Spreading the light of humanity & freedom
These serious allegations raise a doubt about the autonomy of the judges who are trusted upon to carry out their public duties and functions independent of dishonest or ideological considerations. But Justice Katju’s allegations advocate that India’s higher judiciary is in a state of deterioration. They bring into attention the vital necessity on the part of the government to pledge moves to quickly pass two important bills – the Judicial Appointments Commission Bill of 2013 and the Judges Standards and Accountability Bill, 2010.
As of now the Supreme Court of India’s collegium system, which appoints judges to the nation’s constitutional courts, has its genesis in, and continued basis resting on, three of its own judgments which are collectively known as the Three Judges Cases. Over the course of the three cases, the court evolved the principle of judicial independence to mean that no other branch of the state – including the legislature and the executive – would have any say in the appointment of judges. The court then created the collegium system, which has been in use since the judgment in the Second Judges Case was issued in 1993. There is no mention of the collegium either in the original or in successive amendments.
The government through the Constitution(120th Amendment) bill, 2013, that amends articles 124(2) and 217(1) of the Constitution of India, 1950 and establishes the Judicial Appointment Commission, on whose recommendation the President would appoint judges to the higher judiciary. The critical aspect about the new setup that the government through the amendment seeks to achieve is the composition of the Judicial Appointment Commission, the responsibility of which the amendment bill lays on the hands of Parliament to regulate by way of Acts, rules, regulations etc., passed through the regular legislative process. It establishes a Judicial Appointments Commission (JAC) to make recommendations to the President on appointment and transfer of judges to the higher judiciary. It empowers Parliament to pass a law providing for the composition, functions and procedures of the JAC.
The Judges Standard And Accountability Bill 2010 lay down judicial standards and provide for accountability of judges, and, establish credible and expedient mechanism for investigating into individual complaints for misbehaviour or incapacity of a judge of the Supreme Court or of a High Court and to regulate the procedure for such investigation; and for the presentation of an address by Parliament to the President in relation to proceeding for removal of a Judge and for matters connected therewith or incidental thereto.
All these measures will increase accountability of Judges of the High courts and the Supreme Court thereby further strengthening the independence of the judiciary. The proposed Bill would strengthen the institution of judiciary in India by making it more accountable thereby increasing the confidence of the public in the institution It has been 67 years since India’s Independence. The three pillars of democracy the judiciary, parliament and executive are well defined under the Constitution of India and so is the separation of power of each institution. Unlike the West there is very little debate in public domain the way the Judiciary functions in our country.
The journalist, politicians, common man and even lawyers desist from open discussions regarding the appointment, transfer, alleged misconduct of some of the judges inside or outside the court room or for that matter very little is debated in public discussion even on national television about particular judgment which appears detrimental in national interest because of the fear of contempt of court.
Has the democracy matured in India? The recent poll indicators suggest that for the first time in last couple of decades the people of our country especially the youth rose above the caste politics and voted for vision, hope and aspiration for building a vibrant and strong nation which could truly be the world’s largest democracy.
India has come of age and so has the time arrived for a National debate regarding the transparency in the judicial system.
It is not the time to go into the merits of the allegation leveled by Justice Katju, or why it took him ten years to voice the matter, whether UPA or NDA led-government were responsible, what is more important is are there certain deficiencies in the present system and how we can improve upon them to instill the confidence of the people in the judicial system. Some legal experts even suggest that the manner in which the proceedings of parliament are shown live on television, the court proceedings of the high court and the apex court must be broadcasted live in order to demonstrate that ‘Not only must Justice be done; it must also be seen to be done’.
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.
The special CBI court Panchkula on Friday accepted the closure report submitted by the Central Bureau of Investigation (CBI) in two cases - attempt to murder and forgery of documents- filed against former Haryana DGP SPS Rathore.
Ruchika's father Subhash and brother Ashu raised no objection to the closure report.
"When Rathore was convicted in 2009, I met union home minister P C Chidambaram who assured me of justice. I thought time and system had changed and dared to move fresh complaints against Rathore." On January 12, 2010 the CBI registered three fresh FIRs against Rathore - attempt to murder, abetment to suicide and doctoring of documents. However, in November 2010, the CBI submitted the closure report in two cases. The closure report was accepted by the court on Friday.
"But now after finding that the system cannot be changed, we decided not to pursue it further," Girhotra said.
Ruchika's disillusioned father said that he had presented a lot of material and some witnesses related to the fresh cases before the agency. "But the agency was adamant on closing the case."
