Monday, September 29, 2014

Letter to CJI about a particular incidence as regards Collegium system



To,
The Hon’ble Chief Justice of India,
Supreme Court of India,
New Delhi- 110001


Subject- Presenting certain facts and a particular incidence related with the Collegium system of appointment of Judges


Sir,
                I am Amitabh Thakur, an IPS Officer of UP Cadre. I also work in the field of transparency and accountability in public life on my personal level. I am writing this letter to Your Lordship in my personal capacity as a citizen of this Nation to bring forth certain extremely important points to your kind notice.
Recently outgoing Chief Justice of India Hon’ble Sri R M Lodha is said to have strongly defended the collegium system of appointment of judges, saying any other mode of appointment may impact on the independence of judiciary. As per the PTI report published in various newspapers, he is said to have said that “judges are best equipped to judge the suitability of candidates before appointment” and-“I feel and it is my view that if appointment to higher or superior judiciary is made through other institution or body where persons other than judges are involved, it may impact the independence of judiciary. That is my view”. He also said- "My view on the issue is Judges are best equipped to adjudge the suitability of a person or candidate as the judges of the superior court because as judges we know all about their court craft, behaviour, skill, legal knowledge and other aspects. So there cannot be a better equipped person than a judge who watches them.”
I do agree with the statements made by Hon’ble Sri Lodha on the larger context that higher judiciary must play an important and pivotal role in appointment of judges because as aptly stated, functioning judges have a much better opportunity and chance to know all about the court craft, behaviour, skill, legal knowledge and other aspects of the prospective judges.
But as a citizen of this nation, I hold equally strong views that the Collegium system got into criticism because it lacked two basic concepts of good governance- transparency and accountability, which led the law-making authority, the Parliament of India, to come up with the National Judicial Appointments Commission Bill, 2014. The way the functioning and decisions of the Collegium system were kept closely guarded secret had definite possibilities of being misused. This must have been the reason for the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, formed to study the Judicial Appointments Commission Bill, 2013 to say-“13. The present process adopted by the collegium of judges is beset with its own problem of opacity and non-accountability”, “16. The Committee also came across with the suggestions where some of the witnesses had expressed that the collegium was not transparent and accountability was not inbuilt” and “The present collegium which has been evolved through judicial decisions in 90s has received criticism especially from retired Chief Justices and judges for failing to attract outstanding people in legal fraternity to the Bench of higher judiciary”  
The appointment process through the Collegium system is so secret that most of the people never come to know of its happening but when posted at Lucknow as SP, Rules and Manuals, UP between October 2011 and August 2013, I personally came to know of a small part of its supposed misuse through Sri Pramod Srivastava, who was the Head Clerk in the Rules and Manuals office.
During my posting there, one day Sri Srivastava came to me and said that he wanted to go out with his elder brother who was District Judge, Bhadohi at that time. I gave Sri Srivastava permission to go out. When he came back, he was visibly chirpy. On his own, he started telling me that his brother’s name was also being considered for the post of High Court Judge for which he had to give money to a member of the High Court Collegium. He told me that he had gone with his brother to accompany him as a support person because his brother, the District Judge, had to arrange and move with huge amount of money. He told me that he had accompanied his brother in the car to the Collegium member’s house which to the best of my remembrance, he told as being either in Raj Bhawan Colony or somewhere in Gomtinagar in Lucknow.  He told me that elevation to the post of High Court Judge was such a giant leap in stature that despite being personally against the idea of giving money for such promotion, his brother was being forced to adopt this route due to societal pressure.
Since I had nothing personally to do with the matter and at that given time, I could not even dare to think of intervening in that matter in any possible manner considering the fact that at that time, like everyone else, I also regarded the member of Higher judiciary as being extremely powerful and completely invincible. Hence I kept the matter with myself.
The next day Sri Srivastava again sought permission to go out which I granted him. This time when he came back, he was rather somber. When asked he told me that some hiccups had developed in the matter and the deal was not getting forged because of the huge gap between the money being asked and the money his elder brother was able to manage. He told me that his brother could manage certain amount he had been previously told through great efforts, including taking loans from different quarters. Now the increased demand was beyond his capacity and he was thinking of dropping the idea of continuing in this race.
I don’t remember the exact amount of money being talked in the deal which to the best of my remembrance was Rs. One crore, while all that the District Judge was being able to manage through all possible means was a much lesser amount.
I remained interested in knowing the outcome and kept Sri Pramod Srivastava asking about what happened in his brother’s case but he seemed to be losing interest in the matter very fast and whenever I asked him about this matter, he would only talk of destiny. Later I also forgot the matter and remember it suddenly yesterday (27/09/2014) when I read the statements of the outgoing Chief Justice of India about the inevitability of the Collegium system.

