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Archives for : Chief Justice of India

Support pours for G N Saibaba , arrested DU professor beyond borders

Letter to the Chief Justice : Campaign Against Criminalising Communities (CAMPACC)

www.campacc.org.uk

saibaba-main

Your Honour,

We the undersigned would like to express our concern over the manner in which the government is increasingly resorting to the indiscriminate use of custody. In particular, the draconian Unlawful Activities Prevention Act 2008 (UAPA) is being abused indiscriminately to harass, intimidate and dissenting voices. This is part of the escalating effort to impede free speech and even thought, contrary to the Constitution of India as well as International principles of Human Rights. Such actions become pernicious in the context of the wide-ranging powers and impunity that have been available to the police and paramilitary forces under this Act. This is illustrated by the fact that the Ministry of Home Affairs (MHA) has reportedly issued instructions that persons and organizations who raise issues of human rights violations in Maoist areas must be targeted and arrested.

The recent abduction of Dr. G. N. Saibaba was particularly shocking. Dr. G N Saibaba, Asst. Professor with the Department of English, Ram Lal Anand College, Delhi University, was arrested by the Maharashtra Police on 9 May 2014 for his alleged links with Naxal leaders. He has been an active member of the Delhi University community, a very popular and respected teacher, and an important voice on democratic norms within and outside the university. He has been a vocal and important critic of the Indian state’s policies with regard to its paramilitary action in Central and Eastern tribal areas, commonly known as Operation Green Hunt. Along with other intellectuals, he has drawn attention to the blatant human rights violations of the Adivasi peoples of these regions. In particular, he has pointed out the enormous financial stakes in claiming the region for private industrial and commercial development at several national and international forums. Along with other intellectuals, he has criticized such models of “development” and their usefulness for the local populace in any participatory democracy. His sustained critique has earned him the ire of the powers that be. For some time now, they have been looking for a way to silence this very significant voice.

Dr. Saibaba is wheelchair bound, suffers from 90% disability and post-polio residual paralysis of both lower limbs. He poses no flight risk whatsoever. He is also a heart patient with blood pressure issues. Furthermore, he suffers from chronic and intense back pain as a result of the disability and being wheelchair bound. He has always cooperated fully with the investigation and did not need to be arrested. The National Human Rights Commission has already issued notice to the Maharashtra and Delhi police forces for violation of Dr. Saibaba’s rights in the course of the earlier investigation.

Saibaba is being kept in a highly unsanitary, solitary cell, in darkness and with inadequate facilities. The denial of medication has resulted in constant pain and deterioration of health. Moreover, he is experiencing great difficulty, pain and indignity while using the toilet since it is impossible for him to use the Indian style commode that is provided in his cell. Given his fragile medical condition, we are particularly concerned for Dr. Saibaba’s well-being, and are apprehensive that, given his fragile medical condition, he may collapse physically in police custody.

We also understand from news reports that the Chattisgarh Police has expressed a wish to interrogate him. We suspect that several such requests will come from the police of various states and remote corners that he has not even visited and where legal aid is very difficult to find, only to intensify the torture on him. The present Master Case will be vastly multiplied to tie up the life and resources of the family in litigation. Consequently, the family will become increasingly financially vulnerable.

Your Honour, we are deeply concerned about the methods being adopted now by the police to silence voices of dissent. There are thousands of political prisoners languishing. There is a dire need for a more compassionate criminal justice system that will encourage the participation of the people in proving their innocence. There is also an urgent need to level the playing field, which is at the moment hopelessly prejudiced against the individual. Such an intervention can come only from a Superior Court. We look to you for justice and for the judicial protection of all such critical voices. We further appeal to you to intervene in the increasing criminalisation of voices of dissent and critique.

On the matter of Saibaba in particular, given that he clearly poses no flight risk whatsoever, we ask you to initiate a judicial investigation of the matter and to issue an interim order immediately releasing him from judicial custody and back to his family.

Sincerely,

Les Levidow, Campaign Against Criminalising Communities (CAMPACC), UK
Estella Schmid, CAMPACC, UK
Saleh Mamon, CAMPACC, UK
Prof. Bill Bowring, Professor of Law, Birkbeck University School of Law, and President of the European Association of Lawyers for Democracy and Human Rights (ELDH), UK
Michael Goold, Barrister at Garden Court Chambers, Joint Secretary of the Haldane Society of Socialist Lawyers, UK
Melanie Gingell, barrister, Doughty Street Chambers, UK
Margaret Owen OBE, human rights lawyer, UK
Matt Foot Solicitor Birnberg Peirce and Partners, UK
Russell Fraser, barrister, secretary of Haldane Society of Socialist Lawyers, UK
Frances Webber, human rights lawyer, UK
Desmond Fernandes, author and genocide scholar, UK
David Morgan, historian and journalist, UK
Jonathan Bloch, author, UK
Dr. Andy Higginbottom, Associate Professor, PG Programme Co-ordinator, International Politics and Human Rights, UK
Sara Kellas, Solicitor, UK
Nick Hildyard, policy analyst, UK
Richard Haley, Chair, Scotland Against Criminalising Communities (SACC), UK

16 June 2014

 

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Protest letter to CJI- against comments made by Judge blaming women for acts of #VAW #Gender

Justice N. Kirubakaran, judge of the High Court of Madras while inaugurating a Fast Track Mahila Court is reported to have stated that men alone were not responsible for  against . According to a news report he commented that last year’s Delhi gang-rape victim had chosen the wrong time to travel .

Nirbhaya chose wrong time to travel: HC Judge

ChennaiAn alleged remark by a sitting Madras High Court judge blaming rape victims equally for their plight has raised the hackles of women rights activists.

