Mr. Praveen Garg,
Department of Justice,
Ministry of Law & Justice, New Delhi
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Feedback in compliance to suggestions sought from general public with respect to Supreme Court Advocates on Record Association and Anr Vs. Union of India
- Writ Petition (s) (Civil) No(s) : 13 of 2015
- Web Page notice dated 5.11.2015 in Department of Justice http://www.doj.gov.in/sites/default/files/userfiles/PUBLIC-NOTICE.pdf
We introduce ourselves as DAMAN Welfare Society, a registered NGO having its members from all across country. Here, on behalf of all our members we are sending our suggestions sought from general public with respect to Supreme Court Advocate on Record Association and Anr Vs. Union of India.
- The suggestions are presented in relation to following sequential manner: (1) Transparency (2) Collegium Secretariat (3) Eligibility Criteria (4) Complaints.
- We espouse whole heartedly the cause of 10 crore Litigants loitering the hallowed corridors of several courts seeking justice. These Litigants have to be rescued from their delusion that Justice is real and attainable and is not a distant mirage. Several freedom fighters sang the only song they knew ‘Freedom & Democracy’.
- There is one typical case of a person born in Hangal, Haveri District in Karnataka (http://amitdesh2k.blogspot.in/), in the year 1916 and set his feet as a Freedom Fighter at the very tender age of 12. He was jailed during the Quit India Movement and booked for Sedition. Left out of school, he continued his contribution to the freedom movement and supported the activities of the Congress party by even defying curfews.
- In late 1950s he filed a civil suit, to gain right over his allotted plot. After innumerable counter suits, claims and counter claims, the land still isn’t yet declared as free from any dispute. Even after almost 60 years, this said suit is still undecided, for this Freedom Fighter. This person is none other than the Late Mr. Subramaniam Acharya Akkivalli – better known as Subbannacharya who was born in 1917 and who passed away in the year 2015 without
- realising justice for the dispute. This could well represent the plight of any Litigant in our Country.
- Category 1: – Transparency
1.A Transparency in Procedure and Rules
1.A.1 The Collegium Secretariat to formulate and publish the procedures and rules for appointment of any person to the higher judiciary in compliance with Article 312 of the Constitution of India.
- A.2 The Collegium Secretariat shall define the procedure and stages of appointment / recruitment
1.A.3 Inter alia, the following stages, Transparency in appointment proceedings from start to confirmation of a candidate for the selection process of permanent judgeship, are as follows:
- Publishing of vacancies
- Receiving of applications
- Evaluation of applications
- Background verification of applicants
- Written Exam for Evaluation
- Interviewing of applicants
- Ranking of applicants
- Score cards for applicants
- Publishing of results
- Strict collection of Archives of candidates’ records, audio & video recordings pertaining to the appointment proceedings; maintenance and efficient digital retrieval system.
- A.4 The procedure and rules shall be vetted by the Executive and the Parliament concurrently.
1.B Transparency at Every Stage
1.B.1 Transparency starts from publishing of notification of the yearly I.J.S Exams to confirmation of candidates to permanent Judgeships.
1.B.2 The applications of all candidates shall be in a prescribed form filed as a sworn affidavit and the same to be placed in the public domain e.g. Internet. The Collegium secretariat shall define the prescribed form in compliance with Article 312 of the Constitution of India.
1.B.3 All records of evaluation of records shall be made available in the public domain. E.g. Internet
1.B.4 All proceedings of the evaluation to be audio and video recorded and the same shall be placed in the public domain.
1.C Transparency in collegium secretariat’s orders
1.C.1 All grievances on orders passed by collegium secretariat shall be subject to review by Executive and the Parliament concurrently, within a period 90 days upon receipt of such complaints.
1.C.2 All documents and orders passed by the Collegium secretariat shall be subject to scrutiny of the Executive and the Parliament concurrently in conformity to requirement of ensuring checks & balances and counter-checks & counter-balances.
