The Sunday TimesNews/Comment

10th November 1996



5,375 displaced sent home from Vavuniya

Over 5,375 displaced people had up to date been sent back to their homes in Jaffna from the Vavuniya refugee camps, a Vavuniya Secretariat source said on Friday.

Steps had been taken to augment the facilities in the refugee camps set up to house the displaced people from the uncleared areas from the North, he said.

Meanwhile, a 13-year-old displaced girl in the Veppankulam welfare center was reported to have died from fever. A doctor attached to the Vavuniya Base Hospital was reported to have been taken in by the Police recently but on the intervention of the hospital authorities he was later released from the Thandikulam camp.

From October 22, to Friday 13,831 people have crossed over to Vavuniya from the uncleared areas of the North, according to the sources.

The breakdown of the displaced people in the Vavuniya transit and welfare centers are: Jaffna - 7,521, Kilinochchi - 2,681, Mullaitivu - 1,844, uncleared areas of Vavuniya - 1,139; Mannar - 206, Trincomalee - 97, Batticaloa - 47, Puttalam - 25, Kandy - 8, Matale - 8, Colombo - 5, Gampaha - 1, others - 247.

Refugees cross to India

The influx of Sri Lankan Tamils into the Rameswaram coast touched a new high with the arrival of 551 refugees belonging to 151 families on Sunday. These refugees came in 11 boats of which two were seized.

According to police sources, most of the Tamils hailed from the Jaffna peninsula and Kilinochchi area. They landed at Villundi Theertham, Ariyankundu, Olaikuda, Rameswaram jetty and Dhanushkodi.

One batch of refugees was transferred midsea to a Rameswaram trawler, which was intercepted by naval personnel. Another Sri Lankan boat, carrying refugees, surrendered to the naval officials at the Rameswaram jetty. Nine other Sri Lankan boats returned to the island after offloading the refugees.

Official sources said the refugee arrivals picked up momentum depending on the availability of boats in Sri Lanka. The refugees are said to have told the officials that thousands of families are still waiting to cross over to India.

Sunday's arrivals included 212 men, 192 women and 147 children. All of them were shifted to the Mandapam camp after screening by police personnel. -The Hindu

Public sector unions not happy with budget

By Shelani de Silva

Public sector trade unions are dissatisfied with the budget proposals regarding salaries and the reduction of overtime work.

The unions claimed that the budget proposals do not benefit the workers but the well-to-do.

President of the Public Service Workers' Trade Union Federation W.H. Piyadasa told The Sunday Times that they waited for two years expecting something for their benefit but they were disappointed.

"For the last two years we were promised the salary increase, finally when they gave it, it's a mere hundred rupees. Already they cut one percent from the widow's pension but with the proposal about 75 percent will be taxed," he said.

According to Mr. Piyadasa, reducing overtime work will affect the development process. "The proposals are directed at the rich who get the fat whereas we are left with only the crumbs," he said.

Cutting down on overtime is a direct blow to the postal services which are compelled to do overtime. Generally they do about 80 hours a month, sometimes more depending on the work load.

Spokesman for the Post and Telecommunication Union said that this proposal could not be implemented in the postal services. "Working hours cannot be limited for eight hours, work is done according to the situation. If we stuck to the general working hours there might not be a postal service in Sri Lanka," he said.

The union lashed out at government's decision to close post offices on Sunday. "Never have they closed the post office on Sunday since its inception in 1815. It is a rash decision, taken without considering the seriousness of the problem," he said.

According to the spokesman the union is scheduled to have a council meeting to discuss the proposals.

Muruththettuwe Ananda Thero, president of the nurses union told The Sunday Times that the salary increase of 300 is barely enough for a middle class family.

According to the Thero reducing the overtime hours would affect the health services. "Already we are short of nurses, the work load is heavy but if the proposal is implemented we might have to even close down hospitals. It's going to cause a lot of problems in the health sector, unless some conditions were laid down," he said.

President of the Ceylon Electricity Board Engineers' Union Susantha Perera said that the income tax charged from them was unreasonable. "Taxing government servants is not heard of. Generally, you could tax a person who earns more than Rs. 15,000 a month, that too in the private sector. Also they tax us for 'save the nation' fund, which was extended for another year," he said.

