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A historic event has taken place in the Supreme Court of India. There will be no independent probe into Judge Brijgopal Harkishan Loya’s death. This is one of the first judgments to come at a time when the Indian Judiciary stands embattled in a manner not seen since Independence. Those quick to point out the Emergency, may do well to reflect, that while Emergency kept our democracy locked and at bay to pander to an autocratic leader, now and here, as we live and speak, work or laze, fight or make love, a dark cloud looms by which democracy and the rule of law are being artfully and systematically subverted. In hindsight, Emergency appears as a blip and our judiciary came out the stronger of it. It rose to the occasion and reclaimed its independence as well as integrity.

This spirit, which the Indian Judiciary showed at what was then the nadir of the Indian democratic experiment in the mid-seventies, is almost dead. This period is historic, not least for the other significant judgments that are being awaited, or for the unprecedented press meeting called by the Supreme Court’s senior-most judges, but for the very foundations that made our country possible in the first place. We are being uprooted like an old banyan tree might be, but we are by and large comatose, and don’t even feel the tremors. Such is the adversity of our collective situation.

Judge Loya died in 2014 but for some time he stood resurrected. Caravan’s reporter Niranjan Takle is an ordinary person, much like you and me, but what he did was extraordinary. For a moment it seemed that God spoke through him, that God could well be a regular reporter, who must resurrect the dead, especially when it seemed that they had not been properly buried.

Amongst its several rebuttals to the petitioners’ arguments, the bench constituted by the Chief Justice of India to decide the matter, is very keen on reprimanding the petitioners for their lack of bonafides and contempt of court. The bench then negates the evidence relied on by the petitioners. But this was not a criminal trial. The writ petitions only sought an independent probe into a critical case that was in fact mocking the very institution of our judiciary.

Judge Loya was a CBI judge entrusted with overseeing the Soharabbudin Sheikh fake encounter case in which the BJP President Amit Shah was an accused. Any reasonable person going by the murky and sordid history of the case, and what followed thereafter, and as it stands to tragically unfold even now, would assume that there is a rat, and it is stinking as hell. Post the furor over the Caravan article the Supreme Court should have in fact taken suo motu cognisance of the case.

One of the time honoured maxims of the law is that justice should not only be done, but must be seen to be done.

The Supreme Court’s rebuttals have already been politically hijacked and can be dissected as well as Mr. Jaitley has sought to do, but it would be more of Machiavellian legalese. Given the divisive and political overtones the case has assumed, with help in no little measure from social media, the polarisation is complete and evident, just as it is for anything now these days. More than polarisation there is fear. Read FEAR.

None of Judge Loya’s family came ahead when they should have, even if it were to simply negate Caravan’s report in open court. The bench too declined to call the family or the judges who said they were with Judge Loya at the time of his death. These being just a couple of inexplicable positions taken by the bench. There was more than enough prima facie material, which the petitioners had brought on record in support of their plea. To reiterate - an independent inquiry is all that they sought. Nobody was going to be hanged for that. One does not need to be a legal scholar or a hotshot lawyer to understand this, or for that matter, the absolute retreat and silence of Judge Loya’s family in the days when the petitions and interventions were being heard.

The bench has also upbraided the petitioners for undermining the judiciary by casting aspersions on those in the bench and on the other judges whose names came up as part of the hearing. Yet the petitions well within the domain of public knowledge fundamentally argued that if the plea for an independent probe is not granted, it would result in an erosion of faith in the judiciary and within it as well, and does not bode well for the lower judiciary.

The tables stand turned and how. The irony is incredible.

In another situation this might seem like a neat sleight of hand, altogether familiar when it comes to political expediency, but now it is simply scary. The Bar and Bench stand divided like never before and the line of division is glaring and aching. Certainly the atmosphere in the Supreme Court has turned noxious. All along, in spite of all the pressures, our judiciary has always shown that it will be the ultimate leveller and a custodian of our rights and dignity. That modicum of faith is fast disappearing.

