Apex court: why no representation to some communities in Madras HC?
The Supreme Court on Tuesday questioned why certain communities were not at all represented in the Madras High Court for over 60 years and said this omission could not be justified as mere coincidence.
Even as it reserved verdict on a writ petition challenging the selection of 12 names — 10 from the Bar and two from subordinate judiciary — for appointment of judges to the High Court, a three-judge Bench observed: “It may have larger social dimensions if certain segments of society are not adequately represented on the Bench.”
The Supreme Court collegium had already returned the list to the Union Law Ministry for sending it back to the High Court.
However, counsel S. Prabhakaran, appearing for Mr. Gandhi, said the list of 12 names had already been returned and nothing survived in the matter. He argued that the Bar was questioning, not the process of selection, but only eligibility and seeking more transparency. While rejecting the charge that it was seeking reservation for various communities, he said the Bar wanted wider representation and demanded that communities unrepresented for over 60 years be given representation.
Judging the court
Madras High Court controversy underlines the need for greater transparency in judicial appointments.
The Supreme Court’s proposal to create a “forum to address the grievances of lawyers” on judicial appointments is a small step towards greater transparency in the functioning of the collegiums. The recent controversy surrounding the nomination of judges to the Madras High Court — which prompted the SC’s proposal — threatens to undermine public trust in the higher judiciary unless the apex court makes systemic changes to the selection process.
In January, a sitting judge of the Madras HC publicly expressed his displeasure at the selection of 12 individuals, who had been recommended for appointment by the HC’s collegium. The list of selected individuals had been forwarded to the SC, which had nominated them for appointment to the Union law ministry. Among the allegations levelled against those selected was that the proposed appointments were skewed in favour of lawyers from the upper castes. The SC, notably, withdrew its nomination and returned the list to the Madras HC earlier this month. But its reason for doing so — that the Madras HC had a new chief justice and therefore the list had to be considered afresh — skirts the real problem of lack of accountability in judicial collegiums.
The collegium system — a creation of the SC itself — comprises the chief justice and the senior-most judges of a high court or the SC and is not answerable to any constitutional functionary for its decisions. A judicial appointments commission is in the works, but it is unclear when Parliament will legislate it into existence by way of a constitutional amendment. The proposed commission, which would replace the collegiums, would still have some discretion in the appointment process.
Meanwhile, till the commission is institutionalised, the apex court should nudge the appointments process towards greater transparency. The SC could prescribe eligibility criteria for selection to the higher judiciary, beyond the basic requirements in the Constitution. It could exhort high courts to make the shortlist of candidates public. The SC could disclose why it has chosen to nominate judges from the short list to the Union government.
The appointment process should also take on board diversity concerns. High
The Supreme Court on Tuesday expressed its unwillingness to delve into the legality of the parallel Sharia courts or examine the merit of the fatwas issued by them. All fatwas are not irrational per se and some of them could be “wise” and for the general “benefit” of all, a bench of Justices CK Prasad and Pinaki Chandra Ghose said, refusing to interfere in what in its words a “political, religious” issue.
The court said it would protect anyone who is being forced to submit to any fatwa in violation of his or her fundamental rights, while also pointing out that there was no legal basis or statutory authority backing such institutions.
In 2005, a Sharia court asked the woman to either leave her marital home or submit to her father-inlaw who was accused of raping her.
Such political, religious issues have created tension between the judiciary and Parliament in the past. In 1986, Parliament passed an Act nullifying a Supreme Court ruling in the Shah Bano case, where the court had ordered the woman’s former husband to pay her alimony.
ll Fatwas Not Irrational, Some Wise & for General Good: SC
OUR LEGAL CORRESPONDENT NEW DELHI
The Supreme Court on Tuesday expressed its unwillingness to delve into the legality of the parallel Sharia courts or examine the merit of the fatwas issued by them. All fatwas are not irrational per se and some of them could be “wise” and for the general “benefit” of all, a bench of Justices CK Prasad and Pinaki Chandra Ghose said, refusing to interfere in what in its words a “political, religious” issue.
The court said it would protect anyone who is being forced to submit to any fatwa in violation of his or her fundamental rights, while also pointing out that there was no legal basis or statutory authority backing such institutions.
In 2005, a Sharia court asked the woman to either leave her marital home or submit to her father-inlaw who was accused of raping her.
Such political, religious issues have created tension between the judiciary and Parliament in the past. In 1986, Parliament passed an Act nullifying a Supreme Court ruling in the Shah Bano case, where the court had ordered the woman’s former husband to pay her alimony.
Suitability of judge candidates cannot be challenged: SC
The suitability of a candidate for appointment as judge of a High Court cannot be questioned because the recommendation of its collegium is not subject to any judicial review, the Supreme Court held on Wednesday.
A Bench of Justices B.S. Chauhan, J. Chelameswar and M.Y. Eqbal said: “Judicial review is permissible only of assessment of eligibility, and not of suitability.”
Time-bound trials for legislators
By fixing a deadline of one year from the date of framing of charges for the completion of trial involving members of Parliament and Legislative Assemblies, the Supreme Court has once again intervened effectively to give some credibility to the idea of cleansing the polity of criminalisation.
Last year, it gave a jolt to the political class by striking down a provision that protected sitting legislators from immediate disqualification on conviction.
It has now sought to ensure that repeated adjournments and dilatory tactics do not indefinitely protect lawmakers from conviction and disqualification. The interim order — on a petition by a voluntary organisation — making the framing of charges as the point at which the clock begins to tick is based on a Law Commission recommendation that the filing of charge sheet could not be the appropriate stage for disqualification of candidates from contesting. The Court has asked trial courts to wrap up trials involving legislators within a year; and if they are unable to do so, they need to explain the delay to the Chief Justice of the High Court.
When the Supreme Court held in 1979, and reiterated in 1986, that speedy trial is a fundamental right under Article 21 of the Constitution, what it had in mind was the plight of hundreds of poor prisoners languishing in jails across the country without being brought to trial for years. The languid criminal justice system, on the other hand, has worked to the advantage of members of the political class who occasionally find themselves facing prosecution on corruption and other charges.
Last year, it gave a jolt to the political class by striking down a provision that protected sitting legislators from immediate disqualification on conviction.
It has now sought to ensure that repeated adjournments and dilatory tactics do not indefinitely protect lawmakers from conviction and disqualification. The interim order — on a petition by a voluntary organisation — making the framing of charges as the point at which the clock begins to tick is based on a Law Commission recommendation that the filing of charge sheet could not be the appropriate stage for disqualification of candidates from contesting. The Court has asked trial courts to wrap up trials involving legislators within a year; and if they are unable to do so, they need to explain the delay to the Chief Justice of the High Court.
When the Supreme Court held in 1979, and reiterated in 1986, that speedy trial is a fundamental right under Article 21 of the Constitution, what it had in mind was the plight of hundreds of poor prisoners languishing in jails across the country without being brought to trial for years. The languid criminal justice system, on the other hand, has worked to the advantage of members of the political class who occasionally find themselves facing prosecution on corruption and other charges.
Many political leaders and functionaries have managed to prolong for years an inherently supine trial mechanism, enjoying in the meantime repeated electoral victories and comfortable tenures in the legislatures of the States and in Parliament. A significant number among the law-making community, including leaders of political parties, manage to get trial proceedings stayed by superior courts or postponed by means of interminable interlocutory petitions. The Criminal Procedure Code does not prescribe a time limit for winding up a trial, but Section 309 makes it clear that once examination of witnesses begins, it shall proceed on a day-to-day basis until all witnesses are examined. This provision is rarely adhered to for various reasons. It is no easy task for the lower judiciary as MPs and MLAs are influential litigants, engaging the services of a battery of advocates who spare no effort and leave no procedural aspect unquestioned before allowing the trial to commence. The latest order helps address this problem by empowering the trial court to refuse routine adjournments.
High Courts to get 25 per cent more judges to clear backlog
In an attempt to clear the backlog of over 40 lakh cases, the Centre has increased the strength of judges in all High Courts by 25 per cent. As a result, the number of judges will go up from 906 to 1,112.
At present, there are about 250 vacancies in the High Courts. In addition, 206 new vacancies have to be filled in view of the proposed increase in the strength.
Law Minister Kapil Sibal has written to the Chief Justices of High Courts, requesting them to send recommendations for filling the vacancies.
Under the government proposal, the strength of judges in the Allahabad High Court, for example, will go up from 160 to 200; Andhra Pradesh 49 to 61; Bombay 75 to 94; Calcutta 58 to 72; Madras 60 to 75; Delhi 48 to 60; Karnataka 50 to 62; Kerala 38 to 47; Punjab and Haryana 68 to 85; and Patna 43 to 53.
The message from speedy trials
If there is one message in the Mumbai Sessions Court’s judgment in the Shakti Mills gang rape cases, it is that the pervasive cynicism about the country’s criminal justice system, especially in rendering justice to victims of sexual violence, may not always be justified.
