To start with, the ball is set rolling in para 1 of this notable judgment by Justice JR Midha of the Delhi High Court wherein it is pointed out that, “The petitioner has challenged the order dated 20th January, 2012 of the Internal Complaints Committee (ICC). The petitioner is seeking a direction to respondent No. 2 to withhold the retirement benefits of respondent No. 3 to initiate independent departmental enquiry against respondent No. 3 and to also prosecute respondent No. 3.”

To recapitulate, it is then outlined in para 2 that, “The petitioner was working as an Assistant Director with ESI Corporation in Manesar, Gurgaon in July 2011. On 08th July, 2011, the petitioner made a written complaint to the Director General of ESI Corporation alleging sexual harassment by respondent No. 3. According to the petitioner, respondent No. 3 misbehaved and made attempts of sexual advances. The petitioner reported following two incidents dated 07th July, 2011 in the complaint:-

(i) ‘Yesterday when I was seated with my colleagues on the 1st floor of the building, Sh. Verma came and commented indicating sexual advances. I cannot for the reasons of modesty bring on papers the filthy language he uses for me’.

(ii) ‘Yesterday in the presence of my staff and other members he asked me to come alone to check the shortcomings of the male toilet when nobody is there and I will follow you soon’.”

To be sure, para 3 then states that, “Respondent No. 1 constituted an Internal Complaints Committee to examine the complaint of the petitioner. Respondent No. 3 appeared before the Committee and denied all the allegations made by the petitioner. According to respondent No. 3, the petitioner made the complaint because of the grudge against him due to certain official work disposed by him in her absence.” Para 4 then reveals that, “The Committee examined the petitioner as well as respondent No. 3. The Committee examined eight witnesses namely Rashmi Kapoor (O.S.), Lakhan (Supervisor Housekeeping), Rajender Yadav (SSO), Prasanna (Staff Nurse), Hema (Staff Nurse), Pradeep Kataria (Nursing Orderly), Jai Bhagwan (Nursing Orderly) and Kalpana (Dietician).”

Be it noted, para 5 then envisages that, “The Committee submitted its report on 20th January, 2012, in which it observed that the exact content of communication of the incident dated 07th July, 2011 could not be established. The Committee gave benefit of doubt to respondent No. 3 and recommended relocating both the petitioner and respondent No. 3 from their present posting.”

Needless to say, para 6 then brings out that, “Learned counsel for the petitioner urged at the time of the hearing that the findings of the Committee are erroneous and unjustified. It is submitted that the petitioner had proved by sufficient evidence that respondent No. 3 misbehaved and made attempts of sexual advances against the petitioner on 07th July, 2011 mentioned in the written complaint on 08th July, 2011. Respondent No. 3 pressurized the petitioners to withdraw her complaint whereupon a warning was issued to him on 04th November, 2011. The transfer of both the parties to different places was not a justified penalty to the respondent No. 3.”

As things stand, para 7 then discloses that, “Learned counsel for the respondent No. 1 urged at the time of the hearing that respondent No. 1 transferred both the petitioner and the respondent No. 3 from their posting. It was further submitted that respondent No. 3 superannuated on 28th February, 2015.”

Furthermore, it is then disclosed in para 8 that, “Vide order dated 28th March, 2019, this Court directed the employer, ESI Corporation to produce the original relevant records which were produced on 09th April, 2019 and have been examined by this Court.”

Moving on, it is then illustrated in para 9 that, “The petitioner made the complaint dated 08th July, 2011 against the respondent no. 3 which is reproduced hereunder:-

‘To,

The Director General,

ESI Corporation,

Hqrs. Office, CIG Marg,

New Delhi – 02.

Sub: Sexual harassment by Sh. O.P. Verma, Dy Director, ESI Hospital, Manesar, Haryana.

Sir,

I am posted as Assistant Director in the office of ESI Hospital, Manesar. In the same office another officer Sh. O.P. Verma, Dy. Director is seated in the adjoining room where I work. For some time passed Sh. O.P. Verma has been misbehaving with me and makes attempts of sexual advances. It was only yesterday when I was seated with my colleagues on the 1st floor of the building. Sh. Verma came and commented indicating sexual advances.

I cannot for the reasons of modesty bring on papers the filthy language he uses for me. Yesterday in the presence of my staff and other members he asked me to come alone to check the shortcomings of the male toilet when nobody is there and I will follow you soon.

I am to request you to safeguard my honour and take necessary action against him. I will explain the earlier instances of harassment as and when the matter will be investigated.

This matter has also been brought to the notice of the Medical Superintendent in earlier and in the afternoon of 07.07.2011 also.

