The judiciary is shifting the balance of power

It is increasingly becoming the first port of call for solving all problems

Usually known to be measured with his words, finance minister Arun Jaitley cut loose with scathing criticism of the Indian judiciary on the floor of the Rajya Sabha last Thursday. He blamed the judiciary for actively encroaching on the powers of legislative and executive authorities. He claimed that “step by step, brick by brick, the edifice of India’s legislature is being destroyed” by the judiciary. Through a number of judgements, including the one Jaitley referred to in his Rajya Sabha intervention—ordering the creation of a National Disaster Mitigation Fund while national and state disaster response funds already exist—the judiciary has appropriated for itself a role far beyond its primary duties of dispensing justice and interpreting laws.

This encroachment is clearly a matter of huge concern. And to that extent, Jaitley is right. As far as his choice of words is concerned, it is also an indicator of how repeatedly used camouflaged phrases like “judicial overreach” have been incapable of instigating any self-correction by the honourable judges.

The judiciary in India is often called the most powerful among its tribe globally. While the creative interpretations of the text of law had started earlier, the postEmergency phase marked a distinct turnaround in the Indian judiciary’s activism. After the ignominious failure to protect the fundamental rights of the citizens in ADM Jabalpur vs Shivakant Shukla (1976), the court believed a constitutional correction would be insufficient. So, the pursuance of constitutional legitimacy was replaced—in the words of Lavanya Rajamani and Arghya Sengupta—“by a quest for popular legitimacy”. A series of judgements, most notably S.P. Gupta vs President of India and others (1981), gave rise to a new legal instrument called public interest litigation. This instrument allowed “public-spirited individuals seeking judicial redress” on a variety of matters beyond what would be permitted by the traditional rule of locus standi, which specifically addressed the concerns of aggrieved citizens.

Through several judgements thereafter, the judiciary has unhesitatingly shuffled into the roles of both the legislature and the executive. It assumed wide powers in matters of protection of the environment. This process was, however, aided by the executive which dithered in taking politically difficult decisions that might have invited wrath from their constituencies. The overzealousness of the judiciary and the neglect by the executive helped along a gradual obliteration of the separation of powers between the judiciary, the legislature and the executive.

Jaitley is not the only one to speak out. When quizzed about the Supreme Court decision to move Indian Premier League matches out of Maharashtra given the drought in Latur and other parts of the state by an interviewer on NDTV, transport and shipping minister Nitin Gadkari said: “If judges want to do our job, they can resign and contest elections.” Not just the drought, the courts have also evidenced their concerns about the problem of pollution in the National Capital Region. Among a spate of orders, the apex court has doubled the entry tax on trucks entering Delhi. The intention is indeed laudable. But here is a question that should be considered by anyone making such a decision. Who will bear this tax—the truck owners or the citizens of Delhi? Well, it depends on the demand elasticity of goods in Delhi, an overwhelmingly consuming state. This example is ample proof of why the courts which are illequipped to weigh the economic, environmental and political costs involved should keep away from such issues.

To be fair, the judiciary has its own complaints of the executive. Speaking at the chief ministers and chief justices conference, chief justice of India T.S. Thakur grew emotional talking about the long backlog of pending cases. He blamed the centre for moving slow on the appointment of judges and increasing the number of courts and judges. Thakur may indeed be right, but he could have also looked at the propensity of the judiciary to continually expand its sphere of operations and the consequent effect on the backlog.

A bench headed by Thakur himself has been, in recent times, trying to fix the air connectivity to Shimla. And over the past few days, Olympic medallist Sushil Kumar had moved the Delhi high court to help him make the cut for Rio Olympics 2016. Even as the court has refused to interfere, this is another example, if any was needed, to show that the courts have become the first port of call for all problems—from air-connectivity of Shimla to securing nomination in the Olympics.

Source: Mintepaper, 18-05-2016

The Supreme Court Revives Collegiums System — a Fresh Debate Begins

Saturday 24 October 2015, by Rajindar Sachar

The much-awaited judgment of the Supreme Court has held on October 19 that the Constitution (Ninetyninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014, are unconstitutional and void and the consequence is that the ‘Collegiums System’ existing prior to the Constitution (Ninetyninth Amendment) Act, 2014 has been declared to be operative.

The Court found fault with the constitution of the National Judicial Appointment Commission, mainly for its composition. The reason given was that if the inclusion of any one of the members of the NJAC is held to be unconstitutional, Article 124A will be rendered nugatory in its entirety. The Court’s reasoning was that membership of the Chief Justice of India, Chairperson Ex Office and (a) and (b) of Article 124A (1) do not provide an adequate representation to the judicial component in the NJAC and are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of judges to the higher judiciary.

Similarly clause (c) of Article 124A (1) is ultra vires of the provisions of the Constitution because of the inclusion of the Union Minister in charge of Law and Justice as an ex-officio member of the NJAC. It also held that inclusion of two “eminent persons” as members of the NJAC is ultra vires of the provisions of the Constitution.

Though I must say that the judiciary itself has a lot of explanation for previous bad appointments, the self-exculpatory effort at bad appointment is hard to sustain in view of the information given in 1959 by the Home Minister that in 1950, as many as 211 judges were appointed to the High Courts and these, except one, were made on the advice, with the consent and concurrence of the Chief Justice of India. And out of the 211, 196 proposals which were accepted by the government had the support of all persons who were connected with this matter.