The verdict of Judge Shalini S. Phansalkar-Joshi, sentencing four convicts to life terms for the gang rape of a telephone operator in the abandoned mill compound eight months ago, is noteworthy for meting out speedy justice as well as for imposing the maximum punishment available in law under the recently amended and strengthened penal provisions.
There was much shock and anger when a photo-journalist was sexually assaulted by a group of youngsters, including a juvenile, on August 22 last year. The fact that she went to the police immediately encouraged another woman, the telephone operator, to come forward and disclose that she too had been gang-raped some weeks earlier at the same spot.
A key response of the government after the Delhi gang rape of December 2012 was to amend the penal provisions relating to sexual violence. The Shakti Mills episode provided an opportunity to the judiciary to make use of the provision for enhanced punishment. It is significant that the judge has sentenced the four convicts under Section 376D, which deals with gang rape, to the maximum punishment of imprisonment for the remainder of their natural life.
The sentence in the second incident involving the photo-journalist has been deferred after the prosecutor, invoking Section 376E, which provides for the death penalty for repeat offenders, demanded capital punishment. Three of the convicts participated in both the crimes, but it is debatable whether there is any case for awarding death, when life-long incarceration, which comes with the possibility of repentance and introspection, can serve the ends of justice.
The verdict of Judge Shalini S. Phansalkar-Joshi, sentencing four convicts to life terms for the gang rape of a telephone operator in the abandoned mill compound eight months ago, is noteworthy for meting out speedy justice as well as for imposing the maximum punishment available in law under the recently amended and strengthened penal provisions.
There was much shock and anger when a photo-journalist was sexually assaulted by a group of youngsters, including a juvenile, on August 22 last year. The fact that she went to the police immediately encouraged another woman, the telephone operator, to come forward and disclose that she too had been gang-raped some weeks earlier at the same spot.
A key response of the government after the Delhi gang rape of December 2012 was to amend the penal provisions relating to sexual violence. The Shakti Mills episode provided an opportunity to the judiciary to make use of the provision for enhanced punishment. It is significant that the judge has sentenced the four convicts under Section 376D, which deals with gang rape, to the maximum punishment of imprisonment for the remainder of their natural life.
The sentence in the second incident involving the photo-journalist has been deferred after the prosecutor, invoking Section 376E, which provides for the death penalty for repeat offenders, demanded capital punishment. Three of the convicts participated in both the crimes, but it is debatable whether there is any case for awarding death, when life-long incarceration, which comes with the possibility of repentance and introspection, can serve the ends of justice.
There were moments in the last year or so when many believed that the national outcry since December 2012 may have been in vain, as sexual crimes continued to be reported, and no part of the country seemed safe for women. Yet, even if the larger malaise of sexual violence against women appears entrenched in society, it is of some comfort to know that there is no question of impunity. There is a fair degree of certitude now that timely complaints and disclosures would help the police to undertake a proper investigation, while public opinion and activism keep the issue alive so that the case is not derailed at the trial stage. As the Shakti Mills trials demonstrate, the way forward is in fostering trust in the system of criminal administration by efficient investigation and speedy trials.
A longer haul
A Mumbai sessions court may have delivered its verdict in the Shakti Mills gangrape case in “record time”, as Maharashtra Home Minister R.R. Patil put it. But it would be premature to conclude that justice has now become swift and effective in all instances of sexual violence.
The Shakti Mills gangrape trial was “fast tracked” on account of the public outrage that followed in its wake. Meanwhile, similar cases across the country have been languishing in courts despite the government’s efforts to expedite rape trials.
In Delhi alone, for instance, 1,100 rape cases were pending trial last year in the six new special courts created to tackle sex crimes.
Nearly 24,000 such cases are pending in the Supreme Court and high courts, according to the law ministry’s figures for 2013.
Without adequate infrastructure and qualified judges, many of the fast-track courts are ill-equipped to deal with the huge volume of cases.
In Delhi alone, for instance, 1,100 rape cases were pending trial last year in the six new special courts created to tackle sex crimes.
Nearly 24,000 such cases are pending in the Supreme Court and high courts, according to the law ministry’s figures for 2013.
Without adequate infrastructure and qualified judges, many of the fast-track courts are ill-equipped to deal with the huge volume of cases.
Fast-track courts do offer the comforting illusion that some cases — deemed to be deserving of “special” treatment — can be processed within an abbreviated time frame. This approach begs the question: if courts can effectively manage their work flow for a certain category of offences, why can’t they do so for all? Further, a parallel adjudication of sexual offences may deliver results but it does not always guarantee a fair trial. In Rajasthan’s fast-track courts, for instance, the conviction rate in rape cases sank to 18 per cent in 2011, the lowest in a decade. An alarming number of such cases adjudicated by fast-track courts have been overturned on appeal.
With a deadline hanging over their heads, police and lower courts are under pressure to gather evidence and process it without due consideration.
The 2013 criminal law amendments, enacted after the Delhi gangrape, require trial courts to hear sexual offence cases on a day-to-day basis, and conclude proceedings within two months of the police filing the chargesheet. The uphill struggle to implement these requirements not only casts the judiciary in poor light, but also highlights the need to avoid knee-jerk solutions. Backlog, whether in rape cases or other offences, can only be tackled by filling existing vacancies with competent judges and appointing court managers proficient in the use of communications technology. The government has spent considerable resources in setting up fast-track courts across the country, only to see them clog up. Money and energies would be better spent training judges and registry officials.
Disqualify politicians on framing of charges: panel
The Law Commission has recommended disqualification of politicians from contesting elections once charges are framed against them in the court. It has also suggested “substantial safeguards” to prevent misuse of this provision.
In its 244th report submitted to the Union Ministry of Law and Justice, the Law Commission has also suggested an enhanced sentence of two years under the Representation of the People Act, 1951, for filing of false affidavits by politicians and disqualification on such conviction.
The report, titled ‘Electoral Disqualifications’, has been placed before the Supreme Court in the matter of Public Interest Foundation vs. Union of India, in which the apex court, on December 16 last year, requested the Commission to examine the two issues and submit its response to the Union government.
Deliberations
The Commission, headed by Justice A.P. Shah, former Chief Justice of the Delhi High Court, had detailed discussions with a cross-section of stakeholders and general public, as well as internal deliberations, including a national consultation, before preparing its recommendations.
Against the existing legal provision of disqualification upon conviction in a criminal case, the Commission stated that disqualification at the stage of charging, if accompanied by substantial attendant legal safeguards to prevent misuse, had a significant potential for curbing the spread of criminalisation of politics.
“The stage of framing of charges is based on adequate levels of judicial scrutiny,” the 54-page report pointed out, adding that the filing of police report under Section 173 of the Criminal Procedure Code was not an appropriate stage to introduce disqualification because of lack of sufficient application of judicial mind at this point.
Long delays
Disqualification on conviction had proved to be incapable of curbing the growing criminalisation of politics because of long delays in trials and “rare convictions,” said the Commission. The law needed to evolve to pose an effective deterrence and prevent subversion of the process of justice, it said.
Listing the safeguards, the Commission has suggested bringing only those offences which have a punishment of five years or above within the remit of disqualification. Charges filed up to one year before the date of scrutiny of nominations will not lead to disqualification, and disqualification will operate till an acquittal by the trial court, or for six years, whichever is earlier.
‘Expedite trial’
For charges framed against sitting MPs and MLAs, the trial must be expedited through day-to-day hearing and concluded within a year. The Supreme Court has accordingly accepted this suggestion and passed an order directing that all pending trials against MPs/MLAs be completed within a year.
According to another recommendation, persons with charges pending on the date of the law coming into force must be disqualified from contesting future elections, unless such charges are framed less than one year before the date of scrutiny of nomination papers or the person is a sitting MP or MLA at the time of enactment of the Act.
SC declines to stay Jat reservation
Delhi gets its first woman Chief Justice
Justice Gorla Rohini has become the first woman Chief Justice of the Delhi High Court. Justice Rohini, who was administered the oath of office and allegiance by Lieutenant-Governor Najeeb Jung at Raj Niwas on Monday, is the first woman to grace the post since the Delhi High Court was established in October 1966.
Justice Rohini, 58, replaced Justice N.V. Ramana who had vacated the coveted post in February following his elevation as a judge of the Supreme Court. The swearing-in ceremony was attended by senior members of the judiciary, Delhi Chief Secretary and other senior officers of the Delhi Government.
Speaking on a woman being sworn in as the first Chief Justice of the Delhi High Court, Mr. Jung said: “Her appointment symbolises women’s empowerment. We need many more role models like her who can inspire young girls across the country to aspire for top positions in all walks of life.”
For a fair and open system
The election manifesto of the Bharatiya Janata Party (BJP) has promised to “accord high priority to judicial reforms to address the issue of appointment of judges …” It also proposes “to set up a National Judicial Commission for the appointment of judges to the higher judiciary.” The Indian National Congress has promised that a Judicial Appointments Bill it introduced in Parliament will be enacted “after consultation and consensus building over the mechanism proposed in the Bill.”
