Judiciary confused about ways of dealing with errant judges

RTI petitions yield confusing information on receiving complaints about judges of superior courts

It looks like confusion exists within the judiciary itself about ways of dealing with errant judges. Two different RTI queries have yielded contradictory answers from former Chief Justice of India YK Sabharwal and the Department of Justice on the procedure to deal with complaints received by Chief Justices of the Supreme Court and high courts against judges of higher courts.

In October 2011, RTI activist Subhas Chandra Agrawal filed a query with the Department of Justice, seeking information on commissions constituted to probe tainted judges PD Dinakaran and Soumitra Sen. He also asked about the benefits allowed to judges who resign before enquiry or impeachment proceedings start; and powers of the chief justice of a high court and the Chief Justice of India to receive complaints against judges of superior courts and taking action against them.

In reply, the CPIO (chief public information officer) on 12th November provided a detailed response to his queries. He clearly mentioned the duties of the Chief Justice of India and that of a high court on receipt of a complaint against a judge belonging to a high court or Supreme Court—elaborately describing the procedure of filing complaints, setting up of probe committees and initiating action of removal of the said judge(s).

However, the information clearly contradicts a statement made by former Chief Justice YK Sabharwal, which was quoted in an RTI response from Supreme Court Registry dated 21st April 2006. Mr Agarwal had asked the same question, the reply to which quoted an order by the then chief justice that said, “Neither Supreme Court or Chief Justice of India is the appointing or disciplinary authority with respect to judges of superior courts, including judges of high courts.”

While the process of removal of judges of the Supreme Court and high court can be done only by the order of the president, complaints can be received by the chief justice of a high court and the Chief Justice of India regarding errant judges, and if the complaint is against the chief justice of a high court, it can be received by the president or the Chief Justice of Supreme Court, who may initiate probe and set up enquiry commissions against the judge.

However, the removal procedure is very complex, and till date only two judges—Soumitra Sen of the Calcutta High Court and V Ramaswamy of the Madras High Court has faced impeachment proceedings in Parliament. Only the former was removed successfully.

According to our Constitution, the Chief Justice of India is consulted by the president regarding appointment of judges of high courts, and the chief justice of a high court is also consulted for appointment of other judges of a high court. The Chief Justice of the Supreme Court is also consulted regarding transfer of judges of a high court.

YK Sabharwal has been a controversial figure, and there are many allegations against him about misusing his authority in order to favour his sons who are in real estate business. Referring to his statement, Mr Agrawal said, “Since two responses from Department of Justice and Supreme Court seem to contradict each other, I appeal that CPIO at Department of Justice may kindly be directed to reveal an exact position about competence of Chief Justices of Supreme Court and high courts in regard of handling complaints against judges of superior courts.”

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    COMMENTS

    Dr V P Sharma

    9 years ago

    The fight should be taken further, more so because of corrosion of morality, ethics and principles in the judicial system, rather whole of society/country. Accountability is the essence of any Democracy and crying from rooftops that we are the biggest democracy doesn't mean that we are the true democracy. The demon of corruption and CHALTA HAI attitude has reached its zenith and has to be curbed. We are a democracy where people who are mediocre rule the country. The intelligentsia is so demoralized that they don't even bother to cast their vote.

    P M Ravindran

    9 years ago

    If the judiciary has given the impression that there is confusion in the matter of dealing with complaints against judges let me assure you it is a put on! And why? Just to convey that there are some means to do that while the truth is that there is nothing other than the preposterous impeachment process. The National Commission to review the working of the Constitution, which submitted its report in 2002, had only suggested the following: setting up a National Judicial Commission 'for making recommendation as to the appointment of a Judge of the Supreme Court (other than the Chief Justice of India), a Chief Justice of a High Court and a Judge of any High Court.' and Recommendation 123 of this Commssion reads as follows:

    7.3.8 A committee comprising the Chief Justice of India and two senior-most Judges of the Supreme Court shall be exclusively empowered to examine complaints of deviant behaviour of all kinds and complaints of misbehaviour and incapacity against judges of The Supreme Court and the High Courts. Their scrutiny at this stage would be confined to ascertain whether –

    (a) there is substance at all in the complaint; or

    (b) there is a prima facie case calling for a fuller investigation and enquiry; or

    (c) whether it would be sufficient to administer an appropriate advice/warning to the erring Judge or give other directions to the concerned Chief Justice regarding allotment of work to such Judge or to transfer him to some other court.