It is conceded in the judgment that no one can claim the Collegiums System to be perfect. The Court has, however, held that the constitutional amendment alters the basic structure of the Constitution of the India. The Court found objection to the situation where the decision of the Chief Justice of India is, in one sense, made to depend upon the opinion of two members of the NJAC, who may in a given case be the two eminent persons nominated to the NJAC in terms of Article 124A(1)(d) of the Constitution. These two eminent persons can actually stymie a recommendation of the NJAC for the appointment of a judge by exercising a veto conferred on each member of the NJAC by the second proviso to sub-section (2) of Section 5 of the NJAC Act, and without assigning any reason. In other words, the two eminent persons (or any two members of the NJAC) can stall the appointment of judges without reason. That this may not necessarily happen with any great frequency is not relevant—that such a situation can occur is disturbing. As a result of this provision, the responsibility of making an appointment of a judge effectively passes over, in part, from the President and the Chief Justice of India to the members of the NJAC, with a veto being conferred on any two unspecified members, without any specific justification. To make matters worse, the President cannot even seek the views of anybody (other judges or lawyers or civil society) which was permissible prior to the 99th Constitution Amendment Act and a part of Article 124(2) of the Constitution prior to its amendment.

The role of the Chief Justice is reduced to a very low position because the suitability of a person for appointment as a judge, even if is acceptable to a majority of members of the NJAC, can be thumbed down by two of its other members in terms of Section 5 of the NJAC Act. These two persons might be the Law Minister (representing the President) and an eminent person or two eminent persons neither of whom represent or purport to represent the President, the other pre-eminent constitutional authority in the appointment process under Article 124(2) of the Constitution prior to its amendment.

The opinion of the Chief Justice of India had ‘graded weight’ or the ‘greatest weight’ prior to the 99th Constitution Amendment Act. But now with the passage of the 99th Constitution Amendment Act and the NJAC Act the Chief Justice of India is reduced to a mere voting statistic. Designating the Chief Justice of India as the Chairperson of the NJAC is certainly not a solace or a solution to downsizing the head of the judiciary.

The Court also found valid the apprehension expressed by some learned counsel appearing for the petitioners that since no guidelines have been laid down for the nomination of the two eminent persons, there is a possibility that persons who are not really eminent may be nominated to the NJAC or that their appointment will be politically motivated.

But notwithstanding this, I do not subscribe to the view that the judiciary is a holy cow and an exclusive club for which only the lawyers and judges are competent to take decision. The fear that the presence of a few lay persons will interfere with the independence of the judiciary is misplaced. As the Annual Reports of the Judicial Commission of New South Wales (Ireland) said caustically: “Judicial independence is not some kind of industrial benefit generously extended to judges and magistrates, it is fundamental principle of our society’s constitu-tional arrangements.”

The Court has finally directed that the result of the declaration that the Collegiums System postulated by the Second Judges Case and the Third Judges Case gets revived. But it has also held that the procedure for appointment of judges, as laid down in these decisions read with the (Revised) Memorandum of Procedure, definitely needs fine-tuning. It has now fixed this matter on November 3, 2015 to consider introduction of appropriate measures, if any, for an improved working of the “collegiums system”.

I may instantly give two immediate sugge-stions which may be considered—one of the most serious self-inflicted wound by the judiciary, namely, of appointing the Chief Justice of the High Court to outside his parent court. The second one is that full publicity be given on website and information to the Bar Associations, the names of those who are being considered and invite if there any objections from the public or the Bar. It would be necessary for the Chief Justices of the respective High Courts and the Chief Justice of India to invite for comments the concerned Bar Associations and to invite the concerned Bar Associations for any information.

I hope that Parliament and the legislatures will show balance and not start an anti-judiciary crusade. This decision should be taken as a constitutionally permissible normal feature.

The author, a retired Chief Justice of the Delhi High Court, was the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail:rsachar1@vsnl.net/rsachar23 @bol.net.in

Source: Mainstream, VOL LIII No 44 New Delhi October 24, 2015

Judging the Judge-maker

The four judgments of the majority have reasserted judicial independence, with its concomitant autonomy in appointments, as an integral part of the Constitution’s basic structure.  

A powerful two-term Chief Minister of a central Indian State was seen obsequiously bowing and scraping and loudly saying “Yes Sir, No Sir, As you please, Sir” to an innocuous High Court judge. A friend of the Chief Minister later asked him why the most powerful man in a huge State was kowtowing to someone who only a few months prior, as an undistinguished government pleader, would not have been given even an audience. The Chief Minister’s eyes twinkled as he replied to his friend, “Now, he is one of the few people who can remove me from my chair”. The friend’s eyes twinkled as well when he recollected that the Chief Minister too owed his fortune to his predecessor having to resign after a court verdict.

The story may be apocryphal, as many stories from the bar are, but it explains exactly why judicial appointments are so vital in the running of a constitutional democracy. It also explains why the executive and legislature seek to have a say in the process of selecting judges and why today’s judges zealously seek to protect their two decade-old process of immaculate conception, unassisted by other organs of the state.

Till 1993, judges were appointed by the executive in consultation with the judiciary. In good times, consultation with the judiciary went beyond seeking of opinion to attempt a consensus. However, the judicial voice was often neither dominant nor decisive. In bad times, however, governments made calls for a “committed judiciary”, attempted to court-pack and sometimes indulged in rank favouritism. The situation prompted Ram Jethmalani to famously remark, “There are two kinds of judges, those who know the law and those who know the law minister.”

Quiet revolution

It was in this backdrop, in 1993 during Narasimha Rao’s minority government, with Mandal, mandir and economic liberalisation simultaneously boiling, that a quiet declaration of judicial independence occurred. Justice J.S. Verma’s judgment in the Supreme Court Advocates on Record case, gave the Chief Justice and senior judges of the Supreme Court and the High Courts the power of making almost binding recommendations, for future appointments of judges in the constitutional courts.

Whenever a vacancy arose in the brotherhood, it would be filled by someone pre-approved by the judges and the executive could only demur in the appointment if cogent grounds existed. If, despite executive demur, the judges insisted on the appointment, the executive would have to confirm it. The Indian judiciary managed to create, by constitutional interpretation, a self-appointing elite. Within that elite, the power to recommend appointments belonged to a super-elite called the collegium.

In 1998, during the Vajpayee Government, on a presidential reference, the Court defined the collegium thus: “The opinion of the Chief Justice of India ...has to be formed in consultation with a collegium of Judges. Presently, and for a long time now, that collegium consists of the two seniormost puisne Judges of the Supreme Court. ...The principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court bench.”

