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Category Archives: Judges

Requiem to Y. K. Sabharwal, allegedly corrupt ex Chief Justice of India

Eulogy to a judge who imposed Martial Law in Delhi in 2006

Mid Day expose of Y K Sabharwal

Y. K. Sabharwal (Yogesh Kumar Sabharwal) was a name I became familiar with when I had started my career as a junior lawyer with a government counsel. Yesterday Y. K. Sabharwal passed away and would be cremated in a short while. Every person has many personas and different people remember a person differently. I have my remembrance about Justice Sabharwal.  Continue reading

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System of judges appointing judges!

THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014

A constitution bench of Supreme Court of India is hearing the challenge to the validity of NJAC Act, 2014. In doing so they were not discreet about the fact that judges are the interested parties. The arguments far from being adversarial have been turned into inquisitive enquiry as is apparent by the line of questioning by the judges. It appears that judges are evaluating as to which system is best. The earlier system where executive appointed the judges and grossly abused the position or the present system of in which judges themselves appoint the judges and which is apparently full of nepotism as nearly a 1/5th of all the judges appointed in high courts and supreme court is related to a previous judge. Living or dead. Unfortunately the question of nepotism was not raised by Attorney General with empirical data. At least news papers did not report it. The present system has come under flak from retired judges themselves. One such criticism of judges appointing judges is here. Regarding the corruption by the relatives of judges and inaction by appointing judges read here. Another similar story about corruption is here. Another report about rich relatives of former Chief Justice of India is here. How retired judges are using prefix ‘Justice’ forever i.e. even after demitting the office is another mystery in the face of express prohibition in Constitution. But who can judge the judges?

Any how, the line of enquiry by court in NJAC case is similar to the substantive due process arguments in the USA and is very delicate. It would be wise to tread on this line carefully. In my view court can not lay down the policy of appointment or evaluate a better one. Rather has only to see if the one propounded before it does not deviate from overall scheme of Constitution and thus does not violate basic structure of constitution. Of course it can judicially review it on all other available grounds like arbitrariness etc.

What is similar between India, Pakistan and Mynamar?

It is unfortunate that system of appointment of judges by judges finds similarity with two quasi totalitarian or  totalitarian  countries where military appoints military and the Government has no say and people have no right to know anything about it.

Continue reading


A new trend in judicial dishonesty!

The fact that Corruption is rampant in India is no more a matter of debate but is a matter of fact. Judiciary is equally affected by corruption as any other sector. Almost every Chief Justice of India, who has retired in past decade or so was subsequently alleged to have abused his position to favour friends and relatives. This month celebrates anniversary of judicial Martial Law imposed by then Chief Justice Y K Sabharwal, in respect of commercial/office use of properties while his own children were using his official residence as registered offices of their newly formed companies. This was subsequently revealed by press alongwith the information that the sons of Subharwal made billions from the horror created by his orders. I was also a victim but that tale can wait another time.
Here is a problem of another kind. Continue reading


Strike by lawyers and STRIKE by JUDGES! Nobody is corrupt or Hypocrite in India.

Law Books in Shelf.

                             Image © Sandeep Bhalla

Strike by lawyers is illegal in India:

Supreme court of India has held, in its various judgment, that strike of work by lawyers is illegal. No Bar Council or Bar Association can call for strike and if it does, disobedience shall not be misconduct. Further client can claim compensation from lawyer if he suffers due to strike. It appears that this rule do not apply to Lawyers after they become judge.

STRIKE by JUDGES!

This is about Punjab & Haryana High Court In India. On 19.11.2004 it was reported by The Hindu as under:

“The Shivalik hills, where Karoran village is situated, have highly erodable soil and constitute one of the most fragile ecosystems in the country. As overgrazing and mutilation by the villagers would cause soil erosion, which would lead to floods and consequently failure of crops in the plains, closure of the hills under the Indian Forest Act by declaring them a forest area was considered. The Punjab Land Preservation Act (PLPA), 1900, is an instance of State legislation that imposes suitable restrictions on the use of the hills for non-forest purposes. The Central law, the Forest Conservation Act, 1980, was enacted to check further deforestation and consequent ecological imbalance.
The Bench found that the land “owned” by Sandhu and his family and the companies floated by them were part of the total area of 3,700 acres (1,480 ha) of Karoran village notified under the PLPA. Despite this unambiguous status of the land, Sandhu went on “owning” the land by asserting that it was agricultural land as per revenue records. The Bench revealed how on a single day, June 28, 1995, the records were changed to show the ownership of the land in favour of Sandhu and his associates. (Source url: http://www.flonnet.com/fl2123/stories/20041119003303800.htm)

Thus the court ordered closure of Golf Course. Some of judges were also given membership of the club. It included some High Court Judges. On April 2, 2004, Chief Justice Roy issued notices to the two judges, Justice Viney Mittal and Justice Virender Singh, who had accepted ‘ex-officio’ membership of the resort, they went on mass leave with 23 more judges. Justice Singhvi was the Senior most judge after Chief Justice. Continue reading


Failed Generation, Solar Films and VIP’s

Short analysis of Supreme Court’s unreasonable decision to ban the use of solar films on cars in India.

