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#Goodnews – SC rejection a big blow to Justice AK Ganguly #Vaw

by Ritesh K Srivastava Last Updated: Monday, January 06, 2014, Zee Media Bureau/Ritesh K Srivastava

New Delhi: Spelling more trouble for retired apex court judge Asok Kumar Ganguly, the Supreme Court on Monday quashed a petition seeking a stay on Centre’s move to remove him as the chief of West Bengal Human Rights Commission (WBHRC) in connection with sexual harassment allegations made against him by a law intern. The development comes as a major blow for Ganguly, who has been mulling to quit as the WBHRC in the wake of rising demands for his ouster for sexually harassing a young law intern last year.

Reports on Monday said that the retired Supreme Court judge AK has spoken to former Attorney General Soli Sorabjee confirming his plan to quit as the WBRC chief. Ganguly’s decision to step down comes days after the Union Cabinet cleared the note for presidential reference against him. If Ganguly quits as WBHRC chief on his own, the Presidential reference will become invalid. The Union Cabinet gave its nod to the presidential reference after Justice Ganguly refused to quit the post.

The PIL also sought the quashing of the report in which a three-member panel of apex court judges indicted Ganguly for unwelcome behaviour against the law intern, who has accused the judge of sexually harassing him in a Delhi hotel last year. The PIL seeking to quash the complaint against the retired judge was filed in the apex court on Friday.

The petitioner said Ganguly was being maligned and was a victim of conspiracy as he had in an arbitration suspended Mohun Bagan for walking out of a football league match against the East Bengal club.

The All India Football Federation subsequently revoked Mohun Bagan’s suspension but slapped a Rs 2 crore fine on it. The three-judge committee looking into the allegations of sexual harassment levied by an intern on retired Justice Ganguly prima facie disclosed an “act of unwelcome behaviour” and “conduct of sexual nature” on the part of the retired judge.

The committee had observed that “statement of (victim) both written and oral, prima facie discloses an act of unwelcome behaviour (unwelcome verbal/non-verbal conduct of sexual nature) by Ganguly judge with the intern in a hotel last year. With PTI inputs

Read more here— http://zeenews.india.com/news/nation/supreme-court-to-hear-pil-seeking-to-restrain-action-against-ex-judge-ak-ganguly_901736.html

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#India – How does it feel to be criminalised because of one’s sexuality?

Criminal, as far as I know, used as a noun, means a person who has committed a crime — since when did consensual sex between adults become a crime?
By- Queer Feminist, Pramada Menon
December 11, 2013, was a day as any other for many people in this country dealing with inflation, poverty, violence, indecisive political parties and other such “commonplace” issues. For another set of people, this was a long-awaited day — a moment when the Supreme Court of India was going to deliver its judgment on Section 377 of the Indian Penal Code ( IPC).Most were sure that the Delhi High Court judgment of July 9, 2009, decriminalising homosexuality would be upheld. After all, what would criminalising homosexuals achieve? Yet, the Supreme Court thought otherwise. What it did was render “the homosexual” criminal.

In 2009, I remember sitting in the high court and listening to Justice Shah pronounce the judgment. A number of us wept, smiled and looked on disbelievingly. I have often wondered why I wept. I have never faced any discrimination based on my sexual identity and yet I felt my personhood validated. My sexual identity is as much a part of me as my many other identities, and yet that one identity, until then, made me a criminal in the eyes of the law.
In 2013, I feel angry. Even though I believe that my human rights are inherent and not open to interpretation, I feel that the Supreme Court, in the form of the Judges who delivered the judgment, has stripped me of my personhood. Since when does the law or the courts decide what sexual acts I or anyone else can engage in consensually? Criminal, as far as I know, used as a noun, means a person who has committed a crime — since when did consensual sex between adults become a crime?
I am angry because what this judgment has done is undo the sense of personal liberty that many, many same-sex desiring and transgender people had post the Delhi High Court judgment. From being an equal citizen in the eyes of the law, all of us start with the tag of being a criminal. With that description firmly in place, we then have to negotiate the social, economic and political terrain.

To Be is AbsurdMany tell us that we do not have to wear our sexuality on our sleeve. The usual argument being that heterosexuals do not; after all, who is interested in who is doing whom and when? Clearly, that does not hold true for those of us who are seen as sexual deviants. It continues to be an issue of great interest to everyone. People want to know reasons: why, how, when, where — quite like exhibits in a museum.