The judgment also went on to increase the size of the collegium by holding that “we think it is desirable that the collegium should consist of the Chief Justice of India and the four seniormost puisne Judges of the Supreme Court…” Separate Collegiums of three senior judges were provided for the appointment of High Court judges.

Unstable structure

Since the collegium comprised of the most senior amongst the judges, who all retired upon turning 65, its composition was never stable. On an average, a senior judge would normally serve in the collegium for three years or less and would head it for less than a year. Hence, securing judicial appointments through the collegium became a deadly game of musical chairs and Russian Roulette, randomly mixed. Any High Court judge, hopeful of going higher, found himself desperately seeking not to anger any possible member of the collegium. Sometimes, collegiums got stymied, when old rivalries between its members saw each other’s favourites getting vetoed. There were also times that collegium meetings became examples of bargaining within the collective, and consensus emerging from a division of the spoils. In this system, while no single politician could ensure that a candidate became a judge, it was quite likely that a single judge’s wrath could wreck a hitherto promising judicial career.

The resultant appointments by the collegium, can largely be described as middle-of-the-road, with the elimination of most outliers. Thus, brilliance often got mistaken for unsteadiness and vice versa. Seniority became an indispensable shibboleth. Equally, while a reputation for corruption was a disqualifier, lesser evils like tardiness or sloth often got glossed over. Most importantly, decisions on appointments were hugely delayed, as judges resorted to politicking.

But the collegium also ensured that judges were not beholden to any politician. A bold judgment could end up unseating the most powerful of politicians or irretrievably damaging them. Politicians of all hues yearned for the early years of strong governments with huge parliamentary majorities, where judges were sometimes seen, but rarely heard of.

Towards the end of the UPA regime, the government sought to tame judges by demolishing the collegium. It brought in a constitutional amendment to provide for the National Judicial Appointments Commission (NJAC) — an independent commission with three senior judges, two eminent outsiders and the Law Minister. The UPA’s inept parliamentary handling led to a failure of the bill. A commanding NDA victory in 2014 saw the Modi government revive the proposal and Parliament amended the Constitution brought about the 99th Amendment to provide for the NJAC. Subsequent ratification of 20 States was obtained and it seemed that the collegium was history.

Petitions were filed challenging the constitutional amendment. Going by earlier experiences of judicial standoffs, many men of law expected that a constitutional amendment, almost unanimously passed by Parliament, would be rubber-stamped by the Court. Some were hopeful of judicial creativity finding a via-media which, while upholding the amendment, limited governmental interference. When the judgment was delivered on October 15, 2015, it was a decisive blow. The Court by a 4-1 majority, struck down the 99th Amendment. Justice Kehar’s judgment concluded that the NJAC did “not provide an adequate representation, to the judicial component” and that “clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of Judges” It further held that “Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC.” The clause it was held, impinged upon the principles of “independence of the judiciary”, as well as, “separation of powers”. The clause which provided for the inclusion of two “eminent persons” as Members of the NJAC was held ultra vires the provisions of the Constitution, for a variety of reasons.

The four judgments of the majority have reasserted judicial independence with its concomitant autonomy in appointments, as an integral part of the Constitution’s basic structure. No parliamentary majority can amend the Constitution to alter its basic structure and hence the 99th Amendment failed constitutional scrutiny. The court has reinstated the collegium as the clearinghouse of all judicial appointments to the constitutional courts. It has also decided to have further hearings in November to iron out wrinkles in the working of the collegium.

Justice Chellameshwar’s dissenting judgment, has, with strong logic, beautifully worded, upheld the constitutional amendment which scrapped the collegium. Like all dissents, his judgment is an appeal to the future and the powerful brooding spirit of the law. He ended his dissent quoting Macaulay’s dictum, “Reform that you may preserve.”

The Court has now opted to take the path to reform, rather than change to an altogether new road created by Parliament. It is to be hoped that the court’s choice leads not to the dreary desert sands of dead habit, but into ever widening thought and action.

(Sanjay Hedge is a Senior Advocate of the Supreme Court)

Keywords: NJAC, National Judicial Appointments Commission, Supreme Court

Source: The Hindu, 19-10-2015

NJAC decision: It’s all about the supremacy of the Constitution

Has the Supreme Court defied the supremacy of parliament, as is being made out by sections within the ruling combine, by its judgement striking down the National Judicial Appointments Commission?

There are limitations to the argument of parliament’s supremacy over the other two pillars of the State — the judiciary and the executive. That is, if one takes into account the Constitutional scheme of separation of powers of these institutions.

The Parliament is ‘supreme’ as it’s the only elected pillar of the state. As people are sovereign in a democracy, their mandate affords the elected representatives the privilege of making laws — subject to review by the apex court for their constitutionality. The arrangement ensures a fine balance of power between the three organs.

In that light, the judgement has to be viewed from the perspective of the supremacy of the Constitution. It might, on the face of it, seem an example of se iudice causea propriae — Latin for someone judging his own cause. But the NJAC was opposed before it by some of the country’s foremost lawyers. The court didn’t take it up suo motu.

The argument was no different against the since restored collegium system for judges’ appointment. But in the instant case, a point made in the judgement and overlooked in the debate it has triggered, is that the NJAC, though created through an amendment of the constitution, lacked constitutional safeguard.

The Commission was vulnerable therefore to the danger of the current or a future parliament diluting its composition and functioning through the passage of a simple law to give the executive the last word in the appointment of judges.

Noted lawyer Harish Salve disagreed on other reasons the Constitution bench cited to show the NJAC in contravention of an inviolable basic feature of the Constitution — the judiciary’s independence. He shared nevertheless the apprehensions that the overturned NJAC lacked constitutional safeguards against subsequent parliamentary adventurism to alter its working and composition.

