God's Gift
My Mother is a special gift,
A special gift that God gave to me.
I'd be lost and lonely without her,
If God took her away you see.
I love her so very much,
That I couldn't bear to live without her healing touch.
Thank-you God for giving me such a loving Mother,
For I wouldn't want to be a part of no other.
Melanie Reid

PRODUCTIVITY

What did you achieve today? Was it a fruitful day? Make every day of your life count. So often, when I hear people lamenting “I am so busy”, I am so tempted to ask them doing what. Does your busy schedule result in any success or is it just a pillar to post routine. Some honest people admit that the running around was quite in vain. Being busy or at least saying so is the latest chic statement, hence used frequently by all and sundry. One doesn't have to be signing a million dollar deal in order to be productive. It could be a simple deed that brought a smile on a dear one's face. It could at times, just be lending a listening ear to someone who needs that badly at a particular time, or even a shoulder to cry on. When I would spend a day with my grandmother, it was such a productive day for me. I knew she would not be around for very long, so the other tasks could wait. When a friend was going through a divorce, she just needed someone to pour her heart out. Spending hours listening to her, was being productive according to me, though in the most passive sense, because I was providing her with what was her need of the hour. Just like everything in life is reference to context, so is it with productivity, we cannot give it a strait jacket definition. What may seem productive to you may seem like a useless exercise to the others. But it is not about satisfying any common norms or standards, it is about self-satisfaction and self-fulfilment. In offices, productivity has a specific meaning for every person and department. You have targets, key performance indicators, dead lines to be met and vigorous work schedules to be adhered to. I really liked the logic of one of the senior lawyers I worked for many years ago. The work approach was totally result oriented. He was not interested in the clock watchers in the office, who seem so busy watching the hands of the clock. One has to deliver the goods on time. If I spent 18 hours in office and still was lagging behind, he wouldn't be impressed at all. In fact, he would seriously doubt my competence and efficiency. Just like we say penny wise pound foolish, I feel the same logic applies to our work. We should not get so involved in the nitty-gritty of things, that we lose focus on the main job at hand. A few small errors can be over looked if the final result is good. There is little point in being so meticulous, if the dead line for the matter has gone past. Then the whole effort would be completely in vain. The whole world has only 24 hours in a day, but the successful people achieve so much in those very hours. Their key to success is productivity. I often hear some really busy lawyers say, it was a tiring but a productive day. Meetings, court cases, thirty minutes on the treadmill too and winding it up with a family dinner, all in one day. Plus one cannot forget the travel involved nowadays and the time wasted in travel. But it's amazing to see them utilize the waiting time at the airport and the idle time in the flight so well, by having their reading material handy and the correspondence to catch up on. The very successful lawyers have meetings in the flight too with their clients. Productivity is never an accident. It is always the result of a commitment to excellence, intelligent planning, and focused effort. Corporate houses have realized this truth and are investing in motivational courses for their employees to enhance their productivity. Incentive schemes are initiated to provide a driving force to achieve better results. To be productive – motivation, communication, and implementation are imperative, but you must work with each player and every team differently.  Some players are motivated by a gentle pat on the back. Other players need their pat a bit harder.  Some players need verbal communication, and others have to see a diagram of the play drawn out on a board. Just as the modes to encourage productivity are diverse, so is the definition of it individual to each person. So whatever your meaning of productivity is, here is wishing you productive days ahead!

UNCLE JUDGES Sanctity of Justice in Danger

Hemant Kumar, Advocate

Though the remarks made by a Division Bench of Supreme Court some time back highlighting prevalence of “Uncle Judges” syndrome may be viewed as unwarranted and highly exaggerated by a certain section of society, nevertheless, it is a hard reality that such unhealthy practice does exist and unless tamed urgently, the credibility of our administration of Justice system would be at stake.

