Sunday, 12 July, 2009

Tackling Judicial Corruption

Just read a wonderful true story. N. Kannadasan was an Advocate practicing in the Madras High Court. In November, 2003, he was elevated to the High Court Bench as an Additional Judge. But after two years of having been an Additional Judge, he was not appointed as a permanent Judge due to some doubts over his integrity.

He resumed practice in the Madras High Court, and soon became an Additional Advocate General. In July 2007, the Full Court of the Madras High Court resolved that his name may be included as one of the Retired Judges of the Court. In June, 2008, he came to be appointed as President of the State Consumer Disputes Redressal Forum in terms of Section 16 of the Consumer Protection Act. The Act prescribes a requirement that the President must be or have been a Judge of the High Court.

Writ Petitions were filed, praying for a writ of quo warranto to scuttle Kannadasan's appointment as President, on the ground that his integrity had already been established to be under doubt when he had not been appointed as Permanent Judge, and on the ground that an Additional Judge could not be termed as a "Judge" for the purposes of Section 16. The matter reached the Supreme Court, and in a landmark judgment (N. Kannadasan v. Ajoy Khose, 2009 (8) SCALE 351, Justice SB Sinha held that even though an Additional Judge can be considered as a Judge for the purpose of Section 16, the term "Judge" carries with it an implicit requirement that the person is above board in terms of his qualification, merit and integrity. Therefore, since Mr. Kannadasan's term as Additional Judge had ended in a tainted fashion, his case could not fall within the words "has been a Judge".

We are all tired of the immunity Judges enjoy in the name of maintaining the "Independence" of the Judiciary. Time and again we have seen blatant instances of Judicial Corruption ending with In-House Enquiries that recommend "transfer" of the tainted Judge to another Court. However, when the Print and Electronic Media sensationalizes these issues, the need to protect Judges from malicious attacks from disgruntled litigants, interested parties, etc. comes into acute focus as well.

At many a conversation over dinner, I have heard the defence that Judges cannot defend themselves in any forum, and therefore, the need to maintain the dignity of the Judiciary necessitates that we err on the conservative side. It has often reminded me of that famous premiss on which our entire Criminal Jurisprudence stands: It is okay for 99 guilty persons to be acquitted, if it prevents one innocent person from being convicted.

Faced with this conundrum, this Judgment presented an interesting solution. A writ of quo warranto, can be used to question the authority of a person to hold a high public office inter alia in the event that his appointment is violative of any statutory provision. In this case, the requirement of integrity being above board was read into the term "Judge". If quo warranto can be used to challenge someone's appointment, could it not be used to challenge someone's continued occupation of the Post? That would ensure that allegations levelled against a Judge are tested in a Court of law, and the dignity of the Institution itself would not be jeopardized.

The only difficulty is that Writ courts do not entertain disputed questions of fact; but given the alternatives of (a) placing Judges at the mercy of the Police or similar investigating agency, and (b) practically giving Judges complete immunity in order to maintain their independence and dignity, it would not be completely without precedent if the Writ Court enquired into the allegations either on its own, or through a Commission. Of course, the threat of being imposed with exemplary costs would ensure that someone would not step into the Litigation arena lightly.

Friday, 3 July, 2009

Is Delhi the Gay capital of India

The news channels have been telling us that it is now for the Executive to fall in line with the Delhi High Court ruling on Section 377 IPC, to make the law applicable all over the Country. Even Mr. Soli Sorabjee said something to the same effect. But Justice SB Sinha, in Kusum Ingots & Alloys Ltd. V. Union of India, (2004) 6 SCC 254 told me:

"An order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act." (Para 22)

I don't know who to believe.