“Please create the NJAC as a body and put it in the Constitution,” Salve told Karan Thapar on India Today TV. “That will help us know how the NJAC will be and how it will work,” he suggested while discussing ways to make the proposed mechanism acceptable to the apex court.

But the optics have changed since the 99th Constitution amendment was passed, paving the way for the NJAC. The reality is that the 2014 parliamentary consensus for ‘transparency’ in judges’ appointment was driven as much by legislative angst against the judiciary’s intrusions on the executive’s domain in recent years — largely on account of the governance deficit arising out of a fragmented, adversarial polity.

That consensus has lately shown signs of dissipation. The reason: The NDA’s actions in loading institutions of excellence, research and higher learning with loyalists with below par abilities.

If it’s resolute and serious, the government will have to try hard to forge the legislative unanimity that had seen the NJAC-I through. For the present, it looks easier said than done. The national polity being in a hugely partisan mode, the Congress is unlikely to play ball this time.

The SC verdict saw well known lawyer and Congress spokesman Abhishek Singhvi quickly going on record to accuse the NDA of attempts to impose its will, including through the judiciary.

Source: Hindustan Times, 19-10-2015

An assertion of primacy

It is extraordinary that there should be near-unanimity in the country that the present system of judicial appointments that was put in place in 1993 is deeply unsatisfactory, and yet the most significant legislative effort to reform it should fail before the Supreme Court. It is no surprise that a five-judge Bench has struck down the Constitution (99th Amendment) Act, 2014, by which the government established a National Judicial Appointments Commission to select members of the higher judiciary. There were doubts whether the composition of the NJAC, especially the inclusion in it of the Union Law Minister and two “eminent persons” appointed by the government, would survive judicial scrutiny. For, the law also gave any two members a veto over all decisions, raising the question whether the judicial members could be overruled by the executive representatives. The Attorney General could not convince the court that the amendment, along with the NJAC Act, was aimed at restoring the system of checks and balances which, according to the government, was lost after the Supreme Court created the collegium scheme of appointments. The core question was whether the new institutional mechanism to appoint judges impinged on the independence of the judiciary, a basic feature of the Constitution. The court has ruled that it does. Justice J.S. Khehar, writing the main judgment, has held that the clauses provided in the amendment are inadequate to preserve the primacy of the judiciary. The inclusion of the Law Minister in the body impinged on both the independence of the judiciary and the doctrine of separation of powers.

Nobody on either side of the debate disagrees that the judiciary should be insulated from political interference. Yet, should the judiciary retain its primacy, or should the executive have a say in order that flawed choices do not erode the institution’s credibility? Justice Khehar has said the conduct of the political executive showed it tended to reward favourites in many fields. Preserving the primacy of the judiciary was a safe way to shield the institution from “the regime of the spoils system”. Justice J. Chelameswar, in his dissenting opinion, is candid in questioning the lack of transparency in the collegium system. Even while restoring this system, the majority has invited suggestions to improve it so that it is more responsive to the expectations of civil society. While to some it may appear that striking down a Constitution amendment passed unanimously in both Houses of Parliament and ratified by 20 State Assemblies amounts to negating the people’s will, it cannot be forgotten that the judiciary remains the sole authority to decide whether a law violates the basic structure of the Constitution. What the situation indicates is that India is still struggling to put together a transparent appointment system not vitiated by executive patronage or judicial nepotism.

Keywords: National Judicial Appointments Commission Act, NJAC Act, Supreme Court Bench order

Source: The Hindu, 17-10-2015

A system under Trial:

It is unfortunate that more than two years after the Union Home Ministry sent out an advisory to States and Union Territories in January 2013, and eight months since the Supreme Court kicked off the process of releasing undertrials who have undergone half their likely jail terms in prison, many of them remain in detention. The figure given by the Union government to the court last month suggests that as many as 2,78,000 prisoners, or a little over two-thirds of the total number of incarcerated people in the country’s jails, are undertrials. And the main reason they are still in judicial custody appears to be poverty, as most of them are too poor to afford bail bonds or provide sureties. “This is certainly not the spirit of the law, and poverty cannot be a ground for incarcerating a person,” the Supreme Court observed recently while passing a set of directions. The court found that many of the cases involved were compoundable, and yet many people have been imprisoned without the benefit of compounding being extended to them. It has reiterated that an undertrial review committee, comprising the District Judge, District Magistrate and Superintendent of Police, should be set up in each district. The onus of constituting such a panel for every district has been put on the National Legal Services Authority, acting in coordination with the State Legal Services Authority.

The Code of Criminal Procedure was amended in 2005, introducing Section 436A, to reduce overcrowding of prisons. Under this section, an undertrial prisoner shall be released on own personal bond if he or she has undergone detention for a period extending to one half of the maximum period of imprisonment specified for that offence. Last year the Supreme Court had asked sessions judges and judicial magistrates to start visiting prisons in their jurisdictional districts from October 1, 2014 to identify and release undertrial prisoners languishing for long periods. It is not clear why these measures have not yielded results. One reason could be that there is inadequate legal aid and advice available to poor prisoners. The legal services authorities in various States must play a principal role in inculcating awareness among prisoners about their rights, especially provisions that entitle them to freedom. It is also in the interest of the government that prisons are not overcrowded, considering the cost of prison space, resources and maintenance. The real solution, however, does not lie merely in the early release of prisoners on bail, but in expediting the trial process. The fact that cases are not decided for long spells that are close to the likely period of imprisonment is a poor commentary on a system beset by delay. The sooner this is addressed, the better it is for the administration of criminal justice.

Keywords: undertrials, justice system, judicial delaynder trial

270 on death row in India, 64 sentenced last year: Amnesty

But no executions took place in 2014; globally, executions fell by a fifth, and two-thirds of the world has abolished the death penalty

Indian courts handed down at least 64 death sentences last year, but no executions took place, largely as a result of court rulings, new data from Amnesty International shows. Globally, executions fell by a fifth, and two-thirds of the world has abolished the death penalty.

