Oversight Committee to ensure accountablity of Judges

Judges of the Supreme Court and High Courts would be subject to scrutiny of a high-level committee and those facing serious charges of misconduct may be asked to step down, according to a new bill that was approved by the Union Cabinet on Tuesday.

The much-delayed Judicial Standards and Accountability Bill, 2010 provides for setting up of a five-member Oversight Committee to be headed by a former Chief Justice of India and including the Attorney General to go into complaints against members of the higher judiciary.

Other members of the apex committee would be a Supreme Court judge, a Chief Justice of a High Court and an eminent person nominated by the President. The bill, which seeks to replace the Judges (Inquiry) Act, 1968 while retaining its basic features, is being introduced in Parliament amid growing incidents of allegations of misconduct against judges.

"The enactment of the bill will address the growing concerns regarding the need to ensure greater accountability of the higher judiciary by bringing in more transparency and would further strengthen the credibility and independence of the judiciary," Information and Broadcasting Minister Ambika Soni told reporters while briefing on the Cabinet decision.

Under the bill, a judge not facing serious charges may be let off after a warning.
Read more: Bill for accountability of judges approved by Cabinet

IESM: Legal Cell to assist ESM and Defence Widows who have been short circuited

NEED FOR “IESM LEGAL ADVICE CELL” TO HELP INDIVIDUAL ESM AND DEFENCE WIDOWS
Dear Brig Kamboj.
It has been observed that many ESM are being taken advantage of by unscrupulous lawyers to take up various cases on their behalf without having even the full knowledge of the case or its full legal standing. Even a preliminary reading of the case papers is being charged for.
To help ESM in this matter the IESM is wishing to set up a Legal Aid Cell with the Aim of helping ESM to provide a them legal opinion only with the aim of giving basic advise on whether a case exists and in which court such a case should be filed.
The matter of subject of further dealing of the case and fees etc would be a matter between the litigant and the chosen lawyer and IESM would have nothing to do with these matters.
Those Veterans who are practicing lawyers and also those not practicing, volunteer to provide this noble service through this cell of IESM, may kindly contact the Gen Sec Gr Capt V K Gandhi at his Email id vk_gandhi@yahoo.com Your willingness to head the cell may please be indicated.
It will be a good idea if we can find at least one lawyer in each state capital. Volunteers are requested to forward their names.
Th IESM does not expect members of this cell to to appear before any court but if they wish they would be free to do so.
Regards.
Gp Capt VK Gandhi VSM
Gen Sec IESM

Indian legal tangle a blast from the past

Why should the 50% of military recruits be given a special weightage? Should not all entrants into the DSS (Deputy Superintending Surveyor) be treated alike without being afforded a handicap in the race? We see no difficulty in upholding this weightage, once we accept the reality that the military portion of the Survey is a compelling factor for national defence. We hold, on a study of the materials already adverted to, that sans they army engineers the Survey of India will become a functional failure in discharging its paramount duties in times of war and in spells of peace, defence spreads beyond hot war or cold war and sustains the sense of security by a state of ever readiness. There is enough literature to establish that the work done by the army wing of the Survey is far too important to be played with and such work is best done by that wing. The military recruits, as has been already observed, are commissioned officers with 3 to 6 years of service. They have a certain salary scale and period of service when they are baptised into the Survey of India. Giving due weight to these factors, Rule 5 lays down the criteria for seniority as between the military sector of recruits and the civilian counter-parts. What needs to be appreciated is that for the very efficiency of the Survey of India, a substantial army element is structurally essential. Army engineers are invited into this Service not because this department historically belonged to the Defence Forces but because it cannot minister to one of the major objectives of its creation if it does not have engineers with military training, aptitude, courage, discipline and dare-devilry in hours of crisis. The necessity of the Survey, not opportunity to the armymen, has determined the need to attract and, therefore, to allot a quota in the upper echelons, viz., Class I, for military engineers. This, in turn, has desiderated the offer of reasonable terms and conditions for army men to join the Survey of India. The military engineers belong to the Corps of Engineers. They are commissioned officers with service of 3 to 6 years before coming into the Survey which needs, not raw engineers, but men with some experience. They have prospects and scales of pay in the Defence Department. Why should they look at the Survey if on entry they are to lose their commissioned service and begin the rat race with civilian freshers? Why should they suffer pay cut by walking into the Survey of India? It is, therefore, fairly intelligible and basically equitable to allow military engineers credit for commissioned service and protection of already earned higher salaries. The reasoning is simple. The functional compulsions of the Survey of India require army engineers to be inducted, say half its Class I strength. These engineering officers have to possess some years of experience. How, then, can they be attracted into the Survey except by assuring them what they were enjoying in their existing service, viz., credit for the years under commission in reckoning seniority and fitment of their salary at a point in the scale of Class I officers so that, by way of personal pay or otherwise, a cut may be obviated. This is not discrimination or favoured treatment but justice to those whom, of necessity, you want and must, therefore, pay what they were being paid in the Army and give service credit for the years on commission because you need men with specified years of commissioned service. To equate them with unequal civilian freshers is precisely the Procrustean exercise which is unconstitutional equality anathematised by Article 14."
Posted by Navdeep / Maj Navdeep Singh at 4:54 AM 16 comments

