Wednesday 18 November 2009

Recent Recusals by Judges in Supreme Court

Just argued on Rainmaker that Recusal instances should be categorized into 2, and Judges should be careful to see that "bench-hunting" is not permitted. Check it out.

3 comments:

  1. Another aspect that has been debated in the recent times is the use of contempt of court act, by the Honourable courts. It is an established principle of civility that one cannot judge and award punishment for injury caused to self. That is, one cannot be a victim and a judge simultaneously for the same incident. The entire concept of judiciary seems to be based on this principle. In the case of “contempt of court,” the victim is the judiciary. So, it may not be appropriate for judiciary to adjudicate the case. The law should be changed so that on the rarest of the rare occasions when “contempt of court” cases arise, they should be referred to the Parliament or the Executive. The adjudication can still be done by professionals drawn from the legal community, but reporting to the Executive or the Parliament. This body of legal professionals which does not report to the judiciary should also be vested with the power to entertain any complaints against the judiciary. Just like a victim cannot adjudicate injury done to him, so also an accused, in this case, the judiciary, cannot adjudicate complaints against himself.

    A democracy will not be effective when freedom of speech is scuttled and there is no transparency in government transactions. Parliament proceedings are now widely available to the public on the internet, TV, etc and are freely debated. Judiciary should similarly make all of their judgments open to the public and allow public to freely comment on them. Thanks to the technology, the Internet is now writable. Technology allows any reader to post comments right underneath what they read on the Internet. So, judiciary can use this technology to gain confidence of the public. If the inability of the honourable judges to call for a press conference to defend criticism is the chief holding factor to implement this, this restriction can be removed. In fact, we often are seeing the Honourable judges making statements to the press on various occasions. So, the justification that judges cannot call for press conferences does not seem to hold water.

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  2. Thanks for the post Vishnu.
    1. Judgments of the Supreme Court are already public. They are also openly commented upon in legal journals. This has been the practice forever.

    2. DO you know how many contempt of court cases are listed every day?? Each High Court has a special judge sitting only for contempt cases, who has at least 100 cases listed each day. You think the legislature could handle that?

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  3. Thanks Rohit:

    1. Just like a disease is better controlled when the doctor and the patient share the same perspective, law is best applied when the legal experts and common public think alike. This convergence is best achieved by free and fair interaction. Though the judgments are public, public cannot comment on them easily for fear of contempt of court and lack of technology. So, my suggestion was for the honourable courts to post the judgments in web 2.0 technologies like this one, where readers like me can comment on them as I'm doing now.

    2. Yes, I guessed. My hope was that this number will or should drastically go down by legislation or practice when CC cases are handled by a legislative sub-committee. I read about the contempt cases on SC Advocate Prashant Bhushan and one other HC advocate in APHC and felt they were unfortunate happenings. Anyway, my 2 cents :)

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