MISAPPLICATION OF SOVEREIGN POWERS –
ARTICULATE APPEASEMENT FOR GETTING FURTHER ELEVATION AS SC JUDGE BY ASPIRANTS
JUSTICE OF ALLAHABAD HIGH COURT AFTER MINORING THE TRANSFER OF THE DOCTORS IN
CONTEMPT JURISDICTION
HIGH COURT OF JUDICATURE AT
ALLAHABAD, LUCKNOW BENCH
Court No. - 4
Case :- MISC. BENCH No. - 1034 of 2010
Petitioner :- Dinesh Kumar Tripathi, Advocate S/O Sambhu Nath Tripathi
Respondent :- Union Of India Thru Secy. Home Affairs & Ors. ( P.I.L. )
Petitioner Counsel :- In Person (D.K. Tripathi)
Respondent Counsel :- C.S.C.,A.S.G.
Hon'ble Sunil Ambwani,J.
Hon'ble Dr. Satish Chandra,J.
Dr. Ashok Nigam, Addl. Solicitor General of India and Shri I.H. Farooqi, Asstt. Solicitor General of India have accepted notice on behalf of respondent No.1. The Chief Standing Counsel has accepted notice on behalf of respondent No.2.
Issue notice to respondent No.3. Steps in three days.
The petitioner is an Advocate of this Court. He has brought to the notice of this Court a publication by the name of 'Nehru Gandhi Parivar Secular or Varnsankar' by Shri Hari Ram Gupta-respondent No.3 published from 190,S-3, Puja Apa, Sarvdharm-B, Kolar Road, Bhopal, Mob.No.9424443844. It is alleged that this publication is not only contains defamatory statements against the national leaders, who have built modern India, but is also scandalous and tends to disrupt the communal harmony in the society. The publication has not been made after seeking approvals under Section 9 of the Press and Registration of Books Act, 1867. It is alleged that the author and the publisher have committed offences under Section 153A, 153B and Section 292 and other relevant provisions of the IPC in publishing and putting up the book for sale. According to the petitioner the facts alleged in the book have no iota of truth and are highly scandalous. The publication has potential of inciting communal and religious hatred.
It is submitted by him that since the circulation of the book has to be immediately stopped, he has instead of approaching the authorities rushed to the Court to take immediate appropriate action under Art.226 of the Constitution of India, to stop the publication, circulation and sale of the book.
We have gone through the contents of the book annexed as Annexure No.1 to the writ petition and find that the allegations made, are highly scandalous and contain derogatory remarks against the national leaders. The allegations have the potential to disturb the communal harmony.
We call upon the Ministry of Home Affairs, New Delhi and the Principal Secretary, Department of Home, Secretariat Lucknow to immediately take notice of the allegations made in the writ petition as well as the contents of the book and consider to take immediate appropriate action under Section 95 CrPC to stop the publication, printing, sale and circulation of the book.
List this matter on 15th February, 2010. Until then or until the respondent Nos.1 and 2 take appropriate action in the matter, we direct the Principal Secretary, Department of Home, Lucknow to immediately stop the publication, circulation and sale of the book in the State of U.P. He is also directed to consider to seize all the copies, which are available within his jurisdiction in the State of U.P.
Court No. - 4
Case :- MISC. BENCH No. - 1034 of 2010
Petitioner :- Dinesh Kumar Tripathi, Advocate S/O Sambhu Nath Tripathi
Respondent :- Union Of India Thru Secy. Home Affairs & Ors. ( P.I.L. )
Petitioner Counsel :- In Person (D.K. Tripathi)
Respondent Counsel :- C.S.C.,A.S.G.
Hon'ble Sunil Ambwani,J.
Hon'ble Dr. Satish Chandra,J.
Dr. Ashok Nigam, Addl. Solicitor General of India and Shri I.H. Farooqi, Asstt. Solicitor General of India have accepted notice on behalf of respondent No.1. The Chief Standing Counsel has accepted notice on behalf of respondent No.2.
Issue notice to respondent No.3. Steps in three days.
