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Borking Gopal Subramanium

SANJAY HEGDE

  • Just as President Reagan’s nomination of Robert Bork to be judge of the U.S. Supreme Court was opposed by Democrats and some Republicans in 1987, Gopal Subramanium’s appointment as judge of the Supreme Court is being opposed by the BJP government.
    The Hindu Archives
  • Just as President Reagan’s nomination of Robert Bork to be judge of the U.S. Supreme Court was opposed by Democrats and some Republicans in 1987, Gopal Subramanium’s appointment as judge of the Supreme Court is being opposed by the BJP government.
  • Just as President Reagan’s nomination of Robert Bork to be judge of the U.S. Supreme Court was opposed by Democrats and some Republicans in 1987, Gopal Subramanium’s appointment as judge of the Supreme Court is being opposed by the BJP government.
    The HinduJust as President Reagan’s nomination of Robert Bork to be judge of the U.S. Supreme Court was opposed by Democrats and some Republicans in 1987, Gopal Subramanium’s appointment as judge of the Supreme Court is being opposed by the BJP government.

When the Judiciary is in charge of its own appointments, something more substantial than a report based on innuendo is required before impugning a candidate’s integrity

Gopal Subramanium has been publically borked. Bork as a verb is defined by the Oxford English Dictionary as U.S. political slang, meaning: “To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”

Robert Bork was Solicitor General of the United States under President Nixon. In 1973, when Nixon wanted to fire Archibald Cox, the Special Prosecutor in Watergate, Bork passed the necessary orders after the Attorney General and the Deputy Attorney General had declined to do so. He later explained that he took the decision as he felt constitutionally bound by Presidential directive. The consequences of this action and his other political positions came back to haunt him in 1987, when President Reagan nominated him to be judge of the U.S. Supreme Court, a move opposed by Democrats and some Republicans.

The proposed appointment had Senator Edward Kennedy memorably denouncing Bork’s appointment from the Senate floor: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy…” Bork did not consider any of these lines to be true, but the attack was deadly effective. Bork’s candidature failed on the Senate floor; 58 voted against his confirmation and 42 in favour of it. Six Republicans voted against his appointment.

Reason for oppositionGopal Subramanium did not deserve a Borking. He would have been an asset to the country as a Supreme Court judge. He was literally born and brought up in the Supreme Court as his father was one of the Court’s earliest regular practitioners. Mr. Subramanium and Rohinton Nariman were among the youngest persons to be designated as senior advocates by the Supreme Court. A lawyer highly regarded by the late Justice J.S. Verma, it was Mr. Subramanium and his teams’ extraordinary effort which formed the basis of the Verma report which led to amendments to the rape law after the Delhi gang rape incident in Delhi in 2012. Mr. Subramanium has served as Additional Solicitor General and Solicitor General for over eight years. He worked on Ajmal Kasab’s appeal for a nominal fee of one rupee. Recently, acting as amicus curiae in safeguarding the wealth of the Anantha Padmanabhaswamy temple, Mr. Subramanium went out of his way in cleaning its sacred tank and spending nearly a crore from his own pocket. The Central Bureau of Investigation, which trusted him with cases of national importance, such as those of Ajmal Kasab and David Headley, has now unfairly chosen to weasel out by giving the recent events a colour which they did not originally possess.

Based on reports by the CBI and Intelligence Bureau, the government had returned the recommendation of the Supreme Court for reconsideration by the collegium. The IB report cited an old complaint against Mr. Subramanium by two CBI officers in the 2G probe along with some references made about him in the Radia tapes. The report seemed to be procured on purpose — to be used as a convenient excuse to avoid an inconvenient appointment. It is no secret that the unstated reason for the government’s opposition was that Mr. Subramanium was the amicus curiae in the Sohrabuddin encounter case (Sohrabuddin Sheikh was prosecuted by the same CBI) and in other cases, where senior figures of the current government are allegedly complicit. The government probably apprehended a certain sub-conscious bias against it on Mr. Subramanium’s part.

The government is mistaken in its belief because even if appointed, Mr. Subramanium would have recused himself in all these matters. However, Mr. Subramanium’s withdrawal of consent to be a Supreme Court judge has rendered the question moot. In a country where the Judiciary is in charge of its own appointments, something more substantial than an IB report based on innuendo and hearsay is required before impugning the integrity of the candidate and the appointment process.

