25 YEARS OF BHOPAL GAS TRAGEDY. THE WORLDS WORST ENVIRONMENTAL ACCIDENT

WARREN ANDERSON STILL TO FACE PROSECUTION ?

HAS THE INDIAN GOVERNMENT DONE ITS DUTY TO BRING THE PERPETRATORS OF THIS CRIME  TO FACE PROSECUTION?

 THE VICTIMS ARE STILL IN SEARCH OF JUSTICE?

PLS VISIT   FOR  FURTHER INFORMATION

http://studentsforbhopal.org/

25 years and still waiting

Vidya Subrahmaniam IN THE HINDU DECEMBER 2, 2009

The Anderson saga is one more reminder that the powerful can always count on official help.

In the fall of 2002, Greenpeace campaigner Casey Harell paid a surprise visit to the New York State private estate of Warren Anderson, and found him living a “life of luxury”. Nothing odd about the discovery except that in the eyes of the law Mr. Anderson was untraceable, and had been so since 1992 when an Indian court, exasperated by his refusal to heed multiple summons for trial, declared him a fugitive from justice.

Mr. Anderson was chairman and chief executive officer of the United States-headquartered Union Carbide Corporation (UCC) at the time of the lethal December 2-3 methyl isocyanate leak from Carbide’s pesticide plant in Bhopal and faced charges on many counts, including culpable homicide. The UCC chief, or “Accused no 1” in a December 1, 1987 chargesheet filed by the Central Bureau of Investigation against him and 11 others, including UCC, USA; Union Carbide (Eastern), Hong Kong; and Union Carbide India Limited (UCIL), had been placed under house arrest soon after the disaster but won his release on a promise to return to India to stand trial.

Neither Mr. Anderson nor Carbide would turn up in the Indian court and for obvious reason. The toxic gas leak had caused a human tragedy of unprecedented proportions: Around 4,000 (unofficially 8,000) immediate deaths and over a lakh people permanently disabled. In the years to come, the death toll from long-term exposure would mount to 20,000, tens of thousands of children would have birth defects, and many millions would fall gravely ill from drinking water contaminated by the massive amounts of chemical waste dumped in and around the Carbide factory grounds. UCC and its CEO would have had hell to pay had they chosen to face charges.

Mr. Anderson had been in hiding for ten years when Greenpeace, and before that a British newspaper, tracked him down. Mr. Harell would remark after the meeting: “If a team of journalists and Greenpeace managed to track down India’s most wanted man in a matter of days, how seriously have the U.S. authorities tried to find him in all these years? The U.S. has reacted swiftly on curbing the financial corporate crimes of Enron and WorldCom, but has clearly not made much of an effort to find Anderson, responsible for the deaths of 20,000 people in India.”

The searing comment underscored the dubious role played by the world’s most powerful democracy in protecting the key perpetrator of the world’s worst industrial disaster. Seventeen years after he was proclaimed an “absconder”, Mr. Anderson, now 88, continues to elude the long reach of the law. However, it is not just that the wheels of justice showed no inclination to move in the U.S. The Indian government has been no less lethargic in bringing Mr. Anderson to justice. It sent out a formal request for his extradition in May 2003, close to two decades after the crime. As Bhopal activist Nityanand Jayaraman would tell The Hindu on the 25th anniversary of the gas leak: “In the case of Anderson, the [Indian] government’s heart is just not on the job.”

Indeed, the Bhopal saga is a painful reminder of the unconscionable way justice plays out for the poor in this country — with victims fighting a battle so long and hard that justice has little meaning when it finally arrives. Following an unjust settlement reached between Carbide and the Indian government in 1989 (the Indian government sued the corporation for $3 billion but settled for 15 per cent of the amount), survivors were awarded a lifetime average compensation of Rs.25,000, far below international compensation standards. But even this meagre amount would reach the awardees after long delays, protracted red tape and bribes paid to lawyers, middlemen and touts. Compensation would not reach some survivors until 2005, and till date no compensation has been awarded to those born with disabilities and those drinking contaminated water.

The struggle for compensation at least got somewhere, unlike l`affaire Anderson which shows no signs of coming to fruition. In all these years, the gas leak survivors have got used to being told that they must move on, that they must put their tragic past behind them. It is a familiar story. Sikh victims of the 1984 pogrom have heard this nugget of wisdom as have Muslim victims of Ayodhya 1991 and Gujarat 2002. It is as if the perpetrator of a criminal act somehow becomes less guilty if he holds out long enough.

Astonishingly, this was the official stand taken by the Indian government with regard to Mr. Anderson. On August 6, 2001, then Attorney-General Soli Sorabjee advised the Vajpayee government in writing against pursuing Mr. Anderson’s extradition. He argued that it would be difficult for the Indian government to satisfy the “probable cause” requirement necessary for securing Mr. Anderson’s extradition. As the phrase itself suggests, “probable cause” means something more than a mere suspicion but less than the quantum of evidence required for conviction.

Mr. Anderson exercised managerial control and supervision over the operations of UCIL, he approved and ratified the standards in design, safety and operations at UCIL, which were far inferior compared to UCC’s plant in West Virginia, he knew that Carbide had sent a team to inspect the Bhopal plant before the disaster which noted leaking valves in the plant and warned of the “potential for the release of toxic materials”. To show Mr. Anderson prima facie guilty of a grossly irresponsible act that killed, maimed and continues to cause grievous hurt to millions of people was hardly a huge challenge.