1.D Extent of Transparency
1.D.1 All the above documents are to be uploaded on the internet for public viewing
1.D.2 All the above audio & video recording is made available at the internet kiosk of the information centre of the High Court Campus and District Court Campus to enable accessibility of the general public (exclusively).
1.D.3 All subjective analysis, feedback & scoring, evaluation of members of the Collegium Secretariat are to be audio and video recorded. The same are to be sent to the Central Repository of Archives for a period of 20 years. This information to be made available under Right to Information Act 2005 for General Public.
1.D.4 The transparency as such, shall lie outside the ambit of Official Secrets Act 1923, its amendments and any other variants of such other Statutes.
- Category 2: – Collegium Secretariat
2.1 The Collegium Secretariat ought be modelled on Union Nations Organization’s Secretariat.
2.2. The Collegium secretariat shall comprise of 3 departmental functional roles. The Secretaries shall be a retired Supreme Court Judges. The tenure shall be for a period of 5 years. The cooling period shall be 3 years from the date of retirement to exclude favouritism for appointment of post-retirement sinecures.
- All candidates for appointment of functional roles of the Collegium Secretariat (excluding clerical staff) shall be subject to interview and evaluation process.
- The Prime Minister, Leader of the Opposition and Chief Justice of India, shall nominate their representatives for the selection committee and number of such representatives shall be jointly decided by them.
- The selection committee shall propose 3 candidates for each Secretarial position, viz.,
- Secretary for I.J.S Institution
- Secretary for Judicial Appointment
- Secretary for Complaints
- The quantum of staff is to be determined based on the philosophy of a lean, mean and hungry team and based on scope, quantum and extent of work. The responsibility of determining the quantum of staff for functional and clerical roles shall vest on the Secretary nominated by the Selection Committee.
- Any Complaints on the Collegium secretariat itself shall be subject to provisions enumerated in Category 4:- Complaints
- The Collegium secretariat shall report to the Executive and the Parliament concurrently.
3) Category 3: – Eligibility Criteria
3.A Eligibility for Judgeship
The basic Eligibility criterion for admission to the Higher judiciary MUST be that the candidates ought to have been selected competitively and must have completed successfully the Indian Judicial Services ( I.J.S) Curriculum.
3.B Entrance Eligibility for Judgeship in Higher Judiciary
3.B.1 Sound knowledge and extent of legal attainment
3.B.2 Sound and Ready Sagacity
3.B.3 Perspicuous and Excellent Reasoning (possessing capabilities for points for determination, pronouncing judicial decisions, reasons thereof for such judicial decision)
3.B.4 Appropriate aid of general information , inter alia, as stated in section 57 of Indian Evidence Act 1872.
3.B.5 Impeccable Integrity as well as Honesty, must uphold, preserve, protect and defend the Constitution of India, and qualities must be visibly demonstrated, recorded and must have the stamp of sterling gold.
3.B.6 Exhibit excellent competency and Probity in Life.
3.B.7 All recruitment and administration are to be brought under the strict aegis of Article 312 of the Constitution of India and all candidates are to be brought under the ambit of Indian Judicial Services (I.J.S)
3.B.8 Every candidate ought to have undergone 5 years training from the I.J.S Institution for being appointed as a District Judge at the entry level and must have served as a District Judge for 5 years before being considered for a post in the Higher Judiciary.
3.B.9 One family one position For a period of every 20 years, only one person from any family is to be appointed as a Judge. This brings under the fold his parents, grandparents, parents-in-law, uncles, relatives ( include blood relatives and relatives-in-law)
3.B.10 Applications with sworn affidavits on Assets & Liabilities of Prospective Judges and, their family members and blood relatives have to be furnished before the start of the selection process.
3.B.11 The affidavits shall provide details pertaining to past and present officers of the court viz., pubic prosecutors, lawyers and the Judiciary ( sitting and past members of the Bench)
3.B.12 Every promotion/ elevation of a judge shall be subject to evaluation of written, oral, judgemental skills and integrity, till retirement.