During the hearings of the second constitution bench of the Advocates-on-Record Case which dealt with procedures for judicial appointments, Justice Kripal from the Supreme Court bench narrated an experience from the Delhi High Court. An IB report in the case of a prospective appointee mentioned that he was a drunkard. The appointment did not go through at that stage, but the Chief Justice of the Delhi High Court knew that the report was not true. When enquiries were made, it turned out that the appointee drank only on occasion while his friends were habitual drinkers. He was nicknamed ‘boozer’ because of the company he kept, even though he stayed sober. IB sleuths who were charged with finding out more information about the man stumbled on this nickname and drew a damning conclusion. The person concerned was later appointed to the Delhi High Court in a subsequent batch of appointments. The injustice to the candidate was temporary in this case, but in Mr. Subramanium’s case the damage is permanent.

Toeing the lineThis Borking makes the government look like it is seeking a “committed judiciary” in tune with its political philosophy and short-term objectives. Impartiality of a higher judiciary that is vetted and approved is unlikely to be universally accepted. India was ill-served in the past by Mohan Kumaramangalam’s call of the early seventies. Four decades later, it is ill-served by Union Law Minister Ravi Shankar Prasad’s subservience to his party interests. One must remember that the supersession controversy of 1973 had as its inarticulate major premise Indira Gandhi’s desire not to have Justice K.S. Hegde appointed as Chief Justice of India. She won the battle, but the damage caused served as the backdrop to the Emergency and the ADM Jabalpur case, which destroyed her as a democrat.

If engagements as counsel are likely to be seen as disqualifications for judicial office, lawyers of eminence who would have taken unpopular briefs professionally will no longer let their names go forward for consideration. After all it takes great financial sacrifice for a successful lawyer to accept judgeship for a limited period of time. The country will be the loser and not the individual if he is not appointed as a judge. Not very many years ago, before the collegium system was established, Ram Jethmalani had thundered, “There are two kinds of judges — those who know the law and those who know the law minister.” I hope and pray that those days are not coming back.

(Sanjay Hegde is a Supreme Court lawyer.)

Read more here –  http://www.thehindu.com/opinion/op-ed/borking-gopal-subramanium/article6148766.ece#

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CBI judge hearing Amit Shah’s case transferred #WTFnews

PTI | Jun 25, 2014, 07.23

CBI judge hearing Amit Shah's case transferred
Amit Shah, who was the-then Gujarat minister of state for home, was allegedly involved in the conspiracy behind alleged fake encounters of gangster Sohrabuddin Sheikh in November 2005 and Tulsi Prajaptai in December 2006.
MUMBAI: The special CBI judge hearing the case of alleged fake-encounter cases of gangster Sohrabuddin Sheikh and Tulsi Prajaptai was transferred on Wednesday following which the court adjourned the hearing on the Amit Shah’s discharge plea.

Special CBI judge JT Utpat was transferred to Pune, after which the court hearing was adjourned till July 2.

Incidentally, last week, judge Utpat had reprimanded Shah’s advocate for filing an exemption application without assigning any reason to it.

“Every time you are giving this exemption application without assigning any reason,” judge Utpat had said.

The court had on May 9 issued summonses to Shah and other accused in the case, which had been transferred from Gujarat.


Amit Shah.

The CBI had charged Shah and 18 others, including several police officers in the case, last September.

According to CBI, gangster Sohrabuddin Sheikh, who was claimed to have links with Pakistan-based terror outfit Lashkar-e-Taiba, and his wife Kauser Bi were kidnapped by Gujarat’s anti-terrorism squad when they were on way from Hyderabad to Sangli in Maharashtra and were killed in an alleged fake encounter near Gandhinagar in November 2005.


The spot where Sohrabuddin Sheikh was killed.

Tulsiram Prajapati, an eyewitness to the encounter, was killed by police at Chapri village in Banaskantha district of Gujarat in December 2006.

Shah, who was the-then Gujarat minister of state for home, was allegedly involved in the conspiracy behind both the incidents.


Tulsiram Prajapati.

Read more here – http://timesofindia.indiatimes.com/articleshow/37197533.cms?intenttarget=no

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Chicago – Frozen embryos awarded to woman – a heated legal issue #Reproduction

Judge gives embryos to woman over objection from ex-boyfriend

May 16, 2014|By Angie Leventis Lourgos | Tribune reporter
  • Portrait of Jacob Szafranski at his home in Elgin on Thursday, Sept. 11, 2013. Szafranski is in a legal dispute about the use of embryos which he and his former girlfriend, Karla Dunston had fertilized in 2010.
Portrait of Jacob Szafranski at his home in Elgin on Thursday, Sept. 11, 2013. Szafranski is in a legal dispute about the use of embryos which he and his former girlfriend, Karla Dunston had fertilized in 2010. (Stacey Wescott / Chicago Tribune)

A Cook County judge this morning awarded custody of frozen embryos to a 42-year-old Chicago woman over the objections of her ex-boyfriend who said it violates his right to not procreate.