The petitioner is an Advocate of this Court. He has brought to the notice of this Court a publication by the name of 'Nehru Gandhi Parivar Secular or Varnsankar' by Shri Hari Ram Gupta-respondent No.3 published from 190,S-3, Puja Apa, Sarvdharm-B, Kolar Road, Bhopal, Mob.No.9424443844. It is alleged that this publication is not only contains defamatory statements against the national leaders, who have built modern India, but is also scandalous and tends to disrupt the communal harmony in the society. The publication has not been made after seeking approvals under Section 9 of the Press and Registration of Books Act, 1867. It is alleged that the author and the publisher have committed offences under Section 153A, 153B and Section 292 and other relevant provisions of the IPC in publishing and putting up the book for sale. According to the petitioner the facts alleged in the book have no iota of truth and are highly scandalous. The publication has potential of inciting communal and religious hatred.
It is submitted by him that since the circulation of the book has to be immediately stopped, he has instead of approaching the authorities rushed to the Court to take immediate appropriate action under Art.226 of the Constitution of India, to stop the publication, circulation and sale of the book.
We have gone through the contents of the book annexed as Annexure No.1 to the writ petition and find that the allegations made, are highly scandalous and contain derogatory remarks against the national leaders. The allegations have the potential to disturb the communal harmony.
We call upon the Ministry of Home Affairs, New Delhi and the Principal Secretary, Department of Home, Secretariat Lucknow to immediately take notice of the allegations made in the writ petition as well as the contents of the book and consider to take immediate appropriate action under Section 95 CrPC to stop the publication, printing, sale and circulation of the book.
List this matter on 15th February, 2010. Until then or until the respondent Nos.1 and 2 take appropriate action in the matter, we direct the Principal Secretary, Department of Home, Lucknow to immediately stop the publication, circulation and sale of the book in the State of U.P. He is also directed to consider to seize all the copies, which are available within his jurisdiction in the State of U.P.
Let a copy of the
book (which has also been annexed to the writ petition) produced in Court be
made part of the record.
A copy of the order be given the counsels for Union of India and the Chief Standing Counsel for compliance today.
Order Date :- 5.2.2010
A copy of the order be given the counsels for Union of India and the Chief Standing Counsel for compliance today.
Order Date :- 5.2.2010
SP/
The Advocates of the High Court and Supreme
Court are considered to be the repository of the judicial functioning and the
officer of the Hon’ble Courts. 
The transparency, fairness and adherence to the Constitutional Principles of the equality in the public employment is also expected to be maintained by an Advocate of High Court. The reciprocal responsibility on the Constitutional functionaries of the High Court is to pass a test of litmus test to the detachment and the impartiality of the judge is expected by the Advocate in due discharge of the duties conducted by the Judge presiding over the court. Thus a self introspection of their own conduct is required to be done by every Judge presiding over the functioning of the Hon’ble High Court. This is a difficult task. It is gratifying that the judgments delivered by the Hon’ble Judges must be enshrined to the flying coulurs reflecting the stoicism, detachment and conviction of the judge in delivering the judgment. It required the courageousness by putting a site every sort of the political affiliation in order to get the future employment at the time of the retirement but contrary to the aforesaid traditions the present system of alleviation of the High Court Judge by the collegiums of the High Court and Supreme Court has been taken to be the discussion by the members of the bar from the time of delivering of the Judgment in 1993 by the Constitutional Bench of the Supreme Court. The common question raising the eyebrow over the appeasement through corruption, favoritism and nepotism in the matter of the selection of the candidature of the Hon’ble Judge has under gone an alarming deterioration in the spirit of the functionary of the statutory responsibility casted upon the collegiums for the selection of the individuals who may enshrined the prestige of the judiciary in the democratic setup. The depreciation to the incensement of the appreciation may lead to the spoiled system of governance
