Booklet for cf ja&r

Credits:

Members of the organizing committee: Rohit K. Singh (9868250545), Devvrat
(9811818730), D.Leena (9811137421),
Prashant Bhushan (9811164068), Indu
Prakash Singh (9313327669),

Reclaiming the judicial system in India: Background paper

Has the judiciary turned its back to poor?
A report of the seminar held on
4th November 2006 at
Indian Society for International Law : Compiled by D.Leena

Majesty of Justice
Article by Justice V.R.Krishna Iyer: ASIAN AGE

Contempt of court: need for a second look
Article by Justice Markandey Katju: THE HINDU

Comments of the Committee on Judicial
Accountability on the Judges
Enquiry Bill, 2006: Committee for Judicial Accountability

Right to information and the judiciary Prashant Bhushan

Has the philosophy of the supreme court
on public interest litigation changed in
the era of liberalisation? Prashant Bhushan

Campaign Support: see back cover

Printer: Printcraft (9891094240)

Cover and Layout: D.Leena

Published: Campaign for Judicial Accountability and
Reforms

Year: 2007, New Delhi

Address: 14, Supreme Enclave, Tower No. 2, Mayur
Vihar, Phase – 1, New Delhi 110 091

RECLAIMING THE JUDICIAL SYSTEM
IN INDIA
(Background paper for the National Convention on
restructuring the judicial system)

While the corporate media often lionises the judicial system as the only working
wing of the State and projects it as the only in stitution which stands in the way
of a government controlled by criminals, the vast majority of the country do not
see the judicial system as capable of providing any modicum of justice to them.
The system is totally inaccessible to the poor of the country, being so formal and
procedurally complex that it can only be accessed with the help of lawyers,
whom the poor cannot afford. Even those who can access it cannot hope to get
their disputes adjudicated within a reasonable time. The majority of undertrials
spend more time during trials than the maximum sentence that can be imposed
upon them. Even if they are out of jail during this time, the agony of defending
themselves during this long trial is more painful and taxing than serving the
sentence that could b e imposed. In fact, the agony of a trial through the judicial
system has become the easiest way for the police and powerful persons who can
have the police at their beck and call, to harass, intimidate and silence
inconvenient persons, especially political activists who are trying to change the
oppressive and exploitative system of the country.

Even if one can get one’s case decided by the court, the course of justice is often
perverted by corruption within the judiciary and indeed within the entire system
of administration of justice. The corruption within the judicial system is no less
than that of any other institution of the State, and is well known to those who
have had to deal with it. It is less visible because of the lack of any system of
accountability of the judiciary, and because the media is unwilling to talk about
it, due to the fear of contempt. The corruption within the judiciary is exacerbated
by the total lack of accountability of the judiciary in the present system. Not only
is there no system for disciplining corrupt judges (other than an unworkable
system of impeachment), the Supreme Court has by a self serving judgment
removed judges even from the ambit of criminal investigation. Thus one cannot
even register an FIR against a judge taking bribes openly without the prior
permission of the Chief Justice of India, which has never been given. The
judiciary protects its own very zealously.

On top of all this immunity to the judiciary is the power of contempt of Court,
which can be and has been used by the judiciary to stifle public criticism, or
even an honest evaluation of the judiciary. This threat of contempt has
prevented a frank discussion of the judiciary by the media, which is partly the
reason why there hasn’t been any serious public debate about the state of the
judiciary. And now the judiciary is even seeking to remove itself from the
purview of the Right to Information Act. After having loudly pronounced that the
citizens have a right to know everything that goes on in every public institution,
the Supreme Court asks the government to effectively exempt it from the purview
of the Act by removing the jurisdiction of the independent appellate authority,
the Central Information Commission over the Registrar of the Court. It was also
recommended that the Chief Justice should be the final word in deciding

1

whether any information about the Court should be given out or not. Most High
Court have not even appointed a public information officer under the Act, and
the Delhi High Court has framed rules which prohibits the release of non judicial
information about the court, such as purchases and appointments. All this has
ensured that the judiciary becomes a law unto itself, totally non transparent,
and accountable to none.

It is this complete in sulation from all accountability, which has led to a situation
where it can easily transgress its jurisdiction by interfering in matters of the
formation and implementation of executive policy. Under the cover of its
expansive interpretation of Article 21 (which by itself is not objectionable),
particularly the right to environment, the judiciary has been ordering the
removal of slums from the Yamuna Pushta, hawkers and rickshaw pullers from
the streets of Delhi, and has even directed the government to take up the highly
controversial project of interlinking of rivers. Sometimes these arbitrary powers
are being exercised against the wishes of the executive, but often in connivance
with the executive, allowing the executive to do what a democratically
accountable government dare not do, such as demolish the Yamuna Pushta
slums of Delhi or take up the project of interlinking of rivers.

The recent orders regarding the sealing of commercial establishments running in
residential areas in Delhi is another example of judicial high handedness.
Though it was well within the powers of the judiciary to stop the violation of the
Master plan, it could have ordered the government to consider altering the
masterplan just as they were ordering the sealing of commercial users.
Moreover, it was totally beyond the jurisdiction of the Courts to order the sealing
of properties even after the Master Plan had been amended to allow commercial
user in some areas, merely because they had been made to give affidavits earlier
that they would stop the commercial user by a certain date.

It is this lack of accountability which has allowed the judiciary to take decisions
which are against their declared creed regarding the rights of the poor and
trample upon their rights with such impunity. Thus, after having declared that
the Constitution guarantees every citizen the right to shelter and livelihood, the
courts have nonetheless ordered the homes of hundreds of thousands of slum
dwellers of Delhi and Bombay to be ruthlessly bulldozed, without providing them
with any alternative dwelling. They have also ordered hundreds of thousands of
hawkers and rickshaw pullers to be driven off the streets of Delhi and Mumbai,
thus depriving them of their livelihood, without making any alternative
arrangement for them. While this is partly due to the elitist background of the
judges and the impact of the new economic policies on their thinking, where
human rights have also been left to market forces, such wanton disregard for
basic constitutional values is also facilitated by the impunity engendered by this
total lack of accountability of the judiciary. For the poor therefore, the judiciary
like the police has become an instrument of oppression rather than an
institution for the protection of their rights. T hey have come to fear and hate the
judiciary almost as much as they fear and hate the police.

The ruling establishment, particularly successive law commissions have devoted
considerable thought to some of the problems which afflict the judiciary,
particularly to that of the lethargy of the system. However, not much thought

2

has been devoted to some of the other problems such as access of the poor to the
system or the elitist sensitivities and bias of the judges, or even to the issue of
judicial accountability. And the law commissions, manned as they have been,
largely by retired judges, have displayed their own establishmentarian and elitist
biases in their reports. They have therefore suggested patchwork solutions
rather than the radical restructuring of the judiciary that is required.

Though a radical recommendation of a five-fold increase in the number of judges
had been made to deal with the problem of delays, adequate thought has not
been devoted to simplifying the judicial procedures. Hardly any thought has
been given to reforming the system of appointing judges so as to make it more
transparent, fair and sensitive to the poor. The solution suggested for judicial
accountability has been a feeble in house system where sitting judges are
supposed to hold their own brothers to account. And in the unlikely event that
they hold their brother guilty, they again send the matter to Parliament for
considering the impeachment of the judge. This is one of those recommendations
of the Law Commission which is acceptable to both the government and the
judiciary, keeping the feeble accountability introduced within the judicial family.
The Judicial Council bill cleared by the Cabinet recently, seeks to give statutory
status to the “In house procedure” for inquiring into complaints against judges
which was adopted by a Chief Justices conference almost 10 years ago, but
which has hardly ever been used.

However the Law Commission’s recommendations made 20 years ago about a 5
fold increase in the number of judges have been gathering dust as are most of its
even somewhat radical recommendations. Neither the government nor the
judiciary has made any effort to have those adopted. The record of both the
executive and the judiciary regarding judicial reforms does not inspire any
confidence that they are serious about making the judicial system work. It
appears that both are content with the present non-functional and
unaccountable judicial system. And for good reason too. The judges are happy
with the total lack of accountability and impunity that they have in the system
and the government is happy with the non-functioning of an institution which
could hold them to account. The media hyped skirmishes that we see between
the judiciary and the executive mask a much bigger partnership between the
institutions, where they have teamed up together to do what they want with
impunity but also appropriate land and other resources from the poor and give
them away to large vested commercial interests.

It appears clear that unless there is a people’s movement and a popular
campaign for judicial reforms in general and judicial accountability in particular,
which puts pressure on the ruling establishment, they are not going to take any
serious steps to change the state of affairs. Unfortunately, so far, such a
campaign hasn’t taken shape, partly because the people and the media have
shied away from a critical examination of the judicial system, partly also because
of the fear of contempt.

However, with the judiciary becoming more and more powe rful and increasingly
arbitrary and anti poor, allowing the administration of justice to remain in the
hands of the elitist ruling establishment would be suicidal for the common
people of the country. Time is running out for all of us. The people need to take

3

charge and drive this campaign to reclaim the judicial system. Every citizen of
the country has a vital stake in the proper functioning of the judicial system.
Ignoring it will not only intensify the judiciary’s assault on the poor, it is the
path to anarchy. The rule of law cannot survive in the absence of a properly
functioning system for the administration of justice. The people need to reclaim
the judiciary by having it restructured in accordance with the needs of the
common people.