Yours faithfully, Signed/-

( Anita Suresh)

Assistant Director

ESI Hospital, Manesar.’”

To say the least, para 10 then states that, “As per the complaint dated 08th July, 2011 of the petitioner, the respondent no. 3 made comments indicating sexual advances against the petitioner who was sitting with her colleagues on the first floor of the building on 7th July, 2011. The second incident mentioned in the complaint is that the respondent told the petitioner to come alone in the male toilet to check the shortcomings in the presence of the staff and other members.”

More significantly, para 11 then discloses that, “The Committee examined the petitioner who could not recollect the names of any of the persons present at the time of the aforesaid incidents. The petitioner was shown the relevant papers relating to the staff members present on that day but still she could not recollect the names. The petitioner stated that she confided the incidents to Rashmi Kapoor (O.S.) on the same day after the incident. The Committee examined Rashmi Kapoor who stated that she was not present at the time of incident. However, she stated that the petitioner told her that the attitude of respondent No. 3 towards the petitioner was not good. She further stated that the petitioner told her that respondent No. 3 made two inappropriate comments against her. However, these two comments were not stated by the petitioner in her statement to the Committee.

What’s more, para 12 then points out that, “The Committee examined Lakhan (Supervisor Housekeeping) who stated that the petitioner was matching the goods with the list and he did not witness any incident on 07th July, 2011 as alleged by the petitioner.” Also, para 13 then reveals that, “The Committee examined Rajender Yadav (SSO) who was present at the time of incident and he stated that there was no altercation between the petitioner and respondent No. 3.” All this certainly serves to weaken the petitioner’s claims and the serious charges which she leveled against the respondent No. 3.

Going forward, para 14 then further discloses that, “The Committee examined Prasanna (Staff Nurse) who stated that the petitioner had normal relations with respondent No. 3 who never commented on her in her presence.” Para 15 then also makes it clear that, “The Committee examined Staff Nurses Hema (Nursing Orderly), Pradeep Kataria (Nursing Orderly), Jai Bhagwan (Nursing Orderly) and Kalpana (Dietician) who did not witness any incident on 07th July, 2011.”

Not stopping here, it is then brought out in para 16 that, “The Committee examined respondent No. 3 who denied all the allegations of sexual harassment made by the petitioner. He stated that he brought the absence of soap in the male toilet to the notice of the petitioner. He further stated that his remarks were misinterpreted and taken totally out of context. He further stated that the petitioner made complaint against him due to a grudge which was the result of certain official work disposed by him in petitioner’s absence.”

To put things in perspective, para 17 then enunciates that, “On careful consideration of the record of the inquiry proceedings, this Court is of the view that the complaint dated 08th July, 2011 of the petitioner appears to be false. The complaint dated 08th July, 2011 contains two incidents out of which the first incident was in the presence of the staff and other members. During the inquiry proceedings, the petitioner could not give the name of any person present at the time of the incident. The petitioner was shown the record of the staff persons present on duty on the date of the incident but still she could not recollect the names of any colleague/staff member. It is not believable that the petitioner would not remember the names of any colleague/staff member. The Committee examined all the persons who were on duty on that day but no persons supported the allegations of the petitioner. The petitioner has not mentioned the alleged comments of respondent No. 3 in the complaint on the ground of modesty. The petitioner did not even disclose the alleged comments before the Committee. Nor reason or justification was been given by the petitioner for not disclosing the same before the Committee. The entire complaint of the petitioner appears to be false and has been filed with some ulterior motive.”

It cannot be lost on us that delving deeper, para 18 then brings to light that, “The record produced by the respondent No. 5 contains the service record of the petitioner. The petitioner joined ESI Corporation as an Insurance Inspector on 24th September, 1997. On 15th February, 1998, the petitioner was issued a charge sheet for major penalty proceeding for negligently surveying two firms ignoring vital information and suppressing material information while submitting the survey reports. Vide order dated 23rd October, 2001, the Insurance Commissioner took the view that the petitioner had only put one year of service in the Corporation and no malafide intention was proved and therefore, a lenient view was taken and the penalty of ‘Censure’ was imposed upon her. On 03rd March, 2006, the petitioner was issued a charge sheet for major penalty proceeding by Regional Office, Delhi on the allegations that during her posting in Legal Branch as an Insurance Inspector for the period from 22nd March, 2004 to 12th July, 2004, the petitioner had exhibited gross misconduct as she failed to follow the reasonable order of her superiors and exhibited lack of devotion towards duty. Vide order dated 22nd September, 2009, the Insurance Commissioner observed that the conduct of the petitioner was unbecoming of a Corporation employee and imposed the penalty of reduction pay by one stage for one year. The petitioner filed an appeal which was rejected by the Appellate Authority vide order dated 27th October, 2010 and thereafter, she preferred a revision petition which was also rejected. This rejection order was further challenged by the petitioner before this Court in W.P. (C) 8529/2011 which was dismissed by this Court vide order dated 24th November, 2011. On 13th July, 2011, the Medical Superintendent of ESIC, Hospital, Manesar, Haryana, Dr. Archana Rani gave a written memorandum to the petitioner who was posted in the hospital as an Assistant Director to show cause as to why the action should not be taken against her for insubordination and gross misconduct. The above mentioned incidents show that the petitioner did not have a clean service record.”

