Gopal row reignites debate on how India chooses judges

By HARISH V. NAIR MOI 13 August 2014

The Gopal Subramanium fiasco has once again raised questions over the collegium system that currently governs the appointment of judges in India.

Nominated by the Supreme Court collegium, which comprises the Chief Justice of India and four of the court's senior-most judges, for appointment as a judge in the apex court, Subramanium was rejected by the Centre on the grounds of a CBI investigation allegedly linking him to the 2G scam.

Terming the Centre's decision mala fide, the former Solicitor General on Wednesday withdrew himself from the exercise, thus kicking off an unprecedented spat between a judicial nominee and the Centre.

Legal experts are unanimous in their opinion that any selection system that excludes the executive completely from the process of judicial appointment runs counter to the basic democratic principle of institutional checks and balances, stressing that the exercise is far too crucial to be left entirely either to the whims of members of the judiciary or the government.

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Rejected: Former Solicitor General Gopal Subramanium was rejected for a senior judge position by the Centre on the grounds of a CBI investigation allegedly linking him to the 2G scam

"Meaningful consultation between the judiciary and the executive is the key. Appointment of judges should be a collective process (conducted) in harmony between the executive and the judiciary… this is what the memorandum of procedure says," said former Chief Justice of India M.N. Venkatachaliah.

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"These rules were violated in Subramanium's case, wherein a segregation of names was done by the executive without any authority," he added. 

"The collegium system has collapsed. 

"It has not been foolproof as undesirable elements still made their way in," retired Delhi High Court judge R.S. Sodhi said.

"In Subramanium's case, both he and the government are guilty of misdemeanour. 

"While the government should not have gone public with confidential matters maligning his image, Subramanium should not have overreacted and waited for the collegium's stand," he added.

The proposed Judicial Appointments Commission (JAC), which will forward to the President names of judicial nominees after a meaningful consultation between the judiciary and the executive, has been envisaged as an alternative to the collegiums system, but remains nothing more than a proposal in Parliament.

Law Minister Ravi Shankar Prasad has already said that establishing the JAC is one of his chief priorities. 

It was during the previous NDA regime that the first attempt was made to bring in an alternative to the collegium system. The then Law Minister Arun Jaitley introduced a Bill in the Lok Sabha to this end, but it could not be taken to its logical conclusion owing to the dissolution of the House.

The UPA government's attempt to get parliamentary nod for the legislation pertaining to the Judicial Appointments Commission didn't succeed either, and the Bill remains pending in the Rajya Sabha. 

Uday U. Lalit could be selected for a SC judge position

Kalmadi lawyer could be SC jusge 

The Supreme Court collegium is likely to recommend senior lawyer Uday U. Lalit for appointment as a judge of the apex court in the wake of former Solicitor General Gopal Subramanium's withdrawal from the race. 

Lalit has represented the CBI in many high-profile cases and is the special public prosecutor in the 2G scam case. 

He represents former Congress MP Suresh Kalmadi in the CWG scam trial. 

Lalit could not be contacted despite repeated attempts. 

Quoting two independent sources, website Legallyindia.com said: "Lalit will meet the CJI on June 29 to inform him about his consent. 

"A formal announcement is expected on June 30".

Gwalior additional judge says she was sexually harassed by HC judge, quits

Dhananjay Mahapatra,TNN | Aug 4, 2014, 12.42 AM IST

In her complaint to CJI R M Lodha, the judge said the administrative judge sent her a message through the district registrar to "perform dance on an item song" at a function.

NEW DELHI: An additional district and sessions judge in Gwalior, who was heading the Vishaka committee against sexual harassment, could not save herself from the prying eyes of a Madhya Pradesh high court judge and had to resign from judicial service to protect her "dignity, womanhood and self-esteem".

After practicing law for 15 years in Delhi courts, she passed the MP Higher Judicial Service exam and was posted in Gwalior on August 1, 2011. After training under Justice D K Paliwal, she was posted as additional district and sessions judge in Gwalior in October 2012.

In April 2013, she was appointed chairperson of District Vishaka Committee. Her annual confidential report of January 2014 termed her work "excellent and outstanding". But that was not enough. The administrative judge from Gwalior bench of Madhya Pradesh HC kept pestering her to visit him in his bungalow alone, she alleged.