ReplyDeleteThus the larger issued of restoring a common man faith in the judicial system and preventing the functioning of the collegiums nearly to a caricature has to be looked after by the stalwards advocates practicing at the higher court to get the constitutional safe guard against the misuse of the discretionary power vested with the aforesaid authority. However, due to the constituents self imposed by the advocates, nobody could have been able to dare the criticism of the judicial system except on the few occasion when the law minister Sankranan out spoken and an advocate name P.D. Dua filed a petition seeking contempt of the law minister of the Central Government for such outstanding remarks which were directly assailing the integrity of the Hon’ble Court in due discharge of their constitutional duty which is increasing rapidly in the alarming proportion due to the lower standard of the people joining the profession and getting themselves being alleviated as the Hon’ble Judge of the Constitutional Court. It was said by Sri Sankaranan then the law minister that the Hon’ble Supreme Court is protecting to the mafia oriented economically stronger citizens in comparison to the cause espouse by a downtrodden by engaging a lawyer within his means and in such cases if the Hon’ble Supreme Court do not dart with the perception of the illegality and inequities committed upon such individuals representing the nation, the same will cast a derogatory image to the functioning of the supreme court and as such the judges are required to take the substance of the injustice committed by the executives and thereby provide the solace to the individuals coming for the redressal of his grievances before the Constitutional post in India. In stead of having any sort of the check and balance upon the judicial system, the position has further degraded after taking over the power of appointment by the Supreme Court and the same has been given to the collegiums comprising of some of the judges including the Chief Justices of the provinces and the Senior Judges of the High Court and Supreme Court. The instance which has come across the knowledge of the advocate when one individual posted in the income tax department as the appellate tribunal was chosen was chosen to be the Hon’ble Judge of Allahabad High Court on 18th August 1908 by the President of Indian under her warrant. Justice Dr. Satish Chandra so alleviated was not having any experience of a single day in any one of the High Court nor he could have been said to be performing the duty as the Judge of the Court. It is well understood that the member of the income tax appellate tribunal is not the judge.
ReplyDeleteThus, a writ of the quo warranto was filed by the Advocate M.C. Gupta who had put a practice of more than 40 years at Allahabad High Court and remained associated with Shanti Bhushan in the matter of the election petition filed by Rajnath against Indira Gandhi. When the High Court by the Judge presided over namely Justice Sushil Harkoli called for the record of Allahabad High Court it was said that the recommendations were send by the Supreme Court Collegium comprising of the Chief Justice of India namely Sri K.G. Balakrishnan, Justice S.H. Kapadia and other senior judges. The Hon’ble Court of Justice Sushil Harkoili passed an order in exercise of the power conferred to the High Court under Article 226 of the Constitution of India to have the Judicial Scrutiny/review of the decision making process of the administrative side of the Allahabad High Court in recommending the name of such person who was not illegible even for the appointment as the Munsif in the subordinate judiciary. It was also said that in case the High Court administrative side may feel the privilege over such recommendation, a single application with such prayer may also be filed which may be scrutinize to entail the jurisdiction of the Allahabad High Court in the matter of the scrutiny of the appointment of the Judge of the Allahabad High Court itself. Surprisingly the administrative side of the Allahabad High Court instead of providing such information preferred to file the SLP in the Supreme Court. The Bench presided over by the Chief Justice of India K.G. Balakrishnan shockingly not only admitted the appeal but also state the further proceeding in the said case pending before the High Court for which the Hon’ble Supreme Court was having no power to do so as no substantial question of general importance was involved nor it could have been taken out from such a innocuous order. Was it a case in which by any stretch of imagination the Supreme Court could issue notice and that too by the Bench presided over by the C.J.I. (who headed the collegiums which recommended the name of Dr. Satish Chandra). Then the case was transferred to the bench presided over by S.H. Kapadia Senior Judge and the member of the collegiums recommending the name of Dr. Satish Chandra himself. A petition was filed seeking the transfer of the proceedings from Allahabad High Court to Supreme Court under Article 139-A of the Constitution of India. It is another shocking surprise that the S.C. allowed the transfer petition and withdraw the writ petition from the High Court to itself. The petitioner Mahesh Chandra Gupta was summoned to conduct the argument. It was premeditated and predestine of the matter that the fate of the case was predetermined and the writ petition was going to be dismissed. However the arguments were conducted by expression “that qualification prescribed for a post is a rational differentia as promulgated by the equality clause enshrined under Article 14 and such qualification as prescribed under Article 217(2)(b) of the Constitution of India having the eligibility criteria for the selection of some advocate to the Constitutional Post of the Judge of the High Court may not be diluted by saying that the judiciary has not the infallibility to prescribed its own stander over the clause provided therein “An Advocate of the High Court”. It is always taken in the matter of the selection from the time of the Britishers that only such person having competency and high integrity in the professional ethics were regarded to be selected an being alleviated as the Judge of the High Court. Dr. Satish Chandr enrolled as an Advocate on 13.07.1975 has never practice.
