Monday, June 7, 2010

Blog Post by Justice Shylendra Kumar - Netizens & Citizens VII 22-05-2010 (justdvskumar)

Netizens & Citizens VII 22-05-2010 (justdvskumar)

Justice D V Shylendra Kumar

Judge, High Court of Karnataka


Bangalore,
22nd May, 2010
NETIZENS AND CITIZENS,

Our High Court was closed for summer vacation from Monday, the 26th of April, 2010 and we are resuming work from Monday, the 24th of May, 2010.
The last time I addressed you was on Tuesday, the 9th of March, 2010 when I was still performing my duties at the Principal Bench of our High Court, Bangalore and I was deputed by our Chief Justice to perform duty at the circuit Bench of the High Court at Dharwad from Monday, the 22nd of March, 2010.
In service parlance and language, it is not really a deputation as the High Court is only one High Court and as of now it is functioning through the Principal Bench at Bangalore and circuit Benches at Dharwad and Gulbarga and the duties of the Judges of the High Court is to perform at the Principal as well as circuit Benches, in different combinations and in respect of the subject matter assigned to the Judges by the Chief Justice of the High Court, which position continues to be occupied by Justice P D Dinakaran.
In my earlier communication, I had conveyed to you that the Chief Justice of our High Court, Justice P D Dinakaran who has been facing an impeachment motion before the Parliament and in that context has not been performing on the judicial side from 17th of December, 2009 onwards, should not perform or exercise his powers and authority as a Chief Justice on the administrative side also and that it is not in the fitness of things. A Chief Justice not functioning on the judicial side continuing to exercise authority on the administrative side does not augur well for the system in maintaining the image of the judiciary.
In my open letter/appeal to the Chief Justice dated 8th of March, 2010, I had earnestly appealed to our Chief Justice not to exercise powers on the administrative side also and to refrain from doing so and a copy of this communication had in fact been posted on my website and you are all familiar with it. But, my appeal had only fallen on deaf ears and Justice P D Dinakaran has continued to regale in mal-administering the power and authority as a Chief Justice of the High Court.
A few words about the circuit Benches of the High Court and the Judges of our High Court serving in circuit Benches.
While it is the prerogative of the Chief Justice of the High Court to constitute Benches which in turn implies, who has to function at the circuit Benches and who all at the Principal Bench, even in the matter of assignment of subjects for Judges to hear and dispose of cases, it is again the prerogative of the Chief Justice. This is an important administrative power of considerable significance. Importance is it is the Chief Justice who decides what cases should go before which Judge and the significance is that a Chief Justice lacking bona fides can manipulate constitution of the Benches as well as assignment of the subjects to the individual Judges to his whims and fancies and more so when the Chief Justice gets personal and wants to confer bounties on his favourites and create problems and meet out hardship on those Judges who possibly may not tow his line.
Our former Chief Justice, Justice Cyriac Joseph who is presently functioning as a Judge of the Supreme Court of India had, while so functioning as Chief Justice of the Karnataka High Court had in a lighter vein, remarked that a displeased or annoyed Chief Justice can use his powers to constitute Benches and to nominate Judges to serve on the circuit Benches, as a tool to punish or seek vengeance, on those whom he does not like or approve of.
Personally speaking, I am not sure whether our present Chief Justice, Justice P D Dinakaran likes me or dislikes me. But, the fact of the matter is I am the only Judge in the Karnataka High Court who has served on the two circuit Benches put together, on five occasions, three times at Dharwad Bench and twice at the Gulbarga Bench whereas at the time I was deputed to Dharwad Bench to perform duties from 22nd of March, 2010, there were a couple of Judges in the Karnataka High Court who had done only three stints and were eminently qualified to serve at the circuit Bench, Dharwad. Their claim was overlooked and I was favoured!
In fact, I wanted to know from the Chief Justice as to why he was favouring me, repeatedly to serve at the circuit Benches. Chief Justice did not even have the courtesy of giving me an audience nor was prepared to speak to me over the telephone. In the absence of any response to my query, with the roster published by the High Court registry, having indicated that my sitting was at the circuit Bench at Dharwad and heading the Bench from 22nd of March, 2010 onwards, I had no choice but to make myself available at Dharwad to perform my duties at the circuit Bench.
In between, when I was at Bangalore on Saturday, the 17th of April, 2010, my wife and I visited the residence of the Chief Justice to enquire about the health of the Chief Justice and Mrs. Dinakaran as it was being talked that they had some health problems. While my wife and I waited for more than twenty minutes in the waiting hall at his residence to meet the Chief Justice and Mrs. Dinakaran, Mrs. Dinakaran’s elder sister, whom I literally confused to be Mrs. Dinakaran herself, met us and informed us that the Dinakarans are not willing to see us.