I get angry when I hear statements by Rajnath Singh, a senior BJP leader, who believes that homosexuality is an unnatural act. Or when Ram Madhav, a spokesperson for the RSS, tweets: 377 is about an unnatural relationship. Why are they invoking the idea of unnatural?
Is the tag of unnatural based on the idea of numbers, or the ways in which one steps outside socially sanctioned boundaries, or is it the fact that it is repugnant to them that there are people who chose to live their lives according to their own desires and are not harming anyone?
What is it about an act of desire or lust or love that is unnatural if it is consensual? Their flawed notions of “unnatural”, “against Indian tradition”, “Western import” and “elite issue” that are used as arguments against homosexuality need to be recognised as superficial and unsubstantiated by research. The reality is that LGBT people are very much part of this country and deeming them criminals and unnatural will not wish them away
It’s Nothing, ReallyIt is not “much ado about nothing” as Meenakshi Lekhi, the national spokesperson of the BJP, stated in a television interview. The “nothing” that she refers to are the lives of countless LGBT people who have claimed their “homosexual” identity with pride and are living their lives according to what they see as selfaffirming for themselves. The “nothing” means that, once again, people are expected to silence one identity of theirs for fear of .reprisal from the law, from family, from neighbours who do not like them for their sexual identity .

But We Shall FightThat “nothing” is not an empty fear, as is evident from BJP leader Yashwant Sinha‘s statement that India could arrest US diplomats having same-sex companions as homosexuality is illegal in India. So, the much “ado” is really about validating people for who they are and whom they desire and ensuring that their rights are upheld as enshrined in the Constitution of India.

Deeming “homosexuals” criminal is as absurd as saying that all lefthanded people are hereby declared criminals. But we will fight on, because we have implicit belief that we, as a nation, are not absurd.

  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/india-unnatural-sex-be-it-oral-or-anal-will-make-you-a-criminal-decoding-sec377-lgbtq/" target="_blank"> #India -Unnatural sex, be it oral or anal, will make you a criminal- Decoding #Sec377 #LGBTQ
  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/india-supreme-court-reinstates-ban-on-gay-sex-sec377-wtfnews/" target="_blank">India- Supreme Court reinstates ban on gay sex #Sec377 #WTFnews
  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/india-homosexuality-through-ages-the-door-was-always-open-sec377-lgbtq/" target="_blank"> #India – Homosexuality through ages ,The door was always open #Sec377 #LGBTQ
  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/press-release-black-day-for-human-rights-queer-rights-in-india-sec377/" target="_blank">PRESS RELEASE- Black Day for Human Rights, Queer Rights in #India #Sec377
  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/unhchr-dismayed-at-re-imposition-of-criminal-sanctions-for-same-sex-relationships-in-india-sec377/" target="_blank">UNHCHR dismayed at re-imposition of criminal sanctions for same-sex relationships in India #Sec377
  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/india-supreme-khaap-and-the-sec377-its-about-basic-human-rights-lgbtq/" target="_blank"> #India – Supreme Khaap and the #Sec377: it’s about basic human rights #LGBTQ

 

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Law Intern – My intention was to warn law students about Justice Ganguly #Vaw

The Hindu, Dec 24, 2013

Members of civil rights group protest against retired Supreme Court judge, A.K. Ganguly, outside the headquaters of West Bengal Human Rights Commission in Kolkata. File photo: Sushanta Patronobish
The HinduMembers of civil rights group protest against retired Supreme Court judge, A.K. Ganguly, outside the headquaters of West Bengal Human Rights Commission in Kolkata. File photo: Sushanta Patronobish

Status and position should not be confused for standards of morality and ethics in public life”

The law intern has again clarified that her intention in narrating, though belatedly, the “sexual harassment she suffered at the hands of the former Supreme Court judge A.K. Ganguly” is to warn young law students that status and position should not be confused for standards of morality and ethics in public life.

Noting that Justice Ganguly had written a letter to the Chief Justice of India on Monday and that several questions had been raised in the past few weeks, the intern said on Tuesday, “I think it is appropriate at this stage for me to answer some of them.”

 

On the timing and intent of her revelation on the blog, she said: “After the incident [on December 24, 2012], when I returned to college, NUJS Kolkata, I spoke to some of my faculty about the incident at different times. Since the incident occurred during an internship and the University did not have a policy against sexual harassment of women students during internship, it was indicated to me that any action would be ineffective. I was also informed that the only route for me was to file a complaint with the police, which I was reluctant to do. However, I felt it was important to warn young law students that status and position should not be confused for standards of morality and ethics. Hence I chose to do so via a blog post.”

On her deposition before the Supreme Court-appointed panel, she said: “I did not question the jurisdiction or intent of the three-member Judges’ Committee at any point and had full faith that they would establish the truth of my statements. I sought confidentiality of proceedings keeping in mind the gravity of the situation as well as the privacy of everyone involved. The Committee acted with great discretion given the delicate nature of the case and I appreciate that. On November 18, I appeared in person before the Committee and gave [a] oral and written statement and I signed it.”

