Wider reach: Editorial on Union law minister flagging poor social diversity among higher judiciary

 

It is paradoxical that the institution that upholds the rights of the underprivileged and the historically oppressed should itself lack in social diversity in its higher echelons

The poor social diversity among the higher judiciary has become a matter of concern among social activists and others who work for the scheduled castes, scheduled tribes and other backward classes. Based on the numbers given in writing in the Rajya Sabha by the Union law minister, the chairman of the National Confederation of Dalit and Adivasi Organisations pointed out that 3% of judges are SC, 2% are ST and 12 % are OBC, which makes the higher judiciary into an “exclusive club” of the upper castes. The law minister’s account also said that there are only 37 minority judges and two women judges in the Supreme Court. That defines the exclusive club even more clearly, particularly its patriarchal character. The system of selecting judges has no scope for reservations. The names are sent up by a collegium and approved by the government. The law minister said that the government has been asking the collegium to give special attention to suitable candidates from SC, ST and OBC segments, but so far the selections imply that this may not have been the case. The NACDAOR chairman and the secretary of the All India Other Backward Classes Employees Federation feel that a law or an executive order should be enacted to create the desired social diversity among the upper judiciary, since the judiciary is not taking corrective action.

It is certainly paradoxical that the institution that upholds the rights of the underprivileged and the historically oppressed should itself lack in social diversity in its higher echelons. Those wishing for change feel that without adequate representation, the points of view of the weaker-voiced segments will not be fully understood. Besides, it is only fair that the courts too should have the social diversity that has been introduced in other institutions by law. Also, courts that establish the rights of women should have more women among judges; they should exemplify the gender equality that they pronounce on. None of this is to question the wisdom or fairness of the honourable judges, but it does emphasise the importance of perception for any public institution. Public perceptions of equality, diversity and transparency are valuable in the case of the justice system. Social diversity and gender equality are issues at the forefront of public discussion; it would be reassuring if courts exhibited them.

Source: The Telegraph, 11/12/24

Does the Indian judiciary have a ‘patriarchy problem’?

 

As Justice Fathima Beevi, the first woman Supreme Court justice in India, passes away, a look at the representation of women in the Indian judiciary.

Justice Fathima Beevi, the first Indian woman to become a Supreme Court judge, died on Thursday at the age of 96 in Kollam, Kerala. With her appointment to the SC in 1989, Justice Beevi became the first Muslim woman judge of the Supreme Court, as well as the first woman Supreme Court Justice in Asia.

Even as she acknowledged that the judiciary is a patriarchal institution, Justice Beevi also famously said that she has “opened the door” for women with her appointment.

What is the representation of women in India’s Supreme Court?

Since 1989, only 10 women have made it to the Supreme Court. Currently, there are only three female judges of the 33 Supreme Court judges – Justices Hima Kohli; Bela Trivedi; and BV Nagarathna.While Justice Nagarathna is in line to become the first-ever female Chief Justice of India on September 25th, 2027, her tenure will be only 36 days.However, the appointment of Justices Kohli, Nagarathna, and Trivedi to the top court in 2021 created history, as this marked the first time that so many females were appointed to the SC in one go. Additionally, this was significant as for the first time we had four female judges in the SC at once, the highest number so far.

Apart from this, there have been only eight other female judges in the history of India’s apex court. They include Justices Sujata Manohar, Ruma Pal, Gyan Sudha Misra, Ranjana Desai, R. Banumathi, Indu Malhotra, and Indira Banerjee and Fathima Beevi.

This means that among the total 268 judges in the Supreme Court’s history, only 11 have been women. In other words, only 4.1% of all Supreme Court judges have been women, while the remaining 96% are men.

Is the situation in High Courts any better?

Presently, India has 25 high courts with a total sanctioned strength of 1,114 judges. However, according to the Department of Justice’s website, only 782 judges are working while the remaining 332 judges’ posts are vacant. Among these, only 107 judges, or 13% of all HC judges, are female.

Currently, none of the country’s 25 HCs have a female chief justice, barring the Gujarat High Court, where the collegium appointed Justice Sunita Agarwal in July this year because there weren’t any women HC CJs in the country.

Responding to a question by Lok Sabha MP Asaduddin Owaisi on the representation of weaker sections among high court judges, Union law minister Arjun Ram Meghwal said in July that appointments to the higher judiciary are made under Articles 124, 217, and 224 of the Constitution, which don’t provide reservation “for any caste or class of persons.”

Despite this, the Centre requested that HC CJs duly consider suitable candidates who are women, minorities, scheduled castes, or tribes, among others, while sending proposals for appointing judges, to “ensure social diversity” in the process, Meghwal said.

Before this, in February, while responding to a question by Rajya Sabha MP Rakesh Sinha on the strength of female judges and lawyers in the high courts and the Supreme Court, the then Union Law Minister Kiren Rijiju revealed, “As on 31.01.2023, in the High Courts, against the sanctioned strength of 1108 Judges 775 Judges are working out of which 106 are women Judges and 669 are male Judges. The percentage of women Judges is 9.5% of the total strength and 13.6% of the working strength of High Court Judges. At present no women Chief Justice is working in any High Court of the country.”