Judge Loya, who might have been afforded the chance to speak to us through his grave, has been silenced yet again. The questions however will not cease. I often look at his file photos in the news and I always think of him first as a judge and later in any of his filial capacities. Was it not enough that he had sworn to serve the judiciary and through the institution, us, the people of India? His life was exemplary in that regard, and his conduct impeccable, especially when he was assigned to adjudicate the notorious Sohrabbudin case. Do we understand that in failing an upright judge, we have also failed the very institution that is key to our democracy and our constitutional values? It is perhaps the latter that bothers me more and I have a feeling that Judge Loya would have concurred.

There are hundreds of Judge Loyas in our country who have taken the fall in the line of duty when they became a nuisance to the ruling establishment of their time. Judge Loya is certainly not an exception, but his case is. Our judiciary, and we the people of India, were offered a rare opportunity to redeem ourselves had an independent probe been permitted.

We have let that moment pass to our peril.

We stand witness to a new phase of history that has been surely and steadily taking its course, not dissimilar to other previous twisted regimes in the world. In this withering landscape we are adrift and pensive, and for now, our heads must hang in shame.

In a landmark challenge to Aadhaar on the grounds of privacy being an inalienable fundamental right, a 9 judge bench of the Supreme Court of India upholds Right To Privacy as an Intrinsic Part Of Right To Life And Personal Liberty

Supreme Court of India has once again come to rescue the citizens of India by declaring that right to privacy is a fundamental right. This is a big jolt to a government which was turning itself to a surveillance state by intruding every aspect of the life of the individual. This decision was made unanimously reflecting the absolute legal voice on the issue.

The decision was given by a big bench of nine judges who ruled that right to privacy is an intrinsic part of Right to Life and Personal Liberty under Article 21 and entire Part III of the Constitution.

The part III is related to the fundamental rights which have been given to people to live their life as they wish for and develop their personality in full manner. The decision is linked to the government’s effort to make Aadhaar mandatory for the social welfare policies; government also amended Income Tax Act to make Aadhaar mandatory for the IT which SC accepted as valid but government was attempting to extend Aadhaar based surveillance almost in all aspects of the individual’s life. The decision may help to halt this process though SC has to deliver decision on Aadhaar later but is now established that Indian government cannot be a surveillance state as the privacy of the individual cannot be explored and penetrated in absolute manner extending in all aspects of private domain of the person.

The decision has thus overruled the M P Sharma verdict of 1950( six judges judgment) and that of Kharak Singh of 1960 (eight judges) judgments of the same court that right to privacy is not protected under the Constitution..

The decision has been based on article 21 of the fundamental rights. The article is the most interpreted article of the constitution as SC has interpreted it in different dimensions of human life. The article states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” In the same article by 86th Constitution Amendment, 2002 the 21A was added stating that ‘under 21A the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.’

The Supreme Court has taken a wider view of the right to personal liberty that it cannot be controlled by the administrative fiats and the legislations. Aadhaar issue will be heavily impacted after the decision and its decision will be dealt during the coming time but the recent decision has illuminated the hopes that SC will also limit the government powers with respect to Aadhaar. It was felt by the citizens that compulsion of Aadhaar was unnecessarily placing them under stress. From banks to entrance examinations Aadhaar was becoming a compulsory identity. In several places the old person s were faced with the problem of not getting their pensions as they were not in a position to attach the Aadhaar cards. The practical problem was that they were so old that their fingerprints did not appear or were not in position to Aadhaar camp where these cards were being prepared due to old age or no one support them to take them to the camps. Several old women have complained about this sorry state of affairs.

Government did not take a flexible view and attempted to monitor every action of the individual. The fear was that Aadhaar compulsion might put the person always under stress. That day was not far away when government could ask the person attach Aadhaar whenever anyone you purchased a newspaper or visited a restaurant for a dinner or stayed in a hospital or was hanging out in a park.

In the societies where governments are fearful of the force of the citizens such steps are contemplated. Supreme Court by its decision has placed the limits on any malafide intention and has empowered the citizens of the country.

Supreme Court is really a custodian of humane values and lives of the Indian citizens. Constitution is paramount and so the WE THE PEOPLE OF INDIA. Supreme Court has upheld it and no power can dilute it is now a well established fact.