“Something is rotten in the State of Denmark” said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court. On November 26, 2010, the day which is celebrated as “Law Day” across the nation, these comments were made by a Two-Judge Bench of the Supreme Court comprising Justices Markandey Katju and Gyan Sudha Misra while dismissing a Special Leave Petition filed against an order of Allahabad High Court. The Bench took the opportunity to come out harshly over a prevailing menace wherein kith and kin of the serving judges practice in that very Court against principles of ethics and propriety. The context in the Apex Court's ruling was that several judges of the Allahabad High Court suffer from such kind of syndrome which refers to judges passing favourable orders for parties represented by lawyers related or known to them. The Bench during the course of judgment also went to the extent of saying that a lot of complaints are coming against certain Judges of Allahabad High Court relating to their integrity. “The wards or other relatives of the Judge(s) who used to practice in the same court become multi-millionaires, have huge bank balances, luxurious cars, huge houses and are enjoying a luxurious life. The High Court really needs some house cleaning (both Allahabad and Lucknow Bench) and we request the Chief Justice to do the needful including recommending transfers of the incorrigibles,” said the Bench. After there was much media hype of the same, the Allahabad High Court at its Full Court meet took serious exception to such observations and consequently it decided to file an application in the Apex Court through its Registry praying for expunging such objectionable remarks. On December 10, the same Bench while refusing to do so, however, added that there are “Excellent Judges” too in the same court who are working hard and doing their duty honestly. The Bench clarified that it had not painted everyone with same brush. Further, it is time for introspection rather than reaction. Pertinent to mention that one of the members in the Bench, Justice Katju, has spent a whopping innings of his legal as well as judicial career in Allahabad High Court. After starting his practicing career there, he was elevated as Judge of the same High Court in 1991 and remained there till November, 2004. He himself asserts that association of his family with this High Court dates back to over a century. Hence, he seems to be well conversant with the state-of-affairs prevailing there. The phrase of “‘Uncle Judges” was referred prominently in the 230 th report of Law Commission of India submitted in August 2009. “Often we hear complaints about uncle judges. As a matter of practice, a person who has worked as a district judge or has practiced as a lawyer in a High Court for many years is appointed as a judge, he is bound to have colleagues and kith-kin there. Even in government services, particularly, Class II and upwards, officers are not given postings in their home districts. In the same way, judges whose kith and kin are practicing in a High Court should not be posted there. This will eliminate uncle judges,” the report stated. Sadly, as is the practice, neither serious debate was held nor any due consideration was given to the recommendations of the Commission. Noteworthy that Rule 6 of the Bar Council of India Rules, 1975 stipulate that “An advocate shall not enter appearance, act, plead or practice in any way before a Court, Tribunal or Authority mentioned in section 30 of the Advocates' Act, if the sole or any member thereof is related to the advocate as father, grandfather, son, grand-son, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law or sister-in-law.” Though the above rule very much prohibits those advocates who are wards or kith-kin of serving judges from appearing before them but the point is that such advocates who are relatives of Judges are normally accused of getting favours from other companion judges in the same court. Usually there is quid pro quo meaning wards or kith-kin of a serving Judge appear before other brother Judge and get instant relief(s) and in return, the relatives of latter get the same relief from court of former Judge. The former CJI, Justice KG Balakrishanan in September, 2008 devised and sent a new format to the Chief Justices of the High Courts for obtaining information from the Advocates and Judicial Officers recommended for elevation to the High Courts so as to ensure appointment of only untainted and deserving candidates. The additional information which is now sought includes whether the spouse or any blood relation of any candidate is practicing in the High Court or any Court subordinate to it or is working with a law firm having office within the jurisdiction of the concerned High Court. If yes, whether the same practicing spouse or other relative is living with the candidate so recommended for elevation to Bench and if so, whether the recommended candidate would consent for transfer to another High Court for a cooling period of two years or till his spouse or relative is practicing there. Undoubtedly, the aforesaid initiative is best suited if implemented in letter and spirit. Moreover, as the Supreme Court Collegium in October, 2010 decided to continue with more than two decades policy providing that the sitting Chief Justice of any High Court must be from some other State, it is high time for kickstarting a serious debate by involving all stakeholders to extend such practice to cover every Judge in a High Court. There should not be different yardstick for Chief Justice and other Judges. The Judicial Standards and Accountability Bill, 2010 tabled in Lok Sabha during December last inter alia , envisages setting up of a five-member National Judicial Oversight Committee (NJOC) headed by retired Chief Justice of India (CJI) for receiving complaints against errant judges. The NJOC would refer the same to “Complaints Scrutiny Panel” to be constituted both in Apex Court and High Courts. After considering the report of concerned Panel, the NJOC would constitute appropriate “Investigation Committee(s)” to inquire into the matter in detail. In case of allegations being proved, the NJOC would have power to issue advisories or warnings to an indicted judge and in case where charges merit removal, it would request him/her to resign voluntarily and on refusal refer the matter to President for initiating impeachment process. Though the proposed mechanism seems quite structural, one wonders if without conferment of any constitutional sanctity, the orders of NJOC even on inflicting minor penalties would pass test of judicial scrutiny ? Moreover, any reforms in mechanism of Judicial Disciplining and Accountability must be coupled with resurrection of existing “Collegium System” of appointing higher judges as the same has over the years drawn huge flak from jurists and other intelligentsia of society. The Law Commission in its 214 th report (November 2008) also recommended the overhauling of current system of appointing members of higher judiciary. At the outset, it can be concluded that mere effecting transfer of a Judge from his parent High Court i.e., from the State where he/she hails from and as such used to either practice there or was a District Judge subordinate to such court preceding his elevation, is not by itself going to stem the rot although the same might check apprehensions of favouritism and nepotism to a considerable extent. Moreover, if transfer can be the only remedy for taming menace of “Uncle Judges” where would the judges of Supreme Court be sent if their kith and kin are practicing in Apex Court? Unless a comprehensive policy is framed providing for posting all Judges in a High Court from outside that State, selective transfers of those Judges whose relatives are practicing in those courts is not a fair and wise idea. The honest and sincere adoption of universally adopted values of judicial life by every member of judiciary can only guarantee wiping out the syndrome of “Uncle Judges”. The Judges ought to be made of sterner stuff. In a court, what matters is the cause and not the counsel. What matters is the case and not the face. Everyone must keep in mind that the Justitia (Lady Justice) is wearing a blindfold. The blindfold represents objectivity, in that justice is (or should be) meted out objectively, without fear or favour, regardless of identity, money, power, or weakness.