Speaking of the subordinate judiciary, a 2018 study by the Vidhi Centre for Legal Policy found that while representation of women in the lower judiciary is relatively higher at 27%, it hit a glass ceiling in higher appointments — as district judges and subsequently at the high court level.

What is the situation for the lower judiciary?

In its 2018 study on the representation of women in the lower judiciary, Vidhi found that there were 15,806 judges in the lower judiciary between March and July 2017.

The report found that only in three of the smallest states — Goa, Meghalaya, and Sikkim, with a collective total of a mere 103 judges — did the percentage of women judges cross 60%. Barring Telangana and Puducherry, the percentage of women judges remained below 40% for all other states, regardless of geography, cultural considerations, or other differences.

Though there is no reservation for women in the higher judiciary, several states have provided quotas for women in the lower judiciary, including Andhra Pradesh, Assam, Bihar, Chhattisgarh, Jharkhand, Karnataka, Odisha, Rajasthan, Tamil Nadu, Telangana, and Uttarakhand, which provide between 30% and 35% of the total seats for which recruitment is done through direct appointment.

More recently, another study titled the India Justice Report (IJR) 2022 revealed that “only 13% of High Court judges and 35% of Subordinate Court judges are women.” At the level of district courts, Goa had the highest, or 70%, of women judges, while Meghalaya (62.7%), Telangana (52.8%), and Sikkim (52.4%) came close behind, the report said 

So why is there a lack of Indian women’s representation in the judiciary?

Reasons for the lack of female representation in the judiciary include an entrenched “old boys’ club mentality”, which makes it harder for women to lobby for judicial posts.

Speaking to The Guardian in 2017, senior advocate Indira Jaising pointed out the small courtesies offered by men to other men, such as the chance to have their cases heard first, the friendly body language of male judges when speaking to male lawyers and said, “It gets to be depressing not to have a community to bond with. [Women] are increasing now, but they’re also not very bonded, they are isolated.”

Besides this, factors like sexual harassment, clients not trusting women advocates with high-stake cases and lack of supportive infrastructure, from toilets to maternity leave also contribute to higher attrition rates of women in judiciary and litigation as well.

The lower judiciary is better than the High Court and Supreme Court. That’s perhaps because entry to the lower judiciary is through an examination, while the High Court and Supreme Court are decided by the collegium which works through informal channels of picking candidates.

In April 2021, while hearing an application filed by the Supreme Court Women Lawyers Association for intervention in the case ‘M/s PLR Projects Pvt Ltd v Mahanadi Coalfields Ltd’, where the issue of unfilled vacancies of HC judges was being considered, former CJI SA Bobde underscored that appointments are not an institutional issue but a matter of finding the right woman.

“Chief Justices of high courts have stated that many women advocates, when invited to become judges, declined the offer citing domestic responsibilities about children studying in Class 12 etc,” Bobde said.

Several female members of the bar responded, including Bombay-based advocate Veena Gowda, who said, “There are many men who refuse judgeship because they have a successful practice and do not want to take a cut in their earnings. But has that stopped the collegium from seeking more men and making them judges?”

Written by Khadija Khan

Source: Indian Express, 26/11/23

Who is a ‘puisne’ judge, and what does the term mean?

 

According to the dictionary, the word puisne has French origins, which means “later born” or younger.

While recommending two names for appointment as judges of the Supreme Court, the Collegium headed by Chief Justice of India D Y Chandrachud said in a statement on Tuesday (January 31) that the collegium had taken into “consideration the seniority of Chief Justices and senior puisne Judges…”

What does puisne mean, and who are puisne judges?

According to the dictionary, the word puisne has French origins, which means “later born” or younger. It is pronounced /’pjuːni/, like “puny”, the English word that means small or undersized.

Puisne is almost always used in the context of judges, and essentially denotes seniority of rank. The term puisne judge is used in common law countries to refer to judges who are ranked lower in seniority, i.e., any judge other than the Chief Justice of that court.

Common law is the body of law that is created by judges through their written opinions, rather than through statutes or constitutions (statutory law). Common law, which is used interchangeably with ‘case law’, is based on judicial precedent. The United Kingdom (UK) and the Commonwealth countries, including India, are common law countries.

Is a “puisne judge” in India the same as in the UK?

In the UK, puisne judges are judges other than those holding distinct titles. The Supreme Court of Judicature Act, 1877 defined a “puisne judge” as any judge of the High Court besides the Lord Chancellor, the Lord Chief Justice of England, and the Master of the Rolls.

In India, all judges have the same judicial powers. As the seniormost judge of a court, the Chief Justice has an additional administrative role. In India, there is a reference to a puisne judge only while considering the order of seniority for appointments, elevations to High Courts, etc., but it does not have a bearing on the exercise of a judge’s judicial power.

What did the collegium say about puisne judges?

On Tuesday, the Supreme Court collegium recommended Justice Rajesh Bindal and Justice Aravind Kumar, the current Chief Justices of the Allahabad and Gujarat High Courts respectively, for appointment as judges of the Supreme Court.

While giving reasons for its recommendation, the collegium said that the decision was made taking “into consideration the seniority of Chief Justices and senior puisne Judges in their respective parent High Courts as well as the overall seniority of the High Court Judges”. This was done because seniority is one of the several criteria that are considered while making appointments to the higher judiciary. 