Mr. Sorabjee thought otherwise. Worse, he also pointed to “humanitarian considerations” likely to be cited by the U.S. government against Mr. Anderson’s extradition. “The reasons are humanitarian concerns, such as Mr. Anderson’s age, said to be 81 years old, and [his] health and length of time that has elapsed, almost 17 years, between the event and the Indian government’s decision to make a formal request for extradition.” In other words, it was the fault of the victims that Mr. Anderson had grown old while the Indian government took its own time — despite countless petitions to successive governments and prayers before the Bhopal District Court — to take up the extradition question with the U.S. government.

Yet the more the government dithered, the stronger was the survivors’ determination to fight to the end. They organised themselves under various banners and fought simultaneous battles on many fronts — in India as well as in the U.S. Each setback spawned a further round of protest marches, hunger strikes and petition-making. In November 1999, survivor organisations filed a class action suit against UCC and Mr. Anderson in the Southern District Court of New York, charging them with violating international human rights law, environmental law and international criminal law. Federal Judge John F. Keenan would twice throw the case out before agreeing to hear the case again following a partially successful appeal in the Second Circuit Court of Appeals (New York).

A fresh twist in the case came with the 2001 acquisition of UCC by The Dow Chemical Company. The latter persisted with the lie that it had acquired the assets of UCC without its liabilities. It also refused to surrender Carbide (now its subsidiary) for trial. To add insult to injury, Dow also landed law suits on protestors who besieged its offices in India, shouting, “Dow, you now have Union Carbide’s blood on your hands”. Dow claimed $10,000 in compensation for alleged loss of work resulting from the demonstrations.

In all this, the CJM’s court in the Bhopal District Court remained as the lone flicker of hope for the Bhopal gas survivors. The court struck blow after blow for them. From the 1988 letters rogatory issued to the U.S. administration seeking permission for the CBI to inspect the safety systems at UCC’s West Virginia plant to proclaiming Mr. Anderson an absconder in 1992 to persistently seeking information from the CBI on the status of extradition proceedings to quashing the agency’s 2002 attempt to dilute the charge against Mr. Anderson from culpable homicide (punishable with imprisonment up to 10 years) to criminal negligence (punishable with imprisonment up to two years), the District Court was as pro-active as the Indian government was laid back.

The CBI’s 2002 attempt at dilution of charges was of a piece with Mr. Sorabjee’s 2001 advice to the government against seeking Mr. Anderson’s extradition. However, with the Bhopal magistrate standing firm, the CBI was left with no option but to request the Ministry of External Affairs to seek Mr. Anderson’s extradition, which the MEA did, obviously reluctantly, in May 2003.

In July 2004, the U.S. government expectedly rejected the Indian request. It stated that the request did not meet the requirements of Article 2(1) and 9 (3) of the extradition treaty between the U.S. and India.

What now? On July 22, 2009, the CJM’s court in Bhopal issued a fresh warrant of arrest against Mr. Anderson, and ordered the CBI to produce him before the court for trial. Unfortunately, the meandering path the case has taken so far gives no cause for hope. Indeed, it is difficult to believe that the Indian government, even less its U.S. counterpart, will persuade the 88-year-old “Accused no 1” to come to India one last time — to stand trial for a crime he committed a quarter of a century ago.

http://www.hindu.com/2009/12/02/stories/2009120255101100.htm

In reverse gear

The issues raised by a two-judge bench have the potential to undo many reformative steps taken by the apex court

M J Antony / New Delhi December 02, 2009, 0:27 IST IN THE BUSINESS STANDARD

Judicial activism has faced several assaults from politicians and bureaucrats ever since the Supreme Court became affirmative.But the sad part is that it has had to also face onslaughts from within.

When the public interest litigation movement was in its infancy, a bench of strict constructionists one morning brought up 10 questions that would have choked its growth in coils of conservative interpretation of the Constitution (Sudip Mazumdar vs Union of India). However, some years later, another bench deftly deflected the attack by “disposing of” the case without answering the loaded questions, and the movement advanced with renewed vigour. Citizens applauded it.

Recently, another bench drafted a set of questions that threatened to weaken the Supreme Court, which is said to be the mightiest under any democratic system. The thrust of this new lot was to restrict the powers of the court and leave the executive and the legislature alone on the ground of “separation of powers” (University of Kerala vs Council of Principals). This doctrine itself is undefined and has been a subject of constant debate among jurists for about seven centuries now. The Constitution of India does not recognise strict separation of powers.

In this case, a bench had earlier set up a committee of distinguished educationists and others to study the conduct of student union elections in view of criminalisation of student politics. The panel made some recommendations which the court asked the authorities to implement. When the matter came up before the bench mentioned earlier, the whole course of the case took a different turn. This bench raised complex constitutional questions. In its opinion, the court could neither legislate or take over executive functions, nor act as an “interim Parliament”.

The two-judge bench formulated several issues regarding separation of powers and the power of the court to direct executive authorities to implement its recommendations. It asked the Chief Justice to set up a Constitution Bench to address those issues. This could result in a giant leap backwards on several counts.

The question whether a two-judge bench can refer questions directly to a Constitution Bench, thus violating the court’s own practice and discipline, is only procedural. But the most worrisome aspect of the order is that it has the potential to undo many reformative steps taken by the Supreme Court all these decades. The famous Vishaka case (1997), for instance, laid down rules to protect women at workplace. In the absence of government action, the duty fell upon the court to “legislate” the rules. The government did not protest, and women welcomed it. If the court now reverses its policy, the judgment would have to be reviewed.