 

On Justice Ganguly’s allegation about release of her affidavit dated November 29 [whereas the final report of the committee was released on November 28], the intern said: “On November 29, I sent an affidavit, signed and sworn on the same day, to Ms. Indira Jaising, Additional Solicitor-General, disclosing to her the details of my sexual harassment, and requested her to seek appropriate action. The contents of the affidavit are substantially the same as the statements made by me before the Committee.”

The law intern said that even after the operative portion of the panel report was made public, “many eminent citizens and legal luminaries continued to deride the Committee’s findings and malign me. Hence, I found it necessary to clarify the details of my statement to preserve my own dignity as well as that of the Supreme Court. Therefore, I authorised Ms. Indira Jaising to make my statement public. At this stage, I believe that anyone claiming that my statements are false is showing disrespect not just to me but also to the Supreme Court of India.”

 

On filing a police complaint, the intern said, “I request that it be acknowledged that I have the discernment to pursue appropriate proceedings at appropriate times. I ask that my autonomy be respected fully.”

 

‘It’s media trial’

 

Kolkata Staff Reporter reports:

 

Meanwhile, a Kolkata-based men’s right organisation has written to President Pranab Mukherjee stating that asking Justice Ganguly to quit as West Bengal Human Rights Commission chief is a gross violation of fundamental rights.

 

“Media trial and the biased approach of feminist organisations have self-righteously considered Justice Ganguly guilty based on mere accusation of a female,” said the National Coalition of Men.

 

Stating that Justice Ganguly’s resignation would set a wrong precedent, general secretary Amit Gupta asked if he forced to quit, why should MPs and MLAs facing criminal charges be spared?

 

Members of the organisation staged a demonstration outside the office of the WBHRC.

 

Those demanding his resignation also hit the streets. The Trinamool Congress-backed All India Legal Aid Forum, an organisation comprising lawyers, took out a rally from the Gandhi statue on Mayo Road to the WBHRC office.

 

 

  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/india-is-justice-ganguly-doing-more-harm-by-choosing-not-to-resign-vaw/" target="_blank"> #India – Is Justice Ganguly doing more harm by choosing not to resign? #Vaw
  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/download-sc-panle-report-on-justice-gnaguly-intern-case/" target="_blank">Download, SC panel report on Justice Ganguly- intern case
  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/india-sc-panel-indicts-justice-ganguly-in-sexual-assault-case-vaw/" target="_blank"> #India – SC panel indicts Justice Ganguly in sexual assault case #Vaw
  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/justice-ganguly-misbehaved-despite-my-protests-intern-vaw/" target="_blank">Justice Ganguly misbehaved despite my protests: Intern #Vaw
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Aadhaar: HPCL, IOC and BPCL in contempt of Supreme Court order? #UID

200 px

200 px (Photo credit: Wikipedia)

 

 

 MONEYLIFE DIGITAL TEAM | 20/12/201

 