In the Third Judges Case ruling in 1998, one of the two cases that led to the evolution of the collegium system, the Supreme Court clarified that “The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four seniormost puisne Judges of the Supreme Court.”

Source: Indian Express, 2/02/23

The power of the PIL

 Unfortunately, the age-old proverb, ‘justice delayed is justice denied’, remains relevant today

When Justice V.R. Krishna Iyer and Justice P.N. Bhagwati of the Supreme Court pioneered the concept of public interest litigation in India in the 1980s, little did they know about the far-reaching consequences of their initiative. Whereas political executives are yet to digest ‘judicial activism’, members of civil society, who were not directly involved in a particular case, got a chance to agitate in the court on matters relating to public interest.

Those who suffered silently in organised violence rarely got justice in the past. In March 1970, when the brothers of the Sain family of Burdwan were brutally killed by the Left cadres, the violence shook the conscience of the nation. In August 1971, nearly 100 youths having allegiance to leftists were killed over a span of 30 hours in Calcutta’s Baranagar. The culprits were never brought to book and the families never got back the bodies of the dead. In April 1982, 16 monks and a nun of Ananda Marga were dragged out of their vehicles simultaneously in three different places on and around Bijon Setu in Calcutta in broad daylight, beaten to death, and then set on fire, sending shivers down the spine of civil society. None of these incidents witnessed an effective inquiry; no one was booked; the administration colluded with the goons to sweep the crimes under the carpet.

If any such horror were to take place today, sympathisers of the sufferers would have filed a PIL in high court, seeking a court-monitored inquiry by the Central investigating agency so as to book the propagators of the crime. That’s the power of the PIL, which gave the requisite strength and direction to the judiciary. There have been so many riots in past but for the first time after the Delhi riot (1984) and, subsequently, after the riot at Godhra in Gujarat (2002), those who indulged in organising the violence were booked. We have heard of so many cases of corruption at the highest levels; for the first time, the all-powerful former chief ministers of Bihar and Haryana had to go to jail after their conviction on charges of corruption. If these were indications of ‘judicial activism’, civil society looks forward to such activism from the judiciary at a time when the bitterness of competitive politics has divided society.

In a bid to control the judiciary, political executives are critical of the collegiums system that empowers the Supreme Court to select the judges of the higher judiciary. There is sufficient scope to check the integrity of the persons proposed to be appointed in the existing process by the government through the Central Bureau of Investigation. Yet, political bosses demand that the system of ‘appointing judges by the judges’ should end. If the collegium system is replaced by a system of selection by the Union government, there is every possibility that the people’s perception of the judiciary being neutral will be jeopardised.

However, this does not mean that everything is fine with the judicial system. We need to have an objective assessment of the productivity of the higher judiciary. Do we need so many long vacations in the courts when nearly 60,000 cases are reportedly pending in the Supreme court itself ? It is learnt that the apex court has 193 working days in a year; high courts have 210 days. While assessing productivity, we need not go by the practices being followed in Australia or in the United States of America. We should have our own norms as in any other profession. There have been numerous initiatives by the government towards the computerization of court work and for making virtual hearings a reality. More needs to be done in this sphere to raise the output of the judges.

Judges are amply compensated for their notable contributions. Society may thus legitimately expect that the members of the higher judiciary also give their best to ensure quick disposal of cases without compromising the quality of verdicts. Unfortunately, the age-old proverb, ‘justice delayed is justice denied’, remains relevant today.

Gautam Bhattacharya

Source: The Telegraph, 10/01/23

The judiciary should have annual performance reports, too

 In a rare exhibition of transparency, at least by the standards of the Indian judiciary, the Orissa High Court has published an annual report taking stock of its performance in a difficult year that was punctuated by the resurgence of the pandemic. By subjecting itself to the scrutiny of the common citizen, the court has shown exceptional humility.

The report provides a district-wise breakup of cases and availability of judges. It contains a section explaining the reasons for delays and backlog at the level of the district judiciary. The tendency of higher courts to “stay” proceedings, the uneven distribution of cases amongst judges in trial courts and the non-availability of witnesses due to transfers are among the major reasons cited by it for delays. This is a notable public introspection exercise by the judiciary which, at most times, is content with blaming delays on insufficient funds and shortage of judges.

The report also sheds light on the administrative functioning of the court. Such disclosures are welcome because much of the judicial administration at the level of the state judiciary, lies in the hands of high court judges who execute these functions through small committees of judges. In addition to listing the judges on each administrative committee, the report acknowledges the work done by them. For instance, the committee that deals with the appeals by the employees of the district judiciary against orders passed by disciplinary authorities had 40 appeals, out of which it disposed of only 13 appeals. This is useful information if one wishes to assess the administrative workload of judges and the efficiency with which they discharge their tasks. Most HCs do not share this information with ordinary citizens even if requests are made for the same under the Right to Information Act. The Bombay High Court, for instance, recently ruled that its “file notings” on administrative matters are not required to be disclosed under the RTI Act.

Annual reports have traditionally been an important way of ensuring accountability of public bodies to Parliament and citizens. Each Union ministry is required to supply copies of these reports to the Lok Sabha Secretariat a week before the Demand for Grants of the ministries is taken up. The Ministry of Parliamentary Affairs has detailed instructions on the expectations regarding the timeline and content of such reports. These reports are examined by the Department Related Parliamentary Standing Committees and the Parliamentary Committee on “Papers Laid on the Table”, which regularly takes to task ministries for delays in tabling reports of the government companies and autonomous bodies under their control.

