few and far between and even routine criticism of the judiciary is muted.
Beyond the matter of public scrutiny, the Indian judiciary has been steadily increasing its other powers over the years, adding vast and arbitrary authority ostensibly for enforcing the fundamental rights of citizens. However, these powers are usually exercised in the interests of the ruling establishment. More and more instances are being witnessed where, by judicial fiat, the constitutional mandate is flouted and even the fundamental rights of liberty, equality and right to work are rendered nugatory when ordinary citizens are pitted against the state and powerful sections of society. This is how, for instance, in the interest of cleaning up Delhi’s air by reducing the levels of pollution, the Supreme Court ordered the closure and relocation of several small industries in the city, leading to the loss of livelihood for several thousand workers.
As it is, the state has a long record of enacting anti-democratic and draconian laws. Not only have the courts usually put their seal of approval on these laws, but they have sanctified action taken under them, such as the dismissal of employees en-masse from industrial jobs. The judiciary has also recently been playing a leading role in upholding the sellout of public enterprises by disinvestments carried out under the cover of globalisation. Lately, it has played a retrograde role in curbing the rights of workers to protest and go on strike, endorsing several antidemocratic measures to restrict their rights. Meanwhile, the proliferation of public interest litigations has encouraged unrestrained judicial activism. Though judicial activism through public interest litigations can be a healthy check on an executive which has failed and become corrupt, it can become a menace in the hands of a corrupt and unaccountable judiciary.
The problems with the higher judiciary, however, begin with the process of appointment itself. Quite apart from the fact that the method of selection of judges itself is defective, the entire process is kept under a cloak of secrecy. Thus, before an appointment is actually made, the general public does not have any idea about who are being considered for the post. Many persons whose integrity was known to be suspect and those who had been found guilty of professional misconduct during their legal career have come to be appointed to high office through this secretive system. The selection process has undergone some change over the years, but it has not reduced the spate of undesirable and positively harmful appointments. While earlier the selection was made by the government itself (after consultations with the Chief Justice), now, by a process of judicial interpretation, the power has been transferred to a collegium of three to five judges of the Supreme Court. This has managed to reduce the government’s monopoly over appointments, but the system has not change significantly. The patronage system has simply become more fraternal, since senior judges of the Supreme Court now wield the power of appointment of their junior colleagues. The proof is in the results, and there has not been a noticeable difference in the quality of appointments.
In an attempt to tackle the problem relating to appointments and accountability of judges, the Committee on Judicial Accountability (COJA), consisting of members of the legal profession, almost a decade ago forwarded a detailed proposal for a high-powered, full-time and independent National Judicial Commission (NJC). This commission would make appointments as also have disciplinary powers over judges of the higher judiciary. The commission would also be responsible for appointments to various commissions and quasi-judicial bodies. The NJC would comprise a nominee each of the Supreme Court, the chief justices of the high courts, the central cabinet, the opposition in Parliament, and the bar. It would also have an investigative machinery of its own to inquire into complaints against members of the judiciary. Members of the NJC would have the same status as that of Supreme Court judges and a guaranteed tenure of five years, after which they would be ineligible for any other similar post.
This proposal would have brought transparency into the system of appointment of judges. But even though nearly every political party included the proposal in its election manifesto, the National Judicial Commission is yet to become reality. The reasons are not far to seek. But now, after the spate of highly publicised judicial scandals, particularly the Shamit Mukherjee case, the government has come up with a proposal to constitute a somewhat truncated NJC. This commission is to be a part-time body of three senior sitting judges of the Supreme Court, the law minister and a nominee of the prime minister. This NJC will not have the power of removal of judges and the present impracticable system of impeachment will continue. The government’s proposal will merely institutionalise the system of sharing the spoils of appointment between the government and the senior members of the judiciary.
Since under the circumstances the judiciary cannot be expected to reform itself, and since the main political parties have reneged on their electoral commitment as expressed in their manifestos, only a strong public campaign can provide the impetus to put in place an independent and responsible body for the appointment and removal of judges. Popular pressure is the only force that can get the 1991 Veerasamy judgment overruled, whether legislatively or judicially, to ensure that judges can be investigated like any other class of citizens. Civic mobilisation is necessary to force change in the contempt law so as to ensure that citizens cannot be prosecuted for making allegations against judges, unless they have done so recklessly or in bad faith. The law must be changed so that judges cannot sit in judgement of their own contempt cases. If the judicial mechanism has to be rescued from its own infirmities, citizens and civil society in India must put together a strong movement to force accountability in the judiciary.
He claimed Delhi Police was stopped by Shinde from questioning a Mumbai-based businessman, who is said to have "some kind of links" with Dawood Ibrahim, in connection with the betting in Indian Premier League, a T-20 cricketing tournament.
Singh, now a BJP member, also said that there was no assurance given by the US on Dawood Ibrahim. He said that a meeting of the US and Home Ministry officials took place but there was no assurance by the US.
Earlier, Shinde had said that joint efforts with the US were being made to nab India's most wanted terrorist Dawood Ibrahim.
"As per our information, Dawood is in Pakistan. When I went to America last year to discuss inland security, I met the Attorney General who looks after the FBI. I talked to him and we decided that we will pass whatever information we have on Dawood amongst each other. We decided we will make joint efforts," Shinde said when asked about the whereabouts of Dawood who is wanted in a number of cases by Indian agencies including the 1993 Mumbai blasts.
Singh also alleged that Shinde had regularly interfered in Delhi Police's functioning.
In his interview to TV channels, Singh used the shoulder of former Delhi Police Commissioner Neeraj Kumar to fire at Shinde claiming that "slips used to reach Delhi Police chief quite often asking about posting some people as Station House Officers".
"These were not a few postings but in large number of police stations," he told the channels.
"I don't know whether money used to exchange hands but Delhi Police Commissioner told me that numerous slips used to come from his residence... you don't make large number of recommendations... the postings as SHO's has a vigilance angle to it," he said.
Singh had earlier claimed there were quarrels between him and Shinde.
When Shinde was asked to respond to reported remarks by Singh in an interview, he said, "One needs to run administration very well and if anybody fails to do his duty, I am bound to take action against him in the capacity as Home Minister."
Singh, during his media interview, had claimed that he had many quarrels with Shinde over various issues and also alleged that Congress-led UPA government was "clueless" about governance and that its ministers were steeped in corruption.
In what was seen as a snub to Singh, Anil Goswami was also named as his successor weeks before the end of the incumbent's superannuation.
Singh was also criticised for not making any attempt to inform the family of Afzal Guru, the death row convict in Parliament attack case, who was hanged on February nine last year.
Read more at: http://indiatoday.intoday.in/story/shinde-protected-businessman-close-to-dawood-alleges-former-home-secretary-rk-singh/1/336015.html