Copy of my Letter dated
9th November 2005 to Shri H. R. Bharadwaj,
Union Minister of Law and Justice, through Law Secretary, SH R. L. MEENA, wih copies to (1) His Excellency Shri A. P. J. Kalam, President of India, (2) Hon’ble Chief Justice of India Shri Yogesh Kumar Sabharwal, (3) Shri Milon Banerjee, Attorney General of India, (4) Dr. K. N.
Chaturvedi, Member-Secretary, Law Commission of India and (5) Dr. Abhishekh Singhvi, Sr. Advocate, Supreme Court of India, for their kind information.
Dear Sir,
This is with reference to 2 news items: (1) under heading: “CJI slams accountability proposal”, in which
then outgoing Chief Justice of India Justice R. C. Lahoti raised some points in respect of proposed Judiciary Accountability
Council and (2) another under heading “There is no corruption in Supreme Court, says Lahoti” both published in
the Times of India dated 31st October 2005 and 3rd November 2005 respectively.
On 8th November 2005, during his Bihar visit Prime Minister Dr. Man Mohan Singh rightly expressed that
Constitutional Authority should be above any suspicion and their performance should be in such a manner, which does not invite
any adverse comments. In my view too, no one whether he may be holding the Office of the President, Prime Minister or Chief
Justice of India, should not be beyond the law, in true compliance of the basic principle of the democracy that ‘no one is above
the law’. Otherwise
compromise with official functions always possible. Yes, whenever, any system evolved to place the persons holding such high
offices accountable before the law, system itself should contained the mechanism under which no one dare to misuse it, to
malign persons holding such high offices. With regards to claims of Justice R. C. Lahoti that there is no corruption in Supreme
Court, in my views this was unwarranted remark. Supreme Court is a supreme guardian to ensure justice with judicial standard.
Therefore, Supreme Court is more accountable with responsibility to follow strict measures to scale the standard or corruption
at its own level than any lower / sub-ordinate Court. Whenever slightest scope of bias or ill-will or favour is exists in
any judgment or order of the Supreme Court or when it can be commented as mockery of justice, same cannot be beyond any suspicion
thus should be termed as corruption.
I am a victim of such corruption prevailing within the Supreme Court. Out of my severe experiences, here I am
referring only one example. In the year of 1983, I prepared a Model of Civil Procedure Code. In the year of 1995-96, I referred
the said model in a Writ Petition filed before Supreme Court. This was surprising fact that when I moved the said Writ Petition,
Justice A. M. Ahmadi (then he was CJI) praised me for my working and advised and suggested me by way of the observation to
forward my draft to Law Commission, without passing any order on the said Model, which I complied. However, on another suggestion
referred and suggested in the Writ Petition the same was transferred before Hon’ble Chief Justice of India, administrative
side. But, subsequent events suggests that subsequently when Justice Ahmadi sitting on administrative side on my said writ
petition and gone through Model Draft of Civil Procedure Code referred by me, he appointed one Committee headed by One Senior
Advocate of Supreme Court, being a Congress Leader to recommend suggestions for amendment in CPC. In my view this was a corrupt
practice on the part of Justice Ahmadi.
I am of the firm views that if my complete Model had been enacted as a Law, this would have been ensured adjudication
of any civil litigation within two years from the date of filing, without creation of much new infrastructure or post of new
Judges. Still I am of the firm views that if my Model is still enacted as a law, professional workload of Advocates would
not reduce at all. Under my Model, workload of the respective Lower Courts relating to non-judicial or semi-judicial work
would be transferred equally amongst all Advocates practicing in respective Lower Courts, ensuring best avenues and ways for
training of new comer advocates besides sufficient income for them from government exchequer. This would save huge demands
for creation of large-scale infrastructure and large numbers of post for Judges in the lower Courts. But, in the Indian democratic
system, whether a politician or otherwise, under the impacts of personal interests or carriers no one is bothering about the
national interests.
After my bitter experiences from the Supreme Court against my fundamental Rights, in the year of 2000, I written
a “Model of New Constitution for India”, which I also placed before National Commission to review working of the
Constitution of India. In the year of 2003 I also forwarded my Model to His Excellency President of India. With reference
to your proposal for Judicial Accountability Council, I am sorry to say that I am fully disagree with the suggestion that
it should be constituted from within the Supreme Court Judges in the pretext to restrain interference from the Executive.