The government quivers at the thought of passing a legislation to enable and regulate adoption of orphans. But it was the Supreme Court that “legislated” rules in this regard. The government has since been merely following the norms set by the Supreme Court judgment in the LK Pandey case (1987) — it has not passed a law even after decades. Some other fields in which the court has taken affirmative steps are environment, unemployment and poverty alleviation. The nation welcomed the court’s initiative as the executive and the legislature had failed to enforce the fundamental rights of the citizens.

The view of this two-judge bench contradicts the established opinion in scores of judgments delivered by larger benches. In the C Ravichandran Iyer vs AM Bhattacharjee case (1995), the court said that the role of a judge is not merely to interpret the law but also to lay new norms of law and mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution a meaningful reality. Society demands active judicial role which was earlier considered exceptional but is now a routine. This view has not so far been doubted in any later judgment.

Renowned jurists have long accepted the role of judges as law-makers. John Austin said: “I cannot understand how any person who had considered the subject can suppose that society could possibly have gone on if judges had not legislated, or that there is any danger whatever in allowing them that power which they have in fact exercised, to make up for the negligence or the incapacity of the avowed legislator.”

The legal system in England, which has been adopted by India and other common-law countries, is based largely on judge-made law until around the 17th century. US Supreme Court judges recently observed that not only their court, but even the subordinate courts make laws because there are situations which are not covered by any law and the judges have to fill up the crevices. The questions now posed in the Kerala University case, therefore, appear not only redundant but also incapable of answers.

http://www.business-standard.com/india/news/m-j-antony-in-reverse-gear/378287/

Everything for justice

BY JUSTICE V R KRISHNA IYER IN THE HINDU NEWSPAPER

Any judge who seeks immunity from truth under the cover of the robe robs the rights of We, the People of India.

The Prime Minister and the Chief Justice demand more number of courts — in their thousands. This is part of the pathological arrears syndrome. The truth is: more courts, more arrears, more lazy judges, more examples of Parkinson’s Law and Peter Principle. The real cause of the escalating arrears is the absence of accountability and transparency.

SUPREME COURT OF INDIA

The correctional strategy is an effective Appointments Commission in place of the dubious collegium, a vigilant Performance Commission, and periodic collegiate updating of jurisprudence. There is also a need to sensitise judges about socio-economic and political problems, to pare down redundant dockets and prolix hierarchy, streamline procrastination and ensure better-behaved precocity. On the whole, the Victorian system of justice administration should be eliminated and a transformation should occur. There should be periodic Law Reform Commissions whose recommendations are implemented by high-power judicial committees. There should be more itinerant decentralisation, evening courts, creative realism and a critical assessment of the curial hierarchy and public debate of judgments.

For more disposals, early finality and inexpensive justice, the purposeful therapy is not the arithmetical illusion of judicial numbers but intelligent selection of the robed brethren, of result-oriented technology, and summary procedure. One capable judge with sound social philosophy is a better instrument of justice than a dozen mediocre, indolent ignoramuses who will merely add to the adipose of the system.

The Bar contributes to the locomotion of the justice system. Typically, an American attorney delivers better arguments in 30 minutes than a Senior Advocate would do over three days in an inert Indian court. An efficient Bar is more promotive of the celerity of judicial disposal than an elaborate precedent — in a crowded, paper-logged, forensic, prolonged-performance system. The strategy of judicial excellence is not a play with numbers, or a game of hiding assets or delaying the delivery of judgments. The Supreme Court, which is inordinately the fifth deck of a poor system of justice, is infallible for the rich because it is final; not because it is wise, humanist and compassionate or within the reach of the poor.

The Chief Justice claimed that he had the title to represent the entire judicature, claiming an unknown power oblivious of the fundamental fact that he is only first among equals and can be overruled by just two of his brothers. It was a joy to read of the daring move of the judges together asserting the transparency principle, defying the chief and deciding to make their assets public. To hide is to arouse suspicion and suspicion is the upas tree under whose shade reason fails and justice dies.

Any judge who seeks immunity from truth under the cover of the robe robs the rights of We, the People of India, the sovereign of Bharat. Secrecy is unbecoming of the curial fraternity and shall be exposed if they justify their freedom from revelation from the People of India. The transparency of the socio-economic condition of the judges is not negotiably fundamental in any civilised system of justice. The court is an open book and if the Bench seeks an iron curtain between its economic interest and the litigant community it is violative of glasnost.

All’s well that ends well. The huge majority of the judges of the Supreme Court had to save their reputation, dignity and integrity over the most powerful constitutional institution. The Chief Justice of India is the noblest office of justice and is ordinarily infallible, but the court as the whole is supreme and is governed by perestroika and glasnost. What a wonder that the whole court has upheld the finest doctrine of openness. Nothing to hide, everything for justice.

This is why India holds in hallowed reverence the administration of justice. Never in the field of human conflict was so much owed by so many to so few. Fundamental rights, human values, sacred duties, peace and stability are governed by the performance of the court (Article 41).The best judge has nothing to hide and everything to discover without fear or favour and do justice to everyone, be he high or humble, without affection or ill-will.

Futile assertion

The pity of it is that the Chief Justice made a case when he vainly made a futile assertion that judicial assets are a hidden treasure. No, he made a mistake. But the full court saw the wisdom of judicial assets being responsibly disclosed to serious citizens under accountable conditions, not to frivolous busybodies. The chief may be forgiven because even the great could go wrong.

It was Emerson who wrote: “Is it so bad then to be misunderstood? Pythagoras was misunderstood, and Socrates, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise spirit that ever took flesh.”