Justice N Kirubakaran, at an inauguration ceremony of a Fast Track Mahila Court in Ramanathapuram in southern Tamil Nadu is reported to have said that women are equally responsible for crimes committed against them.
The judge while interacting with media persons allegedly commented that last year’s Delhi gang-rape victim had chosen the wrong time to travel. Though the mainstream English media did not report this alleged remark, some vernacular publications had published them.
Rattled by such words coming from an officer of the higher judiciary, the All India Democratic Women’s Association (AIDWA) has now written to Justice Kirubakaran urging him to shun such regressive views.
In her letter, AIDWA national secretary U Vasuki, who is also a leading lawyer here, said: “When a section of the general public projects such arguments, we tell them that IPC including the latest legislation ‘Criminal Law Amendment Act 2013’ treat sexual crimes as crimes and do not make them conditional to whether or not women invited trouble. But when the criticism comes from a judge on the victims of sexual violence contrary to the constitutional guarantee and protection, we are at a loss for words.”
Vasuki questioned why should we define time for women alone and how could we define right time and wrong time uniformly for all. If the judge’s logic of timing for travel were to be followed, then girls would not be able to attend coaching after class hours and women would not be able to do night shifts at office. Likewise, they would be required to stay off late night movie shows and parties.
“It is their individual freedom, option,” she said while drawing the judge’s attention to late Justice Verma’s observation that there are women and girl children who are increasingly coming into public places for various reasons and trying to remove them or restricting their movements in the name of safety is looking at the issue upside down.

To, Dt. 30.08.2013
The Chief Justice of India,
Supreme Court of India,
New Delhi.
Sir,
I am enclosing herewith a news report appearing in The
Hindu dated 29th August, 2013 ( Enclosed). According to this report,
Justice N. Kirubakaran, judge of the High Court of Madras while
inaugurating a Fast Track Mahila Court is reported to have stated that
men alone were not responsible for crime against women. According
to the news report he stated “why should women invite trouble when
they are well aware that they will get into trouble in some situations”.
The news report goes on to say that the gang rape and
murder of a Delhi girl paved the way for amendment to the Indian
Penal Code after she sacrificed her life, but the girl should be blamed
for choosing a wrong time to travel on the fateful night. It appears the
judge went on to advise women not to invite trouble, ostensibly by
not traveling at night. Ironically these comments were made while
inaugurating the Special Court exclusively to try crime against
women.

Also present at the occasion were the Principal District and
Session Judge Sh. W. Sathasivan, Chief Judicial Magistrate N.Dharman,
President of the Bar Association Mr. A Ravi Chandra and Ramavanni,
Secretary M. Sonasundaran, Addl.District Judge M. Prabasan
appointed judge of the Mahila Court was also present on the occasion.
None of them thought it fit to correct or contradict him.
It appears that Justice N. Kirubakaran is the portfolio judge for
the district in question where the Fast Track court was inaugurated.
I write to lodge my strong protest against the comments made
by Ld. Judge to the effect that women are responsible for crimes
against them. The clear inference is that women would be well
advised to stay at home to avoid being raped.
Women of this country have a fundamental right to travel
when they wish and where they wish including at night without fear
of being raped. It is the duty of the State governed by the rule of law
to provide safety in cities anytime of the day or night. Incidentally the
women in Mumbai was gang raped at 6 P.M., in daylight and if this
prescription is followed women ought not to venture out during the
night or day time.
I think, the Ld. Judge needs to be reminded of the statement
made by the Father of the Nation Mahatma Gandhi to the effect that
India cannot claim to have attained true independence until all
women can walk on the streets be it at mid night without fear of
being molested or raped.
A judge of the High Court is a judge 24/ 7 and his/ her remarks
off the bench and on the bench carry equal weight. He/ She is meant

to be a role model for judges of the subordinate judiciary who he/ she
supervises. Judges must take responsibility for judgments as well as
the remarks they make, the language they use, the view they hold and
their conduct both on the bench and off the bench. Very often male
chauvinist remarks are heard during the course of hearing in court
causing great embarrassment to practicing women lawyers, who are
unable to respond for fear and contempt of court. It may be noted
that these remarks were made at an official function hosted by the
judiciary itself and hence are made during the course of duty.
I am informed that a website called “Justice Kirubakaran Fan
Club” has been created presumably to spread his views. Such is the
impact of statements made by a sitting judge off the bench!
As a citizen of this country as a practicing lawyer and as a
responsible law officer of the Government of India, as a person
committed to human rights and rights of women, it is my duty to
draw your attention to this statement and request that you take
appropriate and necessary action to check this trend.
At a time when the nation is debating the manner and method
of appointment of judges, it is not only necessary to raise the issue of
transparency in the matter of appointment of judges but also
transparency and accountability in the views that they hold as
individual and which they carry forward into their judicial functions. .
I write to you requesting to be informed what mechanism of
accountability exists within the judicial system for dealing with
judges who make insensitive and anti-constitutional remarks in
relation to women

Your immediate intervention in the matter is solicited as
soon as possible to put an end to the spreading of such remarks to
ensure impartial and unbiased justice for women. One way to do this
is to ensure gender sensitization for the judiciary as a whole under
the leadership of the Supreme Court itself in collaboration with the
civil society. Almost all major constitutional courts have within the
court a Gender Justice Committee which constantly monitors the
development in law relating to women and review judgments and
create code of conduct for the use of gender sensitive language and
carry out sensitization programme for the judiciary. It is the primary
duty of all courts to eliminate all forms of discrimination, bias and
prejudice against women. No amount of Fast Track Courts and
Special Courts will deliver justice to women, if those who hold the
high office of a judge of the High Court hold and express such male
chauvinist views.
I am sure you will do your best to put a stop to this
dangerous trend.

 

 

yours  faithfully

(INDIRA JAISING)
Enclosure: Women Equally Responsible for Crimes against Women: Judge, Justice N.
Kirubakaran cautions lawyers not to magnify cases, The Hindu, Dated 29.08.13
CC: 1. Shri Kapil Sibal, Minister of Law and Justice. Government of India, Delhi.
2. Mr. Justice Rajesh Kumar Agrawal, Acting Chief Justice of Madras High Court, Chennai
3. Mr. Justice N. Kirubakaran, Judge High Court of Madras, Chennai.