The Constitution (One Hundred And Twentieth Amendment) Bill 2013 was passed by the Rajya Sabha on September 5, 2013. It seeks to replace the collegium model of judicial appointments with a Judicial Appointments Commission (JAC). For a Constitution amendment to become law when it seeks to make any change in the “Union Judiciary,” it has to undergo these three steps: the Bill has to be passed in each House by a majority of total membership of that House and also by a majority of not less than two-thirds of the members of that House present and voting; the amendment also requires to be ratified by the Legislature of not less than one half of the States by a resolution to that effect; and assent by the President.
The Bill gives JAC the powers to appoint judges to the Supreme Court and the High Court. The said Bill introduced a new Article 124-A to constitute a JAC to make recommendations with respect to the appointment of judges of the higher judiciary. The Constitution Amendment Bill does not define who the members of the JAC are but leaves this for Parliament to determine in an ordinary Statute. This accompanying Bill, known as the JAC Bill 2013, provides that JAC will comprise six members, i.e. the Chief Justice of India, two most senior judges of the Supreme Court, the Law Minister and “two eminent persons.” The two eminent persons are supposed to be appointed by a collegium comprising the Prime Minister, the leader of the Opposition in the Lok Sabha and the Chief Justice of India. However, before the Constitution Amendment Bill was passed by the Rajya Sabha, the BJP staged a walkout since the demand for the Bill being referred to the Standing Committee was not conceded. The Standing Committee Report was only on the JAC Bill and not the Constitution Amendment Bill. The report recommended that the structure, functions or the composition of the JAC should be reflected in the Constitution itself and not in ordinary legislation so that the composition of JAC cannot be altered without a constitutional amendment. As the Bill stands today, the composition of JAC is in the hands of Parliament. To change the composition of JAC, a Parliamentary Statute is enough which is more flexible than an amendment of the Constitution.
Mr. Ram Jethmalani, a member of the Standing Committee, also argued that the composition of JAC by an ordinary legislation would give scope for substitution with a Judicial Commission which will consist of only the Law Minister. However, to implement this recommendation of the Standing Committee on the JAC Bill, it may require an amendment to the Constitution (One Hundred and Twentieth Amendment) Bill 2013.
For a representational judiciary
Thus, even though at the instance of the UPA government led by the Congress Party, the Constitution (One Hundred and Twentieth Amendment) Bill 2013 was passed by the Rajya Sabha, in order to become law, the said amendment has to be passed by the 16th Lok Sabha by a majority of the total membership of the House and also by a majority of not less than two-thirds of the members of the Lok Sabha present in voting. It also requires ratification by the legislature of not less than one half of the States in India.
It is therefore a million dollar question as to whether the Constitution (One Hundred and Twentieth Amendment) Bill 2013 would become law after the 16th Lok Sabha is constituted subsequent to the general election as the subject of appointing judges through a Judicial Commission requires more consultation and consensus-building over the mechanism proposed in the Bill.
The U.K. example
It is in this context and also in view of the recent decision of the collegium of the Supreme Court withdrawing the 12 names recommended for Judgeship at the Madras High Court based on “unprecedented opposition” that the 16th Lok Sabha as well as the new Union Government accord the highest priority to the proposal for the setting up of a National Judicial Commission and decide whether the composition of JAC be reflected in the Constitution itself. Suitable measures to make the judiciary representative of the diversity of our society with respect to gender, region, religion and caste may have to be initiated. Public interest demands a quick decision in this regard. They may also consider putting into practice, the procedure whereby members of the Bar who are eligible for being appointed as a Judge of the High Court apply for Judgeship through a “Public Notification.” Such a practice is in vogue in the United Kingdom.
In the U.K., the candidates for Judicial Office in courts up to and including High Court level, Tribunals in England and Wales are selected by JAC. The JAC is an executive non-departmental public body sponsored by the Ministry of Justice. Membership is drawn from the judiciary, the legal profession, non-legally qualified judicial office-holders and the public. (JAC does not select judges to the U.K. Supreme Court. The U.K. Supreme Court was established on October 1, 2009 and assumed the formal judicial functions of the House of Lords which were removed by the Constitutional Reform Act 2005. Judges of the Supreme Court of U.K. are appointed by the Queen by the issue of Letters Patent on the advice of the Prime Minister to whom a name is recommended by a Special Selection Commission. The Prime Minister is required by the Constitutional Reform Act, 2005 to recommend this name to the Queen and not permitted to nominate anyone else.) The Selection by JAC for High Courts, Tribunals is based on merit through fair and open competition from among the widest range of eligible candidates possible. The appointment process is not only clearer but more accountable. The selection process starts when JAC receives a vacancy request from Her Majesty’s Courts and Tribunals Service or the Ministry of Justice. Thereafter, it advertises all selection exercises on its website and in the email newsletter. JAC also tailors the application form for each selection exercise and prepares an information pack and the applications are submitted to JAC electronically. Thereafter, the process of shortlisting commences. Candidates are required to identify referees they know personally and professionally. Shortlisted candidates are invited for a selection day for a panel interview, role play interview and presentation, etc. (Role play usually simulates a court or tribunal environment. Candidates are asked to take on the role of judge and respond to a simulated situation.) The technique of situational questioning is also adopted which involves questions concerning a hypothetical situation based on challenging, real-life, job-related occurrences and asks the candidate how they would handle the problem. JAC also carries out consultation as part of each selection exercise as required by the Constitutional Reform Act 2005. For High Court selection, the Lord Chief Justice and one other person are consulted. Financial, criminal and professional background checks are carried out. After this exercise, the Commissioners make the final decision on which candidates to recommend to the appropriate authority (Lord Chancellor, Lord Chief Justice or Senior President of Tribunals) for appointment. Thus, the process of appointment of judicial officers in the U.K. is clear, open, fair and accountable.
However, in the present system of appointments to High Court Judges in India, unless the Chief Justice of the High Court concerned or any other senior judge of the High Court recommends the name of a particular practising lawyer, there is no way to get included in the list of prospective candidates.
This system is perceived to be discriminatory because it is inherently impossible for the collegium judges to personally know everything about all the eligible practising members of the Bar. Thus, the procedure of selection by inviting applications through notifications which is followed in the U.K. may well be adopted in India also so that transparency in the appointment of High Court Judges is achieved, eliminating the charge of discrimination.
Salutary judgment
By recognising the transgender community as a third gender entitled to the same rights and constitutional protection as all other citizens, the Supreme Court has put in place a sound basis to end discrimination based on gender, especially gender as presumed to be assigned to individuals at birth. Further, beyond prohibiting discrimination and harassment, the Court has extended global principles of dignity, freedom and autonomy to this unfairly marginalised and vulnerable community. The verdict lays down a comprehensive framework that takes into its fold not merely the negative right against discrimination, but also “the positive right to make decisions about their lives, to express themselves and to choose which activities to take part in.” In particular, its direction that they should be treated as ‘socially and educationally backward’ and given reservation in education and employment, is a far-reaching contribution to their all-round development. The jurisprudential basis for the judgment is that sex identity cannot be based on a mere biological test but must take into account the individual’s psyche. The Court has noted that Indian law treats gender as a binary male/female concept, with sections of the Indian Penal Code and Acts related to marriage, adoption, divorce, succession, and even welfare legislation, being examples. The Court has also relied on the Yogyakarta Principles — norms on sexual orientation and gender identity evolved in 2006 at Yogyakarta in Indonesia — to bolster its reasoning.
The separate, but concurring, opinions of Justice K.S. Radhakrishnan and Justice A.K. Sikri contain some subtle criticism of the Supreme Court’s earlier ruling in Suresh Kumar Koushal upholding Section 377 of IPC that criminalises even consensual same-sex activity.
While conscious that they cannot depart from the ruling of a Division Bench, both Judges have highlighted the fact that misuse of Section 377 is one of the principal forms of discrimination against the transgender community. By noting that Section 377, despite being linked to some sexual acts, also highlights certain identities, Mr. Justice Radhakrishnan sees a link between gender identity and sexual orientation, something that theKoushal formulation missed when it concluded that the provision criminalised the act and not any identity or orientation. The sentence that transgenders “even though insignificant in numbers… have every right to enjoy their human rights” is a fitting rebuttal to the claim in Koushal that because the LGBT community is a minuscule minority, it could not be held that the Section is invalid. Constitutional protection ought to be made available to a particular group regardless of its size. The verdict on the transgender community now provides one more reason why Section 377 ought to be amended to de-criminalise gay sex.
While conscious that they cannot depart from the ruling of a Division Bench, both Judges have highlighted the fact that misuse of Section 377 is one of the principal forms of discrimination against the transgender community. By noting that Section 377, despite being linked to some sexual acts, also highlights certain identities, Mr. Justice Radhakrishnan sees a link between gender identity and sexual orientation, something that theKoushal formulation missed when it concluded that the provision criminalised the act and not any identity or orientation. The sentence that transgenders “even though insignificant in numbers… have every right to enjoy their human rights” is a fitting rebuttal to the claim in Koushal that because the LGBT community is a minuscule minority, it could not be held that the Section is invalid. Constitutional protection ought to be made available to a particular group regardless of its size. The verdict on the transgender community now provides one more reason why Section 377 ought to be amended to de-criminalise gay sex.
