Judges are humans too...

Three years ago the Law Minister said, 'have a heart', to a lady reporter about why Judges needed to take their spouses on official foreign visits and went on to say, 'you are a women, you should understand!' (my blog entry on that here).Few months ago the entire nation heard Niraa Radia that a SC judge has been 'taken care of'. Two days back a Judge of the Kerala High Court said, that the former CJI was 'approachable', whatever that meant. 

Now, it transpires that the Government was planning to gag the Honourables in its own quirky way. The news item (link) on the foreign visit by the Judges has been ridiculed by the Delhi HC. I haven't read the guideline itself and am unable to comment. The two questions that I have in relation to this news are:

1. What if the Government sends the Judges on 'sponsored trips' that are hosted in other countries by 'private individuals/interests' (that is such a round about way to avoid the word, 'corporate'!), can the Judge say 'no' to the government?  - such a programme was organized for the Judges about 8 years ago to USA, to understand the complexities of the new bio-tech related cases that may come up in India. We all know who 'teaches' bio-tech in USA with its revolving door policy.

2. What will prevent the Judge from receiving such a largesse in India itself? - after all it is a free country. So, what measure is being proposed by the government to ensure that the Judge is not invaded by foreign nationals or for that matter, Indians, with their 'hospitality'! We had amongst other things, the Tihar Raja calling a sitting Judge of Chennai HC on his phone for a favour. The Judge was bold enough to state it in the open court the next day, but, what is the protection the 'competent authority' in the government gives the Honourable Judges against such invasion?

I do think that the Judges should voluntarily accept these regulations and indeed turn it back on the bureaucracy and politicians. As equally powerful pillars of Democracy, they stand to be influenced by the global corporate establishment as much as the Judiciary, if not more.  

More on Judiciary Accountability: A High Court Judge says the CJI's views are not shared by all

We have seen repeated attempts to bring the Judiciary under the RTI being resisted at the highest level of the Judiciary, namely the CJI. The CJI has not only maintained repeatedly that the RTI doesn't apply to the office of the Judges, but, has also maintained that the it will harass the judges unnecessarily. 

Now it transpires that every judge doesn't agree with the CJIs contention after all and there is one at least willing to speak his mind and willing to share his asset status with the public. 

A Karnataka High Court judge has taken on the Chief Justice of India in a newspaper article writing that the CJI can't speak on behalf of the judiciary regarding declaration of assets by the judges.

"It's a misnomer to think that the judges of the superior courts, who enjoy constitutional protection and immunity are not ready to disclose their assets," Justice DV Shylendra Kumar wrote in the New Indian Express.

Justice DV Shylendra Kumar article in the newspaper shows that the judiciary is split over the declaration of assets.

Referring to CJI KG Balakrishnan's remarks that judges could be harassed if their assets were made public, Kumar wrote, "On a legal place the CJI does not have the authority to speak for all judges of the Supreme Court, or High Courts, unless any of them have either confided in the Chief Justice or have authorised him to speak on behalf of others."

Supreme Court Chief Justice KG Balakrishnan had remarked that judges could be harassed if their assets were made public.

The Government had to withdraw the Bill on Judges' Assets in the last session of Parliament after a chorus of protest from the Opposition against the provision that a judge's assets would be beyond the purview of the Right to Information Act.

Justice Kumar argued that it was the Supreme Court itself that pushed RTI and said that he was than willing to declare his assets in public.

Senior Supreme Court lawyer Prashant Bhushan supported Justice Kumar's stand to reveal judge's assets.

"The leadership of the Court i.e, the CJI and some other senior judges do not want to reveal their assets. As rightly said by the Karnataka judge that if the CJI doesn't have any authority to stop any judge of the Supreme court or judges of the High Court from declaring his/her asset if he is willing to do so. Any judge, who is willing to reveal his/her assets and wants to put it up on the website has every right to do so. If he is being prevented to do so by other judges of the Supreme court or judges of the High Court then it is very unfortunate," said Prashant Bhushan.

source: http://ibnlive.in.com/news/cji-cant-speak-for-all-on-assets-issue-karnataka-hc-judge/99640-3.html?from=rssfeed

RTI for neta, babu and his honour too!