Most importantly, it is then held in para 19 that, “There is no merit in this writ petition which is dismissed with cost of Rs. 50,000/- to be deposited by the petitioner with the Delhi High Court Advocates Welfare Trust within four weeks.” Thus we see that all the tall claims made by the petitioner falls flat and fails to impress the Delhi High Court as she could not produce anything substantial to back her tall claims against the respondent No. 3! This alone explains why it is then ruled in the next para 20 that, “Respondent No. 2 is at liberty to initiate appropriate action against the petitioner for filing false complaint against the respondent No. 3 in accordance with law.”

To conclude, the Delhi High Court has acted most wisely by deciding to not allow the petitioner to go scot free. She willingly decided to defame the respondent No. 3 without any concrete ground in front of the whole society. So she had to be taken to task for it! This alone explains why the Delhi High Court imposed Rs 50,000 cost on petitioner for false sexual harassment plea. Very rightly so! Not just this, she should be jailed also for at least six months or an year so that the right message goes across to all women that they dare not misuse the sexual harassment laws against men whenever they want at their own whims and fancies! We all saw how recently even the incumbent CJI Ranjan Gogoi was not spared when a subordinate women employee levelled grave charges but failed to prove anything in front of the in-house Committee set up by the Supreme Court under the chairmanship of Justice Sharad A Bobde and so palapably the CJI Ranjan Gogoi had to be exonerated! Law must apply to erring women also now! This is what the Delhi High Court has rightly sought to do here! No denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Needless to say, the ICJ in its historic and praiseworthy judgment has very clearly held that the denial of consular access constituted a “breach” of Article 36 para 1(b) of the Vienna Convention on Consular Relations which Pakistan is a signatory to, which clearly stipulates that all foreign nationals arrested must be given access to their government or local embassy, and rejected outright Pakistan’s counter-claim that the Vienna Convention didn’t apply in a case of espionage! If this is not the biggest slap by ICJ directly right on the face of Pakistan, then what else is? Can anyone please tell me? I would be glad to know it! The ICJ also upheld India’s contention that the Vienna Convention overrides a 2008 bilateral agreement between India and Pakistan on consular access.

Be it noted, all the 16 Judges of ICJ on the panel unanimously ruled that the ICJ’s jurisdiction held over the case. It said that the court “unanimously, finds that it has jurisdiction, on the basis of Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India on 8 May 2017”. The judgment which was read out by Judge Abdulqawi Ahmed Yusuf who is the President of the ICJ at the Peace Palace on July 17, 2019 was decided with 15 judges in favour while only Pakistan’s ad-hoc Judge – Justice Tassaduq Hussain Jilani was the lone dissenter! Pakistan must be gracious enough to accept this biggest slap on its face and comply with the order passed by the ICJ to save its own reputation in front of the world!

What’s more, the ICJ specifically ruled that it “finds that the Islamic Republic of Pakistan is under an obligation to inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations”. Pakistan till now was totally opposed to giving any consular access to Kulbhushan Jadhav but now it has no option but to comply! The ICJ said that the court finds that the “appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Jadhav so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention.”

Not stopping here, it added that a “continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Jadhav. The Court also found that, “by not informing Jadhav without delay of his rights under Article 36, paragraph 1(b) of the Vienna Convention on Consular Relations”, Pakistan “breached the obligations” incumbent upon it under that provision. It also said that by “not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations.”

It may be recalled that Kulbhushan Sudhir Jadhav who is a retired Navy officer was arrested allegedly on March 3, 2016 and India was informed of this on March 25, 2016, when the Pakistan Foreign Secretary raised the matter with the Indian High Commissioner in Islamabad. On that day itself, India sought consular access to Jadhav at the earliest. But Pakistan kept denying on one pretext or the other.

As it turned out, Pakistan claimed that its security forces arrested Jadhav from restive Balochistan province on March 3, 2016 after he reportedly entered from Iran. But India has consistently maintained that Jadhav was kidnapped at gun point from Iran where he had business interests after retiring from the Navy. Later he was falsely charged with terror related activities and espionage!