Since I had lost his contact number and had never known the exact name of Sri Srivastava’s elder brother, I contacted a colleague from Rules and Manuals office through whom I got to know that the Judge’s name was Sri S K Srivastava and he was now posted at Chitrakoot. I personally talked to Sri Pramod Srivastava on his phone number 094528-24386 at around 1 PM on 27/09/2014 specifically about his brother. I asked him what happened to his brother’s elevation to the High Court to which Sri Srivasatava told me that it never materialized and his brother has retired as a District Judge. I talked of the money matter he discussed with me at that time, to which Sri Srivastava seemed least interested and he barely said that yes, those things had come up at that time but now it is an old issue and has lost all the relevance. He told me that now his brother was posted in some Forum in Chitrakoot but he did not know more details about his posting. He also told me that presently he and his brother were not on good terms because of some family matter.

I searched the website of Bhadohi District Court (http://districtcourts.nic.in/ecourts/Allahabad/Bhadohi/Bhadohi.php ) to find that at Serial No 14 is placed Sri Surendra Kumar Srivastava who remained its District and Session Judge between 03/05/2011 and 29/02/2012. I remained SP, Rules and Manuals between 12/10/2011 and 27/08/2013. Hence the incidence being narrated must have taken place between 12/10/2011 and 29/02/2012, though I don’t remember the exact date.

I make it very clear before Your Lordship that every word I have written here is true to the best of my knowledge and remembrance and I can be held squarely liable for each of my words, which I state with utmost responsibility. Simultaneously, I also accept that whatever I have written here are based solely on the words of Sri Pramod Srivastava but I do tend to completely believe in his words because I still remember the tenor and authenticity of his voice all through the episode. I fully remember the genuineness of his happiness and sense of pride on the first day when he saw his brother’s elevation as High Court Judge so very near. I equally remember the helplessness and dejection of his voice and mannerisms when he felt the elevation sliding from his brother’s hand because of his inability to provide the money being demanded. These human emotions, these gestures and mannerisms were so natural and spontaneous that I can never doubt their authenticity till the end of my life. At the same time, it is also true that I never had any talks with his brother, nor did Sri Srivastava ever tell me the name of the member of the Collegium. Hence, every other possibility, including Sri Pramod Srivastava telling me a concocted story (though its possibility being very remote), some middleman using this situation without the concurrence or knowledge of the member of the Collegium etc cannot be completely ruled out.

I present all the above facts for Your Lordship’s kind consideration and personal deliberation in larger public interest to take whatsoever appropriate steps Your Lordship may think appropriate in the background of the stated facts and circumstances, including an enquiry into the alleged incidence, if thought purposeful for making the entire judicial selection process even more accountable and transparent and to overcome any malaise or improprieties that may have cropped in, knowingly or unknowingly, in the process.