  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/madrashc-seeks-report-on-the-conditions-of-mentally-challenged-prisoners/" target="_blank"> #MadrasHC – seeks report on the conditions of mentally challenged prisoners
  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/india-talk-to-my-eyes-not-to-my-chest-vaw-gender/" target="_blank"> #India – ‘Talk to my eyes, not to my chest’ #Vaw #Gender
  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/trials-pending-for-50000-cases-of-crimes-against-women-in-maharashtra-vaw-wtfnews/" target="_blank">Trials pending for 50,000 cases of crimes against women in Maharashtra #Vaw #Wtfnews

 

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Next Chief Justice of India favours reservation in higher judiciary

 

R. BALAJI
New Delhi, July 1: Chief Justice of India-designate Justice P. Sathasivam has favoured reservation for members of the Scheduled Castes, Scheduled Tribes and the Other Backward Classes in the higher judiciary, such as Supreme Court and high court judges’ posts.

Justice Sathasivam, who will take over as the country’s Chief Justice on July 19 from the incumbent, Justice Altamas Kabir, felt that members of the SCs, STs and OBCs could be elevated to the higher judiciary by giving them certain concessions in the appointment process, provided they fulfilled minimum requirements.

In an interview with The Telegraph here today at his residence, Justice Sathasivam said that such an arrangement would go a long way in assuring all sections of the society that their well-being was taken care by the country, irrespective of their social moorings.

“Yes, you are correct. We need to have some sort of reservation and representations for SCs, STs and OBCs. But at the same time we cannot ignore the minimum standards which are already in vogue for appointment. It does not mean we have to select a person far junior or who lacks merit. But we have to give them some concession,” the judge said.

“But they must satisfy the minimum requirements. It is in our (judges) mind. You can also say it is in my mind. I am anxious that persons from SC, ST and OBCs are appointed. Of course, there are members of the OBCs who are already in the higher judiciary,” Justice Sathasivam said in response to a query.

Although not specifically related to the ongoing tussle between the Bengal government and the state election commission on the former’s plea to re-schedule the panchayat polls in view of the Ramazan month, the Chief Justice-designate said courts and the election commission have to take note of public sentiments.

Refraining from directly commenting on the Bengal situation, Justice Sathasivam said: “Normally, the courts and the election commission have to take note of the sentiments of the people if the majority of the people feel inconvenienced. For example, during the Ramazan month, many employees leave their offices early. Even judges leave the courts early… that is because a devout Muslim is not allowed even to swallow his saliva. So we can’t have rigid rules or any straitjacket formula for such an issue. It all depends on the facts of each case.”

He rejected the government’s bid to bring in a judicial appointments commission to replace the present collegium system. Justice Sathasivam said the government could not claim that it would have its own representatives in the judiciary.

“The government cannot include their names as, by and large, the high court and the Supreme Court collegiums keep everything in mind while giving representations to all sections. Law officers like advocates-general, additional advocates-general, central government law officers, government pleaders are provided representation in the appointments,” he said.

The Chief Justice-designate agreed with a suggestion that judges of the Supreme Court should have a cooling period before accepting post-retirement jobs in tribunals like TDSAT (the Telecom Disputes Settlement Authority Tribunal), CAT (the Central Administrative Tribunal), NCDRC (the National Consumer Disputes Redressal Commission) to insulate the judiciary from allurement from political executives.

Conceding that the judiciary was not 100 per cent free of corruption, Justice Sathasivam said that the institution was still transparent unlike other wings like the legislature and the executive.

He pointed out that if a presiding judge in a subordinate court passed an order on the basis of some extraneous considerations, it was liable to be set aside by the higher judiciary — a remedy not available to the citizens before the other wings of the government.

 

 

 

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#India – Is the Mechanism for Appointment of Judges Working?

May 11, 2013

Supreme CourtBy S Farman Ahmad Naqvi,

The question regarding how to appoint judges at the High Courts and Supreme Court has been bothering not just the top echelons of judiciary in India but the executive too. Though the “collegium system” which appoints judges has been in place for quite some time now, there have been murmurs of dissatisfaction over the practice in different quarters.

The collegium system – which is followed in the appointment of judges to the Supreme Court and the High Courts, has recently been challenged in the Supreme Court. The petitioner, Rajasthan-based Suraz India Trust wants the court to declare the system “ultra vires” and “unconstitutional” because the constitution does not mention it anywhere and it has been brought into existence through the judgments of the Supreme Court. The bench, which heard the matter, referred it to the Chief Justice of India for “appropriate direction” as the petition rose “complicated legal issues.” On its part, the government has said that the matter required reconsideration.

Recently on 1st May 2013, in a written reply to a question in the Rajya Sabha, Dr. Ashwani Kumar, Minister of Law & Justice, said that representations have been made by various agencies and expert bodies to review/change the present procedure of appointment of judges. Based on the suggestions received, there is a proposal to establish a broad based Judicial Appointments Commission. However, no decision has been taken by the Government so far, Dr. Kumar informed the House. He also informed the house that the appointment of Judges to High Courts and Supreme Court is based on a Memorandum of Procedure for Appointment of Judges of Supreme Court and High Courts* (see at http://doj.gov.in/sites/default/files/memosc.pdf ) prepared in 1998 pursuant to the Supreme Court Judgment of October 6, 1993 read with their Advisory Opinion of October 28, 1998.

How the collegium system came into being is very remarkable. In a decision rendered by a seven-judge Constitution Bench in S.P. Gupta Vs. Union of India (AIR 1982 SC 149), the majority held that „consultation? does not mean „concurrence? and ruled further that the concept of primacy of the Chief Justice of India is not really to be found in the Constitution. It was held that proposal for appointment to High Court can emanate from any of the four constitutional functionaries mentioned in Article 217 – and not necessarily from the Chief Justice of the High Court. This decision had the effect of unsettling the balance till then obtaining between the executive and judiciary in the matter of appointment. The balance titled in favour of the executive. Not only the office of the Chief Justice of India got diminished in importance, the role of judiciary as a whole in the matter of appointments became less and less.