In 2009, Karla Dunston, a doctor who lives in the city, began dating Jacob Szafranski, a 32-year-old firefighter, paramedic and nurse from Elgin. A few months into their relationship Dunston was diagnosed with lymphoma and had to undergo chemotherapy that would ultimately destroy her fertility.

She testified that she longed to have a biological child and asked Szafranski to provide his sperm so embryos could be frozen prior to her treatment, and he did so, despite neither of them thinking the relationship had long-term prospects. A co-parent agreement giving Dunston control of the embryos was never signed, though.

The couple broke up in May 2010. Szafranski said he changed his mind about being a father after friends and a girlfriend reacted negatively, according to court documents.

Judge Sophia H. Hall said this morning in a written ruling that oral agreements between Szafranski and Dunston concerning use of the embryos stand and added that Dunston’s desire to have a child outweighs Szafranski’s desire to not procreate.

“Karla’s desire to have a biological child in the face of the impossibility of having one without using the embryos outweighs Jacob’s privacy concerns, which are now moot,” the judge said in the ruling, “and his speculative concern that he might not find love with a woman because he unhesitatingly agreed to help give Karla her last opportunity to fulfill her wish to have a biological child.”

Dunston’s attorney Abram Moore applauded the ruling.

“Using these pre-embyros is important to our client, but it is equally important to her to set a precedent in Illinois which helps other women cancer survivors who find themselves in this heart-wrenching situation,” he said in an e-mail.

Szafranski’s attorney Brian Schroeder said they plan to appeal the decision.

“We’re obviously very unhappy,” he said.

Schroeder said lawyers for both parties have agreed that the embryos should not be implanted in Dunston until the appeal is completed.

Through an attorney, Dunston has previously said she was not seeking any support, financial or otherwise, from Szafranski.

In 1985, 260 babies were born through assisted reproductive technology; in 2010, the number topped 61,000, according to the American Society for Reproductive Medicine.

Yet only a few state higher courts have addressed, with mixed results, what to do with frozen embryos once a couple has separated. Legal experts said they would be watching to see how Illinois handles the complex issue.

A Cook County trial court had previously ruled in favor of Dunston but Szafranski appealed, and the higher court sent the case back with a new framework: The dispute should be decided based on contracts and agreements between the two parties rather than just who has more compelling interest in the fate of the embryos.

The case went before the Illinois State Supreme Court, which decided not to hear it in September, sending the issue back to the lower court.

 

Read more here — http://articles.chicagotribune.com/2014-05-16/news/chi-judge-gives-embryos-to-woman-over-objection-from-exboyfriend-20140516_1_frozen-embryos-ex-boyfriend-brian-schroeder

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Ex- NUJS intern alleges sexual harassment by another Supreme Court judge #Vaw

Maneesh Chhibber | New Delhi | Updated: Jan 10 2014,
On Dec 5, a full court said that representations against former judges are not entertainable.On Dec 5, a full court said that representations against former judges are not entertainable.
SUMMARYSaying that she was emboldened by the stand taken by her fellow student who complained of alleged sexual harassment by former Supreme Court Justice…

Saying that she was emboldened by the stand taken by her fellow student who complained of alleged sexual harassment by former Supreme Court Justice A K Ganguly, another young woman and former student of West Bengal National University of Juridical Sciences, Kolkata, is learnt to have complained to Chief Justice of India Justice P Sathasivam that she was sexually harassed by a former judge of the Supreme Court.

What makes this case more significant than the one involving Justice Ganguly — who resigned two days ago as chief of the West Bengal Human Rights Commission — is the fact that unlike Ganguly, who had retired when the alleged sexual harassment incident involving him took place, the judge in this case was a sitting judge of the Supreme Court when the alleged incident took place. And the complainant was, officially, an intern in his office.

Her internship began in May 2011 when the judge and his office were actively involved in organising a conference. That judge now holds a post-retirement job having been nominated to it by the then Chief Justice of India.

The Indian Express has confirmed from sources in Delhi and Kolkata that the woman sent her detailed complaint to the CJI last month. However, she was told by the apex court that there was little the CJI could do and that she could take appropriate action under law. It is likely that the complainant will file a petition seeking action against the former judge.

