LEADER OF OPPOSITION SHOULD BE A LEADER ELECTED BY THE WHOLE OPPOSITION.

A controversy is raging as to whether and if so how should a Leader of Opposition should be selected.

LOP has an important function of representing the opposition before the Speaker.
So there should be one.

In my opinion LOP should be someone who can best represent the views of the opposition as a whole.
Therefore he should be a person most acceptable to the entire opposition. The best way to achieve this would be to elect a person by the process of a single transferable vote by all members belonging to the opposition.



SHANTI BHUSHAN
FORMER UNION LAW MINISTER & SENIOR ADVOCATE

SUPREME COURT OF INDIA. 

CSAT EXAM : A SOLUTION

This controversy on CSAT exam appears to be between Hindi medium students and English medium students.

A solution needs to be found. Perhaps one possible solution which could be considered by those who know much more on the subject could be to fill up half the posts with both papers 1 and 2 and fill up the other half of the posts only with paper 1without paper 2 .

Perhaps this may satisfy both the warring factions and yield a good mix of the two kinds of officers.


SHANTI BHUSHAN
FORMER UNION LAW MINISTER & SENIOR ADVOCATE

SUPREME COURT OF INDIA. 

REMEMBER : UNITY IN DIVERSITY BINDS US TOGETHER.

On some T.V. Debates, polarisation of some sort is being encouraged.

If it means driving a wedge between people of different communities or followers of different religions, the people of India must reject any such attempts.

For thousands of years before the British came, all people of different faith had lived together in harmony sharing each others joys and sorrows also sharing each others festivals and enjoying the diversity of India. It was a beautiful life for all.

Who amongst us would like to replace it with a life full of strife,unhappiness and risks for all.

India consists of wise and intelligent people. Many of us may be ill educated but are still full of wisdom. Let none be able to make a fool of us. Let all of us resolve to keep our sanity and continue to enjoy our diversity and remain a widely respected Nation as we were for thousands of years.


SHANTI BHUSHAN
FORMER UNION LAW MINISTER & SENIOR ADVOCATE
SUPREME COURT OF INDIA. 

SENIOR ADVOCATE DESIGNATION : AN HONOUR WHICH HAS TO BE BESTOWED UPON NOT APPLIED FOR. 

Almost in every High Court the system of designation as a senior Advocate requires the filing of an application by the lawyer concerned which is then circulated among the judges for their opinion.

Judges have to either say a yes or a no. A few no's would mean the rejection of the application.

What a humiliating procedure. Being designated as a senior is supposed to be an honour and nobody ever applies for being conferred an honour.

In 1960's there was no procedure for making applications for being designated seniors.The concept of designation of distinguished lawyers as Senior Advocates was introduced by the Advocates Act of 1961.

The procedure adopted by Allahabad High Court then was just to take the consent of the lawyer whom they considered fit for this honour and proceed to designate him as such.

This is the system which is followed by the Supreme Court today. Had the Allahabad High Court been following todays system of inviting applications, I would not have been a senior even today, as I would have considered it beneath my dignity to make an application. Perhaps the High Courts would be well advised to change their rules and adopt the system followed by the Supreme Court.

The correct system would be for any individual judge to initiate the process by making a suggestion to the CJ. And the views of all judges could be invited. If the decision was in favour of designation the consent of the lawyer could be taken.

SHANTI BHUSHAN

FORMER UNION LAW MINISTER, SENIOR ADVOCATE
SUPREME COURT OF INDIA

FOES CAN BECOME FRIENDS 

SANIA MIRZA : DAUGHTER CUM DAUGHTER IN LAW : GOODWILL AMBASSADOR



A BJP MP has raised serious objections against the Telangana government appointing Sania Mirza as its Brand Ambassador on the ground that she is the daughter in law of Pakistan.This criticism has been roundly condemned in the country even by BJP Ministers.

Sania Mirza is one of the greatest tennis players that India has produced. She has equalled the cricket stature of Sachin in Indian Tennis World. She would indeed be a great Brand Ambassador as she belongs to Hyderabad.