After this judgment, certain appointments were made by the Executive over-ruling the advice of the Chief Justice of India. Naturally, this state of affairs developed its own backlash. In 1993, a nine-Judges Constitution Bench of the Supreme Court in Supreme Court Advocate-on-Record Association Vs. Union of India (1993(4)SCC 441) over ruled the decision in S.P. Gupta. The nine-Judges Bench (with majority of seven) not only overruled S.P. Gupta’s case but also devised a specific procedure for appointment of Judges of the Supreme Court in the Interest of “protecting the integrity and guarding the independence of the judiciary.” For the some reason, the primacy of the Chief Justice of India was held to be essential. It held that the recommendation in that behalf should be made by the Chief Justice of India in consultation with his two senior-most colleagues and that such recommendation should normally be given effect to by the executive. Elaborate reasons were recorded in support of the proposition that selection of judges must be in the hands of the judiciary in this country and how the systems prevailing in other countries are alien to our constitutional system.

One of the judges relied upon Article 50 of the Constitution which speaks of separation of judiciary and executive and excluded any executive say in the matter of appointment to safeguard the „cherished concept of independence.” It held at the same time that it was open to the executive to ask the Chief Justice of India and his two colleagues to reconsider the matter, if they have any objection to the name recommended but if, on such reconsideration, the Chief Justice of India and his two colleagues reiterated the recommendation, the executive was bound to make the appointment.

Reaction to this judicial assertion of power has not been uniform. In short, the power of appointment passed into the hands of judiciary and the role of the executive became merely formal. The 1993 decision was reaffirmed in 1998 [1998(7) SCC 739] in a unanimous opinion rendered by a nine-Judge Bench of the Supreme Court on a reference being made by the President under Article 143 of the Constitution. All the basic conclusions of the majority in the 1993 decision were reaffirmed.

There was, however, some variation. It was held that the recommendation should be made by the Chief Justice of India and his four senior-most colleagues (instead of the Chief Justice of India and his two senior-most colleagues) and further that Judges of the Supreme Court hailing from the High Court to while the proposed name comes from must also be consulted. In fact, the Chief Justice of India and his four senior-most colleagues are now generally referred to as the “Collegium” for the purpose of appointment of Judges to the Supreme Court.

The present collegium system of appointment of judges of Supreme Court and High Courts has resulted in an anomaly in as much as the executive no longer has to share any responsibility in filling up vacancies, the entire responsibility being that of the collegium. It appears that this system had outlived its life and its pessimistically failed to fulfill the aspirations of people.

At the Congress party’s national convention on “Law, Justice and the Common Man”, union urban development minister and party veteran S. Jaipal Reddy raised serious doubts on the Supreme Court’s Collegium system of judicial appointment? “The current system of judicial appointment is faulty; it is faulty because it is opaque. The opacity of this system attracts charges of nepotism and lack of transparency. The government is bringing a legislation (the Judicial Standards and Accountability Bill), which should address this sense of grief over the conduct and reputation of judges and the manner of their appointment,” Reddy said. (http://www.dnaindia.com/india/report. Mar 28, 2010.)

Leader of opposition in Rajya Sabha and a senior Advocate of Supreme Court Mr. Arun Jaitley said the collegium system was better than executive appointing judges and he would never advocate executive interference in judiciary. “But the collegium system of appointing judges too lacks in terms of quality and integrity. The standard needs to be improved far more,” He said.

“I have always preferred a National Judicial Commission where judiciary has primacy, executive participates and includes some eminent citizens who act in safeguarding public interest,” he added. Time of India Aug 29, 2011.

One of the country’s top legal luminaries Fali S. Nariman while speaking at National Law University (New Delhi) made bold exposure on drawbacks of collegiums-system of appointing judges. The speech delivered in presence of Chief Justice of India directly hinted at personal equations and not merit being followed in recommending elevation of judges at Supreme Court. Eminent lawyer gave two recent examples which echo views of right-thinking persons of the civil society. First was superseding country’s known-distinguished judge Justice A P Shah in his elevation as Supreme Court Judges, who retired in February 2010 from Delhi High Court. Fali S. Nariman justified his comments with example of Justice A.K. Patnaik who after being overlooked three times, was at last elevated to Supreme Court just after retirement of the collegium-member opposing him from the Supreme Court. (http://www.merinwes.com Nov 22, 2009).

As the matter was relating to Supreme Court Judge’s appointment and was raised by one of the country’s top legal luminaries Mr. Fali S. Nariman, it caught the eyes of media. However, there are hundreds and thousands of cases relating to appointment of Judges of High Courts either from the higher judiciary or from the bar, where anomalies are abundantly caused but they go unnoticed being found unimportant.

Justice P.N. Bhagwati in conversation with Padmaparna Ghosh while answering the question, “does the collegium system work?” had unequivocally said that “this system does not work satisfactorily. I am not in favour of it. I don’t know that the truth is but going by rumours, bargaining goes on between the collegium judges. People are losing confidence in the mode of appointing judges. Therefore, it is necessary to change it.” (http://indiatoday.intoday.in published on August 29, 2011).

Former Delhi High Court’s Chief Justice A.P. Shah, who could not make it to the apex court, quotes Justice Ruma Pal, formerly Supreme Court judge to say that the process by which a judge is presently appointed to the high court or the Supreme Court is ”one of the best kept secrets in the country”. The constitution dealing with the appointment of judges of the Supreme Court (Article 124) and the high court (Article 217) says that the President would appoint such judges in consultation with other judges. Justice Shah, whose elevation to the Supreme Court was said to have been stalled, says the present system of judicial appointments in the constitutional courts exemplifies the „misalignment? between the core values of judicial independence and accountability. “Our current appointments system is out of step with democratic culture primarily because it lacks transparency, and provides for no oversight. Choosing judges based on undisclosed criterion in largely unknown circumstances reflect an increasing democratic deficit,” Justice Shah points out. He calls for taking lessons from other countries like the UK and South Africa where a transparent process of appointment of judges is followed, while maintaining judicial independence. “International consensus seems to favour appointments to the higher judiciary through an independent commission,” he says. Probably, that is why former Delhi High Court Judge R.S. Sodhi feels the collegium system has not been able to deliver so far. He dubs it as „a total failure?, when it comes to inducting judges of quality. “Keeping the system of appointment of judges within the four walls of collegium has given rise to a lot of criticism like uncle-and-son-syndrome,” Justice Sodhi opines. (http://www.deccanherald.com 20 November 2011).