In her complaint, the woman is learnt to have narrated two instances of how she was allegedly sexually assaulted by the former judge. Sources said that “strongly disturbed and upset” with the behaviour of the judge, the woman left the internship mid-way. She is learnt to have talked to her close friends and family about the incident. Sources said she decided to bring the alleged incident to the CJI’s notice after the swift response of the apex court to the allegations against Ganguly.

Despite attempts, the CJI could not be reached for his comment. However, a source cited the December 5 decision of the full court, where it was made clear that “representations made against former judges of this court are not entertainable by the administration of the Supreme Court”, to say why the CJI had not taken action on the complaint.

When asked, Additional Solicitor General Indira Jaising refused to comment saying she had no information about this case. On the full court decision, Jaising said: “Let’s divide this issue into two parts. One is, will they (SC) inquire into the conduct of retired judges when the incident occurred after retirement (as in the case of Ganguly)? The second is will they inquire into the conduct of a judge who maybe retired today but was a sitting judge when the incident occurred? In my opinion, the full-court order, if it applies to an incident which occurred when the judge was a sitting judge is not a correct decision. I would maintain that, forget jurisdiction, they have the duty and the authority to investigate any complaint made by any woman that she was harassed by a person who was a sitting judge when she was an official intern with the SC. There’s no way they can wash their hands of it.”

But in his order, Justice Sathasivam, disposing the Ganguly matter in light of the report of the three-judge probe panel constituted by him on November 12, said that since the complainant “was not an intern on the roll of the SC and the concerned judge has already demitted office on account of superannuation on the date of incident”, no follow-up action was required by the apex court.

On November 6, 2013, a lawyer who had interned with Justice Ganguly had blogged about being sexually assaulted by the judge in December 2012 when the judge was retired while the complainant was not working with him as an intern.

The committee of three judges constituted to probe the matter said that the statement of the intern “prima facie” disclosed an act of “unwelcome behaviour (unwelcome verbal/non-verbal conduct of sexual nature)” by Justice Ganguly.

Read more here– http://www.financialexpress.com/news/another-intern-alleges-sexual-harassment-by-another-supreme-court-judge/1217467/0

 

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#India – Tejpal Test for People Like Us #Rape #Tehelka

“If the death penalty has to be awarded for a 19-year old, poor, illiterate and socially backward boy for committing gangrape, what should the corresponding punishment be for a father figure and the highest authority in the organisation, for finger penetrating a young colleague, as per the regime of stringent punishment?

 

Tehelka

Tehelka (Photo credit: Wikipedia)

 

 

 

 

 

THE TEJPAL CASE, FAR REMOVED FROM THE CIRCUMSTANCES OF THE DELHI AND MUMBAI RAPE CASES, PUTS `PEOPLE LIKE US’ ON TRIAL. ITS OUTCOME WILL DETERMINE WHAT KIND OF SOCIETY WE WILL TURN INTO”

 

 

When in a historical verdict in 1997, Justice J.S. Verma resorted to judicial law-mak ing, and laid down guidelines to prevent “sexual harassment at workplace“ (popularly referred to as the “Vishaka guidelines“), everyone thought it was a harmless ruling. No one ever really thought that it would come to bite our public intellectuals and custodians of law and justice, at the highest echelons of power. The private sector chose to pretend that they are not bound by it. Women journalists, while writing probing reports regarding non-compliance by state agencies, never turned the mirror inwards and questioned whether there was a policy in place internally. The news reports were exercises in one-upmanship. At times, an occasional journalist would narrate such incidents but would prefer to change her job than press charges and face the stigma.And worse, while judges of the High Courts and the Supreme Court pontificated on this issue, they did not care to reflect whether they too were bound by this ruling and did not put in place a policy which would bind them. The spotlight was turned only on the public sector and the educational institutions. The concerns of women’s groups about not setting up such committees at all workplaces, including media houses, legal chambers and judicial institutions, fell on deaf ears.

To our probing queries, some senior officials replied disdainfully, “We will see when a law comes into effect.“ The government dragged its feet for 16 long years, and finally enacted a law earlier this year, which is yet to be made enforceable as rules under it are not yet framed. So we are still governed by the famous “Vishaka guidelines“ regarding sexual harassment at the workplace.

A committee would be set up only when a woman dared to file a complaint against her boss, as is being done in the Tehelka case, to put a lid on the violation so that the news does not spill into the public domain and harm the reputation of the corporate or media house.