In her complaint to Chief Justice of India R M Lodha and Supreme Court judges Justices H L Dattu, T S Thakur, Anil R Dave, Dipak Misra and Arun Misra, as well as the MP HC chief justice, she said the administrative judge sent her a message through the district registrar to "perform dance on an item song" at a function in his residence. She avoided the function on the pretext of her daughter's birthday.

Responding to her complaint, Justice Lodha said, "This is the only profession where we refer to our colleagues as brothers and sisters. This is unfortunate. I will take appropriate action after the complaint is placed before me."






The very next day of sending a message to dance in his residence, the administrative judge told her that "he missed the opportunity of viewing a sexy and beautiful figure dancing on the floor and that he is desperate to see the same", she alleged.

The judge got angry when she did not pay heed to his "various advances and malicious aspirations". She was subjected to intense scrutiny by the administrative judge. He got more agitated when no fault was found, she said.

"I started commencing court at 10.30 am instead of 11 am and extended the working hours in the evening by one hour to 6 pm," she said but complained that this did not appease the administrative judge, who continued to harass her.

Tired of harassment, she along with her husband on June 22 went to meet the administrative judge, who was "irritated" to find her with her husband and asked her to meet him after 15 days. But even before 15 days could have elapsed, she was served with a transfer order.

In her complaint, she said, "The administrative judge, along with district judge and district judge (inspection), possibly made a false, frivolous, baseless and malicious reporting to the chief justice of MP and got me transferred on July 8, in the mid-academic session of my daughters to a remote place Sidhi by overruling the transfer policy of MP HC."





Her representation for eight-month extension to allow her daughters complete the academic session was rejected. Left with no choice, she called on the administrative judge and pleaded against the abrupt transfer saying it would affect the studies of her child who was in Class 12.

In her complaint, she said, "Mockingly, he replied that I faced this mid-academic session transfer to Sidhi for not fulfilling his aspirations and for not visiting his bungalow alone even once and he also threatened me that now he will spoil my career completely and make sure that I face ruinous prospects all my life."

She claimed the HC chief justice declined to meet her when she wanted to apprise him of the situation. "I was left with no option but to resign, so, I resigned on July 15 in compelling, humiliating and disgraceful circumstances to save my dignity, womanhood, self-esteem and career of my daughter."

Seeking justice from the CJI, she said, "Only because the perpetrator is as powerful as an 'administrative judge' that he can cast an evil eye on me, and I do not even get a hearing. What system are we following and leading this democracy to? If this is how a mother, sister and wife can be treated, who is herself no less than a judicial officer duty-bound to protect society and law, what constitutional goals are we serving?"

Why apologise now, Madras HC asks cops who arrested judge

TNN | Aug 2, 2014, 06.45 AM IST

CHENNAI: The contempt of court proceedings against three senior police officers, including a woman superintendent of police, for their role in the controversial arrest of a magistrate last year on rape charges took a serious turn on Friday with the Madras high court questioning the "unconditional apology" tendered by the officers. 

The court has already listed three issues to be decided in the case against the three officers - SP R Ponni and DSPs Suresh Kumar and C Pitchai - and posted the matter for trial. When the matter was taken up on Friday, their senior counsel offered unconditional apology to the court. 

Questioning the genuineness of the apology, a division bench of Jusice N Paul Vasanthakumar and Justice M Sathyanarayanan pointed out that the officers had justified the June 29, 2013 arrest of S Thangaraj, who was a judicial magistrate in the Nilgiris district at that time. The judges said Ponni had said in her affidavit that the arrest had to be made because charges were grave and the woman sub-inspector who lodged the rape complaint herself faced threat to life. 

The judges said the three officers were free to adopt any form of defence during trial. But, now that they had specifically denied any wrongdoing and pleaded not guilty, they could not tender "unconditional apology" as it was self-contradictory. They then asked the senior counsel to furnish a list of witnesses to be examined during trial. 

Senior advocate Parthasarathy, who has been named amicus curiae in the case, said the SP must take responsibility for the whole episode. He was asked by the court to file necessary requests for summoning the judicial officers required to be examined in the case. 

The judges, making it clear that they would not venture into the facts of the case, said the proceedings would decide whether the police officers wilfully violated the mandatory Supreme Court judgments governing the issue. "It will be on procedural lapses," the bench said, adding that no one would be permitted to rake up facts connected to the alleged rape charges and the arrest of the magistrate. 