3.B.13 Every 3 years, Judges shall be subject to Competency evaluation of written, oral, judgemental skills and integrity, till retirement.
- Where from this basic eligibility of I.J.S springs from the unpolluted stream of the Constitution of India?
3.C.1 Article 312 of The Constitution of India enumerates the creation of I.J.S.
3.C.2 Article 312 (4) clearly states that I.J.S is part and parcel of The Constitution i.e, if any amendments necessary for giving effect to the provisions of Law, the same shall not be deemed to be an amendment of the Constitution for the purpose of Article 368.
3.C.3 In other words it is subsumed under the basic structure of the Constitution of India. Hence it is beyond the scope and reach of any judicial review by the Judiciary. And this position is unassailable.
3.C.4 Any further inordinate procrastination is tantamount to denial of true administration of justice.
3.C.5 Article 312 is given below:
- All India Services
(1) Notwithstanding anything in Chapter VI of Part VI or Part XI, if the Council of States has declared by resolution supported by not less than two thirds of the members present and voting that it is necessary or expedient in the national interest so to do, Parliament may by law provide for the creation of one or more all India services (including an all India judicial service) common to the Union and the States, and, subject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service
(2) The services known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article
(3) The all India judicial service referred to in clause ( 1 ) shall not include any post inferior to that of a district judge as defined in article 236
(4) The law providing for the creation of the all India judicial service aforesaid may contain such provisions for the amendment of Chapter VI of Part VI as may be necessary for giving effect to the provisions of that law and no such law shall be deemed to be an amendment of this Constitution for the purposes of article 368
3.C.6 Any judge within the territory of India assumes office by taking the following Oath
“I do solemnly swear (or affirm) that I will faithfully execute the Office of Judicial Officer, and will do to the best of my Ability, preserve, protect and defend the Constitution of the India”
When such is the sweep, operation and grandeur of the oath of any judicial officer, the creation, administration and management of I.J.S is one of most paramount aspects of bedrock of the judiciary. This is not something outside the ambit of The Constitution of India to be given a go-by.
3.C.7 The Renowned scholar and an ardent admirer of The Indian Constitution, Granville Austin, would have become a shrinking violet in his grave if the I.J.S were not implemented.
3.C.8 We humbly and respectfully submit that in 2016 the first academic calendar of IJS is to be established. As an interim measure eligible and competent candidates maybe conferred with I.J.S to carry-out their official duties.
- C. Creation of I.J.S Institution
An autonomous institution modelled on the I.A.S Academy , Dehradun is to be established for Indian Judicial Services ( I.J.S). Natural citizenship and not acquired citizenship will be the basic eligible criterion. Any graduate, irrespective of the fact that such a candidates is a student of Medicine, Engineering or Science or Arts or Law can apply for the entrance exam. There shall be no bar whatsoever
The Collegium Secretariat shall assume the following functional roles, subject to the vetting concurrently by the Legislative and the Executive:
3.C.1 Formulate the 5 year comprehensive curriculum,
3.C.2 Conceive the infrastructure facilities required and location of the institution
3.C.3 Identify the training facilities and faculty and necessary appointment
3.C.4 Supervise the administration of the training facilities
3.C.5 Any breach of consistency or glaring leaps of the Rules& Procedures and legal formulations of the I.J.S shall be dealt with punitively along with fines.
- D. Implementation of I.J.S Institution
3.D.1 Legislation of necessary statutes by the Parliament in accordance with Article 312 of the Constitution of India for establishing the I.J.S Institution
3.D.2 Speedy and necessary implementation by the Executive for compliance to Article 312 of the Constitution of India
- E. Reporting Structure of I.J.S
3.E.1 Reporting structure:
- The I.J.S Governing Body shall report to the Collegium secretariat;
- The Collegium secretariat shall report concurrently to
- The Executive
- The Parliament.
3.E.2 The above reporting structure is essential to ensure checks & balances and counter-checks & counter-balances by the pillars of the Democracy.