 

The anomalies are such which ultimately resulting in nepotism, favoritism and casteism although to curb these anomalies? the collegium system was devised in 1993 in the case of Supreme Court Advocates-on-record Association and others Vs. the Union of India and others, by the Supreme Court. The prime reason of Nepotism is unnecessary secrecy adopted in these appointments, and granting free hand to some individuals who are not accountable to any one of their mistakes or calm over mistakes.

Here I deem it appropriate to quote a passage from a judgment of Supreme Court reported in (2010) 7Supreme Court Cases 502 = STPL (Web) 539 SC 7 Hari Singh Nagra Vs. Kapil Sibal where the Court while dealing a contempt plea raised against Sri Kapil Sibal had observed; “There is no manner of doubt that Judges are accountable to the society and their accountability must be judged by their conscience and oath of their office. Any criticism about the judicial system or the judges which hampers the administration of justice or brings administration of justice into ridicule must be prevented. The contempt of court proceedings arise out of that attempt. National interest requires that all criticisms of the judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by any partisan spirit or tactics. There is no manner of doubt that freedom of expression as contemplated by Article 19(1) (a) of the Constitution is available to the Press and to criticize a judgment fairly albeit fiercely is no crime but a necessary right. A fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute contempt. In fact, such fair and reasonable criticism must be encouraged because after all no one, much less Judges, can claim infallibility.”

The cases of anomalies in appointment of judges are great in numbers;

I will try to figure it out one by one in the following paragraph.

1. Under Article 124(2) and Article 217(1) of the Constitution, a judge of Supreme Court/ High Court has to be appointed by the President after „consultation? with the Chief Justice of India (CJI). The government was not bound by the CJI?s recommendation. But in 1993, the Supreme Court introduced the collegium system, taking over primacy in appointments to higher judiciary. A nine-judges Constitution Bench in 1998 ruled that “consultation” must be effective and the chief justice’s opinion shall have primacy. Now India is the only nation in the world where judges appoint judges. In 2008, the Law Commission favoured restoration of pre-1993 position. 2. Law Commission of India in its report no.230, submitted to the Govt. of India on 5.8.2009 under the heading “REFORMS IN THE JUDICIARY – SOME SUGGESTIONS” stated in Para 1.3 and 1.4 as under;

1.3 As a matter of practice, a person, who has worked as a District Judge or has practiced in the High Court in a State, is appointed as a Judge or has practiced in the High Court in a State, is appointed as a Judge of the High Court in the same State. Often we hear complaints about “Uncle Judges”. If a person has practiced in a High Court, say, for 20-25 years and is appointed a Judge in the same High Court, overnight change is not possible. He has his colleague advocates – both senior and junior – as well as his kith and kin, who had been practicing with him. Even wards of some District Judges, elevated to a High Court, are in practice in the same High Court. There are occasions, when advocate judges either settle their scores with the advocates, who have practiced with them, or have soft corner for them. In any case, this affects their impartiality and justice is the loser. The equity demands that the justice shall not only be done but should also appear to have been done. In government services, particularly, Class II and upward, officers are not given posting in their home districts except for very special reasons. In any case, the judges, whose kith and kin are practicing in a High Court, should not be posted in the same High Court. This will eliminate “Uncle Judges”. 1.4 Sometimes it appears that this high office is patronized. A person, whose near relation or well-wisher is or had been a judge in the higher courts or is a senior advocate or is a political high-up, stands a better chance of elevation. It is not necessary that such a person must be competent because sometimes even less competent persons are inducted. There is no dearth of such examples. Such persons should not be appointed and at least in the same High Court. If they are posted in other High Courts, it will test their caliber and eminence in the legal field. 3. The above recommendations of Law Commission and other earlier recommendations relating to subject in discussion were neither implemented nor taken care of in future appointments to the post of High Court Judges.

4. Article 217 of Constitution of India fixes no minimum or maximum age of appointment of a judge of high court, except that, he at least ten years held a judicial office in the territory of India? or in case of an Advocate, he should “at least” having ten years practice in a High Court or of two or more such courts in succession. As the Constitution had not prescribed any age limit hence this provision is used or to say misused to the advantage or to disadvantageous to the chosen few. Members of Collegium sometimes chose few individuals by charting their own norms regarding age but when the next collegium is constituted they devise new age barriers as per their own choice. Sometimes the High Court collegium chooses few bracketed in certain age group but Supreme Court finds them not suitable because of lesser in age or crossed the upper age limit, but where is the rule regarding age limit nobody knows. The rule rests with the new incumbent or the person who had divested the office and here comes into play the nepotism, bias, favoritism and predisposition. Nobody can question the choices of diverse ages at different era because there are no universal governing rules or standard guidelines available to do justice to do appointments upon such high judicial office. No clear cut guidelines and norms for selection of persons for the coveted post of High Court Judgeship e.g. no fix minimum or maximum age limits, which result in selection of a candidate of any age at no point and rejection of another candidate who is bracketed in the same age group at another point of time. One group of selectors has one type of rules and the next set of selectors work out their own rules as per their own exigency.

5. Although for appointment of High Court Judges no reservation rules apply as are applicable upon other services, because it is a constitutional office, but it appears that while panel is being prepared equilibrium tried to be struck between upper castes, OBCs, SCs. NO guiding features are available anywhere to apply the reservation in appointment of High Court Judges. Interestingly Chapter V of Part VI of Constitution does not prescribe any such condition to be followed. But it is a regular feature that relaxations of various natures are being granted to the persons belonging to the above reserved categories. Although Apex Court as well as High Courts is very strict in implementing back door entries in Public Services (Uma Devi’s Case is the latest such law laid down by Supreme Court) where rules were not followed and appointments are made at the whims and fancies of persons sitting at the helm of the affairs.

