Mukul-da,
good point! any other points
Umesh
mc mahant <[EMAIL PROTECTED]> wrote:
In fact bulk of Assam had no Police,Lawyers,Magistrates,"My
Lord"judges,Jails till around 1939.
I recall sitting next to a senior family patriarch in our village Naamghar
holding a 'Mael'. Later I learnt -that was a case of immoral nature.
The punishment meted out--"keep out of society for 6 months!". He did.
All were Jurors.
Summary: It worked everywhere. Will work everywhere. British Laws (implanted
into USA and to India )are not that great. They may not correct Society.
Guantanamo and Abu Ghraib and Brit. happenings are for all to see.
mm
---------------------------------
From: umesh sharma <[EMAIL PROTECTED]>
Reply-To: [EMAIL PROTECTED]
To: Chan Mahanta <[EMAIL PROTECTED]>, [email protected]
Subject: Re: [Assam] From the Outlook
Date: Sat, 25 Nov 2006 18:45:44 +0000 (GMT)
can jury duty work in India. some who have served as juries in US etc might
share their experience with us.
Umesh
Chan Mahanta <[EMAIL PROTECTED]> wrote:
In recent weeks we have had a number of discussions regarding Indian
governmental accountability, transparency, its mechanisms for checks
and balances, its vaunted justice system and so forth.
The following article lays down the truths behind the show and the
reality and is telling!
cm
***************************************************************************
Web| Nov 23, 2006
Opinion
Illusion Of Accountability
The proposed bill to amend the Judges Inquiry Act and provide for
the constitution of a National Judicial Council to inquire into
complaints against errant
judges is designed to create an illusion of
accountability. In practice it will not change the existing status
quo.
PRASHANT BHUSHAN
The recent decision of the government to bring a bill to amend the
Judges Inquiry Act and provide for the constitution of a National
Judicial Council to inquire into complaints against errant judges is
being perceived as a long awaited initiative to introduce some
accountability for judges of the higher judiciary. But on examining
its provisions in the light of past experience we will see that it is
designed more to create an illusion of accountability, while in
practice it will hardly change the existing status quo.
There has been a growing realization over the past many years that
the system of impeachment created by the Constitution for dealing
with judicial misbehaviour is impractical and unworkable. This is
partly because to set the process in motion one needs to get an
impeachment motion signed by 100 MPs- which is an impossible task,
unless one already has unimpeachable documentary evidence to prove
the guilt of the judge. In most cases, that is not possible unless
some investigative body investigates the charges and collects
evidence. In Justice V. Ramaswami's case, it was possible to do that
since the charges pertained to purchases made for the High Court and
his official residence and were audited by the Accountant General's
office, whose audit report contained the evidence necessary to frame
charges against Ramaswami. He was then tried by a committee of three
judges appointed by the Lok Sabha speaker, who found him guilty on
many charges of misfeasance. Despite this, he escaped removal because
the then ruling party decided to abstain from voting on his
impeachment motion.
The problem of judicial accountability has been compounded by the
Supreme Court's judgement in the
Veeraswami case, in which it
declared that no judge of the High Court or the Supreme Court could
be subjected to even investigation in any criminal offence of
corruption or otherwise, unless one obtains the prior written consent
of the Chief Justice of India. This has resulted in a situation
whereby no sitting judge has been subjected to even an investigation
in the last 15 years since that judgement, despite public knowledge
and complaints of widespread corruption in the judiciary. The police
does not dare approach the Chief Justice for permission to
investigate, unless they already have clinching evidence, which they
cannot get unless they investigate. It is a classic Catch 22
situation which the judiciary is obviously happy to live with.
Further, the judiciary is even insulated from public criticism by
the threat of Contempt of Court, which can be used in a very
draconian manner by the very judges toward s whom
the criticism is
directed, as we saw in the Arundhati Roy case. The sword of contempt
has kept the judiciary away from searching public scrutiny,
particularly within the mainstream media. The judiciary is obviously
happy to live with this situation as well.