By all accounts, New Delhi then rightly moved the ICJ in May in 2017 against the “farcicial trial” by the military court of Pakistan against 48-year-old Jadhav. He was sentenced to death on charges of espionage and terrorism in April 2017. India had first approached the ICJ on May 8, 2017, for the “egregious violation” of the provisions of the Vienna Convention on Consular Relations, 1963 by Pakistan by repeatedly denying it consular access to Jadhav.

To put things in perspective, on May 9, 2017, the ICJ asked the two countries to present their arguments and till such time, asked Pakistan from not doing anything. In other words, the ICJ clearly forbid Pakistan from proceeding further with Kulbhushan Jadhav’s case any further! On May 15, the two sides presented their arguments at a public hearing and on May 18, the 10-member Bench of the ICJ restrained Pakistan from executing Jadhav – until a final verdict.

Truth be told, after written submissions by both sides in mid 2018, the ICJ then fixed oral arguments to be made by representatives from both countries from February 18 to 21, 2019. While India argued on February 18 and 20, Pakistan responded on February 19 and 21. India was represented by former Solicitor General and eminent Supreme Court senior lawyer Harish Salve and Ministry of External Affairs’s Joint Secretary (Pakistan-Afghanistan-Iran), Deepak Mittal. Pakistan was represented by Anwar Mansoor Khan who is the Attorney General of Pakistan and the legal counsel was Khawar Qureshi.

No doubt, it is quite ostensible that Pakistan could not submit anything concrete to prove before the ICJ which is the United Nations top court that Kulbhushan Jadhav had indulged in some kind of terror activity or spy activity and this alone explains that why ICJ too has asked Pakistan to review and reconsider his conviction and death sentence! Pakistan was thus reduced to a laughing stock in front of the entire world! If this is not a rap on the knuckles of Pakistan then what else can be?

This alone explains that why our Foreign Minister S Jaishankar rightly demanded that Pakistan should respect the International Court of Justice ruling on Kulbhushan Jadhav and release and repatriate the Indian national immediately. He was making a statement on the ICJ landmark ruling slamming Pakistan for violating the Vienna Convention in the Jadhav case. Jaishankar also very rightly minced no words in stating it quite upfront that the ICJ judgment was not only a vindication for India and Jadhav but for all those who believed in the rule of law and the sanctity of international conventions.

Of course, it needs no Albert Einstein to conclude that the Union Foreign Minister’s remarks clearly manifest that India will continue to forcefully demand Jadhav’s return having rejected allegations of spying levelled against him. While rightly describing the ICJ ruling on Kulbhushan Jadhav as a landmark judgment, the Foreign Minister of India S Jaishankar rightly said that no forced confession, that too without legal representation and due process, would change the fact that Jadhav was innocent of the charges levelled against him. We all know that India has always maintained that Jadhav was kidnapped by Pakistan in Iranina waters at gun point and made to confess after torturing him to acts of terror in a bid to falsely depict Indian involvement in Balochistan.

To be sure, Foreign Minister S Jaishankar rightly said in Rajya Sabha that, “In 2017, the government made a commitment on the floor of the House to undertake all steps necessary to protect the interest and welfare of Jadhav. The government has made untiring efforts in seeking his release including through legal means in the International Court of Justice. I am sure that the House will join me in appreciating the efforts of all those involved, especially the legal team led by Harish Salve.” It is Harish Salve who has single handedly ensured that ICJ rules in India’s favour for which the whole nation shall always remain indebted to him and took a token fee of just Rs 1! It is again this same Harish Salve who commendably ensured that Lt Col Prasad Shrikant Purohit rightly got bail after unlawfully remaining in jail for nearly 9 years without even charge sheet being framed against him as the whole system got after him who is still a serving Army Officer in the Malegaon blast case and is determined to ensure that just like Kulbhushan Jadav, he too gets justice at the earliest! Very rightly so! This is the real reason that why Harish salve commands so much of respect in the hearts of each and every Indian!

It also cannot be lost on us that Gautam Bambawale who as India’s envoy to Pakistan when Jadhav was arrested had bombarded the Pakistani government with repeated official requests for consular access, thereby creating the right conditions for India’s case at the ICJ has said most unequivocally that, “ICJ has clearly ruled that Pakistan must review the case. This implies that the earlier military court proceeding did not give Jadhav due process. So a retrial must take place which must be fairer than earlier, with full consular access and a defence attorney for Jadhav.” The ICJ has worked with precedents in the cases of Germany vs the United States (LaGrand) and Mexico vs the United States (Avena), and in both these cases it had ruled that the US was in violation of the Vienna Convention and ordered a “review and reconsideration” of its process!