I did respond saying that the official residence of the Chief Justice being their residence, it is definitely their prerogative to meet or not to meet persons visiting their house even as the English saying goes that ‘A house is a man’s castle’ and while we left, we left behind a few fruits which we had carried as is the custom in our society, particularly, when visiting elderly people with health problems, with a request to sister of Mrs. Dinakaran to handover the fruits to them with our good wishes, for normalcy.
That evening, we were to visit a relative and after that we returned to our house. The security man at the gate informed us that the fruits which we had left at the Chief Justice’s residence has been returned as they were not willing to receive it. At the exact moment, one of my former colleague came to our house and I told him in a lighter vein that there is a proverb in Urdu that ‘Dhane Dhane pe likha hai khane wale ka naam’ which in English translation means “Every grain has etched on it, the name of the person for whom it is meant!”. To my great satisfaction, my former colleague very gleefully accepted the fruits.
With the herald of summer vacation for our High Court and after completing my five weeks stint at Dharwad, I returned to Bangalore.
In between, I had visited Bangalore every week end, once to participate in the National Seminar on ‘Good Governance: Its Dimensions & Challenges’ held on Saturday, the 27th of March, 2010 at Sri Vivekananda Law College, Bangalore and in the next week i.e., on Sunday, the 4th of April, 2010, to deliver an Endowment Lecture as part of silver jubilee endowment lecture series at the SDM Law College, Mangalore on the topic of “The need for Judicial Accountability in the era of Judicial Transformation”. A copy of this lecture is posted along with this communication for your perusal and reactions.
As already indicated, the purpose of addressing this communication to you all is to create awareness and also to give an insight into the happenings in the judicial system which has been kept a jealously guarded secret, which in my opinion is the root cause for all maladies in the judicial system.
It is said that there is no better disinfectant than sunlight and there cannot be a better disciplinarian than transparency. It is only in places where there is lack of transparency, engulfed in darkness, all sorts of malpractices prevail, illegalities, exploitations and even atrocities take place.
There has been tremendous response from the general public and media in particular in the wake of some important developments in the judicial system, particularly with Justice K G Balakrishnan whose reign as Chief Justice of India lasted for a period of three years and approximately four months came to an end with Justice K G Balakrishnan laying down office on Tuesday, the 11th of May, 2010 and the next senior most Judge of the Supreme Court Justice S H Kapadia having assumed charge as the Chief Justice of India.
The media has not been kind in expressing its views about the tenure of Justice K G Balakrishnan as Chief Justice of India and in fact has been highly critical of the manner in which Justice K G Balakrishnan had functioned, particularly, in trying to stonewall the efforts of the inquisitive and serious members amongst the litigant public to seek information about the manner of functioning of the Supreme Court on the administrative side, more so about the collegium business.
The adamant manner in which Justice K G Balakrishnan had not only refused to divulge information about the developments on the administrative side, but also had tried to stonewall the judicial opinion as expressed by the Delhi High Court in holding that the Supreme Court of India, as an institution, is also amenable and has to part with information to seekers/applicants under the Right to Information Act. This stubborn attitude, in fact, greatly damaged the image of judiciary in the country and the already eroding faith and confidence of the people of the country in the judicial system only got further reduced in the wake of such an attitude on the part of the former Chief Justice of the country.
I had indicated in my earlier communications that I am an optimist and hope to see light at the end of the tunnel and that Judiciary will be restored to its earlier glory and will serve as a true and genuine institution to protect the lives, liberties and the rights of the citizens of the country as mandated in the Constitution of India.
I have echoed this view in my endowment lecture at the SDM Law College, Mangalore, the lecture being part of the endowment lecture series is undoubtedly a little lengthy and does test the patience of the readers. Unless one has a penchant for knowing about the role of judiciary, its past, present and future performance, the lengthy lecture may not be capable of retaining the readers’ interest till the end. For the benefit of the readers, I have put a small abridged version of this lecture at the end of this communication for ready reference, and if you desire to read the full text, you can open the attachments to this communication. Well, you can take a break and read it in installments. The lecture may be of interest more to academicians and law persons whether practicing law or teaching law than the lay persons. There can be several views and even quite divergent from the view that I have expressed in my lecture, well, we are in a democracy and everyone has a right to express his views.