These considerations and concerns have prompted us to take this first step of
calling this National Convention on Judicial reforms. All people’s movements,
consumer organisations, and indeed all organisations and individuals working
on any issue of public interest are in vited to attend this 2 day convention. We
hope to initiate the discussion on all the above issues relating to the functioning
of the judicial system. We hope that this convention will kickstart the process of
forming a national campaign organisation and begin a national campaign on this
issue.

****

4

HAS THE JUDICIARY TURNED ITS BACK ON
THE POOR?
A Report on the Seminar
4 th November 2006
At
Indian Society for International Law
9, Bhagwan Dass Raod, New Delhi

A film by Ruzbeh N.Barucha – “yamuna gently weeps” was shown in the
beginning of the seminar. The film was very emotive and reflected the
trauma the oustees have undergone in Yamuna Pushta Demolition drive
ordered by the Delhi High Court in January 2004.

Welcome by Shri Prashant Bhushan,
Advocate, Supreme Court

However, it was a very powerful film as we saw just now. There was a time, not
so long ago, when the Supreme Court of India waxed eloquent about the
Fundamental right to life and liberty guaranteed by Article 21 of the Constitution
to include all that it takes to lead a decent and dignified life. They thus held that
the right to life includes the right to food, the right to employment and the right
to shelter: in other words, the right to all the necessities of life.

All that seems a distant dream now, given the recent role of the courts in not
just failing to protect the rights of the poor that they had themselves declared
not long ago, but in fact spearheading the massive assault on the poor,
particularly since the era of economic liberalisation. This is happening in case
after case, whether they are of the tribal oustees of the Narmada Dam, or the
urban slum dwellers whose homes were being ruthlessly bulldozed without
notice and without rehabilitation. Similarly, the hawkers of Delhi and Mumbai
have been evicted from the streets pursuant to the orders of the court.

Public Interest Litigation has been turned on its head. Roadside hawkers are
being evicted on the orders of the Courts. Rickshaw pullers have been directed
by the Delhi High Court to be removed from certain parts of Delhi, depriving
thousands of people of their livelihood, and thousands of others of a non-
polluting and convenient means of transport.

In cities like Delhi and Bombay, the poor no longer regard the judiciary as a
protector of their rights. It is being increasingly seen as an instrumentality of the
wealthy and influential sections of society, which is now being used in tandem
with other instrumentalities of the ruling elite, like the police, to deprive the poor
of whatever natural resources that they still have access to. The judiciary has
come to play an increasingly important role in the governance of the country and
its role affects everyone, even those who may not be accessing the courts for
their individual disputes. It is therefore important that there is informed public

5

discussion and debate on the recent role of the judiciary, particularly between
thinking citizens who work with the poor and the judges themselves. It is
important that the judges understand what responsible citizens are thinking
about the role of the courts and they in turn understand the viewpoint of the
judges. We invited sensitive judges to this forum but it does not seem to happen.

There is an immediate need to form a campaign and demand the accountability
of the judges in giving anti-poor judgments; there is also a need to ask for
constructive judicial reforms.

Inaugural Address by Justice J.S.Verma

It is important to begin from the infamous role of Supreme Court in A.D.M.
Jabalpur case during emergency, which let down the people. The judges who
were responsible for passing the judgment had put many of us in shame. It is
also a misconception to think that it was in Maneka Gandhi’s case in 1978 that
for the first time ‘fairness’ and ‘reasonable’ was incorporated in Article 14. It was
actually the judge Vivan Bose who in 1952 said that ‘fair justice’ and ‘reasonable’
is the requirement of Article 14.

We all have to make judges to do serious introspection and examine the merits.
In the recent past three news items caught my attention, which is seemingly
unrelated, but to my mind they ought to be integrated. One item was the
reporting on the high degree of pollution in Vapi in Gujarat. Then few days later,
another news report a judgment by a single judge of Gujarat High Court, which
not only dismissed a writ, which had allegation of pollution by an industry in
Vapi, but also imposed a penalty of Rs 48 lakhs on the petitioner. Even if the PIL
was motivated but still Rs 48 Lakhs as penalty in India is a huge amount.

In Law of Evidence, there are three things; proved, not proved and disproved. If it
is not proved then there is not enough evidence. Only when it is positively
disproved then one goes to the extent of judging against the petitioner. If this is
the case, then how many people would take the risk of filing a PIL and end –up
paying Rs. 48 lakhs.

The third news was the headlines in Hindustan Times, which says Gujarat
Muslims give up right to buy peace. It was very sad read this item, when I am
still waiting for a culmination of the Gujarat communal violence case in which I
was initially involved. If they give up their rights to buy peace it is the worst
thing.

The Directive Principles of State Policy in Article 37 was merely brought s o that
people do not directly bring the writ to the court. But this is what the Supreme
Court did; it read Directive Principles of State Policy into the fundamental rights
so to enlarge the scope.

Well, one of the focuses of today’s meeting is displacement of slum dwellers. The
film also mentioned about Akshardham Temple. Every time I pass Nizamuddin
Bridge especially at night, I am so upset seeing such a well-lit temple. Where is
the distributive justice that we have promised in the Directive Principles of State

6

Policy? Article 37 says these are fundamental principles in governance, which
the legislative and the executive have to keep in mind while making laws. The
judiciary should also keep those in mind for the purpose of interpreting the laws.

Likewise, one would not consider right to food, health not merely as the right to
get some food, but the right to be free from hunger, if directive principles are not
read into it. The right to adequate means of livelihood in Article 39 is an
obligation of the state which compels state to ensure that everyone is able to
have adequate means of livelihood. So that one is empowered enough not to
depend on someone else’s charity to get food, that is our concept for a welfare
state and of distributive justice.

The area occupied by the displaced families is not more than the area occupied
by the Common Wealth Games or the Akshardham Temple. There is elite
population, having more than one houses and have been allotted more houses in
the same area. Governments make these discretionary allotments and courts
upheld it. Olga Tellis, twenty years back, had held the right to shelter as a
human right, right to development a basic human right and right to adequate
means of livelihood as envisaged in Article 39. The rights in all the international
covenants are included in Article 14 and 21. These are the things, which
judiciary has done earlier and if the judiciary is reversing this approach , then it
is a matter of serious concern more for those who are in the judiciary.

There should be greater public awareness and the people should have
participatory role in governance. That’s what democracy is all about. People’s
role is not merely to vote at sporadic elections but to monitor constantly the
performance of all institutions including the judiciary. Judicial Accountability
includes all these things. There is considerable rather almost total lack of any
effort at fair criticism of the judgments and role of judiciary.

There is a ‘law quarterly review’, which reviews the modern judgments, which
could help the judges to do self-introspection, but most of the articles written by
the advocates are to please the judges. We need to write articles which should
objectively analyze judgments and render a fair view.

According to me, the misuse of the contempt power is something, which erodes
the credibility of the judiciary most. Even before the Act was amended, truth
should be a permissible defense. People, who don’t want to say something, take
the pretext of the contempt of court but we s hould remove this misapprehension
by encouraging honest criticism.

The cause of the migration towards urban areas is related to lack of good
governance. The standard of education in Delhi is much higher and most
development happens in Delhi. So anyone who can afford comes here while
those who cannot afford comes and lives in slums.

If we strictly speak on legal terms then we have the law of Adverse Possession.
Wherein a person occupying a piece of land for more than 12 years (against
private citizen) and 60 years (against the govt.) which is now for 30 years, will
have to be made owner of the land. When these provisions have legally

7

empowered the occupier of a particular land that the state should not be evicting
inhabitants living on the land for more then 30 years.

In Pannalal’s case justice Vivan Bose delivered a good judgment on Adverse
Possession, which was reported in AIR 1937, Nagpur. The judgment raised that
under the Specific Relief Act, possession alone is sufficient to sue for restoration
of possession of a displaced, when the suit is brought within 6 months.

This shows that a person living for a long time cannot be uprooted. While
making orders, the courts must read Article 21 with Article 39. So thank you
very much for inviting me, I have spoken with as much reserve as I am capable
of.

Session I: Impact of Recent Court Judgements on Labour
Chair: Baba Adhav

Presentation by Prem Krishan Sharma

After independence, the concept of social justice was introduced and the labour
law developed more as a judgment law. There were various laws but with the
intervention of judiciary, the labour law was moving in a progressive direction.
The issues concerning the labour matters such as wage, minimum wage, fair
wage, employment security, social security, etc. were initiated, right from the
Express Newspaper’s case.

Between 1970 and 1980, the definition of industry was widened; employment
security was given to workman as a right. The right to get the back wages if the
dismissal of the workman was found to be unjustified, and the worker’s right to
strike was declared as legitimate weapon for collective bargaining. Till 1980’s,
the labour laws were developed to suit the interest of working class. But now the
recent judgements show that the judiciary has taken a U-turn.

In the SAIL case, the courts denied the workman the right of permanent
employment while in the famous Tamil Nadu case, the right to strike was called
morally and legally incorrect. Earlier a lawyer could successfully argue in the
courts that by striking, a workman do not lose his right of employment. But with
UP State Corporation case, it has been laid down that if the workman continues
to be on strike then the employer can declare that he has voluntarily abandoned
his services.

Since 1968, the burden of proof was on the party filing case against the worker.
But in Municipal Corporation Faridabad’s case, the burden of proof has been
cast on the worker. If the worker was retrenched, still he has to prove that he
worked for 240 days, while the attendance records are with the employer. In
recent case of Uma Devi, the court remarked that the worker does not have any
right to service even if he worked for 10 - 20 years as millions are waiting for
employment.