Put simply, it is quite ostensible that Pakistan by terming ICJ’s verdict as its own victory is only making a mockery of its ownself! Who does not know that Pakistan itself is standing on the verge of being declared a terror state and is already in the grey list of Financial Action Task Force and in the October month could be considered to be placed in the black list along with other rogue states like North Korea and Yemen? It is under world pressure that Pakistan recently itself re-opened the Pakistan’s airspace, made concessions on Kartarpur corridor and also re-arrested Hafiz Saeed who is the mastermind of 26/11 attack on Bombay! It goes without saying that the ICJ landmark verdict has admittedly made it enormously difficult for Pakistan to re-impose the death sentence on Jadhav! To put pressure on Pakistan, India must put on hold Kartarpur Corridor which Khalistani terrorists and ISI along with Pakistani Army are determined to abuse to further the Khalistan 2020 agenda propagated in US, UK and Canada and if still Pakistan does not budge then India must nuke all relations with Pakistan!

Truth be told, in its ruling, the ICJ said that the continued stay of Jadhav’s execution was an “indispensable condition” for the review of his conviction at a forum of Pakistan’s choice. Union External Affairs Ministry spokesperson Raveesh Kumar rightly said that, “We expect Pakistan to implement the directive immediately without any further delay. Pakistan must now grant consular access to Jadhav and conduct an effective review of his case. Each and every point was ruled in favour of India and there is no confusion.”

To say the least, former Union Law, Defence and Finance Minister Arun Jaitley rightly summed up by saying that, “A plain reading of the International Court of Justice (ICJ) judgment in former naval officer Kulbhushan Jadhav’s case shows that India has won on almost all counts. Pakistan lost conclusively before the ICJ. Its farcical process through which innocent are held guilty stand exposed. The ICJ had given Pakistan an opportunity to comply with the rule of law and reform its processes. Will Pakistan use this opportunity or will they squander it? Pakistan is now under a global gaze as to what direction it follows. The ICJ judgment in this case is a comprehensive victory for India.”

Going forward, Harish Salve also very rightly said that, “I see this as a sense of relief , gratification. I see this as something which we are very happy with. It is now the moment for us to help Jadhav to get justice.” Pakistan must always remember that ICJ has declared a “continued stay of execution constitutes an indispensable condition for the effective review and reconsideration” of Jadhav’s death sentence. Indicating its unhappiness with the opaque judicial process in Pakistan regarding Jadhav, the ICJ said that, “Court considers it imperative to re-emphasise that the review and reconsideration of the conviction and sentence of Jadhav must be effective.”

To conclude, Pakistan in its own larger national interests must be gracious enough to concede that Kulbhushan Jadhav was wrongly arrested, wrongly tortured, wrongly framed and wrongly tried. They should initiate the process of setting him free and handing him over to India. This will only serve to smoothen the ruffled feathers in India who are very agitated over India opening Kartarpur Corridor with Pakistan and also help normalize relations between the two countries which will be in Pakistan’s own best interests!” Now let’s see what Pakistan decides! The ball is clearly in Pakistan’s court!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

What’s more, it is then pointed out by the Youth Bar Association of India in para 8 of its petition that, “That it is of utmost necessity that present situation may be addressed and meaningful directions may be issued for interest of justice in large public interest.” More importantly, para 8 then mentions the grounds which justify the issuance of directions by the Supreme Court for filling up the judicial vacancies. The numerous grounds which have been mentioned are as follows:-

1. Because ‘judiciary’ is the part of basic structure of the Constitution and also considered to be a pillar of democracy. Interference, by any means, affecting its smooth functioning amounts to interference in the independence of judiciary. Causing delay in appointing the judges might not be the expressive way of interfering with the independence of judiciary but it might be an indirect way of hampering its independence. For rule of law to prevail, judicial independence is of prime necessity.

2. Because judiciary is a limb of the democracy. It should not be left bare handed to cause its own work done. Not providing adequate human resource to cause its function perform is nothing less than impeding dispensation of justice. Justice, socio-economic or political are the constitutional goals aspired by the founding fathers. Preamble of the Constitution containing the collective aspirations of the framers of the Constitution forms part of a basic structure. It provides that ‘justice’ as the basic features for democracy to survive. Any obstruction in the dispensation of justice shall amount to deviation from the aspirations of Constitution makers. Wait for long to get justice in the want of sufficient strength of judges is impliedly an impediment in the dispensation of justice.