Unlike the executive, the judiciary is not under any legal obligation to prepare annual reports or table them before Parliament or the state legislature. A survey of the websites of the 25 high courts in the country revealed that only the high courts of Madras, Himachal Pradesh and Tripura had published an annual report in the last two years. The high courts at Punjab and Haryana and Gujarat had annual reports available till the year 2018 and 2019 respectively. Websites of the Delhi and Jharkhand high courts host a very dated report while other websites have nothing available on them. At most, all high courts submit short reports to the Supreme Court which compiles all the information into one annual report on the judiciary. But unlike the Orissa High Court’s report, the SC’s annual report is largely a self-congratulatory exercise, which does little to introspect on the challenges facing the institution.

It would, of course, be naive to expect that the courts will have a sudden change of heart in favour of even elementary transparency measures such as publication of an annual report. It’s up to Parliament to enact a law that mandates high courts to publish an annual report not just on their performance but also on the performance of the district judiciary under their administrative control. This law should clearly outline the expected content of the report (the Supreme Court’s annual report spends 35 pages on portraits of the hon’ble judges) and establish a clear timeline for its publication.

Written by Chitrakshi Jain , Prashant Reddy T

Source: Indian Express, 7/06/22

Justice now depends on technology,’ said SA Bobde. Indian judiciary has miles to go

 

Legal acumen doesn't translate to tech competence. We need adequate training to transit from paper briefs to screens.

Former Chief Justice of India S.A. Bobde said in his farewell address, “Access to justice now depends on access to technology.” Technological transformations in the Indian judicial ecosystem, which were brought about in the wake of the Covid-19 pandemic, have received both praise and criticism from the public. The courts’ inability to function physically pushed them to explore these technological capabilities in order to dispense justice. The Supreme Court acted promptly, issuing a set of guidelines for video conferencing to reduce physical interaction through a suo motu writ petition.

Other major technology-driven reforms included e-filing of petitions, virtual hearings, and live streaming of court proceedings. Data from the e-committee of the Supreme Court reveals that as of 30 June 2021 (for an average of three months), 40,43,300 and 74,15,989 lakh cases were dealt with through video conferencing by the high courts and the district courts, respectively. The e-committee drafted model rules defining the contours of these reforms, indicating that the Indian judiciary in the post-pandemic days is likely to be a hybrid of physical and virtual courts.

While these changes are a welcome step towards improving the efficiency of the system, it is critical to bear in mind that technology is not an elixir for the problems affecting the judiciary. It will bring with it a series of challenges that may make justice even more inaccessible for the common (wo)man.

Digital divide at Bar and Bench

Differential access to devices and technological infrastructure, bandwidth and connectivity issues, and varying levels of comfort and know-how in the use of technology are some of the challenges that affect all the stakeholders in the judiciary, especially those working closely with the district courts in rural parts of India. Preliminary findings from the ongoing survey of trial courts conducted by the office of the Chief Justice of India reveal that only 27 per cent of the courtrooms in the subordinate courts have computers on the judge’s dais and 10 per cent have no access to the Internet. This implies that most courts, especially in the district judiciary, are currently not equipped to function virtually.

Ever since the imposition of the first lockdown in March 2020, the Bar Council of India has expressed concerns over the deep-rooted inequality in access to technology — depriving advocates from certain demographics of their livelihood. A survey conducted by the Vidhi Centre for Legal Policy of 2,800 advocates across eight high courts revealed that there exists a large pay gap between the earnings of entrants and senior advocates in the litigation profession. Eighty per cent of practising advocates, who were part of the pilot survey in Delhi, responded that advocates with up to two years of practice earn anywhere between Rs 5,000 and Rs 20,000 monthly. Shockingly, 40 per cent of young advocates from the High Courts of Allahabad, Bombay, Kerala, Madras, and Patna earn only between Rs 2,000-5,000 monthly, while 50 per cent from the Calcutta High Court said that they earn less than Rs 10,000 a month.

This gives a realistic picture of what could likely be the state of affairs of advocates who practise in semi-urban or rural areas. It is unfair that the system expects these advocates to have access to the Internet, advanced digital equipment, and keep themselves abreast of the latest technological developments in the ecosystem. Undoubtedly, this results in litigation being dominated by a handful of elite advocates who have the privilege to log in from the comfort of their homes or chambers and attend hearings on multiple windows across different high courts and the Supreme Court simultaneously.

Connectivity and technological competence

Robust Internet connection and superior video conferencing facilities are other critical requirements for an uninterrupted virtual court proceeding. The 103 report of the Parliamentary Standing Committee identifies connectivity divide or access to broadband Internet as roadblocks to digital courts. Even the district judiciary in Delhi was unable to provide adequate bandwidth, network-attached storage, and routers for conducting virtual hearings. The high court had to direct the government to procure the necessary hardware to ensure access. The issue is not just confined to the courts, but extends to a substantial number of litigants and advocates as well, who are vulnerable to being excluded from the process of justice delivery due to heterogeneity in Internet penetration.