While on this topic, I would like to dwell upon the special position of the Supreme Court of India. The Supreme Court of India undoubtedly is one of the most powerful courts in the world today and being the Apex Court in our country, its verdict is final, not amenable to any further appeals or revisions, except for the limited scope of seeking review of the Judgment. The law declared by the Supreme Court binds all courts in this country even as per the Constitutional mandate under Article 141 of the Constitution of India.
It is said that, to err is human and the Supreme Court being comprised of Judges who are also human beings, it is quite possible, some Judgments may go wrong, some Judgments might have errors and the Judgments and the law declared by the Supreme Court may be incorrect and amenable to criticism. When once a Judgment is rendered and the law is declared by the Supreme Court, it becomes the law of the land and has to be applied by all courts. At the same time, once the Judgment is rendered, it passes into public domain and will be amenable and open to debate, healthy criticism and even a possible public opinion being evolved to point out the drawbacks/errors in the Judgment and to usher in suitable corrective mechanism to set right an incorrect view or a faulty opinion, in the absence of an appeal or revision.
This can be achieved by one or the other of the accepted, permitted, legal and constitutional methods only and not otherwise. One possibility is seeking for review or for change of opinion in a later case before the Supreme Court wherein the very question arises for examination, but to persuade the Supreme Court to take a different view notwithstanding the earlier view expressed by it and that view having become the law of the land so that the law of the land can definitely be changed for the better.
Fortunately for us, our Supreme Court has that power and flexibility and is not bogged down by the English legal principle of ‘stare decisis’. This principle to an extent has been given a go by even in the English legal system and of course never found favour with our Supreme Court from the very beginning. If I say this, it does not mean that the Supreme Court should keep tinkering with its Judgment every other day or to keep changing its opinion every time a disgruntled litigant seeks for a different direction in law.
Hallmark of law and a Judgment of the court lies in its certainty and finality. If law becomes uncertain and wavering, that again causes grave damage to the legal system and to the society at large as people get confused due to the fickleness of law and the professionals in the legal field will also be left bewildered and that can pave way for erosion of faith and confidence in the judicial system. This is a quagmire area and judiciary should be careful and cautious not to get entrapped in such pits.
Justice P D Dinakaran continuing to exercise authority and functioning as the Chief Justice, albeit only on the administrative side of the High Court is not a healthy augury for the judiciary, more so when the power and authority is being continuously misused or abused and even otherwise a lame duck Chief Justice being at the helm of affairs in the High Court on the administrative side is definitely not a healthy trend and can be taken advantage of by other unscrupulous and greedy officials at the lower levels.
Recently, I heard that there were some malpractices, particularly, some illegalities having taken place in the matter of expenditure incurred by the High Court under the head ‘hospitality expenditure’, more so, during the stewardship of Justice P D Dinakaran as Chief Justice of the Karnataka High Court.
Being a little disturbed with such development, I had sought for some factual information from the registry and the information which I received has not put me at ease, but on the other hand has put me to great uneasiness and anxiety, particularly about the way and the direction which our High Court is heading.
I am placing the particulars of expenditure incurred as furnished by the registry for the information and perusal of the general public, an information which is otherwise available to you all under the Right to Information Act, and to form your own opinion and of course to react and respond suitably.
Under our constitutional scheme, judiciary does not have financial independence and the expenses in the judiciary is also part of the budgetary proposal and being voted by the State legislatures and the Union in the Parliament and therefore to that extent judiciary was blissfully kept independent of any financial responsibilities and the concomitant accountability with regard to expenses.