Even more important is to bring into focus the demand for a wide definition of rape and stringent punishment, after the brutal Delhi gangrape and murder. This as well as the Shakti Mills case involved lower-class, delinquent men, while the victims were from the middle class. It was conven from the middle class. It was conven ient to demand stringent punish ment. When an initial Bill was prepared, various groups were more concerned about what was excluded than under standing what was included and its implications. It never made anyone uneasy that one day the wide defi nition of rape as insertion of not just the penis but also the fingers and objects into body orifices, not just into the vagina, but also anus and urethra and mouth (oral sex) and the stringent punishment (a minimum of 10 years for all such violations by peo ple in power) would come to bite us, bite people close to us, the people we respect.

Now the time for the litmus test has come. The time has come to test these definitions and the stringent punishments. To test our commitment to equality before the law and equal protection of law, a basic and fundamental principle of our Constitution. Even the best of them seem to flounder as was the case with Shoma Chaudhary, managing editor and the second-in-command, known for her commitment to women’s rights, who failed to treat the complaint with the seriousness it deserved.

The sexual harassment of a law intern by a retired SC judge, a defender of hu-man rights, pre judge, a defender of hu-man rights, pre siding over compli cated cases involving cor volving corruption at the highest l e v e l , wh i c h almost brought the UPA government down (as reported by a news magazine). The so-called “drunken banter“ by none other than Tarun Tejpal, known for his string operations and probing journalism. Both these reputed persons might have been under a misconception that they are above the law, that the code of sexual ethics at workplace as stipulated by the Vishaka guidelines applied to them personally.

Worse, from their position of power, they did not think that women would ever have the courage to expose them.

But these incidents must make us realise how routinely it takes place everywhere -within corporate establishments, media houses, judges chambers, chambers of senior advocates, even within NGOs and within the chambers of progressive lawyers and human rights defenders. There are several law graduates who were forced to change their professions after they were scarred by such incidents.

Despite the public debate on the recent amendment to the rape laws brought into force in April 2013, several journalists as well as subject experts and activists have confided to me their own ignorance about the new definition and asked me for clarification as to finger penetration would now amount to rape? The answer has to be an emphatic yes.

In the case of Tejpal, it would amount to an aggravated form as he is a “person in authority“ warranting a minimum of 10 years of imprisonment which may extend to life imprisonment. There is no short cut here as there is his own admission of guilt, which has tightened the noose round his neck.

If the death penalty has to be awarded for a 19-year-old, for a poor, socially backward boy for committing gang rape, what should the corresponding punishment be for a father figure and the highest authority in the organisation, for finger penetrating a young colleague, as per the regime of stringent punishment? And what would be the “mitigating circumstances“ the court can consider in such a case?

A difficult question, the court must answer.

For the Supreme Court too this is a moment of reckoning to bring in transparency and accountability . The Supreme Court has chosen to ignore past sexual misconduct while selecting judges for the Supreme Court. It is also time the court sets up a machinery to deal with the sexual exploitation that takes place under its very nose and set up appropriate machinery for redressal.

 

 

 

 

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#India – Law intern says she is being looked at with suspicion by SC panel #Vaw

NEW DELHI: A law intern, who has allegedsexual harassment by a recently-retired Supreme Court judge, feels she is being looked at with “suspicious eye” when she appears before the apex court‘s three-member probe panel.

She also said the reason for delay in coming out with the sexual harassment allegation was that she feels Indian law is “not equipped enough to sensitively deal with crimes against women”.

The website ‘Legally India’, which was the first to come out with her story, on Monday quoted her interview to Wall Street Journal in which she said it took her time to come to terms with the fact that she had been assaulted.

“When I finally did, all that I wanted to do was to erase the memory from my conscience. This was a man I had admired, I looked up to him.

“Indeed, I pondered over the idea of legal recourse, but feared it would do more harm than good. First, my case would have dragged on for years. Second, defence lawyers would make me relive every violating moment in court – something I wanted to bury at the time.

“Third, in cases of assaults, where there is no physical evidence, it’s one’s word against another’s, really. There’s no reason why a law graduate would have won over a judge with a spotless record. Even now, for instance, when I appear before the panel, I feel I’m being looked at with suspicious eye. I have to constantly justify that I’m not lying, I’m not making up this story. I feel humiliated,” the website quoted her.

She also said it was ironic that she, being a lawyer, “does not think Indian law, or our legal system for that matter, is equipped enough to sensitively deal with crimes against women”.