8

When it is declared that by striking a workman can lose his job, the right to
protest is lost. It is futile for the working class to fight at individual level, it can
only assert through collective bargaining. The strike is the most peaceful way to
assert. The right to work includes the right to not to work but when that right is
denied, as a consequence of losing job, the workers can’t strike.

After centuries of struggle, the working class got some security of employment
and the right for fair opportunity and enquiry but it has been nullified. The
worker was given the opportunity of fair hearing before he is thrown out even if it
had its own limitations. In Guzari Steel’s case, it was held that in case of the
dispute between the management and the worker, the management could prove
the worker guilty, the order of dismissal will be from the date when labour court
has passed the order and will not date back to the earlier order of dismissal by
management. But now in the recent Punjab National case, it has been laid down
that if the charge is proved against the worker in the labour court then the order
will date back to the day of dismissal by the management.

What is the practical impact of this decision? An employer can hire and fire any
workman any time without any e nquiry and without any opportunity of hearing.
And if the workman raises an industrial dispute, it takes 2 -3 years for the case
to get referred to the labour court. For instance, in Rajasthan even if the
workman goes directly to the labour court, he has to prove whether he was an
employee in the industry, which takes years. After that the management will
come into picture and defend itself.

The Supreme Court in one of the recent judgements stated that the management
is the best judge to decide about the conduct of an employee and such decision
should not be made subject to judicial review. It is only in the condition when
the judge becomes suspicious of the role of management that the judicial review
comes into play but it is never practiced. It is clear that the Magna Carta created
is for the employer not for the workman. According to Justice S. B. Sinha in U.P
Brass case, the interpretation of labour laws, in this changed scenario of
privatisation and globalisation, cannot be the same as it was in 80’s.

During 70s and 80s, the success rate was 95 percent in the labour courts and
the Rajasthan High Court. It was not necessary that the worker always got the
relief but the judgements were upheld by High Courts and even Supreme Court
in favour of the worker. But gradually after 90’s the success rate has dropped to
5 percent.

Earlier when the judiciary was in support of the working class, it was not due to
its pro-working class stand or greater understanding of socialism, as was in the
case of E.M.S Namboodaripad. In fact, in those days the bourgeoisie and the
ruling class were in need of the working class. But today the trade unions
movements have became scattered and weak. The trade unions leaders are
dependent on judicial decisions than taking the movement forward.

As a trade unionist, I feel that instead of struggling with the workers on the
streets, most of our time was spent in the courts. It was nothing but betrayal of
working class movement. Today’s judgements have defied all employment
security, and the right to strike. The positive impact was that we must come out

9

of the illusion that the judicial system can help the struggle of working class.
Judiciary is nothing but a tool in the hands of ruling classes. E.M.S.
Namboodaripad had said this and was punished. In this age of privatisation and
globalisation, we cannot implement labour laws in its true sense. We need to
hasten the process of coming out of this illusion and struggle with the working
class.

Dr. Baba Adhav
Hammal Panchayat, Pune

7% of the total work force is organized labour while 93% is unorganized with no
law to protect them. Supreme Court in Madras case denied workers the right to
strike but the doctors’ strike was termed legal. This shows what is governing the
psychology of the judiciary. We are untouchables here. For these 93% of the
workforce we demanded social security laws, which are pending since 2002.
MP’s Salary bill and the 6th pay commission were passed within 24 hours.
Ravinder Verma Commission worked on the umbrella legislation for 37 crore
unorganized sector workers which includes social security, insurance,
compensation at the time of accident and pension. Both Sonia Gandhi and
Manmohan Singh have given passing comment on the bill inspite of the fact the
Common Minimum Programme has felt the need of this bill. Most of the
countries like US and China have Social security laws in place.

People of our country want some sort of security and self-respect. For instance,
when women waste pickers took out a rally on 15 th August, they demanded
Sharad Pawar (then Chief Minister) that they have not come for flag hoisting
ceremony but want to highlight the issue of sexual abuse by police when they go
for waste picking in the morning.

The government tries to find way to keep the Bill at bay; Chidamdram said that
the government has no funds for it. It is also necessary to learn from Mathadhi
Protection Act in Maharashtra, where a collie have got provident fund, bonus,
gratuity without taxing on anyone. So there is a lack of political will. Supreme
Court has repetitively ignored Constitutional right to livelihood, so where will the
working class go.

Discussion:

Com. Kelkar: 80% workers in Pune are contractual, they are modern –day
bonded labour. Supreme Court, while passing anti-worker orders has never
addressed contractual labour issue. Attempts have been made to reduce
permanent workers by voluntary retirement schemes, which is also a systematic
attack on the working class. It has turned the working class into slavery with no
right what so ever. Employer can do and undo whatever he wants.

Question: The sudden change as Sharmaji referred is due to over protection
given by judiciary for a long time or due to lack of interpretation of the
constitutional or legal provisions or is it d ue to the globalisation, liberalisations?

Prem Krishan Sharma’s Reply: The Bangalore Suraj case, which widened the
definition of industry, has done more harm than benefit. Earlier, High Courts

10

were giving certain relief to the workers, but now widening the definition, all
cases has to go to labour courts. The change is due to the political thinking,
earlier the ruling class was in need of the working class’s support. Now they are
in need of the support of private industries.

Baba Adhav’s reply: Earlier the courts used to talk about their socialist
viewpoint, but now they are dictated by Liberalisation, Privatisation and
Globalisation.

Lalit Batra: It seems there is no relation between the organized and the
unorganized sector. The representation of the Central Trade Unions has been
token while talking about a social security comprehensive legislation for 37 crore
workers. When NPMO was formed by central trade unions, there were 2 rallies in
Delhi with more than 2 lakh people participating. But they have never shown
their strength to support the unorganized sector. Is it possible to bring these two
sectors together? We should also look into the conspiracy of the government, as
2nd labour commission attacked the organized sector, it is proposing the social
security for the unorganized sector workers.

Prem Krishan Sharma’s reply: Very well, the attempts should be made to bring
together these two sectors.

Baba Adhav’s reply: Attempts have been already made. There has been two
meetings where the central tra de unions have come together and as far as NGOs
are considered, talks to involve them is on.

Dunu Roy: Question to Sharmaji is that when he said that instead of struggling
in the street with the workers, they were struggling in the court rooms, which
according to him was a betrayal to the working class movement. Isn’t it that the
unorganized sector bill will be second betrayal?

Prem Krishan Sharma’s reply: The presentation showed the interpretations of
judiciary. If the implementation policies of laws will be the same, then nothing
will change. But if new concepts are devised then things will be different.

Prashant Bhushan: As the government wanted to climb to the next level of
economic reforms, the concept of liberalisation, privatisation and globalisation
was debated in formulating labour reforms. But politically, the left parties have
obstructed to these reforms, so the State had to get all these things done
through judicial interventions, which would not damage their political credibility.
The concept of Special Economic Zone was introduced as only way to bring in
contractual labour and revive the industries. SEZs have labour flexibility, with
many provisions of the Industrial Dispute Act, Contract Labour Laws and many
other labour friendly laws not be en applicable. According to Section 49 of SEZ
Act, the Central Government by notification can exempt any or all SEZs from the
operations of any or all laws. This is totally unconstitutional for excessive
delegation. The court should take the issue suo-moto and should squash such
an Act. The SEZ has become a new weapon to finish the labour protection laws.

11

Prem Krishan Sharma’s reply: In China in 1984, there were 18 SEZ, but they
have not removed labour protection laws from these zones. So if our country is
following China, it should do it entirely.

Session II: The Impact of recent court the judgements
on the rural poor
Chair: Miloon Kothari

Presentation by Prof. Babu Mathew
Country Director Action Aid International-India

This debate is quite crucial, which is reminiscent of what happened with
judiciary during the period when India was trying to abolish Zamindari system
and introduce land reforms. While reflecting on the judiciary and its impact on
the rural poor, the most popular analysis is the class analysis but one should
not confine to it alone, one should also consider caste analysis. We must also
remember the indigenous people. (They do not like to be called ‘Adivasi’ or
‘Tribal’ in the North-East and perhaps the expression ‘indigenous people ’ is more
appropriate). Our general experience in civil society process is a tremendous
reluctance to identify Muslims as a group of people who are also among the rural
poor. The fisher folk, weavers, etc are the most backward communities in India.

The figures show that together this section constitutes more than half of India’s
population. So what we are witnessing today is displacement of unprecedented
nature, one is at the level of scale and the other is that it is encompassing every
single segment of the excluded. There is a tremendous relationship between the
growth model and the model which has been imported since June 1991.That
growth model is tremendously volatile and it seems the higher the growth rate is,
the more would be the destruction of live lihood.

According to one of the best economists Prof. Deepak Nair’s recent analysis,
there was virtually no growth during the 1 st phase of imperialism in India and it
begins during the 2 nd phase. Obviously that raises a number of questions but it
is important to note that a kind of a structural breakthrough vis-à-vis the
growth which is only after independence.

Prof. Nair’s analysis shows that it is not that the post-new economic policy
period which witnessed the highest growth but in fact it begins in 1980’s itself.
We are talking of a GDP of 5.9% and the government is talking of 8% and 10%.
What is important here is to see the relationship between this growth model and
displacement and the destruction of livelihood.