    If, however, the committee finds that the matter is serious enough to call for a fuller investigation or inquiry, it shall refer the matter for a full inquiry to the committee [constituted under the Judges’ (Inquiry) Act, 1968]. The committee under the Judges Inquiry Act shall be a permanent committee with a fixed tenure with composition indicated in the said Act and not one constituted ad-hoc for a particular case or from case to case, as is the present position under Section 3(2) of the Act. The tenure of the inquiry committee shall be for a period of four years and to be re-constituted every four years. The inquiry committee shall be constituted by the President in consultation with the Chief Justice of India. The membership of the inquiry committee shall not be full time salaried employment. But the terms and other conditions of service of the Members of the committee shall be such as may be specified in the notification constituting the inquiry committee. The inquiry committee shall inquire into and report on the allegation against the Judge in accordance with the procedure prescribed by the said Act, i.e. in accordance with the sub-sections (3) to (8) of Section 3 and sub-section (1) of Section 4 of the said Act and submit their report to the Chief Justice of India, who shall place before a committee of seven senior-most judges of the Supreme Court. The Committee of seven Judges shall take a decision as to - whether (a) findings of the inquiry committee are proper and (b) any charge or charges are established against the judge and if so, whether the charges held proved are so serious as to call for his removal (i.e. proved misbehaviour) or whether it should be sufficient to administer a warning to him and/or make other directions with respect to allotment of work to him by the concerned Chief Justice or to transfer him to some other court (i.e. deviant behaviour not amounting to misbehaviour). If the decision of the said committee of judges recommends the removal of the Judge, it shall be a convention that the judge promptly demits office himself. If he fails to do so, the matter will be processed for being placed before Parliament in accordance with articles 124(4) and 217(1) Proviso (b). This procedure shall equally apply in case of Judges of the Supreme Court and the High Courts except that in the case of a Supreme Court Judge the judge against whom complaint is received or inquiry is ordered, shall not participate in any proceeding affecting him.

    Sweena Jain

    9 years ago

    Judiciary is not only confused but is also biased which can be seen from today's news about Sukhram 1993 scam.As Mr.Sukhram was then a minister has been held guilty in scam committed in 1993.He played all tricks initially and was granted interim bail till today i.e 16/01/2012 by Supreme Court.And today extended bail till August 2012.Now everybody doubts whether Mr.Sukhram will ever go to jail at all.Then why waste public money and time in such cases.The ministers and MP's should given immunity for all their acts whether in public interest or against public. And our judiciary is famed for delay which leads to corruption.GOD same Indians.

    REPLY

    Dr V P Sharma

    In Reply to Sweena Jain 9 years ago

    Bang on the point Sweena.

    Dr Vaibhav Dhoka

    9 years ago

    Judiciary has miserably failed to reign in errant and corrupt judges.The reason is India inherited British laws blindly which were dictatorial as they wanted tame Indian and to rule.The handful Britishers ruled for about 1 1/2 century.And their laws were colonial,and what we needed was PANCH system that is settlement of disputes at local level.The British laws have procedural chain which laid to DELAY in JUSTICE.The second most important is SECRECY and JUDICIARY embedded the fear of CONTEMPT in mind of common man who dare not the speak and complaint against an errant JUDGE.And with failure of superior courts in its supervisory jurisdiction the corruption became routine action.Because the investigation in corruption complaint is totally different in justice system as against bureaucracy and other departments.It has failed in all aspect in public eye and due this failure the crime has increased manifold as there is no fear of Law in common MAN. Muscle power took over long back and its due to judicial failure.This is due to errant judges have failed exercise due diligence to be RESPECTED.

    REPLY

    Dr V P Sharma

    In Reply to Dr Vaibhav Dhoka 9 years ago

    We cannot fault the British laws. Our laws are exhaustive enough to deliver justice. Its not a system failure but failure on the part of people behind the system.

