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*****The 1st part -
difference between "magistrate" and "judge". These terms are
defined in law text-books. I cannot expect to pass a law examination on the
basis of a remnant memory of a text-book read over forty years ago. What I can
recollect is this: the word 'judge' is like the word 'teacher', whether he be a
university don or a primary school teacher, what he or she (in law there is no
difference between he or she in this context, so in future I intend to drop the
lady) does is to 'teach'. So anybody who pronounces a judgment from an
appropriate chair, whether be the Chairman of the Village Panchayat or the
Hon'ble Chief Justice of a High Court in India, he is a judge. Since you won
three law suits with the advice of a Nopota Phookan, I hope my answer will
suffice. In both India and UK
plaintiff and defendant can appear before a court without a
lawyer. Now in the hierarchy
of Assam Judicial Service, the magistrate Class III is the lowest, ending
as Chief Judicial Magistrate in the district, in case of a brilliant person
even reaching the Supreme Court Bench. But on the executive side also there are
magistrates: the ACS and IAS officers posted in the districts and subdivisions.
The Chief Justice of the High Court presides over both the branches so far as
legal matters are concerned. Administratively the Chief Justice has control over
the judicial wing only; he takes
the assistance of a puisne judge also for his work. So far as High Court and
Supreme Court Judges are concerned, it appears to be the norm to describe them as Justices. The
qualification required for a nursling judicial officer is a bachelor degree in
law from an Indian university and an aspirant has to compete in a Public Service
Commission competitive test. A person with experience in legal practice is
preferred but not essential.
*****Independence of
the judiciary: As you say, it is the
difficult part. Yes it is. The illustration I gave you is rather extraordinary
which is capable of various interpretations and is not the right one. My gut
feeling is that at that time both the Chief Justice and the Law Secretary were
very talented people and as you know talents may be disadvantageous to oneâs
career. It is a very serious thing to say but in retrospect I believe the CJ
wanted to humiliate the Law Secretary for some reason and he did it
successfully. The area of conflict between the two could be very wide.
So far as the core
part of the question is concerned, Iâm afraid I am not qualified enough to deal
with this subject. It is one of the academic subjects in which great minds are
exercised. When you invite a Chief
Justice for a talk, youâll probably ask him to address on it. These are
the people who come into clash with personalities and high officials or others,
even with their colleagues as the present story reveals, and who can speak about
it in detail and with authority. In the ultimate analysis what we see is that
the judiciary and the executive appear to be working in harmony over half a
century. One matter which can generate bad feelings between the judiciary and
the executive is expenses including
the sumptuous, which the executive has to find. Cases of appointments,
promotions, transfers etc will invariably surface from time to time to cause
disagreements. ***** Here Iâve
another question for youâ. In the dual capacity,
I think their administrative role need not be stressed as the judgmental
responsibilities merits more concern. Youâve attacked the
problem squarely. I personally think the judiciary, especially the higher
judiciary is largely free from
corruption because they get certain
protection in their life within and outside the judiciary. It is true the rulers
rule and the machinery of the law is made to work in favour of the executive.
The executive has the prerogative of determining what is âpublic or national
interestâ and they have the right of prosecution generally, the police being in
the government control entirely. See, the Government has the right to withhold
the publication of an enquiry report by a judge in the public interest.
*****Using the media
to air personal grievances: I think there are
official directions to that effect. It would be in the interest of the judiciary
as well as the executive to honour this principle in their own
interest. *****Investigative
journalism. The Watergate scandal glaringly emerges
when one takes up the role played by investigative journalism. The recent case
here is that of a lawyer who painstakingly analysed from prosecution lawyersâ
office garbage before they were carted off by cleaners at dawn. Some records
were retrieved and sold to Al
Fayed, the Harrodsâ owner, who won a defamation suit against a former minister.
Well, people earn fame and gold in so many ways! Further comment
deferred. *****Transfer from
Chandigarh to Guwahati: You say that it is my
personal opinion that transfer is not regarded as punishment. Well, youâre right
when you say that transfer is made as âhardshipâ cases among others. IAS
officers including judges are transferred from time to time as a rule. In case
of an ACS/IAS officer they cannot operate from the same headquarters more than
three years. It is a very normal, almost daily routine for the CJI to pass
transfer orders. It is a part of the regular duties of a High Court Chief
Justice as well. The Indian judiciary is a mammoth organisation with so many
judges being appointed, transferred, promoted and retired, reemployed, assigned
to tribunal work, going on holidays and so on. ***** Youâve missed
the point entirerly here BK. I donât think so
Chandan because an individualâs
hardship, though in this case involving
a High Court Chief Justice is not greater than the need for the CJI to
keep the wheels running. The institution is greater than the individual and that
is how the CJI will be guided and judged. It is reprehensible what this
particular High Court Chief Justice did.
Approaching the President of India, I will concede, even contacting an MP
for that (which would be somewhat secretive) is a very common thing in India. In
this case I think what the journalist did was to earn professional credit as well as to recoup his expenses by a
piece of sensational news rather than becoming an investigative journalist.
****** I understand your unwillingness to call things as they are out of benevolence for the old country and your disinclination to be identified a dysfunctional democracy. I have explained
enough. If youâre happy with the catalogue of achievements of the particular
High Court Chief Justice and have respect for his probity and erudition, he can
still aspire to be a Supreme Court Judge, his next preferment.
As suggested earlier
If you happen to welcome one of the High Court or Supreme Court Judges or any
legal luminary from India or elsewhere in USA, give a note to him in advance to
throw lights on the points you want clarification. Maybe you will meet a
distinguished retired justice or an academic lawyer socially for discussion in the meantime. However , I
know even in retirement judges are cautious! Regards. Bhuban |
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