As per the Supreme Court’s interim order, no one can insist of Aadhaar for any government schemes like ration card, bank account, cash transfer, issue of LPG subsidies and if it is done, it is contempt of court
Despite clear directions from the Supreme Court not to make Aadhaar mandatory for availing essential services from the government, oil marketing companies (OMCs)continue to send SMS asking customers to provide their unique identification (UID) number for liquefied petroleum gas (LPG) subsidy.
All state-run OMCs, Hindustan Petroleum Corporation Ltd (HPCL), Bharat Petroleum Corporation Ltd (BPCL) and Indian Oil Corp (IOC) are sending messages (SMS) to their customers asking them to their Aadhaar numbers with bank and submit to the distributor.
This is the SMS that is being sent by the three OMCs to LPG customers across the country…
“Dear XXXgas Consumer, to avail LPG Subsidy in your bank account, kindly submit Your Aadhaar to your Distributor and to your Bank immediately”
What is surprising is even before the apex court decision, Rajiv Shukla, minister of state for parliamentary affairs and planning, told the Lok Sabha on 8 May 2013 that, “Aadhaarcard is not mandatory to avail subsidised facilities being offered by the government like LPG cylinders, admission in private aided schools, opening a savings account etc.”
Earlier this month, the West Bengal Assembly passed a resolution on Aadhaar or the UID number asking the union government to immediately withdraw the decision to link the UID with direct benefit transfer (DBT) scheme. Leader of the Opposition and Communist Party of India (Marxist) or CPI(M) member Surya Kanta Mishra said that the Centre legally cannot make biometric enrolment mandatory and that the entire process was unscientific as there was a scope for margin of error to the extent of 20%.
In November 2013, The Kerala state plenum of CPI (M) adopted a resolution, which said, “The government has been pressurising people to open bank accounts and link them to Aadhaar. The decision of oil companies to make Aadhaar-linked bank account compulsory for cooking gas subsidy is unacceptable as only 25% of the country’s population had so far obtained the Aadhaar. Also instead of allowing people to open zero-balance accounts, many banks are insisting they should deposit Rs500 to Rs1,000 to open accounts.”
A consumer is entitled to receive nine cylinders of LPG per family per year under the subsidised quota. The United Progressive Alliance (UPA) government is trying to link Aadhaar-enabled service delivery to various government schemes such as MNREGA wage payments, PDS distribution, payment of social security benefits like as old-age payments and distribution of LPG cylinders. This is being done without taking stock of the ground level infrastructure and practical difficulties.
OMCs insisting upon customers to submit Aadhaar number for availing subsidy for LPG cylinders have not only irked consumers and activists but also some consumer organisations. According to a report from the Hindu, Mangalore-based Gas and Ration Consumers Forum is contemplating filing a public interest litigation (PIL) against attempts to making Aadhaar Card compulsory for availing LPG subsidy.
The Forum has sent notices to all three OMCs with copies to Karnataka High Court, the Supreme Court, the Prime Minister and the Ministry of Oil and Natural Gas in New Delhi. K Dharmendra, president of the Forum told newspaper that the Supreme Court orderclarified that Aadhaar cannot be made compulsory for availing any government benefit including LPG subsidy and said the three OMCs were violating the order. “This amounts to contempt of court,” he said.
On 23 September 2013, while hearing a PIL filed by retired Karnataka High Court judge Justice KS Puttaswamy and advocate Parvesh Khanna questioning the legal sanctity of Aadhaar, the Supreme Court said, “The centre and state governments must not insist on Aadhaar from citizens before providing them essential services.”
Many consumer organisation representatives whom the newspaper spoke to said the government was trying to impose Aadhaar cards on people through the backdoor after Supreme Court struck it down and were harassing the LPG consumers.
According to a report from Asian Age, several LPG consumers from Andhra Pradesh have not been getting the subsidy amount though they submitted Aadhaar at banks and gas agencies long ago.
Speaking with Citizen Matters, Bangalore, Justice Puttaswamy said, “An interim order is as much as a final order. So presently all these government schemes cannot be imposed upon people. And if it is done, it is contempt of court. The interim order does not mention any names of schemes. But under this, no one can insist of Aadhaar for any government schemes like ration card, bank account, cash transfer, issue of LPG subsidies and so on.”
What is worst is few customers who have linked their Aadhaar numbers with bank and submitted to LPG distributor are being charged value added tax (VAT) and other duties. Dharmendra of Gas and Ration Consumers Forum told the Hindu that their group would bring to the notice of the High Court that those who link their Aadhaar cards would be made to pay about Rs120 towards taxes.
According to a report from the New Indian Express, those who have been over-enthusiastic to follow the government directive to link Aadhaar cards with their bank accounts to avail subsidies for LPG cylinders and other benefits are now ruing their decision. “For, even if the LPG subsidy amount was debited from their accounts, going by the prices of last month, an additional amount of Rs26.65 was deducted from it against VAT.” Till the Aadhaar issue cropped up, a VAT amount of Rs20 was being deducted from consumers at the door delivery of cylinders.
“In the case of LPG consumers who are yet to opt for Aadhaar linkage, they had paid only around Rs445 per cylinder in September. It will remain the same in October also. But for those with Aadhaar-linked bank accounts, the price was around Rs945 in September. At the time of booking itself, a subsidy component of Rs435 was credited in the bank account of such consumers. In the remaining second subsidy component of Rs109, the deduction of VAT tax was effected,” the report said.

Read more here- http://moneylife.in/article/aadhaar-hpcl-ioc-and-bpcl-in-contempt-of-supreme-court-order/35691.html

 

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#India – SC notices to Centre, states over industrial pollution

The Times of India, Ahmedabad, 24 December 2013

Vadodara: The Supreme Court (SC) has issued notices to the Union government, Central Pollution Control Board (CPCB) and 19 other states including Gujarat on a public interest litigation (PIL) filed by the Farmers Action Group (FAG) and the Paryavaran Suraksha Samiti (PSS). The organisations had sought implementation of pollution norms and implementation of the ‘polluter pays’ principle.

The PIL filed by PSS and FAG was referred to the forest bench for hearing. The bench comprising justices A K Patnaik, Surinder Singh Nijjar and F M Ibrahim Kalifulla heard the PIL and issued notice to all 21 respondents.

The PIL filed under Article 32 of the Constitution of India had expressed concern over the pollution of water bodies including groundwater and sea waters around the coast, thereby putting at risk the health and livelihoods of millions of people and also the health of animals, flora and fauna. Well-known human rights lawyer Colin Gonsalves argued the PIL for PSS and FAG, according to a press release.

The PIL demands for directing the respondents to ensure that no effluents having pollutants in excess of the prescribed norms flow into any water body (including groundwater) or seep into the soil, and to ensure that no industry is permitted to function unless it has an effluent treatment plant that meets prescribed norms.