Judiciary System In India

Supreme Court:-
The Supreme Court of India is the highest court of the land as established by Part V, Chapter IV of the Constitution of India. According to the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest court of appeal. Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. Primarily, it is an appellate court which takes up appeals against judgments of the provincial High Courts. But it also takes writ petitions in cases of serious human rights violations or if a case involves a serious issue that needs immediate resolution.

Composition of the courts:-
The supreme court of India consist if a chief justice and, until parliament may by law prescribed a large number, not more than seven other judges. Thus parliament increase the number this number, by law. Originally the total numbers of judges were seven but in 1977 this was increased to 17 excluding the chief justice. In 1986 this number has been increased to 25 excluding the chief justice. Thus the total number of judges in the Supreme Court at present is 26 including the chief justice. The constitution does not provide for the minimum number of judges who will constitute a bench for hearing cases. 

Qualification of the judges of the supreme court of India:-
The qualifications of the judges are as follows:- Under Art. 124(3) of the constitution talk about the qualifications of judges that are:

a) He should be a citizen of India.

b) He should have been at least five year a judge of a high court or of two or more such courts in succession; or he should have been for at least 10 years an advocate of high court or of two or more such court in succession.

c) He is in the opinion of the president a distinguished jurist.

Appointment of judges:
The judges of the high court are appointed by the president. The chief justice of Supreme Court is appointed by the president with the consultation of such of judges of the supreme and high court as he deemed necessary for the purpose. But in appointment of the other judges the president shall always consult the chief justice of India. He may consult he may consult such other judges of the supreme court and high court as he may deemed necessary. It should, however be noted that the power of the president to appoint judges is purely formal because in this matter he act on the advice of the council of ministers. There was a apprehension that executive may bring politics in the appointment of the judges. The Indian constitution therefore does not leave the appointment of judges on the discretion of the executive. The executive under this art. Is required to consult persons who are ex-hypothesis well qualified to give proper advice in matters of appointment of judges.

Under Art. 124(2) the president, in appointment other judges of the supreme court is bound to consult chief justice of India but in appointment the chief justice of India he is not bound to consult anyone. The word may used in art 124 makes clear that it is not mandatory on him to consult anyone. 

Removal of judges:- Impeachment:-Art.124(4)(5):-
A judge may only be removed from his office by an order of the president on ground of proved misbehavior or incapacity. The order of the president can only be passed after it has been addressed to both houses of parliament in the same session. The address must be supported by a majority of total membership of that house and also by the majority not less than 2/3 of the members of that house present or voting. The processor of the investigation and proof of the misbehavior or incapacity of a judge will be determined by the parliament by law. The security of the tenure of the Supreme Court judges has been ensured by this provision of the constitution.

Jurisdiction of Supreme Court[1]
Article 129 states: Supreme Court to be a court of record.—The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

The Supreme Court has original, appellate and advisory jurisdiction as well.

Original jurisdiction
Article 131 states: Original jurisdiction of the Supreme Court.—Subject to the provisions of thisConstitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute—

(a) Between the Government of India and one or more States; or

(b) Between the Government of India and any State or States on one side and one or more other States on the other; or

(c) Between two or more States,

Appellate Jurisdiction
Article 132 states: Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases

Art. 132 (1) states ‘An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under article 134A that the case involves a substantial question of law as to the interpretation of this Constitution.’

Art. 132 (3) states ‘Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided.’

Article133 states: Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters.

Art. 133 (1) states ‘An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under article 134A’.Certain preconditions are: 

(a) That the case involves a substantial question of law of general importance; and

(b) That in the opinion of the High Court the said question needs to be decided by the Supreme Court.

Art. 133 (2) states ‘Notwithstanding anything in article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided.’ 

Art. 133 (3) states ‘notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court.’

Article 134 states: Appellate jurisdiction of Supreme Court in regard to criminal matters.

Art. 134 (1) states ‘An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court.’

(a) The High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or 

(b) The High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or 

(c) The High Court certifies under article 134A that the case is a fit one for appeal to the Supreme Court:

Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of article 145 and to such conditions as the High Court may establish or require.

Art. 134 (2) states ‘Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.’

Article 136 states: Special leave to appeal by the Supreme Court.
Article 136 (1) states ‘Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.’

Article 136 (2) states ‘Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.’

Article 137 states: Review of judgments or orders by the Supreme Court.— Subject to the provisions of any law made by Parliament or any rules made under article 145, the made by it.

Article 139A states: Transfer of certain cases.— 
Article 139A (1) states ‘Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or on an application made by the Attorney-General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself:

Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.’

Article 139A (2) states ‘The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.’

Article 141 states: Law declared by Supreme Court to be binding on all courts.— ‘The law declared by the Supreme Court shall be binding on all courts within the territory of India.’

Advisory Jurisdiction 
Article 143 states: Power of President to consult Supreme Court. — 
Article 143 (1) states ‘If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.’

Article 143 (2) states ‘The President may, notwithstanding anything in the proviso to article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.’

High Court
India's judicial system is made up of the Supreme Court of India at the apex of the hierarchy for the entire country and twenty-one High Courts at the top of the hierarchy in each State. These courts have jurisdiction over a state, a union territory or a group of states and union territories. Below the High Courts are a hierarchy of subordinate courts such as the civil courts, family courts, criminal courts and various other district courts. High Courts are instituted as constitutional courts under Part VI, Chapter V, and Article 214 of the Indian Constitution

The High Courts are the principal civil courts of original jurisdiction in the state, and can try all offences including those punishable with death.