If we think about the displacement and destruction then the indigenous people
are worst affected. For instance, in the North East there are 168 new dams
planned, and in Andhra Pradesh 40 new dams. In terms of the mineral wealth
extraction as in Orissa, Jharkhand, and Chhatisgarh, the affected population in
the region is of 70 million. Dalits, which is about 170 million, have been
agricultural labourers, there is massive displacement due to privatisation and
modernisation of agriculture. With fisher folks, it’s disaster capitalism as what

12

ne o-liberalism could not enter before Tsunami but was able to do it after
Tsunami. So capitalism now waits for a disaster to penetrate even that segment
of the economy. This has completely destroyed the livelihood of the fisher folk
through modernisation of the ports, fishing sector, and introduction of tourism
industry. It has destroyed their right to traditional habitat and efforts are going
on in a big way aided by the World Bank, Asian Development Bank, etc.

As regards the Muslims, tremendous destruction of their artisanal occupation
has occurred. A study conducted with the Indian Social Institute reveals that
there plight is as bad as that of Dalits and Adivasis. In the context of urban poor
the pauperisation process, is the accumulated result of what is happening in
other sectors. For those who are somehow living in slum areas have to undergo
the urban reform process which has been unleashed in sixty cities to destroy
their human rights to housing ad livelihood. Finally, the peasantry , which has
suffere d not only because of the agrarian crisis, but also due to the Special
Economic Zones.

The kind of protection, which was enjoyed in the past, could have come through
constitutional provision or through statutes or through budgetary allocations.
While the judiciary could only subvert the systematic remedy (such as 5 th & 6 th
Schedule) it will be more generous if it is a safety net package.

The excluded population may be broadly put into three models.

1. Model A: This is a situation where the Indian State p rovided an alternate
paradigm to co-exist with the dominant paradigm through a
constitutional arrangement. It was semi permanent arrangement such as
the fifth and the sixth schedule or legislation.
2. Model B: It is situation where the dominant paradigm accommodated
transitional paradigm, through reservations.
3. Model C: It is the present situation where the dominant paradigm will
exclude and destroy all other paradigms.

Professor Upendra Bakshi says that the judiciary is now structurally adjusted.

Through the protection of Civil Rights Act, Dalits had enjoyed some rights. But
judiciary discovered a new category called ‘Insult Simpliciter’ in Phool Singh Vs
State of Madhya Pradesh, wherein the Dalits will no longer have the protection of
Civil Rights Act. M ethods to water down not only social, economic and cultural
rights but also even civil and political right were sought. Simultaneously, in case
of tribal, the Samata judgement has been diluted further through the
Godavaram process.

It is also important to understand that the judiciary, legislature and executive
are hand in glove, which makes sure that the excluded suffer. The situation
today is, when the executive attempts to give protection then the legislature will
undo it and vice-a-versa, so it is necessary to understand the correlation.

During the earlier era, the ninth schedule, which is been debated now, was
necessary to protect land reform legislations due to the presence of the self-
reliance approach. In the present era, when the liberalisationprocess has seeped

13

in, what are we going to really protect using the 9 th schedule? The Government
in power knows that they will pay a prize if they blatantly follow anti -poor stand.
Today, democracy is the only instrument to give some kind of protection, w hile
the neo-liberalism will get even more pro-n e o-liberal judges and of lesser quality
also. So that’s the kind of a crisis in which we are.

The expression used by jurists as the foundation of the society is ‘grundnorm’.
So if we have to see the Constitution of India, today, as the grundnorm, then the
elites in India would like to see this grundnorm over thrown. When Chief Justice
or the Prime Minister or the President is sworn to uphold the Constitution, it
means that the Constitution still offers hope for the poor. But still the poor has
to make sure that the Constitution of India remains alive and retained. It need
not be that it can be achieved by Public Interest Litigations but it will be retained
by building a new political bloc. A new political bloc should include the
marginalized working class, the organized and the unorganized with the
professionals and the organic intelligentsia. This is a big challenge that awaits
us.

Session III - Impact of Recent Judgements on Urban Poor
Chair: Miloon Kothari

Presentation by Prashant Bhushan

One broad category of urban poor is the slum dwellers living in unorganized
housing sector, having occupation of street vendors, rickshaw pullers, etc. This
is the section, which has suffered the maximum onslaught of judicial decision in
the recent past.

The earlier paradigm laid down in a number of judgments of the Supreme Court
such as Chameli Singh case, PUDR judgment relating to the Asiad workers,
which stated that the right to live with dignity is the part of the right to life,
which includes right to shelter, right to food, water, health care, education. In
Chameli Singh case, it was categorically said that every citizen of this country
has a fundamental right to shelter and it is the o bligation of the state to provide
shelter to those who do not have. It also becomes the responsibility of the
judiciary, as an institution to enforce the rights of the people, to take note of the
situation of homelessness and suo-moto try to find out ways in which the
problem of homelessness be addressed. Instead, PILs filed to defend these rights
have been put in cold storage such as was the case filed by Aashray Adhikar
Abhiyan about four years ago.

To add to it, Delhi High Court has been ordering removal of slum dwellers from
the Yamuna Pushta on the ground of alleged pollution or on issue of
encroachment of public land. Instead of helping the people, what we saw in a
case filed on behalf of National Alliance of People’s Movement, which prayed to
get basic civic amenities to the slum dwellers, the court adjourned the matter for
many years. But in the petition filed by middle class colonies asking for the
eviction of slum-dwellers whether on Yamuna Pushta or near their middle class

14

colonies, the courts have ordered their removal without providing for any
alternative place, bypassing the relocation policy.

It is necessary to examine the ideology and sensitivity of the judges towards
these kinds of issues of the urban poor. Existing judiciary with a close system of
appointment will appoint more neo-liberal judges, which is seriously due to lack
of judicial accountability. First they appropriate the power of appointment to
themselves, and then pass self-serving judgment as in Vira Swami’s case, which
ruled that an FIR couldn’t be lodged against a judge without the consent of the
Chief Justice of India. So this is a catch 22 situation.

I am only emphasizing to say that judiciary has become embolden to pass these
kind of judgments with impunity. It is because they enjoy immunity from any
kind of scrutiny whatsoever wherein no disciplinary action is taken against
them.

Miloon Kothari’s address

It is quite clear from both presentations that there has been a massive failure on
part of the judiciary. It is true that the basic human rights principles as
enshrined in various UN conventions and covenants with regard to the displaced
population have not been respected. While the very basic Human Rights
principle is of protection of the rights of the most vulnerable has been violated,
but it has moved into a direction where there is an assault on the poor and
criminalisation of the poor.

Discussion

Ramit Basu from United Nation Development Programme.

While examining the performance of the parliament, the judiciary, the executive
and local self-governance, on the rights perspective, we believe it is important to
strengthen the governance structure. We should lessen the need to go to judicial
redressal. If we look into the Supreme Court observations with regard to hunger
deaths from1998 to 2001, where, there has been gross violation of the
implementation of scheme which did not reach the poorest of the poor. When the
budget distribution systems have failed, FCI have failed; why can not we make
the judiciary ensure that people get food? why can not the Supreme Court also
take suo-moto case and dispense a pro -poor judgement on the basis of the
newspaper reports?

Babu Mathew’s reply
That every judge has his own ideology, there is no neutral judge. So from where
the judge derives this ideology, it is from contemporary society, with neo-liberal
influences. So the judges are no longer upholding the Constitution beyond the
legislature and the executive and the overall mode is the neo-liberal mode.

15

Sucharita from Lok Raj Sangathan:

Prof. Babu talked about the relationship between the executive, the legislative
and the judiciary, while Prashant said the judiciary seems to have lost its
conscience. It makes us ponder that what dictates their conscience, is it the big
monopolies or the SEZs? Moreover, working class have been giving vital
contribution to the economy, to the industry, to the transport and to every thing
that makes the city work. Calling them ‘pick pockets’ or giving them anti-social
labels and criminalisation of the poor needs to be highlighted. Can the city really
function without all of these services? The land use has been violated numerous
times when the State needs to build commercial structures or Akshardhams.
But it is called violation of Master Plan when the traders, small shopkeepers or
slum dwellers want it as their right and are named as illegal occupants. In Okhla
Industrial Area, when the industries were setting up, they allowed the slums to
develop, as they wanted cheap labour. And today, when Okhla is developed these
slums are called encroachers. We need a united platform of all affected sections,
to assert our right to life.

Biju Lal from Indian Social Institute

Are we following Constitution of India or Manusmriti? In several places in India
one can see that Manusmriti in practice, which says that the so called lower
caste people should not own any other things than dogs and donkeys. And if
they own a cow, then they will have livelihood. The Indian judicial system should
be fundamentally reviewed and the processes should involve people who are
actually excluded. The BJP government had tried to revise the whole
Constitution in a very bad way, negating the livelihood rights of the people.

