Justice Ghanshyam Prasad who was judge of Patna High Court during 24 January 2005-28 January 2009 is no more. A Full Court Reference is scheduled on the 27th November, 2024, in the Centenary Hall of High Court to condole his sad demise. A notice in this regard was issued by the Registrar General of the High Court. Justice Prasad used to reside at Kaushalya Estate, Bandar Bagicha, Patna.
The Ministry of Law & Justice had issued a release on 20 January, 2005 appointing four judges to the Patna High Court including Rekha Kumari, Ghanshyam Prasad, Sayed Mohammad Mehfooz Alam, and Sadanand Mukherjee, in this order of seniority.
His autobiography Me and My Truth: An Honest Story of a Judge was self-published in 2014. He was nominated as the Chairman of Web Journalists Standards Authority (WJSA) in July 2021. His autobiography Me and My Truth: An Honest Story of a Judge. Post retirement, he joined Twitter in June 2014 where he occasionally expressed his opinions. He wrote: "Customer care of reliance digital is hopelessly worthless.They do not reply query of customer. They simply keep mum" on 24 August 2020. Most customers will agree with his assessment.
On 22 February 2020, he opined:"It is wrong to appoint no-judicial man as member of commission or tribunal.They cannot understand intricacies of law and write order properly.Such institutions are not substitute of judiciary.Just like "jhola chhap" can not be substitute of doctors."
It is true that no-judicial persons cannot do justice with the work of tribunal and commissions. Tribunalisation of judiciary is undermining both the bar and the bench. Post
Notably, the 42nd amendment brought a huge change in the adjudication process of the country by introducing Article 323 A and 323 B in the Constitution of India. The 42nd Amendment and its insertion into Part XIVA paved the way for tribunals in India. The amendment empowered the Parliament to enact laws which will provide for authority, jurisdiction and mode of operation of these tribunals and it also allowed for exclusion of jurisdiction of High Courts and civil courts except the Jurisdiction of Supreme Court under Article 136. Tribunalisation is an assault on the basic structure by violating the principal of separation of powers and independence of judiciary. The constitution does not permit the transfer of judicial power.
Sadly, in S.P. Sampath Kumar and Ors. Vs Union of India, the issue was regarding the constitutional validity of 42nd amendment and the Administrative Tribunals Act 1985 as they excluded judicial review. It was held that Judicial Review was part of basic structure of the Constitution but then it was also stated that if the constitutional amendment provides for an effective mechanism for vesting the Administrative Tribunals with power of Judicial review then it would not be unconstitutional even though it excluded the jurisdiction of High Courts.
Significantly, in L.Chandra Kumar vs The Union of India, the court reiterated the fact that judicial review is part of basic structure of Constitution and the power of judicial review of High Court and Supreme Court under Article 226 and. Article 32 ensure independence of Judiciary. The ‘exclusion of jurisdiction’ clause in all the legislations which have been enacted under scope of Article 323A and Article 323 B was struck down. The tribunals can never be a true alternative of superior courts and hence the power of judicial review of High Court and Supreme Court can never be excluded.
But in Union of India v. R Gandhi, it was held that exclusion of jurisdiction of High Court is permissible and parliament has the authority to form tribunals through specific enactments and vest them with the jurisdiction to adjudicate upon the matters related to those specific enactments. It was also stated that though the legislature can form laws prescribing eligibility criteria and kind of expertise required for appointment in tribunals, the superior courts have the authority to examine whether the eligibility criteria and qualifications prescribed for appointment of members is adequate enough to enable them to meet the purpose for which the given tribunal is constituted.
This stance of the Supreme Court faces criticism from jurists because subjecting tribunal judgements to judicial reviews of High Court and Supreme Court is not enough given the fact that most of members are either appointed by executive or, are members of the executive.
Also read: When tribunals undermine the judiciary
The Law Commission's report ‘Assessment of Statutory Frameworks of Tribunals in India’ observes: “though the disposal rate of the tribunals in comparison to the filing of cases per year had been remarkable — 94 per cent — the pendency still remains quite high.” It recommended that the writ petitions challenging the decisions of different tribunals in the country should be filed before a division bench of the High Court instead of the Supreme Court.
In 15 July 2019, Justice Prasad wrote: "I am shocked to find that newly constituted RERA Bihar manned by rtd. Bureaucrats is endulged in malpractices. They supposed to pass order for registration of project within 30 days but it kept pending for months. Obviously for ulterior motive. CM Bihar kindly take care of rera office which is indulged in malpractices. Many matters are kept pending for months with ulterior motives."
Justice Prasad was referring to the conduct of Bihar Real Estate Regulatory Authority (RERA), established under the Real Estate (Regulation and Development) Act, 2016. It's primary objective is to promote transparency, accountability, and efficiency in the real estate sector. Notably, RERA has not published it's Annual Report after 2018-19. Since March,2024, Vivek Kumar Singh, IAS is the Bihar RERA Chairperson. Prior to him, Naveen Verma, IAS was the Chairperson, RERA from May 14, 2021 to February 2024. His predecessor, Afzal Amanullah, IAS was Chairperson, Bihar RERA from April 2018 to May 2021.
RERA was constituted to protect the interests of homebuyers, investors, and other stakeholders, and to regulate the real estate market in the state of Bihar. In terms of clause (g) of Section 2 of this Act. Exercising the power conferred by the third proviso to sub-section (1) of section 20 and first proviso to sub section (4) of section 43 of the Act, The Government of Bihar has designated The Principal Secretary, Urban development and Housing Department, Government of Bihar as the Regulatory Authority and The Bihar Land Tribunal, as the Appellate Tribunal respectively vide Notification nos. 348 & 349 and 346 & 347 dated 28th April 2017.
On the 6th of December, 2016, he wrote: "Judges ko sarkar antim pawdan pe rakhdiya hai.sabka pay pension revise hogya hai magar pata n Judges ke bare me kyo late ho raha hai?" Notably, All India Judges Association case in this regard is pending since 1989.
Dr. Gopal Krishna
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