The last in this genre of challenges is the large proportion of judges, court staff, and advocates who do not have sufficient knowledge and skill to use technology. Legal acumen does not necessarily translate to technological competence, and it is vital that adequate training be imparted to ease the transition from traditional paper briefs to screens and systems.

A coordinated effort to address a gamut of issues

Access to foundational infrastructure, stable Internet connection, and the ability to use technology in the conventional work routines are only some of the teething problems that the justice system is facing. Ensuring secure video and audio conferencing without compromising the privacy of the litigants and adhering to the ‘open court’ principles are key challenges that will need the system’s due attention. On the criminal justice side, the judiciary has another gamut of issues to consider while integrating its processes with technology.

Better coordination between the judiciary and the government concerning the allocation of funds and procurement of necessary hardware and inclusion of experts to design and build the standards and specifications for the software to enable the digital transformation of the judiciary at all tiers are urgent requirements. The road ahead does not look easy unless all the stakeholders cooperate to overcome bureaucratic hurdles, prioritise funding to address the foundational problems, and build systems that are inclusive to ensure better access to justice.

Reshma Sekhar is Senior Resident Fellow with the Justice, Access and Lowering Delays in

Source: The Print, 1/11/21

Justice Ranjan Gogoi can usher in a sea change in the Indian judiciary

The Chief Justice of India has already ushered in administrative changes in the Supreme Court for quick disposal of criminal appeals

Fifty-odd days is far too short a time to take stock of the work done by a new Chief Justice of India (CJI), but given that Justice Ranjan Gogoi’s term is just over 13 months long, it is clear he can’t dawdle. And the 46th Chief Justice of India isn’t . When Justice Gogoi took over as CJI, he inherited, among other problems, the complicated issue of increasing vacancies of judges in high courts, poor disposal rates of cases, and corruption in the judiciary.The first thing he did after taking over was to talk to the chief justices of the high courts, asking them to focus on getting judicial work done and on the need to combat corruption in the judiciary. He requested all chief justices that judges in the high courts not take leave during working days and remain present in court rooms all through working hours. These may be basic steps, but they do help with the disposal of cases.

The second issue that has occupied Justice Gogoi is the appointment of judges to the high courts and the Supreme Court. He has, in the short time he has been in charge, made four new appointments to the top court and cleared appointments of 68 high court judges (both have been done by the Supreme Court collegium, which he heads), which is unprecedented. He has also stressed on the importance of filling vacancies in the lower judiciary so that cases do not clog the system. A bench headed by Justice Gogoi has, suo motu, registered a petition to monitor the filling up of more than 5,000 posts that are lying vacant in the trial courts. The inadequate number of judges is one of the reasons for high pendency in the lowest rung of judiciary where over 27 million cases are still awaiting a final decision.

Cleaning up the judiciary is on his agenda too and Gogoi has told the chief justices of the high courts not to “hesitate in withdrawing judicial work from judges who are under a cloud”. The CJI has already ushered in administrative changes in the Supreme Court for the quick disposal of criminal appeals that are awaiting final disposal in the court for more than a decade. If the changes Justice Gogoi has ushered in are continued at least till the end of his term, there will be a sea change in the way justice is administered in the country.

Source: Hindustan Times, 3/12/2018

Justice must be open, not opaque

The growth of the jurisprudence of the “sealed cover” – which effectively involves the Court in a secret dialogue with (in most cases) the State – is a disturbing trend. We all understand that in a democracy, there is a small set of acts that the State must undertake in secrecy: military strategy, correspondence involving negotiating positions in international trade talks, and diplomatic relations, all fall within this set.

Last week, the newswires were abuzz with how a bench of the Supreme Court, headed by Chief Justice Ranjan Gogoi, asked the government to produce the details of the Rafale deal’s decision-making process in “a sealed cover”. This is not the first time that the Chief Justice has asked for material in a sealed cover: in the ongoing case about the updation of the National Register of Citizens in Assam, reports of the State Coordinator have been shared “confidentially” with the court, with neither the government nor the affected parties being allowed to look at them. The “sealed cover” was also at play in the recent, high-profile hearings involving the Judge Loya investigation, as well as the challenge against the Bhima-Koregaon arrests.

The growth of the jurisprudence of the “sealed cover” — which effectively involves the court in a secret dialogue with (in most cases) the State — is a disturbing trend. We all understand that in a democracy, there is a small set of acts that the State must undertake in secrecy: military strategy, correspondence involving negotiating positions in international trade talks, and diplomatic relations, all fall within this set. For obvious reasons, these are also domains that are traditionally believed to be outside the domain of the courts: the manner in which the Executive conducts trade talks or foreign relations cannot be litigated in a courtroom.

The character of the judiciary, however, is very different from the character of the Executive. Alone among the three wings of State, the judiciary is bound by the requirement that for every judgment or order that it passes, it must give reasons — reasons that are open to public scrutiny. The work of the courts is the work of public reason. This is what gives the phrase “open justice” its resonance: the dealing of justice must, at all times, be transparent and subject to public scrutiny. That is what separates justice under the Constitution from the firmans of an emperor.