Indu Prakash Singh from Action Aid India

The biggest challenge today in the country is judiciary. I would like to ask is
there any judicial norms, can a sitting judge in full court room call people pick
pockets, cheats, robbers, etc. Is there any basic ethics, which forms the part of
judiciary? Even the parliament is scared of taking judiciary by its own; they are
scared of the contempt against them. Why shouldn’t there be contempt of
constitution against the judiciary? Prashant has mentioned about the Vasant
Kunj Mall issue, which has been approved and cleared. At the same time we
have Bhatti Mines on the ridge where 25000 people are living for last 30 years.
But it has been issued notices of eviction. The elite are spared, the poor are
prosecuted. Then there is the issue of relocation of the slum dwellers who have
been given plots 45 – 50 kms away from the city and on the basis of licenses of 5
–10 years. The fear of eviction is always hanging. The preamble of the
Constitution says that we the people of India give ourselves to this Constitution.
But now it has become ‘we’ the judges of India have given this constitution to the
country and its people and ‘we’ are the vanguards of this country.

Swami Agnivesh

We should criticise the judiciary but at the same time we should not absolve the
executive and the bureaucracy, they are the real perpetrators. Who is taking

16

decision to throw people out of the slums, it’s the government and judiciary is
only stamping it. Our Prime Minister sent his minister to Narmada but did not
give cognizance to the report. It was ju diciary which asked the Prime Minister to
intervene but in vain. We have no expectations from the parliamentarians. In the
bonded labour case, during the demonstration Madhu Dandvate asked us to
stop the protest and assured to resolve the issue. But the police lathicharged the
workers and killed 12 workers. Police illegally took thumb impressions of
workers and fabricated against us. No hearing was given in the Supreme Court.
Justice Bhagwati the then chief justice reserved the judgement. We planned a
prote st, which was published in newspapers and immediately Upendra Bakshi
called up a meeting with P.N.Haskar, Nikhil Chakravarti at Justice Desai’s house
and then Justice Bhagwati was made to give the judgement during vacation.

Prashant Bhushan’s reply

We can’t say that all judges have lost all their conscience, but it depends not
only on the external milieu, but also the external constraints and accountability
of that judge. If you remove all accountability from judges which is what has
happened today the n you will have a situation where even conscience will slowly
diminish. Sucharita had said that judiciary has assumed the role of the
legislature and the executive but while interpreting the constitution if the judges
start misusing their powers, then noth ing is above them. In fact the
interpretation of article 21 can be easily misused. They are governed by their
own predilections, if they find that interlinking of rivers is beneficial, they still
can’t order for implementation. Judiciary has no reason to dictate to make
amendments, while they should intervene and ask the authorities to follow due
process. The arrogance of power has inherently corrupted their thinking and
made them not just arrogant, but also insensitive.

Therefore, even though the judiciary is an important institution of the state and
has the potential of enforcing the rule of law and protecting the fundamental
rights of people, etc. But this does not mean that the judiciary should not be
criticised or should not be made accountable. The point Indu raised is also an
aspect of accountability. After insulating themselves from accountability, the
judges are resisting National Judicial Commission. They have recommended
amendment to the Right to Information Act suggesting that if the Chief Justice
orders that certain information cannot be given then nobody can question.

So the Campaign need to debate about the kind of accountability, question the
provision of contempt of court, implementation of the Right to Information Act.
And save the judiciary from getting lost.

Babu Mathew’s reply

We must destroy that very process which feels that the judiciary is infallible. The
Constitution of the country is supreme so it is important to have accountable
and healthy judiciary. Today when there is hegemony of neo-liberalism, our job
is to build counter hegemony, which can be done by attacking all institutions.
The doctrine of separation of powers was invented to make sure that we do not

17

have a tyrannical institution with all powers vested in it. One of the tasks of this
platform would be to restrain judiciary from becoming some such tyrant.

Miloon Kothari

It is a very good beginning and the strategies on holding the judges accountable
should be explored along with appeals to international forums. One of the
preconditions of these appeals is to exhaust local remedies, which we have
already exhausted. A collective submission from all the groups in this forum can
be addressed to the United Nations Human Rights Council and to the High
Commissioner for Human Rights. The international community has high
admiration for the Indian courts.

Session IV - Changing Trends in Public Interest Litigation
Chair: Swami Agnivesh

Presentation by Sanjay Parikh

It is important to discuss about t reasons for developing a tool like Public
he
Interest Litigation and how it has transformed recently. While criticizing
judiciary one must not forget about the executive inactions of last ten years and
the recent laws passed by the legislature. It is necessary to substantiate by two
examples, one is aquaculture case which permitted the multinational
corporations to have their aquaculture activities at the cost of the traditional
fishermen. The second was the case on Electoral Reform wherein it was
mandatory for the candidate to give declaration of assets, immediately an
ordinance was brought in.

When the PILs were getting developed, it was an understanding that the job of
the courts is not to work to interpret the laws but also make the States carry
their executive actions. Even the limited understanding of judiciary review
cannot provide justice to what constitutes the social wrong, they are wrong to
the general public; there may be perpetuation of illegalities and executive
accesses, either on an individual or on the society as a whole. The failure to
perform public duty should not go unchecked and should not promote
disrespect for the rule of law.

As the purpose of the concept of Public Interest Litigation was to make the
constitutional rights of the deprived sections meaningful. In the meantime,
courts have evolved their own guidelines and principles for entertaining Public
Interest Litigation. It is also true that individuals or institutions have done a
great service to the people by addressing the issues concerning the rights of
women, civil liberties, custodial deaths, environment, public health and the
courts have given bold and far reaching judgements on some of these issues.

At this juncture, it is pertinent to see globalisation which has the po tential to
wipe away the social, economic, and cultural rights of the people and nullify the

18

Constitution and democracy. What role the courts will have to play within the
constitutional parameters? Can the courts simply brush aside the decisions,
widely affecting the rights of the people? There cannot be any just or fair reason
to depart from the march of Public Interest Litigations towards achieving
equality. The debate can only be about the controlling mechanism and how to
prevent its abuse, but the abuse of it by busy-bodies or persons with self serving
interest cannot give any justification to depart from PIL jurisdiction.

On one hand the court has taken the right to food seriously, but on the other
took away the benefit of employment or the source of livelihood from contract
labours, daily wagers and even individual workers seeking reinstatement.
Similarly, on the one hand protection of environment, forest reserves has been
taken up vigorously, but in the name of development construction of hotels and
residential apartments has been permitted in sensitive areas, big hydel projects
have been allowed by saying that precautionary principle does not apply to
them.

While the industries were polluting the river Yamuna in the name of
environment protection, people living in the slums have been asked to shift
without realizing that there is a deep-rooted problem of migration. The state’s
obligation to protect the life and livelihood is not meant only for haves, but also
for have-nots.

Corruption impedes deve lopment and infringes on human rights in various
processes of empowerment. It is realized that electoral reforms alone can bring in
true democracy to free and fair elections. But the political parties, have
completely eroded the democratic values of the constitution, resulting in money
and muscle power of the ruling class.

For centuries the agriculture farmers had complete control over seeds,
agricultural operations, etc, but it is not there today. The Breeders’ Acts, Seed
Act have been amended and Protection of the Plant Varieties and Farmer’s
Rights Act 2001 has been introduced. These provisions have forced the farmers
to shift from their traditional breeders’ rights. International law has become
relevant while determining the legal and constitutional rights including of the
people of our country. For example, through the intervention of the courts the
patents of Basmati rice was retained by India.

Swamiji pointed out that there are very few advocates left to file the Public
Interest Litigation. There is no doubt that the executive negligence in action and
violation, corruption and political life and the legislatures has brought enormous
pressure on the court. It is indeed a testing time not to give up but to fight with
knowledge and conviction.

Shanti Bhushan ji
Senior Advocate, Supreme Court of India

Parikh has shown as to how this principle has evolved over the years and why
Public Interest Litigation was conceived. The judges conceived it in 70’s and 80’s

19

with an objective that rule of law requires, the rights of the downtrodden, human
rights and legal rights, to be enforced as the poor were not able to come to the
courts to enforce their individual or collective rights. Thus, PIL was devised as
machinery.
Those were the days when we had judges like justice Krishna Iyer, justice
Chinnappa Reddy, justice Bhagwati, etc. Since the tone of Supreme Court has
changed this also determines the tone of the High Courts. The Supreme Court,
some years back, ruled that no commercial activity in the residential area be
permitted according to Master Plan of Delhi. There could have been two
approaches to deal with this case - one where courts have blatantly stopped the
commercial activity and rendered lakhs jobless and the other is to direct the
government to amend the Master Plan according to the needs of this population.
If the Supreme Court would have consisted of elected judges who were
dependent on the votes of the people, they would have preferred the later
approach. The concept of democracy depends on votes; the constitution gave
power to the votes only so that the interest of the poor could be protected.
Why has this change come out in the judiciary, it’s because sometimes people in
a high position including those in the judiciary think that they are the ru lers and
the people are their subjects. So, they have only replaced the Britishers.
Pre-1993 era, the judges were appointed by the government that was answerable
to the elected house committed to the social cause. But in 1993, a nine-judge
bench of the Su preme Court gave a judgment, which took away this power from
the executive and giving independent power to a collegium of five judges to do
the appointments of new judges. Today, the judiciary itself has appropriated this
power. Even in the U.S, Supreme Co urt judge cannot be appointed unless he
appears before the senate committee and the president. The situation of
appointments in India is such that the Supreme Court judges would themselves
decide to appoint some like-minded judges who are away from the soc ial
philosophy and reality of India. The judges belong to the most affluent class who
has never acquainted themselves with the pain and suffering of the working
people. This is also one of the reasons why the Public Interest Litigation concept
has taken ba ck stage.
Now the PILs filed by the affluent sections are allowed and immediate orders for
the removal of slum dwellers are passed. Now the need of the hour is reforms
within judicial appointments, the campaign should demand a separate body
where people have power of selecting judges. If the campaign will be able to
achieve that I think there would again be a reversal in the principles of public
interest litigation.