Subhash forced his son and family into exile after Ruchika's death, fearing further harassment at the hands of the former DGP. During this period, the family shifted between several cities and returned to Panchkula many years later only to lead an inconspicuous life.
The third case against Rathore- abetment to suicide - is still pending. The CBI could not file any report as the Punjab and Haryana high court has ordered status quo on it. Besides Rathore, former Ambala SP KP Singh, sub-inspector Prem Dutt and assistant sub-inspectors Jai Narayan and Sewa Singh were also named in the FIR.
In its closure report, the CBI has said that the allegations levelled by Subhash Girhotra and his son Ashu against Rathore were unfounded. The CBI also claimed that the allegations could not be substantiated "as per the documentary evidence and oral testimony of witnesses."
August 12, 1990-- SPS Rathore, then IG and President, Haryana Lawn Tennis Association (HLTA) molested Ruchika
September 1990--Ruchika expelled from school for 'indiscipline' following her allegations against Rathore
September 3, 1990-- An Inquiry report indicts Rathore
October 23, 1993-- Ruchika's brother arrested in several theft cases
December 28, 1993-- Ruchika consumed poisonous substance
December 29, 1993-- Ruchika died
August 21, 1998-- High Court directs CBI to conduct inquiry
December 21, 2009-- CBI court sentenced six months' rigorous imprisonment to Rathore
January 12, 2010-- CBI registered three fresh FIRs leveling charges of attempt to murder, abetment to suicide and doctoring documents
November 10, 2010-- CBI filed closure
Claiming to possess documentary evidence to back his allegations, Singh claimed that just a month before his retirement, the former judge delivered a verdict on February 11 in a case involving the question that was raised unsuccessfully before various judicial forums by his sister.
In the February 11 judgment, the then judge held that tenants, inducted to a property prior to coming into force of Public Premises Act, would be entitled to the protection of Bombay Rent Act. This provided a helping hand to the ex-judge's sister, who cited the SC judgment to get the required relief, Singh alleged.
Finding the bench not amenable, Divan had agreed to withdraw the petition but was seeking liberty to approach the high court with a review petition. Opposing grant of liberty to move HC with a review petition, Singh made the allegations in a tone that made most advocates cringe in their seats.
Such was the sharpness of Singh's unusually loud allegation that senior advocate Kapil Sibal stood up and said, "In my 41 years of practice in Supreme Court, I have never witnessed anything like this. I am saddened by it."
The bench too attempted to calm down Singh by saying, "The judges will retire. But the institution and the lawyers will remain. The institution's eminence and public trust is in the hands of the lawyers."
Singh said he respected Justice Mukhopadhaya for his integrity, fearlessness and righteousness. He said he was surprised that Justice Mukhopadhaya was reluctant to take on documents that showed the doings of a former judge.
Justice Mukhopadhaya said he feared none when it came to court discipline and rendering justice. "In my 21-year tenure as a judge, I have met everyone. But no one has ever dared to purchase me. I kept my doors open to everyone to see who can dare purchase me," he said.
"During my tenure as a judge in high court, I had initiated contempt proceedings against my uncle. Even my father could not say anything to me. My uncle had to tender unconditional apology," he added.
When Singh continued with his tirade against the former judge, Justice Mukhopadhaya said, "If you want to scandalize the judge, we don't bother. We have developed thick skin. Every day we read something or the other in the newspapers.
"It is torture to be a judge. One is better off on the other side, as a lawyer. We find it difficult to endure this torture. That is why recently six persons from Gujarat High Court refused to become judges. Clever persons are those who choose to remain lawyers. At least there is no retirement." Justice Mukhopadhaya retires on March 14 next year.
Chief Justice of India RM Lodha told NDTV on Monday morning, "I haven't received the complaint officially... once I get it I will go through the complaint. Normally we ask for a report on the complaint from the Chief Justice of the High Court. In this case, I will seek a report from the Chief Justice of Madhya Pradesh High Court and take action accordingly. I will do my best for the institution."
The additional judge resigned on July 15 and wrote to the CJI and others on August 1, Friday evening. "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?" said the woman, who ironically headed a Vishaka committee against sexual harassment.
She has alleged that the High Court judge constantly pestered her and once sent her a message through an official to "perform dance on an item song" at a function at his home. She said she excused herself saying it was her daughter's birthday.
She also alleged that when she spurned the judge's "various advances and malicious aspirations", he targeted her professionally. "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," she has complained.
She said her appeal for an eight-month extension to allow her daughter's academic year to finish was rejected and has alleged that the judge threatened to "spoil my career completely," when she pleaded against the transfer.
"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," she has written.