Originally published on CounterCurrents.org

After false Aadhaar benefits claims perjury to deny citizens right to privacy in case, R S Prasad claims govt always saw privacy as a fundamental right after landmark defeat in judgment by 9 judge bench.

R S Prasad makes another Aadhaar and privacy related false claim.

The Supreme Court gave a landmark 9 judge bench judgment upholding privacy as a fundamental right of citizens. The government was among the defendants and had vigorously stated that privacy was not a fundamental right.

Today, after the judgment, R. S. Prasad, Union Minister holding Law and Justice and Ministry of Information Technology portfolio in the Government of India tweeted:

Govt was of the view that #RightToPrivacy should be a fundamental right.

This is complete nonsense, of course. If the government was of the view that privacy was a fundamental right, why was the case in court at all and fought vigorously all through to the top till a 9 judge bench provided a judgment on a matter of crucial importance to the rights of citizens that the government was violating?

Attorney General Mukul Rohtagi, who represents the Union Government presented the government's stand in the Supreme Court as privacy was not a fundamental right of Indian citizens and that the Constitution makers would have put it there if they had intended it to be. The government's stand was that privacy is a right, but not a fundamental right (normal rights can be overruled by the government in various circumstances, while fundamental rights cannot).

Constitution makers did not intend to make right to privacy a fundamental right.

~ Attorney General Mukul Rohtagi while representing the Union government in Supreme Court before a 9 judge bench.

The government wants to be able to overrule a citizen's right to privacy in order to force them to enroll for Aadhaar or lose their right to essential services, subsidies, and documents. Aadhaar, imposed by the government on citizens was being challenged in court in this landmark case by citizens against their government. What R S Prasad is claiming is a flat out lie.

The Union Government actually made the ridiculous claim that citizens don't have absolute right over their bodies, sparking massive outrage on social media with hashtags like #MyBodyMyRight #RightToPrivacy starting to trend and remaining popular from then to now.

Advocate General Mukul Rohtagi cited two cases that supported this view. Rohtagi additionally falsely claimed in court that Aadhaar was foolproof and that the court should balance the right of the petitioners against those of the 700 million people it allegedly serves (which was also a false claim, because having an Aadhaar does not entitle you to anything, but in fact a lack of Aadhaar can prevent you from availing rights and services you already had access to). This outrageous falsehood has also been robustly challenged.

So the Attorney General committed perjury to defend the government's obsession with surveillance of citizens and when they got soundly defeated anyway, now R S Prasad is claiming that they supported the peititoners who fought against them? This is so absurd as to make no sense. If the government respects privacy as a fundamental right, why does Aadhaar exist at all? Why are people being forced to get an Aadhaar if they want to use essential services like the subsidies they are entitled to or to pay tax or to hold a bank account or even a phone?

Conclusion: R S Prasad is lying. It is the beginning of the usual jumble of words you see around this government and particularly around Aadhaar cover ups that turns their actual meanings into their opposites.

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Dear all,

The Department of Personnel and Training, Government of India has invited comments on a new set of Draft Rules (available in English only) to implement The Right to Information Act, 2005. The RTI Rules were last amended in 2012 after a long period of consultation with various stakeholders. The Government's move to put the draft RTI Rules out for people's comments and suggestions for change is a welcome continuation of the tradition of public consultation.

Positive aspects of the Draft RTI Rules

While 60-65% of the Draft RTI Rules repeat the content of the 2012 RTI Rules, some new aspects deserve appreciation as they clarify the manner of implementation of key provisions of the RTI Act. These are:

  1. Provisions for dealing with non-compliance of the orders and directives of the Central Information Commission (CIC) by public authorities- this was missing in the 2012 RTI Rules. Non-compliance is increasingly becoming a major problem- two of my non-compliance cases are pending before the CIC;
  2. Posting of non-compliance cases involving public interest before larger Benches of the CIC;
  3. Procedure for filing complaints under Section 18(1) of the RTI Act;
  4. Prescription of formats for filing appeals and complaints, without making them mandatory;
  5. Making it mandatory for the public authority to serve an advance copy of its counter to an appeal or complaint on the appellant/complainant.

