New DelhiSenior-most Supreme Court judge, Justice J Chelameswar, has shot off a letter to the Chief Justice of India (CJI) asking him to consider convening a full court to take up the issue of alleged executive interference in the judiciary.
Justice Chelameswar, in his letter written on March 21, cautioned that “the bonhomie between the judiciary and the government in any State sounds the death knell to democracy”.
The letter, copies of which were also sent to 22 other apex court judges, has questioned the probe initiated by Karnataka High Court Chief Justice Dinesh Maheshwari against District and Sessions Judge Krishna Bhat at the instance of Union Ministry of Law and Justice, despite his name being recommended for elevation twice by the Collegium.
“Someone from Bangalore has already beaten us in the race to the bottom. The Chief Justice of Karnataka High Court is more than willing to do the Executive bidding, behind our back,” Justice Chelameswar wrote in his six-page letter.
Raising the issue of judicial independence, he said, “We, the judges of the Supreme Court of India, are being accused of ceding our independence and our institutional integrity to the Executive’s incremental encroachment.
“The executive is always impatient and brooks no disobedience even of the judiciary if it can. Attempts were always made to treat the Chief Justices as the Departmental Heads in the Secretariat. So much for our ‘independence and preeminence’ as a distinct State organ”.
Justice Chelameswar, who had held the unprecedented January 12 press conference along with three other senior judges questioning the allocation of cases by the CJI, referred to the “unhappy experience” where the Government sat tight over the files even after the Collegium recommended names for appointment in the higher judiciary.
“For some time, our unhappy experience has been that the government’s accepting our recommendations is an exception and sitting on them is the norm. ‘Inconvenient’ but able judges or judges to be are being bypassed through this route,” he claimed.
The apex court judge, who is demitting office on June 22, took serious note of the communication between the Karnataka High Court chief justice and the executive saying, “the role of High Court ceases with its recommendation”.
He said that any correspondence, clarificatory or otherwise, has to be between the executive and the Supreme Court.
Referring to Bhat’s case, he said, “To my mind, I could recollect no instance from the past, of the executive bypassing the Supreme Court, more particularly while its recommendations are pending, to look into the allegations already falsified and conclusively rejected by us.
“Asking the High Court to re-evaluate our recommendation in this matter has to be deemed improper and contumacious.”
He said the judiciary may not be “far-off” when the executive would directly communicate with the High Court about the pending cases and ask what orders are to be passed.
“Let us also not forget the bonhomie between the judiciary and the government in any State sounds the death knell to democracy. We both are mutual watchdogs, so to say, no mutual admirers, much less constitutional cohorts”, he said in the letter to the CJI.
Asking the CJI to take up the issue of executive interference in judiciary by convening a full court on the judicial side, he said this was necessary in order to ensure that the institution (Supreme Court) remained relevant under the scheme of the Constitution.
He then referred to an instance from the past when the apex court had taken serious note of direct communication of the then Law Minister with the High Courts on the issue of judges’ transfer which had finally led to the judgement in first judges case in 1981. Later, the Collegium had assumed power with regard to judges’ appointment in higher judiciary.
In 2016, then Chief Justice of India T S Thakur had asked then High Court chief justice S K Mukherjee to hold an inquiry against Bhat on certain allegations levelled by a subordinate woman judicial officer. Bhat’s name was later recommended after the probe had given him a clean chit.
SC For Full-Time Expert Body To Assist In Appointment Of Judges
The Supreme Court on Wednesday called for considering whether there is need for setting up a body of full-time experts to assist in “identifying, scrutinising and evaluating” the candidates to be appointed judges of Supreme Court and the high courts at the pre-appointment stage.
“There is need to consider … whether there should be a body of full time experts, without affecting the independence of judiciary, to assist in identifying, scrutinising and evaluating candidates at pre-appointment stage and evaluating the performance post appointment,” said the bench of Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit in their judgement.
Pending consideration of issue of All India Judicial Service, the court said that there was need to consider the proposal for “central selection mechanism” for filling up vacancies in courts other than the Constitutional Courts and also to “consider as to how to supplement inadequacies in the present system of appointment of judges to the Constitutional Courts at all levels”.
It further said that the “government may also consider what changes are required in the process of evaluation of candidates at its level so that no wrong candidate is appointed”.
“What steps are required for ensuring righteous conduct of judges at later stage is also an issue for consideration,” the court said in its conclusions.
This court said this in its conclusions focusing on de-clogging the courts of pending cases including arrears, curbing frequent strikes by lawyers and other issues.
It said that the authorities concerned “may examine whether there is need for any changes in the judicial structure by creating appropriate fora to decongest the Constitutional Courts so as to realistically achieve the constitutional goal of speedy justice”.
Taking a strong view on the “frequent” strikes by lawyers, the court said that pending “legislative measures to check the malady of frequent uncalled for strikes obstructing access to justice, the Ministry of Law and Justice may compile information and present a quarterly report on strikes/abstaining from work, loss caused and action proposed”.
It further said that the matter can thereafter be considered in the “contempt or inherent jurisdiction of this court.”
It said that the Court may direct having regard to a fact situation, that the “office bearers of the Bar Association/Bar Council who passed the resolution for strikes or abstaining from work or took other steps in that direction are liable to be restrained from appearing before any court for a specified period or till they purge themselves of contempt to the satisfaction of the Chief Justice of the concerned High Court based on an appropriate undertaking/conditions.”
It said that the “frequent uncalled for strikes by the lawyers” seriously affects access to justice as even cases of persons languishing in custody are delayed on that account.
“Tax payers’ money is lost on account of judicial and public time being lost. Nobody is accountable for such loss and harassment,” said the court, as it asked the central government to file an affidavit in the light of its observations within three months.
The matter, the court said, may be listed for consideration of the above affidavit on Wednesday, July 4 before the appropriate Bench.
The top court said this in its judgment on an appeal by Krishnakant Tamrakar challenging the Madhya Pradesh High Court rejecting his bail twice in life sentence for murder despite his being in custody for more than ten years.
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