Jurisdiction of High Court
Article 226 states: Power of High Courts to issue certain writs.

Article 226 (1) states ‘Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.’

Article 226 (2) states ‘The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.’

Article 226 (3) states ‘Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without—

(a) Furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) Giving such party an opportunity of being heard,

makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favor such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.’

Article 226 (4) states ‘The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.’

Writ jurisdiction:-
Habeas Corpus:- (Latin: You (shall) have the body) is a legal action, or writ, through which a person can seek relief from the unlawful detention of him or herself, or of another person. It protects the individual from harming him or herself, or from being harmed by the judicial system. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.

Mandamus:- simply mandamus, means "we command" in Latin, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".

Mandamus is a judicial remedy which is in the form of an order from a superior court to any government, subordinate court, corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty. It cannot be issued to compel an authority to do something against statutory provision.

Quo Warranto:- quo warranto usually arises in a civil case as a plaintiff's claim (and thus a "cause of action" instead of a writ) that some governmental or corporate official was not validly elected to that office or is wrongfully exercising powers beyond (or ultra vires ) those authorized by statute or by the corporation's charter.

Certiorari:- certiorary is a legal term in Roman, English, and American law referring to a type of writ seeking judicial review. Certiorari ("to be shown") is the present passive infinitive of Latin certiorari, ("to show, prove or ascertain"). A writ of certiorari currently means an order by a higher court directing a lower court, tribunal, or public authority to send the record in a given case for review.

Prohibition:- prohibition is an official legal document drafted and issued by a Supreme Court or superior court to a judge presiding over a suit in an inferior court. The writ of prohibition mandates the inferior court to cease any action over the case because it may not fall within that inferior court's jurisdiction. The document is also issued at times when it is deemed that an inferior court is acting outside the normal rules and procedures in the examination of a case. In another instance, the document is issued at times when an inferior court is deemed headed towards defeating a legal right.

Prohibition and certiorari lie only against judicial and quasi-judicial bodies. They do not lie against public authority in an executive or administrative capacity or a legislative body.

Article 227 states: Power of superintendence over all courts by the High Court.— Article 227 (1) states ‘Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.’

Article 227 (2) states ‘Without prejudice to the generality of the foregoing provision, the High Court may—

(a) Call for returns from such courts;

(b) Make an issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) Prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

Article 227 (3) states ‘The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.

Article 227 (4) states ‘Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.’

Lower Courts:-
States are divided into districts (zillas), and within each a judge presides as a district judge over civil cases. A sessions judge presides over criminal cases. The judges are appointed by the governor in consultation with the state's high court. District courts are subordinate to the authority of their high court.

There is a hierarchy of judicial officials below the district level. Many officials are selected through competitive examination by the state's public service commission. Civil cases at the sub district level are filed in munsif (sub district) courts. Lesser criminal cases are entrusted to the courts of subordinate magistrates functioning under the supervisory authority of a district magistrate. All magistrates are under the supervision of the high court. At the village level, disputes are frequently resolved by Panchayat orLok Adalat (people's courts).

The judicial system retains substantial legitimacy in the eyes of many Indians despite its politicization since the 1970s. In fact, as illustrated by the rise of social action litigation in the 1980s and 1990s, many Indians turn to the courts to redress grievances with other social and political institutions. It is frequently observed that Indians are highly litigious, which has contributed to a growing backlog of cases. Indeed, the Supreme Court was reported to have more than 150,000 cases pending in 1990, the high courts had some 2 million cases pending, and the lower courts had a substantially greater backlog. Research findings in the early 1990s show that the backlogs at levels below the Supreme Court are the result of delays in the litigation process and the large number of decisions that are appealed and not the result of an increase in the number of new cases filed. Coupled with public perceptions of politicization, the growing inability of the courts to resolve disputes expeditiously threatens to erode the remaining legitimacy of the judicial system.
Hierarchy of Courts in Criminal matters.

* Supreme Court
* High Court
* Sessions Court
* Assistant Sessions Judge         * Chief Metropolitan Magistrate            * Chief Judicial   Magistrate
* Metropolitan  Magistrate                                      * Special Metropolitan Magistrate
Sub Divisional                                        Judicial Magistrate
* Judicial Magistrate of                                                                          * Judicial Magistrate of
First Class                                                                                                     Second Class

Seven Great Scourges Hurting India ByDr.Jayaprakash Narayan

The central challenges of our polity are the failure of the best and brightest to enter public life and make the necessary sacrifice to accept the burdens of leadership; and the highly centralized governance system which distanced people from the elected leaders and civil servants. The rest are all consequences of these twin failures.
As a result, seven great scourges are hurting the country:

1.Perpetuation of abject poverty despite resources and technology
2.All-pervasive corruption
3.Over-centralization
4.Failure of rule law and the rise of anarchy and criminalization
5.Politics of division, hatred and primordial loyalties
6.Increasing urban-rural divide, and excessive migration to big cities
7.Rise of licentious behaviour, and abuse of alcohol and drugs

Happily, India has also done a few things right in the past sixty years. Strengthening of federalism, a sound institutional infrastructure, preserving freedoms, and rapid economic growth in recent years after decades of stagnation of the license raj are our greatest successes.