The PIL pertains to pollution in 43 of India’s most critically polluted clusters and 32 severally polluted clusters. The release adds that a nationwide studies on pollution in industrial areas were conducted in December 2009 by the CPCB and IIT Delhi and in 2011 by SGS India Private Limited, Mumbai. These studies showed that 43 of 88 industrial clusters studied in various states of India were critically polluted and 32 were severely polluted.

The release added that many industrial clusters of Gujarat came very high up in this list. The other cities were in the states of Andhra Pradesh, Tamil Nadu, Orissa, Maharashtra, Jharkhand, Chhattisgarh, West Bengal, Punjab, Haryana, Rajasthan, Madhya Pradesh, Karnataka, Kerala, Uttar Pradesh, Himachal Pradesh, Bihar, Uttarakhand and Delhi.

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#India – Lawyer Ritwick Dutta kicking Vedanta ,Posco, Jindal and many

By Megha Mandavia, ET Bureau | 23 Dec, 2013,
Environment lawyer Ritwick Dutta has blocked big projects like bauxite mining by Vedanta Resources and Posco’s steel project in Odisha.
MUMBAI: For India Inc, 39-year-old environment lawyer Ritwick Dutta is a perennial nuisance, someone who has been obstructing, slowing and litigating against the industrialisation of the country. But for tree huggers, he’s Captain Planet trying to save the earth from mindless destruction.Dutta, a Supreme Court lawyer for more than a decade, has blocked big projects like bauxite mining by Vedanta Resources and Posco‘s steel project in Odisha. He fought 350 cases against behemoths lik Posco, Vedanta, Jindal SteelBSE 5.67 %, and government-backed NTPCBSE 0.99 % in the past 10 years, making him unpopular with Corporate India.
A substantive amount of our industrialism is happening at the cost of the livelihoods of people,” says Dutta. “The locals are saying that they’ll get jobs as watchmen, guards, but top jobs will go to engineers from outside. It is a real issue of livelihood loss.”

He fought his first case at the age of 28 against Vedanta, representing the Dongria Kondh tribals of Niyamgiri, who wanted to stop the London-listed giant from mining bauxite. Dutta fought the case all the way to the Supreme Court, which then asked Vedanta to get approval from the tribals to start mining.

The tribals rejected the request, and the hills remain untouched. “Virtually 330 acres of forest land is diverted every day in India, according to the ministry of environment,” says Dutt ..

The cases that come for legal challenge are less than 1% of the approved (projects).” Dutta, along with another environment lawyer Rahul Choudhary, founded the Legal Initiative for Forest and Environment (LIFE) in 2005.Local communities, farmers, horticulturists, who fear loss of business and sustenance, make up 90% of their clients. Dutta fights about 30-40% cases for free while for the rest he gets paid sometimes in cash, sometimes in vegetables, fruits and hand-woven clothes.

He represented horticulturists in Himachal Pradesh against Lafarge‘s lime mining project in 2011 and mango farmers in Ratnagiri against JSW’s thermal power plant.Dutta, however, says he has lost more lawsuits than he has won. Lafarge and Vedanta were wins, and the win rate is getting better.”Between 2005 and 2009, we succeeded in one or two cases. It was problematic to get evidence. But the coming of Right to Information Act helped a lot,” says Dutta. We found, using Right to Information, the former power secretary, P Abraham, chairing the Expert Appraisal Committee for dams in northeast was himself sitting on the board of the company whose project he approved.”

Today, 65-70% of lawsuits result in at least some outcome in terms of more scrutiny through public hearings or having to re-apply for environment clearance, says Dutta. Even corporate lawyers, who have fought against him, call him honest, focussed and driven.

He has raised important issues. No one earlier was bringing up these issues so consistently,” says Prashanto Chandra Sen, who represented a leading mining firm against Dutta. However, there is a concern about his overwhelming activism. “He is a good lawyer as far as environment is concerned. He is a mix of activism and law.
He should see both sides of the issue,” said Supreme Court lawyer ADN Rao, who too has fought against Dutta. Dutta, a graduate in sociology and law, never intended to become an environment lawyer. His interest lay in environment activism and conservation.But he realised that there were few full-time environment lawyers ready to fight on behalf of communities. “Frankly I don’t think I have the capacity to study anything else which is non-environmental.would have turned into a very fluff corporate lawyer. It is not a sacrifice,” says Dutta.

 

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#India- Gems from the SC order on #Sec377 – Download

Supreme Court strikes Down  Delhi High Court o...

Supreme Court strikes Down Delhi High Court order on abolision of 377 of IPC (Photo credit: ramesh_lalwani)

Those who indulge in carnal intercourse in the ordinary course and those  who indulge in carnal intercourse against the order of nature constitute different  classes and the people falling in the later category cannot claim that Section 377 
suffers from the vice of arbitrariness and irrational classification.’
 