In our murky world of gloom, greed and agony, our duty is to save the country by means of a compassionate recipe a la Vivekananda: “Feel, my children, feel for the poor, the ignorant, the downtrodden; feel till the heart stops and the brain reels and you think you will go mad. We talk foolishly against material civilisation. The grapes are sour? Material civilisation, nay even luxury, is necessary to create work for the poor. Bread; I do not believe in a God who cannot give me bread here, giving me eternal bliss in heaven. Pooh; India is to be raised, the poor are to be fed, education is to be spread, and the evil of priestcraft is to be removed? more bread, more opportunity for everybody?.”

The awakened robes have righted the absurd wrong of the chief. I salute you for overruling the jejune wrong; the jurisprudence of concealment is corruption. Corruption is the power of the rich. The robe shall not permit to be robbed by the rich.

It is better to be ultimately right than consistently wrong. To conceal the truth with regard to assets is unbecoming of fiat justicia, civilised justice, justices and justicing. Sorry, chief. You still can hold a kindly light amid the encircling gloom. No more darkness, but light. You are still the leader of luminous law and untainted truth, without fear or favour.

http://beta.thehindu.com/opinion/lead/article12065.ece

The syndrome of judicial arrears

By Justice V R Krishna Iyer in THE HINDU

The Chief Justice of the Supreme Court has been repeatedly urging that we must have thousands more as members of the judiciary as the solution to the problem of arrears. But that will only be a remedy which could aggravate the malady. This is a mediocre recipe that could prove counter-productive.

Man’s capacity for justice makes democracy possible, but man’s inclination to injustice makes democracy necessary.

— Reinhold Niebuhr

When justice is denied by any society, including a socialist, secular and democratic one as in India, expectations darken into depression. Then that depression turns into dread, dread transforms itself into despair and despair evolves into explosive terrorism. State violence as an instrument to suppress terrorism is futile: after a time the bitterness and revengefulness that is generated will seek to overthrow those very forces that control state power — call it fascism, naxalism, Maoism or whatever. This dangerous deterioration of democracy into bedlam terrorism is hastened when access to justice ceases to be a reality and the only alternative is violence. When the rule of the robes proves a mirage, the rule of robbery gets support and sanction.

The way to eliminate this ghastly syndrome is not more state force but making the system of justice, justices and justicing truly accessible to the have-nots by means of radical judicial reform that is decentralised and democratic. If this does not become possible, the suffering people may leave the courts and take to the streets. This social strategy and humanism are what we need if noxious, nocent violence is to surrender to truth, justice, equity and egalite, the majestic values of the Mahatma. Rowlatt or Chowri Chowra or Naokhali, or Gandhian courage — which do we need? Here is the critical issue. Is our justice system jejune, and have the robes been robbed of their reality?

How shall we transform our judicative process? The Executive has force at its command and the Legislature is incompetent to make meaningful laws but has the backing of the masses who voted for its members. The judiciary has the bench to sit on and the authority of the Constitution to back it. If its verdict is ignored, it has no means to enforce its rulings. Sans justice, judges are powerless power.

What is wrong with our courts that they have lost their credibility and prestige? Corruption has crept in. Forensic morals have been jettisoned and no longer form their inviolable virtue. More than all else, delay of dockets and Himalayan arrears frustrate the hope of justice from the forensic process. While the system is accessible and open to the rich and those from the creamy layer, the under-privileged have no money and are priced out of the institution. The Bar, an indispensable factor in the adversarial system, is too expensive for the lowly and the forlorn. The fees and the formalities make the law too dear for the have-nots. The hierarchy adds to the cost, the delay and the uncertainty of the final verdict.

Appeals upon appeals make justice through litigation inordinately dilatory and costly, and the law becomes the last means for the aggrieved to get relief. One appeal is necessary, two is too much, but we have four or five decks to spiral up. The litigant has only one life but litigation has several lives to see its end. Judgments typically take years to pronounce and some judges do not pronounce any judgment at all. They would seem to be unaccountable since there is no Performance Commission in operation.

Another great deficiency is that a collegium that is untrained in the task, selects judges in secret and bizarre fashion. There could be room for nepotism, communalism and favouritism in the absence of guidelines. The selection process excludes the Executive. Nowhere in the world do we have judges alone selecting other judges. The collegium is a disaster: the P.D. Dinakaran episode is an example. A new code by a constitutional chapter has become an imperative. Appointment is a desideratum.

What we now have as weaknesses of the system is Parkinson’s Law and Peter Principle. The first creates vacancies after mediocre judges cause arrears to mount. The second elevates officers to the highest level of their incompetence. Even if you have 10 times the present number of judges, so long as there is no accountability, the arrears will multiply, the judicial budget will escalate and the disgrace of the judiciary will grow. A revolution is necessary and a sense of scientific spirit and reason is needed if the judicature is not to become a caricature, or a torture of the right to justice.

If our Founding Fathers are not to be betrayed, we need at once a judicial-constitutional code including a scissoring of the hierarchical syndrome. Or be prepared for a revolution. The unknown collegium, judges expanding their own breed, creating arrears more than anywhere else in the world, and other pathologies promoting a self-operated system…

Is India so bereft of statesmanship that it cannot create a swadeshi-swaraj judicature? A spiritual-natural synthesis carrying out Bharat jurisprudence and justice system must be the operation of the next Parliament.