Despite these positive elements, there are several problematic areas in the Draft Rules.

Problematic aspects of the Draft RTI Rules

To begin with, the very approach to the Rule-making exercise has not moved from a bureaucratic one to a citizen-friendly one. Some of the new proposals seem to be inspired by the overtly bureaucratic and largely citizen-unfriendly RTI Rules notified in Uttar Pradesh since 2015. The Uttar Pradesh State Information Commission has not been able to publish any Annual Report during the last 13 years of implementation of the RTI Act. At the end of February, 2017 more than 48,000 appeals and complaints were pending before the UPIC. So with due respect, it must be pointed out, UP cannot become the model for RTI implementation for the rest of India.

Instead, with a truly citizen-friendly set of RTI Rules and a more than 90% rate of disposal of appeals and complaints between 2005 and 2016, Uttarakhand should be treated as the model, at least for the framing of the RTI Rules (see attachment for UTK's RTI Rules). CHRI had brought this model to the DoPT in 2016.

Major problem areas in the DoPT's Draft RTI Rules are given below:

Allowing for the withdrawal and abatement of appeals is like a death sentence

Draft Rule 12 seeks to empower the CIC to permit withdrawal of an appeal if an appellant makes a written request. Pending appeals proceedings will come to an end automatically with the death of the appellant. In 2011, the DoPT had proposed a similar provision which civil society vehemently opposed. Both measures were dropped because civil society actors were able to highlight media reports of murderous attacks on RTI users who sought information of public interest. The Draft Rules have reintroduced this idea seemingly inspired by Rule 13 of the UP RTI Rules, 2015.

In 2017, there are more than 375 recorded instances of attacks on citizens who sought information to expose corruption and wrongdoing in various public authorities. Of these, 56 are murders, at least 157 cases of physical assault and more than 160 cases of harassment and threats some of which have resulted in death by suicide. UP alone accounts for 6 alleged murders, 10 cases of physical assault and at least 9 cases of harassment since 2005. By legally permitting withdrawal of appeals vested interests will feel emboldened to pressurise RTI users to withdraw their appeals before the CIC. If this proposed Rule becomes law at the Centre, most other States will make similar amendments, thereby unwittingly jeopardising the life and safety of RTI users. These amendments must not be allowed to go through when the Whistleblower Protection Act, 2011 has been put in cold storage and Parliament is being called upon to approve a regressive set of amendments that will effectively discourage all whistleblowing in the country and permit the prosecution of the few courageous ones under the Official Secrets Act, 1923.

Further, in Union of India vs Namit Sharma (2013) the Supreme Court recognised and accepted CHRI's argument (made as an Intervenor) that RTI appeals and complaints are not in the nature of a lis (dispute- civil or criminal in nature where rights of parties have to be decided). RTI Act deals with administrative matters only- whether or not the requested information ought to be disclosed. This is why the Apex Court ruled that the Information Commissions established under the RTI Act are only administrative tribunals, not quasi-judicial tribunals. So, given this understanding of RTI appeals and complaints there is no reason why an appeal should come to an end on the death of the appellant. Instead the CIC should pursue the matter and rule in accordance with the provisions of the RTI Act. Where information is directed to be disclosed, it may be proactively displayed on the website of the concerned public authority and a copy sent to the deceased's address so that the family or friends may make use of it. Retention of the abatement Rule will encourage more murderous attacks on RTI users to silence them and put an and to the proceedings before the CIC.

Turning appeals and complaints procedures into complex court procedures

Draft Rule 8(1)(viii), (ix) and (3) and Draft Rule 13(1)(vi) and (3), require an appellant or a complainant, as the case may be, to serve an advance copy of all documents and written submissions to the public authority and attach evidence of having done this. This must be done "before submitting the appeal or the complaint" to the CIC. This procedure which is followed in courts where 'lis' (see immediately previous paragraph) are decided, is completely unsuited for the CIC. An appeal or a complaint becomes such only upon submission to the CIC. Until it is submitted to the CIC is is only a "draft appeal" or "draft complaint". Instead the Rule should specify that a copy of the complaint/appeal should be transmitted to the public authority concerned simultaneously or after submission to the CIC with proof to be shown at the time of hearing.