This does not mean, of course, that there can never be secrecy in the courts. The names of sexual assault survivors are often redacted to protect their privacy, and in-camera trials perform the same function. In those cases, however, there are powerful, counterveiling individual rights at stake: the rights to privacy and a fair trial. There might also be cases of necessity: for example, when the outcome of an election is challenged, the court often asks the parties to hand over the results of the election in a sealed cover, until the final judgment. This, too, is uncontroversial.

The logic of the sealed cover in cases such as the NRC, however, is different: here, the court seems to be operating on the presumption that certain information is too “sensitive” for public scrutiny, and that therefore, it is only the court that is entitled to see it, and to decide. This is deeply problematic: not only does it violate the principles of open justice described above, but it also infantilises the public. Here, the court assumes the role of a universal guardian, the only entity that is capable of wisely and maturely processing the “sensitive” information, which cannot be revealed to the public — and taking a decision on it. When, as in the NRC case, this directly affects peoples’ rights (such as, for example, a decision on which documents can be used to prove citizenship), it is even more problematic: individual rights are effectively being made subject to a court-driven secret and opaque process.

That Indians are too immature to exercise their own rights, and must be governed from above by wiser and benevolent rulers, was the logic of the old colonial regime. This logic was repudiated when India attained independence, and the Constitution came into being. The framers of the Constitution reposed their faith in the people of India: not only did they recognise a right of universal adult suffrage (thus making the people the guardians of their own destiny), but the Constitution as a whole replaced a culture of authority with a culture of justification, where every exercise of public power must be justified to its citizens.

The jurisprudence of the sealed cover — especially when it is utilised in crucial constitutional cases such as the NRC, where the basic rights of millions are at stake — threatens the constitutional values of open justice and the culture of justification. There should be no doubt about this: once the Court admits the case — thereby acknowledging that it is beyond the domain of “reasons of State” and subject to judicial scrutiny — openness must be the universal norm.

Gautam Bhatia is an advocate in the Supreme Court

Source: Hindustan Times, 19/10/2018

Fight the good fight

Some moments in the life of a patriarchy provide points of confrontation — and also openings for change

Ever since ugly stories about sexual abuse at the workplace began crawling out of the woodwork, from corporate offices, army, even the judiciary, one knew something major was stirring in the belly of the earth. First women abused by bosses, by boyfriends, politicians, their husbands’ superior officers, and by highly-respected members of the judiciary began to reveal brokenly what Susan Faludi calls “a problem with no name”. Within a few decades, they have broken their isolation, begun sharing their experiences on multiple fora and discovered a whole new terminology to articulate their anger in public. The latest result of this is the #MeToo movement that began in the US and went viral.

The testimonies that have surfaced since this hashtag was created are making it clearer by the day that when applied to women, the term sexual is not an adjective defining the personal pleasure of predatory powerful males. It is, simultaneously, also their power-locomotive that carries forward a far broader agenda, subtly defining social, legal and official hierarchies in which women in homes, offices, streets, railway coaches, hotel rooms and flight cabins must submit to the will of the man. Even if they do not wish to give their consent, as one “Baba ji” said (in the case of the young woman at the centre of the December 16 2012 rape case), the woman must address the rapist as her brother and appeal to his sense of mercy!

The finance minister’s outburst against the recent Supreme Court rulings that decriminalised same sex relationships and adultery among consenting adults as also permitted young (possibly menstruating)women into the Sabarimala temple is further proof that any challenge to entrenched male-crafted archaic laws or religious taboos will be interpreted by the power lobby as a challenge to the System itself.

Feminism is perhaps the first theory to emerge from the personal experiences of those whose interests it defines, and whose equality it simultaneously affirms. In 1995, 17 of us senior women journalists decided to plant the seed for what is now a flourishing club for women journalists. In creating the Indian Women’s Press Corps, the idea was to form a collective in the heart of our capital city, for working women journalists, most of whom worked part time or as free lancers then. For, as the poet Adrienne Rich has articulated so well “. those despised and endangered … are not merely the sum of damages done to them”. Reading the testimonies of victimised women three decades later, one realises that the first large batch of female journalists entering the profession in the ‘70s, too, had experienced similar interactions in offices. At that time, like the first wave of all immigrants upon foreign shores, those nasty “happenings” were mostly shrugged off as insignificant or, at best, shared in hushed tones among ourselves. The concept of sexual abuse grievance cells was not even a gleam in the eyes of the System at that point.

This is why the second and third generation of those immigrant females, stronger and supported by many pro-women changes in Indian law and life, are now systematically and clearly laying bare the dark underbelly of Indian workplaces. They are talking about how many times a male colleague or a celebrity interviewee had, by a certain “look” or hug or suddenly or by “accidentally” feeling her body parts, left a female journalist feeling deeply violated, depressed, and degraded. What sort of power does it give a man when he will, with a passing glance, a lingering feel or deliberate brush, send a message of sexual dominance and hierarchies of deference where he is in command? As for women working in smaller towns in the language media, their voices and experiences are yet to surface. But the recent suicide of a senior editor has sent up a swarm of dark tales about the murky lives of young and ambitious women journalists in the language media where most women must confirm their self worth by trying to measure up to the “expectations” of their editors and company owners/managers, which may go well beyond the purely professional.