6. In Para-32 of Special Reference No.1 of 1998 RE, (1998) 7 SCC 739 the Supreme Court lays down,

“Similarly, if in connection with an appointment or a recommended appointment to a High Court, the Views of the Chief Justice and senior judges of the High Court, as afore stated, and of Supreme Court judges knowledgeable about that High Court have not been sought or considered by the Chief Justice of India and his two senior most judges, judicial review is available. Judicial review is also available when appointee is found to lack eligibility.”

7. The dictionary meaning of word eligibility is “allowed by rules or laws to do something or to receive something”. As stated earlier the only eligibility criteria laid down for appointment to High Court is about practice or held a judicial office for ten years under Article 217 of Constitution of India which fixes no minimum or maximum age of appointment of a judge of High Court, except that “he at least ten years held a judicial office in the territory of India” or in case of an Advocate, he should “at least” having ten years practice in a High Court or of two or more such Courts in succession. It means the only qualification required, by the Constitution, for the appointment upon the post of Judge of a High Court is that if someone attains ten years of practice or holds a judicial officer’s post in a State deserves to be appointed as judge of High Court. But some other eligibility criteria are also there which are not written anywhere but are religiously practiced; here lies the legroom for compromises which generate suspicion in terms of integrity and quality, as expressed by Jurists like Fali S Nariman etc. There are no written guidelines for undertaking the exercise. If the same would have been there the doubts could easily be rebutted as just tomfoolery.

8. The administrative burden of appointing judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees lacks any scrutiny.

9. Collegium is a closed-door affair without a formal and transparent system.

10. The limitation of the collegiums? field of choice to the senior-most judges from the High Court for appointments overlooking several talented junior judges and advocates.

Farman NaqviThe author is practicing lawyer at Allahabad High Court, can be contacted at [email protected]

 

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Parallel hearings on khaki reforms after cop excesses #policereforms

, TNN | Apr 22, 2013, 12.45 AM IST

 
NEW DELHI: Even as the police reforms issue has been lying dormant before a bench headed by Chief Justice of India Altamas Kabir, anotherSupreme Court bench, this one headed by Justice G S Singhvi, has taken up the same matter with visible urgency. Responding to police excesses, Singhvi intervened in the implementation of the 2006 judgment on police reforms, although such monitoring had been done throughout by a succession of CJIs.

Thanks to Singhvi’s activism, all the states and union territories, which have been dragging their feet for years, suddenly find themselves accountable at the same time to two different benches.

Singhvi’s bench is also pushing them harder as it has already held three hearings this month, since it had ordered the states and UTs on March 11 to file affidavits within two weeks on the implementation of the six directions in the 2006 verdict. The next hearing before it is on April 25, when the petitioner in the original police reforms case, former DGP of UP and BSF Prakash Singh, is due to give his assessment on the glitches in the implementation of the first direction, namely, the creation of the state security commission to insulate the police from political interference.

In contrast, Kabir’s bench has heard the case only once ever since he had assumed office as CJI in September 2012. In that solitary hearing which took place in October, Kabir, however, steered clear of the contempt proceedings which had been initiated against four major states by his predecessor, Justice S H Kapadia. Rather than building on the progress made in the case by earlier CJIs, Kabir’s bench issued fresh notices to all the states and UTs for their status reports. The matter has since been listed thrice (the last time being on April 16) but Kabir’s bench never got around to hearing it on any of those occasions.

Meanwhile, the provocation for the entry of Singhvi’s bench into this case was a couple of police excesses in March on successive days: Punjab police beat up a woman in public in Taran Taran while their Bihar counterparts lathi-charged a procession of contractual teachers. On March 6, Singhvi’s bench took cognizance of the press reports on those two incidents and appointed senior advocates Harish Salve and U U Lalit as amicus curiae. Five days later, this suo motu intervention into two specific instances of police highhandedness enlarged into parallel proceedings on police reforms. Besides giving notices to all the states and UTs, the bench comprising Justices Singhvi and Kurian Joseph appointed two more amicus curiae: Prakash Singh and attorney general G E Vahanvati.

This unforeseen development has raised expectations that the Supreme Court would at last pursue the police reforms implementation with the seriousness it deserved. Given the difference individual judges could make, civil society activists hope that Singhvi would help break the deadlock on police reforms before his retirement by this year-end. Since Kabir himself is due to retire in July shortly after the summer break, it remains to be seen if he would formally transfer the police reforms case to Singhvi’s bench, to end the anomaly of parallel proceedings.

 

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#Chattisgarh Explain ‘unnecessary’ hysterectomy surgeries: NHRC #Vaw #Womenrights


Press Trust of India, 12/04/2013

Raipur: The NHRC has directed the Chhattisgarh government to submit a report within a month over the allegations that 7,000 ‘unnecessary’ hysterectomy surgeries were conducted in the state by some doctors, just to claim money under a health insurance scheme. “There are allegations that 7,000 hysterectomies – uterus removal surgeries – had been conducted by unscrupulous doctors in 169 hospitals of Chhattisgarh, to claim money under the Rashtriya Swasthya Bima Yojna (RSBY),” National Human Rights Commission (NHRC) chairperson Justice KG Balakrishnan said on Friday.
“The commission has asked the state government to submit a detailed report within four weeks,” he said. He was addressing a press conference after the conclusion of the NHRC’s two-day camp at Raipur. “The government has informed that the licenses of nine doctors in Raipur have already been suspended for carrying out such operation,” the former Chief Justice of India added.
As per media reports, the surgeries were conducted over the past two-and-a half years. During its two-day camp, the NHRC took up 27 different cases for hearing in the Full Commission and Division Bench Sittings comprising seven members. Out of these, six cases were closed after satisfactory replies by the state government.
The commission has recommended about Rs 20 lakh as monetary relief in different cases of human rights violations. In a case of alleged killing of 17 tribals, including four women, in an alleged encounter between ultras and a police party on January 8, 2009 near village Singaram in Dantewada district, the commission said it was “unsatisfied” with the report submitted by the police. It asked the Director General of Police (DGP) to seek an explanation of the officer who carried out the probe. “The commission was not satisfied with the reports submitted by the SP, SIB, police headquarters in the matter.. It observed that there were several serious shortcomings in the police investigation, coupled with the evidence of autopsies.. they raised serious doubt about the encounter,” Balakrishnan said.
“The DGP has been directed to seek an explanation of the officer who conducted investigation in the case,” he added. In the matter of torture of Soni Sori in police custody, he said, “A two-member team of the commission had met Sori on Thursday to know about her condition. She has informed that she has been treated better since the NHRC’s last visit.” Sori, a tribal teacher, has been languishing in jail on charges of being a Maoist sympathiser and acting as a conduit to extort money for banned CPI (Maoist) from the Essar group.
In the alleged gangrape of eleven minor tribal girls in a government-run residential school in Narharpur area in Kanker by a teacher and a watchman, the commission asked the government to submit a detailed report about the steps taken for the rehabilitation of the victims, so that such measures could be considered by the commission for adoption by other states, he said.