    RBI issues another warning on scam e-mails

    The central bank itself has been the target of the scamsters who have used its name in a fake e-mail, asking people for numerous personal details to register for a one-time password. The best way to deal with such mails is to delete it ASAP

    Reserve Bank of India (RBI), while issuing another warning about scam e-mails and SMS that are doing round, has asked people to stay away from such messages.

    In a statement, the central bank advised people to immediately register a complaint with the local police/cyber crime authorities when they receive fictitious offers of money from abroad or if they are victims of such offers. “It has also placed, on its (RBI) website, the list of such nodal agencies with whom the public can register complaints,” the central bank said.

    E-mails claiming you have won a lottery prize worth millions of dollars or fraudulent e-mails in the name of your banker, seeking account details for verification are not new. Time and again people are lured to such messages and have lost their money.

    Now acting on it, the RBI once again, issued a warning asking people to stay away from such e-mails.

    In fact, the central bank itself has been the target of the scamsters who have used its name in a fake e-mail, asking people for numerous personal details to register for a one-time password.  In reality, the apex bank never asks for these details for the purpose of verification, by e-mail.

    Often these scam e-mails, ask you to furnish your personal and bank details. Most of them are originally sent from foreign countries, telling you to make some payment to claim the prize money.

    However RBI has cautioned “against making any remittance towards participation in such schemes/offers from unknown entities since such remittances are illegal and any resident in India collecting and effecting/remitting such payments directly/indirectly outside India is liable to be proceeded against for contravention of the Foreign Exchange Management Act, 1999. They are also liable for violation of regulations relating to Know Your Customer (KYC) norms/Anti Money Laundering (AML) standards.”

    Another e-mail was circulated where unclaimed funds were offered in the name of RBI. To make this email more realistic, they had even used RBI governor D Subbarao's name and mentioned a so-called meeting with a "Senate Tax Committee on Finance", except that there is no such committee in India.

    The central bank in the past have issued similar advisory to the people against falling prey to fictitious offers/lottery winnings/remittance of cheap funds in foreign currency from abroad by so-called foreign entities/ individuals or to Indian residents acting as representatives of such entities/individuals.

    Best way is to delete any email that asks your personal and bank details. However, in case you have free time on your hand then read an interesting book “Delete This At Your Peril” by Bob Servant / Neil Forsyth. This book hilariously shows internet scam artists are just as gullible as their victims if not more so. The idea in one of these scams is to get the recipient to wire the sender money. Here, it is the email recipient who gets the senders to promise to send alligators, leopards, and a talking lion (no, really) as his part of a 419 scam. (Read Lions, Gold and Confusion, an extract from the book)

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    COMMENTS

    balakrishnan

    3 years ago

    good information tks

    What's wrong if innovative methods are used to dispose off huge pile of second appeals in RTI?

    Acting Chief State Information Commissioner Vijay Kuvalekar disposed off 457 out of 607 appeals in a Special Appeal Disposal programme held in Mumbai recently, a vital step towards clearing 18,677 appeals piled up in Maharashtra

    Consider this dismal picture:

    Number of second appeals pending in Maharashtra: 18,677
    Number of State Information Commissioners (SICs): Five out of which three hold additional charge of another division, besides their own

    Result?
    Due to the sheer large number of appeals and inadequate number of SICs as well as clerical staff, the appeals in the normal course would take more than two years to be heard.            

    Consider now the innovative approach:

    • Maharashtra SIC Vijay Kuvalekar worked upon a unique solution to quicken disposal of appeals by holding a `Special Appeal Disposal Programme' (SADP) in Mumbai between 4th January and 7th January and disposed off 457 out of 607 second appeals.

    Consider the beneficiaries of this programme:

    •  A government officer who was compulsorily retired by the government in 1994 did not get his rightful financial benefits like provident fund (PF) and gratuity despite court orders. His RTI (Right to Information) application had met with indifference; hence he filed a second appeal in Mr Kuvalekar's office. This case was one of the many cases sorted out in the SADP. Fearing that they would be slammed with contempt of court, the concerned deputy secretary from the department signed a written order stating that the officer would receive his dues of Rs92,850 and showed the proof on the day of the programme. The next day, he also produced a receipt to prove that the money was received by the aggrieved officer.
       