China continues to execute the most people globally — thousands every year, the human rights group said in a new report published early on Wednesday — but does not publish any data. Iran, Iraq and Saudi Arabia accounted for nearly three-quarters of the rest of the world’s executions in 2014.

The United States of America executed 35 people, its fewest in 20 years.

In India, which saw the execution of Ajmal Kasab in late 2012 and Afzal Guru in early 2013 after a gap of eight years, several executions scheduled for 2014 were put on hold.

In January, a landmark Supreme Court ruling laid down guidelines for death sentences, including classifying delay in the disposal of mercy petitions as grounds for commutation, as also mental disability. Information reported by the Death Penalty Research Project of the National Law University in Delhi indicated that 270 people were on death row in various Indian prisons, and eight mercy petitions were rejected in 2014.

Pakistan lifted a six-year moratorium on executions after the Peshawar school massacre. Seven people were executed in 2014. As of Tuesday, 66 people have been hanged since the lifting of the moratorium, and Amnesty estimated that 8,000 more persons were on death row.

“Governments using the death penalty to tackle crime are deluding themselves. There is no evidence that shows the threat of execution is more of a deterrent than any other punishment,” said Salil Shetty, Amnesty International’s Secretary General, said in a statement.

Keywords: India death sentences, Amnesty International

Mar 04 2015 : The Times of India (Delhi)

Bihar tops in justice delivery with 179 fast-track courts

New Delhi: TIMES NEWS NETWORK





Bihar continues to operate the highest number of fast-track courts in the country , with 179 of them functional as of last month. Maharashtra, Madhya Pradesh, UP, Bengal, Andhra Pradesh and Gujarat are others with high number of such courts.The Centre plans to encourage setting up of at least 1,800 fast-track courts (FTCs) to deal with cases of heinous crimes, cases involving senior citizens, women, children, disabled and disputes involving land acquisition and property pending for more than five years.
Besides, the government has also proposed setting up 460 family courts in the next five years in districts with a population of one million or more, where these courts are not already present. The funding of these projects will come through the 14th Finance Commission awards.
Earlier, in 2000, the central government had allocated financial resources to the states for setting up fast-track courts when 1,734 FTCs were set up. The central grant was made available for a fixed time period of five years but was extended till 2011. Some of the states such as Bihar, Himachal and Maharashtra have continued FTCs with their own resources.
However, during a recent meeting of the advisory council of the National Mission for Justice Delivery and Legal Reforms, chaired by law minister Sadananda Gowda in January, an opinion was expressed against encouraging FTCs. A view was expressed that fast tracking certain categories of cases results in slow tracking other categories.Law commission chairman Justice A P Shah had suggested that a more holistic approach be adopted for pendency reduction.
After the Nirbhaya gangrape incident of December 2012 in Delhi, the law ministry had decided to provide funds up to Rs 80 crore per annum on a matching basis from states till March 2015.However, the Centre specified that this grant money will be used only for the purpose of meeting salaries of judges required for running these FTCs.
After the Delhi incident, states and chief justices had resolved to set up additional FTCs relating to offences against women, children differently abled persons and senior citizens and marginalized sections of society.
According to a status report of the law ministry , 212 FTCs have been set up so far for the purpose of fast tracking cases against women and children in 16 states.

Job satisfaction just 5%, laments top SC judge

Abhinav Garg

New Delhi





The senior-most judge in the Supreme Court after the Chief Justice of India has a job satisfaction of “maybe 5 %“.Justice T S Thakur on Thursday made the startling revelation before a packed audience of international experts in mediation who are in the capital to attend a conference on the alternate dispute resolution system.
“Today I am in the Supreme Court, which is the most powerful court in the country . If you ask me how much my job satisfaction is, I would answer maybe 5%. That is because 95% of what I do doesn't give me satisfaction.SC is not meant for anticipato ry bails or to decide if a promotion of a head clerk should have been done by the government on time. It is for larger issues. But we are busy reading SLP files on anticipatory bail or if a person who dishonoured a cheque of Rs 4,000 should be sent to jail,“ Justice Thakur lamented. He was addressing the Asia Pacific In ternational Mediation Summit where mediators will discuss how to make mediation a better way of settling disputes than filing cases.
Addressing members of the American Bar Association and Association of Indian Mediators, Justice Thakur explained his remark. “There is any number of matters pending in Constitutional courts.Issues that impact lives of a large number of citizens and must be decided by us, but we are unable to attend to them.Mediation, if successfully done, will help the entire system get galvanized. The tentacles of appeal and further appeal can then be removed from court, freeing us up for dealing with core Constitutional issues,“ he pointed out.

Watershed in judicial history

The Supreme Court of India and the High Courts, described as the most powerful judiciary in the world, are witnessing dramatic changes in their institutional structure. Pending notification, the legislature has passed the Constitution (121st Amendment) Bill, 2014 and The National Judicial Appointments Commission Bill, 2014 to regulate the procedure for recommending the appointment and transfer of the Chief Justices and Judges of these higher courts, marking a watershed in judicial history. The new law provides for the setting up of the National Judicial Appointments Commission (NJAC), a six-member panel headed by the Chief Justice of India, and includes two senior-most Supreme Court judges, the Union Minister of Law and Justice and two ‘eminent persons’ nominated by a committee comprising the Prime Minister, the CJI and the Leader of the Opposition. Although controversial, this represents a much-needed reform of the older collegium system. That system was a judge-devised practice of appointments that evolved out of the ‘three-judges cases’ (1982, 1993 and 1998) wherein the Chief Justice along with a panel of senior-most judges would make a binding recommendation to the President on the appointees. This model was a reaction to blatant favouritism by the executive that marked appointments until the Supreme Court decided to change the procedure. To avoid charges of favouritism, the collegiums relied on seniority, which only encouraged more mediocrity.