The law graduate, who first made public the allegation by writing her ordeal in a blog, said though she had not expected it to go viral, she was happy that it has caught national attention and triggered broader debates.

The intern said earlier there was guilt and shame attached to being raped and assaulted. The words were a taboo.

“Now, more and more people are questioning why they should put up with harassment – on the streets, in their homes, and at their workplaces. ‘Why should we bear with this? We haven’t done anything wrong,’ they say.”

The intern added that she had told her family about the harassment five months after the incident in May 2013 and they were also not keen to file a formal complaint.

“When I told my grandmother I was assaulted, she couldn’t understand why I was making a big deal out of it. In fact, she didn’t even think it was wrong. ‘We have all been harassed at some point or the other,’ she (grandmother) would say.

“My mother, meanwhile, said what had happened was indeed wrong, but that I had to accept it and move on. ‘You don’t have any other option,’ she (mother) would say,” the intern said.

  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/india-why-women-remain-silent-vaw-mustread/" target="_blank"> #India- Why women remain silent #Vaw #mustread
  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/india-sexual-harassment-at-workplace-women-who-dared-to-speak-vaw/" target="_blank"> #India – Sexual harassment at workplace: Women who dared to speak #Vaw
  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/india-urvashi-butalia-not-heading-tehelka-committee-vaw/" target="_blank"> #India – Urvashi Butalia not heading Tehelka committee #Vaw

 

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#India – Judges have to watch their scorecard

V. VENKATESAN

The deplorably small number of judgments by Justice Cyriac Joseph, especially when courts have a huge backlog of cases, is valid enough reason for concern at his suitability for the National Human Rights Commission

The Indian Supreme Court is an extraordinarily powerful institution in the world. It can make and unmake laws; it can keep the executive accountable, and seek to ensure the autonomy of institutions. It can rewrite the Constitution the way it wants, through its creative interpretation yet remain largely unaccountable for its omissions and commissions. Its collegium has the responsibility to choose judges to fill its own vacancies, but it sees little merit in adopting an open and transparent process while exercising it.

As a result, very little is known about the merits of a judge, before he or she is appointed to the Supreme Court, unless there are serious allegations damaging to the judge’s integrity. There is a vast pool of post-retirement jobs that awaits a retiring judge from the Supreme Court, in the form of membership of statutory tribunals and commissions, yet there is no mechanism to evaluate the suitability of former judges to these bodies.

The Government’s proposal to nominate the former judge of the Supreme Court, Justice Cyriac Joseph, to the National Human Rights Commission (NHRC), has brought into focus the issue of performance-evaluation of a judge.

While the members representing the Government on the NHRC selection committee appear to have favoured his nomination, the two members belonging to the Opposition, Ms Sushma Swaraj and Mr. Arun Jaitley, have submitted dissenting notes pointing to an adverse report of an intelligence agency about the unsuitability of the proposed nominee on the basis of his tenure at the Supreme Court.

Facts

The facts regarding Justice Joseph can be gathered from the Supreme Court’s website.

He authored exactly seven judgments during his tenure, from July 7, 2008 to January 27, 2012. However, he was a signatory to as many as 309 judgments, and 135 orders, all authored by his colleagues on the Bench. The website lists the judgments and the orders authored and/or signed by a judge together, and it requires considerable effort to identify those which were authored and not merely signed by a judge, as the author’s name is affixed on the top of a judgment.

Thus, Justice Joseph authored concurring judgments in two cases, namely, Action Committee, Unaided Private Schools & Ors v. Director of Education & Ors (August 7, 2009), and Haryana State Warehousing Corporation v. Jagat Ram (February 23, 2011). His judgment in the Action Committee, Unaided Private Schools seems to have been necessitated because of the compulsion to resolve the disagreement between the other two judges on the Bench, Justices S.B. Sinha and S.H. Kapadia. Justice Joseph opted to agree with Justice Kapadia in order to help arrive at the ratio of the judgment.

The website also shows that Justice Joseph wrote judgments in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi (December 16, 2010), State of Haryana & Ors v. M/s Malik Traders (August 17, 2011), Deepa Thomas & Others v. Medical Council of India & Others (January 25, 2012), Mohd.Asif v. State of Maharashtra (January 27, 2012), and A.V. Padma v. R.Venugopal (January 27, 2012).

Evaluation

Critics of the Government’s efforts to nominate Justice Joseph to the NHRC have pointed to the number of judgments authored and delivered by him as the factor weighing against him.