3.E.3 This reporting structure is required to ensure the ‘True Administration of Justice’.
3.E.4 This is in accordance with ‘Doctrine of Separation of Powers’ and this is an inalienable aspect of the Constitution of India.
- F. Entrance Eligibility for I.J.S
3.F.1 All recruitment and administration are to be brought under the strict aegis of Article 312 of the Constitution of India and all candidates shall be brought under the ambit of Indian Judicial Services (I.J.S)
3.F.2 One family one position For a period of every 20 years, only one person from any family is to be appointed as a Judge. This brings under the fold his parents, grandparents, parents-in-law, uncles, relatives ( include blood relatives and relatives-in-law)
3.F.3 Applications with sworn affidavits on Assets & Liabilities of Prospective Judges and, their family members and blood relatives have to be furnished before the start of the selection process.
3.F.4 The affidavits shall provide details pertaining to past and present Officers of the Court viz., Pubic Prosecutors, Lawyers and the Judiciary ( sitting and past members of the Bench)
3.F.5 Applicant ought have following pre-requisites:
- He is a natural citizen of India.
- He ought to have completed the age of 30 years.
- He has obtained any degree in Medicine or Engineering or Science or Arts or Law
- He fulfils other conditions as may be specified by the Collegium Secretariat from time to time.
- He fulfils the background checks and other verification
4)Category 4: – Complaint
4.1 John Milton has quoted “They also serve who only stand and wait” and this should not be made applicable in the appointment of Judges, for academic credentials, competency and unblemished records of service / achievement should not go unrewarded.
- Complaints ought to be received without prejudice at all stages till the candidates are confirmed with permanency of Judgeships. Inter alia, the stages that are brought under the fold of complaints are:
- Potential candidacy,
- Shortlisted candidacy
- To be-appointed candidacy
- Probationary candidacy
- Judgeships awaiting permanency.
- All Complaints to be in Affidavit format with an undertaking that
“ The complaints if unproved beyond a reasonable doubt, then the complainant shall be subject to criminal prosecution under section 340 Cr.P.C read with sections 190 and section 211 of the Indian Penal Code”
- Enquiry ought to be conducted in the presence of the complainant and proceedings to be audio and video recorded, in furtherance of section 327 of Cr.P.Code.
- Once a complaint is taken cognizance of, the complainant ( a litigant or a lawyer) shall not appear before the Respondent Judicial Officer in the court in which he Presides as a sitting Judge.
- All records ought to be archived for a period of 20 years in electronic and physical formats.
- Amendment of the Indian Penal Code on treason is necessary to address commissions/ omissions for perpetuating fraud on the selection of Judicial appointments to the Judiciary. If indeed, the Constitution of India has to reign Supreme as originally envisaged by the Founding Fathers and which is integral to the very survival of Democracy, no perpetuation of fraud on the selection of Judicial appointments can be tolerated. Hence, the offences shall be tried under Indian Penal Code, Criminal Procedure Code and Indian Evidence Act,1872 on charges of ‘ High Treason’ . Inter alia, the Offences are as follows:
- Furnishing false affidavit by the candidates
- Furnishing false/ incomplete background verification by Intelligence Bureau or other agencies involved.
- Malafide intent to scuttle scrutiny of a meritorious candidate
- Any other offence of fraud
The instance of the Late Mr. Subramaniam Acharya Akkivalli (Freedom Fighter) who was born in 1917 and who passed away in the year 2015 without realising justice for the past 60 years of litigation, is indeed a powerful instance and significant portrayal of the legal maxim “ Justice Delayed is Justice denied” Is this what represents the true spirit of democracy and administration of Social Justice? If this were to be reversed and the pristine glory of democracy and administration of social Justice are to be established in all its might & grandeur, then the above suggestions ought to be taken cognizance of and implemented in its true spirit and in words for the realisation of democracy and true administration of Justice which is best summarized as follows:
- With India becoming a litigant-freak-nation it is all the more important that the above suggestion are viewed seriously for implementation
- In each and every stage it is necessary that checks & balances, counter-checks & counter-balances are incorporated and strictly adhered to, to ensure that the pillars of the democracy/ State are in their firmest state. Specific conclusions for each and every category are as follows:
5.1) Category 1 – Transparency
- Transparency is the ‘key driver’ for (1) procedure and rules for selection of judges, (2) transparency at all stages of evaluation & (3) transparency in collegium secretariat’s orders
- Audio & video recording is mandatory for each and every stage of judicial appointment
- All documents ought to be internet enabled
- The transparency as such, shall lie outside the ambit of Official Secrets Act 1923, its amendments and any other variants of such other Statutes.
