Dear BK:
First off, I am privileged to have had the honor of conversing
with a real 'magistrate'. It is a first for me. The only other times I
have been anywhere near the hallowed ( or decaying) halls of justice,
were a couple of times at traffic court and once in Small Claims
Court. BTW, I won in all three instances. I had my legal advice from a
fine country lawyer from Kokomo, Indiana, Sri Nopota Phukon,
originally hailing,like a few other notorious elements of Assam Net,
from Jokaisuk :-).
This leads me to ask you about the difference between a
magistrate and a judge.
Never quite learned of these things back at Namti, even though
our father used to be quite conversant with these things. What are the
qualification requirements for either? And how are they selected, in
India and Britain?
That was the easy part.
Now comes the more difficult issues:
>Now the above is an instance of how the
independence of the judiiciary has >been made to remain
sacrosanct.
*** I am greatly troubled by your interpretation of 'independence
of the judiciary' as demonstrated by the example you hold forth. It
appears to me that an injustice was done to you and the others in your
shoes by the three judge panel, to which you had no recourse. I
say 'appears', because I do realize that I am not privy to all the
pertinent details of the case. But if what you provide was all there
was to it, it does sound like injustice was done to you. Obviously you
believed the same, as could be inferred from your consulting a
'prominent' advocate to contest the issue. Just because you acquiesced
since it was impractical for you to fight, does not mean it was right.
Had it been a case of great injury to you it could have been a case of
Tyranny of the Judiciary ( I am not sure if I am the first one to coin
this phrase :-)).
'Independence of the Judiciary', if I am not mistaken, is a
phrase that is used to show that the judiciary's actions are free from
governmental( administration's) or political pressures and/or
interference. And I would like to think it is far different from how
you interpreted it.
Here I have another question for you. IF the position of a
magistrate is dual in nature like I guess it might be; one as an
administrator, beholden to the administrative wing of government, and
the other as a judge for minor cases, then would it be wrong to think
that a magistrate could not truly be a part of
an independent judiciary? And if so, it might be a reason why
many charges of corruption amongst govt. officials and elected
representatives get dismissed and never brought to justice.
>If that is so, it is a gross misconduct to air his grievances
through the >media. For this he is accountable to the Chief Justice
of India.
*** I presume you are referring to the case of Justice Roy and
his dispute with the CJI. If your belief is correct, should you not
expect the CJI to uphold the prestige of the SC and investigate
the case and hold Justice Roy "accountable" as you
suggest? And if he did not ( there is no reason to believe he did,
because it would be big news), is the CJI not guilty of dereliction of
duty? Are you not perturbed by that? Why I ask is this would exactly
be the kind of dereliction of duty that has been relentlessly
degrading every institution of Indian governance .
I am however not suggesting, or even accepting your suggestion
here that there WAS any dereliction of duty of the CJI in this
instance. I am merely using your interpretation as an
illustration.
>The press made a scoop by obtaining all this
information from the >confidential records kept by the Supreme
Court.
*** I am not sure if you were one of the Assam Net advocates of
investigative journalism as the savior for the democratic institutions
of India; but if you were, how would you reconcile this IJ scoop by
Tehelka which you hold illegal? Isn't IJ all about exposing
misdeeds hidden under the cloak of official secrecy ?
>Transfer from Chandigarh to Guwahati: Transfer from one High
Court to another >is not regarded as punishment.
*** That may be your personal opinion, but is NOT a fact of
Indian governance, as is very widely known and accepted. Assam is
well-known to be a 'punishment' placement for Indian civil service
personnel, as is pleas of such personnel for transfers out of Assam on
grounds of 'hardship'.
Whether this is an acceptable notion for any self respecting
Assamese is an entirely different matter. I wrote a letter to the
Sentinel on this matter, a couple of years back, which of course was
not published, and got into an argument with the noted
journalist Sanjoy Hazarika in Assam Net triggered by that letter on
the matter of India's right to send discredited justices from
elsewhere in India to serve time in Assam as punishment, as was
explained to the press by none other than the CJI himself.
Funny thing though, none of the patriotic Assamese in this Net
spoke up on the matter if I remember correctly. Obviously such insults
are par for the course to, the Assamese Indian patriots. Servility is
a hard to cure condition.
>Whatever the Chief Justices' meeting decided in their annual
gatherings are >recommendations and not binding on the Government
of India. It appears the >Chief Justice of India was helpless. For
courtesy's sake the CJI could have >sent a personal letter. My
information is that it is the practice.