 
 ‘While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution. “
 
‘It is, therefore, apposite to say that unless a clear constitutional violation is proved, this Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need.’

 

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#India – SC verdict on gay sex: Today India gave birth to millions of criminals #Sec377

Representational image

Representational image

This isn’t a nuanced review of the Supreme Court’s decision to criminalise homosexuality. It can’t be, because this is personal. This, honourable Supreme Court, is very very personal. Today, on 11/12/13, you’ve bypassed the public spaces and living rooms, and entered the bedrooms of millions of educated, progressive, law abiding citizens of your country to turn them into criminals.

The court just announced to the entire world that, in India, two citizens of the same gender expressing love in the privacy of their own homes is a crime. It just told the world, the United Nations and the western media that while predators, rapists and the corrupt roam our streets freely, law enforcers with handcuffs dangling from their waists in the largest democracy will be on the lookout for adults who wish to have consensual “unnatural sex”. It just reminded the world that India is an intolerant and regressive state where liberal opinions are not welcome and modernity is a facade.

In 2009, the Delhi High Court didn’t give the LGBT community legal permission to get married, nor did it change adoption or property laws – that was still a long battle away. What it did do was tell the 30 million LGBT people in this country they were not criminals. It gave these groups the opportunity to walk on the roads without the fear of being arrested; it gave them the platform to demand other fundamental rights.

But today, by criminalising homosexuality, the Supreme Court has taken India back, not to 2008, but way back to the 19th century. It has betrayed the trust of the millions who came out and proudly shared their sexual orientation with friends, families, employers and the society. It has whitewashed the efforts of thousands of activists who, in the four years after the 2009 verdict, strived to make public spaces like hospitals LGBT-friendly. It has whitewashed the efforts of all those who have worked with MSM groups with full support of the government and international agencies to bring down HIV cases. It has given the likes of Baba Ramdev the audacity to call 30 million people of the LGBT community “addicts” and invite them to his yoga ashram to get cured.

The Supreme Court has pushed millions of people back into the dark, barbaric ages. It just told them they are worse than men who rape their wives, and that having sex with a person of the same sex is as good as murdering an innocent human being because both these “offences” are punishable with life imprisonment. It also possibly told friends, family and colleagues of people of the LGBT community that by supporting and not reporting homosexual activities to law enforcers, they are abetting a crime.

The court has put the lives of 30 million people and of several millions more of their friends and supporters into the hands of the parliament – a parliament that since 1996 has not been able to pass the Women’s Reservation Bill, that has not been able to pass the HIV bill for half a decade, where the politicians of the ruling party play minority-appeasing politics, and politicians of the opposition play the conservative card, reject the idea of a modern “India” and call for the formation of a “moral” “Bharat”.

On his last day in office (he will retire tomorrow), Justice Singhvi deleted article 21 from the constitution of India and deprived millions of their right to life and personal liberty. You, sirs, just gave birth to 30 million criminals. Now, you need to tell us if you have enough judges to sentence each of us to life imprisonment and if your jails have enough cells to accommodate each of us. We’ll wait for the answer while the human rights of the more vulnerable members of “our society” are violated by the moral police and the law enforcers.

 

 

 

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#India – Not the Supreme Court for gender justice #Vaw

Friday, Dec 6, 2013, 13:04 IST | Agency: DNA Web Team

The Supreme Court abnegates its duty to act against sexual harassment

John Austin, the renowned British jurist, believed that judges have no option but to make the law, otherwise, the law must be “a miraculous something made by nobody existing, I suppose, from eternity“. Justice Oliver Wendell Holmes, Jr. of the US Supreme Court argued that judges must make the law, else it would remain a “brooding omnipresence in the sky”.

Our Supreme Court has, especially of late, been an activist Court, charting new paths in jurisprudence where none existed, and has rarely hesitated to make a break from tradition for the cause of justice.

So, one cannot help but being dismayed at the apex court washing its hands off Justice AK Ganguly’s transgression of every norm of judicial conduct and propriety. Despite the Committee (comprising three sitting judges of the Supreme Court) finding prima facie merit in the allegations of sexual harassment by an intern, Chief Justice of India (CJI) P Sathasivam and his colleagues on the Bench have decided:

“Considering the fact that the said intern was not an intern on the roll of the Supreme Court and that the concerned judge had already demitted office on account of superannuation on the date of the incident, no further follow up action is required by this Court.”

Effectively, it means that since the complainant was not a rostered intern under a sitting judge but a research associate for a book Justice Ganguly was in the process of authoring post his retirement, and since the incident took place in a hotel where he was staying and not within the precincts or premises of the Supreme Court, the court is absolved of all responsibility.