Collegium system best, says CJI
Chief Justice of India P. Sathasivam has justified the collegium system of appointment of judges to the High Courts and the Supreme Court, and said the procedure can be improved in consultation with more judges.
In an interview to The Hindu , he rejected criticism that the procedure lacked transparency.
Justice Sathasivam said the collegium system was preferable to the proposed National Judicial Commission (NJC) as both the States and the Centre got an opportunity to express their views about the candidates.
He agreed that there had been judicial overreach by the Supreme Court in certain instances, which should be avoided. He said the legislature, the judiciary and the executive must be aware of their boundaries and limitations.
Child born out of live-in relationship not illegitimate: SC
The Supreme Court has clarified that children born out of a live-in relationship, where the couple have lived together for a long time as husband and wife, could not be called illegitimate.
A bench of justices B.S. Chauhan and J. Chelameshwar gave the clarification while hearing a plea filed by an advocate challenging Madras High Court’s observations on live-in relationships.
The apex court, however, disposed of the special leave petition, saying it did not deem it necessary to consider the case further. “We are of the view that such observations had been made in the facts of that case. In fact, what the learned judge [of the High Court] wanted to say was that if a man and woman are living together for a long time as husband and wife, though never married, there would be a presumption of marriage and their children could not be called illegitimate.
“Such a view stands fully fortified by a very large number of judgements,” the bench said, referring to its 2010 verdict in the Madan Mohan Singh and others versus Rajni Kant case. — PTI
Where should the judiciary draw the line?
“ Instead of re-ploughing the well-worked terrain which ranges justiciability against non-justiciability, the real challenge is to formulate a democratically justifiable role for the courts. ”
While justifying this statement of hers, Professor Sandra Fredman elucidates the “remarkable way” in which the Indian judiciary has succeeded in the above endeavour. It is the same Indian judiciary which has come under the media scanner over the past few months — interventions/ decisions in the imprisoning of Subrata Roy in the SEBI-Sahara dispute; the IPL betting case; the challenge to Section 377 of the IPC; and the most recent dicta on the status of transgenders have evoked a mixed response. What the critics of judicial intervention have, however, missed is the fact that in each of these cases, judicial intervention would have been unnecessary but for legislative/ executive inaction and inefficiency — PRS Legislative Research’s data reveals that 51 per cent and 42 per cent of the available time in the Budget and Monsoon Sessions for the year 2013 was wasted due to disruptions. The object of this piece is not to go into the merits of each of the above decisions but to put forward an argument in favour of judicial activism and to analyse where the Court has to draw its Lakshman rekha keeping in view the main aim of judicial activism.
After playing a largely “interpretative” role in the 1950s and 1960s, the Supreme Court, starting from the 1970s has been the major force standing up against legislative and executive excesses and inactions. Starting from inventing the ‘basic structure’ doctrine to bring constitutional amendments under the judicial scanner to widening the scope of the right to life and liberty, the 1970s and 1980s saw the judiciary play a highly proactive role in ensuring that India develops into a thriving democracy.
The decision in Maneka Gandhi v. Union of India , where it was held a person could be deprived of his right to life only by a law which was just, fair and reasonable; and in Bandhua Mukhti Morcha v. Union of India , where the concept of Public Interest Litigation (PIL) was introduced and the locus standirequirement was diluted, were key game changers which ensured that India did not slide down the slippery slope towards dictatorship.
Intervention, not overreach
The most common argument against excessive judicial intervention is Professor Waldron’s who argues that empowering judges to decide on policy issues amounts to disrespecting the democratically elected representatives.
The logical extension of this argument is that judicial activism results in upsetting the balance of power between the executive, legislature and the judiciary.
However, such an argument firstly assumes that the legislature and executive are performing their functions efficiently and secondly that the judiciary is incapable of intervening in a manner which helps further the ideals of democracy.
The assumption that the Parliament and executive make policy decisions based on effective participation with the citizens a flawed one and the judiciary has a role in ensuring that there is effective participation from interest groups. Further, Professor Waldron’s argument assumes that judicial intervention means that judges have the final say on the policy issue. The judges can, however, promote decision making relating to policy issues without being the ultimate decision maker.
The Indian model of activism has formed the bedrock of South African jurisprudence. However, there are certain landmark South African decisions which can be used as a guide as to where Courts must draw the Lakshman rekha .
The best example is the Rand Properties case which involved a challenge to the state’s eviction of inmates of dilapidated buildings in central Johannesburg.
Since right to housing was a fundamental right which the state had failed to provide, the judiciary directed the state and the inmates to “engage with each other meaningfully … and in the light of the values of the Constitution, the constitutional and statutory duties of the municipality and the duties of citizens concerned” to resolve the dispute.
The judiciary, by its interventions, ensured that these deliberations were on a level playing field as the final result of the deliberations was susceptible to scrutiny by the Court.
In this manner, while it ensured that executive inaction was not pardoned, the final decision itself was left to the executive but subject to judicial superintendence.
Another example of an innovative pro-democratic intervention is the case of Minister of Health v. Treatment Action Campaign , where the government was given directions to review its policy regarding distribution of antiretroviral drugs and plan an effective and comprehensive national programme to prevent Mother To Child Transmission (MTCT) of HIV.
Restrictive interference
These cases clearly illustrate that it is possible for courts to monitor actions of the other limbs of democracy without actually stepping into their shoes. These precedents get theoretical support from the writings of Professor Roach who argues that the judiciary should not create policies to enforce rights but must require the government to draft its own policy and submit it along with a timetable for execution. The finalisation of this plan must be only after the judiciary has heard objections from other interested parties.
Once such a policy is framed by a legislature/ executive, it is to be interfered with by the judiciary in a very restrictive manner, using the principle of deference. According to this principle, the judiciary, while evaluating executive/ legislative action (or inaction), should modify the policy framed only when the reasons provided are not reasonable.
A court should merely see whether the reasons provided by the executive justify its decision, not whether the court would have reached the same decision. This standard should be applied not only when a policy is tested before the courts but also by courts to see if inaction is justified.
While there is the danger of judicial activism being misused by unscrupulous elements and the Supreme Court has come down heavily on such misuse, the solution is not to throw away the baby with the bathwater.
The mere risk of judicial over-activism cannot be an argument against judicial activism. Judicial activism, keeping in view the ideals of democracy, is, in fact, necessary to ensure that unheard voices are not buried by more influential and vocal voices. Indeed, on most occasions, timely interventions of the judiciary in India — the home of judicial activism — has helped democracy flourish in our country despite repeated failures of the other organs.
Choosing the Chief Justice
Mohan Kumaramangalam is perhaps most infamously remembered for his strident advocacy of a method of appointment of the Chief Justice of India that would take into account a candidate’s social and constitutional philosophy as assessed by the government rather than seniority alone. Pejoratively viewed as seeking a “committed judiciary,” his justification was widely seen as an attempt to vindicate the supersession of Justices Shelat, Hegde and Grover in favour of Justice Ray as Chief Justice of India. Undoubtedly, Kumaramangalam’s motives were sinister given that Indira Gandhi’s government, in which he was a Minister, had been continuously thwarted by a powerfully counter-majoritarian Court. But in dismissing his suggestions based on his motives, a genuine conversation on a rigid adherence to the seniority convention in the appointment of the Chief Justice of India was foreclosed.
Fortunately, a recent difference of opinion between the former Chief Justice of India, Justice P. Sathasivam and the incumbent, Justice R.M. Lodha, provides a long overdue opportunity to restart this conversation. In an interview given after he took office as Chief Justice of India, Justice Lodha said he believed that the Chief Justice of India should not have a fixed tenure in office. If there was fixed tenure, he said, “the legitimate expectations of other judges would be taken away.” This was a distinctly contrarian view to the one expressed by his predecessor Justice Sathasivam, who had said before demitting office that the Chief Justice of India should “most certainly” have a fixed tenure. Giving his own example, he said that the lack of a fixed tenure meant that “there were many things that I [he] wanted to do but couldn’t do due to short tenure.” To be fair to Justice Lodha, had he agreed with Justice Sathasivam, his concurrence might have been perceived as self-serving, given that his term as Chief Justice of India is for five months. The difference of opinion however points to a deeper enquiry — how the Supreme Court of India grapples with tradition and the need for objectivity in a rapidly modernising and rampantly corrupt nation.
The issue of having a fixed tenure for the Chief Justice of India arises owing to the short tenures that Chief Justices have on average. In the last 20 years, there have been 16 Chief Justices of India. Out of them, only four have had tenures of more than two years. On the other hand, eight have served for less than a year with one having served for less than a month. The limited length of such tenures, in turn, is directly attributable to the rigid adherence to the seniority convention, by which, at the time a vacancy in the Chief Justice’s post arises, the senior-most judge in the Supreme Court is appointed irrespective of the length of tenure remaining before his retirement. Thus, if there were no seniority convention, the question of proposing a fixed tenure would not arise as length of tenure would be one of the factors considered for appointment.