Although such an inter-institutional model has the potential to enhance merit and diversity in the judiciary, it is the fine print of law that raises questions. With three of the six members being judges, a decision of the Commission can be vetoed by any two members. The judicial members of the NJAC lack the preponderance in voice necessary to maintain independence. The fear is that the NJAC may encourage High Court judges to give pro-government rulings with the object of gaining eventual promotion to the Supreme Court. This problem was dealt with by the Venkatachaliah Committee, endorsed by the Vajpayee government, which suggested a panel of three judges, the Union Minister and only one ‘eminent person’, thus reducing the scope for executive interference. Having a relook at this report might have been of value. But the BJP has ignored it and instead demanded more say in the NJAC; the Opposition did not seem to have any complaints about the procedure either. With several influential lawyers criticising the law for being a political assault on judicial independence, the constitutionality of the law is about to be challenged in court. Whether this would eventually lead to a conflict between the two wings of the government, is something to be seen.

Keywords: Supreme Court of India, High Courts, powerful judiciary, Constitution (121st Amendment) Bill, 2014, The National Judicial Appointments Commission Bill, 2014, National Judicial Appointments Commission

MAINSTREAM, VOL LII NO 51, DECEMBER 13, 2014

An Activist Judge with Aristotle’s Mental Range, Fearless Krishna Iyer was a Game-changer

Monday 15 December 2014, by T J S George

IMPRESSIONS
If style maketh the man, opinion maketh the judge. A wise opinion memorably expressed goes directly into the conscience of society and the annals of time. Such was the opinion: “Law without politics is blind. Politics without law is deaf.” It was an aphorism that marked the personality, the commitment and the intellectualism of Justice V.R. Krishna Iyer. Some 700 judgments he pronounced from the Bench of the Supreme Court and all of them were studded with bold ideas boldly expressed. They all had but one aim: Uphold the human rights of ordinary people, even of detainee suspects (he pronounced against handcuffing as a routine) and jailed convicts (he took up a prisoner’s letter about torture as a public interest litigation).
India’s judicial firmament is full of shining stars. (The Emergency years showed that there were also judges who were unworthy of their calling.) Fali Nariman in his autobiography cites some examples of the great, such as Vivian Bose, S.R. Das and P.B. Gajendragadkar. He then says that as “pathfinders” he could name only two: Justice K. Subba Rao and Justice V.R. Krishna Iyer. More than all others “they influenced creative judicial thinking. They lighted new, difficult (and different) paths—paths which others followed.”
The lay public is not all that familiar with the Subba Rao saga, but the legal fraternity remembers with reverence his efforts to ensure the sanctity of citizens’ personal liberties. As Nariman puts it, Subba Rao’s “concern for fundamental rights and his distrust of parliamentary majority led to some of his most controversial decisions. He abhorred absolute power—especially the arrogance of absolute power” whether exercised by the executive or the legislature.
If Subba Rao’s agenda was to make politics subservient to law, Krishna Iyer’s was to make law serve the ends of social justice. He became arguably the most famous of Supreme Court judges. One reason was his activism which increased after his retirement in 1980. There was no people’s cause that he did not champion; at the age of 99 he even sat in dharna demanding a cancer centre for Kochi. He was interested in practically all subjects; one of the 105 books he authored was on life after death. Former Chief Justice of India M.N. Venkatachaliah put it best when he said: “The range of Krishna Iyer’s mind was that of Aristotle.”
But the big reason for his fame was, ironically, his judgment in a political case—the election case appeal by Indira Gandhi in 1975. Krishna Iyer was a junior puisne judge in the Supreme Court at that time. It was just an accident that the appeal came up before him. It was summer recess for the court and Krishna Iyer happened to be filling in as vacation judge. That was when Indira Gandhi approached the court pleading for an absolute stay on the Allahabad High Court’s verdict disqualifying her.
Indira Gandhi was at the height of her power. It was not incumbent on the junior vacation judge to take up the case. He could have just as well granted a stay till the reopening of the court when a proper Bench of three or four judges could have given a decision. But this was Krishna Iyer who had what Nariman called “that abiding quality of a great judge—he was fearless”. Taking the full weight of responsibility upon himself, the vacation judge heard the arguments nonstop for six hours, three each by Nani Palkhivala (for Indira Gandhi) and Shanti Bhushan (for Raj Narain). It was 2 o’clock in the morning when the writing of the judgment was completed. The Court rejected the plea for a complete stay of the High Court verdict and allowed only a partial stay. Indira Gandhi was allowed to function as the Prime Minister, but without the right to vote in Parliament. The order was handed down on June 24. On June 25-26 Emergency was proclaimed.
To understand the extent of Krishna Iyer’s courage in passing that judgment, we must know that Palkhivala had sounded a warning during the argument. His words were: “The nation was solidly behind (Indira) as Prime Minister” and “there were momentous conse-quences, disastrous to the country, if anything less than the total suspension of the order under appeal were made”. Krishna Iyer remained undaunted. Constitutional lawyer M. Seervai, usually a critic of Krishna Iyer, described this as the Supreme Court’s finest hour. Was that the same as saying that V.R. Krishna Iyer was India’s finest judge? His one judgment certainly changed the game for Indian history.

Two-thirds of prison inmates in India are undertrials

Over 3,000 of the 2.8 lakh have been behind bars for more than five years

Two of every three persons incarcerated in India have not yet been convicted of any crime, and Muslims are over-represented among such undertrials, new official data show.

Despite repeated Supreme Court orders on the rights of undertrials, the jails are filling ever faster with them, shows Prisons Statistics for 2013 released by the National Crime Records Bureau. The number of convicts grew by 1.4 per cent from 2012 to 2013, but the number of undertrials shot up by 9.3 per cent during the period.