5.2) Category 2: – Collegium Secretariat
- Collegium secretariat ought to be modelled on Union Nations Organization’s Secretariat.
- The Collegium secretariat shall comprise of 3 departmental functional roles viz., (1) I.J.S Institution, (2) Judicial Appointments and (3) Complaints.
- The Prime Minister, Leader of the Opposition and Chief Justice of India, shall nominate their representatives for the Collegium Secretariat selection committee and the number of such representatives shall be jointly decided by them
- The business of the Government is governance and not Business, similarly the business of the Judiciary is administration of justice and not the Business of Administration. Hence the prerogative of administration shall rest with Collegium Secretariat
5.3) Category 3 – Eligibility Criteria
- J.S completion is a vital pre-requisite for consideration of Judgeship
- Other important pre-requisites are (1) Sound knowledge and extent of legal attainment (2) Sound and Ready Sagacity (3) Perspicuous and Excellent Reasoning (4) Appropriate aid of general information (5) Impeccable Integrity as well as Honesty (6) Exhibit excellent competency and Probity in life.
- The creation of I.J.S is in consonance with Article 312 of The Constitution of India.
- As per Article 312 (4) I.J.S is part and parcel of The Constitution and any amendments made, shall not be deemed to be an amendment of the Constitution for the purpose of Article 368. In other words it is subsumed under the basic structure of the Constitution of India. Hence it is beyond the scope and reach of any judicial review by the Judiciary. And this position is unassailable.
- Any graduate, irrespective of the fact that such a candidate is a student of Medicine or Engineering or Science or Arts or Law can apply for the entrance exam.
- Any breach of consistency or glaring leaps of the Rules and Procedures and legal formulations of the I.J.S shall be dealt with punitively along with fines.
- Every candidate ought to have undergone 5 years’ training from the I.J.S Institution for being appointed as a District Judge at the entry level. He ought to have served as a District Judge for 5 years before being considered for post in Higher Judiciary.
- Only one person from any family shall be appointed to the post of judgeship to the complete exclusion of his relatives and the applicable period shall be 20 years.
- Sworn affidavits shall accompany applications for Judgeship pertaining to assets & liabilities of the Prospective Judges and his relatives jointly and severally.
- Every promotion/ elevation of a judge shall be through a process of written, oral, judgemental skills and integrity evaluation till retirement.
- We humbly and respectfully submit that in 2016 the first academic calendar of I.J.S is to be established. As an interim measure eligible and competent candidates maybe conferred with I.J.S to carry-out their official duties.
5.4) Category 4 – Complaints
- All Complaints shall be in the form of Affidavits and if the Complaints are proved baseless the Law of Retribution namely Perjury shall be applicable on the complainant
- All enquiries to be audio and video recorded, in furtherance of section 327 of Cr.P.Code.
- Any Perpetuation of any commission/ omission for fraud on the selection of Judicial Appointments shall incur the wrath of punishment for offences of ‘High Treason’.
There is a world of difference between ‘A Government’ and ‘The Good Government’. For the sustenance of Good Government, the true administration of Justice is its firmest pillar.
Hence, our suggestions ought to be considered for implementation for realising Good Government.
DAMAN Welfare Society
128/533, Y-1, Kidwai Nagar, Kanpur Nagar – 208 011
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