Did not Jawaharlal Nehru assert that the Supreme Court is no third chamber of the House? Did not Franklin D. Roosevelt tell the American Supreme Court that if it did not serve the nation’s interest he will pack the court? Let us not therefore allow the Indian courts to refrain from the tryst with destiny or go back on the grand Preamble of the Constitution. We, the People of India, shall not allow the judges to produce a pathological syndrome of seppuku.

I am critical of the great institution of justice of which I was a member during the best part of my life. But as Oliver Wendell Homes, the great American judge, said while criticising his judicial system, it would be less than fair if I do not constructively and correctively criticise the system of which I was a part if I see some dark drawbacks therein. My purpose is only to improve the system, never to denigrate it.

The Berlin Wall has fallen. Leningrad and Stalingrad is no more on the map of the Soviet Union. Nelson Mandela and Mahatma Gandhi, prisoners under the empire, have become Fathers of the Nations. Why not the Indian judiciary, patterned after the British, change and become truly swadeshi and Indian?

Judges have a heavy responsibility in the matter of chronic docket arrears. Nowhere in the world except in India does litigation last up to half a century in some instances. The art of fast disposal of cases would seem to have become alien to the judges, who do not know the strategy of having a brief hearing and delivering the judgment in a few days. A leisurely, jocose and even bellicose style, a high-and-mighty bearing, and slow and endless arguments are hampering the competent performance of the judges. American judges allow half an hour and no more. Look at the discipline that this writer showed in the stay proceedings of the Indira Gandhi case. Originality, imagination and talent have become scarce commodities. These are mostly covered up by demands for 10 times more of incompetent judges and none to expose them for fear of being hauled up for contempt.

The Chief Justice of the Supreme Court has been repeatedly urging that we must have thousands more as members of the judiciary as the solution to the problem of arrears. But that will only be a remedy which could aggravate the malady. This is a mediocre recipe that could prove counter-productive.

This view is supported by two great Indian jurists. M.C. Setalvad commented in his autobiography My Life (1970) on the statement of Dr. K.N. Katju, when he was Home Minister, that the “greater the number of judges in court, the lesser the rate of disposal for each judge. Though one may regard this as an overstatement, it is undoubtedly true that a larger judicial personnel frequently makes the courts cumbrous and slow moving.” He added: “What is needed is the appointment of really able persons who can rapidly and satisfactorily deal with the accumulation of work.”

Likewise, M.C. Chagla observed in Roses in December: “To my mind the solution is simple. See that the men you appoint are proper ones. Find judges with an alert and active mind. What is more important, pay the judges better, give them a better pension, and enforce better conditions of service. The usual solution put forward is to increase the number of judges. But if the men selected are not really competent, Parkinsons’ Law will come into play. The more the judges, the greater will be the load of work.”

It is time we had an effective executive which will call the bluff when judges invent alibi to explain away their incompetence and absence of integrity. An investigation into the entire higher judiciary may well weaken our faith in the integrity and incorruptibility of their lordships.

To judge or not to judge

BY JUSTICE J S  VERMA FORMER CHIEF JUSTICE OF INDIA IN THE INDIAN EXPRESS DECEMBER 1 2009

Is the Dinakaran imbroglio really a puzzling question? I do not think so. The Chief Justice of India, K.G. Balakrishnan, is right that the collegium is bound to follow the Supreme Court decisions on the point relating to the appointment of judges, till the law is changed. The real issue is: on that basis, is the solution for the problem not obvious? Once again my answer is in the affirmative. I have no doubt that the credibility of the appointment process and the image of the judiciary must not suffer further damage, shaking the public confidence which is the true strength of the judiciary. This factor impels me to write this piece.

The blame for the current situation is attributed mainly to the Supreme Court decision in the 1993 Second Judge’s case (AIR 1994 SC 269), which gave primacy to the opinion of the judicial collegium in the matter of appointments. As the author of that opinion I must dispel that impression — indicating that the decision does carve out to the executive the area of non-appointment of a person on the ground of doubtful antecedents. The executive, therefore, is not helpless if in such a situation the judicial collegium’s recalcitrance to withdraw the recommendation continues. It is the duty of both organs to ensure that a known doubtful appointment is not made of a judge at any level, more so in the apex court.

Let me say at the outset that I neither know Justice Dinakaran, nor do I comment on the merits of the allegations made against him. I speak only on the basis of the information in the public domain brought out by media reports of the uncontroverted facts, which to my mind are sufficient for his non-appointment to the Supreme Court on the above ground.

A brief reference to the existing law governing the appointment of Supreme Court and high court judges on which the appointing authorities rely is useful. The recognised principle stated in the 1982 First Judge’s case to govern the exercise was reiterated in my separate opinion in the K. Veeraswami case (1991(3) SCC 655), thus: “The collective wisdom of the constitutional functionaries involved in the process of appointing a superior judge is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful person gains entry. It is, therefore, time that all the constitutional functionaries… should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment is made even if some time a good appointment does not go through. This is not difficult to achieve.” (Emphasis supplied.)

In the 1993 Second Judge’s case the majority opinion, which I wrote, held: “The process of appointment of judges of the Supreme Court and the high courts is an integrated ‘participatory consultative process’ for selecting the best and most suitable persons available for appointment… 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… If the non-appointment in a rare case on this ground turns out to be a mistake, that mistake in the ultimate public interest is less harmful than a wrong appointment… Non-appointment for reasons of doubtful antecedents relating to personal character and conduct, would also be permissible.” (Emphasis supplied.)

