Dear BK:
Thanks for educating us on magistrates, judges , their selection
processes etc.
I don't think it will serve any purpose to respond to your
response.
However, if it will be beneficial if you can summarize your
general assessment in regard to the point of debate: The state of
justice in Assam and if and how the state of justice in India
influences it.
Best.
c
At 6:53 AM -0400 5/1/05, [EMAIL PROTECTED] wrote:
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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 one's 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, I'm 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, you'll 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 I've another question for you�.
In the dual capacity, I think their administrative role need not be stressed as the judgmental responsibilities merits more concern.
You've 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 "public or national interest" 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 lawyers' office garbage before they were carted off by cleaners at dawn. Some records were retrieved and sold to Al Fayed, the Harrods' 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, you're right when you say that transfer is made as 'hardship' 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.
***** You've missed the point entirerly here BK.
I don't think so Chandan because an individual's 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 you're 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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