Now, it can be nobody’s case that such a quick turnover of Chief Justices is healthy for the Supreme Court — it is well accepted that excessively frequent transitions lead to systemic inefficiencies, increase incoherence in strategies to deal with ongoing problems and hinder the stability of leadership that a large and widely respected institution requires. The reasons for persistence with such a convention are primarily twofold — the legitimate expectations of future Chief Justices to hold such offices would be taken away in the absence of its strict application, a point Justice Lodha makes, and any other method would be subjective with considerable potential for the independence of the judiciary being adversely affected, as Kumaramangalam’s proposal was seen as doing.
No legitimate expectations
The argument that fixed tenure, which modifies the seniority convention as it applies today, upsets legitimate expectations of future Chief Justices, is curious since no judge of the Supreme Court can have a “legitimate expectation” to be Chief Justice of India. In law, as Justice Lodha himself held in a recent judgment, “The protection of legitimate expectation does not require the fulfillment of the expectation where an overriding public interest requires otherwise. In other words, personal benefit must give way to public interest and the doctrine of legitimate expectation would not be invoked which could block public interest for private benefit” — ( Monnet Ispat and Energy Ltd. v. Union of India And Ors. , (2012)11SCC1). The overriding public interest in this case lies in the need for stable leadership of the Indian judiciary and its attendant public benefits; on the contrary, future judges becoming Chief Justice is on the other hand a matter of great personal honour and no more. In these circumstances, it is trite that the public interest ought to prevail. At most, propriety might require this change to be introduced prospectively after the current crop of puisne judges slated to become Chief Justice of India on the basis of the seniority convention retire. However this is simply an act of courtesy; “legitimate expectations” of Chief Justiceship that individual judges may harbour cannot provide a principled ground against fixed tenure and modified application of the seniority convention.
Revisiting tradition
But the issue of fixed tenure is a fig leaf — the core issue is whether to repudiate the seniority convention itself. Seniority in the appointment of the Chief Justice of India is at the confluence of two powerful forces shaping the functioning of the Indian judiciary today — tradition and the insistence on objective criteria. A strict adherence to tradition has served the Supreme Court well in many respects. But the seniority convention represents a facet of tradition that is patently antiquated. At a time when age functions as a de facto criterion for appointment of judges to the Supreme Court, with no judge since 1979 having been appointed before the age of 55, a high rate of turnover of Chief Justices is inevitable. To stick to seniority despite this can only be explained by the objectivity that seniority is perceived to lend, thereby obviating threats to judicial independence.
The significance attached to such objectivity is overstated for two reasons. First, seniority is determined not simply by age, but rather by the date of appointment to the Supreme Court. The process of appointment by a collegium led by the Chief Justice of India is opaque, functioning without any transparency or accountability for decisions taken. Certain appointments have raised wide speculation in legal circles for their timing with cases of unexplained expedition or delay, regarding which neither can information be sought nor review requested. It is thus within the realm of possibility that the objectivity that the seniority convention engenders is often founded on a ruse.
Second, it is a peculiar consequence of the accountability discourse that is sweeping India currently in response to rampant corruption in public life, that a premium has been placed on objective criteria in decision-making. Independent commissions are regularly demanded since they are expected to decide more objectively than ministries; major political disputes of the day end up in a court of law which promises more objective resolution; routine decisions by government officers are questioned since the criteria required the officer to be subjectively satisfied. Objectivity today has become a byword for fairness and more worryingly, any decision not on objective criteria often automatically leads to claims of corruption or hanky-panky. This disincentivises good decision-making and creates perverse results, worse than the malaise it set out to cure.
Competence, not seniority
Doing away with the seniority convention in the appointment of the Chief Justice of India provides an ideal opportunity to reverse this trend. With the Judicial Appointments Commission (JAC) on the anvil, the power to appoint judges is being vested in a high-powered bipartisan institution. It is true that further reforms to the Bills seeking to establish the commission are necessary. However in principle, a carefully constituted commission is a body which should be empowered to select the person, who in its opinion is the most competent to deal with the administrative, judicial and leadership tasks expected of a Chief Justice of India. This, as the seminal 14th Report of the Law Commission of India chaired by Motilal Setalvad indicated, “would be no reflection on the senior-most puisne judge since the considerations which must [therefore] prevail in making the selection to this office must be basically different from those that would govern the appointment of other judges of the Supreme Court.”
It is a shame that both Justices Sathasivam and Lodha, apart from numerous Chief Justices that India has had for extremely short durations, could not serve for longer; or several others seen widely as deserving of the office never served at all. The proposed establishment of the JAC provides an opportunity to prevent such unfortunate incidents from recurring by dispensing with the seniority convention, a tradition that has outlived its time. It would demonstrate that as a mature polity, India is prepared to trust decisions taken by accountable public authorities following well-established and transparent processes. And with it hopefully bury the ghost of Kumaramangalam and the rhetoric of the present accountability discourse that equates all subjectivity with nefariousness.
LEGALLY SPEAKING - What makes a lawyer suitable to become a judge
Dhananjay Mahapatra
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TNN
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In 2007, the SC had quoted an ex-chief justice of the US Supreme Court, John Marshal. He had said the judiciary's power lies not in deciding cases nor in imposing sentences nor in punishing for contempt, but in the trust, confidence & faith of the common man
What is that `X-factor' in a lawyer which tilts the scale for his appointment as a judge in the Supreme Court and high courts?
Under the Constitution, a person can be considered for being made a judge of the Supreme Court if he has been a high court judge for five years or practised as an advocate in the higher judiciary for 10 years, or in the opinion of the President is a “distinguished jurist“.Appointments by both, earlier by the executive and from 1998 by the collegium headed by the Chief Justice of India, have been criticized in the past. Seldom has it sparked a public debate, except when it proposed to elevate Justice P D Dinakaran to the SC in 2010.
In India, eminence and success of lawyers go hand in hand. Eminent lawyers refuse to become judges, for that would entail huge loss of income. Whenever an eminent lawyer agrees to become a judge, the collegium feels it has netted a golden fish that would add sparkle to the judiciary .
Eminence of a lawyer and his suitability for judgeship are very different aspects. But when there is a dearth of eminent lawyers willing to take up judgeship, the line between eminence and suitability gets blurred.
In most countries, it is the government that appoints judges. In the UK, a person must have served as a judge of the HC for two years or had practised as an advocate for 15 years to be eligible for the Supreme Court judge's post. After a candidate is shortlisted, an elaborate consultation process with primacy to the judiciary follows. In Canada, judges to the Supreme Court are chosen by the federal government after wide consultation with the judiciary , the legal community and the public at large. Though these consultations happen in private, in 2006, the parliamentary committee for the first time convened a public meeting to question an appointee to the Supreme Court.
The American Constitution meticulously outlines qualifications for the House of Representatives, the Senate and the presidency . But it does not give any advice for judicial appointments except stressing “good behaviour“. Canada's Supreme Court had said judges were the pillars of the justice system and that the public had a right to demand “virtually irreproachable conduct from anyone performing a judicial function“.
There is a reason why world over, the stress is on the person's good behaviour and impeccability of con duct, whenever he enters the zone of consideration for appointment as a judge.
In India, the Supreme Court in the Second Judges case [Supreme Court Advocates on Record Association vs Union of India; 1993 Sup (2) SCR 659] had said the executive was an important constituent of the consultation process for appointment of judges to the SC and HCs.
It had said the suitability of a lawyer for the judge's post was generally known to the CJI and CJs of HCs. However, it had also conceded that there might be occasions when not all antecedents of an advocate are known to those part of the judge selection process.
“It is for this reason that the executive is also one of the consultees in the process of appointment. The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consul tees, before the appointment is made,“ it had said.
While expanding the collegium system for judges' appointment in its 1998 opinion given on a presidential reference, the apex court had said, “There may be a certain area relating to suitability of the candidate such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India.“
All this elaborate discussion was meant only to block pliable persons, either politically or otherwise, from becoming judges and exercising enormous power, including deciding life and death of individuals.
How else would the top court have ensured that litigants, in other words the public, retained their trust and faith in the fairness of its decisions? That is why “trustworthiness“ of both character and capability of a person has been assigned cardinal importance in selection of judges.
In a 2007 judgment (Rajesh Kumar Singh vs HC of Madhya Pradesh), the court had quoted a 19th century chief justice of the US Supreme Court, John Marshal, to sum it up. Marshal had warned that the power of the judiciary lies not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man.
We hope all appointments in future to the SC and HCs pass the Marshal test.
Under the Constitution, a person can be considered for being made a judge of the Supreme Court if he has been a high court judge for five years or practised as an advocate in the higher judiciary for 10 years, or in the opinion of the President is a “distinguished jurist“.Appointments by both, earlier by the executive and from 1998 by the collegium headed by the Chief Justice of India, have been criticized in the past. Seldom has it sparked a public debate, except when it proposed to elevate Justice P D Dinakaran to the SC in 2010.