It is not the first time their Lordships have sought refuge in that fortress of rules and principles which appear unjustly nebulous. In 1995, the Bombay High Court was rocked by Justice A M Bhattacharjee’s refusal to resign despite being found guilty of judicial misconduct. In its judgement, the Supreme Court held that the Bar could not protest or pass resolutions against a sitting judge whose actions were out in the open for all to see. Instead, the matter must be taken up with the chief justice of the high court and, if there is no redress, then with the CJI and await a response for a “reasonable period”.

But what constitutes a “reasonable period”? What if the Chief Justice of India failed to respond? Would the accused Judge continue to adorn the Bench while the appropriate petitions made their way through the serpentine alleys of the judiciary’s hierarchy? There was silence from the court.

The reasoning in the present case is, with all due respect, facile at best, and at worst, deeply reflective of the sexism entrenched in the judiciary. Even to someone trained in the law and not easily tempted by the fruit of imputing motives, this citing of a lack of jurisdiction points towards certain imperiousness in refusing to acknowledge and deal with a malaise which taints the very quality of justice.

Such an approach appears ironical because the same Supreme Court framed the Vishaka guidelines in 1997 to effectively deal with sexual harassment at the workplace. More irony is in store when one notices that it took the apex court 16 long years to practise what it ruled from the Bench – the Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 were brought into force only in August 2013. One might be forgiven for being cynical and wondering if all judgements championing the cause of women’s rights and gender justice were the shibboleths of an institution steadfastly opposed to holding up a mirror to itself.

Some commentators might commend the court for at least not brushing aside the allegations under the carpet with the specious reasoning that an ‘in-house’ panel would do what it deems best, lest the independence of the judiciary is put at stake.

However, such contentment with a minor break from the status quo elides a much required scrutiny of the court’s conduct.

Three issues cry out for attention. One, in the “operative part” of the committee’s report which has been made available to the public, it is stated that the court was awakened from its torpor not on the basis of the complainant voicing her allegations in the open, but because it was alarmed that a newspaper report with the headline “SC judge harassed me, says intern” – which gives the impression of a sitting judge’s involvement – might imperil the judiciary’s credibility.

Two, is it squeamishness on the part of the sexagenarian guardians of the law to call molestation or “sexual assault (in the words of the complainant: “not physically injurious, but nevertheless violating”) an “act of unwelcome behaviour (unwelcome verbal/non-verbal conduct of sexual nature)”? Or, as the venerable Justice Krishna Iyer had put it, an act of ‘erotic delinquency’?

Three, why did this committee gloss over Justice Ganguly’s unworthy conduct of casting aspersions on the complainant’s credibility in this 17 November, 2013 interview with a tabloid?  From a court which otherwise responds to media reports with alacrity, this elision appears disturbing, if not suspicious. The committee submitted its report on 28 November, 2013; therefore, this interview clearly falls within the domain of interfering with the judicial process and called for suitable action.

Or is it?  One thing is clear: the Supreme Court is drawing a thick line between its administrative and judicial functions, in so far as the duty to act judicially (emphasis, mine) is concerned. Again, such solipsistic cherry-picking is not new to the court. 2010 witnessed an unprecedented instance of the court’s institutional exceptionalism – it appealed to itself against a Delhi High Court judgement mandating disclosure of judges’ assets.

The turn of events in the immediate case makes it redolent of the sordid Clarence Thomas incident in the US, in which Anita Hill, the complainant against Thomas’s lurid acts was publicly ridiculed.

Already doyens of the Bar as well as the Bench, among them, an ex-CJI and a former Solicitor General have started closing ranks around Justice Ganguly, while serial litigant Manohar Lal Sharma has filed a PIL demanding investigation and penal action against the complainant. Justice Ganguly, with his confidence bolstered by such support, has refused to resign from the position of chairperson of the West Bengal Human Rights Commission. He could perhaps take a leaf out of Justice Arun Madan’s book and make a graceful exit before sullying the judiciary’s reputation even further. In 2004, after a Supreme Court committee had charged him with demanding sexual favours from a litigant, he resigned, hoping to escape prosecution. His hopes did not go in vain.

But this is not 2004, and it is imperative that deterrent measures against such crimes get written in the book of precedents. There is a complaint calling for an FIR to be lodged and the law to take its course. It goes without saying that in such cases, respecting the complainant’s agency is an essential ingredient of justice. Whether she shall go ahead and enable the criminal law to be set into motion is entirely her right to choose, and we must respect and support her irrespective of her decision.

The Supreme Court has not covered itself in glory by abdicating its role and relegating the present case to the ‘administrative matter’ back-burner. However, there is still a chance to redeem itself, albeit partially. On 12 November this year, it ruled that an FIR and subsequent investigation is mandatory when the commission of a cognisable offence is reported.

Justice Ganguly has retired from the Bench, but that does not excuse him from adhering to the highest standards of judicial conduct. After all, the chairperson of a state Human Rights Commission does discharge a quasi-judicial function and enjoys some perks of judicial office.

