THERE IS A NEED TO END JUDICIAL FEUDALISM IN INDIA - Business Guardian
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THERE IS A NEED TO END JUDICIAL FEUDALISM IN INDIA

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A few days ago, while speaking at a National Conference on Mediation and Information Technology, organized by the High Court of Gujarat, senior Supreme Court judge Justice Dr. D. Y. Chandrachud said that the Indian judiciary continues to be “feudal” and it should change its mind set to become “modern and futuristic”. He suggested enhancing the use of technology to modernise the judiciary and end the feudal structure. Justice Chandrachud said: “We all know Indian judiciary even today is essentially feudal. These feudal practices are evident to us by the element of subordination between practice amongst judges of the district judiciary judges being made to wait when a judge of the higher court is coming to the district, at the border of the district. Judges of the district judiciary are not allowed to sit when they talk to high court judges or even higher. These are some of the symbols of the subordination of the district judiciary”. Justice Chandrachud further said that technology can be useful to bring necessary reforms to the judicial system.

He said that inspection of districts, which is a source of grave stress to our district judiciary, can be radically changed if we allow for electronic registers for inspection by the High Courts. “Likewise, when we assess the performance of judicial officers, or promotion of judges all the way across, I believe, not just from district judiciary to High Courts but from High Courts to the Supreme Court, we can do a lot to assuage the grievance, that our processes are not objective and we can assuage that grievance provided we use technology in an objective manner for those who are under consideration for higher judicial office. So I do believe that technology is full of untapped potential for changing the face of the Indian judiciary and for making it more modern,” said Justice Chandrachud in his virtual address.

Justice Chandrachud is considered a liberal, technology-friendly, and progressive judge who has always stood against the feudal culture and mindset prevalent in the judiciary. The time has come when more judges and lawyers should speak against the feudal environment prevalent in the judiciary. Recently, some states like Himachal Pradesh have taken steps to abolish this culture by replacing the word “subordinate courts” with district judiciary. This is a good decision that should also be emulated by other states to protect the dignity of the judges working at the grassroot level. Time and again, many public intellectuals, legal thinkers, and constitutional pundits have raised this issue on different platforms but no effective action has yet been taken to abolish the feudal culture from the judicial branch of the state either by Parliament or the Supreme Court. The district judiciary needs a dignified treatment. In one of his pieces published in the Indian Express on 24 August 2021, eminent legal philosopher Professor Upendra Baxi also raised his concerns against feudalism in the judiciary.

This is what Professor Baxi had said about this issue: “I have always pointed out at public fora and in my writings that the expression “subordinate courts” used by Part VI, Chapter 6, of the Constitution of India cannot signify that judges are indeed so. This inelegant enunciation menaces the independence of the judiciary, entrenched with and since Kesavananda Bharati(1973) as the essential feature of the basic structure of the Indian Constitution. Now is the time for Parliament to remove the substantial nomenclature of “subordinate judiciary”, and the courts to eliminate the last vestiges of judicial feudalismthe moral fault line of judicial hierarchy”. Further, Professor Baxi states: “When I rhetorically posed a question to then Chief Justice of India Y. V. Chandrachud at a public meeting, he was visibly annoyed and retorted: “What is the difference between the CJI and the sarpanch of a nyaya panchayat?” I meant no disrespect to him or the judiciary.

To his credit, he contained his annoyance but the fact is that no judge is “subordinate” to any other. As constitutional beings, judges are limited in jurisdiction but also supreme within their own jurisdiction. However, Article 235 speaks of “control over subordinate courts”. This Article adds insult to injury by describing these entities and agents as persons “holding a post inferior to the post of a district judge. The Constitution no doubt contemplates a hierarchy of jurisdictions, but no judge acting within her jurisdiction, is “inferior” or “subordinate”. On appeal, or review, a court with ample jurisdiction may overturn and even pass judicial strictures but this does not make the concerned courts “lower” or “inferior” courts. True, High Courts always have considerable powers of superintendence on the administrative side but this “supervisory” power has been recognized by the apex court as a “constitutional power” and subject to the right of appeal as granted by Article 235”. Professor Baxi offers a few suggestions to end the feudal culture in the judiciary: “My view endorses a complete recasting of Article 235, which does away with the omnibus expression of “control” powers in the High Courts.