They then adjourned the matter to August 7 for further proceedings. 

Justice Sanjay Kishan Kaul was on Saturday sworn-in as the Chief Justice of the Madras High Court.

Madras highcourt advocates association July 26 ,2014, 4mts back

Justice Sanjay Kishan Kaul was on Saturday sworn-in as the Chief Justice of the Madras High Court. Earlier, he was the Chief Justice of the Punjab and Haryana High Court.

The Governor, K. Rosaiah, administered the oath of office at a brief ceremony at the Durbar Hall of the Raj Bhavan.

Tamil Nadu Chief Minister Jayalalithaa, her cabinet colleagues, Judges of the High Court, Advocate-General, A.L. Somayaji, Additional Advocates-General, and members of the Bar, were among those who attended the swearing-in.

Earlier, the Chief Secretary, Mohan Verghese Chunkath, read out the Presidential Notification on the appointment of the Chief Justice.

Mr. Justice Kaul (55) will be the 27 Chief Justice of the Madras High Court since Independence. At present, Justice Satish K. Agnihotri is the Acting Chief Justice of the High Court. Justice R.K. Agrawal was the last regular Chief Justice, who was later elevated to the Supreme Court.

The new Chief Justice was born on December 26, 1958. After schooling in Modern School, New Delhi, he graduated in Economics (Hons.) from St. Stephen’s College. He obtained LL.B from the Campus Law Centre, Delhi University in 1982. He enrolled himself as an advocate in July 1982 and practised in the Delhi High Court. He was designated a Senior Advocate in December 1999. He was appointed as an Additional Judge of the Delhi High Court in May 2001 and made permanent in May 2003. He was elevated as the Acting Chief Justice in September 2012. He became Chief Justice of the Punjab and Haryana High Court on June 1 last year.

No Advocate Clean enough to be Judge ?

TNN 24 July 2014

Tell-all note: Manmohan's role exposed

Times Now 22 July 14

After former SC judge Markandey Katju alleged that three ex-Chief Justices of India had allowed a judge under corruption cloud to continue in office, TIMES NOW unearths sensational secret PMO note on the controversial appointment. TIMES NOW accesses former Prime Minister Manmohan Singh's secret note to then Law Minister HR Bhardwaj on 'tainted' judge's promotion.

 The secret note reveals that Manmohan Singh had personally intervened on the issue of 'tainted' judge. Manmohan Singh in the secret PMO note demanded an explanation as to why the 'tainted' judge was not recommended. 

This is a never seen before, never acknowledged before note that nails the former PM's complicity.

Former PM Manmohan Singh refused to comment on the claim by Katju that three ex-CJIs made "improper compromises" during UPA rule in retaining a judge in TN under corruption cloud. When contacted for a reaction, Singh said he has nothing to say as former Law Minister H R Bhardwaj has already clarified the issue.

 Bharadwaj earlier insisted that no "undue favours" were given to the judge because proper procedure was followed. "So far as political threats to a coalition government is concerned there were always pressure(from allies) onappointment of judges which I never yielded," he said. 

Former SC judge Markandey Katju yesterday (July 21) created a furore alleging that three ex-Chief Justices of India -- Justice Lahoti, Justices Y K Sabharwal and K G Balakrishnanhad -- made "improper compromises" and "succumbed" to political pressure in the extension of an unnamed additional judge of Madras High Court at the instance of UPA-I government owing to pressure from an ally, a "Tamil Nadu party", apparently DMK, and his confirmation as permanent judge. Katju said when he was heading the Madras High Court he got many reports that the additional judge concerned was allegedly indulging in corruption prompting him to request the then CJI Justice Lahoti to get a secret IB inquiry made

. He claimed that the IB report found the allegations to be true and said the judge should have been sacked.

As Katju, who is now Chairman of the Press Council of India, stood firm on his allegation, AIADMK members protested in Parliament for the second straight day and demanded that the DMK minister who was behind the move to retain the judge during the UPA rule be named. Justice Lahoti is quoted as having said that he has never done anything wrong in his life and that everything is a matter of record while Justice Balakrishnan rejected the allegation against him as "completely baseless and not factually correct". DMK slammed Katju for his allegation, calling it "wild and baseless".