In India, eminence and success of lawyers go hand in hand. Eminent lawyers refuse to become judges, for that would entail huge loss of income. Whenever an eminent lawyer agrees to become a judge, the collegium feels it has netted a golden fish that would add sparkle to the judiciary .
Eminence of a lawyer and his suitability for judgeship are very different aspects. But when there is a dearth of eminent lawyers willing to take up judgeship, the line between eminence and suitability gets blurred.
In most countries, it is the government that appoints judges. In the UK, a person must have served as a judge of the HC for two years or had practised as an advocate for 15 years to be eligible for the Supreme Court judge's post. After a candidate is shortlisted, an elaborate consultation process with primacy to the judiciary follows. In Canada, judges to the Supreme Court are chosen by the federal government after wide consultation with the judiciary , the legal community and the public at large. Though these consultations happen in private, in 2006, the parliamentary committee for the first time convened a public meeting to question an appointee to the Supreme Court.
The American Constitution meticulously outlines qualifications for the House of Representatives, the Senate and the presidency . But it does not give any advice for judicial appointments except stressing “good behaviour“. Canada's Supreme Court had said judges were the pillars of the justice system and that the public had a right to demand “virtually irreproachable conduct from anyone performing a judicial function“.
There is a reason why world over, the stress is on the person's good behaviour and impeccability of con duct, whenever he enters the zone of consideration for appointment as a judge.
In India, the Supreme Court in the Second Judges case [Supreme Court Advocates on Record Association vs Union of India; 1993 Sup (2) SCR 659] had said the executive was an important constituent of the consultation process for appointment of judges to the SC and HCs.
It had said the suitability of a lawyer for the judge's post was generally known to the CJI and CJs of HCs. However, it had also conceded that there might be occasions when not all antecedents of an advocate are known to those part of the judge selection process.
“It is for this reason that the executive is also one of the consultees in the process of appointment. The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consul tees, before the appointment is made,“ it had said.
While expanding the collegium system for judges' appointment in its 1998 opinion given on a presidential reference, the apex court had said, “There may be a certain area relating to suitability of the candidate such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India.“
All this elaborate discussion was meant only to block pliable persons, either politically or otherwise, from becoming judges and exercising enormous power, including deciding life and death of individuals.
How else would the top court have ensured that litigants, in other words the public, retained their trust and faith in the fairness of its decisions? That is why “trustworthiness“ of both character and capability of a person has been assigned cardinal importance in selection of judges.
In a 2007 judgment (Rajesh Kumar Singh vs HC of Madhya Pradesh), the court had quoted a 19th century chief justice of the US Supreme Court, John Marshal, to sum it up. Marshal had warned that the power of the judiciary lies not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man.
We hope all appointments in future to the SC and HCs pass the Marshal test.
How Healthy is Indian Judicial System?
Thanks to Anna Hazare’s crusade against corruption, the phrases such as “judicial reforms” and “judicial accountability” have also become buzz words among the common masses of the country. Recent corruption cases such as the 2G scam, the CWG scam, the cash-for-vote scam, Adarsh Society Scam, etc have not only focused the spotlight on the conduct of politicians and public dignitaries but also on the shortcomings in the Indian judiciary’s functioning.
Legal experts, social activists, business magnates, and all those who have ever come in direct contact with Indian judiciary have always been unequivocal on the need for a clearly defined legal and regulatory framework and efficient disposal of cases. Clearly the legal apparatus and infrastructure have failed to keep pace with the rising population, changing societal structure, increasing number of laws, and increasing technological activities.
While rapid advancements in information and communication technologies have drastically changed the lifestyles of people, yet the judiciary appears rather cut off from the current ground realities. No surprise if the prevailing system of administration of justice appear totally out of place and out of time. It is still ridden with old fashioned form, procedure, and technicalities that please no one, except perhaps the vested interests who take comfort in the status quo. A section of politicians and judges are certainly in this group who find a dysfunctional judiciary very cozy.
There is no doubt that the judiciary is in dire need of speedy and effective reforms: ranging from appointing of judges, to instituting a transparent and non-partisan structure of inquiry free from legislative and judicial interference, to punishing corrupt judges.
Corruption in judiciary as rampant as elsewhere
The judicial system is no less corrupt than any other institution of the government; it is well known to those who have had to deal with it. Its extent appears less because there are no in-house system of accountability – whatever mechanisms exist, they are ineffective. The media is also unwilling to talk about it because of the fear of contempt.
The Supreme Court has also compounded the matter by removing judges even from the ambit of criminal investigation. Thus one cannot even register an FIR against a judge taking bribes without the prior permission of the Chief Justice of India. Thus, the judiciary has become highly self protective and taken the form of a closed and opaque box.
Removal of judges difficult
One thing is very clear about our Legal system – it lacks in-house self correcting mechanisms. Why? Because judges can’t judge their own brothers objectively and in the unlikely event of any judge being found guilty, the cumbersome parliamentary impeachment procedure almost assures that they are never removed.
In the last three years, there have been many incidents of the judiciary misusing its official position for personal gain. These allegations have created concern amongst those who believe only a strong judiciary can protect our democracy and human rights. Currently, the only punishment is removal from office, a cumbersome and impractical process. Since it is rarely necessary to remove a judge, many feel that a minor penalty is often deemed enough.
The very recent impeachment proceeding of Calcutta high court judge Soumitra Sen (found guilty on charges of misappropriation of money and misrepresentation of facts) has highlighted the need for an honest debate on judicial reforms. He is the only judge to have been ever impeached by any house of the parliament. His impeachment motion was passed by the Rajya Sabha but he resigned before the Lok Sabha took up the motion – and escaped removal through impeachment. In early nineties, Supreme Court judge V Ramaswami had faced similar proceedings in Parliament. But the Congress bailed him out by abstaining from supporting the impeachment motion.
Sen is just one among many tainted Supreme Court and high court judges, who have contributed to the steady erosion of credibility and faith in the judiciary. There are other names that sometimes find mention in the media. The reasons are very clear: the system of judge’s appointment is self serving and their removal process is highly cumbersome.
Why can’t a joint parliamentary committee perform the ritual of removing a judge?
Rising pile of pending cases
The backlog of millions of cases in all categories of courts is the most damning evidence of the inadequacy of the legal apparatus. However, it is only a symptom and the remedy must go to address the root causes.
Raising number of judges, setting up more courts, and simplifying procedures are always discussed religiously but when it comes to implementation – it is always too late and too inadequate. The victims are the ordinary or poor people when they have to deal with courts which are mostly foreign lands for them. The rich, of course, can buy expensive lawyers and manipulate things in their favor in the procedural quagmire of Indian judicial system.
International investors and corporations take this as one of the big hurdles of doing business inIndia. Indian businessmen resort to all means other than courts for settlement of disputes. Courts are considered only as a last resort or as an means to harass the opposite party.
Undertrials and their hardships
The majority of undertrials spend more time in jail during trials than the maximum sentence that can be imposed upon them. Even if they don’t, the expenditure and agony of defending themselves during this long ordeal in courts is more painful than serving the sentence that could be imposed.
This agony of undertrials in the judicial system provides an easy way for the police and powerful people, who can have the police at their side, to harass, intimidate and silence inconvenient persons – particularly the political activists.
Alienation of the Poor
The alienation of the common man inIndiawith the judicial system leads to his feeling that the court-room is an alien-land where procedures and technicalities, rather than truth and morality, rule. It is difficult for an ordinary man to get past the complicated procedures or the middleman exploiting their ignorance to make money.
No connection with society
Judiciary is an integral part of the society and its interaction with the local populace is healthy thing. In fact, its linkages with the society must be strengthened and nurtured. In many countries the system of jury ensures the involvement of common citizens in judicial decision-making.
But things are different in India. The Indian judiciary still is as an extension of the colonial regime. The British set up the system as a symbol of imperial power and the court procedures were meant to make the natives servile. The historic aloofness should have changed in last six decades, but the judicial officers have failed to come closer to the ground to meet the common man.
No interaction with academia
In almost all democratic countries ofEuropethere has been a long tradition of interaction of the judiciary with the academic brains. That serves to provide feedback and guidance to both. In fact, universities offer fertile ground to cultivate and grow fresh ideas and have the potential to act as think tanks.
Situation inIndiais quite the reverse: Our nose-in-the-air legal presiding officers would still rather study the judgments of British Courts than develop a working relationship with Indian academic community. Their high handed ancient attitude has failed to evolve any meaningful relationship between the judiciary and the academic community; it has weakened both these important institutions in India.
The pathetic state of the legal education can be seen everywhere. Getting into a law curriculum is still the last option for students; after all other gates are closed. It is not unusual to meet qualified practicing lawyers who cannot even draft an application. They have to count on the typists sitting in the court premises to draft all documents for them. And a couple of years staying in the system gives them enough “experience” that enables them to rise to become senior advocates or even judges. No wonder they have to maintain their aloofness from the outside world!
Disconnected from the ordinary people as well as universities where law graduates are prepared, our legal system perhaps wants to preserve itself like potatoes in the cold storage!