3. Because while filling up the vacancies in the Council of the States and the House of the People a statutory time limit has been prescribed under Section-151A of THE REPRESENTATION OF THE PEOPLE ACT, 1951 as well as under ARTICLE 62(1) AND (2) OF THE CONSTITUTION OF INDIA, which deals with the specific time of the appointment to be done in case of the President of India and that is being strictly observed while making appointment but while in appointment of judges although having prior information regarding the retirement of the Hon’ble Judges still no effective steps are taken to fill up those vacancies.

4. Because speedy trial is a part of reasonable, fair and just procedure guaranteed under Article 21. This constitutional right cannot be denied even on the plea of non-availability of adequate judges or financial resources. The state may have its financial constraints and expenditure but the law does not permit any government to deprive its citizens of the constitutional rights on plea of poverty.

5. Because the Right to Speedy Trial is considered as a Fundamental right of the citizen of this country which has been explicitly dealt by this Hon’ble Court in Hussainara Khatoon Vs State of Bihar AIR 1979 SC 1377 in the year 1979 and this right is implicit in ARTICLE 14 AND 21 OF THE CONSTITUTION OF INDIA. It is the constitutional obligation of the government to devise such procedures as would ensure and implement speedy trial. This Hon’ble court being majestic authority has to act as guardian of Fundamental rights of the citizens.

6. Because Timely delivery of justice is a part of human rights. Denial of speedy justice is a threat to public confidence in the administration of justice.

7. Because ‘Justice delayed is justice denied’. If the process of administration of justice is so time consuming, laborious, indolent and frustrating for those who seek justice that it dissuades or deters them from even considering resort to that process as an option, it would tantamount to denial of not only access to justice but justice itself.

8. Because the leniency shown by the Government by the way of withholding the recommended names from this Hon’ble court for the appointment of judges in High Court for a long period of time without any justification increases the vacancy at its peak. It is important to maintain the ratio of judges to the population for the fast as well as timely disposal of cases.

9. Because in Supreme Court Advocates-On-Record Association vs. Union of India (1993) 4 SCC 441 in its para 486(2) it is stated that “initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice Of India and in the case of High Court by the Chief Justice of that High Court…..”. Thus, duty is cast upon the Chief Justice of the concerned High Court to fill up the vacancies but despite a huge number of vacancies, the Hon’ble High Court is not proposing enough names to fill up the vacancies.

10. Because the constitutional task assigned to the judiciary is in no way less than that of other functionaries i.e. legislature and executive.

11. Because primacy to be accorded to Hon’ble Chief Justice of India’s views amongst the consultees mentioned in Articles 124(2), 217(1) and (c) primacy in the sense that the opinion of the Chief Justice of India would be binding on the President, i.e., the executive. Therefore, the government cannot sit idle over the recommended names by this Hon’ble Court.

12. Because as per the Article 50 of the Constitution of India for the very specific purpose of independence of judiciary, a direction is given to take steps to separate the judiciary from the executive in the public services of the State.

13. Because the citizens of this country being frustrated due to the long pendency of the cases and dates after dates started losing faith on judiciary and it may lead to the worst situation in the upcoming time that the society will start taking law in their own hands and the ultimate sufferer in whatever situation may be are the common and poor people of this country.

14. Because the main intention of the framers of the constitution in regard to judiciary was to carry out the constitutional message, and it is its responsibility to keep a vigilant watch over the functioning of democracy in accordance with the dictates, directives and imperative commands of the constitution by checking excessive authority of other constitutional functionaries beyond the ken of the constitution. In that sense the judiciary has to act as a sentinel on the qui vive. But the intention of the framers of the constitution is not adhered to at its inception by not appointing judges as per the sanctioned strength.

15. Because the young lawyers who have opted law and litigation as means to live with the dignity are on the verge of extinction due to prolong delay in disposal of the cases. The inordinate delay caused in conclusion of the cases hampering, on the one hand, entire justice administration, on the other hand, affecting adversely the young lawyers striving for a securing career.

16. Because the reputation of the institution is at the stake. Unexplained delay in filling up the vacancies and delayed disposal of cases consequent thereto impeding the trust and the faith of not only the sufferer but also the common people in this institution.

17. Because ‘judiciary’ is the part of basic structure of the Constitution and also considered to be a pillar of democracy. Interference, by any means, affecting its smooth functioning amounts to interference in the independence of judiciary. Causing delay in appointing the judges might not be the expressive way of interfering with the independence of judiciary but it might be an indirect way of hampering its independence. For rule of law to prevail, judicial independence is of prime necessity.