They may exercise “supervision” under detailed performance norms. But there is no reason why for most matters (save elevation), senior-most district judges and judges of the High Courts may not constitute a collegiate system to facilitate judicial administration, infrastructure, access, monitoring of disposal rates, minimisation of undue delays in administration of justice, alongside matters concerning transfers, and leave. The amendment should specifically require the High Courts to satisfy the criteria flowing from the principles of natural and constitutional justice and all judicial officers who fulfil due qualification thresholds should be treated with constitutional dignity and respect. If an ACR is to be adversely changed in the face of a consistent award for a decade or more, it should be a collegiate act of the five senior-most justices, including the Chief Justice of the High Court”. Justice Sanjib Banerjee, former Chief Justice of Madras High Court, had also spoken on this issue during his farewell function in Madras. “My regret is that I could not demolish feudal culture in which you serve”, Justice Banerjee had told the staff of the High Court. Justice Banerjee is a brilliant judge who is well-known for his commitment to the cause of human rights protection and free speech. Gone are the days of feudalism. There is no place for this culture in the 21st century which is the era of human equality, and dignity. The observations made by Justice Chandrachud, Professor Upendra Baxi, and Justice Banerjee need a serious consideration.

The Chief Justice of India and the Chief Justices of High Courts may consider sensitizing the judicial community to end the feudal culture prevalent in the judiciary to protect the independence of the judges working in the district judiciary, the first point of interface to the citizen. No judge should be called subordinate or inferior, or lower judge. There is no place for the word “subordination” in the judiciary. All judges are free and independent. No judge is subordinate to another. Every judge acts in his/her own jurisdiction. No senior judge can direct his junior judge to decide a case in a particular way. The judges are not members of the police or armed forces who need orders from their superiors to discharge their functions. All judges get their powers from the statutes and exercise them within the four corners of the statutes. Also, sufficient checks and balances are made in the judicial system to correct the errors of judicial actions. The High Courts have constitutional powers to check the errors of the district judiciary and tribunals and the Supreme Court is the final appellate court. As per Article 141 of the Constitution, the law declared by the Supreme Court is binding on all courts and tribunals within the territory of India. The law of precedent ensures judicial discipline. In addition, sufficient remedies are made to approach the higher forum in appeal, and revision.

Thus, no question arises to call the judges as subordinate, lower, or inferior. A judge is a judge, and his/her dignity must be respected by everybody including his/her senior colleagues working in the judicial community. Therefore, the Constitution should be amended and the words “subordinate courts” should be renamed the “district judiciary”. In the Arnab Goswami case, the Supreme Court also observed: “Our district judiciary is wrongly referred to as the ‘subordinate judiciary’. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them”.

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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.

The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.

In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.

While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.

The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.

Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.

The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.

Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.

In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.

It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.

Accordingly, the court will now hear the matter on 14 December.

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DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

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DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.

The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.

On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.

In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.

In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.

The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.

Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.

The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.

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SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

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SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.

The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.

The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.

It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”

The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.

In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.

However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.

Mr. Arvind Gupta, Advocate on Record has filled the present petition.

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Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court

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Don’t compare Turban, Kirpan with Hijab: SC

The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.

The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.

Also, the court imposed a cost of Rupees one lakh on Singh.

In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.

While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.

The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.

However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.

It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.

Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.

The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.

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Post-conviction compounding of offences is permissible: Himachal Pradesh High Court

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The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.

The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.

Thus, the petitioner had sought compounding of offences.

In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.

However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.

The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.

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‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’

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The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.

The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.

In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.

However, the court disallowed the claims on two grounds:

Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.

In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.

Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.

The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.

The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.

Accordingly, the court dismissed the petition.

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