We need to focus on a few key changes to preserve our strengths and overcome weaknesses. 
Judicial reforms: The recent events showed us how vital it is to preserve the credibility, independence and integrity of the judiciary. We need to create a mechanism for appointments for higher judiciary; and for removal of errant judges. We also need to encourage entry of our best and brightest young men and women into judiciary at lower levels. 

Corruption: A strong, effective, independent anti-corruption commission with powers to confiscate property, and ensure swift punishment is the need of the hour. The stink of Commonwealth Games, the many recent scams and allegations, and the obvious rise in corruption everywhere make this an opportune time to fight corruption – in politics, bureaucracy and judiciary. 
Decentralization: The recent draft amendment of the Constitution proposed by the Union government is a good starting point. There is broad acceptance in principle, and we must work for its enactment so that the people are empowered, vote is seen by citizens as a valuable tool; there is visible link between taxes and services; and authority fuses with accountability. 
Liberalization of agriculture and rural rejuvenation: Agriculture is still suffering under the yoke of the mighty bureaucracy, and license-permit-raj continues in this sector. Consequently, price signals are not allowed to influence production; free trade is not permitted, and farmers are made abjectly dependent on government largesse. A free trade regime in agriculture with adequate safeguards to ensure food security, and protection of farmers from imports will liberate rural economy and transform the lives of 55% Indians. 
Political reform: We need to eliminate the role of marginal vote which is at the root of criminalization, vote buying, and electoral fraud. Proportional system of representation with suitable safeguards to suit our conditions; and direct election of the executive at local and state levels will largely eliminate the distortions by creating a new set of incentives, and destroying the existing ones. 

Rule of law: Independent crime investigation, independent prosecution, strengthening forensic capabilities, faster legal procedures, greater number of courts, and speedy justice will transform the way society looks at the law and state. Once rule of law makes it easy for people to do good, and makes it difficult to do evil, a lot of things change dramatically.

I believe these changes are round the corner if we all focus our energies and understand the levers of change. Yes, things are bad – at times unbearably bad. But as they say, when we are going through hell, we should keep going. There is light at the end of the tunnel.The demographic changes in India, rapid economic growth and rising incomes, the exposure to satellite television, and access to modern technology make the next decade the decade of transformation.

Let us keep our morale high, and collectively and systematically address the challenges step by step. We will surely achieve most of these six goals by 2020.

 

Introduction

“Power tends to corrupt, and absolute power corrupts absolutely.”

It is not easy to define corruption. But in a narrow sense, corruption is mostly concerned with ‘bribery’ and it takes several forms. Corruption is a global phenomenon and it is omnipresent. Corruption has progressively increased and is now rampant in our society.

National scenario

Corruption in India is a consequence of the nexus between Bureaucracy, politics and criminals. India is now no longer considered a soft state. It has now become a consideration state where everything can be had for a consideration. Today, the number of ministers with an honest image can be counted on fingers. At one time, bribe was paid for getting wrong things done but now bribe is paid for getting right things done at right time.
Effects of corruption

Indian administration is tainted with scandals. India is among 55 of the 106 countries where corruption is rampant, according to the Corruption Perception Index 2004 Report released by Transparency International India. Corruption in India leads to promotion not prison. It is very difficult to catch ‘big sharks’. Corruption in India has wings not wheels. As nation grows, the corrupt also grow to invent new methods of cheating the government and public.

Causes of corruption

The causes of corruption are many and complex. Following are some of the causes of corruption.

· Emergence of political elite who believe in interest-oriented rather than nation-oriented programmes and policies.

· Artificial scarcity created by the people with malevolent intentions wrecks the fabric of the economy.

· Corruption is caused as well as increased because of the change in the value system and ethical qualities of men who administer. The old ideals of morality, service and honesty are regarded as an achronistic.

· Tolerance of people towards corruption, complete lack of intense public outcry against corruption and the absence of strong public forum to oppose corruption allow corruption to reign over people.

· Vast size of population coupled with widespread illiteracy and the poor economic infrastructure lead to endemic corruption in public life.

· In a highly inflationary economy, low salaries of government officials compel them to resort to the road of corruption. Graduates from IIMs with no experience draw a far handsome salary than what government secretaries draw.

· Complex laws and procedures alienate common people to ask for any help from government.

· Election time is a time when corruption is at its peak level. Big industrialist fund politicians to meet high cost of election and ultimately to seek personal favour. Bribery to politicians buys influence, and bribery by politicians buys votes. In order to get elected, politicians bribe poor illiterate people, who are slogging for two times’ meal.

Measures to combat corruption

Is it possible to contain corruption in our society? Corruption is a cancer, which every Indian must strive to cure. Many new leaders when come into power declare their determination to eradicate corruption but soon they themselves become corrupt and start amassing huge wealth.

There are many myths about corruption, which have to be exploded if we really want to combat it. Some of these myths are: Corruption is a way of life and nothing can be done about it. Only people from underdeveloped or developing countries are prone to corruption. We will have to guard against all these crude fallacies while planning measures to fight corruption.