ReplyDeleteThe present Chief Justice of India H.S. Kapadi observed that the requisite constitutional requirement is not actual practice as an Advocate. He introduced the right of practice may also include such Advocate who have actually not practiced. In paragraph 23 of his Judgment it has been held that “actual practice cannot be read into the qualification provision, Article 217(2)(b). The legal implication of the 1961 Act is that any person whose name is enrolled on the State Bar Council would be regarded as ‘an advocate of the High Court.
ReplyDeleteThe substance of Article 217(2)(b) is that it prescribes an eligibility criteria based on ‘right to practice’ and not ‘actual practice’ In concluding part of the Judgment the Supreme Court falls back upon the infallibility of the highest institution i.e. the collegium. It is left to the posterity to pose some uncomfortable questions to the Supreme Court. In a country where Judges appoint themselves can faith in the institutional infallibility be a rule of law? Is the Supreme Court qua the appointment of judges a law unto itself and what about the transparency and accountability? On merit lead to horrendous results if actual practice at the bar is equated with mere enrolment. The rationale of M.C. Gupta boils down to this:
ReplyDeleteA citizen cannot challenge the appointment of Judge on any ground whatsoever even if he has a bad reputation or even if he has obtained recommendation of collegium by practicing fraud. The judges of High Courts should not have the courage to entertain a writ of Quo Warranto petition under Article 226 of Constitution of India against a judge of high court and if they do so the same would be treated by the members of the collegium of the Supreme Court to be a writ petition questioning their authority and the petition would be transferred to the Supreme Court against all constitutional norms and would be heard by Bench presided by CJI or a senior member of the collegium. For eligibility mere enrolment as an advocate is enough- actual practice at the Bar is not required ‘Suitability’ cannot be questioned because it is in the exclusive domain of the My Lords of the Supreme Court. The citizen has to trust the institutional infallibility of the Supreme Court.
ReplyDeleteNehru Dynasty
ReplyDeleteAt the very beginning of his book, "The Nehru Dynasty", astrologer K. N. Rao mentions the names ofJawahar Lal's father and grandfather. Jawahar Lal's father was believed to be Moti Lal and Moti Lal's father was one Gangadhar Nehru. And we all know that Jawahar Lal's only daughter was Indira Priyadarshini Nehru; Kamala Nehru was her mother, who died in Switzerland of tuberculosis. She was totally against Indira's proposed marriage with Feroze. Why? No one tells us that! Now, who is this Feroze? We are told, by many that he was the son of the family grocer. The grocer supplied wines, etc. to Anand Bhavan, previously known as Ishrat Manzil, which once belonged to a Muslim lawyer named Mobarak Ali. Moti Lal was earlier an employee of Mobarak Ali. What was the family grocer's name?
One frequently hears that Rajiv Gandhi's grandfather was Pandit Nehru. But then we all know that everyone has two grandfathers, the paternal and the maternal grandfathers. In fact, the paternal grandfather is deemed to be the more important grandfather in most societies. Why is it then nowhere we find Rajiv Gandhi's paternal grandfather's name? It appears that the reason is simply this. Rajiv Gandhi's paternal grandfather was a Muslim gentleman from the Junagadh area of Gujarat. This Muslim grocer by the name of Nawab Khan had married a Parsi woman after converting her to Islam. This is the source where from the myth of Rajiv being a Parsi was derived. Rajiv's father Feroze was Feroze Khan before he married Indira, against Kamala Nehru's wishes. Feroze's mother's family name was Ghandy, often associated with Parsis and this was changed to Gandhi, sometime before his wedding with Indira, by an affidavit.