18. Because while filling up the vacancies in the Council of the States and the House of the People a statutory time limit has been prescribed in Section-15A of THE REPRESENTATION OF THE PEOPLE ACT, 1951. The above said section states as follows-

‘151A. Time limit for filling vacancies referred to in sections 147, 149, 150 and 151. – Notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy: Provided that nothing contained in this section shall apply if-

(a) the remainder of the term of a member in relation to a vacancy is less than one year; or

(b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period’.”

19. Because it is further stated that even in the case of filling up the vacancies in the office of the President Article 62(1) of the Constitution of India has clearly stated that “an election to fill a vacancy caused by the expiration of the term of office of President shall be completed before the expiration of the term” and Article 62(2) of the Constitution of India states that “an election to fill a vacancy in the office of President occurring by reason of his death, resignation or removal, or otherwise shall be held as soon as possible after, and in no case later than six months from, the date of the occurrence of the vacancy; and the person elected to fill the vacancy shall subject to the provisions of Article 56 be entitled to hold the office for the full term of 5 years from the date on which he enters upon his office”.”

20. Because it is an admitted fact that judiciary, in this country is the last resort and faith left to a victim as well as to an aggrieved person. The citizen of this country comes before the judiciary with a hope to get justice and justice within time. Even the same was also the intention of the maker of the Constitution of India, but unfortunately the interest of that intention is not taken care of. It is further submitted that in case of vacancy of legislative bodies, by-election is being conducted and the vacancy is filled up but in case of judiciary it is being given a step motherly treatment.

21. Because for instance it may be mentioned here that the Calcutta High Court has a total strength of 72 but there has been no appointments as per the sanctioned strength, which resulted into huge protest. The question arises here that who is responsible for such a huge vacancy? The answer of this question is very well enumerated in the case of ‘Supreme Court Advocates-on-record Association vs. Union of India’ (1993) 4 SCC 441. In para 486(2) it is stated that “initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India and in the case of High Court by the Chief Justice of that High Court…..”.

22. Because the constitutional task assigned to the judiciary is in no way less than that of other functionaries – legislature and executive. Indeed, it is role of the judiciary in carrying out the constitutional message, and it is its responsibility to keep a vigilant watch over the functioning of democracy in accordance with the dictates, directives and imperative commands of the constitution by checking excessive authority of other constitutional functionaries beyond the ken of the constitution.

23. Because the delay in appointment of the judges is not only destroying the functioning of democracy but also leading towards the lawless society which also violates the main intention of the maker of the constitution.

24. Because this Hon’ble Court in Supreme Court Advocates-On-Record Assn. Vs Union of India (1993) 4 SCC 441, it has been explicit in giving primacy to the opinion of Hon’ble Chief Justice of India. It is pertinent to mention herein that in para 478(8) it is clearly stated about the instances of non-appointment which are permissible and justified.

25. Because due to the non-appointment of judges increases the huge backlog of pending matters awaiting disposal at the High Court. It is pertinent to mention herein that disposal of cases is a “must” and should mean ‘disposal with a decision’ and not merely “striking out” from the list of pending matters. The non-appointment of judges is more than painful for the judiciary which universally professes that “delayed justice almost amounts to denial of justice”.

26. Because the central government is sitting idle over the subject matter neither paying any heed to the representation submitted by the Bar Association nor giving any valid reasons in writing for withholding the clearance of names of the judges which are already cleared by the Hon’ble Chief Justice of India.

27. Because the concept of separation of powers is a well-known fundamental political maxim which many modern democracies have adopted. Our Constitution has not strictly adhered to that doctrine but it does provide for distribution of powers to ensure the one organ of the Government does not trench on the constitutional powers of other organs. This is evident from Part V and Part VI of the Constitution. There is and can be no dispute that the distribution of powers concept assumes the existence of a judicial system free from external as well as internal pressures. Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting from recalcitrant or indifferent State agencies. Therefore, the need for an independent and impartial judiciary manned by persons of sterling quality and character and determination and resolute impartiality and independence who would dispense justice without fear or favour, ill-will or affection. Justice without fear or favour, ill-will or affection, is the cardinal creed of our Constitution and a solemn assurance of every judge to the people of third great country. There can be no two opinion at the Bar that an independent and impartial judiciary is the most essential characteristic of a free society. Even though on the question that our judiciary should be independent of the executive and the legislature there is no divergence of views at the Bar, there was some difference of opinion on the actual content of the concept.

28. Because the Constitution makers strived to ensure that justice promised in the Preamble of the Constitution is pure and is not in any manner polluted by executive or political interference as is wrtit large on the face of the Constitution. Extraordinary powers have been conferred on the Supreme Court and the High Courts under Articles 32 and 226, respectively, manifesting the confidence of the people in the court’s ability to do justice. By Article 50 of the Constitution of India a direction is given to take steps to separate the judiciary from the executive in the public services of the State. The offices of the Attorney General and Advocates General have been given constitutional status with a view to making quality legal advice available to the Union and the States so that they function consistently with the rule of law and safeguard public interest.