Men make up 96 per cent of all prison inmates. Nearly 2,000 children of women inmates live behind bars, 80 per cent of those women being undertrials.

 sharp increase in the number of undertrials charged with crimes against women contributes to the rise in the number of all undertrials. The number of those incarcerated on charges of rape rose by over 30 per cent from 2012 to 2013, and the number facing charges of molestation grew by over 50 per cent. The number of men convicted of rape rose dramatically too, by 16 per cent — the biggest increase among major sections of the Indian Penal Code.

Undertrials are younger than convicts — nearly half are under the age of 30 and over 70 per cent have not completed school. Muslims form 21 per cent of them. On the other hand, 17 per cent of those convicted are Muslims.

“These numbers definitely point to a failure of the delivery of justice, but it also appears that the system is unequally unjust,” said Harsh Mander, Director of the Centre for Equity Studies, which works on issues of access to justice in prisons. “The disproportionate presence of members of the Scheduled Castes and Scheduled Tribes and Muslims among undertrials points not simply to a technical breakdown but also to the increased vulnerability of these groups, and probably bias,” Mr. Mander toldThe Hindu.

Among the 2.8 lakh undertrials, over 3,000 have been behind bars for over five years. Between them, Uttar Pradesh and Bihar are home to 1,500 of those undertrials. Most undertrials — 60 per cent of them — have, however, been behind bars for less than six months.

While most States have a little over twice as many undertrials as convicts, Bihar has a staggering six times as many.

The NCRB numbers also provide the only insight available into the number of people on death row; at the end of 2013, 382 persons had been sentenced to death and were awaiting either legal relief or the execution of sentence.

"Excessive pre-trial detention violates undertrial prisoners’ rights to liberty and fair trial, and adversely impacts their life and livelihood," Divya Iyer, Research Manager at Amnesty International India, said, adding that the new numbers were a "serious concern". While a lack of effective management of information relating to prisoners, the absence of functional and effective undertrial review committees, lack of adequate legal aid, and delays in court productions of undertrials contributed to the problem, the authorities must as a first step identify and release all those prisoners who are eligible for release under law, including those who have already been in prison for over half the term they would have faced if convicted, Ms. Iyer said.

Keywords: prison inmates, undertrial inmates, NDRB numbers, death row, National Crime Records Bureau

Aug 11 2014 : The Economic Times (Delhi)

Think Beyond a Judicial Commission





The legislature must have a role in judges' selection

It is time the discourse moved away from treating the collegium system of selecting judges and a judicial appointments commission as the only two choices before the nation for fair appointments to the higher judiciary . The trouble with a judges' collegium making the selection is supposedly the possibility of converting the judiciary into a self-propagating oligarchy . The revelation by Justice Markandey Katju is that the executive exerts undue influence on the collegium, not that the collegium is insularly autonomous. The conduct of the present government of turning down the nomination of Gopal Subramanium also makes it clear that the problem that needs to be fixed is not collegiate insularity and unaccountability . Actually , the problem is broader.India's justice system is a mess. It takes decades to settle a legal dispute beyond final appeal. Undertrials waste long years of their life in jail before they are, more often than not, acquitted. As the ultimate repository of popular sovereignty , Parliament has the responsibility to fix this mess that the judiciary has manifestly failed to.
Judges' selection must be seen in this context. It is necessary to ensure the individual independence of those appointed as judges and to maintain the collective independence of the judiciary , to ensure that it retains its ability to act as a check on the executive. While the judiciary is vocal on these themes, its silence on accountability is deafening.
The proposed Judicial Appointments Commission does not address these issues even partially. It only runs the risk of enabling the executive to pack the highest court of the land with people of its own ideological bent.
This is not surprising, considering that its offered solution to the quandaries surrounding fair selection of judges is to transfer such quandaries to the selection of members of the commission. To ensure truly non-partisan selection of judges, the legislature must have a decisive role in the process, whether by committee or majority of an entire House, preferably the Upper House that is less susceptible to the vagaries of electoral mood swings.

Jul 17 2014 : The Times of India (Delhi)

What is dignified death, asks AG





The Supreme Court on Wednesday decided to adjudicate the legality of active and passive euthanasia and the emerging concept of `living will' after treading cautiously for decades on this highly emotive and legally complicated issue.The Centre objected to the exercise. Attorney general Mukul Rohatgi said, “The government doesn't accept eutha nasia as a principle. Our stand on euthanasia, in whichever form, is that the court has no jurisdiction to decide this. It's for Parliament and the legislature to take a call after a thorough debate and taking into account multifarious views.“ The court agreed it was a matter of public policy and that Parliament and the legislature were competent to decide it. But counsel Prashant Bhushan, for PIL petitioner NGO Common Cause, said the issues were debated in public for decades and the legislature had not yet taken the first step.
The court wanted a country-wide debate. The Constitution bench of Chief Justice R M Lodha and Justices J S Khehar, J Chelameswar, A K Sikri and R F Nariman sought views of all states and Union Territories on the PIL in eight weeks.
It requested senior advocate T R Andhyarujina to assist the court as amicus curiae.
The issue concerns the rights of a terminally-ill person after doctors rule out chances of survival. Active euthanasia would involve a doctor injecting a lethal medicine to trigger a cardiac arrest. In passive euthanasia, doctors, with consent from kin, withdraw the life support system. Explaining “living will“, Prashant Bhushan, appearing for NGO Common Cause, said, “Given the unanimity that a person had the right to refuse a particular medicine or treatment, why should he/ she be not allowed to execute a will in sound mind saying if he/she ever slipped into a vegetative state with a terminal disease with no chance of recovery , doctors shouldn't keep him/her alive with the help of life support?
“The constitution bench should consider active euthanasia that provides an option to the terminally ill...to choose the option of the right to die.
If, after all medical interventions fail and the process of death has commenced, why should the patient not have a right to die,“ he asked.
Attorney general Mukul Rohatgi raised fundamental doubts: “What is dignified death? Who decides when the process of death com mences? What if medical research tomorrow finds a cure to the presently terminally-ill (sic) disease? Can the court fathom the problems and abuse that could happen in far-flung places?“ He added, “Attempt to suicide is an offence under Section 309 of IPC. Abetment to suicide too is an offence. Euthanasia in any form would fall within the meaning of abetment to suicide. Would `living will' not fall under expression of an intention to commit suicide? It is difficult to find a solution through a straight-jacket formula.“