When it comes to shying away from RTI, each self-proclaimed arm of Democracy seems to prove coy than the other. The PMO, the CJI,...now the Central Information Commissioner declared that Judges need to make their assets just like the MPs and MLA, so what does the Supreme Court do? Get a stay ordered by a High Court (!!) against the order. Even worse the High Court Judge gives a value lesson, 'don't treat us like you treat politicians', whatever does that mean!? Is he saying that he is a superior species? Judges have been rather high on the value pronouncements in recent years, but, this takes the cake. The Judge says, declaration of assets could put the Judge under pressure! How so? Beats me. These gentlemen have government paid security to guard them, red top cars to carry them around, half a working day to ensure they don't doze off and an annual holiday that would make a primary school kid blush. 

With so many privileges being granted to them from the tax-payer money, there is no accountability as to what are they delivering to the nation. We read year after year about the piling up of cases and under-trials spending long months and years in custody. We have no performance indicators, monitoring mechanism or annual balance sheet as to what these revenue drains deliver to the nation. Now, here is a regulatory mechanism through which at least the public can get to know how much these gentlemen possess (not that it would matter if they did their job well and the public is satisfied with them) to keep themselves entertained while waiting for justice in the courts of these gentlemen, and, they feel offended!!

'Don't treat judges like politicians on assets issue'

"Public interest standards for the judiciary have to be different from other institutions. So judges have to be treated differently from people's representative on the issue (declaration of assets)," justice S Ravindra Bhat said. He was responding to a Right to Information (RTI) applicant who contended that judges should declare their assets like MPs and MLAs. It may be noted that the Supreme Court itself held in the Justice Veeraswamy corruption case that apex courtjudges are public servants. 

Blue Lady judgement: line between judiciary and polity

I learnt about the Supreme Court ruling on the Blue Lady ship breaking last month. Since then I have been interested in this ruling, particularly because it seems to me as stepping into an area between judiciary and dictating policy. I have always wondered, particularly since the infamous ruling on inter-linking of rivers as to what are the limits of the judiciary in our country. Thanks to Mr. Somnath Chatterjee, often we get to hear that the Parliament is higher than the Court. But, at times the court seems to dictate to the government.

On controversial issues where they are at loggerheads, it occupies the media attention living as it does on a daily does of sensationalism. Where the court and government are on the same side, everyone else could be at a disadvantage, the media, unless it finds itself on the other side in such cases plays it safe and doesn't bother to report. With no celebrities involved in the litigation of the Blue Lady, the ruling by the apex court has not been taken note of by most part of the press.

An excerpt from the ruling of the court:

...while applying the concept of "sustainable development" one has to keep in mind the "principle of proportionality" based on the concept of balance. It is an exercise in which we have to balance the priorities of development on one hand and environmental protection on the other hand.

11. India after globalization is an emergent economy along with Brazil, Russia and China. India has economic growth of above 9%. However, that growth is lop-sided. A large section of the population lives below poverty line. India has largest number of youth in the world. Unemployment is endemic. Article 21/14 is the heart of the Chapter of fundamental rights. Equality of opportunity is the basic theme of Article 14. In an emergent economy, the principle of proportionality based on the concept of balance is important. It provides level playing field to different stakeholders. Ship breaking is an industry. When we apply the principle of sustainable development, we need to keep in mind the concept of development on one hand and the concepts like generation of revenue, employment and public interest on the other hand. This is where the principle of proportionality comes in. Even in the case of Blue Lady, the figures indicate that 700 workers would be employed in ship breaking. Further, 41000 MT of steel would be made available. To that extent, there will be less pressure on mining activity elsewhere. ...(in an earlier ruling) this Court is not in favour of discontinuance of ship-breaking activity. However, this Court has held that the said activity needs to be strictly and properly regulated. This concept of balancing is given importance by Dr. Amartya Sen in his book "Development as Freedom". Today ship-breaking provides resources not only in terms of steel but also in terms of employment, skill and capability. Competition exists in the said business of ship-breaking amongst Bangladesh, Pakistan and India. In our view, if "capability" is a resource with our skilled workers it needs to be protected by strict implementation of Health Hazard Preventive Measures suggested in the report of TEC and implementation of Recycling Plans, generation of pollutants like asbestos to the extent of 20% can be almost eliminated. As stated, 85% of asbestos is in form of ACM in panels which is reusable. Therefore, the report provides State-of-the-Art mechanism which is the key element of "sustainable development". (all emphasis mine)