False statements are made by the Union of India by misleading their own counsel and then unethical appeals are filed if the case still goes against the Govt. The observations of the Hon’ble Supreme Court in Urban Improvement Trust Bikaner Vs Mohan Lal on 30 October 2009 were apt :

“It is a matter of concern that such frivolous and unjust litigation by governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers are brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected. This Court has repeatedly expressed the view that the governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice”

Even way back in 1973, the Hon’ble Supreme Court had this to say in Dilbagh Jarry Vs UOI while quoting the Kerala High Court :

“The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State’s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The lay-out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show-downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.”

That was 1973, this is 2010, but sadly, the story remains the same. Mr Moily, are you there???
Posted by Navdeep / Maj Navdeep Singh

PBOR denied justice: The endless litigation endures

Dear Brig Kamboj,
May I request you to put the following in "REPORT MY SIGNALS" blog to show to the readers apathy on the part of our serving officers and the COAS concerning PBOR:

"A Havildar filed a writ petition in 1990 in the Delhi High Court wherein he challenged the ACR of 1987 (wherein he was graded "High Average") on the ground that the same could not be considered for his promotion to Naib Subedar as he had not completed 90 days under the IO. The last five ACRs considered were of 1985, 1986, 1987, 1988 and 1989. In these five ACRs he had two "Above Average" and three "High Average" reports. In 1984 ACR as well as in 1990 ACR the Havildar had been graded "Above Average". San 1987 A.C.R. the Havildar met the criteria of "Three Above Average and Two High Average reports" in the last five years whether the 1984 or the 1990 report is considered.

In reply, with a view to prove that the NCO did put in 90 days under the I.O., the Record Officer forged the entry relating to the "Period of Service" under the I.O. and produced the ACR in the Court. However, the High Court found the entry relating the period of service under the I.O. had been tampered/ forged. The writ petition was admitted on this ground alone way back in 1990.

The writ was finally decided in November 2008 in favour of the NCO. The High Court held that the "period of service" in 1987 report was in fact tampered and struck down the 1987 ACR. The High Court directed the COAS and others to reconsider the Havildar for promotion to Naib Subedar in 1990 sans the 1987 report.

However, the COAS instead of considering either of 1984 or 1990 report (both "Above Average") chose to consider 1983 report (a "High Average Report") just to deny the promotion to the NCO! What will be the result? Another writ petition will have to be filed. This is how the Courts get flooded with avoidable litigation.

I ask myself a question "can an NCO afford to file yet another writ petition" and more importantly, the earlier case having taken 19 years to decide, can he wait or even live till he gets justice.