The fact of the matter is that (and this fact can be found in many writings) Indira was very lonely. Chased out of the Shantiniketan University by Guru Dev Rabindranath himself for misdemeanor, the lonely girl was all by herself, while father Jawahar was busy with politics, pretty women and illicit sex; the mother was in hospital. Feroze Khan, the grocer's son was then in England and he was quite sympathetic to Indira and soon enough she changed her religion, became a Muslim woman and married Feroze Khan in a London mosque. Nehru was not happy; Kamala was dead already or dying. The news of this marriage eventually reached Mohandas Karamchand Gandhi. Gandhi urgently called Nehru and practically ordered him to ask the young man to change his name from Khan to Gandhi. It had nothing to do with change of religion, from Islam to Hinduism for instance. It was just a case of a change of name by an affidavit. And so Feroze Khan became Feroze Gandhi. The surprising thing is that the apostle of truth, the old man soon to be declared India's Mahatma and the 'Father of the Nation' didn't mention this game of his in the famous book, 'My Experiments with Truth'. Why?
ReplyDeleteWhen they returned to India, a mock 'Vedic marriage' was instituted for public consumption. On this subject, writes M. O. Mathai (a longtime private secretary of Nehru) in his renowned (but now suppressed by the GOI) 'Reminiscences of the Nehru Age' on page 94, second paragraph: "For some inexplicable reason, Nehru allowed the marriage to be performed according to Vedic rites in 1942. An inter-religious and inter-caste marriage under Vedic rites at that time was not valid in law. To be legal, it had to be a civil marriage.
It's a known fact that after Rajiv's birth Indira and Feroze lived separately, but they were not divorced. Feroze used to harass Nehru frequently for money and also interfere in Nehru's political activities. Nehru got fed up and left instructions not to allow him into the Prime Minister's residence Trimurthi Bhavan. Mathai writes that the death of Feroze came as a relief to Nehru and Indira. The death of Feroze in 1960 before he could consolidate his own political forces is itself a mystery. Feroze had even planned to remarry.
Those who try to keep tabs on our leaders in spite of all the suppressions and deliberate misinformation are aware of the fact that the second son of Indira (or Mrs. Feroze Khan) known as Sanjay Gandhi was not the son of Feroze. He was the son of another Moslem gentleman, Mohammad Yunus. Here, in passing, we might mention that the second son was originally named Sanjiv. It rhymed with Rajiv, the elder brother's name. When he was arrested by the British police in England and his passport impounded for having stolen a car it was changed to Sanjay. Krishna Menon was then India's High Commissioner in London. He offered to issue another passport to the felon who changed his name to Sanjay.
ReplyDeleteIncidentally, Sanjay's marriage with the Sikh girl Menaka (now they call her Maneka for Indira Gandhi found the name of Lord Indra's court dancer rather offensive!) took place quite surprisingly in Mohammad Yunus' house in New Delhi. And the marriage with Menaka who was a model (She had modeled for Bombay Dyeing wearing just a towel) was not so ordinary either. Sanjay was notorious in getting unwed young women pregnant. Menaka too was rendered pregnant by Sanjay. It was then that her father, Colonel Anand, threatened Sanjay with dire consequences if he did not marry her daughter. And that did the trick. Sanjay married Menaka. It was widely reported in Delhi at the time that Mohammad Yunus was unhappy at the marriage of Sanjay with Menaka; apparently he had wanted to get him married with a Muslim girl of his choice.