The judiciary is even seeking to effectively remove itself from the
purview of the Right to Information Act. The Supreme Court has
recommended amending the Act to remove the jurisdiction of the
Central Information Commission over it under the Act and, even
further, that any information interdicted by the Chief Justice on the
ground of independence of the judiciary will not be given. As if mere
transparency in the functioning of the judiciary can compromise its
independence! Taking a cue from the Supreme Court, most High Courts
have not even appointed Public Information Officers under the Act
till now and many High Courts have framed rules contrary to the Act.
The Delhi High Court rules provide that no administrative
information, which is not in the public domain, will be given.Thus,
information about appointment of class 3 and 4 employees by the High
Court without any public advertisement is being denied by citing this
illegal rule.
To cap it all, the Supreme Court has by an amazingly creative
interpretation of the Constitution taken over the power of appointing
judges in its own hands. The words "appointed by the government in
consultation with the Chief Justice" in the Constitution were
interpreted as "appointed by the government on the advice of the
Chief Justice"!
Thus, the judiciary has effectively become a law unto itself,
unaccountable to any one by declaring itself as sui generis. And
while its accountability was being whittled away, its powers were
increasing as it moved in to occupy space vacated by a weak and
corrupt executive.
It is in this
background that one needs to analyse the proposed
Judicial Council bill. It seeks to amend the Judges Inquiry Act to
provide for a complaint procedure for an inquiry against erring
judges. At present, this inquiry can only be made on an impeachment
motion signed by 100 MPs. Though that is an improvement, it is the
composition of the Council and its lack of investigative powers that
renders the bill a non starter. The Council to examine complaints
will consist of five senior judges of the Supreme Court in complaints
against Supreme Court Judges and three senior judges of the Supreme
Court with two Chief Justices of High Courts in complaints against
High Court judges.
Firstly, sitting judges who are already overburdened with judicial
work will not be able to devote adequate time to this job. Secondly,
and more importantly, sitting judges would find it difficult and
embarrassing to hold their brother judges (sometimes
their seniors),
with whom they share the bench every day, guilty of misdemeanors. Not
impossible, but unlikely.
For any unbiased and realistic enquiry against judges, one needs a
full time body, independent of the government as well as of the
judiciary, with an investigative machinery under its control, through
which it can get complaints investigated. A view has been propagated
by the judiciary that the judiciary cannot be made accountable to any
outside body, but only to itself. Anything else they say will
compromise the independence of the judiciary. That is why they
adopted an "in house procedure" in 1997 to inquire into complaints
against judges. This also envisaged a committee of judges to inquire
into complaints. But there have hardly been any inquiries during the
last nine years, though there have been many reports and complaints
of judicial misbehaviour.
This self accountability is akin to a judge
sitting to decide his
own cause, something which has been declared by the courts to be
violative of the principles of natural justice. Independence of
Judiciary means independence from Executive and Legislature, but not
independence from accountability. It is a fundamental principle that
every institution must be accountable to an authority which is
independent of that institution. Yet somehow, the judiciary has
propagated a view that the judiciary can only be accountable to
itself.
For all the above reasons, the proposed Judicial Council will not
usher in any real judicial accountability, though for some time, till
its import is properly understood, it may create an illusion of that.
That in fact appears to be its main purpose, judging by the
statements of the ministers and judges, who say that this bill will
go a long way to restore public confidence in the judiciary. It might
end up essentially as a
confidence trick.
Prashant Bhushan is a senior Supreme Court lawyer.
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Umesh Sharma
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Class of 2005
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Umesh Sharma
5121 Lackawanna ST
College Park,
(Washington D.C. Metro Region)
MD 20740
1-202-215-4328 [Cell Phone]
Ed.M. - International Education Policy
Harvard Graduate School of Education,
Harvard University,
Class of 2005
weblog: http://jaipurschool.bihu.in/
website: www.gse.harvard.edu/iep
Send instant messages to your online friends http://uk.messenger.yahoo.com _______________________________________________
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