While we criticize the Government for its apathy, is there no apathy nearer home? Was the COAS not obliged to proceed against the forger of the ACR entry (Record Officer) and punish him for his misdemeanour? Was he not required to do justice by considering 1984 report? Why did he choose 1983 report when it did not fall within the "Last Five Years" by any standard? Was it just to deny a promotion to a poor Havildar? It is time we carry out introspection.
Lt Col MG Kapoor, Veteran
Practicing Law in Delhi High Court

Passing the Baton

Dear Friends,
In a few days, I will turn 68. Admiral Tahiliani, whose word I value, tells me that this is no age. But it is just two short of the "three scores and ten" prescribed by the holy Bible for us human beings. I also find that nearly one-third of my course mates are gone. In the last few months two of my contemporaries dropped like the ripe mangoes on the tree in the backyard of our house, without any notice at all. Even this would have made no difference to me, but an event occurred last week. It shook me.
I had gone to the dentist for some fillings. The waiting room was full, with no vacant seat. As I entered, I noticed a lady who resembled the mother of an officer who was my adjutant thirty years ago. While I was trying to place her, she got up and said, "Uncle, how are you?" And that was a body blow to my ego. Soon, some more people got up to make space for me. I got a chair to sit down, but my tooth ache turned into a heart ache. How I wish the Admiral was there to see my plight!
On my way back, I picked up a few books on "how to make your own Will" and within the next three days, I had learnt all that there is to know on this business of 'passing the baton'.
I then jotted down the points in the form of a paper which is attached for the benefit of those who may like to browse through it. It has been seen by three lawyers, including Maj Navdeep, and I have it on their authority that the paper has no technical errors. I plan to include it in a forthcoming book, and should you have any additional questions, do let me know.
With best wishes,
Maj Gen Surjit Singh (Retd)
Guide for making a Will

62 years for justice! Battling Pre- Independence Court Cases!

Time to restore people’s faith in the judiciary

THE TRIBUNE recently carried a report about the 62-year-old journey of a civil case. This is a sad commentary on Indian judiciary. Having originated in a sub-court at Coimbatore in Tamil Nadu in 1946, it travelled through several courts. This long journey for a suit that dealt with a minor issue is totally inexplicable. Surely, the delay could have been avoided if the courts — and the advocates — viewed the case from a human angle. It would be unfair to blame one particular court or judge for the malaise. But clearly, it was not handled properly right from the day it was filed in the Coimbatore court. It is always the poor litigants who face the brunt of slow dispensation of justice. For the rich, it matters less whether the case is disposed of expeditiously or not. What is the purpose of the judicial process if one does not have the guarantee of getting justice even in one’s lifetime?

Perhaps, in no other country do the wheels of justice move as slowly as in India. To be fair, though the first decree in this case came in October 1947, innumerable appeals in the Madras High Court challenging the decree contributed to the delay. The Supreme Court, too, cannot be absolved of the blame, because it remitted the matter back to the Coimbatore court in November 1986, i.e., 42 years after the suit was filed!

It is time effective measures were taken to speed up justice. Otherwise, people will lose faith in the judiciary. The plurality of appeals, the frequency and dilatory revisions and reviews can be avoided if the system is trimmed and there is an attitudinal change among all the stakeholders — judges, advocates and litigants. The Centre and the states should take a serious view of the entire legal system and implement the recommendations made by the Law Commission and the Malimath Committee for tackling the problem of mounting arrears. There is no use if these reports remain on paper. Sadly, a lot of time has been wasted to resolve a problem that undermines the legitimate rights of the litigants.

62 years for justice! Time to restore people’s faith in the judiciary

Comment: Tamilnadu holds the record for oldest court cases. The backlog is compounded by lawyers taking the litigants for a eternal ride and making them paupers enroute. Truly a sad state of affairs. Citizens indeed are silent torch bearers of Democracy.