Anuradha from Hazard Center.
Whether public interest is defined in any Act or Statute. Or is it a total discretion
of judges to decide what constitutes public interest.

Shantibhushan ji
Public interest is not defined anywhere, it depends largely on the discretion of
the judiciary. That is why it is necessary that the social philosophy of the judge
concerned must be on the right track. He must feel that public interest means

20

the public interest which is the interest of the voiceless and the downtrodden
masses who are suffering from centuries of oppression.

Siddharth from Pune University
The idea of the Supreme Court to hire the judges would have only occurred
perhaps to remove the influence of the legislature. Hence, the mechanism was to
bring about the judiciary to be independent in itself. Now, decade later it seems
that judiciary itself have gone on an absolute power mode. So in a sense one
could say the judiciary may not be corrupt, but the judiciary has become
autocratic.

Shanti Bhushanji’s reply
Today, we are talking about the corruption among the politician but a few years
back the si tting Chief Justice of India, justice Barucha declared that atleast 20%
judges in higher judiciary were corrupt. When I joined practice in 1948, it was
impossible to think that a judge could be corrupt. Under the code of criminal
procedure, if a person has committed a crime and a FIR is lodged than the police
should make investigation. But in case of corruption in judiciary which is clear
from the Vera Swami case in 1990. Vera Swami was chief justice of Madras High
Court and cash worth lakhs was recovered; the explanation given was that the
chief justice’s wife was carrying on diary business. When the matter came to the
Supreme Court, it laid down a new principle to maintain the independence of the
judiciary, that an FIR for any offence cannot be recorded ag ainst the judge of the
High Court or the Supreme Court without the permission of the Chief Justice of
India. Chief Justice of India will never give permission for the lodging an FIR
against his brother judges.

Therefore, the judges feel that they are totally immune so they have a liberty to
be corrupt. Recently the Committee for Judicial Accountability had written to
the Chief Justice of India giving him evidence against a judge’s wife who had
purchased land worth lakhs for only 5 lakhs and asking for permission to lodge
an FIR. We are yet to receive an answer, but it is not enough to remove a corrupt
judge but it is necessary to send them to jail.

Vishnu Prakashji
The impact of the liberalisation and globalisation is also on the media. The rights
of the poor have been systematically dismissed. For instance, the demolitions are
happening everywhere but the press is not reporting it at all.

Swami Agnivesh
Once we were protesting outside the Supreme Court, a case of contempt was
filed against Arundhati Roy, although she was sitting peacefully and we were
making most of the noise. The tool of Public Interest Litigation was the need and
is a very important tool for advocating our rights. Though there are aberrations
but still we have to protect this tool. Major contribution was also on part of
judges. For instance the Master Plan of Delhi has become ball game for the two

21

political parties, who violated the same plan many times. It is not only judiciary
but also the executive, which is corrupt.
When I was in the Janata Party and a minister there, my own government
applied Section 144 in industrial area of Faridabad for almost a year. When the
workers took processions, the police opened fire and 12 workers were killed.
When I raised the issue in the Parliament, I was questioned and asked not to
raise the issue as I was the cabinet minister. I was asked to resign and I
resigned. The very party, the Janata Party changed its stand for working for the
rights of the poor. There is something which changes everything just after they
come to power.
This calls for the need for judicial accountability, as the judiciary has absolved
themselves from any scrutiny, right to information, FIRs, etc.

Vote of Thanks
Prashant Bhushan
This is only the beginning of this whole issue and the debate has to be taken
forward. All of us should take the lead to organize into the strong movement on
this whole issue of judicial accountability and judicial reforms etc.

Indu Prakash Singh
95 people participated today, so it shows that pe ople are interested in this
campaign. Thank you for joining.

*****

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Majesty of the Judiciary
By V.R. Krishna Iyer

Asian Age: New Delhi: 17 th February 2007

The judiciary is the most sublime instrumentality in the country and I have
served it for nearly a decade during the best part of my life. This article, written
out of reverence for the judicature, has a benign intent meant to arrest its
corruption and decline now creeping into its vitals.

David Pannick, in his delectable book Judges, wrote, "Judicial independence was
not designed as, and should not be allowed to become, a shield for judicial
misbehaviour or incompetence or a barrier to examination of complaints about
injudicious conduct on apolitical criteria.

"That a man who has an arguable case that a judge has acted corruptly or
maliciously to his detriment should have no cause of action against the judge is
quite indefensible."

Quoting Judge Jerome Frank — a great author (Courts on Trial) — Pannick
wrote, "Some politicians, and a few jurists, urge that it is unwise or even
dangerous to tell the truth about the judiciary. Judge Jerome Frank of the US
Court of Appeals sensibly explained that he had little patience with, or respect
for, that suggestion. I am unable to conceive … that, in a democracy, it can ever
be unwise to acquaint the public with the truth about the workings of any
branch of government. It is wholly undemocratic to treat the public as children
who are unable to accept the inescapable shortcomings of man-made
institutions… The best w ay to bring about the elimination of those shortcomings
of our judicial system which are capable of being eliminated is to have all our
citizens informed as to how that system now functions. It is a mistake, therefore,
to try to establish and maintain, through ignorance, public esteem for our
courts…"

Justice Jackson of the US Supreme Court once remarked, "We are not final
because we are infallible. We are infallible because we are final."

Judges are human, though they are ordinarily of high standards and rarely
commit serious solecisms, fundamental flaws and grave goofs. Justly, therefore,
even high bench pronouncements do desiderate decisional review and
correctional reversal. So we must abandon the populist superstition about
judicial supremacy or curial papacy. Judges are under the Constitution, not over
it. It becomes necessary to make a thorough scrutiny of the robed brethren’s
moral, materialist and value-based opinions if they stultify established principles
of justice and violate Constitutional vision.

Equally necessary is the need to scan the candidates for the selection of judges,
especially because our country is poor, our swaraj is anti -colonial, our Republic
is socialist, secular, democratic, humanist, pro-labour and pro-agrarian. Many
"Lordships" hardly deserve the high office, since in their rulings they do not
23

share the basic values of their oath, being under the illusion of irremovable office
and aristocratic class bias. Luckily, learned, humanist and morally exemplary
judges maintain the maje sty and high dignity of our courts, with the insolent,
ignorant, corrupt and dubiously lazy, still being in a minority.

A more careful investigation into their appointments is necessary, tuned to the
socialist, secular, democratic values of the Preamble. When beyond criticism,
blanketed by curious "contempt law", arbitrary judges are apt to behave
unbecomingly and delay writing judgments, and even fail to write rulings.
Constant vigilance of court performance is fundamental. The elitist, oligarchic
and deli nquent brethren must be subjected to disciplinary action. Many of their
Lordships have little concern for the spiritual-compassionate perspective of
swaraj jurisprudence and poverty-oriented justice for which India struggled and
gained freedom. To shape our basic structure according to Yankee yen, MNC
values and "Westoxication" is a betrayal of our heritage, history and commitment
to the developmental policy for the backward billions whose resources are being
greedily privatised by billionaires, foreign and indigenous. With privatisation and
globalisation, mega-corporations are competing for power, holding our wealth
and bribing our executive. So it is obligatory that our rulers, executive,
parliamentarian and judicative, are scanned sedulously so that theycan uphold
the interest of the masses and the suppressed. These criteria apply a fortiori to
the judiciary in which power vests finally over the validity of the two other
crucial instrumentalities. The judiciary, claiming counterfeit finality, with no one
to question its constitutionality, usurps even executive roles and challenges
legislative autonomy.

The judicature has a sublime status and commands the reverence of the people
which is a great tribute to this national institution. Necessarily, judges have the
highest duty to the people of administering justice, based on fearless truth,
moral rectitude and negation of addiction to power and lucre. Austerity, never
ostentation, is the essence of forensic parameters. Declaration of wealth and
high code of con duct are binding principles. High education, professional ability,
advanced technology and mega-factories and wealth belong to the rich and they
control the country’s resources, police power and incarceratory power. If this
superior class manages to gain judicial power too, Indian law is likely to be
interpreted and adjudicated in favour of the creamy layer and the robber sector.
The weaker sector finds law to be its enemy if the instrument of law is in the
hands of the higher class.

"There is no doubt that we are surrounded in our adult life with a wealth of
humbugs: fame humbugs, wealth humbugs, patriotic humbugs, political
humbugs, religious humbugs and humbug poets, humbug artists, humbug
dictators and humbug psychologists," said Lin Yutang.

Prof. Griffith has observed in his book, "Judges are the product of a class and
have the characteristics of that class. Typically coming from middle-class
professional families, independent schools, Oxford or Cambridge, they spend 20
to 25 years in successful practice at the bar, mostly in London, earning very
considerable incomes by the time they reach their 40s. This is not the stuff of
which reformers are made, still less radicals."

24

Once Winston Churchill said in the Commons, "The courts hold justly a high,
and I think, unequalled pre -eminence in the respect of the world in criminal
cases, and in civil cases between man and man, no doubt, they deserve and
command the respect and admiration of all classes of the community, but where
class issues are involved, it is impossible to pretend that the courts command
the same degree of general confidence. On the contrary, they do not, and a very
large number of our population have been led to the opinion that they are,
unconsciously, no doubt, biased."