Why should judges appoint judges?
Indian Constitution makes Indian judiciary sort of a self-regulatory body. The Supreme Court and High Courts exercise powers of superintendence and also lay the procedures for conduct of business in the courts. The powers of the Supreme Court are almost unlimited. Article 141 of the Constitution has given Supreme Court powers to act even as a legislative body.
With its “creative interpretations” of the Constitution the judiciary has placed itself above all and gone beyond the reach of politicians. This has disturbed the fine balance between the executive, legislature and the judiciary.
As things stand, the judiciary has used its power only to insulate itself both from criticisms and accountability. It has failed to evolve any internal system of intellectual growth of its Honorable members. Although some of the finest brains can be found in the legal fraternity, there is no systematic mechanism to either attract high quality talent to the legal profession or to nurture the legal profession inIndia. Its distance from the academia only compounds the problem further.
Repeatedly voices have been raised from various quarters that the appointment of judges should be vested with an independent authority that has representation not only from judiciary but also from other segments of the society. Let us see when and how this serious distortion is remedied.
Power of contempt
On top of all this immunity to the judiciary is the power of contempt of Court, which has become potent weapon to stifle public criticism or even honest evaluation of the judiciary. While deterring people from making unwarranted attacks on judiciary, the Contempt of Courts Act, 1971, has also stifled debate. That’s why judiciary’s conduct is hardly discussed or debated in the media.
And now the judiciary is even seeking to remove itself from the purview of the Right to Information Act. After having loudly pronounced that the citizens have a right to know everything that goes on in every public institution, the Supreme Court asks the government to effectively exempt it from the purview of the Act by removing the jurisdiction of the Central Information Commission over the Registrar of the Court! What an interesting comedy!!
Many High Courts have still not appointed public information officers required by the Act. The Delhi High Court has framed rules which prohibit the release of non judicial information about the court, such as purchases and appointments. All this has ensured that the judiciary becomes a law unto itself, totally non transparent, and accountable to none.
Government and judiciary not serious about judicial reforms
Successive law commissions appear to have devoted considerable time in analyzing the reasons behind the lethargy of the system, rather than showing seriousness about making it easily accessible to the poor or on the issue of judicial accountability – both very crucial. Law commissions have been largely manned by retired judges who have displayed little creativity or fresh problem solving thinking in their reports. Their patchwork solutions have only diverted attention from the root causes that need radical restructuring of the judiciary.
Moreover, neither government nor judiciary has shown seriousness towards what the law commissions’ recommend. It appears that both are content with the present out-of-date and unaccountable judicial system. For good reason too: the judges are happy with the lack of accountability and the government is happy with an institution that can’t hold it accountable for its actions in any meaningful way.
Remedy: An independent permanent judicial commission empowered with appointments, investigation of improper conducts, prosecution, and removal of erring judges.
Pending Cases and Undertrials
At the end of 2011, around 3.2 crore cases were pending in high courts and subordinate courts across the country while 56,383 cases were pending in the Supreme Court. Of the total of 3.2 crore cases 74% cases were less than five years old. Likewise, 20,334 out of the 56,383 pending cases in the apex court were less than one year old. About 40 lakh cases are pending in high courts and 2.65 crore cases in the subordinate courts.
The following website provides latest information on pending cases in the Supreme Court:
Undertrials
“When the under-trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated.” – The Supreme Court
In addition, about 2.5 lakh under-trials are languishing jails, of which over 2,000 are in jails for over five years. Undertrials also out-number convicted inmates. For instance, recent data indicates that over 70 percent inmates in Asia’a largest prison, Tihar in Delhi, are undertrials.
“73.5 percent (8,911 out of 12,124 which also include 410 women) inmates of Tihar Jail are undergoing trial, which is much above the national average of 66.4 percent undertrials in Indian jails.” – Director General (Prisons) – Tihar Jail, Neeraj Kumar
Some Facts and Figures
Here are some facts and figures showing the status of Indian legal system:
- Every year around 380 murders take place in Delhi. But the Sessions Courts are equipped to dispose of only 250 murder cases every year. This means a backlog of 130 cases. [There is no mechanism to worry about it, ironically.]
- In subordinate courts, a judge on an average disposes about 1300 cases every year.
- The average disposal of all Indian high courts is about 2400 cases per year. Compare it with the national average of disposal of cases per judge per year in major high courts: Kerala, 3,103;Madras, 2,979;Calcutta, 2,919;Punjab and Haryana, 2,900; Karnataka 2,817 and Andhra Pradesh, 2,625.
- On an average, the 21 high courts dispose off around 188 cases everyday.
- The Madras High Court is fastest in terms of speedy disposal: average 648 cases daily. It is followed by the Allahabad High Court (Lucknow and Kanpur benches put together) which disposes of 445 cases everyday.
Judicial Strength
There are roughly about 14,600 judges as against the sanctioned strength of about 17,600 (including 630 High Court Judges and 31 SC judges). In India there are 10.5 judges for every million people – compare it with Bangladesh 12 judges, Australia with 41. 6, Hungary with 70, Canada with 75.2, and the USA with 107 judges per million. Needless to say, there is plenty of scope for improvement in Indian judiciary.
Is the Contempt of Law Stifling Justice?
Fair and reasonable criticism of public institutions, including the judiciary, is a normal part of democratic process when people’s liberties are assured by the constitution. People have the right discuss conduct of all public functionaries. However, willful disobedience of the court in any manner that lowers the authority of the court or interferes with or obstructs administration of justice must be checked. It is expected that the laws would ensure this. But you have to be careful if you live inIndia, particularly if you are talking about conduct of judges. Reason: They have put themselves above all.
You give an interview to media and allege some judge of corruption; soon you and the media channel will get slapped with “contempt of court” charges. Yes, Tarun Tejpal, Managing Editor of Tehelka and Prashant Bhushan, Supreme Court lawyer can testify for the ground reality. The “Learned” and “Honorable” at the top of Indian judiciary expect the lesser mortals to stay within the sacred boundary of submissiveness and take their dictates like divine messages. Some years ago, Booker Prize Winner Arundhati Roy was sent to jail and fined for criticizing court’s verdict.
The Contempt Law
The Contempt of Courts Act, 1971 codifies the law that many feel often stifles free and honest expression. No one has any objection to provisions that recognize disobeying court orders, interfering with judicial proceedings, or obstructing the administration of justice as contempt of court and they are easy to understand. The problem originates from the additional provision – scandalizing or lowering the authority of the court – that leaves considerable room for discretion. The Act of 1971 does not clarify what is meant by scandalizing the court.
There are two types of contempt of court: Civil and Criminal.It can be direct (if performed in front of the judge) or indirect. Contempt of court in any form is taken very seriously in India.
1. Civil Contempt of Court
This refers to an individual’s failure to obey a court order. The lawbreaker may purge it by adhering to the order. Suppose you show disrespect court rules and proceedings by speaking out rudely or irreverently during a trial proceeding. The judge may find that person in contempt of court if the latter does not sit down and be silent.
2. Criminal Contempt of Court
This is thwarting the activities of a court of law from being carried on smoothly. When a person does not provide proof when subpoenaed, or yells at the judge or threats member/s of jury or lawyer during a trial, the said person may be accused of contempt of court.
Courts certainly need power to ensure proper functioning and fair trial and see that no one tries to influence the witnesses and court officials. This is the objective of the contempt law. But the manner in which the law is generally practiced implies that this objective is lost and is replaced by the “grand idea” of protecting, sustaining, and enhancing the royal-ness of the courts and top legal hierarchy.
Why not “Contempt of Citizens!!”
An Activist in Gujrat raised this question: “The Indian judiciary enjoys absolute power because of the provision of contempt of court. But given the enormous delay in delivery of justice, why not provide a law that makes delays “contempt of citizens.”
Certainly a good question for the Indian government and the judiciary to think about.
“Truth” as Defense
But the law as it has emerged from judicial decisions doe not allow even truth to be a valid defense against the charge of contempt. Moreover, the courts have sought to make a distinction between criticism made by a former judge and law minister which may be permissible and criticism by other citizens which must be “checked.” This is anti-democratic and violates the freedom of expression, right to equality, and non-discrimination clauses.
In 2002, the National Commission to Review the Working of the Constitution (NCRWC) recommended that ‘truth’ be allowed as defense in matters of Contempt of Court. It certainly made sense in the Indian context, particularly because the emblems in High Courts prominently display the motto “Satyameva Jayate” and in the Supreme Court “Yatho dharma statho jaya.”
There is nothing earth-shaking in this recommendation because in countries like UK and Australia truth as defense against the charge of contempt by scandalizing had been available for several decades. In fact, other countries have advanced to far more tolerant regime. In UK, Courts rarely use this power; in the US, contempt is initiated only when there is ‘clear and present danger’ to the administration of justice.
The contempt law today
The recommendation, however, eventually resulted in an amendment in the contempt law in 2006. The government added a rider though, by putting the clause: “The Court may permit, in any proceedings for contempt of court, justification by truth as a valid defense if it is satisfied that it is in public interest and the request for invoking the said defense is bona fide.” Presence of the words “in public interest” put an additional burden on the person accused of contempt and virtually defeats the objective of the proposed legislation.