Jun 25 2014 : The Economic Times (Delhi)

All-India Service likely to Run Subordinate Judiciary

GANGADHAR S PATIL

NEW DELHI





Proposal to come up for law minister Ravi Shankar Prasad's consideration in a couple of days

The disparate lower judiciary of varying abilities may be transformed into a national body of professionals along the lines of the Indian Administrative Service, if the government agrees to take up a long-pending proposal for the creation of an all-India judicial service to run the subordinate judiciary.The proposal, kept in the cold storage by the UPA for long, is expected to come up for law minister Ravi Shankar Prasad's consideration in a couple of days. Law ministry officials told ET that they have prepared and will soon send a detailed note on the objections and views of state governments and chief justices of all the high courts during various meetings held on the issue.
“After the last attempt to reach a consensus in the conference of chief ministers and chief justices of high court in April, 2013, the government has not taken any major decision.
We will apprise the new minister on the status of the scheme,“ said a senior law ministry official.
The recruitment to the lower judiciary is now done by the respective high courts. The two routes to the service are the lower subordinate entry level of magistrates and the higher one of additional session judges, recruited and administered by the high courts, which have the authority to promote, punish and transfer these judicial officials. Once they become district judges they are eligible to be considered for positions in the high courts as well. The new scheme provides for centralised, direct, recruitment of judicial officers. So, instead of the high courts recruiting courts recruiting and administering them, AIJS provides for a centrally administered exam and monitoring by a central administrative authority, which could even be the Supreme Court.
The union government has been working with the state governments and chief justices of various high courts to push through the AIJS. Article 312 of the Constitution was amended in 1977 to provide for AIJS, but because of concerns like the issue of litigation in local languages raised by some state governments and high courts, successive governments at the Centre could never implement the scheme.
“States and high courts are apprehensive of the scheme because, if implemented, it would take away their powers to appoint and administer subordinate judges,“ said the senior law ministry official.
The Supreme Court had in 1991 endorsed the creation of an AIJS.

Jun 23 2014 : The Times of India (Delhi)

LEGALLY SPEAKING - What makes a lawyer suitable to become a judge

Dhananjay Mahapatra

TNN





In 2007, the SC had quoted an ex-chief justice of the US Supreme Court, John Marshal. He had said the judiciary's power lies not in deciding cases nor in imposing sentences nor in punishing for contempt, but in the trust, confidence & faith of the common man

What is that `X-factor' in a lawyer which tilts the scale for his appointment as a judge in the Supreme Court and high courts?
Under the Constitution, a person can be considered for being made a judge of the Supreme Court if he has been a high court judge for five years or practised as an advocate in the higher judiciary for 10 years, or in the opinion of the President is a “distinguished jurist“.Appointments by both, earlier by the executive and from 1998 by the collegium headed by the Chief Justice of India, have been criticized in the past. Seldom has it sparked a public debate, except when it proposed to elevate Justice P D Dinakaran to the SC in 2010.
In India, eminence and success of lawyers go hand in hand. Eminent lawyers refuse to become judges, for that would entail huge loss of income. Whenever an eminent lawyer agrees to become a judge, the collegium feels it has netted a golden fish that would add sparkle to the judiciary .
Eminence of a lawyer and his suitability for judgeship are very different aspects. But when there is a dearth of eminent lawyers willing to take up judgeship, the line between eminence and suitability gets blurred.
In most countries, it is the government that appoints judges. In the UK, a person must have served as a judge of the HC for two years or had practised as an advocate for 15 years to be eligible for the Supreme Court judge's post. After a candidate is shortlisted, an elaborate consultation process with primacy to the judiciary follows. In Canada, judges to the Supreme Court are chosen by the federal government after wide consultation with the judiciary , the legal community and the public at large. Though these consultations happen in private, in 2006, the parliamentary committee for the first time convened a public meeting to question an appointee to the Supreme Court.
The American Constitution meticulously outlines qualifications for the House of Representatives, the Senate and the presidency . But it does not give any advice for judicial appointments except stressing “good behaviour“. Canada's Supreme Court had said judges were the pillars of the justice system and that the public had a right to demand “virtually irreproachable conduct from anyone performing a judicial function“.
There is a reason why world over, the stress is on the person's good behaviour and impeccability of con duct, whenever he enters the zone of consideration for appointment as a judge.
In India, the Supreme Court in the Second Judges case [Supreme Court Advocates on Record Association vs Union of India; 1993 Sup (2) SCR 659] had said the executive was an important constituent of the consultation process for appointment of judges to the SC and HCs.
It had said the suitability of a lawyer for the judge's post was generally known to the CJI and CJs of HCs. However, it had also conceded that there might be occasions when not all antecedents of an advocate are known to those part of the judge selection process.
“It is for this reason that the executive is also one of the consultees in the process of appointment. The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consul tees, before the appointment is made,“ it had said.
While expanding the collegium system for judges' appointment in its 1998 opinion given on a presidential reference, the apex court had said, “There may be a certain area relating to suitability of the candidate such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India.“
All this elaborate discussion was meant only to block pliable persons, either politically or otherwise, from becoming judges and exercising enormous power, including deciding life and death of individuals.
How else would the top court have ensured that litigants, in other words the public, retained their trust and faith in the fairness of its decisions? That is why “trustworthiness“ of both character and capability of a person has been assigned cardinal importance in selection of judges.
In a 2007 judgment (Rajesh Kumar Singh vs HC of Madhya Pradesh), the court had quoted a 19th century chief justice of the US Supreme Court, John Marshal, to sum it up. Marshal had warned that the power of the judiciary lies not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man.
We hope all appointments in future to the SC and HCs pass the Marshal test.