It is clear by now that gender is not just sex, it is genderised sex that divides power disproportionately between men and women. It is therefore a political system that keeps women subjected to physical insecurity, sexual denigration and deprived of respect, credibility and resources compared to their male counterparts everywhere. Courts do intervene now and then, but only in properly “factualised” cases. Even there, in women’s experience, the law will legitimise itself as reflecting its view of societal norms, but it is society itself that has conferred rationality upon laws. Hence the puzzling dissent note from the lone female judge from the panel that permitted women to enter the Ayyappa temple, on grounds that religion is above rational rules. So lawyers like Arun Jaitley are quick to support her by implying that since law is society in its state form, it must support society’s age-old understanding and application of gender hierarchies and marriage by rising above the rational viewpoint.

Such moments in the life of a patriarchy provide points of confrontation, and also openings for change. Like Arjun in the Mahabharata, Indian women, convinced as a group of the justness of their cause, are determined not to plead guilty or flee (na dainyam na cha palayanam). But still they find themselves gripped with a sudden hesitation. Even if a cause be just, must they raise their weapons against their own?

Interesting, that at this point in one of the earliest recorded game of thrones, Krishna (in Gita) will invoke not Arjun’s patrilinear lineage (or his lily livered father Pandu), but the warrior’s strong-willed mother Kunti. Addressing him not as Pandava but Kaunteya, he says: “Hato va prapsyasi svargam, jitva va bhokshyase mahim,/Tato uttishth Kaunteya, yuddhay krit nishchayah!” In this battle, if you die, you become a heavenly warrior. And if you win, you will enjoy what is true temporal power. So O son of Kunti, be ready to fight a good fight.

Equality, in short, requires total change, a new jurisprudence, a new relation between our lives and law. It will be said that such a change will not be sustainable. But this is premature. As Gandhi, one of India’s biggest dissenters, said, “I have found that it is our first duty to render voluntary obedience to the law, but whilst doing that duty, I have also seen that when law fosters untruth it becomes a duty to disobey it.”

Source: Indian Express, 9/10/2018

Govt. to revisit 2003 Malimath report

The Malimath panel had made 158 recommendations but these were never implemented. The subsequent UPA governments from 2004 to 2014 did not act on the report either.

Judges’ impeachment

The Committee also suggested constituting a National Judicial Commission and amending Article 124 to make impeachment of judges less difficult.

“The Committee, however, feels that the aberrations in the conduct of judges can be checked or even corrected if the problem is noticed at the earliest and efforts made to correct them. In the High Court, the Chief Justice is regarded as only the first among the equals. Except constituting benches and assigning work, he does not exercise any authority over his colleagues. This has considerably eroded discipline which is so necessary for any institution,” the Committee had said.

It had suggested that Section 54 of Evidence Act be substituted by a provision to the effect that in criminal cases, evidence of bad character and antecedents is relevant.

“Just as evidence of good character of the accused is relevant, evidence regarding bad character of the accused should also be relevant. There is no good reason why evidence regarding bad character of the accused should be made relevant only when evidence is led about his good character. This is quite illogical and irrational,” the report had said

Source: The Hindu; 17-01-2018

Searching for an equilibrium

Questions recur about the rightful limits of judicial intervention in the matter of policy choices in the executive and legislative domains

In the 67th year of the Republic and 70th year of freedom, we find ourselves engaged in a heightened debate on the imperatives of preserving the constitutionally ordained jurisdictional equilibrium between the legislative, executive and judicial branches of the Indian state even as we celebrate the expansion of constitutional freedoms and the resilience of our democracy. At the heart of this debate is the reach of judicial review power exercised by the Supreme Court. Given the tenuous relationship between the executive and judiciary, the subject is increasingly relevant to the functioning of our constitutional democracy. While the sterling contribution of the court in asserting the inviolability of and expounding the right to dignity as the core constitutional value has been universally acclaimed, questions recur about the rightful limits of judicial intervention in the matter of policy choices in the executive and legislative domains.

The foundational principles

Some of the court’s transformative judgments are recalled to indicate the evolution of our constitutional order, premised on protection against the arbitrary exercise of power, non-discrimination and “constitutionalisation of socio-economic rights”. Establishing the procedural fairness and reasonableness test in Maneka Gandhi (1978) to determine the constitutionality of the exercise of executive power and declaring in M. Nagaraj (2006) that Articles 14 (right to equality), 19 (right to fundamental freedoms) and 21 (right to life) “stand at the pinnacle of the hierarchy of constitutional values, the court recognised that human dignity, equality and freedom were “conjoined, reciprocal and covalent values” (Sandra Liebenberg, 2005).

Ashwani Kumar

While expanding human rights jurisprudence and recognising as fundamental the citizens’ right to food, health, education and clean environment, etc., the court in an expansive interpretation in V. Markendeya (1989) recognised the Directive Principles of State Policy as “the conscience of the Constitution” which give shape and meaning to fundamental rights. Having thus established the foundational principles for the exercise of a wider judicial review jurisdiction traceable to Articles 13, 32, 136, 142, 147 and 226 of the Constitution, the court declared that judicial review was a “constituent power” and an integral component of the unalterable basic structure of the Constitution (Kesavananda Bharati, 1973).