It is very rare for judges to reach out of their Ivory Tower and express about the ground realities of life. In one such rare occasion, recently Supreme Court judge G S Singhvi speaking at a seminar observed:

“It is sad to say that my generation has failed the nation. In a country where 700 million people live below the poverty line, we tend to talk about justice. We talk about our fundamental rights being trampled upon but what about those people who do not get two square meals a day, have no right to education, shelter, clothing and other basic amenities. The country is divided into rural and urban and the idea about equality and fraternity needs to be pondered about and the entire process of development had taken place at the cost of rural people  ……….. I feel guilty when I read about equality and fraternity and think about the labourers and farmers who have made our lives comfortable and easy. The ‘jan sevaks’ (Public Servants) are fast becoming our masters, the first citizens followed by the rich and the poor only as third class citizens.”  (Source: http://m.timesofindia.com/Young-lawyers-facing-multiple-challenges-Supreme-Court-judge/articleshow/13112646.cms)

Constitutionalism in India means that people’s sovereignty is supreme and unlimited and the constituents of the state have limited powers.” (Source: http://articles.timesofindia.indiatimes.com/2012-02-26/nagpur/31100894_1_culture-guest-lecture-justa-causa)

The problem is that we all know about the failures. But what will take it to put into practice? What about the class called VIP’s? Who are they and why they are VIP’s? Problem is that only thing we see in focus is MONEY and DOMINATION. All we have to do is to do our own work diligently, even if some time, the reciprocation is not fair. It is not easy but practice can make anyone perfect. I will misquote Gandhi: ‘When you do something, remember the face of the poorest of poor’.

As regards the second part, it is another story. While Constitutionalism means Rule of law and not Fiats issued at Will; another decision of Supreme Court nearly rubs it on wrong way. Following direction has been given by Supreme Court:

We have no hesitation in holding that use of black films or any other material upon safety glass, windscreen and side windows is impermissible. In terms of Rule 100(2), 70 per cent and 50 per cent VLT standard are relatable to the manufacture of the safety glasses for the windshields (front and rear) and the side windows respectively. Use of films or any other material upon the windscreen or the side windows is impermissible in law. It is the VLT of the safety glass without any additional material being pasted upon the safety glasses which must conform with manufacture specifications. ….. The competent officer of the traffic police or any other authorized person shall challan such vehicles for violating Rules 92 and 100 of the Rules with effect from the specified date and thereupon shall also remove the black films from the offending vehicles. (Full judgment is here.)

The supreme court of india. Taken about 170 m ...

The supreme court of India. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

By one stroke of pen, an entire industry has been struck off. I wonder if they were a party to it. If not then it is violative of principles of natural justice. It beyond logical comprehension that if Manufacturer does not apply tinted glasses, I can not apply solar film to it? Off course it must meet statutory standard. Merely because law enforcement agency do not have technical equipment, all films are to be removed. By same logic why not every person be kept in lock and key at night as most crimes are committed at night. Curfew will be even better. Passes can be issued to VIP’s to wander at night, under Rules. Yes ban the liquor/Alcohol. A large number crime are committed under its influence. Licenses can be issued to VIP’s for that as well.

Judgment relies upon the practice of not using films in countries where the maximum temperature never exceeds 25 degrees. Here it touches 48 degrees centigrade every summer. In fact the word ‘weather’ does not even occurs in the judgment. The very basis of applying solar films is missing. Thus the judgment shall be hit by Wednesbury’s arbitrariness as it excludes an important and relevant fact from consideration while deciding an issue and therefore is not a reasonable judgment. Those interested in full judgment of Wednesbury’s case, can find it here. Some other arguments have been raised by another Gentleman here and therefore are not repeated.

Another legal issue is that this order has been passed under article 32 of Constitution and is purported to enforce article 21  of Constitution in a Public Interest Litigation (PIL). Article 21 guarantees right to life to every citizen. If today a Habeas Corpus petition is filed in Supreme Court saying that life of a girl is in danger, Supreme Court will not entertain that petition and ask the party to go to respective High Court. Was solar film matter so important that Supreme Court could not have waited for the opinion of High Courts?

Now a days, if there is a stray cow sitting upon a pavement, people joke that it has a stay order from Supreme Court or High Court in a PIL on animal rights. So much for PIL fiats.

P.S.: As for me, I have tinted glasses in my car. I never needed solar film, but now I think I will have black curtains and would have a feel of a VIP. Is there any rule against curtains?

© Sandeep Bhalla