According to Mr. Perera limiting overtime in an organization such as the CEB will not work. "When there is a breakdown in an area generally the workers have to be at the plant for more than 24 hours," he said.

Yala families live in fear of terrorists

About 5,000 families, living in the neighbor hood of the Yala sanctuary, face threats from terrorists who have encroached on the area. The villagers here are said to live in fear of the Tiger cadres, who roam the area at will.

The Tiger terrorists have looted a store in the area for foodstuff; set ablaze two circuit bungalows; taken away a jeep belonging to one of the tourist houses; burnt a guest house at Patangala; and spirited away three vehicles, and shot fishermen in Kirinda.

The security authorities have received information that armed men wearing Army uniforms are seen around the Yala sanctuary area.

They have also come across some camps presumed to be Tiger hideouts. Villagers in the vicinity complain that no defensive measures have been made available by the authorities.

Special Reports - Legal

Knowing the law; and knowing the Law Minister

By Mah

The Supreme Court of India in their order (AIR 1991 SC 631) in the case of three writ petitions, filed by (i) Subesh Sharma, (ii) Supreme Court Advocates-on-Record Association, and (iii) Firdaus Taleyarkhan, made the following observations:

"We may at this stage, advert to the Constitution (Sixty-Seventh Amendment) Bill, 1990, which is pending before the Parliament. In the statement of objects and reasons of this Bill, it has been stated:

'The Government of India in the recent past announced their intention to set up a high level judicial commission, to be called the National Judicial Commission, for the appointment of Judges of the Supreme Court and of the High Courts and the transfer of Judges of the High Courts so as to obviate the criticisms of arbitrariness on the part of the Executive in such appointments without any delay. The Law Commission of India in their 121st Report also emphasized the need for a change in the system.'

"This part of the statement obviously accepts the position that government is satisfied that there is basis for criticism of the arbitrariness on the part of the Executive...

"We are aware of the position that the setting up of the National Judicial Commission through a Constitutional Amendment is in contemplation. In the event of the Amendment being carried and a National Judicial Commission being set up, the correctness of the ratio in S.P. Gupta's case (AIR 1982 SC 149) of the status of Chief Justice of India may not be necessary to be examined in view of the fact that by the Amendment, the Chief Justice of India would become the Chairman of the Commission..."

The Indian judiciary carried its own cross, passing through various 'stations' down the road from November 4, 1947, when the well known memorandum of the Home Ministry, laying down the procedure for selection of Judges of High Courts was issued. The other important 'stations' were:

The Indian governor-general Mountbatten's proposal that "the Chief Justice of a Province would forward his nomination to the Governor, who, after consultation, if necessary, with Chief Justice, would forward the recommendation to the governor-general, who, in his turn, would forward it to the Chief Justice of India and the advice of the Chief Justice as to the final selection and choice would be passed to the Home Ministry for issue of necessary orders". (From Dr. Rajendra Prasad: Correspondence and Select Documents, Vol. XII Presidency Period edited by V. Choudhary).

The Gandhian skulduggery in 1970s threw the judiciary into stygian darkness. Those were the years of arrogant suppression, of outright animosity and philippics against senior judges, sixteen of whom were transferred in a contumelious executive caprice from one High Court to another, with another forty-one on the waiting list.

The historic Judges' Case of 1982 - a case of lost opportunity in which the apex Court decided that the power to appoint Judges of superior courts solely vested with the Executive, and that the role of the Chief Justice of India in the consultation process did not assume primacy either in the appointment of Judges or their transfers.

The 121st Report of the Law Commission (1987) presided over by Justice D.A. Desai, recommended an independent collegium for selection of Judges of superior courts.

The appointment of about 70 Judges of High Courts was purposely delayed by the V.P. Singh government on the plea that the new Chief Minister in the States had to be consulted.

In February 1990, there were as many as 94 vacancies in superior Courts and there was a docket explosion of 22 million cases pending in different courts.

The Constitution (Sixty-Seventh Amendment) Bill, 1990, which was introduced in the Lok Sabha on May 11, 1990, proposed the establishment of a National Judicial Commission.

The Supreme Court examined the question of the primacy of the Chief Justice of India in regard to the appointment of Judges in the superior courts and to the transfer of High Court Judges, and gave the verdict in October 1993 that the Chief Justice of the country would enjoy primacy over that of the Executive.

