Re: [HumJanenge] Babus in black robes

Dear Sirs, FYI.

Competition commission of India ad for Appointment of One member as published in ToI dated 29.10.12. notable is " Every member shall be paid a consolidated monthly salary of Rupees Three Lakh twelve thousand five hundred only. They shall not be entitle to house and car." 

sir, it simply  means loot lo janta ko  by officially getting three times more post retirement  than the present day highest scale of pay.   thats the reason every day one/two/three commission or tribunal are  created for and by  the judges and babus.   rgds. beniwal 

From: Mahesh Khera <mkkhera@yahoo.comoi
To: "HumJanenge@googlegroups.com" <HumJanenge@googlegroups.com>
Sent: Wednesday, 31 October 2012 9:23 AM
Subject: Re: [HumJanenge] Babus in black robes

Dear Mr Sarbajit,

Indeed an excellent analysis of the whole dismal uncontrolled scenario of sticking to greed even after retirement by both babus and judges and the nation can go to dogs. Seeing the rat race among retiring babus and increasingly judges now, others too want to make hay while the sun shines.

Your suggestion at the end is very laudable but who is going to even think of it, leave aside implementing it. Yes, if judges can set a fine personal example and PIL is filed, SC comes out with a judgement for the government that no retiring government servant will be inducted into any organization funded by the government and it is mandatory for every organization to create necessary infrastructure to deal with cases pertaining to their domains. May be there is/are better solution(s) and the serving persons can play a huge selfless role in bringing out these reforms. We need to quickly rid the government of unnecessary baggage. 

 

With warm regards,

Col Mahesh Khera

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From: Sarbajit Roy <sroy.mb@gmail.com>
To: humjanenge <humjanenge@googlegroups.com>
Sent: Wednesday, 31 October 2012 12:19 AM
Subject: [HumJanenge] Babus in black robes

Babus in black robes
The Supreme Court once again asserts judges' place in tribunals
M J Antony / New Delhi Oct 31, 2012, 00:31 IST

http://business-standard.com/india/news/m-j-antony-babus-in-black-robes/491154/

The angst over the imagined collapse of Right to Information (RTI)
commissions following the recent Supreme Court judgment is still
persisting. The government has filed a petition to review that
judgment in the case, Namit Sharma vs Union of India. The fear is that
a seat for judges in the RTI commissions will erode the independence
of these panels.

On the contrary, the Supreme Court thinks that judges' presence is
necessary for the sake of independence of judiciary. In a judgment
delivered earlier this month, the Supreme Court has asserted once
again the judges' role in tribunals, in the case, State of Gujarat vs
Gujarat Revenue Tribunal Bar Association.
Despite a series of well-reasoned judgments over the years, it seems
every quasi-judicial tribunal is destined to undergo teething troubles
with the same symptoms. The nagging issue in every law setting up
tribunals is the weight given to retired civil servants by draftsmen
in the ministries, elbowing out judges. Since tribunalisation is the
current trend – there are some 60 such panels – this has become a
recurring issue.

Civil servants argue that these tribunals, set up under Chapter XIV-A
of the Constitution, deal with technical subjects like electricity and
telecommunications and require expert knowledge not found in the
judicial fraternity. The answer given by judges several times over is
that deciding disputes is an adjudicatory function for which they are
more competent than bureaucrats. Judges claim a pedigree of deciding
highly specialised disputes involving patents (the Supreme Court has
been hearing the Novartis cancer medicine case for two months),
intricate financial scams and even religious doctrines.

In the RTI judgment, the Supreme Court asserted that lack of judicial
expertise in the commissions may render the decision-making process
"impracticable, inflexible and in given cases, contrary to law". It
cited more than a dozen leading judgments to emphasise the need for
judicial talent in adjudicatory bodies.

The latest judgment in the Gujarat Revenue Tribunal reiterates this
viewpoint. The Government of Gujarat, in exercise of its power under
the revenue tribunal rules, appointed the secretary to the state
government as the president of the Gujarat Revenue Tribunal. The
appointment was challenged in the high court by the bar association on
the ground that being a "judicial office", it could not be usurped by
a person who had been an administrative officer all his life. The
validity of the rules was also challenged.

The high court held that the tribunal was, in the strict sense, a
"court", and that the president, who presides over such body could,
therefore, be only a "judicial officer", a district judge or a person
with judicial background for whose appointment concurrence of the high
court is necessary under Article 234 of the Constitution. The state
government, therefore, appealed to the Supreme Court without success.

The Supreme Court went into the history of the law. In 1939, the
president of the revenue tribunal was selected from the judicial
cadre. An amendment in 1941 continued with the emphasis on judicial
experience. It was only in 1957 that the bureaucrats nudged out the
judges — the new rule provided that a secretary to the state
government could chair the tribunal. No prize for guessing who
introduced this quiet but substantial change without giving any reason
for upsetting the hoary tradition.

Upholding the high court's view, the Supreme Court reiterated its
well-known stand. "Adjudicatory functions," it said, "should be left
to those with judicial background. It is indisputable that courts
belong to the judicial hierarchy and constitute the country's
judiciary as distinct from the executive or legislative branches of
the state. Judicial functions involve the decision of rights and
liabilities of the parties. An enquiry and investigation into facts is
a material part of judicial function. The legislature, in its wisdom
has created tribunals and transferred the work which was regularly
done by the civil courts to them, as it was found necessary to do so
in order to provide efficacious remedy and also to reduce the burden
on the civil courts and further, also to save the aggrieved person
from bearing the burden of heavy court fees etc."

Since almost every law setting up tribunals suffers constitutional
birth pangs of this kind, and the law-makers look askance at the
Supreme Court judgments, an amendment to Chapter XIV-A of the
Constitution might be necessary to avoid future tug of wars. That is,
if there is a functioning Parliament.

The story of the administrative tribunals, the Competition Commission
of India and the National Tax Appellate Tribunal, are typical of the
draftsmen creating unnecessary litigation up to the apex level. The
government and administrators must spend their energy more on creating
adequate infrastructure and working conditions for the tribunals (some
of them have functioned from Ambassador cars and guest houses) instead
of tweaking rules to wear a judicial hat after retirement.