As David Pannick wrote, "We need judges who are trained for the job, whose
conduct can be freely criticised and is subject to investigation by a Judicial
Performance Commission; judges who abandon wigs, gowns, and unnecessary
linguistic legalisms; judges who welcome rather than shun publicity for their
activities."

(Justice V.R. Krishna Iyer is a former judge of the Supreme Court)

****

25

Contempt of court: need for a second look
In a democracy the people should have the right to criticise judges. The purpose of
the contempt power should not be to uphold the majesty and dignity of the court
but only to enable it to function.

Markandey Katju
THE HINDU, MONDAY, JANUARY 22, 2007

THE BASIC principle in a democracy is that the people are supreme. It follows
that all authorities — whe ther judges, legislators, Ministers, bureaucrats — are
servants of the people. Once this concept of popular sovereignty is kept firmly in
mind, it be -comes obvious that the people of India are the masters and all
authorities (including the courts) are their servants. Surely, the master has the
right to criticise the servant if the servant does not act or behave properly. It
would logically follow that in a democracy the people have the right to criticise
judges. Why then should there be a Contempt of Courts Act, which to some
extent prevents people from criticising judges or doing other things that are
regarded as contempt of court?

In a democracy, the purpose of the contempt power can only be to enable the
court to function. The power is not to prevent the master (the people) from
criticising the servant (the judge) if the latter does not function properly or
commits misconduct.

Article 19(1)(a) of the Constitution gives the right of freedom of speech and
expression to all citizens. But Articles 129 and 2 15 give the power of contempt of
court to the higher judiciary, and this power limits the freedom granted by
Article 19(1)(a). How are these two provisions to be reconciled?

Once it is accepted that India is a democracy and that the people are supreme,
the reconciliation can only be affected by treating the right of the citizens to free
speech and expression under Article 19(1)(a) to be primary, and the power of
contempt to be subordinate. In other words, the people are free and have the
right to criticise judges, but they should not go to the extent of making the
functioning of the judiciary impossible or extremely difficult.

The test to determine whether an act amounts to contempt of court or not is
this: does it make the functioning of the judges impossible or extremely difficult?
If it does not, then it does not amount to contempt of court even if it is harsh
criticism.

Much of our contempt law is a hangover from British rule. But under British
rule India was not free and democratic. Also, there was no Constitution
containing provisions such as Article 19(1)(a). How then can the law of those
days be applicable today? The only situation where I would have to take some
action was if my functioning as a judge was made impossible. For example, if
someone jumps up on to the dais of the court and runs away with the court file
or keeps shouting and screaming in court or threatens a party or a witness.

26

In a speech delivered on the topic “The Law of Contempt — is it being stretched
too far?” the doyen of the Indian Bar Fali Nariman said the offence of
scandalising the court is a mercurial jurisdiction in which there are no rules and
no constraints.

He and others are perfectly correct in saying there should be certainty in the
law, and not uncertainty. After all, the citizen should know where he or she
stands. There are two reasons for the uncertainty in the law of contempt of
court. In the Contempt of Courts Act, 1952, there was no definition of
‘contempt.’ Secondly, even when a definition was introduced by the Contempt of
Courts Act, 1971 (vide Section 2), there was no definition of what constitutes
scandalising the court, or what prejudices, or interferes with, the course of
justice. What could be regarded as scandalous earlier may not be regarded as
scandalous today and what could earlier be regarded as prejudicing or
interfering with the course of justice may not be so regarded today.

The view about the contempt power was first stated in England by Wilmot J. in
1765 in a judgment that was, in fact, never delivered (R. vs. Almon). In that
opinion, Wilmot J. observed that this power in the courts was for vindicating
their authority, and it was coeval with their foundation and institution and was
a necessary incident to a court of justice. Successive courts not only in England
but also in other countries thereafter followed the above dictum.

But from where did this authority and dignity of the court come from? In
England, it came from the king who, in earlier times, would decide cases himself.
It was only subsequently that the judicial function was delegated to judges. Thus
in a monarchy the judge really exercises the delegated functions of the king, and
for this he requires dignity and majesty as a king must have to get obedience
from his subjects. The situation becomes totally different in a democracy; here
the judges get their authority delegated to them by the people.

Hence in a democracy there is no need for judges to vindicate their authority or
display majesty or pomp. Their authority will come from the p ublic confidence,
and this, in turn, will be an outcome of their own conduct, their integrity,
impartiality, learning, and simplicity.

The view expressed above is, in fact, accepted now even in England. As observed
by Lord Salmon in AG vs. BBB: “The description ‘Contempt of Court’ no doubt
has a historical basis, but it is nonetheless misleading. Its object is not to
protect the dignity of the Courts but to protect the administration of justice.”

As observed by Lord Denning in R vs.Commissioner of Police(1968): “Let me say
at once that we will never use this jurisdiction as a means to uphold our own
dignity. That must rest on surer foundations. Nor will we use it to suppress
those who speak against us. We do not fear criticism, nor do we resent it. For
there is something far more important at stake. It is no less than freedom of
speech itself.”

The best shield and armour of a judge is his reputation of integrity, impartiality,
and learning. An upright judge will hardly ever need to use the contempt power

27

in his judicial career. I submit that the law of contempt of court can be made
certain once it is accepted that the purpose of the contempt power is not to
vindicate or uphold the majesty and dignity of the court (for it is automatically
vindicated and uphe ld by the proper conduct of the judge, not by threats of
using the contempt power) but only to en-able the court to function. The
contempt power should only be used in a rare and exceptional situations where,
without using it, it becomes impossible or extremely difficult for the court to
function. In such situations, the contempt power should not be used if a mere
threat to use it suffices.

There may, of course, be differences of opinion about what acts prevent, or make
very difficult, the functioning of a judge. For instance, do comments by the
public (including lawyers, journalists, etc.), or publicity in the media about a
pending case cause this? I think not. A judge should have the equanimity and
inner strength to remain unperturbed and unruffled in any situation. The
expression ‘preventing or making it extremely difficult for the judge to function’
should ordinarily be understood with reference to a judge who has a true judge’s
temperament — one that is detached, calm, with equanimity, and with broad
en ough shoulders to shrug off baseless criticism or at-tempts to influence him
without being perturbed.

A fresh, modern, democratic approach, like that in England, the United States,
and Commonwealth countries, is now required in India to do away with the o ld
anachronistic view. Contempt jurisdiction is now very sparingly exercised in
these western countries. Thus in Defence Secretary v. Guardian Newspapers
(1985) 1 A.C. 339 (347), Lord Diplock observed that “the species of contempt
which consists of ‘scandalising the judges’ is virtually obsolescent in England
and may be ignored.”

Moreover, it must always be remembered that contempt jurisdiction is
discretionary jurisdiction. A judge is not bound to take action for contempt even
if contempt has, in fact, be en committed.

Before concluding, I may refer to the book Judges by David Pannick in which he
states: “Some politicians, and a few jurists, urge that it is unwise or even
dangerous to tell the truth about the judiciary. Judge Jerome Frank of the US
Court of Appeals sensibly explained that he had little patience with, or respect
for, that suggestion. I am unable to conceive ... that, in a democracy, it can
never be wise to acquaint the public with the truth about the workings of any
branch of government. It is wholly undemocratic to treat the public as children
who are unable to accept the inescapable shortcomings of man-made
institutions… The best way to bring about the elimination of those shortcomings
of our judicial system which are capable of being eliminated is to have all our
citizens in -formed as to how that system now functions. It is a mistake,
therefore, to try to establish and maintain, through ignorance, public esteem for
our courts.”

In this connection reference may be made to the recent amendme nt to the
Contempt of Courts Act (the Contempt of Courts Amendment Act, 2006), which
has introduced a new Section 13(b) that states: “The courts may permit, in any
proceedings for contempt of court, justification by truth as a valid defence if it is

28

satisfied that it is in public interest and the request for invoking the said defence
is bona fide.”

Thus, truth is now a defence in contempt of court proceedings if it is in the
public interest and is bona fide. This amendment is in the right direction, and
was long overdue.

(The writer is a judge of the Supreme Court. This article is adapted from a lecture
he delivered at the Indian Society of International Law, New Delhi, on January 17,
2007.)

****

29

COMMITTEE ON JUDICIAL ACCOUNTABILITY
66 Lawyers Chambers
S upreme Court of India, New Delhi
Members: Ram Jethmalani, Shanti Bhushan, D.S. Tewatia, Anil B. Divan, Indira Jaisingh,
Kamini Jaiswal, Prashant Bhushan, Arvind K. Nigam, Convener: Hardev Singh

Comments of the Committee on Judicial Accountability on the Judges
Enquiry Bill, 2006.
Before making detailed comments on the Bill, it is necessary to
understand the problem of Judicial Accountability, which this Bill seeks to
address. The problem of Judicial Accountability, or rather the lack of it, has
been gradually increasing due to the progressive whittling down of whatever little
accountability of the higher judiciary that existed earlier. This lack of
accountability has been further accentuated by the increasing exercise of powers
by the higher judiciary making inroads into by passing orders even on matters
which are within the domain of executive policy such as interlinking of rivers,
demolition of Jhuggis from the Yamuna Pushta, laying down the policy for
hawkers, cycle rickshaws, etc. It is this increasing assertiveness of the judiciary
coupled with an almost total lack of accountability has led to a situation where
large sections of the judiciary have effectively sought to declare themselves above
the Right to Information Act and claimed i mmunity from it. Thus, while many
High Courts have not even appointed Information Officers, others like the Delhi
High Court have framed rules which prohibit the release of information on
administrative matters such as expenditures on the Judges and appointments of
class III & IV staff of High Court by the Judges. The Supreme Court has even
recently asked the Government to amend the Right to Information Act to remove
the Supreme Court from the purview of an independent Central Information
Commission and also to provide that the Chief Justice of India can interdict the
release of information which shall not be questioned.