While they have a case against him, it has to be admitted that the number of judgments written by a judge alone cannot be a determining factor about his or her competence. As the Supreme Court mostly sits in benches of two or three judges, the senior-most on a bench decides once the hearing is complete, who among them will write the judgment, depending on the interest of the judge. The judge writing the judgment, then circulates the draft for the perusal of the other judge/s, who are then free to agree, or write concurring judgments, or dissents. Superfluous, concurring judgments can make the process of arriving at the ratio of a judgment challenging, and leave the litigants confused. But that cannot be an excuse for a judge to avoid judgment-writing altogether.

Scholars of the Supreme Court have never attempted to evaluate the performance of each judge, on the basis of the number of judgments and orders authored by him or her. It is probably because such a study is likely to lead to comparison, and the drawing of inferences regarding the competence of a judge, which may invite the charge of contempt of court.

George H. Gadbois Jr., who made a seminal contribution compiling the biography of the judges in his recent book, Judges of the Supreme Court of India, 1950-1989, is also silent on this aspect. He perhaps thought that compiling such data could only aim at evaluating the importance or contributions of a judge, which he has consciously avoided.

What data shows

When Justice Joseph joined the Supreme Court in 2008, the strength of the Court rose from 26 to 31, following a Constitutional amendment. Based on the number of judges, the average number of judgments and orders written by each judge could be easily arrived at, given the total number of judgments and orders in a calendar year.

Thus between 2008 and 2012, the average number of judgments and orders per judge varied from 88 (2008) to 27 (2012). The average was just nine in 1955, 14 in 1959, 25 in 1969, 17 in 1977, 15 in 1987 and 71 in 1996. During this period, the strength of the Supreme Court kept on increasing from: eight to 11 (1956), 14 (1960), 18 (1978), and 26 (1986).

Based on this data, it would be hazardous to infer the competence of a judge/judges in a particular year or era. As Gadbois would put it, some of those judges were giants who will be remembered a century from now. Others, to quote Gadbois again, are blips on the radar screen, sidebars to the history of the Supreme Court, likely to be recalled only by the closest of court watchers. In the history of the Supreme Court, some judges are celebrated merely because of their salient contributions to the interpretation of the law and the Constitution, and not because they wrote more judgments than their colleagues.

Yet, the number of judgments written by a judge cannot be dismissed as being irrelevant, especially in the context of the Court’s efforts to limit its own backlog of cases. If the number of judgments authored by a judge is deplorably and consistently below average, then it is an important factor in the evaluation of a judge. The concerns that such a judge may prove to be unequal to the demands of an institution like the NHRC are valid.

A test for government

The Supreme Court, in its March 3, 2011 judgment, set aside the appointment of Mr. P.J. Thomas as Central Vigilance Commissioner, even though the majority in the selection committee had recommended him. The Court quashed his appointment by emphasising the concept of institutional integrity. The key test for institutional integrity, it said, is to ask whether the incumbent would or would not be able to function and whether the working of the institution would suffer following the appointment. This test is as relevant in the appointment of Justice Joseph, as it was in the case of Mr. Thomas.

The Supreme Court held in the same judgment that if the selection committee decides to overrule any dissent while recommending a person for the appointment, it should record clear and cogent reasons for doing so.

In April, the Government appointed Mr. S.C. Sinha, Director of the National Investigation Agency to the NHRC, overruling dissent within the selection committee, pointing out that he did not have the knowledge, or practical experience in matters relating to human rights, as required under the Human Rights Act.

The reasons why the majority in the selection committee overruled the dissent have not been made public, and it is not known whether the Supreme Court’s directive has been complied with.

The appointment of Justice Joseph will constitute another test of legitimacy for the Government.

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#India- UP judge accused of molesting two girls in his office #WTFnews #Vaw #judgemolester

 #India-Towards a Decisive Victory in the Historic Battle for Women’s Rights

Reported by Anant Zanane, Edited by Sindhu Manjesh | Updated: January 23, 2013

Gonda, Uttar PradeshA judge in Uttar Pradesh has been accused of molesting two girls in his chambers at a court in  Gonda district, a two-hour drive from the capital of  Lucknow.

The two separate incidents allegedly took place on Monday.

The girls filed independent police complaints in which they allege that the judge made them undress and touched them inappropriately, claiming that he was trying to determine whether they are minors or younger than 18.

The girls were deposing before the judge in two separate cases of kidnapping that were lodged by their families after they had allegedly eloped. They had been summoned before the court to give their statements, which would have been used as evidence.

