Month: October 2015

Supreme Court on NJAC

On 16/10/2015 a five judge bench of the Supreme Court by 4-1 majority struck down National Judicial Appointments Commission and restored collegium. Judges J. S. Khehar, Madan Lokur, Kurian Joseph and Adarsh Goel held that the Constitution (99th Amendment) Act , 2014 which authorised National Judicial Appointments Commission Act is unconstitutional. Judge J. Chelameswar dissented.
This verdict is unconstitutional and a case of judicial tyranny. Constitution does not speak of collegium. The trial was loaded in favour of judiciary. In a dispute between executive and legislature on one side and judiciary on other side on who should appoint judges, judiciary decided in its favour. It is like in a cricket match between two teams, umpires are players of one team. It is like in an Australia versus India Test, Ricky Ponting saying Sourav Ganguly is out.
NJAC had provision for three judges consisting of Chief Justice of India and two senior judges of Supreme Court in a six member panel. Other three were Law Minister of India and two eminent persons. CJI had a say in the selection of two eminent persons. Judges did not want 50% + power. They wanted absolute power. Power corrupts. Absolute power corrupts absolutely.
The government should bring another amendment and do away with any role for judges in appointment of judges. Judges of Supreme Court should be appointed by President after approval by House of the People (Lok Sabha). Judges of High Court should be appointed by Governor after approval by Legislative Assembly. States that share High Courts should have a High Court each.
Lawyers who opposed NJAC are a strange mix. Fali Nariman in one TV interview said there is no basic structure of the Constitution. The judges invented it. Then he argued NJAC violates basic structure of the Constitution. He got bail for Jayalalitha. Ram Jethmalani has defended criminals and engaged in character assassinations. Prashant Bhushan had said 8 of 16 former CJIs were corrupt and given their names in a sealed envelope to Supreme Court. Ashish Khetan had accused him of running PIL industry.
Some parts of the judgment had no relevance to the matter. There were references to Lal Krishna Advani’s statement that forces that could crush democracy were now stronger than ever before, and resignations of Governors with the change of government.
J. Chelameswar wrote the collegium system has become a euphemism for nepotism where mediocrity or even less is promoted. He did not agree with other judges that primacy of the judiciary in appointments of judges is a basic structure of the constitution. The exclusion of the executive has no parallel in any other democracy and it would be destructive to the basic structure of checks and balances. There is no accountability in collegium. The records are out of reach of any person except CJI.
One judge who was Chief Justice of Calcutta High Court had written that he was not promoted to Supreme Court because he did not support Altamas Kabir’s attempt to make his sister a judge of Calcutta High Court.
The collegium was invented by judges of the Supreme Court by their creative interpretation of the Constitution in 1993. They turned consultation into consent and CJI into five member collegium. Justice Jagdish Sharan Verma wrote the majority judgment. Later he spoke against the collegium system.
Many people have lost faith in the judiciary. Some said so when a judge of Karnataka High Court acquitted Jayalalitha in a case. Some lost faith after a three judge bench of Supreme Court did not jail Ansal Brothers for Uphaar fire tragedy in which 59 persons lost their lives. Instead they told Ansals to pay 30 crore rupees each. This judgment was like a khap Panchayat judgment.
The judges of Supreme Court want accountability and transparency for all except themselves. In a case of making assets of judges public they appealed to Delhi High Court. They lost the case and appealed to themselves.

Bose files

On 15/10/2015 Prime Minister Narendra Modi met members of the Bose family and said the process to declassify Bose files will begin after 100 days on 23/10/2016 on the birth anniversary of Subhash Chandra Bose. That reminds me of his promise to bring back black money from foreign countries and put 15 lakh rupees in every Indian’s account within 100 days of coming to power.
Making public Bose files was one of the promises Modi made during his election speeches and it should have been fulfilled more than a year ago. Modi did not fulfil many of the promises he made. The promise of One Rank One Pension was partially fulfilled after ex-servicemen began fast unto death and there was huge negative publicity. In September West Bengal Chief Minister Mamata Banerjee made public Bose files with her government and that forced Modi’s hand. He agreed to meet Members of Modi family but delayed it by one month and process of publication is delayed by further 100 days.
Congress while in power refused to make public Bose files claiming it will adversely affect relations.
It is said there was surveillance on Bose family till 1968. It is known West Bengal State Intelligence Bureau opened letters addressed to Bose family members and some letters did not reach Bose family members.
Some claim Bose did not die on 18/8/1945. Some claim he was a prisoner in USSR for 12 years and died there. Some claim he went to China. WB files did not put an end to that speculation.
M. O. Mathai was Principal Private Secretary to Jawaharlal Nehru. Mission Netaji was an organisation involved in finding out about Subhash Chandra Bose’s death. Mission Netaji got hold M. O. Mathai’s letter UO No. DS/13170 dt. 2/12/1954 which indicated Bose’s ashes were received in India between 1950 and 1954. India’s official position is Bose’s ashes are in Renkoji Temple in Tokyo Japan. It is possible that some ashes were received in India and some are in Renkoji Temple. Jawaharlal Nehru, Rajendra Prasad, Indira Gandhi and Atal Behari Vajpayee had visited the temple.
Shah Nawaz Committee, Khosla Commission and Mukherjee Commission inquired into the death of Bose. Shah Nawaz Committee and Khosla Commission concluded Bose died in plane crash. Mukherjee Commission concluded Bose did not die in plane crash. The Government of India rejected the findings of Mukherjee Commission.
The publication of Bose files with the Government of India will hopefully put an end to speculation about Bose’s death.