Narendra Modi has been rightly making efforts to establish friendly relations with Pakistan which is essential for peace in the region. Some parties have been unwisely trying their best to derail this process .The BJP should not bother about them. So long as you are doing something for the good of the people you should not be deflected by any criticism.

I would regard Sania Mirza as a great opportunity for India for improving its relations with Pakistan. If the BJP appoints this great daughter of India who also happens to be the daughter in law of Pakistan, as its goodwill Ambassador to Pakistan just imagine what this could do for friendship between India and Pakistan and also change the image of BJP among the Muslims of India as well as Pakistan.

It could become a game changer.

SHANTI BHUSHAN

FORMER UNION LAW MINISTER & SENIOR ADVOCATE
SUPREME COURT OF INDIA

           

       The Judicial Merry-go-round

In my first year of practice I got a chance to appear in the Federal Court in early 1949. At that time the Federal Court used to hold Court in the Parliament House.

The case in which I came to the Federal Court was itself an interesting case.There was a muslim Deputy Collector in UP. He was tried in a corruption case by a magistrate in Bareily and was convicted and sentenced. His appeal before the Sessions Judge was argued by the top counsel of Allahabad High Court,Shri Gopal Swarup Pathak. The appeal was dismissed. He came to me and got a criminal revision filed in the High Court.The revision was admitted for final hearing. In those days some good judges, if they felt that even a finding on question of fact may not be correct were prepared to examine the evidence also. The client therefore wanted a top lawyer to argue the revision but did not enough money to engage one.Through some relative of his he was able to contact Sir Iqbal Ahmed who was now practising in Lucknow. He saw the papers and agreed to argue the case free.

But there was a catch. Sir Iqbal had been a Chief Justice of the Allahabad High Court and had retired from there in 1946. He could not appear in Allahabad High Court. After retirement in 1946 he had started his practice before the Oudh Chief Court at Lucknow which was at that time a separate High Court for the 12 Districts of Oudh. UP which is now Uttar Pradesh was then called The United Provinces of Agra and Oudh.Two years after Sir Iqbal Ahmed had started practice before the Chief Court of Oudh at Lucknow, the UP Govt decided to amalgamate the two High Courts in the State in exercise of a provision in The Government Of India Act ,1935 ,which permitted this to be done. Oudh Chief Court having become part of the Allahabad High Court, a question arose whether Sir Iqbal could now appear even in Lucknow. Fortunately for Sir Iqbal even after the amalgamation of the two High Court the Amalgamation Order of 1948 had decided to retain a bench at Lucknow even though as a part of the Allahabad High Court. The High Court therefore decided that Sir Iqbal could practice before the Lucknow Bench.

So my client the Deputy Collector could get the free services of Sir Iqbal if the revision could be heard at Lucknow. A Chief Justice has the power to transfer any case from one bench to another.However, the question, was whether this power could be exercised to transfer a case from a bench at Allahabad to a bench at Lucknow. On a careful consideration of the Amalgamation Order i was of the view that it was permissible. So it was decided to move to the Chief Justice.

The Governor of UP Sarojini Naidu had just died and the Chief Justice of Allahabad High Court Bidhu Bhushan Malik had been appointed Governor and the senior most judge Justice Waliullah had become Acting Chief Justice.

I drafted an application for which my client paid me a small fee and immediately after Court hours when the judges rose from the Courts and went to their Chambers, I went to the Chief Justices' Chamber and sent word that I wanted to see the Chief Justice for an important application. I was called immediately and politely asked to take a seat. I presented the application and explained the reasons for the prayer.The Chief Justice was sympathetic and asked me whether he had the power to do so. On my saying that in my opinion he had the power. He asked his secretary to send his "Salaam" to the Administrative Judge. "Salaam"meant a request to come. KN Wanchoo was the administrative judge.He was from the ICS and later rose to become the Chief Justice of India.

Wanchoo promptly came and stood at the door and said " May I come in Sir" He was greeted with a smile and asked to come in and take his seat.The Chief Justice explained to him my application and requested him to carefully consider whether under the Amalgamation Order he can transfer the case to Lucknow and send his opinion the next day. I was also told to come the next day when he would pass orders.