· Foolproof laws should be made so that there is no room for discretion for politicians and bureaucrats. The role of the politician should be minimized. Application of the evolved policies should be left in the hands of independent commission or authority in each area of public interest. Decision of the commission or authority should be challengeable only in the courts.

· Cooperation of the people has to be obtained for successfully containing corruption. People should have a right to recall the elected representatives if they see them becoming indifferent to the electorate.

· Funding of elections is at the core of political corruption. Electoral reforms are crucial in this regard. Several reforms like: State funding of election expenses for candidates; strict enforcement of statutory requirements like holding in-party elections, making political parties get their accounts audited regularly and filing income-tax returns; denying persons with criminal records a chance to contest elections, should be brought in.

· Responsiveness, accountability and transparency are a must for a clean system. Bureaucracy, the backbone of good governance, should be made more citizen friendly, accountable, ethical and transparent.

· More and more courts should be opened for speedy & inexpensive justice so that cases don’t linger in courts for years and justice is delivered on time.

· Local bodies, Independent of the government, like Lokpals, Lokadalats, CVCs and Vigilance Commissions should be formed to provide speedy justice with low expenses.

· A new Fundamental Right viz. Right to Information should be introduced, which will empower the citizens to ask for the information they want. Barring some confidential information, which concerns national and international security, other information should be made available to general public as and when required. Stringent actions against corrupt officials will certainly have a deterrent impact.

Conclusion

Corruption is an intractable problem. It is like diabetes, can only be controlled, but not totally eliminated. It may not be possible to root out corruption completely at all levels but it is possible to contain it within tolerable limits. Honest and dedicated persons in public life, control over electoral expenses could be the most important prescriptions to combat corruption. Corruption has a corrosive impact on our economy. It worsens our image in international market and leads to loss of overseas opportunities. Corruption is a global problem that all countries of the world have to confront, solutions, however, can only be home grown. We have tolerated corruption for so long. The time has now come to root it out from its roots.

                           Indian Judiciary-A Pillar Above All

“Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by example. If the government becomes a lawbreaker, it breeds contempt for law, it invites every man to become a law unto him, and it invites anarchy.” - Louis D. Brandeis, U.S. Supreme Court Justice in Olmstead v. U.S.                                                 
 In 1927 seems to be true as Chief justice of one country is forcibly removed from chair and apex Court of another has duly exercised its power on several occasions to declare the decisions of other two pillars of government as ultra vires, dictator of previous roared “Constitution is a 12 page book which can be torn anytime” whereas Supreme Court of latter sent a former dictator to imprisonment for suspending the constitution that is why the former is on 12th position in the “Failed States Index” of Foreign Policy Magazine whereas the latter is Emerging Superpower.[1]

                                                  This is the tale of two countries namely India and Pakistan, both of them gained independence from slavery of centuries and with wounds of partition, communal hatred, riots and poverty but judiciary of latter thereby upholding the faith of people in the values of democracy declared the dissolution of even a provincial assembly as unconstitutional on the other hand the former had a history of every elected government being toppled by the dictators before completing its term.

                                                  The reason for all this is that one has the longest constitution of the world and the constitution of the other has been changed entirely twice since independence which is the reason that the latter is the largest democracy of world and the former had seen Marshal Law in 35 out of 60 years of independence i.e. majority of time as a nation it has been ruled by dictators.

                                                  Our constitution provides clear separation of powers of all the three wings of government namely legislature, executive and judiciary with all having separate domains and measures of checks and counterchecks on each other. Our national leaders of freedom struggle realized that “No free government can survive that is not based on the supremacy of law” as in scripted on the Justice department building in Washington states so they felt the need of an impartial, sovereign and responsible institution to which the powers to administer justice and the function to uphold the supremacy of law could be delegated and which would be vigilant to other organs encroaching on citizens’ rights and subverting the Constitution.

                                                 This resulted in founding of The Supreme Court and a judiciary which is completely separated from legislature and executive in exercising its judicial functions and thereby deviating from the tradition of U.K. as our entire parliamentary system is taken from U.K. where the Supreme Court is the House Of Lords and is a part of legislature.

                                                 Comparing this setup with our setup, our Supreme Court is not a part of legislature so it can not only preside over dispute between the Union and State but can also review the executive as well as legislative action of arbitrariness and thereby can protect the voice of minority section of society rising against the atrocities committed on them by the government and thereby uphold the principles of natural justice that one can’t be a judge in its own cause.

                                                 To realize this goal of theirs the framers of the Constitution took infinite care to provide for an independent and impartial judiciary as the interpreter of the Constitution and the custodian of the rights of the citizens and Indian Constitution, which executes the said function through the process of judicial review over the acts of the legislature and the executive, which gives the mandate to the judiciary to interpret the laws but it should not be misunderstood as the Constitution does not contemplate a Super-organ nor confers an over-riding authority on any one organ.

                                                 No organ has any power to superintend over the exercise of powers and functions of another, unless theConstitution strictly so mandates. It is obvious that all organs of the State should act only according to the constitutional mandate and should not be astute to find any undisclosed source of power or authority to expand its own jurisdiction, which will give rise to avoidable conflicts and affect the harmonious functioning of the different organs of the State.

