Friday, December 9, 2011

ITAT President cannot write ACRs of Members - Who will Judge Judges?

 
ITAT President cannot write ACRs of Members - Who will Judge Judges?

IS the ITAT President the boss of the Members and can he write their annual confidential reports? This was a question answered by the Madras High Court last week. The question is not exactly new. Exactly five years ago, the Madras High Court decided the same issue in respect of the CESTAT. And it was the same judge of the High Court who wrote both the orders.

In Revenue Secretary vs Shri Syed Liaquath Peeran, Member (J) - 2006-TIOL-413-HC-MAD-CESTAT, the High Court observed, "there is no provision of law enabling the President to write ACRs in respect of other Members of the Tribunal ".

In the present case before the High Court, a Member of the ITAT had challenged the selection of a vice president of the ITAT who was junior to the petitioner. His grouse is that he was not selected because of the adverse remarks in his confidential reports by the President who had no power to write the confidential reports.

Following its earlier order in the Peeran case, the High Court held that the President of the ITAT has no power or authority to write the ACRs of the Members.

Please see Tribunal President- not a boss to the members! Who will judge the judges? DDT 514-18.12.2006

My Lords; No Arrogance Please

THE High Court, in the above case, was pained to see that the material would depict a gloomy picture about the petitioner that he is arrogant and would always throw to winds the well-established judicial conventions. Instances of keeping the matters for writing dissenting orders for months together and fighting with the other Members on silly aspects are some of them. The High Court observed,

It is the bounden duty of the Judges to maintain utmost decorum on and off the dais. Deviations in this regard by the Judges would result in loss of confidence about the entire judiciary by the Public and the Bar.

The allegations made against the petitioner by the respondents that he sans such decorum are quite alarming. It is also to be mentioned that there is no allegation made against the petitioner touching his integrity. Therefore, what comes to be known is that the petitioner is rigid even to his colleagues - whether junior or senior - and behaves in a harsh manner with them and he seems to have not maintaining any cordial relation with any of his colleagues or for that matter with the Bar also, further throwing to winds the judicial conventions.

No institution could survive in a democracy unless it earns public esteem; and it can earn the public esteem only by discharging its duties impartially and expeditiously. Judiciary is no exception for this principle.

The impartiality of the Judges has to be not only actual but also manifest and apparent. This is in conformity with the oft-repeated maxim-"Justice must not only be done but also appear to be done.'

The well-established precepts of public trust and public accountability are fully applicable to the functions, which emerge, from the public servants or even the persons holding public office.

People occupying higher positions in the society and enjoying the respect and benefits attached to such exalted positions at the cost of the taxpayer's money, must adorn the positions in a responsive manner and to be role models for others to follow. Nobody has raised his little finger against the petitioner about his honesty and integrity, but all the allegations are pinpointed towards his arrogant behaviour and ignoring the judicial conventions. All these would force us to direct the petitioner to mend his ways, conduct himself in a dignified manner, and follow the established judicial conventions, so as to maintain the decorum on and off the dais.

Can't the Judges be a little less rude?

THE observations of the Madras High Court could not have come a day earlier.

Everybody in the Court bows to the bench and are all always submissive and extremely polite and almost every sentence is followed and preceded by "my Lords". But many of their lordships on the Bench are often rude and arrogant and lose their temper (with no attempt to regain it). It does not mean that all judges are rude and arrogant. Many of them are extremely courteous, smiling and encourage the junior lawyers. Some of the Supreme Court judges are so kind and humble that one would be baffled at the arrogance of some junior judges in some lower courts. Of course, rude and arrogant behaviour is not limited to the lower courts, but can be seen even in the highest courts.

Courtesy and good behaviour can go together, as is being proved by many a judge.

And usually arrogance and outbursts are the highest when ignorance is also highest.

Recently Justice Ruma Pal remarked, arrogance as one of the seven sins - judges often "misconstrue"independence as judicial and administrative indiscipline. "Both of these in fact stem from judicial arrogance as to one's intellectual ability and status. Intellectual arrogance or what some may call intellectual dishonesty is manifest when judges decide without being bound by principles of stare decisis or precedent.

Chief justice Kapadia recently remarked, "Judicial accountability, is a facet of judicial independence. The legislature is accountable to the electorate. The executive is indirectly accountable to the people through the elected legislature. There is no reason why the judiciary should not be accountable to the community for its due performance of the functions vested in it. Power is given on trust and judicial power is no exception. Like other public institutions, the judiciary must be subject to a fair criticism."

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