Thus, the settled law on the point is: a person of doubtful integrity or antecedents should not be appointed a judge of the Supreme Court; the area of non-appointment on this ground is clearly in the executive domain, notwithstanding the recommendation for appointment made by the CJI; it is safer and in public interest to not appoint a doubtful person, even if it turns out later to be a bona fide mistake. The executive is not powerless to thwart the appointment of such a person; the Supreme Court decision expressly empowers the executive in this behalf.

In Justice Dinakaran’s case, the media reports, based also on the statements of the CJI, say that the report of the district collector sought on some allegations pertaining to land grabbing is adverse to the candidate and that the outcome of a further inquiry by another authority is awaited. If the available material is sufficient to create a reasonable doubt warranting further inquiry, the test for non-appointment laid down judicially is satisfied and it is difficult to appreciate the propriety of keeping alive the issue of his appointment to the Supreme Court. I for one, with experience of the office of CJI and as the author of the opinion that lays down the existing law, find the persistence with the recommendation embarrassing and contributing to an erosion of the image of the institution. I wish the imbroglio ends soon with withdrawal of the recommendation.

The power of withdrawal is inherent and need not be specified. There are precedents of withdrawal of recommendations even to the Supreme Court on discovery of adverse material subsequently. I myself, as CJI, withdrew a recommendation for appointment of a judge as chief justice of a high court on further information regarding his antecedents. I wish this matter ceases to get curiouser every day. That is not good for the institution, which is bigger than any individual.

It must be remembered that elevation to the Supreme Court and continuance in the high court are two different issues. Merely non-appointment to the Supreme Court does not automatically call for removal of the judge from the high court, which can be done only for “proved misbehaviour or incapacity” under Article 124(4). For non-appointment, a reasonable doubt, as indicated above, is sufficient; and for removal further inquiry ending with proof based on authentic materials of the allegations of misconduct or misbehaviour is necessary. In the case of Justice Dinakaran, his non-appointment on this material is at present the only issue.

I write this piece with the hope that it helps to end the imbroglio soon, satisfactorily.

The writer is a former Chief Justice of India

express@expressindia.com

http://www.indianexpress.com/news/to-judge-or-not-to-judge/548235/0

Liberhan Ayodhya Commission

• Report of Liberhan Ayodhya Commission of Inquiry Part-I
• Report of Liberhan Ayodhya Commission of Inquiry Part-II
• Report of Liberhan Ayodhya Commission of Inquiry Part-III
• Report of Liberhan Ayodhya Commission of Inquiry Part-IV
• Report of Liberhan Ayodhya Commission of Inquiry Part-V
• Report of Liberhan Ayodhya Commission of Inquiry Part-VI
• Report of Liberhan Ayodhya Commission of Inquiry Part-VII
• Report of Liberhan Ayodhya Commission of Inquiry Part-VIII
• Action Taken on the Report of the Liberhan Ayodhya Commission of Inquiry

http://mha.nic.in/uniquepage.asp?Id_Pk=571

COURTSEY : MINISTRY OF HOME AFFAIRS , GOVT OF INDIA

Acid attack, the most horrendous crime

Francis Kuriakose ,  Deepa K. S. IN THE HINDU NOVEMBER 22, 2009

(“Did you hurt a woman today/ I have to ask these obscene questions” — Ntozake Shange)

As the crime rate against women is on an upward spiral, we need to ask some uncomfortable questions. In India, sexual harassment cases have been rising above 10 per cent every year since 1999. Sixty one cases of acid attacks were reported by CSAAAW. In Andhra Pradesh alone, 12 cases of acid attacks were reported this year. Yet, such alarming statistics do not raise a public outcry. Whenever we see reports of such harried women, we merely shrug it off as yet another case of violence against women. In India, one third of women in the age group 15-49 undergo physical violence. But, appallingly, two out of three women do not share their experiences with anyone. Only two per cent of the abused women seek help from the police (NFHS final report). It is clear that the actual scenario is far worse than what meets the eye. Of the different kinds of violence women face, acid attack is the most horrendous as it leaves the victims with unimaginable trauma for the rest of their lives. The expensive reconstructive plastic surgery and post-operative care are not a feasible option for the poor women. They also become dependant on their families as employment opportunity and marriage alliances do not come by.

It is interesting to note that the perpetrators of crime were known to the victims in 84 out of every 100 case. It is usually the estranged husband or the spurned lover who refuses to take a ‘no’ for an answer from the women. There is even less sympathy from society after these women go through this traumatic experience. These crimes are not committed in a fit of passion, they are premeditated and intended to cause harm. The law enforcement agencies are found unequal to the task. The victims who go from pillar to post for justice are met with inefficiency, apathy and ignorance.

In the rare cases when the criminals are brought to book, the justice system lets them off on bail. Sometimes, it is the fear of the crime than the crime itself that traumatises women. But we do not have comprehensive laws to deal with the issue. Also, we have only one police woman for 45 policemen — a woefully inadequate 2.09 per cent of the entire police force. Before demanding new laws, we must question why the existing laws do not work. Bangladesh in 2002 came up with the death penalty for acid attacks, Qisas of Pakistan award the perpetrators the same fate as victim’s. In Iran, the penalty is that the attacker has to be blinded.