This principle is already evidenced in Draft Rule 19. A public authority is required to serve a copy of its counter statement to an appellant or complainant only after it is submitted to the CIC. There is no reason why an appellant or complainant should be subjected to a different standard of treatment.

Mandatory requirement of an RTI application in complaint cases

Despite providing separate procedures for submitting appeals and complaints, the Draft Rules do not seem to have understood the difference between these two remedies. In the matter of Chief Information Commr. Manipur & Anr. vs State of Manipur & Anr. (2011) the Hon'ble Supreme Court of India clarified that it is mandatory to use the 2-tiered appeals procedure give under Section 19 of the Act if the RTI applicant is aggrieved by any action of the CPIO or the First Appellate Authority. The complaints procedure under Section 18 of the Act is meant for supervisory purposes only. It is possible to file a complaint against a public authority, for example, for not complying with the strict obligation of proactive information disclosure under Section 4(1) of the RTI Act. An RTI application should not be required to access such information. This is clearly mentioned in Section 4(2) of the RTI Act which requires every public authority to take action to make more and more information publicly available so that people's need to make formal requests for information is reduced. If such information is not posted on the website of the public authority, it should be possible to file a complaint directly with the CIC. A copy of the RTI application should not be made a mandatory support document in such cases, as there will not be any.

No person other than a designated officer should decide first appeals

Even though the Draft Rules do not provide for a procedure for deciding first appeals, Draft Rule 10(a) opens up the possibility of such cases being decided by "any other person competent" who is not designated as the first appellate authority. This is a contravention of Section 19(1) of the RTI Act which requires an officer senior in rank to be designated as the first appellate authority to receive and decide first appeals and complaints from RTI applicants who are aggrieved by a CPIO's decision or inaction. Reference to "any other person competent to decide" must be deleted from Draft Rule 19(a).

No time limits for serving notice of hearings on appellants and complainants

While the Draft Rules introduce time limits that complainants must observe for filing complaints, there are no time limits for ensuring that notice of a hearing in an appeal or complaint reaches the citizen well in advance. Draft Rule 18 must be amended to require the CIC to ensure that notice of every hearing in an appeal or complaint must be delivered to the person at least 15 days in advance of the date of such hearing. Time limts should be applicable to everybody and not only appellants and complainants.

Posting matters of non-compliance before other Commissioner(s)

Draft Rule 17 leaves it to the discretion of the Chief Information Commissioner to post a non-compliance matter before a 'Bench' other than which decided the initial matter or before a larger Bench. First, given the finding of the Hon'ble Supreme Court of India in the matter of Union of India vs Namit Sharma (2013) that the CIC is only an administrative tribunal, it would be improper to label Commissioners sitting to hear and decide cases as 'Benches'. Second, the Rules must provide for posting a non-compliance matter before another Commissioner or a set of Commissioners on the request of the appellant/complainant also.

DoPT does not seem to be keeping up with the NDA's digital revolution

Draft Rule 4 continues to prescribe fees for providing information in the form of 'diskettes and floppies'. Both forms of electronic storage have become outdated. The DoPT must recognise that information can be provided electronically through email, flash drives or CDs/DVDs. The Rules must prescribe fees for providing information through these methods. The DoPT is directly under the Hon'ble Prime Minister who is pushing India towards the digital age in the TINA mode (There Is No Alternative mode) without ascertaining whether people want it or not and if there is adequate infrastructure and awareness amongst people for so doing. It must discard floppies and diskettes and adopt more modern methods of information storage.