*** You have missed the point entirely here BK. If such
miscarriages of justice can go on, there is something severely wrong
with the system, isn't it?
If the SC is helpless, because the Govt. is not bound to accept
its verdict, then why even have an SC and hold it up as the supreme
institution for interpreting the laws of the land? Isn't it a sham?
Isn't it patently phony to sing praises of Indian judiciary's
independence?
I realize you don't believe Justice Roy's charges, that he could
be right while his 25 other colleagues could be wrong. I cannot not
dispute that. You could be right. But this is just one instance. There
are a myriad of them. In fact a past CJI wrote an article on the
corruption in the Bench that I recall posting in Assam Net.
>What do you want me to say, Chandan? It is an administrative
matter and >shows both positive and negative aspects
of law and society.
*** I understand your unwillingness to call things as they are
out of benevolence for the old country and your disinclination to be
identified with a dysfunctional democracy. But if the Indian and
Assamese intelligentsia, which you represent, prefer to take refuse in
this kind of inability to see blacks and whites amidst the fog of
greys that has brought down the perfectly workable and proven
institutions of democracy it inherited from the British, how will it
ever correct itself?
I don't hold YOU personally responsible. You left. But you
demonstrate in your various posts, the mind-set of others like you who
led Assam and India and continue to lead,that have done Indian
governance great harm. They cannot see the blacks and whites. All they
see are the pervasive greys. To them everyone is responsible, everyone
is guilty, and thus no one is accountable. It is refrain we hear often
in Assam Net. But many of the country's insurgencies and other forms
of social and political unrests are aggravated by, if not rooted in
this destruction of the rule of law precipitated not by its
disenfranchised segments, not by its 'illiterate' constituencies, but
by its most privileged, by its elite.
Best,
c
At 9:18 AM -0400 4/28/05, [EMAIL PROTECTED] wrote:
Dear Chandan
My sincere thanks for asking me to read this Tehelka article and thus to derive immense fun out of it while educating myself on the present state of the judiciary in India.
You may not know, once I was an employee of the Gauhati High Court for two years. After a gap of about ten years I was myself appointed a Judicial Magistrate but the then Chief Justice of the High Court decided not to allow me to join because the State Government condoned my age by a few years. The Government replied that this was done according to precedents as in the years before no such objection was raised in the appointment of magistrates and members of the lower judiciary. The High Court's decision was made jointly by all the three judges there constituting a division bench. Abut 10 of us were involved, in-service employees as well as practising lawyers. A prominent Adocate whom we consulted dissuaded us from challenging the decision. I often joke with my friends, look here my appointment was gazetted and it was never cancelled and as such I think I continued to be a little judge for many years on paper at least!
Now the above is an instance of how the independence of the judiiciary has been made to remain sacrosanct.
The press made a scoop by obtaining all this information from the confidential records kept by the Supreme Court. I doubt very much they got it from the Supreme Court. Does the hon'ble CJ too have a hand in it as he has a copy of all the correspondences? If that is so, it is a gross misconduct to air his grievances through the media. For this he is accountable to the Chief Justice of India.
Transfer from Chandigarh to Guwahati: Transfer from one High Court to another is not regarded as punishment. Transfers are always made in public interest. From Justice Roy's own account he was not getting on with his learned colleagues; there was even a strike by 25 justices out of 27 against him, an unimaginable situation. Now he has catalogued the causes leading to this extraordinary state of affairs. Nobody liked him because he was a champion of discipline and accountability in the administration of justice. He was a saintly figure while his brothers were patently corrupt. He has listed a number of cases decided by himself or together with the impugned colleagues which bear the stamp of his integrityand able leadership, if not that of his colleagues. These are anomalies, say, concerning the appointment of Chief Minister's Principal Secretary as Chairman, jointly with two judges to a Selectiion Board for selecting DSP's from the Sports quota (Is there such a reservation in Assam too?), abuse of the process of law by an oral order to stay the arrest of a son of the Bar Council Chairman, honorary membership of the Forest Hill Golf Club to two of the justices, undesirability of close relations practsing in the same bar, referral of a case involving allotment of Govt land to the CBI, etc. Typical of what happens in the rest of the Union.
Whatever the Chief Justices' meeting decided in their annual gatherings are recommendations and not binding on the Government of India. It appears the Chief Justice of India was helpless. For courtesy's sake the CJI could have sent a personal letter. My information is that it is the practice.
Regards.
Bhuban
What do you want me to say, Chandan? It is an administrative matter and shows both positive and negative aspects of law and society.
Regards
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