The problem of Judicial Accountability is as follows:
(i) The actions of the Judiciary on the premise of independence of the
Judiciary while understandable cannot be at the expense of
accountability. Accountability and independence are not mutually
exclusive.
(ii) The disciplinary control via the process of impeachment, which, as
seen in Justice V. Ramaswami’s case, is an impractical and extremely
difficult process to pursue in practice.
(iii) The additional immunity with which the judges have cloaked
themselves in Justice R. Veeraswamy’s case, to the effect that even an
FIR for any crime committed by a Judge, can not be registered against
him without the prior permission of the Chief Justice of India.
(iv) The failure to even make known/disclose the complaints against
judges and the action taken thereon by the so -called in -house
mechanism coupled with the exemptions/exclusion being sought from
the RTI.
(v) The persistent failure to recognize truth as a defense in an action for
contempt of court proceedings and the exercise of the power of
Contempt of Court which can be and has been occasionally used to
punish even legitimate criticism of the judiciary. Even if the power of
30

contempt has been rarely used, it is a sword which hangs over the
neck of people, particularly that of the media, and has undoubtedly
intimidated them from exposing the rot within the judiciary. The
recently introduced amendment that truth may be a good defence in a
contempt action, while mitigating the problem, does not solve the
problem because, apart from the fact that it may sometimes be
difficult to prove the truth of an allegation which has been made in
good faith, one often needs to prove the truth of that allegation before
the same Judge against whom the allegation has been made. The
threat of contempt, has insulated the judiciary even further from any
semblance of accountability. Of course, the judiciary, unlike the
Parliament, or the Government, is not democratically accountable in
the sense that it does not have to seek re-election. Now the judiciary
has even sought to remove itself from the purview of Right to
Information Act.

It is in the above context of total lack of accountability, that this current
proposed Judges Enquiry Bill must be examined. The bill seeks to amend the
Judges Enquiry Act and provide for a National Judicial Council consisting of the
Chief Justice of India, two senior-most Judges of the Supreme Court and two
Chief Justices of the High Courts (two more Judges of the Supreme Court in the
case of an enquiry against a Supreme Court Judge) as members to enquire into
allegations of misbehavior against the Judges of the Supreme Court and the
High Courts. The Bill also provides in section 6 that the Council may also
investigate into the conduct of any person other than the Judge if it considers
necessary to do so. One change from the existing Judges Enquiry Act is the
change of composition of the Enquiry Committee from a sitting Judge of the
Supreme Court, a Chief Justice of the High Court and one other Jurist (to be
selected by the Speaker as provided in the existing Act), to this ex-officio
Committee of 5 sitting Judges provided in this Bill. The other change is that the
enquiry, apart from being initiated on an impeachment motion presented in
Parliament, can also be initiated on a complaint made to the Judicial Council.
The Bill further provides that the complainant must verify the complaint and
also disclose the source of his information and if the complaint is found to be
frivolous, or made in bad faith or with the intent to harass the Judge, he shall be
punished with imprisonment which may extend up to one year and also to a
fine.

If, after the enquiry, the Council holds the Judge to be guilty of misconduct, it
can, if it considers the charges do not warrant any removal of the Judge, issue
advisories, warnings, censure or admonition including requesting the Judge to
voluntarily retire or withdraw judicial work for a limited time. If it is, however,
satisfied that the charges are so serious so as to warrant his removal, it shall
advise the President accordingly and the matter will be laid in the Parliament in
accordance with the procedure for impeachment and removal provided in the
Constitution. It also provides that the Judge aggrieved by the order of removal of
the President or from the final order of the Council imposing any other minor
penalty of censure, etc., may file an appeal before the Supreme Court. The Bill
further provides in Section 33 that all papers, documents and records of
proceedings related to a complaint, shall not be disclosed to any person in any
proceeding except as directed by the Council. Section 36 of the Bill further

31

provides that the restatement of judicial values adopted in the Chief Justices’
Conference of 1999 shall be record of conduct and can be further amended by
the Judicial Council. These are the salient features of the Bill.
The positive features of the Bill are that it creates another statutory procedure
for initiating an enquiry into the allegations of misconduct of a Judge. While
earlier it could only be done by an impeachment motion, it can now also be done
against complaints made by individuals to the Judicial Council. The other
positive feature is that the restatement of judicial values of 1999 adopted by the
Chief Justices’ Conference is given statutory status by this Bill.

However, the above relatively minor positive features of this Bill, are
overshadowed by far more serious problems with the Bill which, in our opinion,
is going to reduce whatever little accountability of Judges remained under the
present Judges Enquiry Act. This is for the following reasons:
(a) The Committee of 3 Judges/Jurists under the existing Judges
Enquiry Act, 1968 are to be selected by the Speaker and at least one
of these three could be outside the sitting judiciary. In the present
Bill, the Judicial Council is an in-house Council of sitting Judges
which is similar to the Judicial Council proposed when the
restatement of judicial values was adopted by the Chief Justices’
Conference in 1999. This in-house body of sitting judges, hardly ever
enquired into allegations against judges, much less recommended any
action against judges in the last many years it existed. Even in the
recent case of serious allegations against Justice Jagdish Bhalla
which was backed by documentary evidence and official reports, the
in house procedure under the restatement of judicial values was not
resorted to by the Chief Justice of India and instead the Collegium,
without even causing an enquiry to be made into the charges,
recommended his elevation as Chief Justice of Kerala. Even in the
other case of a serious charge against Justice Vijendra Jain of the
Delhi High Court, when he had decided the case of a litigant (Hari
Ram) in his favour despite the fact that he knew the litigant well
enough that his grand daughter’s marriage had taken place from his
official residence, it was ignored by the Chief Justice by saying that
the Supreme Court did not have disciplinary powers against judges.
However, when it was pointed out that under the restatement of
judicial values, charges against the Judge to be enquired by an in-
house Committee of Judges, the Chief Justice said that he had looked
into the charge and did not find any merit in it. He thus dismissed
the charge without even any in -house enquiry and without assigning
any reasons.
(b) The in-house Committee of Judges is not an appropriate mechanism
to enquire into the conduct of their brother judges with whom they sit
in the Court every day. It is common knowledge that Judges regard
their brother judges as part of their judicial family and also find it
very embarrassing to hold any of their brother judges guilty o f any
misconduct. It is, therefore, highly unlikely that they would be able to
dispassionately decide allegations against their own brother judges
with whom they are sitting in and out of courts day after day. It is in
fact more likely that the complainant would be strictured and even

32

sent to jail under the powers given to the Judicial Council under
section 26 of the Bill.
(c) Even more objectionable is the provision in section 33 of the Bill for
not disclosing any information relating to the complain t to any person
in any proceedings except as directed by the Council. This will make it
impossible for the complainant to publicise the charges and the
incriminating material against the judge once he chooses to approach
the Council. It is likely that if the Judicial Council dismisses even a
good bona fide and substantial complaint against a brother judge, it
will not be possible for the people to know what the charges and
materials were and how they have been dealt with by the Judicial
Council. In fact, these two provisions (section 26 and section 33) are
likely to deter any complaints being made to this Judicial Council at
all, particularly with the knowledge that the brother judges almost
never break ranks among themselves.
(d) It is, therefore, absolutely essential that if any enquiry is to be
conducted into the conduct of a sitting judge, it must be done by an
Enquiry Committee or a Council which does not consist of any sitting
judges at all. It may consist of some retired judges but it must have
persons from outside the judicial family. What is really required is
constitutional amendment to put in place a 5 member National
Judicial Commission, consisting of persons who could be retired
judges or other eminent persons and chosen in the following manner:
(i) One member to be nominated by a collegium of all the judges of
the Supreme Court.
(ii) One member to be nominated by a collegium of all the Chief
Justices of the High Court.
(iii) One member to be nominated by the Cabinet.
(iv) One member to be nominated by a colleg ium of the Speaker,
Leader of the Opposition in the Lok Sabha and the Leader of the
Opposition in the Rajya Sabha.
(v) One member to be nominated by a Collegium of Chief Vigilance
Commissioner of the Central Vigilance Commission, Comptroller
and Auditor General and the Chairperson of the National Human
Rights Commission.

Thus, the National Judicial Commission will have 5 members nominated as
above who would not be sitting judges and would e full time members, having an
assured tenure. They must have an investigative machinery under their
administrative control through whom they can get charges investigated against
judges. If they find any prima facie case against the Judge, they could hold a
trial of the Judge and if found guilty, recommend his removal after which his
removal should be automatic.

The view which has been propagated particularly by the Judiciary, that it cannot
be held accountable by any body outside itself, since they would compromise its
independence, is completely without merit. Independenc e of judiciary means
independence from the Government and Parliament and not independence from
accountability to an outside independent body. It cannot be said that
accountability to a National Judicial Commission of the kind mentioned above,
would compromise the independence of the judiciary. Independence from

33

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