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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After all, the state provides judges with their housing, cars and other perks which are all withdrawn after retirement.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.

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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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People with Albinism Face Great Difficulties in Seeking Justice

Ero says persons with Albinism suffer from discrimination, stigma and social exclusion

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FILE - People with albinism pose with campaigners for their rights in the capital of Lilongwe, Malawi, in early 2016 before the start of street protests against attacks. VOA

The Independent Expert on the Enjoyment of Human Rights by Persons with Albinism reports people with this condition have great difficulty getting justice or recompense for physical attacks and other harmful practices against them and their families. The expert’s latest report has been under debate at the UN Human Rights Council in Geneva.

Last year has been a particularly difficult one for persons with albinism in southern Africa. UN expert, Ikponwosa Ero says she has received numerous reports of abhorrent attacks against them.

From past experience, she says it is likely the number of reported cases does not reflect the true magnitude of the problem. Over the past decade, she says there have been more than 700 cases of attacks in 28 countries in sub-Saharan Africa. She notes these are reported cases. Most, she says, are never brought to light.

albinism, justice
FILE – The U.N.’s independent expert on human rights and albinism, Ikponwosa Ero, addresses a news conference at the end of her official visit to Malawi on April 29, 2016. VOA

Worldwide, Ero says persons with Albinism suffer from discrimination, stigma and social exclusion. She says they are subject to physical attacks and harmful practices related to certain beliefs in magic and witchcraft. However, when they seek redress, she says persons with albinism too frequently are denied access to justice.

“Overall, in terms of these criminal cases, inordinate delays are common in prosecuting cases of serious charges such as murder and mutilation. Cases with relatively lesser charges such as threats and possession of exhumed body parts from gravesites are — depending on the country in question — either prosecuted relatively quickly or are not taken seriously at all.”

Ero says there are many barriers to access to justice, including lack of knowledge by victims on how the justice system works. She says discrimination from members of the legal community and the inability to pay the costs associated with going to court are other impediments.

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The independent expert says specific measures must be taken to improve access to justice for persons with albinism. She recommends victims and their relatives be given protection to encourage them to come forward with evidence of a crime. She says they also should be rehabilitated.

Ero says persons with albinism who are seeking justice should receive legal aid and laws should be amended to take into account the threats targeting this particular group. (VOA)