While considering the Supreme Court and High Courts (Salary and Conditions of Service) Amendment Bill, 2021, JohnBrittas member of the Rajya Sabha raised the issues of lack of social diversity in the judges of higher judiciary, post-retirement appointments, lack of transparency in the appointment of judges and the need to re-introduce National Judicial Appointments Commission.
Full speech by John Brittas MP
At the very outset let me pay my rich tributes to the martyrs who lost their lives in the resoundingly successful farmers protests and other participants of this yearlong historic agitation.
With equal heaviness to my heart, I stand with the families and near ones bereaving in the killing of innocent civilians in Nagaland . And now my head before the memory of General Bipin Rawat and others .
Let me also express my solidarity with 12 suspended colleagues, including my leader Elamaram Kareem, who were penalised in the most undemocratic manner, all of which is a blot on Parliamentary democracy.
Since today’s topic is about judge’s pensions, naturally justice is what we need to discuss here. Sir, though i am a new member I have been part of this House since 1988 when I started covering the Parliament as a young reporter. I have seen many a ruckus in this House, but never in the history has such a unilateral and biased action was taken. I recollect the then chairman shankar dayal Sharma literally breaking down because of heated scenes. One of those who made sharmaji weep is now a BJP member of Parliament, SS Ahluwalia, who was then a Congress leader. Nobody was suspended then or even named or warned.
Coming to the Bill, the pertinent point here is the independence of the judiciary. The honourable law minister Kiren Rijju has made it clear that the purpose of this Bill is to make the legislative intent clear about the additional quantum of pensions. I fully appreciate it. But does he understand that there is a serious lacuna because although we decide such matters we have no role in the appointment of judges. Does this exist anywhere else in the word?
Judges appointing judges is unheard of. And strangely the law minister doesn’t have a firm view. There has been a demand for a National Judicial Appointment Commission which should represent judiciary, executive, legislature, Bar and the public with provisions for bringing in transparency and accountability. Let people know who are going to be their judges and their competence, ability and integrity. Should there be system shrouded in mystery , secrecy and darkness ?
Are we creating a system of patronage , give and take . Are we creating an oligarchy? We have judges families . I vouch for the fact there are brilliant judges with high level of integrity from judges families . But that should be exceptions and not rule in a Democracy.
It is six years since the SC struck down this proposal, but this government has found it convenient and expedient so that there is a barter.The government has successfully spiked the appointments of those who are inconvenient to them. And the govt has been sitting on the proposals of the collegium whenever they find certain names who are persona non grata for them. some judges are transferred for unknown reasons as a punishment. But some CJ ( Kashmir ) openly speaks against secularism and thus the constitution. no age criteria for becoming judges, some are rejected for want of age , some are appointed overnight
I am sure the key framer of the Constitution and the first law mnister Dr BR Ambedkar will be turning in his grave seeing how judicial appointments are made and how the independence of the judiciary is tampered with in Modi’s India. It is true that ambedkar was not in favour of prohibiting judges of the SC or HC in taking up an office of profit after retirement. In fact, he never visualised this kind of a scenario. If he had, he would have concurred with the motion moved by Professor KT Shah in the Constituent assembly for prohibiting post retirement assigments for the judges. Professor Shiban Lal Saxena’s words of wisdom in the Constituent assembly must ring loud in our ears. “If the temptation of being appointed to other high positions after retirement is not removed, it will also be liable to be abused by the executive, or by any party in power. And they may hold out such temptations which might affect the independence of the judiciary.”
And sir what did our former Law Minister Late Arun Jaitley said – “ In some cases pre retirement judicial conduct is influenced by the desire to get post retirement assignment “ and he didn’t stop there sir – “There are two kinds of judges – those who know the law and those who know the Law Minister “. “We are the only country in the world where judges appoint judges, Even though there is a retirement age, judges are not willing to retire “! Dear Law Minister – you seem to be happy now .. is it because of the reasons stated by Jaitley – many judges want to know the Law Minister ?! I am sure like Dr Ambedkar .. Jaitley also will be turning in his grave seeing the way in which our judicial appointments happen .
, Article 1 of the Constitution says that India is a Union of States and that this should be permanent feature of the Indian Constitution. On a fine day when a state was converted as a Union Territory, where we not giving a death blow to the basic character of our constitution? Why is it that there was an omission from the highest court of judiciary. Sir, I don’t want to talk about the Ayodhya verdict because the former CJI himself had said he had celebrated it over an expensive bottle of wine. But the common man will still be puzzled to know the interconnect between a heinous crime and an act of benevolence. The judges would certainly wish to forget about cases like electoral bonds. Even the election commission had filed an affidavit expressing serious reservations about the anonymous electoral bonds schemes by describing it as a “retrograde step” as far as transparency of donations is concerned.
India is a diverse country and the judiciary has to reflect the social realities of this countey. The present scheme of appointment ensures that only a particular class process are rewarded by the govt. And a new class ia being created. Of course, there are exceptions. There are brilliant judges from the families of judges. I don’t dispute . But the judiciary of this country deserves encompassing nature and pluralism. It should not be restricted to just one thought process.
Out of 47 Chief Justices of India till date, at least 14 have been Brahmins.
From 1950-1970, the maximum strength of the Supreme Court was 14 judges and 11 out of them were Brahmins .From 1971-1989, the number saw a further increase. During this period 18 judges were aBrahmins.
In 1988, there were 17 judges at the Supreme Court and and 9 of them were Brahmins. This gave the Supreme Court more than 50% Brahmin representation.irrespective of the political ruling establishment, the average 30-40% quota for Brahmins at the Supreme Court has remained constant.
Will this August house be shocked to note that till 1980, there was no judge from the OBC or SC community in our highest Court ! It can only be taken with a sack of salt that the lack of representation of women , scheduled castes, backwards and other religious and linguistic minorities in the higher judiciary is quiet accidental and not an overt choice! Can Art. 14 in the Constitution of India be given such a casual omission?
The judiciary functions in a Democratic ecosystem.PM talks about a free media when India has plummeted further down , to 142nd slot under his watch. Are we also not responsible for this? Why are our press galleries empty or have a deserted look ? Why is that when malls, cinemas, eateries and bars and schools are open, we see Covid a media centric pandemic? If the PM stands by his pronouncement for an independent judiciary and free media, the galleries and the central hall must be kept open for them.
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