When I reached the next day Justice Wanchoo's opinion had been received that the case could be transferred to Lucknow.

The Acting Chief Justice promptly passed an order transferring the case to the Lucknow Bench. My client was so happy with me that he brought a beautiful present for me. It was a large glass Vase which I treasured for long.

By the time the case was listed at Lucknow, Chief Justice Malik had returned to the High Court. He was of the view that while a case could be transferred from Lucknow to Allahabad it could not be transferred from Allahabad to Lucknow. So a preliminary objection was raised at Lucknow that the Chief Justices' order was without jurisdiction and had therefore to be disregarded and the case should be sent back to Allahabad. The point was heard at some length and finally a Two Judge bench in a detailed judgment upheld the objection and directed the case to be sent back to Allahabad for hearing. However,keeping in mind that two views were possible on the issue, they certified that the case was fit for an appeal to the Federal Court. This certificate was granted under Sec 205 of the Govt of India Act 1935. Without such a certificate no party could appeal to the Federal Court.

An appeal was filed and this gave me an opportunity to appear in the Federal Court in 1949. Of course this was only to assist a senior and not to argue myself. It was even then a great experience. The senior was  Mr A.P. Pandey from Allahabad. He spoke chaste english with some accent.

The Federal Court which had only 5 judges and one Courtroom. All judges sat together. The function of the Court was confined to deciding questions relating to the interpretation of the Govt of India Act 1935 only and that is why even  Sec 205 contemplated an appeal to the Federal Court if the High Court certified that the case involved a question of interpretation of the Govt of India Act. All other appeals involving other important points even after the creation of the Federal Court in 1937 had to go only to the Privy Council in England.

As the case was called out in the Federal Court. Even before Mr A P Pandey could open his mouth we heard the booming voice of Justice Mahajan "Why is a litigant being shunted from Allahabad to Lucknow and then from Lucknow to Allahabad." He was clearly highly critical of the Lucknow Bench in sending the case back to Allahabad.

However the Chief Justice Kania said that before going into the merits of the appeal the Court had to consider the maintainability of the appeal itself. He pointed out that while the case indeed involved a question about the interpretation of the Amalgamation Order and an important question at that, it did not involve any question involving the interpretation of the Govt of India Act and therefore the certificate granted by the High Court itself was liable to be revoked. Mr A P Pandey made a valiant effort but could not succeed.The certificate was revoked, the appeal became non maintainable and was dismissed.

Before the revision could come up for hearing at Allahabad, we got news of the sudden death of my client the Deputy Collector whom I still fondly remember for reposing so much confidence in me as a young man of only 23 years and giving me my only opportunity to appear in the Federal Court. I can never forget his handsome and kindly face. May his soul rest in peace.

     

      SHANTI BHUSHAN

     FORMER UNION LAW MINISTER & SENIOR ADVOCATE
     SUPREME COURT OF INDIA

CATCH THEM YOUNG !                                            

Newspapers have reported that there are almost 280 vacancies of judges in the High Courts' because suitable persons are not available who could be recommended. With huge pendency of cases this is truly alarming. 

What is the real reason for this alarming state of affairs?

The real reason is the faulty policy of the Supreme Court in insisting on a minimum age of about 45 years for appointment as a High Court Judge .This rules out the really outstanding persons from becoming judges except in some cases when even outstanding person also accept judgeships even at that age. 

This was not the position during British time. In Allahabad High Court Sir Shah Mohammed Sulaiman was appointed as a judge of the High Court at the age of 34 years. Justice Mahmood a legendary judge was appointed to the High Court at the age of only 32 years.

 Let us understand that the disposal of cases by a truly outstanding judge is 3 to 5 times that of an average judge and could be even 10 times of that of a really slow judge. The reasons for this are many. An outstanding judge already knows a lot of law and is also quite familiar with the principles of law including constitutional law. Before ordinary judges arguments have to take a long time before judge would understand the applicable law.Further the outstanding judge is much sharper and more intelligent than other judges and therefore appreciates evidence also more quickly.

In fact the policy should be to search the best brains to man the higher judiciary irrespective of age or seniority in the judicial service. A lawyer with ten years practice at the bar is eligible under the constitution for appointment as a High Court Judge. 