                                                 Judiciary: Savior of The Rights of Destitute and Commoner Supreme Above All
“The supreme court is the living voice of the constitution – that is of the will of people expressed in the fundamental laws they have enacted. It is the conscience of the people. it is guarantee of the minority who when threatened by the impatient vehemence of the majority, can appeal to this permanent law finding the interpreter and enforcer there of in a court set high above the assault of the factions.”

                                                 - As quoted by James Bryce, the then British ambassador to US in the American commonwealth in 1888 was understood to the deepest of its meaning by the framers of our Constitution as they assigned the judiciary in India to play a significant role of safeguarding the supremacy of the Constitution by interpreting and applying the provisions of the Constitution and acts as its guardian by keeping all authorities i.e. legislature, executive, administration, judicial and quasi judicial authorities within bounds of Constitutional framework and thereby maintaining the rule of law in the country and assures that the government runs according to law.

                                                  “Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty or property of particular named person because the legislature thinks them guilty of conduct which deserves punishment. The authors of the Constitution intended to safeguard the people of this country from punishment without trial by duly constituted courts.”

                                                  - This was quoted by Felix Frankfurter, US Supreme Court Justice in US v. Lovett in 1945 and to bring this reality they entitled the judiciary to scrutinize under Article 13 of the Constitution any governmental action in order to assess whether or not it conforms to the Constitution and the valid laws made there under.

                                                    It has power to protect people’s fundamental rights from any undue encroachment by any organ of the government. The Supreme Court acts as the guardian and protector of the fundamental rights of the people by invoking its power of writ jurisdiction conferred on it under Article 32 of the Constitution and thereby acts as sentinel on qui vive to protect the fundamental rights as was held by the Supreme Court in Pathumma v. State Of Kerla.

                                                   As in the words of Justice Untwalia in Union Of India v. Sankalchand Himatlal Sheth: “Judiciary is a watching tower above all the big structure of the other limbs of the state from which it keeps a watch like a sentinel on the functions of the other limbs of the state as to whether they are working in accordance with the law and the Constitution where the Constitution being supreme.”

                                                  It has also to dispense justice between the state and the citizens i.e. between seat of power and the commoner where the former is armed with all the privileges and power and support of majority of countrymen and the latter is bare hands belonging to the handful of people whose rights are infringed by the governmental action but with firm belief and faith in the principles of democracy in their heart and mind.

                                                 As it was quoted by Felix Frankfurter, US Supreme Court Justice in Earl Katcher & Warren: A Political Biography, 1967:

                                               “The Supreme Court authority possessed neither of the purse nor the sword but ultimately rest on sustained public confidence in its moral sanctions. Such a feeling must be nourished by the court’s complete detachment, infact and appearance, from political entanglements and by abstention from injecting itself into the clash of political forces and political settlements.”

                                                 So in order to realize this and to enable judiciary to discharge their functions impartially without fear or favor, our forefathers armed the constitution with certain provisions not only to safeguard judicial independence but also to ensure the judicial accountability from lower to topmost tier. The judges of these courts are appointed by the central executive in accordance with the advice of chief justice himself and this mechanism for maintaining this independence was ensured after the landmark judgment inSupreme Court Advocate’s On Record v. Union Of India case. Once appointed, the judges hold office till they reach the age of superannuation as fixed by the Constitution under Article 124(2) because of which their tenure is independent of the will of the executive and further there is a special and complex procedure that has been laid down in Article 124(4) of the Constitution for removing the judges on the grounds of incapacity or misbehavior which ensures that their power is checked and they do not function in an arbitrary manner.

                                                 There is one more significant role that the judiciary has to play in a federation i.e. to act as the balance wheel of federalism by deciding the controversies between the constituent states inter se, as well as between the centre and state as this power is conferred to judiciary under Article 131 of theConstitution under the heading of original jurisdiction of the Supreme Court.

                                                 Further adding weapons to its armoury the framers of our Constitution has provided the Supreme Court with jurisdiction to punish contempt of its authority under Article 129 of the Constitution. Such a power is very necessary to prevent interference with the course of justice and in maintaining the authority of law as administered in the court and to ensure the confidence of people in the integrity of the judges as the same was observed by the court in Om Prakash Jaiswal v. D.K. Mittal[6] that: “Any act or omission which undermines the dignity of the court is therefore viewed with concern by the society and the court treats it as an obligation to zealously guard against any onslaught on its dignity.”

                                                 It is not so that only an individual can be held liable for contempt of court but executive branch of government also bears a grave responsibility for upholding and obeying judicial orders as the same was ruled by the apex court in Md. Aslam v. Union Of India and Vineet Kumar Mathur v. Union Of India to name few but this responsibility is many times is not fulfilled in many cases and in many cases government officials are found guilty by the Supreme Court of contempt the most famous of which isIndira Sawhney v. Union Of India where the Chief Secretary of Kerela was guilty of contempt of court.

                                                 In this regard parliament has the power to enact laws but such laws are limited only to prescribe the procedure to be followed and the maximum duration of the punishment and can make provisions for appeal but parliament has no legislative competence to abridge or extinguish the jurisdiction or power conferred on this court by the Constitution. The two rulings namely Delhi Judicial Services Association,Tis Hazari Court v. State of Gujrat and Supreme Court Bar Association v. Union Of India[11] in this respect are significant where in the former the Supreme Court held that parliament’s power to legislate in relation to law of contempt is limited and in the latter Supreme Court ruled that the Constitutional vested right under Article 129 can’t be either abrogated, abridged or cut down by any legislation such as Contempt of Court Act or C.P.C.