It was Mohammad Yunus who cried the most when Sanjay died in the plane accident. In Yunus' book, 'Persons, Passions & Politics' one discovers that baby Sanjay had been circumcised following Islamic custom, although the reason stated was phimosis. It was always believed that Sanjay used to blackmail Indira Gandhi and due to this she used to turn a blind eye when Sanjay Gandhi started to run the country as though it were his personal fiefdom. Was he black mailing her with the secret of who his real father was? When the news of Sanjay's death reached Indira Gandhi, the first thing she wanted to know was about the bunch of keys which Sanjay had with him.
Nehru was no less a player in producing bastards. Atleast one case is very graphically described by M. O. Mathai in his "Reminiscences of the Nehru Age", page 206. Mathai writes: "In the autumn of 1948 (India became free in 1947 and a great deal of work needed to be done) a young woman from Benares arrived in New Delhi as a sanyasin named Shraddha Mata (an assumed and not a real name). She was a Sanskrit scholar well versed in the ancient Indian scriptures and mythology. People, including MPs, thronged to her to hear her discourses. One day S. D. Upadhyaya, Nehru's old employee, brought a letter in Hindi from Shraddha Mata. Nehru gave her an interview in the PM's house. As she departed, I noticed (Mathai is speaking here) that she was young, shapely and beautiful. Meetings with her became rather frequent, mostly after Nehru finished his work at night. During one of Nehru's visits to Lucknow, Shraddha Mata turned up there, and Upadhyaya brought a letter from her as usual. Nehru sent her the reply; and she visited Nehru at midnight.
ReplyDelete"Suddenly Shraddha Mata disappeared. In November 1949 a convent in Bangalore sent a decent looking person to Delhi with a bundle of letters. He said that a young woman from northern India arrived at the convent a few months ago and gave birth to a baby boy. She refused to divulge her name or give any particulars about herself. She left the convent as soon as she was well enough to move out but left the child behind. She however forgot to take with her a small cloth bundle in which, among other things, several letters in Hindi were found. The Mother Superior, who was a foreigner, had the letters examined, and was told they were from the Prime Minister. The person who brought the letters surrendered them. "I (Mathai) made discreet inquiries repeatedly about the boy but failed to get a clue about his whereabouts. Convents in such matters are extremely tightlipped and secretive. Had I succeeded in locating the boy, I would have adopted him. He must have grown up as a Catholic Christian blissfully ignorant of who his father was."
Coming back to Rajiv Gandhi, we all know now that he changed his so called Parsi religion to become a Catholic to marry Sania Maino of Turin, Italy. Rajiv became Roberto. His daughter's name is Bianca and son's name is Raul. Quite cleverly the same names are presented to the people of India as Priyanka and Rahul. What is amazing is the extent of our people's ignorance in such matters. The press conference that Rajiv Gandhi gave in London after taking over as prime minister of India was very informative. In this press conference, Rajiv boasted that he was NOT a Hindu but a Parsi. Mind you, speaking of the Parsi religion, he had no Parsi ancestor at all. His grandmother (father's mother) had turned Muslim after having abandoned the Parsi religion to marry Nawab Khan.
ReplyDeleteIt is the western press that waged a blitz of misinformation on behalf of Rajiv. From the New York Times to the Los Angeles Times and the Washington Post, the big guns raised Rajiv to heaven. The children's encyclopedias recorded that Rajiv was a qualified Mechanical Engineer from the revered University of Cambridge. No doubt US kids are among the most misinformed in the world today! The reality is that in all three years of his tenure at that University Rajiv had not passed a single examination. He had therefore to leave Cambridge without a certificate. Sonia too had the same benevolent treatment. She was stated to be a student in Cambridge. Such a description is calculated to mislead Indians. She was a student in Cambridge all right but not of the University of Cambridge but of one of those fly by night language schools where foreign students come to learn English. Sonia was working as an 'au pair' girl in Cambridge and trying to learn English at the same time.
And surprise of surprises, Rajiv was even cremated as per vedic rites in full view of India's public. This is the Nehru dynasty that India worships and now an Italian leads a prestigious national party because of just one qualification - being married into the Nehru family.