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Separation Of Powers Is A beautiful Theory: Jasti Chelameswar

The executive enacts laws through the legislature and furnishes the infrastructure to the judiciary

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Separation Of Powers Is A beautiful Theory: Jasti Chelameswar
Separation Of Powers Is A beautiful Theory: Jasti Chelameswar. Flickr

That the executive and the judiciary are insulated from each other is a beautiful theory which does not work in practice if iconoclast judge Jasti Chelameswar is to be believed. He may be right because democracy, too, is a beautiful theory which fails in practice when judges and politicians mingle.

Chelameswar reiterated on June 23 that nothing had changed after the four judges’ press conference on January 12, which was the proverbial last straw after the allegedly unacceptable functioning of the Supreme Court registry in case allotment. It is true that the Chief Justice of India (CJI) is the master of the roster but sensitive cases must be allotted with the public interest uppermost rather than the subjective wisdom of the CJI in selecting benches to decide certain cases.

Chelameswar was responsible for ensuring that the resolutions passed by the Supreme Court collegium are uploaded for the country to see and indirectly sparking a controversy after his January 12 press conference which led to a failed impeachment motion against Chief Justice of India (CJI) Dipak Misra by the Congress. Nevertheless, Dipak Misra is the first CJI to  face an impeachment motion.

The point here is that every law student learns the judiciary is independent of the executive although the judges’ salaries are paid by the state exchequer. However, this is a theoretical concept because the names of lawyers who will be sworn in as judges are sent by the chief justice of the parent high court to the chief minister and governor for vetting by the Intelligence Bureau before the file reaches the office of the CJI.

After all, the state provides judges with their housing, cars and other perks which are all withdrawn after retirement. Most judges accept post-retirement benefits such as chairing commissions or heading arbitration panels which Chelameswar and Kurien Joseph have refused.

Few know that when a judge is sworn in at the Raj Bhavan of any state, the swearing-in ceremony is attended by the chief minister, and sometimes, senior cabinet ministers. The governor administers the oath of office to the incumbent judge who then makes an acceptance speech. Hence, insulating the judiciary from the executive is a chimera.

The executive enacts laws through the legislature and furnishes the infrastructure to the judiciary. Hence, although the judiciary interprets the laws, it will never cross the laxman rekha of directly striking down partisan laws unless there is a clear violation of fundamental rights. This is because the judiciary is accountable only to itself whereas the executive and legislature is directly responsible to the people for its partisan policies.

Hence, the fact that at least a few judges in the past were known to be close to the executive is beyond dispute because the late CJI A N Ray was allegedly known to have even phoned Prime Minister Indira Gandhi to elicit her views on national issues placed before him. Indira Gandhi superseded Justices J M Shelat, A N Grover and K S Hegde to appoint Ray as the CJI. All three judges resigned in protest and Hegde went on to join the executive as speaker of the Lok Sabha.

Indira Gandhi’s Union law minister in 1980, Punjala Shiv Shankar, was a former high court judge from Andhra Pradesh. He issued a controversial circular dated March 18, 1981, to the governors of all states asking them to seek the consent of additional judges (on probation) to be transferred to any high court outside their state. He allegedly issued this circular without consulting the then CJI Y V Chandrachud. The transfer policy, presently followed by the Indian judiciary, was the result of this circular which was justified as eradicating partisanship, casteism and promoting national integration within the judiciary.

In 2010, a controversy broke out when Justice Hemant Gokhale, who was the Madras high court chief justice and later elevated to the Supreme Court, pointed out that the then CJI K G Balakrishnan had apparently lied when he said he did not receive a letter from Justice R Reghupathi of the Madras high court dated July 2, 2009 that a lawyer R K Chandramohan had tried to influence his granting of bail to a DMK murder accused by using the name of former Union telecom minister A Raja.

This DMK lawyer-politician was later acquitted by the courts of causing a loss of Rs 1.76 crore to the country for awarding spectrum at throwaway prices to telecom operators in exchange for bribes. His accomplices, Kanimozhi and Dayanidhi Maran were acquitted last year by a CBI special court.