Simultaneously I also pray before Your Lordship to introduce at your end the principle of transparency in the judicial selection process, whether undertaken through the present Collegium system or through the proposed National Judicial Appointment Commission in the future, because as the Judicial maxim goes-“Justice shall not only be done, it shall seem to be done” and hence introducing transparency and making everyone know why a particular person got selected as a Hon’ble High Court or Hon’ble Supreme Court Judge in advantage to everyone person allegedly or supposedly in the fray, will only help strengthen the people’s confidence in this selection process, thereby further enhancing the credibility of the Higher Judiciary.

I am willing to undertake an unconditional apology if there is anything in this letter which Your Lordship feels improper because the purpose of writing this letter is not to hurt any person’s or authority’s feelings but only to help in the betterment of the system.
 Lt No- AT/Collegium/01                                                                            Regards,
Dated- 28/09/2014                                                                                                                       Yours,

                                                                                                                                                (Amitabh Thakur),
                                                                                                                                                5/426, Viram Khand,
                                                                                                                                                Gomti Nagar,
                                                                                                                                                Lucknow
                                                                                                                                                # 94155-34526
                                                                                                                                               
amitabhthakurlko@gmail.com



Judges are better equipped to appoint judges: Outgoing CJI R M Lodha
PTI Sep 26, 2014
NEW DELHI: In a parting shot, outgoing Chief Justice of India R M Lodha today strongly defended the collegium system of appointment of judges, saying any other mode of appointment may impact on the independence of judiciary.
He said judges are best equipped to judge the suitability of candidates before appointment.
http://articles.economictimes.indiatimes.com/images/pixel.gif
"I feel and it is my view that if appointment to higher or superior judiciary is made through other institution or body where persons other than judges are involved, it may impact the independence of judiciary. That is my view," Justice Lodha said while interacting with reporters a day before he demits the office as CJI.
"My view on the issue is Judges are best equipped to adjudge the suitability of a person or candidate as the judges of the superior court because as judges we know all about their court craft, behaviour, skill, legal knowledge and other aspects. So there cannot be a better equipped person than a judge who watches them," he said.
Justice Lodha strongly recommended that there should be two years "cooling off" period before a retired CJI and judges of higher judiciary take up any constitutional post or government assignment.
"This is again a very personal view. I hold the view that the CJI, judges of the Supreme Court, Chief Justice of High Courts and judges of High Courts should not accept any constitutional position or assignment with government. There should be a cooling off period of two years," he said.
However, he clarified that because of requirement of appointments in some tribunals and quasi-judicial bodies, statutes require the appointment of judges and that has to continue unless the Acts or statutes are amended or some other method is to be found.
Justice Lodha brushed aside the suggestion that he is in the fray to become country's first Lokpal.
"It is absolutely wrong" was his terse reply to a question. He said first priority for him was "to enjoy freedom" from the work which he devoted for over 21 years.
He made it clear that he will not take any constitutional post or government assignment and "spend time on himself".
When asked whether he has the same opinion that CBI is a "caged parrot", Justice Lodha avoided direct answer and said "a judge is not a caged parrot but looks for freedom and I am getting freedom".
Responding to a question on whether he faced any political pressure during his tenure at the apex court, Justice Lodha said, "You call it a divine blessing during 21 years and nine months of my career never ever any sort of such thing directly or indirectly or in whatever form happened. I was never approached or recall anything which interfered in my judicial work".
Further, he said criticism about judiciary encroaching upon the domain of executive has to be taken in the right spirit as "for a strong democracy it is very good that you have a strong executive and some friction is a good sign of democracy".
He said that it is good if "we have strong legislature, executive and judiciary" and different organs should not encroach into the domains of others.
He said that there is zero tolerance on allegation of sexual harassment within judiciary and there is a mechanism in place to deal with such cases.
He, however, accepted that the mechanism to deal with allegation against judges is not visible to be seen but it is working and "even one is not accepted".
However, the CJI expressed his sadness that lawyers bodies and many others could not understand properly his suggestion for making the courts functional throughout 365 days.
He said modalities could have been worked out by seeing examples in other sectors like medical etc.

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