While that is the scheme under our Constitution, in recent times, with all sorts of additional responsibilities having sprouted on the courts, particularly, at the level of the High Courts and the Supreme Court and the High Courts and the Supreme Court getting more and more active on the administrative side, have been privy to considerable extent of State funds and whom the amount is being spent at the sole discretion of the Members of the Judiciary.
The checks and balances which are available under the Constitutional scheme and the statutory scheme in respect of any State expenditure, particularly, the scrutiny by the Comptroller and Auditor General of India under Article 148 of the Constitution of India is not fully or strictly applied in respect of expenditure incurred by the Judiciary in respect of funds which are available at the disposal of the Judiciary wherein the discretion of the Chief Justices matters. The State making available vast funds as part of the services made available to the general public under the Karnataka State Legal Services Authorities Rules, 1996 and being at the sole discretion of the Executive Chairman who is a Member of the Judiciary and Judge in the High Court, while has given considerable financial independence and capability to the Judge heading this Authority, the manner of utilization/application of such large amount has come in for criticism and over a period of time, the public opinion is that Judges are most ill suited to occupy the position of a Executive Chairman of the Legal Services Authority and it should be looked after by other persons who do not have the onerous judicial responsibilities to discharge.
Well, opinions may differ, but the fact remains that Judges becoming privy to large or vast amounts has not been a healthy trend if one should look at the developments during the past two decades and it certainly calls for a debate, a rethinking and suitable changes if so felt and warranted.
I learnt that Karnataka State Legal Services Authority had received not less than Rupees Thirteen Crores for its annual expenses during the year 2009-10 and I was not very happy with the manner of the funds allocated to expenditure of this Authority and I had called for information about the same when I was serving at the Circuit Bench of the High Court at Gulbarga during November-December 2009.
It took more than three to four months for the Member Secretary of the Karnataka State Legal Services Authority to part with this information even to a Judge of the High Court and it is only with some pressure and threats I was able to get the information. This again is not a very healthy development, particularly, if persons who are entrusted with public funds are asked for accounting the same, it should be available at a minute’s notice and at fingertips, and not furnished after three months like some Judges, declaring the particulars of their assets and liabilities!.
One another recent development is that some of my other colleagues in the Karnataka High Court also have declared particulars of their assets and liabilities and such information about nineteen Judges also finds a place on the website of the Karnataka High Court. While it is undoubtedly a welcome development, here again, I sam a little vary of the manner in which things are moving, particularly as, most unfortunately while some of my colleagues took not less than nine months to reveal their assets and liabilities some others have not disclosed till date which again is a phenomenon which creates doubts and suspicion in the minds of the general public, about our judicial system.
Unfortunately, the Judges of the Supreme Court themselves led the way in this regard by not revealing the particulars of their assets and liabilities immediately following their own voluntary, unanimous resolution to declare their assets and to throw it into public domain and which particulars had been claimed by the then Chief Justice of India, K G Balakrishnan, was available with him even from the year 1997 onwards in respect of all Judges who had assumed charge as Judges of the Supreme Court of India and which information should have been made available the next moment or the day after the resolution, but was made available only three months thereafter!
What was the reason for the unholy delay and that too, to make available an existing information. Format is not the criteria, but the substance. The information required was regarding particulars of assets and liabilities and not the manner of presentation. Alas! That did not happen and the High Courts have only taken cue from this lead and have been improving upon it.
Even today, many Judges in several other High Courts have not yet declared the particulars of their assets and liabilities. As I have indicated earlier, Judiciary is one organ of the State wherein not a single corrupt person can be accepted or allowed to remain. There should not be any suspect person in judiciary. Well, that is my concept and perception of Judiciary and my goal also. With your enlightened awareness and response, I am sure we can definitely reach this goal.
With regards and good wishes, for the present. More in days to come.
Justice D V Shylendra Kumar
Judge, High Court of Karnataka,
Bangalore
Email: justdvskumar@gmail.com

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