Judgment Day for higher judiciary

 
Illustration: Shinod Akkaraparambil

A Subramani,TNN | Jul 22, 2014, 07.02 AM IST

CHENNAI: A day after The Times of India front-paged his article on corruption in the higher judiciary, Justice Markandey Katju earned, according to some, the description of a whistleblower. In his piece, Justice Katju had alleged that an additional judge of the Madras high court facing corruption allegation was allowed to continue in the post despite adverse Intelligence Bureau reports, and that the UPA government persuaded successive Chief Justices first to extend his tenure and then to make him a permanent judge.

The article triggered an avalanche of debates, walkouts and adjournments in Parliament, conspiracy theories and condemnation of its timing. If Justice Katju's plan was to spark a debate on the opaque procedures for appointment of judges and corruption in the higher judiciary , he was bang on the target.

One thing which has not happened so far is demand for contempt of court proceedings against him.

"If it were you, take it from me, you would have already heard from the court and lawyers," a judge told TOI. Without going into the merit of Justice Katju's statements, he said: "The arrival of a whistleblower to highlight the shoddy affairs in the higher judiciary was long overdue. The establishment has kept quiet because the words come from the mouth of one of the most honest and outspoken figures in the legal fraternity. Others cannot expect this leniency."

Others privileged to have a ringside view agree. "Be it indulgence bordering nepotism, play of extraneous factors in proceedings, unverifiable claims of individuals who flaunt wealth and arbitrary promotions or punishments of staff and subordinate judicial officers, those who wanted to blow the whistle just held their breath fearing consequences," a lawyer said.

"Till eight years ago, even the truth could not have defended you from contempt proceedings. If the judiciary thought you had written or spoken truth undermining the majesty of the institution, you would face contempt. It was in 2006 that Parliament changed the Contempt of Courts Act, 1971 and amended Section 13. Now, the language is vague. A person is insulated from contempt charges only if he is able to convince the court that the truth was told in public interest," said a senior jurist.
 

The threat of contempt and defamation proceedings has a chilling effect on free discussion of issues concerning courts and lawyers. "This is a land of defamation cases. Between 2001 and 2006, 150 criminal defamation proceedings were initiated against media organizations. DMK, on assuming charge in 2006, dropped all proceedings by a single government order, but started its own cases. Since 2011, nearly 90 new defamation cases have been filed," said a lawyer.

Justice Katju faces no imminent action though he has targeted one former judge of a high court, and at least three former CJIs. If similar tolerance is shown to activists and journalists many more skeletons would tumble out of the judiciary's closets.

Judge and two advocates denied entry into TNCA Club for wearing dhoti

Mohamed Imranullah S TH 12 July 14

A sitting judge of the Madras High Court, a senior advocate practising in the same court and a lawyer from Madurai were on Friday denied entry into the Tamil Nadu Cricket Association (TNCA) Club, venue of a book release function, in Chennai for having come in ‘dhoti.’

Confirming the news over phone, Justice D. Hariparanthaman wondered how a club could prescribe a dress code even for public functions. “The British rulers prescribed dress codes in the clubs started by them. It is very unfortunate that even after Independence, the same dress code is continued in the present clubs and our traditional Indian dress is prohibited,” he said.

The judge was invited for the release of the book ‘Legal Fraternity Embraced Me’ penned by T.S. Arunachalam, former Acting Chief Justice of the Madras High Court. The invitation stated that former Chief Justice of Gujarat High Court P. R. Gokulakrishnan would release the book and former Chief Justice of Himachal Pradesh High Court V. Ratnam would receive the first copy.

“It had no mention about any dress code but for stating that the function would be held on the TNCA club premises at 5.30 p.m. Therefore, I went there in my official car at 5.25 p.m. and got shocked when the club staff refused to allow me inside because I was wearing a ‘veshti.’ I tried to reason out that I had not come to attend a private function of the club. Yet, I was turned away,” he added.

Stating that senior advocate R. Gandhi and Madurai-based lawyer G.R. Swaminathan were also not allowed inside the club for the same reason, he said: “This only reminds me of the treatment meted out even to a legendry figure like former Supreme Court judge V.R. Krishna Iyer, who was denied entry in the 1980s into the Gymkhana Club. Then, he wrote a note of protest in the guest book.”