What is missing from the amendment proposals

  1. No procedure for deciding first appeals: The Draft Rules are silent on the procedure to be adopted by the first appellate authority (FAA) for deciding first appeals from citizens aggrieved by a decision or inaction of the CPIO. According to the RAAG Study published in 2013, the first appeals system has become nearly defunct across the country. One of the reasons for this is the absence of detailed rules for disposing first appeals. The UP RTI Rules also do not provide for a first appeals procedure. However, the Uttarakhand RTI Rules contain a detailed procedure for disposing first appeals. CHRI had sent a copy of the Uttarakhand Rules to the DoPT in 2016. The enthusiasm for adopting the UP model seems to have resulted in the DoPT completely ignoring the Uttarakhand model.
  2. No Rules for deciding appeals in life and liberty cases: The RTI Act provides for the disclosure of information concerning the life and liberty of a person on an urgent basis- within 48 hours. However the Act is silent on the timelines for disposing appeals and complaints in cases relating to life and liberty. A citizen is compelled to wait for 45 days for the FAA's order and then endlessly for the CIC's order. This lacuna could have been corrected in he Draft Rules, 2017 but they are silent on this issue.
  3. No time limit for CIC to decide cases: A major problem that almost every RTI user and also studies commissioned by the DoPT and civil society recognise is the long delays in disposal of appeals and complaints filed before the CIC. The Draft Rules do not prescribe a time limit for the CIC to dispose of such cases. The MP RTI Rules require the State Information Commission (SIC) to dispose of appeals in 180 days. The J&K RI Act requires the SIC to dispose of second appeals within 120 days at maximum. The RTI Rules must also lay down a practical time limit for the disposal of cases by the CIC. Instead, all time limits in the Draft Rules are imposed on citizens only.
  4. Increasing convenience for fee payments: Several RTI activists have called for the institution of special RTI stationery for payment of application and additional fees. Until such stationery is developed, it is advisable to increase the methods of fee payment to include money orders
  5. No procedure for penalty proceedings: The Delhi High Court has given multiple judgements that create confusion to the point of preventing an appellant or complainant from participating in a proceedings before the CIC to decide whether or not penalty may be imposed on the CPIO. The Draft Rules must be amended to allow the participation of the citizen in the penalty proceedings as the cause for action is always instituted by him or her through the appeal or complaint filed before the CIC. There is no justification for treating penalty proceedings solely as a matter between the CIC, the errant CPIO and the concerned public authority.
  6. No clarity of procedure to be followed in non-compliance cases: While the Draft Rules provide for the institution of a case about non-compliance with the CIC's orders, there is no clarity on how such proceedings must be conducted. Also, in all such cases penalty for non-compliance and recommendation of disciplinary action against the errant CPIO should be the default position unless he or she is able to demonstrate that the non-compliance was not due to disobedience or wilful negligence.

Consultation process is elitist

The DoPT's notification (in English) states that comments may be offered on the Draft RTI Rules, 2017 only via email by 15th April, 2017. With barely 25% citizens having access to the Internet, let alone email and most of them not conversant in English, this consultation exercise does not seem to adhere to the principle- 'sab ka saath' the first half of the hallmark slogan of the NDA Government. To prevent this consultation from becoming an elitist exercise, the time limit for consultation should be expanded to one month as there is no reason for rushing through this exercise and the text of the Draft Rules must be made available at least in Hindi, to start with. Several public authorities like the Department of Financial Services, Reserve Bank of India and the NHPC send replies to RTI applications in Hindi and at least one Central Information Commissioner has adopted the welcome measure of recording decisions in Hindi. There is no reason why the consultation cannot be made more broadbased as the DoPT's notification does not contain any justification for the hurried consultation process. According to the CIC, in 2015-16 9.6 lakh RTI applications were submitted to various public authorities in the Central Government and the Union Territories. Surely, many of these applicants would like to have their say in the consultation process.

It is advisable for the DoPT to make arrangements to listen to the Mann ki Baat of citizens as well. Surely, conversations can be called such, only when they are a two-way traffic of views.

