2 BJP-ruled states among 7 opposing all-India judicial service

2 BJP-ruled states among 7 opposing all-India judicial service
2 BJP-ruled states among 7 opposing all-India judicial service

Seven states, including BJP-ruled Madhya Pradesh and Arunachal Pradesh, have opposed the formation of an all-India judicial service, a 60-year-old proposal which has received a fresh push from the Modi government.

Another BJP-ruled state, Maharashtra, wants recruitment for the all-India judicial service (AIJS) to be done in a particular manner which the Law Ministry feels is “not in consonance” with the provisions of the service included in the Constitution.

According to a Law Ministry note on AIJS circulated to members of a parliamentary consultative committee attached with the ministry, the governments of Bihar, Chhattisgarh, Manipur, Odisha and Uttarakhand want major changes in the proposal formulated by the Centre.

“State governments of Arunachal Pradesh, Himachal Pradesh, Karnataka, Madhya Pradesh, Meghalaya, Nagaland and Punjab do not favour formation of AIJS. The Maharashtra government wants recruitment to be done at judicial magistrate (first class) level which is not in consonance with the provisions of AIJS included in the Constitution,” it said.

Besides these 13 states, “no response” has been received from the rest, the note states.

Also, the high courts of Andhra Pradesh, Bombay, Delhi, Gujarat, Karnataka, Madhya Pradesh, Madras, Patna and Punjab and Haryana have not favoured the idea.

The Narendra Modi government has given a fresh push to the long-pending proposal to set up the new service to have a separate cadre for lower judiciary in the country.

There is also a divergence of opinion among state governments and respective high courts on the constitution of the AIJS.

One of the problems cited is that since several states, using their powers under Code of Criminal Procedure (CrPC) and Code of Civil Procedure (CPC), have declared that the local language would be used in lower courts even for writing orders, a person, say selected from Tamil Nadu, may find it difficult to hold proceedings in states like Uttar Pradesh and Bihar.

The Centre’s plan to create a national-level judicial service, on the pattern of the All-India Civil Services, has been supported by the Law Commission and a department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice has also supported the idea.

The issue was first discussed in 1960 but the plan has not taken off due to continued difference.

Article 312 of the Constitution states that if the Rajya Sabha passes a 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”.

( Source – PTI )

‘Remove bar on giving advice to ministries directly’

'Remove bar on giving advice to ministries directly'
‘Remove bar on giving advice to ministries directly’

Attorney General Mukul Rohatgi has urged the government to junk a rule which bars him from giving legal advice to various ministries without involving the Law Ministry, saying it delays decision-making on important matters.

Rohatgi has also said the rule which requires law officers to give legal opinion to various central ministries and departments only when the issue is referred to them by the Law Ministry runs contrary to constitutional provisions.

In a recent letter to Law Minister Ravi Shankar Prasad, the top law officer said various ministries, departments and even ministers have declined to route their requests for his legal opinion through the Law Ministry due to urgency of the matter.

Copies of the letter have been sent to Finance Minister Arun Jaitley and Nripendra Mishra, the Principal Secretary to the Prime Minister.

He said if every such proposal was routed through the Law Ministry, the entire work would come to a grinding halt and no urgent remedial measure could be taken since the Law Ministry takes it own time.

Rohatgi made it clear that while he is not blaming ministry officials for the delay, the procedure is such that it is bound to take time.

Referring to Rule 8(e) of the Law Officers (Condition of Services) Rules, 1972, he said it provides that unless a reference is received from the Law Ministry, no advice will be given to any ministry or department.

Rohatgi said the rule runs contrary to Article 76 of the Constitution which states that it shall be the duty of the Attorney General to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President.

He urged the government to revoke the rule at the earliest.

From time to time, successive law secretaries have been urging law officers against bypassing the Law Ministry while giving legal opinions to central ministries, departments and PSUs.

( Source – PTI )

Witnesses most neglected lot: Law Ministry

Witnesses most neglected lot: Law Ministry
Witnesses most neglected lot: Law Ministry

Terming witnesses as the “most neglected segment” in the criminal justice system, the Law Ministry has said a 13-year-old report held the key to insulating them from harassment and minimising inconvenience caused during trial.

“Witnesses are a critical constituent in the process of administration of criminal justice. They discharge an important public function by assisting courts in seeking the truth. Unfortunately, the ground reality is that witnesses are also the most neglected segment in the criminal justice system,” the ministry has said.

The remarks figuring in ‘procedures relating to witnesses’ is part of a Law Ministry note prepared for the meeting of the Advisory Council of National Mission for Justice Delivery and Legal Reforms to be held on Tuesday.

Referring to the observations of the Justice V S Malimath Committee in its report on Reforms of Criminal Justice System in 2003, the note states that there is a growing tendency of subjecting witnesses and their family members to serious threats to life, abduction or rape, damaging the witnesses’ property or harming the person’s image and interest in other ways.