The Indian Penal Code has an insufficient Section 326A to deal with this crime. IPC (1860), Cr.PC (1973) and the Indian Evidence Act (1872) have to be amended to meet the requirements. It is heartening to note that a bill has been passed that awards life imprisonment and a fine up to Rs. 5 lakhs wherever prima facie evidence is available. Certainty in penalty will act as a deterrent. It is not the laws but our mindsets that need a transformation. The social problem has been diagnosed; a piecemeal approach will not solve the problem. The terminology ‘eve teasing’ to describe violence against women slights the abuse and harassment associated with it. Our films that depict the hero who ‘makes’ the girl fall in love with him portray an attitude that nurtures the male ego. Women are individuals with rights and men should learn to cope with assertive women. Awareness, greater sensitivity and respect towards women would go a long way in creating a secure space for women.

A value-based education, incorporating these ideals is the need of the hour. Enactment of new laws, creating institutions and lip service to provide reservation will not take care of the evil. It is time to put on our thinking caps and seriously ponder over these questions.

http://beta.thehindu.com/opinion/open-page/article53114.ece

A woman’s perspective on sexual harassment

SHREEMA NINGOMBAM , THE HINDU NOVEMBER 22, 2009

We, women, live in a world of unknown forces pulling, shoving and bruising us not only physically but mentally. We feel utter disgust when a strange male ogles at us. We live in a world of unknown hands grappling our body, unknown eyes stripping us naked. This hatred is not simply because they are strangers but because they dare to do things which they don’t have the right to do and make us feel which they don’t have the right to make us feel.

What distinguishes human beings from the beast is the culture of attributing morality to sexuality, the culture of domination, and the sheer infinity of their wants. The distinction lies in the so-called rationality and the consequent self-restraint we possess. The person devoid of self-restraint and defying the norms and conventions of society is termed either lunatic or malefactor.

Who is un-free here, the women or the victimisers? Everyone assumes that women are not free to move at their will. They are not free to think, act or speak this way or that way. But the other side of the prism shows a different light. The perpetrators are the prisoners of their own uncensored, unrealised conscience. They are positively un-free (see positive freedom by Charles Taylor). It is not the woman who has to be freed from the clutches of man’s unholy hands and undignified eyes; it is the men themselves who have to be salvaged from their unrealised conscience. The unholy hands and the undignified eyes are the shadows of their unrealised conscience. As much as the shadows disappear with the disappearance of the real object, the former will disappear with the realisation of their conscience. It is not the person per se who has that unique conscience; rather, it is the structure of patriarchy that generates this conscience.

An instant suggestion of reformation would be through education, but many women would find well-educated, rich men committing the same act. Then we can say that education is necessary but is not a sufficient condition to the emancipation of the male conscience.

There is also another argument that women are harassed or molested only in the fragmentary moments of their lives so they should not bother much. Are our fragmentary moments unimportant? Are our lives not made of these fragmentary moments? We have the right to live every sundry fragmentary moment of our lives with dignity and respect. No one has the right to snatch or steal any moment of our life, defame it or blot it. If such stolen moments accumulate, one day it over-pours from our eyes making others console us saying this is part of our lives and that it is we who have to face it bravely. We do not want such attribution of bravery because the origin of this kind of bravery is illegitimate.

Valorising the capability of endurance which is forcefully entrusted to us is making a fool out of every woman. The very condition that forces us to endure and then regenerate again need to be eliminated. Why, in the first place, we need to endure?

One of the greatest mysteries of this world is women’s eternal capability to regenerate themselves. This is an entrusted capability, not an organic outgrowth capacity. Their tears become the manure of their regeneration. There was death and they chose to live.

(shree.ningombam@gmail.com)

http://beta.thehindu.com/opinion/open-page/article53115.ece

Address to the Nation by the Chief Justice of India, K. G. Balakrishnan

Courtesy , The Hindu

The following is the full text of the Address by the Chief Justice of India, K.G. Balakrishnan on the eve of the National Law Day. November 26 is celebrated as National Law Day because it was on this day in 1949 that the Constituent Assembly of India adopted the Constitution, which then came into effect on January 26, 1950.

My Fellow Citizens,

I extend my warmest greetings to all of you on the eve of the 60th Law Day of our country. The legal and judicial fraternity of our country, as well as people at large, celebrate November 26 of each year as National Law Day because it was on this day in 1949 the Constituent Assembly of India had adopted our Constitution, which subsequently came into effect on January 26, 1950.

Law Day is an occasion on which we pay our humble tribute to the unique vision and genius of the framers of our Constitution. It prompts us to reflect upon and renew our pledge to protect, preserve and extend the values enshrined in our Constitution. The very first goal of the Constitution, is to secure justice to all — social, economic and political. This mandate not only shapes the rights of the people but also serves as a command to all those who wield authority in the name of the State. As the head of the Indian judicial system, it is my duty to keep the nation informed about the state of affairs in this branch of government.

An independent, accessible and efficient justice-delivery system is a pre-requisite for maintaining healthy democratic traditions and pursuing equitable development policies. In the last six decades Indian courts have played a leading role in protecting constitutional values and upholding the rule of law in our country. The vital social role of the courts has been strengthened by the creative reading of ideas such as ‘equal protection before the law’ and ‘personal liberty’. Especially with the evolution of the Public Interest Litigation (PIL) movement over the last three decades, the understanding of rights has expanded in many directions. From conferring guarantees of a civil-political nature, the fundamental rights have been interpreted to include positive socio-economic obligations on the State. This means that the courts of law are unique spaces where just solutions are devised, in spite of the socio-economic inequalities between the litigants.