Provided the complainant agrees let this be a test case for the judiciary as an institution – let it walk the talk and set a precedent of critical self-assessment and correction.

In case the court decides not to act, it shall only validate what The Book of Judges of The Old Testament tells us: “when the judges rule, every man doth that which is right in his own eyes.”

The writer graduated in the Class of 2007 of NUJS, the same law school as that of the complainant.

 

  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/india-sc-panel-indicts-justice-ganguly-in-sexual-assault-case-vaw/" target="_blank"> #India – SC panel indicts Justice Ganguly in sexual assault case #Vaw
  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="http://www.kractivist.org/download-sc-panle-report-on-justice-gnaguly-intern-case/" target="_blank">Download, SC panel report on Justice Ganguly- intern case

 

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#India – Is Justice Ganguly doing more harm by choosing not to resign? #Vaw

For an institution that has always been regarded as the sanctum sanctorum and the country’s pulse for righteousness, the sexual harassment complaint against former judge Ashok Kumar Ganguly has thrown up a challenge for the Supreme Court to introspect.

Questions are also being raised whether justice Ganguly, who now heads the West Bengal Human Rights Commission, should continue in office or quit.

“I have not decided. I am undecided,” the former apex court judge said today maintaining “time has not come to think about it.”

However, not many in the legal fraternity share his views.

 

“When a person is holding a position of trust then even on slightest suspicion of misconduct which may amount to crime later, the person concerned should resign immediately,” Additional Solicitor General of India Indira Jaising told NDTV in a discussion The Buck Stops Here.

 

Former Supreme Court judge AK Ganguly.

Justice Ganguly has been the subject of a probe following allegations of sexual harassment by a young law intern.

“Our judges are supposed to be worthy of being worshipped. The interns who work under Supreme Court judges consider them as hallowed beings. Now for a person to function in such a situation (when he is an accused) does not do well for himself or to the institution. If he wants he can go on leave. The institutional integrity should be preserved and the WBHRC head must step aside,” said eminent lawyer Harish Salve.

Salve also pointed out that Justice Ganguly after superannuation is no longer protected as per the Supreme Court judgement on the K Veeraswami versus Union Of India and Others case that was delivered on 25 July 1991.

 

The judgement says: “No criminal case shall be registered under s.154, Cr. P.C. against a Judge of the High Court, Chief Justice of the High Court or a Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter.”

However, senior journalist BG Verghese felt that the former Supreme Court judge still enjoys the freedom to decide whether to quit or not to quit. “He is not legally bound to resign. But had I been in his place I would have recused myself until the investigation was over,” Verghese said. Members of the panel also did not agree with the “character certificate” given by former chief justice of India Altamas Kabir to his peer.

“Justice Kabir has put pressure on us by giving a character certificate by making a gratuitous comment,” Jaising said.

 

Kabir had recently said, “One automatically does not resign on the basis of allegations. I know he had said that he was shocked and shattered. I never ever would believe that this is possible.” Senior advocate Raju Ramachandran also shared Jaising’s views.

Senior advocate Raju Ramachandran also shared Jaising’s views.

“Altamas Kabir’s conspiracy theory was an uncalled for comment. It allowed the media and politicians to exploit the situation,” Ramachandran said. Kabir had said, “The higher a person climbs, the more that person is subjected to accusations.”

Ramachandran made it clear that justice Ganguly should no longer be a part of the constitutional body in West Bengal. “If the Supreme Court has found it fit to name justice Ganguly even at this stage he should stay away,” said Ramachandran.

Senior advocate KTS Tulsi, who was part of the programme, however chose to differ. “Stepping down would almost result in admission of guilt,” Tulsi said. He even went on to question the long time taken by the intern to let the world know about it. “Eleven months only to complain is quite a delay. The courts even doubt when there is a delay of 11 hours. Ideally, a woman should complain within 24 hours if her sanctity has been violated with,” Tulsi said, provoking strong responses from others particularly Jaising. “

Tulsi does not know the psychology of women, his history and does not know how a women feels when she faces sexual harassment,” she said. The absence of an internal committee dealing with such offences in the Supreme Court despite its self-made Vishaka guidelines was also critically examined.

“It is alarming to know that despite framing Vishaka guidelines the Supreme Court does not have a committee on the same line,” said professor Ananya Chakrabarti from Kolkata’s St Xavier’s College.

“Perhaps the judges never thought that it would ever apply to them,” said Ramachandran. The panel was unanimous that the Supreme Court-appointed committee to investigate the case should be made public soon.

Read more at: http://www.firstpost.com/india/is-justice-ganguly-doing-more-harm-by-choosing-not-to-resign-1264737.html?utm_source=hp-footer

 

Read more at: http://www.firstpost.com/india/is-justice-ganguly-doing-more-harm-by-choosing-not-to-resign-1264737.html?utm_source=hp-footer

 

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