Recalling a major recommendation of the Malimath panel, the Law Ministry document states that to minimise inconvenience to witnesses and save time, the evidence of certain types of witnesses like medical witnesses, government scientific experts and officers should be tendered in the form of affidavits and any challenge to the same by the opposite party should be by means of a counter affidavit.

The Code of Criminal Procedure (Amendment) Act, 2008 added a new section 195A to the CrPC to allow a witness or any person acting on behalf of the witness to file complaint in case of an offence under section 195A of Indian Penal Code, which relates to threatening a witness to give false evidence.

( Source – PTI )

Home, law ministries meet to discuss Ganguly case

ddThe union home ministry is consulting the law ministry on demands for removal of Justice (retd) AK Ganguly as the chief of the West Bengal human rights panel following allegations of sexual harassment against him, official sources said.

The sources said consultations have begun over letters written by West Bengal Chief Minister Mamata Banerjee to President Pranab Mukherjee seeking action against Ganguly.

The letters were sent by the president to the home ministry.

West Bengal’s ruling Trinamool Congress has been at the forefront in protests against Ganguly, seeking his resignation, and Banerjee has twice written to the president urging action in the case.

Additional Solicitor General Indira Jaising Sunday revealed the affidavit by the law intern who has accused Ganguly of sexual harassment.

(Source: IANS)

 

The affidavit was submitted to a Supreme Court panel, which indicted Ganguly, finding him guilty of “unwelcome behaviour” towards the intern.

Judicial reforms were the flavour of 2012

Judicial reforms were the flavour of the year as the government focused its efforts on bringing a bill on judicial accountability and kept up its plans to change the present system of appointment of judges where the executive has little say.
In March, the Lok Sabha passed an ambitious bill to lay judicial standards but despite two sessions of Parliament the bill could not be brought in the Rajya Sabha.

Besides concentrating its energies BSE 2.05 % on the bill on judicial standards and accountability this year, the government also reiterated its plans to change the present mechanism of appointment of senior judges by a collegium of judges.

The year also saw a change of guard in the Law Ministry with Ashwani Kumar taking over as the new minister from Salman Khurshid, who was made the external affairs minister. Kumar is the third law minister in the UPA II government, with the first M Veerappa Moily now heading the Petroleum Ministry.

The Judicial Standards and Accountability Bill was passed in the Lok Sabha during the Budget session amid din over Telangana issue.

Following stiff opposition by eminent jurists and the higher judiciary, government had agreed to have a relook at a controversial clause which debars judges from making verbal comments against any constitutional authority in open courts.

But the government decided to retain the clause. A meeting of the Union Cabinet, chaired by Prime MinisterManmohan Singh in December approved amendments to the bill.

While deciding to retain the controversial clause, it has made some changes in it to ensure it “stands the test of Article 14 which deals with equality before law”.

The earlier clause prohibited judges from making “unwarranted comments against conduct of any constitutional or statutory authority or statutory bodies or statutory institutions or any chairperson or member or officer thereof, or on the matters which are pending or likely to arise for judicial determination”.

The amended clause debars judges from making unwarranted comments against conduct of any “constitutional body and other persons”.
The measure allows citizens to complain against corrupt judges but has been facing criticism for the provision which jurists say would “virtually gag” the judges in open courts.

The bill, with fresh amendments, is now likely to come up during the Budget session next year.

In his first official press conference last month, Kumar said the government is working on a proposal to change the present mechanism of appointment of judges by a collegium of judges.

He said there was a “large political consensus” to put in place the alternative mechanism.

Under the present collegium system, the executive has no say in appointments of judges of the Supreme Courtand the high courts as the recommendations of the collegium are final and binding on the government.

The last effort to replace the collegium system in 2003 could not succeed. The then NDA government introduced a Constitution Amendment Bill, but the Lok Sabha was dissolved when the bill was before a Standing Committee.

A vision statement of the Law Ministry issued in October, 2009 had said the Collegium system was hindering the efforts to end shortage of judges and suggested involvement of executive and legislature to hunt for the best talent.

Kumar said though the proposal was still undergoing several changes, the proposed National Judicial Commission could be headed by the Chief Justice of India.

“There has been a view that we could consider that the collegium system has had its utility…whatever is required will be done and if we can do it we shall do it. Otherwise, we’ll see what is the best way possible,” the minister said, noting that the move might entail a constitutional amendment which needs the backing of two-thirds members of a particular House of Parliament.

As pendency of cases in various courts continued to be a major concern, the focus of the ministry on pendency reduction drive this year has been to make the judicial system ‘five plus’ free – to dispose of cases that are more than five years old.

Simultaneously, emphasis was laid on increasing the number of judges in subordinate judiciary by filling the existing vacancies and creating additional posts so that disposal of cases is expedited by setting up of additional courts.

The government also made efforts to re-engineer court procedures and court processes for early disposal of cases.

A National Court Management Systems scheme formulated was notified by the Supreme Court in May this year.