                                               The above mentioned provisions of the Constitution is the place from where judiciary attributes its supremacy over the other 2 pillars of Indian democracy namely the legislature and executive and any act done by judiciary for upholding the principles of democracy can’t be labeled as encroachment of judiciary over the domain of legislature and executive as many times in recent past top notch of legislature and executive had given statement in open against judiciary of not to cross its limits which clearly attracts contempt of court proceeding against themselves. 

                                               Talking about the recent major face off between the judiciary on one side and legislature and executive on the other side are on the issues of directions of Supreme Court to conduct floor test in Jharkhand Assembly, summons to Lok Sabha Speaker in expulsions of M.P.’s case and considering the constitutionality of dissolution of Bihar Assembly. 

                                               Regarding the direction of Supreme Court to conduct floor test in Jharkhand Assembly, it is no where in violation of Article 212 of Constitution because although the courts can’t interfere with the working of a house on grounds of irregularity of procedure but they may scrutinize the proceeding of house on grounds of illegality or unconstitutionality. The same was the case here as the courts didn’t interfered in the procedure of floor test but it only directed to conduct a floor test because formation of JMM government was unconstitutional as it was in minority and was formed without the floor test. Similar verdict of Supreme Court was there to conduct floor test in case of Jagdambika Pal v. State of U.P.It is all wrong to say that Constitution prohibits judiciary to look into matters of violation of Constitutionwhen it is concerned with legislative act instead it is vice versa as in Keshav Singh v. Speaker, Legislative Assembly the court had interpreted the Constitution as: “Article 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law, the validity of any proceeding inside the legislative chamber, if his case is that the said proceeding suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law.”

                                               Coming to the topic of summon to Speaker of Lok Sabha and his subsequent remarks on that clearly invites contempt of court proceedings against him as he had laminated the Supreme Court to be overstepping its limits which was not the case of overstepping of limits, but is a jurisdiction conferred to it by Constitutionas laid down in: Delhi Electric Supply Undertaking v. Basanti Devi where it was ruled that underArticle 142(1) that Supreme Court in exercise of its jurisdiction is entitled to pass any decree, or make any order, as is necessary for doing complete justice in any cause of matter pending before it and it was under same provision it was deemed fit by Supreme Court to summon the Speaker and ask him that under which provision of law the legislature has power to expel its members elected by people when it doesn’t have power to appoint them as representative of people.

                                              It must also be brought in light that it was not only under Article 142(1) but it was also under an express provision of Constitution for this purpose i.e. under Article 142(2) of Constitution Supreme Court have all and every power to make any order for securing attendance of any person and Speaker should be reminded of Article 361 of Constitution which protect only President and Governor from being answerable to any court in course of exercise and performance of powers and duties of his office or for any act done and the post of Speaker Of Lok Sabha is not in the ambit of this provision of not being answerable to any court of law and it should also be reminded to him that his denial to summons of court is in ambit of guidelines laid down by apex court in Hira Lal Dixit v. State of U.P. in which it was held that any willful disobedience or non compliance of court order is considered as contempt of court as his act hampers administration of justice and erodes faith of people from the temple of justice and brings administration of justice into deep disrespect.

                                              Lastly dissolution of Bihar Assembly which was dissolved on the recommendation of Governor of Bihar and on advice of Union cabinet of ministers by The President was held unconstitutional is also not violation ofArticle 361 of Constitution as the court hadn’t seek any answer either from The President and The Governor of Bihar but from this it shouldn’t be construed from this provision that this prohibits the court to initiate any proceedings against the Government Of India as the same Article 361 further states that nothing in this clause shall be implied as restricting right of any person to bring appropriate proceeding against Government Of India. Further in this matter it should be taken that in the cases of Rao Birinder Singh v. Union Of India and Madhav Rao Scindia v. Union Of Indiaand other such cases court held that appropriate proceeding can be brought against Government Of India and only President personally is not amenable to a court process with reference to act in question yet when question arises that whether in a given situation the President has acted rightly or wrongly it may be decided only against Government Of India without questioning president’s conduct.

Conclusion 
                                              Finally it should be kept in mind that such Constitutional blunder as that of dissolution of Bihar Assembly case should be avoided in which the President’s office was indirectly brought under criticism by bringing an amendment in Article 74(1) of Constitution and thereby amending it as there shall be Supreme Court with Chief Justice at its head to aid and advice President who shall, in exercise of his functions, act in accordance with such advice so by this all his acts will be in ambit and accordance with laws of country where Constitution being supreme and there will be no any such Constitutional blunder as that of indirect criticism of President’s office.

                                             Further the cases like that of P.N. Duda v. P. Shivshanknkear should be dealt with an iron hand and no one should be allowed to walk away freely in any way or other despite criticism of courts only on the grounds that he or she belongs to power corridors of country as we don’t further want constitutional blunder as that of Justice Beg and Justice A.N. Ray nor brain drain from judiciary as that of protest resignation in the form of Justice Khanna.