 

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In memoriam: Lotika Sarkar 1923 – 2013 #womenrights #Vaw

February 25, 2013 

Lotika SarkarSaluting Professor Lotika Sarkar who fought to make the country’s laws uphold gender justice and women’s rights

By Vibhuti Patel

Professor Lotika Sarkar who played a central role in several path-breaking and crucial legislations for gender justice and empowerment of women during 1975-2005, passed away at the age of 90 on 23rd February 2013. In the women’s rights movement, she was known as Lotikadee.

When other stalwarts of women’s studies touched our hearts with inspirational speeches in the women’s movement gatherings, Lotikadee floored us with her legal acumen. The first Indian woman to graduate from Cambridge, Dr. Lotika Sarkar was the first woman to join the law faculty at the University of Delhi. She taught Criminal law and was a mainstay of the Indian Law Institute, Delhi during 1980s and 1990s. She was a member of the Government of India’s Committee on the Status of Women in India and a founding member of several institutions—the Indian Association for Women Studies (IAWS) and the Centre for Women‘s Development Studies (CWDS).

Lotikadee was in the peak of her career, when she was asked to join Committee on Status of Women in India, 1972 that prepared Towards Equality Report, 1974. As a pioneer in the fields of law, women’s studies and human rights, she prepared the chapter on laws concerning women in the Status of Women’s Committee Report with gender sensitivity and analytical clarity to promote women’s rights.

Along with three law professors of Delhi University – Prof. Upendra Baxi, Prof. Kelkar, Dr. Vasudha Dhagamwar, Lotikadee wrote the historic Open Letter to the Chief Justice of India in 1979, challenging the judgment of the apex court on the Mathura rape case. I remember cutting stencil and making copies on our cyclostyling machine of the 4-page long letter for wider circulation. Translation of this letter into Gujarati and Hindi served as a crash course in understanding the nuances of criminal justice system, rape laws and sexual violence as the weapon to keep women in a perpetual state of terrorization, intimidation and subjugation. It resulted in birth of the first feminist group against rape in January, 1980 – Forum Against Rape.

In 1980, along with Dr. Veena Mazumdar, Lotikadee founded Centre for Women’s Development Studies. When Lotikadee came to Mumbai for the first Conference on Women’s Studies in April, 1981 at SNDT women’s University, we, young feminists were awe-struck! Ideological polarization in this conference was extremely volatile. Lotikadee’s commitment to the left movement did not prevent her from interacting meaningfully with liberals, free-thinkers and also the new-left like me. Indian Association of Women’s Studies was formed in this gathering. In the subsequent conferences, Lotikadee attracted innumerable legal luminaries to IAWS.

At the initiative of her students, Amita Dhanda and Archana Parashar, a volume of Essays, Engendering Law: in Honour of Lotika Sarkar was published in 1999 by Eastern Book Company, Delhi.

Lotikadee and her journalist husband Shri. Chanchal Sarkar were kind, generous and trusting. After her husband passed away she was under immense trauma and grief. Taking advantage of this situation, her cook and a police officer whose education she and her husband had sponsored, usurped her property and house. Her students, India’s top lawyers and judges mobilized support and signed an open letter studded with such names as Justice V.R. Krishna Iyer, Soli Sorabjee, Gopal Subramaniam and Kapila Vatsyayan. Jurists, advocates, academics, bureaucrats, journalists and human rights activists signed the open letter demanding justice for her. Finally, Lotika Sarkar’s property and assets was transferred back to her to allow her to live her life in peaceful serenity, which she so deserved. Lotikadee’s traumatic experience invited serious attention on safeguarding the rights of senior citizens by both state and civil society.

Lotikadee was a conscience keeper not only for policy makers and legal fraternity but also for the women’s studies and women’s movement activists. The most appropriate tribute to Lotikadee is to proactively pursue the mission she started with her team in 1980, to fight against rape and various forms of structural and systemic violence against women and to strive for social justice, distributive justice and gender justice. The resurgence of activism against sexual violence and feminist debate around Justice Verma Commission’s Report as well as Criminal Law (Amendment ) Ordinance, 2013 constantly reminds us of the pioneering work of Lotikadee in terms of creating a strong band of committed and legally aware feminists who are following her footsteps. Let us salute Lotikadee, torchbearer of gender justice by continuing her heroic legacy.

Vibhuti Patel is active in the women’s movement in India since 1972 and currently teaching at SNDT Women’s University, Mumbai.

original post- http://feministsindia.com/in-memoriam-lotika-sarkar-1927-2013/

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Demand to reduce age of juvenility in heinous crimes unjustified, says Minna Kabir

Aneesha Mathur : New Delhi, Sat Jan 05 2013, 02:39 hrs

At a time when there’s a chorus for showing no leniency to the juvenile among the six arrested for the gangrape of the 23-year-old woman who later died in a Singapore hospital, children’s rights workers are cautioning that laws should not be bent simply because there is public outrage.

Minna Kabir, voluntary children’s rights worker who has long been associated with the legal aid cell at the juvenile justice boards in Delhi, said: “The law says it is not the crime that matters, it is the child standing before you that matters.”

“Why should we treat him as different from other children? If a child has committed a crime, it means society has failed him in one way or another and needs to think about his reform and rehabilitation,” said Kabir whose husband Altamas Kabir is the Chief Justice of India.