Under the scheme, a National Framework of Court Excellence is being prepared, which will set “measurable standards” of performance for courts addressing the issues of quality, responsiveness and timeliness.

 

PTI

2G: High Court asks Centre to respond to Essar”s plea

The Delhi High Court asked the Centre  to respond to the pleas of Essar Teleholdings Ltd and its promoters, Ravi and Anshuman Ruia, for quashing of the charges framed against them in a case linked to the 2G spectrum allocation scam.

Notice has been issued by Justice AK Pathak to the Ministry of Law, the CBI and the Department of Telecommunications (DoT), seeking their replies to the petitions of the telecom major and its two promoters against a lower court order on framing of charges against them for their trial in the case.

The court issued notices to the Law Ministry and the DoT, rejecting their contentions that the same cannot be issued against them as they were not the parties to the case.

Appearing for the telecom firm, senior advocate Mukul Rohatgi argued that DoT and the Law Ministry too be asked to respond to the petition as it is the case of the CBI that the company had cheated the DoT.

Rohatgi elaborated on his submission saying it was the Law Ministry which had opined that no case was made out against the telecom firm.

“If I have cheated something from DoT, let them file an affidavit that they have been cheated”

The telecom firm also sought to distinguish its case from those against the other accused in the 2G scam saying “we have a better case than the others as there is no Prevention of Corruption Act invoked against us.”

The court has now fixed the matter for further hearing on January 22, 2013.

The telecom firm and its promoters have moved the high court against the May 25 order of the Special CBI court which had framed charges against the Ruias and Essar Teleholdings Ltd and also Essar Group director (Strategy and Planning) Vikas Saraf.

Besides, Ruias, Essar Teleholdings Ltd, the court had also framed charges against companies – Loop Telecom Pvt Ltd, Loop Mobile India Ltd and their promoters Kiran Khaitan and her husband I P Khaitan under section 120 B read with 420 IPC.

Unified Indian judicial service like IAS, may get govt nod

With an Aim to infuse young talents to higher judiciary, the government has prepared a Cabinet note to introduce the Indian Judicial Service (IJS) — an all-India service on the lines of the Indian Administrative Service (IAS) and Indian Police Service (IPS). The proposal is likely to be brought before the Union Cabinet next week for its approval.

 Sources said the Cabinet note has been prepared by the law ministry and it could be placed before the Cabinet in the next few days, which paves way for selection of candidates on the basis on an all-India exam akin to civil services. The new recruits will be posted as district judges and would have a well-defined career progression to higher courts.

 The move will also ensure that High Courts and Supreme Court would have younger and bright judges who are promoted to higher judiciary at a much younger age compared to the existing system where recruits join as magistrates and take at least 10 years to become district judge.

 Introduction of Indian Judicial Service has been in a limbo for close to four decades as many of the states had expressed their reservation citing several reasons. Language issues for judges coming from varied linguistic backgrounds have been cited as one of the reasons behind states’ reluctance. States also fear it will be an intrusion on their rights since at present most of them select members of the subordinate judiciary.

 The Centre has consulted state governments and HCs on the matter for a wider consensus, but objections have been registered by a majority of them — 11 out of 17 HCs — and seven out of 20 states, who have sent their comments.

 However, the proposal has been supported by the Law Commission, the first National Judicial Pay Commission and the Committee on Centre State Relations and from the Parliamentary Standing Committee. The UPA may not face problem in implementing its decision once approved by the Cabinet as the Constitutional amendment was made in 1977 to provide for an All India Judicial Service under Article 312 of the Constitution.

 The Supreme Court, which had initiated the process of consultation with all HCs a few years ago, has been in favour of creating Indian Judicial Service due to large number of pending cases in different courts and also the prevailing trend where many bright law graduates prefer corporate law firms to judiciary. Conducive environment, good remunerative package and better career progression — like in the IAS and the IPS — may attract talented professionals to enter the judicial service.

Probe report on Narvekar to be referred to Law Ministry

The probe report on the alleged fraud committed by former Goa Cricket Association President Dayanand Narvekar, will now be referred to the law ministry for further action, a senior official said today.

The two-member committee constituted by state government has already submitted its report to the Registrar of Cooperative Societies, which is a registering authority for the association.

One of the committee members, Chetan Desai, had confirmed after submitting the report that they have indicted former GCA President Dayanand Narvekar for fraud.

The details of finding are kept under wraps.

Sources in the registration department said that the report would now be forwarded to the Law Ministry, which will have to take a call on what kind of investigations should be conducted against those found guilty in the report.

“It may be a criminal investigation for financial fraud or disciplinary action. Everything depends on the Law  Ministry’s suggestion,” official said.

The report, its learnt, has pointed to the financial irregularities committed in constructing the building for GCA by then President, Narvekar.

GCA’s managing committee has already dethroned Narvekar replacing him with Vinod Fadke, who was vice president in the association.

The Association will now have fresh elections to elect the President and managing committee.