In the law as it now stands, while a person accused of contempt can seek his defense in “truth”, he must get the permission of court for this defense after satisfying it that this truth will be in public interest and that he is acting bona fide (ie, with reasonable care and caution).
Summary: Rather than counting on the phrases of the contempt law clauses, the interest of the general public and also judiciary will be better served if it develops tolerance for criticism of its actions and conduct. That will also connect it with the common man and strengthen democracy.
Judges list: Gopal Subramanium opts out
Unfortunate that the Supreme Court permitted this to happen”
Feeling “let down” by the government and the judiciary, senior advocate and former Solicitor-General Gopal Subramanium on Wednesday informed Chief Justice of India R.M. Lodha that he was withdrawing his consent for appointment as a Supreme Court judge.
Govt. should have taken collegium into confidence, says ex-CJI
The former Chief Justice of India, M.N. Venkatachaliah, on Wednesday criticised the government over the way it handled the former Solicitor-General, Gopal Subramanium’s case.
“The government unilaterally segregated the name of Mr. Subramanium and approved the other three. If the government had apprehensions about Mr. Subramanium, they should have first shared them with the [Supreme Court] collegium before de-linking his name and clearing the other three. The government should have told the collegium that these are our reasons and it is difficult to accept your recommendation. All this should have been done before de-linking Mr. Subramanium. This has become a mess,” Justice Venkatachaliah told The Hindu on the phone from Bangalore on Wednesday.
Govt. has not followed procedure: Subramanium
Senior advocate and former Solicitor-General Gopal Subramanium on Wednesday faulted the Centre for not following the Memorandum of Procedure in appointment of judges by segregating his name from the list of four names without the active consent of the Supreme Court collegium.
Talking to journalists, he said if the government had any reservation against any candidate, it should record its objections and return the entire file to the collegium and only with its consent that name/names could be segregated.
He said the former Chief Justice of India M.N. Venkatachaliah, who spoke to him, said the procedure followed by the government in segregating his name was incorrect as the entire file ought to have been returned to the collegium.
Stating that harmony between different organs of the state was desirable feature, Mr. Subramanium said the functionality of each organ was meant to have different, defining characteristics. “I am more than willing to step out, but I trust you and your colleagues will undertake suitable introspection. The court owes me, in the very least, a clear statement of confidence although my personal character is not dependent on the outcome of such willingness. It is an act of closure, which a Court of Justice owes to its own members. By failing to do it, the court will sink into quicksand,” he said.
The senior counsel said that over the fortnight a few media reports had voiced the Centre’s reservations over his appointment. He said the reports spoke of alleged adverse reports against him by the Intelligence Bureau and the CBI.
“I must say that these media reports are malicious insinuations based on half-truths, and appear to be a result of carefully planted leaks aimed at generating doubts in the minds of the collegium and of the public as to the suitability and propriety of appointing me as a judge of the Supreme Court. I am fully conscious that my independence as a lawyer is causing apprehensions that I will not toe the line of the government. This factor has been decisive in refusing to appoint me,” Mr. Subramanium said.
Mr. Subramanium said, “You [CJI Lodha] had informed me that you would discuss any queries pertaining to the above issues when you return to Delhi on June 28. I promised that I would wait till the 28th of June to meet with you and express my desire to withdraw. I told you that my wife and family are undergoing agony at what was a wholly unnecessary experience. I assumed that I would be treated on par with the other nominees for elevation. However, having regard to what has transpired in the matter of segregation of names, of which I was never informed, I will have to withdraw from my silence to await your return to Delhi on June 28.”
Mr. Subramanium said that in accordance with the highest traditions, when a lawyer was invited to the Bench but doesn’t get to become a judge, the person ceases to practice in that court, until the incumbent Chief Justice demits office. “I shall, therefore, be resuming work at the Supreme Court only thereafter,” he said.
No comment: Prasad
Meanwhile, Law Minister Ravi Shankar Prasad told journalists that he did not wish to comment on Mr. Subramanium’s letter to the CJI.
The validity of the collegium system
The collegium system is one where the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges. However, it has no place in the Constitution.
The system was evolved through Supreme Court judgments in the Three Judges Cases:
1.S.P. Gupta case (December 30, 1981) or the First Judges Case:
It declared that the “primacy” of the CJI’s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
2.Supreme Court Advocates on Record Association versus Union of India or the Second Judges Case(October 6, 1993):
The majority verdict gave back CJI’s power over judicial appointments and transfers. It says the CJI only need to consult two senior-most judges. “The role of the CJI is primal in nature because this being a topic within the judicial family, the Executive cannot have an equal say in the matter,” the verdict reasoned. However, confusion prevails as the CJIs start taking unilateral decisions without consulting two colleagues. The President is reduced to only an approver.
3.In Special Reference case of 1998 or the Three Judges Case (October 28, 1998): On a reference from former President K.R. Narayanan, the Supreme Court lays down that the CJIs should consult with a plurality of four senior-most Supreme Court judges to form his opinion on judicial appointments and transfers.
Govt. defends move against Subramanium after CJI rap
“Scope for segregation inherent in SC verdict”
The government has acted within the scope of the law while segregating Gopal Subramanium’s name from a list of four that a Supreme Court collegium had recommended for appointment as judges of the apex court.
The government had approved three names, but communicated its objection on Mr. Subramanium to the Supreme Court, after splitting the file sent by the collegium. A day after Chief Justice of India R.M. Lodha castigated the government for this action, calling it “casual” and “unilateral,” a Union Minister said that the scope for segregation was “inherent” in the 1993 Supreme Court judgment that established the mechanism of a collegium of seniormost apex court judges selecting judges. “The 1993 judgment allows the government to return to the SC any particular name recommended by it. Consequential upon this inherent right of the government was the segregation of the file into two — the first one with three names that the government had no objections to, and the second one with one name that was considered unsuitable for reasons I do not want to elaborate — which were sent to the President of India. The President approved the government action and one name was returned to the SC,” the source said. The source said the court could have insisted on the name had it wanted to, and as per the existing law, in that case the government would have had to accept it.
Justice Shah questions collegium system
Describing the collegium system as a “solution which has proved much worse than the disease,” Law Commission of India chairman Justice A.P. Shah questioned the “unusual system” of judges appointing judges.
In an exclusive interview to The Hindu , Justice Shah, however, said the collegium system itself “exemplifies the misalignment between the core values of judicial independence and judicial accountability.”
“The inception of the collegium system was well-intentioned. It did solve the problem of excessive executive interference. . He said the Judicial Appointments Commission was a step in the right direction to free judicial appointments from “inappropriate politicisation.”
SC bid to cut errors in awarding death
Dhananjay.Mahapatra @timesgroup.com
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New Delhi:
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To Narrow Down ‘Rarest Of Rare Cases’
The Supreme Court on Tuesday indicated that it would strive to further narrow down the rarest of rare cases in which courts award death penalty to murder convicts.Right now, the accused after getting death penalty from a trial court appeals against the conviction and punishment before the high court. If the HC upholds the punishment, then the condemned prisoner challenges it in the SC. If the SC rejects his appeal, then he has a chance to seek review of the judgment, which gets decided in the chambers by the same judges who scrutinize the judgment to find out whether there was some error in appreciating the evidence to arrive at the punishment of death penalty.
“Should the condemned prisoner’s review petition mandatorily not be heard in
open court” was the question before a five-judge bench comprising Chief Justice R M Lodha and Justices J S Khehar, J Chelameswar, A K Sikri and R F Nariman.Solicitor general Ranjit Kumar said the rules providing for deciding review petitions in chamber had worked well for the last 35 years and wherever necessary, that is when the court realizes there is a mistake in the judgment, it has always granted hearing in open court.
Leaning in favour of oral
hearing before reserving judgment, the bench said, “Ultimately , the balance sheet is drawn up by a human mind. If there is that 1% chance of error and it could be corrected through oral hearing on review petition, what is the harm? Overcrowding of litigation cannot be a reason for denying oral hearing to condemned prisoners because right to life is above all fundamental rights.“For the full report, log on to http://www.timesofindia.com
“Should the condemned prisoner’s review petition mandatorily not be heard in
open court” was the question before a five-judge bench comprising Chief Justice R M Lodha and Justices J S Khehar, J Chelameswar, A K Sikri and R F Nariman.Solicitor general Ranjit Kumar said the rules providing for deciding review petitions in chamber had worked well for the last 35 years and wherever necessary, that is when the court realizes there is a mistake in the judgment, it has always granted hearing in open court.
Leaning in favour of oral
hearing before reserving judgment, the bench said, “Ultimately , the balance sheet is drawn up by a human mind. If there is that 1% chance of error and it could be corrected through oral hearing on review petition, what is the harm? Overcrowding of litigation cannot be a reason for denying oral hearing to condemned prisoners because right to life is above all fundamental rights.“For the full report, log on to http://www.timesofindia.com
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