29. Because the concept of primacy to be accorded to the views of the Chief Justice of India has three elements, namely, (a) primacy as ‘pater families’ of Indian Judiciary, (b) primacy to be accorded to his views amongst the consultees mentioned in Articles 124(2), 217(1) and (c) primacy in the sense that the opinion of the Chief Justice of India would be binding on the President, i.e., the executive. The position of the Chief Justice of India under the Constitution is unique, in that, on the judicial side he is primus inter pares, i.e., first among equals, while on the administrative side he enjoys limited privacy in regard to managing of the court business. As regards primacy to be accorded to his views vis-à-vis the President, i.e. the executive, although his views may be entitled to great weight he does not enjoy a right of veto, in the sense that the President is not bound to act according to his views. However, his views would be of higher value vis-à-vis the views of his colleagues, more so if he has expressed them after assessing the views of his colleagues but his view will not eclipse the views of his colleagues forbidding the President, i.e. the executive, from relying of them. The weight to be attached to his views would be much greater as compared to the weight to be accorded to the views of the other consultees under Article 217(1) since he has had the advantage of filtering their views and ordinarily his views should prevail except for strong and cogent reasons to the contrary but that does not mean that the views of the other consultees would be rendered irrelevant or non-est forbidding the President, i.e. executive, from noticing or relying on them. The views of the Chief Justice of India would be entitled to even greater weight when he is the sole consultee under the constitution, e.g. Article 222(1), more so when it concerns a member of the judicial family and ordinarily his view should be accepted and acted upon by the President, i.e. the executive, unless there are compelling reasons to act otherwise to be recorded in writing so that the apprehension of the executive having acted in a manner tantamounting to interference with judicial independence is dispelled.

30. Because the Framers of the Constitution placed a limitation on the power of the Executive in the matter of appointment of Judges to the Supreme Court and the High Courts. The requirement of prior ‘consultation’ with the superior Judiciary is a logical consequence of having an “independent Judiciary” as basic feature of the Constitution. If the Executive is left to ignore the advice tendered by the Chief Justice of India in the process of consultation, the very purpose and object of providing consultation with the Judiciary is defeated. Therefore, there should not be any doubt regarding the basic intention of the constitution makers that the Executive is bound by the advice/recommendation of the Chief Justice of India in the process of consultation under Articles 124(2) and 217(1) of the Constitution.

Frankly speaking, there is no reason why the Supreme Court should not issue writ as prayed by the petitioner in the nature of mandamus, orders or directions to the respondents to immediately appoint Judges as per sanctioned strength in Hon’ble High Courts and Subordinate Courts functioning in the country in the interest of justice. We all know fully well how the former CJI TS Thakur had publicly wept over the state of affairs in judiciary especially the huge vacancies in courts all across the country while requesting the Centre to take steps to fill them up! Even the incumbent CJI Ranjan Gogoi had himself immediately on assuming office had suo motu taken cognizance of the huge vacancies in lower courts and High Courts. Not just this, he has also ensured that all the vacancies of Judges in the Supreme Court are filled up fully which has happened after a long time! Similarly in big courts like Allahabad High Court also earlier we used to see how more than half of the Judges post kept lying vacant but now under CJI Ranjan Gogoi things have changed a lot even though still a lot remains to be done and he has directed all the High Courts as also the Public Service Commissions to fill up the vacancies at the earliest and keeps reminding them at regular intervals!

One fondly hopes that the petitioner’s legitimate prayer is accepted by the Apex Court as it is in the public interest and not in interest of the petitioner or any other private individual! The petitioner has very remarkably pointed out that just like seats of MLAs and MPs are filled up at the earliest similarly why the same we don’t see in case of Judges? Not just this, he has also pointed out so many other strong points which I have already illustrated above which are certainly commendable and deserve to be accepted in totality!

No doubt, we have to keep our fingers crossed till the Apex Court finally delivers its judgment on it! But there can be no two opinions that the petitioner has really put across his valid point that “non-appointment of Judges affects speedy justice” with strong and cogent reasons which cannot be disputed! When MPs and MLAs can be appointed in time and not even one seat is left vacant and as soon as it becomes vacant, bye-elections are held at the earliest then why the same yardstick is not applied to appointment of Judges also who play the pivotal role of dispensing justice which directly affects the law and order situation in our country which in turn affects our global standing and international reputation?

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.