She said calls for reducing the age of juvenility for those accused of heinous crimes are unjustified.

“We should strike a balance in our thinking. Instead of reacting with hysteria, various people should come up with constructive ideas to combat the systemic failure that leads to criminality. There is need for proper education, counselling of these children. Society seems to encourage sex, advertisements today are full of sexual situations, we are losing values and that is why such cases are happening,” Kabir said.

Professor Ved Kumari, expert on juvenile justice law and ex-chairperson of the Delhi Judicial Academy, said: “Let our outrage at the absence of safe spaces for women not blind us to the absence of care to children.”

Raaj Mangal Prasad, former chairperson of the child welfare committee, cautioned against a “knee jerk reaction”. “A change in the law will have a negative impact on all children who are in vulnerable positions. What will you do if a 13-year-old is accused of rape and murder?” he said.

 

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#India-Raped by 42 men in 40 days, case to be heard after eight-year gap #Vaw #Justicedelayed

Reported by A Vaidyanathan, Edited by Amit Chaturvedi | Updated: January 03, 2013, NDTV

Raped by 42 men in 40 days. Supreme Court to hear case after eight-year gap

New DelhiFor nearly eight years, a woman from Kerala who was gang-raped by 42 men in 40 days has been waiting for the Supreme Court to take up  her case.Today, the Chief Justice of India Altamas Kabir said hearings will begin within three weeks.

The case is known as the Suryanelli rape case, after the village in Kerala where the woman lived with her parents. They have moved houses twice since then, driven out they say by jeering neighbours.

“Nobody accepts us; when they see us, they try to avoid us. We don’t go out,” said her father.

The Supreme Court’s decision today to begin hearing her case comes after the Chief Justice said yesterday that fast-track trials are essential for rape cases. His comments were made as he inaugurated a special court which will hold daily hearings in the case of a 23-year-old medical student who died after being raped by six men on a moving bus on December 16.   The attack and her death have pushed India into demanding improved safety for women and tougher and more effective laws for sexual crimes.

In the Suryanelli case, a 16-year-old was abducted by a bus conductor who raped her, then passed her onto others, some of who were powerful and well-connected in Kerala at the time.

She was then discarded with no money and in no condition to return home – she couldn’t sit or stand because of her injuries.

It was her case that led in 1999 to the commissioning of Kerala’s first special court dedicated to handling cases of sexual assault.

35 people accused of raping her were convicted. But the Kerala High Court, three years later, reversed that decision, holding only one person guilty. The grounds for this verdict were criticised by many people.

Her family and the state prosecutor both appealed to the Supreme Court in 2005 against the High Court’s verdict. Nothing happened after that.

The family survives on her parents’ pensions. The victim was given a job as a peon in a government department but in February, she was arrested and suspended for financial misappropriation.

 

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Ex-judges not in favour of #deathpenalty to rapists #Justice #Vaw

By , TNN | Dec 26, 2012, 03.14 AM IST

KOLKATA: With protesters in Delhi demanding death penalty to rapists, the Centre has appointed former Chief Justice of India JS Verma to head a committee that will review laws related to sexual assault. While the panel seeks suggestions from NGOs, jurists and the public on the present laws protecting dignity of women, a number of formerSupreme Court and high court judges feels death penalty won’t help. Life sentence will be a better punishment, they said.

While the committee seeks suggestions from the public, NGOs and jurists on the inadequacy of present laws on protecting the dignity of women, a number of former judges of Supreme Court and high court felt death penalty will not ultimately help. These legal luminaries felt death penalty can only endanger the rape victim, as rapists might try to kill the victim to wipe out evidence.

Former Supreme Court judge Justice V S Malimath, who headed the criminal justice reforms committee earlier, is against death sentence. “I do not support death sentence for rapists.

There is death sentence for murder, but has it helped to reduce murders? We make laws, but it cannot reform characters of rapists. Education is needed from childhood to inculcate moral values. Parents and school has to train to control the animal instinct in us,” he said.

Justice Malimath’s were echoed by Justice Ruma Pal, a former Supreme Court judge, said death penalty for rapists will not help. “The judge may not agree and can give benefit of doubt to the accused. It will be better if life sentence is the only punishment for rape. Investigations need to be time-bound in rape cases since delays are frequent and attempts are made to buy witnesses.”

“Women are not treated equally with men in our society, so children should be taught to respect women. Rape is not a question of sex, it is a question of power. There should be zero tolerance against persons negligent in handling rape cases. Investigating officers should be held accountable,” Justice Pal added.

Bengal human rights commission chairman and former Supreme Court judge Asok Kumar Ganguly felt use of DNA samples could help to nab rapists.

“There is a need to fast track courts to handle rape cases. Police need to be sensitized. Often rapists enjoy political patronage and the power of muscle and money,” Justice Ganguly said.

Justice M A Siddique, chairman of national commission for minority’s educational institutions and a former judge of Delhi High Court felt death penalty can only endanger the life of the rape victim, a fear shared by both Justice Ganguly and Justice Pal. “For removing evidence the rapists can try to kill the victim. Mostly rape is held in isolated place, who will save the victim?”

Views of justices Ganguly and Pal found support in Justice M A Siddique, chairman of the national commission for minority educational institutions and a former judge of Delhi high court. He felt death penalty will only endanger the life of the rape victim. “For removing evidence, the rapists can try to kill the victim. Mostly, women are raped in secluded places, who will save the victim?,” said Justice Siddique.

Some judges, however, felt the present laws were enough to handle rape cases. Justice R N Roy, former chief justice of Allahabad high court, said death sentence is for the rarest type of crime. The present laws are sufficient to handle rapists, he felt.

While Justice SM Soni, a former Gujarat high court judge and a former Lokayukta of Gujarat, said that there are enough laws to handle rape cases, Justice Shyamal Kumar Sen, former chairman of state human rights commission, said the court can opt for death penalty in the rarest of rare cases. Since there is a Supreme Court guideline, there is no need to change the law, said Justice Sen.

 

 

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