    • One fine day, without any public notice, a ST bus which was ferrying hundreds of school and college-going children from a village to Ratnagiri everyday was stopped. A villager filed an RTI application seeking details of why the bus was discontinued abruptly. He got a reply stating it was not economically viable to run the bus service. The villager again invoked RTI seeking documents which would prove that the bus was incurring financial losses. He filed a second appeal in Mr Kuvalekar's office as he did not get any further reply from the PIO. On the day of the SADP, the officer, perhaps wary of the consequences, gave a written statement that the bus would be re-started on the route within a week.
       
    •   In another case, a poor man waited over three years but did not get his ration card. He filed an RTI application to find out the reasons but the PIO dodged his queries. Finally, he went in for second appeal. During the SADP, the officer promised to give him his ration card within a week. The officer was also asked to give the compliance report with the copy of the ration card given to him within seven days.
    •   In yet another disposal, the authorities were not taking cognizance of an unauthorized construction despite invoking the RTI. During one of the sessions of the SADP they promised to issue a notice within three days with a copy of the notice to the applicant.

    What is this SADP invented by Mr Kuvalekar?
    This is not a hearing, says Mr Kuvalekar and it is not compulsory to participate. The applicant as well as the appellant has the choice to ask for the conventional ‘hearing’.  To give the background, second appeals comprise application filed with the information commissioners when an applicant does not get the required information or gets false or no information from the Public Information Officer (PIO). The applicant could be also unhappy with the decision of the First Appellate Authority (FAA) or could simultaneously file second appeal along with first appeal. However, these second appeals take a long time to be heard due to a huge backlog, thus making the RTI Act irrelevant as most of the information sought by applicants is time bound. Backlogs in Maharashtra date back to 2008. Presently, Mumbai accounts for the highest number of pending second appeals—4,661 while Pune follows with 3,694 appeals.

    In this Special Appeals Disposal format, the applicant, the PIO and the FAA sit together, discuss and decide upon the course of action. “We do not take part in the dialogue,”' says Mr Kuvalekar, “but facilitate the three of them to discuss matters, threadbare.” If the matter is resolved, then the information commissioner will dispose off the appeal. Otherwise, a form will be filled by the PIO and the applicant and a formal hearing will take place at a later stage. It’s important to note, that, although 457 second appeals were disposed off between 3rd January and 5th January, a written order has to be passed by Mr Kuvalekar. Thanks to government apathy in filling up clerical staff, especially stenographers, in information commissioners’ offices, including Mr Kuvalekar’s, this exercise itself will take time. Point to note is that Mr Kuvalekar retires on 7th February.

    Special Appeals Disposal lauded
    Vijay Kuvalekar’s presentation at the National Conference of Information Commissioners was highly lauded. The Orissa and the Haryana state information commissioners have decided to replicate this model in their states.  State information commissioner of Gujarat, K Rajgopal attended the disposal programme for an entire day.

    RTI activist Krishnaraj Rao has vociferously criticized this method of disposals saying it is short-circuiting and bypassing of the law.
     
    However, RTI activist Vijay Kumbhar insists that, “As per my knowledge, appeal proceeding under Section 19 of the RTI Act and complaint under Section 18 are civil proceedings, which are always compoundable and open for an out-of-the-court settlement. So I don’t see any illegality in what Mr Kuvalekar is doing. Also, mere opposition on theoretical grounds ultimately adversely affects the RTI applicant. Do we have any other remedy to dispose pending appeals in a faster way? Isn’t it our duty to support or give solution to a problem instead of just opposing it?”

    Another noted RTI activist, Bhaskar Prabhu states, “There is nothing wrong in conducting such special appeal programmes. If someone does not agree to it, then anyway it is not compulsory and he can wait for normal course of hearing.'” However, Mr Prabhu feels that the written order should be sent at the earliest.

    RTI activist Manoj Pai said, “The appeal procedures are all quasi-judicial in nature. Hence, the redressal or settlements of appeals are legitimate. As long as such a solution provides full disclosure of the information, I see no reason as to why we should not support this cause. We are all here to find a solution to problems and not create hurdles.”

    (Vinita Deshmukh is consulting editor of Moneylife. She is also an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart—Ashok Kamte” with Vinita Kamte. She can be reached at [email protected])
     

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