In this respect I must refer that in the proposed scheme, scope of interference from executive is exists in considerations
of the future carriers of the kids of the Judges as well as their own future, after retirements, particularly with reference
to appointments in different commissions by the Central or State Governments of the day.
Independent functioning of the Judicial Accountability Council or National Judicial Council can be guaranteed
only by ensuring that even after retirement from the offices of Judges of the Supreme Court or High Courts they would be remained
as Members of Judiciary. Further more that the members of National Judicial Council or State Judicial Council should not be
within from the sitting Judges of Supreme Court or High Courts. With this consideration, in Model of New Constitution for
India written by me in 2000, I suggested Constitution of National Judicial Commission and its functions in the following manner:
National Judicial Commission:
(1) There shall be a National Judicial Commission consisting of all retired Chief Justices of India and other retired
Judges of Supreme Court, barring those who are holding any other office of any commission or those whose health does not permits,
or those named for any doubt full conduct. The Chairman of the Commission shall be Senior Most Member of the commission on
the basis of service records.
(2) Every member of the National Judicial Commission, time to time, shall be allotted their respective serial numbers
on the basis of their seniority, to use at the time of their appointment as a member of a particular Bench.
(3) No Bench of the Judicial Commission shall be constituted less than seven or more than eleven members.
(4) Every Bench shall be constituted through a predetermined mechanism, under which no member shall be appointed in two
Benches, until all of its members shall be appointed in one of the Bench. This shall be ensured under such mechanism that
after every three months every member shall rotate from one Bench to another Bench. Such mechanism shall be evolved by a Bench
of National Judicial Commission consisting of all members and shall be transparent to public. A supervising committee consisting
of nine seniors most members of the National Judicial Commission shall supervise the compliance of such mechanism.
(5)
Entire proceeding of every Bench
of the National Judicial Commission shall be transparent to public and shall be recorded.
(6)
A Bench of National Judicial
Commission, consisting of all of its members, shall also make similar provisions and procedures for the State Judicial Commissions.
Supreme Court
(1)
There shall be a Supreme Court of Bharat consisting of a Chief Justice of Bharat and other number of Judges,
as may be recommended time to time, by the National Judicial Commission and sanctioned by the President in consultation with
the Government of Bharat.
(2) Every Judge of the Supreme Court shall be appointed, minimum for seven years, by the President
by warrant under his hand and seal on the basis of the recommendations by the National Judicial Commission, after satisfaction
on merit.
(3) The age of a person, to be appointed as a judge of Supreme Court, shall not be more than
58 years, at the time of appointment and shall hold such office till attain the age of 65 years.
(4) A person shall not be qualified for appointment as a Judge of Supreme Court, unless he
is Origin born Bharatiya, and has been for at least seven years a judge of any High Court or is an regular practitioner as
Senior Advocate of Supreme Court for more than 10 years.
(5) The Chief Justice of Bharat Should be appointed, for at least three years and not more
than five years, by the President on the recommendations of the full Bench of National Judicial Commission, amongst Judges
of the Supreme Court, on the basis of names forwarded by Central Government after considering the names forwarded by the Full
Bench (barring the judges named for the considerations) of the Supreme Court.
(6) A Judge of the Supreme Court, including Chief Justice of Bharat, can be removed by the
Full Bench of National Judicial Commission, on the basis of enquiry and investigation made by a judicial committee constituted
for the purpose, consisting of one Supreme Court Judge and two Chief Justices of different High Courts.
(7) A Supreme Court Judge shall not contest any election of any office referred under this
Constitution and shall not plead or act in any Court or accept any other job, except as a Chairman or member of any Commission
constituted in accordance with the provisions provided under this Constitution, at least for five years from his retirement
or resignation or removal.
(8) Oath.
(9) Violation of the Oath taken by a Supreme Court Judge shall evident his incompetence to
continue as a Supreme Court Judge.
Likewise provisions with some deference have been suggested for the State Judicial Councils.
I hope that you would consider my suggestions just in the larger public interest, democratic
values, and also in the larger interest of the efficacy of the judiciary.
With Best Regards,
Yours faithfully,
Milap Choraria
National Convenor
Movement for Accountability to Public
B-5/52, Sector-7, Rohini, Delhi-110085