The police says that to register a case against the judge, it needs permission from the Allahabad High Court, which is awaited.

Lawyers boycotted the court in Gonda and vandalised the judge’s chambers, demanding his arrest.

 

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Sanction pension to mentally challenged person: Madras High Court #good news



CHENNAI : Coming to the rescue of a mentally affected person who was denied disability pension, the Madras High Court has directed the authority to sanction the pension in three months.

Disposing of a writ petition filed on behalf of him, Justice N. Paul Vasanthakumar concurred with petitioner’s counsel that the mentally affected individual was also entitled to get ‘Physical Disability Pension.’

The Judge also pointed out that the government had removed income limit for receiving such pension.

The writ petition was filed on behalf of C. Rajamani (46) of Jodukuli village in Salem district by his brother C. Saravanan, contending that Rajamani was denied pension even after authorities had issued Disability Certificate stating that he had mental disability to the extent of 65 per cent.

An application, submitted by him to Special Tahsildar, Social Security Scheme, Omalur, on June 28, 2010 seeking grant of pension, was rejected on the ground that his mother was getting pension and that the applicant had landed property.

M.R. Jothimanian, counsel for the petitioner, submitted that the income limit mentioned earlier was removed by the government from the financial year 2010-2011 and therefore the petitioner was entitled to get such pension.
When the petitioner again submitted an application, it was rejected on the ground that being a mentally disabled person, the petitions did not come in the category of ‘Physically Disabled Person.’

The counsel also submitted that the issue was clarified by the Deputy Director of State Commissionerate for Physically Disabled Persons, through his proceedings in 2012 stating that “if a person is mentally disabled, he is also entitled to get Physical Disability Pension.”

The counsel further said that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 also defines that physical disability includes ‘mental illness’ and therefore, the petitioner was entitled to get ‘Physical Disability Pension’ at the rate of Rs.1,000 per month.

After hearing the submissions, Mr. Justice Paul Vasanthakumar said, “Considering the said submission and having regard to the Certificate issued by the District Disabled Rehabilitation Officer, Salem, and in the light of the order dated June 28, 2010 removing the income limit, the impugned orders cannot be sustained.”

Setting aside the impugned orders, the Judge directed the Special Tahsildar to sanction pension to the petitioner within three months.

The court also permitted Mr. Saravanan to get pension on behalf of him, after getting orders in the Original Petition which was already filed in the District Court, Salem for appointing him as a guardian.

 

source: The hindu

  • #India- Enabling the disabled (kractivist.wordpress.com)
  • #iNDIA- Mental Health Law Reform: Challenges Ahead (kractivist.wordpress.com)

 

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#India- Bombay HC -‘Something is wrong somewhere’ #Vaw #Acidattack

xourtesy- rishabh arrora illustration -tehelka

By , TNN | Dec 13, 2012,

MUMBAI: Referring to the recent attack on a Kandivli woman with an insecticide spray, the Bombay high court on Wednesday lamented the general lack of fear of the law-and-order machinery, saying “something is seriously wrong somewhere”.
A division bench of Justices V M Kanade and P D Kode made the observation as it heard a suo motu public interest litigation (PIL) on safety and security of women. The PIL was taken up a little after the same bench confirmed the death sentence of two persons for raping and killing aBPO employee in Pune in 2007.Expressing concern over the assault on a woman in Kandivli, the high court wondered what causes such attacks. “Something is seriously wrong somewhere. There was a time… (when) the presence of even a single constable was sufficient to deter (criminals). Now, nobody is afraid,” said Justice Kanade.

A neighbour burnt the face of 23-year-old housewife Shraddha Langde on Tuesday morning by pressing open an insecticide spray at her and then clicking a lighter in front of it.

At the previous hearing of the PIL on Monday, the high court took note of the increasing cases of eve-teasing and of instances where people attempting to protect women were assaulted, even murdered.

On Wednesday, public prosecutor Revati Mohite-Dere submitted that the Supreme Court, while dealing with the issue of eve-teasing on November 30, had laid down guidelines for states and union territories to follow. “Until legislation on the issue is introduced, the apex court has set out measures to curb eve-teasing,” she said. In their order, the high court judges said that, in view of the SC guidelines, “it is not necessary for this (high) court to again lay down further guidelines”.

On the subject of providing security to women, the court will hear the state at the next hearing on December 19 or after the Christmas vacation. The government has been asked, if possible, to file a reply.

 

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