Thanks

Venkatesh Nayak
Programme Coordinator - Access to Information Programme

Commonwealth Human Rights Initiative

Website: www.humanrightsinitiative.org

“The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing": Justice K K Mathew, former Judge, Supreme Court of India, (1975)

"“Where a society has chosen to accept democracy as its credal faith, it is elementary that the citizens ought to know what their government is doing": Justice P N Bhagwati, former Chief Justice, Supreme Court of India, (1981)

"Information is the currency that every citizen requires to participate in the life and governance of society”: Justice A. P. Shah, former Chief Justice, Delhi and Madras High Courts, (2010)

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10th September, 2016, Cuttack: One is puzzled by the accounting treatment for Justice Indrajit Mahanty's Rs 2.5 crore working-capital loan for his hotel, The Triple C. Lakhs of rupees are withdrawn and repaid every month in two SBI loan accounts in the name of "Justice Indrajit Mahanty" and strangely, not in the name of Latest Generation Entertainment Pvt. Ltd., the company that has leased the hotel from him. As a High Court judge, Justice I. Mahanty gets a monthly salary of Rs. 1.35 lakhs, and therefore is liable to pay Income Tax. But repayment of principal plus interest could reduce or eliminate his taxable income. Suppose his tax returns are dodgy, can Income Tax authorities summon his lordship personally for questioning u/s 131 of Income Tax Act, and compel production of his lordship's books of account?

We asked Mr Binoy Gupta, a retired Chief Commissioner of Income Tax (CCA), who holds a Ph.D. in Law. His reply was: "There are no exemptions in any law for any Supreme Court or High Court Judges from any judicial or quasi judicial proceedings. Our department has taken action under the Income Tax Act against them."

We requested Mr Gupta for case studies (with or without the names of the judges) to substantiate his claim of having taken action against judges. His response was: "I can not give any instances today. But I stand by my statement that Judges of the Supreme Court and High Courts have no special status so far the applicability of Income Tax Laws are concerned."

And then Mr Gupta added that bringing a judge to justice is a tough job. He wrote: "If any govt. servant engages himself in business, his department can and does take action. But the procedure for taking action against Judges is far too complex... impeachment which is extremely difficult."

Given the absence of case studies and other details of judges being held accountable by Income Tax authorities, our gut feeling is: IT authorities will never dare to summon his lordship, because (a) they would be in awe of a high court judge, and (b) because the high court has superior jurisdiction over the Income Tax department, and not vice versa. Even if judges do not enjoy de jure immunity from quasi-judicial and administrative authorities, they enjoy de facto immunity. No government official will risk rubbing a high court judge the wrong way by questioning him, even if the law permits him to do so!

Justice Indrajit Mahanty may or may not have broken any laws, but he is definitely in breach of the code of ethics on multiple counts. Must we all act like Gandhi's three monkeys and remain silent?

In return for such unquestioned authority and immunity, judges are expected to keep their affairs transparent and straightforward, by abstaining from business activities. Their income should ideally consist of their salaries, and interest on fixed deposits etc. -- nothing more complicated than that. To quote YK Sabharwal, former Chief Justice of India, who spoke on the Judicial Canon of Ethics, "Almost every public servant is governed by certain basic Code of Conduct which includes expectation that he shall maintain absolute integrity... manage his financial affairs in such a manner that he is always free from indebtedness, and not involve himself in transactions relating to property with persons having official dealings with him." Please note that seeking building permissions, bank loans, hotel licenses, etc. etc. are all transactions with the government, administration and public sector, who all have "official dealings" with a high court judge in his judge-like capacity. Such transactions adulterate the purity of Justice Indrajit Mahanty's judgment.

According to the Restatement of Values of Judicial Life (adopted by Full Bench of Supreme Court on7th May, 1997), "A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. 

And according to the Bangalore Principles of Judicial Conduct, 2002, "A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom."

Read all these documents on judicial ethics and in that context, understand the significance of Justice I Mahanty's actions. Justice Indrajit Mahanty may or may not have broken any laws, but he is definitely in breach of ethics on multiple counts.

So, must we all remain silent like Gandhiji's three monkeys? Must we all adopt a policy of See-no-evil, hear-no-evil, speak-no-evil when it comes to judges? Must the adulteration of our judicial services be allowed to continue under cover of a conspiracy of silence?

ISSUED IN PUBLIC INTEREST BY
Krishnaraj Rao
9821588114
krish.kkphoto@gmail.com

Posted By 
Sulaiman Bhimani 
9323642081 
sulaimanbhimani11@gmail.com