Supreme Court judge Justice Jasti #Chelameswar and High Court Judge Justice Devan Ramachandran taking a ride on Kochi metro
Supreme Court judge Justice Jasti #Chelameswar and High Court Judge Justice Devan Ramachandran taking a ride on Kochi metro. flickr

Significantly, Prime Minister Narendra Modi flew to Chennai and invited the ailing DMK chief, Karunanidhi to occupy the PM’s official residence for medical treatment. Finally, the fact that Union law minister Ravi Shankar Prasad, a senior advocate of the apex court himself, stated at a press conference that when CJI Dipak Misra recommends the name of the seniormost judge as his successor, the government would consider it. “…But the intentions of the government cannot be questioned,” sounds sinister.

Also read: The Trailer of Rajinikanth’s new Film ‘Kaala’ Shows He Is Serious About Politics

These statements suggest Justice Chelameswar’s contention of a bon homie between the judiciary and the executive endangering democracy may be true. This may be why former CJI T S Thakur wept like a child before Narendra Modi in 2016 and why the Bar Council of India has attacked Justice Chelameswar for pointing out that democracy had become a beautiful theory within India. (IANS)

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Things You Need to Consider before Filing a Lawsuit

Here are a few things you need to consider before filing a lawsuit

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Here are four things you need to keep in mind before filing a lawsuit. Pixabay

No one wants to end up in a courtroom, but sometimes you don’t have any other choice. If you feel that you have been wronged in some way or you have a dispute that you cannot settle on your own, then you may have no choice but to file a lawsuit. This is a big decision and not something you should enter into lightly. It is important that you know exactly what you are getting yourself into.

Here are four things you need to know before you file a lawsuit

Do You Have a Case?

Obviously, it is a good idea to establish whether you actually have a winnable case or not long before you enter a courtroom. You don’t want to sink lots of time and money into a case that’s going nowhere. Most attorneys will be happy to offer you a free consultation to decide whether it is worth hiring the services or not. So, it is worth arranging a meeting with an attorney near you.

What Do You Want Out of the Process?

What do you want to get out of the process? Do you want to get some financial compensation? Or are you only looking to get an acknowledgment of wrongdoing and an apology? There is a multitude of different reasons that people file lawsuits, it is important to understand and exactly what it is that you want out of the process from the beginning. Things aren’t necessarily going to go your way, and it is important that you can manage your expectations from the beginning. You don’t want to end up disappointed when you realize that the outcome you were expecting is not going to materialize.

If or when you sit down with a lawyer, it is important that you discuss with them what it is that you are hoping to get out of the case. They will be able to tell you whether your expectations are realistic or not, and if necessary, they can help you adjust them to something more realistic.

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It is better to set up the case out of court and save time and money before filing a lawsuit. Pixabay

Have You Tried to Settle the Case Without Litigation?

In some cases, it is better to set up the case out of court and save yourself some time and money. The time and money that you spend fighting a court case is time and money that you’ll never ever be able to get back. Of course, some things can only be settled in a courtroom, and in some cases, the remedy that you’re pursuing can only be awarded to you by a court. However, if there is a possibility of reaching a settlement or agreement with the subject of your lawsuit this is an avenue that you should explore.

Do You Know What Kind of Lawyer You Need?

Different fields of the law will be handled by different lawyers, you need to find one that has the appropriate specialty to take on your case. You need a lawyer that not only has experience in the area of law most relevant to your case, but also one that has experience arguing cases in the state where your case will be heard. If at all possible, you should look for someone with even more localized experience than this.

For example, if you were pursuing a wrongful death suit in Philadelphia, you would consult a Philadelphia wrongful death attorney, not one based elsewhere in Pennsylvania.

Also Read-  China to Adopt National Law on Cryptography

Having the right attorney on your side will ensure that everything that follows progresses as smoothly and easily as possible. The last thing you want when you are halfway through the litigation process is an unexpected surprise that derails your entire case. Working with an experienced attorney is the best way of avoiding this.

If you are sure that a lawsuit is the way to go, then it is important that you enter the process with both eyes open. It is always worth speaking to an attorney beforehand, as most will offer you a free consultation.