Now, this is only an excerpt, there is a preamble and further to this portion an analysis of the technical regulations prescribed to be adhered to while breaking of a ship by a re-cycler at Alang in Gujarat, described by many as one of the most polluted places on planet earth due to the large scale breaking down of pollutants laden ships from across the world.

Some thoughts:
1. The statement about 'Principle of Proportionality' (PoP) in relation to 'Sustainable Development' is rather interesting. Not being a legal expert, I can only infer that this means any section of the government cannot stop another section of the government in the name of 'Sustainable Development' or 'Environment Protection' (that shoots down all environmentalist arguments on Rama Sethu if the destroying of the bridge according to the court is 'development') if it is found to upset the balance on the PoP. The balancing of 'development' on the one hand and 'environmental protection' on the other seems to imply that there is no 'development' possible without 'environmental damage' (indeed the Judges cite one such ruling as part of this judgment), to me this seems to be a strange view. Do we take it that the Supreme Court of this country has taken a stand on the issue of development that any development will necessarily be at the cost of the environment and whatever evidence that may talk of eco-friendly growth may not be considered development at all!? Where does this stand vis-a-vis the view on the same issue by the Government of India which unlike the Supreme Court is a signatory for many international conventions and regulations on environment.

2. In building a case for their eventual judgment the judges make some statements that look rather strange to me, as I don't get to read many judgments. The judges claim that our growth of 9% is lop-sided, nothing new, but, my question does this reflect in everyone of the judgments given by the Supreme Court? And again they state that a large section of people live BPL, this needs to be qualified as we all know. BPL varies based on what are the indices you use to measure it, which state are you talking about, etc. The court goes on to state that we have 'endemic' unemployment! Again a statement that needs to be prefixed with a few qualifiers.

3. About 'level playing field' for stake holders, this I find the most confusing, here is a prescription for all 'emerging economies', that is PoP is important and that is what ensures that the level playing field is set. And how does this PoP exhibit itself, 'we need to keep the concepts of development in one hand and concepts of generation of revenue, employment and public interest in the other'!! I thought they were both the same!

4. Ship building may be an industry, just like manufacturing WMD is an industry too. But, I always assumed that it was the polity and enterprise and not the judiciary that decided the priority and protection of any industry. It seems to take a different turn here.

5. The number of people who will get employed and the MT of steel generated from this activity seems to step out of a promotional material. Employment of 700 people is not an issue in India (on paper atleast after the REGS), certainly this is not a solution to 'endemic unemployment', they will not be breaking this ship all their lives nor is there any idea (atleast in the judgement) about what sort of employees these will be, what are their rights, is there adequate financial compensation (apart from the health protection regulations mentioned in handling hazardous waste), would the employer find another job (or ship) for them to sustain their employment and livelihood...what is the 'capability' in taking apart a ship? what is its value today in the job market? what is the living standard and dignity of labour attached to this job? what are the 'resources' as 'capabilities' did these 700 people have before they started to break ships? maybe they were farmers in Vidarbha? can this resource be considered significant in the national interest? how? is it important for the country to decide and embark on building this capability? is it part of the national political agenda in developing certain 'resources'? to me this sounds a retrograde on 'knowledge economy' or 'knowledge society' whatever be its understanding and usage.

And the part about, somewhere, somehow this will ease the pressure on mining sounds muddled up. How would you re-cycling some steel ease pressure on mining? are the mining steel and recycled steel used for same applications? can someone verify this statement in any way at all? infact, the 'elsewhere' sounds rather casual.

6. And finally the part about Amartya Sen and competition, it seems a bit stretched for me. Why quote Sen? does it legitimise the judegement or something? and what is the part about competition between India, Pakistan and Bangladesh, how is it relevant in a case where the primary concern is about the damage to environment and health hazard to labourers?