Normally a person gets enrolled in the Bar at the age of about 23 years. So at the age of 33 years he is eligible. Those who are really outstanding should be taken at that age or shortly thereafter. They would be judges for almost 30 years. The tenure of many judges particularly from the judicial service is about 5 years and so a replacement for such judges has to be found after 5 years. In the case of a young appointee a replacement would be needed after 30 years. So the number of appointments to be made would come down to one sixth. All selections must be made on merit disregarding age in the case of members of the Bar and in the case of members of judicial service disregarding their seniority. This set of much fewer but truly outstanding judges would quickly clear the accumulating arrears and usher in the era of speedy justice. As the judgments of such judges would also be correct by and large, fewer appeals would be needed.

 

Let us accept that God Almighty not being bound by the shackles of Art 14 has been quite partial and has endowed different persons with vastly different talents, ability, intelligence, sharpness and capacity for hard work.

Every High Court today is running on the shoulders of a few of its outstanding judges. If all judges were outstanding though young, their disposal would increase many times and the quality of justice would also be of a much superior order.

SHANTI BHUSHAN

FORMER UNION LAW MINISTER & SENIOR ADVOCATE

SUPREME COURT OF INDIA.

FORMATION OF NATIONAL JUDICIAL COMMISSION

The National Judicial Commission must be formed in a manner that the independence of the judiciary is not compromised and the best possible judges get selected for appointment. All political parties want a system in which the government has an important say so that they can ensure the selection of judges that suits its political interests. In our considered opinion it must be ensured that this does not happen. 

For the last 20 years we have been demanding a National Judicial Commission which shall consist of 5 whole time members having an intimate familiarity with the working of the judiciary. They could be either retired judges or senior lawyers. They would be whole time members so that the commission could devote adequate time in searching for the best possible names. They could invite suggestions from the judges sitting or retired as well as members of the bar and even the people at large. 

These suggestions could be considered on the basis of their qualifications and experience as well as other relevant aspects. After shortlisting the names of suitable persons they could be publicized to invite their comments for or against those names so that facts not known to the commission about them if adverse could also be enquired about by an investigating machinery of the commission itself.

 The commission would then make an informed selection of the best names and take the consent of the selected. Such selection would be final and binding on the President.

 The most important issue is how to select the members of this commission so that the judges selected apart from being honest and competent would not feel obligated to the political government so as to remain fiercely independent and objective.

We strongly believe that this can be achieved in the following manner. 

The Chairman of the Commission could be selected by all the judges of the Supreme Court sitting together to get the best possible person. A second member could be selected by all the Chief Justices of all the High Courts sitting together as a collegium. A third member could be selected by the Union Cabinet. The fourth member could be selected by the leader of Opposition in the Lok Sabha in a meeting of the leaders of all opposition parties both in the Lok Sabha as well as the Rajya Sabha. The fifth member could be selected by a collegium of the Chief Election Commissioner, the CAG, the CVC and the Chairman of the Union Public Service Commission.

Such a commission cannot be pressurized either by the ruling party or by any opposition party. Even the judges of the Supreme Court or any High Court can’t have their favorites selected. The best names of honest and competent persons are likely to be appointed enjoying the confidence of the people at large.

SHANTI BHUSHAN

FORMER UNION LAW MINISTER & SENIOR ADVOCATE.

IS MEETING A TERRORIST IN ITSELF AN ACT OF TERROR?

Somebody has filed a complaint against Dr Vaidik for his meeting with Hafeez Saeed, a terrorist mastermind.

What offense did he commit?

Is there any law which prohibits any person from meeting any terrorist so long as he does not incite or help him in committing any offence? I do think we are rendering great disservice to the society by hyping such incidents and unnecessarily rousing peoples' emotions on sensitive issues instead of viewing events in a mature manner. Let all of us strive to make India a mature democracy rather than an adolescent one.

How long would India continue to remain an immature adolescent?

Let us grow up.

SHANTI BHUSHAN

FORMER UNION LAW MINISTER & SENIOR ADVOCATE
SUPREME COURT OF INDIA