Expanding review jurisdiction

However, moving beyond the socio-economic rights, the court’s review has been invoked in “public interest” to question major decisions of the government concerning policy choices, for instance in what are now known as 2G spectrum and coal mine allocations cases. Challenge to proceedings of legislative assemblies and decisions of the Speaker have also been entertained by the court (Nabam Rebia, 2016). Recent decisions of the court voiding a constitutional amendment approved by Parliament to alter the procedure for appointment of judges (National Judicial Appointments Commission or NJAC judgment, 2016), exercising review powers in what is popularly known as the AFSPA — Armed Forces (Special Powers) Act — case to hold that the use of excessive force by the Manipur Police or the armed forces of the Union was not permissible, has extended the courts’ review jurisdiction to domains hitherto regarded as the exclusive preserve of the executive and legislatures.

Protagonists of a wide judicial review jurisdiction argue that it subserves the rule of law (Dicey, 1956), advances the cause of justice, is consistent with democracy and rules out only those choices that are obviously unreasonable and inconsistent with democracy (Ronald Dworkin, 1986). Socrates’s condemnation to death by Athenian democracy is recalled to argue that liberal democracy needs to protect itself against “the rule of the mob”. James Madison had argued for “auxiliary protections” to secure the fundamental liberties of citizens (The Federalist Papers).

Limiting the ambit

Even so, questions abound as to the rightful ambit of the court’s judicial review jurisdiction within the framework of parliamentary democracy premised on the assumption that people exercise their sovereignty through elected representatives and not through the unelected judges. “Judicial supremacy”, “judicial excessivism” or “judicial despotism” are seen as antithetical to democracy and contrary to its first principles. It is argued that representative democracy is as much a part of the basic structure of the Constitution and that judicial review, although constitutionally sanctioned, cannot be exercised to negate or subordinate other fundamental features of its basic structure.

In some of its recent judgments, the Supreme Court has itself cautioned against ever increasing expectations from it. In a substantive judgment in Santosh Singh (2016), a Division Bench of the court declined to entertain a public interest litigation (PIL) seeking a mandamus for the inclusion of moral science as a compulsory subject in the syllabus of school education. In an eloquent exposition in the NJAC case, Justice J. Chelameswar in his minority judgment rejected a distrust of the legislators in securing the constitutional fundamental and argued: “To assume or assert that judiciary alone is concerned with the preservation of liberties and does that job well is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved.” In its opinion in a Presidential Reference, a Constitution Bench of the Supreme Court had earlier opined that “Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom”. In a recent order, the court declined to entertain a PIL seeking the court’s directions to restrain the Union government from incurring security and other expenses in respect of certain individuals in the State of Jammu and Kashmir on the ground that these writs are “judicially unmanageable”.

Looking for the middle

Benjamin Cardozo, the celebrated American jurist, had cautioned years ago that “there is no assurance that the rule of majority will be the expression of perfect reason when embodied in the Constitution or in statute. We ought not to expect more of it when embodied in the judgment of the Courts”. Nor can we forget that “… the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by” (The Nature Of The Judicial Process, 1921). Scholars supporting limited judicial review have argued that courts are at best ‘platonic guardians’ of democracy and that “it is entirely incompatible with democracy for courts to define their mission as one of correcting elected officials who have strayed too far either from what the judges think is right or from what they claim they know (and the legislators do not) that the people really think is right” (John Hart Ely, On Constitutional Ground, 1996).

The ongoing debate concerning the limits of judicial review in a parliamentary democracy is anchored in profound philosophical issues concerning the nature of representative democracy and the inalienable fundamental human freedoms that need to be insulated against the “impulses of transient majorities”. In the light of our own experience of the political and judicial processes, it is legitimate to ask:

• Can the original justification for the court’s anti-majoritarian role be used to equate constitutional supremacy and judicial independence with “judicial supremacy”?

• How do we resolve disagreements over “constitutional-interpretative judgments” in the framework of a functioning democracy, given the disclaimer of judicial infallibility by the court itself?

• Assuming a decline in credibility of the political executive, can the judiciary act as “co-governor” of the nation?

• Where do we locate the “equilibrium between the Scylla of insensitive detachment suggesting indifference and the Charybdis of unwarranted intrusion” to fix the frontiers of judicial power in a constitutional democracy without being on the wrong side of the “democratic faith”?

As we reflect on these questions, it seems self-evident that in the articulation of constitutional principles, Pascal’s spirit of “self-search and self-reproach” reflected in recent judgments of the Supreme Court will best subserve to strengthen the institutions of India’s liberal democracy and sustain over time the otherwise wide ambit of judicial review, so that the judiciary remains “a light unto the nations” without being a “sheriff unto the nations” (José A. Cabranes, 2015).

For the moment, we must accept that the weight of the court’s authority and acceptance of the extensive reach of its judicial imprimatur is best explained in terms of popular trust in its moral and intellectual integrity rather than in a stretched philosophy of constitutionalism. The decline of Parliament as the highest forum of our democracy, the perceived insensitivity on the part of the bureaucracy to the pressing priorities of the people at large, a general distrust of executive power and loss of faith, generally speaking, in the moral and ideological integrity of the political class collectively account for an expanded remit of judicial review.

Ashwani Kumar is a Senior Advocate at the Supreme Court and former Union Law Minister

Keywords: Supreme Court collegium, appointment of judges, Judiciary-Centre, judges, constitution

Source: The Hindu, 16-11-2016