The Constitution (Sixty-Seventh Amendment) Bill, 1990, envisaged amendments in Articles 124, 217, 222 and 231 of the Indian Constitution, relating to the appointments of Judges of the Supreme Court and of the High Courts, and the transfer of Judges of the High Courts. It was also proposed to insert a new Part XIIIA after Part XIII, with the title of "National Judicial Commission", having only one Article 307A.

In Article 124, dealing with the establishment and constitution of the Supreme Court, it was proposed in the Bill that every Judge shall be appointed by the President on the recommendation of the National Judicial Commission. A proviso was added, "that the Chief Justice of India shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose". Except for the appointment of acting Chief Justice under Article 126, there is no provision laying down a procedure for the appointment of Chief Justice of India in the Indian Constitution, as we find in the Constitution of Pakistan, wherein, under Article 177. "The Chief Justice of Pakistan shall be appointed by the President".

Another amendment was proposed to be made in Article 217 for the appointment of a Judge of High Court on the recommendation of the National Judicial Commission.

Further, it was proposed to amend Article 222 in so far as the transfer of a Judge from one High Court to any other High Court was to be made by the President on the recommendation of the Commission.

In all these amendments, provisions were added that, "where the recommendation of the National Judicial Commission was not accepted, the reasons thereof shall be recorded in writing".

The Bill proposed that "the President shall by order constitute... the National Judicial Commission".

The composition of the Commission varied with its functions. "The National Judicial Commission shall, for making recommendation as to the appointment of a Judge of the Supreme Court (other than the Chief Justice of India), a Chief Justice of High Court and as to the transfer of a Judge from one High Court to any other High Court, consist of (i) the Chief Justice of India, who shall be the Chairman of the Commission; and (ii) two other Judges of the Supreme Court next to the Chief Justice of India in seniority".

For making recommendation as to the appointment of a Judge of any High Court, "the National Judicial Commission shall consist of (i) the Chief Justice of India who shall be the Chairman of the Commission; (ii) the Chief Minister of the concerned State or, if a Proclamation under Article 356 is in operation in the State, the Governor of that State; (iii) one other Judge of the Supreme Court next to the Chief Justice of India in seniority; (iv) the Chief Justice of the High Court, and (v) any other Judge of the High Court next to the Chief Justice of that High Court in seniority".

Hardly had the members of Lok Sabha digested these provisions of the Bill, when a immense crag of dissension became visible between the judiciary and the government. The then Chief Justice of India Salvachi Mukharji wrote a long letter to the Government raising a number of objections to different clauses of the Bill. Although the Bill might keep in leash the Executive invasion of judicial appointment, he thought it might also undermine the judiciary's independence. In an interview (India Today, July 15, 1990), Mukharji said, 'I have already expressed my reservations about that.

Firstly, I don't want the Chief Justice of the High Court or Chief Justice of India to be part of or to be among equals of four or five members of a Commission. The primacy of the Chief Justice's post should be maintained. Secondly, it would create more delays and deadlocks. If the present system as it exists, is worked in the proper spirit, it will solve the problem".

Justice V.R. Krishna Iyer (Judge, Supreme Court, July 1973 - November 1980) impliedly referred to the Bill as "a constitutional white wash", and said, "A parliamentary mountain in labor producing a legislative mouse is no compliment to anyone".

In the process of fresh elections to the Parliament, the Bill lapsed. The October 1983 judgment of the Supreme Court of India in the case of the writ petitions, referred to earlier, reversed its 1982 verdict. Now, all the appointments of superior Judges have to be in conformity with the opinion of the Chief Justice of India, and the opinion of the judiciary 'symbolized' by the views of the Chief Justice of India has primacy. The judiciary awoke from millennia of slumber, and the Executive yoke was removed. And full fathom five lies buried the Amendment Bill.

The burden of the cross has become lighter. But would the Indian Judges still be categorized in two groups those who know the law, and those who know the law minister? And, would the Indian Judges continue to address panegyric and sycophantic letters to newly-elected Chief Ministers and Prime Ministers with chiliastic hopes that the millennium would arrive on their assumption of power?

-Courtesy Dawn

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