JUSTICE KG BALAKRISHNAN CHIEF JUSTICE OF INDIA

India is a diverse country where we are still grappling with social stratification and discrimination on the grounds of caste, religion, gender, language, race and ethnicity among other factors. Conflicts that arise out of such identity-based differences or those related to the distribution of material resources are often very complicated since they involve multiple interest groups. Adjudicating such disputes often calls for a departure from the norm of adversarial litigation and the judges have accordingly devised procedural innovations to respond to the needs of litigants. This means that the role of a judge is not only that of applying the existing rules in a mechanical manner but also interpreting them in a creative manner in order to pursue the ends of justice.

I am deeply gratified by the trust and confidence that the people of this country repose in our judicial system. About 1.8 crore fresh cases had been filed in Indian courts in 2008, reflecting a steady increase in the rate of institution of fresh proceedings over the years. Against this, approximately 14,000 judges disposed of about 1.7 crore cases in 2008, demonstrating a disposal rate of about 1,200 cases per year by each judge. This was achieved notwithstanding the severe shortage of judges and their very heavy work load, abysmal infrastructure and a very challenging environment.

In all, Indian courts processed some 4.8 crore cases in 2008 — which is one of the largest volume of cases faced by any national judicial system in the world. Expert studies have suggested that our judicial strength is only very minimal and large expansion is required to dispose of this case-load. It is therefore quite natural that most cases take several years to be completed. Such is the shortage of judicial officers that, on average, an Indian judge has a total of about 25 minutes to devote to each case.

A significant consequence of the severe shortage of judges is that a substantial number of poor people are unable to obtain the protection of courts to preserve and strengthen their rights. This ‘docket exclusion’ does not bode well for the country as affected people may turn to alternative (including violent) means for securing their rights. On the contrary, there is an urgent need to promote ‘docket inclusion’. There is also a widespread perception that many people are being deterred from approaching the courts on account of apprehensions about undue delay in the delivery of justice. This may indeed be true in some parts of the country where the number of civil cases being instituted are very low in proportion to their respective population-levels. Therefore, any meaningful agenda for judicial reforms must account for the twin problems of high pendency levels as well as the limited access to justice for some sections of society.

This means that even as we devise strategies to combat the existing backlog, we must also prepare for the further expansion of court dockets in the coming years. With gradual improvements in development indicators such as income-levels, access to education and healthcare, we should expect the previously marginalized sections to approach the judicial system in larger numbers, enhancing “docket inclusion”.

In many cases, the undue delay in disposal is a consequence of hurdles placed in the procedural steps involved in litigation. In the course of a legal proceeding, there is a likelihood of delay at various stages from the service of notice upon the parties, the framing of issues, submission of pleadings, examination of witnesses, production of documents and the counsels’ arguments. If a party apprehends an adverse result, there is a tendency on part of litigants or practitioners to place obstacles in these proceedings. The logical response to this endemic problem is that judges need to be more proactive in managing the flow of proceedings before them. Attempts to delay the proceedings should be treated firmly but it must also be kept in mind that the desire to improve procedural efficiency should not compromise the quality of justice being delivered. As inheritors of the common-law tradition, we are bound to follow the principles of natural justice, namely that ‘no man shall be a judge in his own cause’, that ‘no persons shall be condemned unheard’ and that ‘every order will be a reasoned order’.

Even though the judges are the main actors in the justice-delivery system, their efficiency is closely related to the behaviour of advocates, litigants, investigating agencies and witnesses among others. While public scrutiny is rightly being directed towards the performance and accountability of judges, there is also a need to examine the responsibilities of all the other participants in the judicial system. In particular, there is an urgent need to tackle the institution of frivolous claims and the giving of false evidence. Judges can perform their fact-finding and adjudicatory roles in a satisfactory manner only if they receive the co-operation of all the stakeholders. In this sense, the judicial function is as much a collective enterprise as the other wings of government.

A meaningful shift will only occur if attitudes change among the bar. Ultimately it is the responsibility of legal practitioners to advice their clients on the suitability of resorting to litigation. For resolving many categories of disputes, adversarial courtroom litigation is not appropriate since disputes can be amicably resolved at the pre-trial stage. With the objective of promoting awareness about these methods, full-time Mediation Centres have been established in the various High Courts as well as some of the District Courts. Their function is to not only provide mediation services but also to impart training about the same.

I must also emphasize that a large portion of the increase in litigation rates can be attributed to stronger remedies that have been introduced through Central and State legislations over the years. In particular, our trial courts are confronted with a disproportionate number of cases involving the dishonour of cheques, motor accident compensation claims, domestic violence and corruption-related cases. This is of course a natural consequence of the fact that litigant-friendly procedures and remedies were incorporated to address such grievances. Hence, there has been an incentive for parties to come forward and file cases in these categories. However, there has not been a commensurate increase in the strength of judges needed to decide these cases.

SUPREME COURT OF INDIA

In recognition of this fact, the strength of the Supreme Court and the various High Courts has been gradually increased. However, it is the strength of the subordinate courts which calls for a drastic increase. I have repeatedly called for targeted interventions by way of increasing the strength of the subordinate judiciary, while emphasizing the need for establishing more Family Courts, CBI Courts and specialised magistrates’ courts. In recent months, a lot of attention has been drawn to the proposal for establishing ‘Gram Nyayalayas’. Under the Gram Nyayalayas Act, 2008 judicial officers of the rank of Civil Judge (Junior Division) will be appointed to function at the block-level. The intent of course is to bring the justice-delivery system closer to rural citizens who have to otherwise travel to distant district centres. It is estimated that nearly 5,000 judicial officers will be needed to occupy these positions.

Since 2007, some important steps have been taken to improve the quality of justice-delivery. Hundreds of judicial conferences have been organized through the National and State Judicial Academies as well as National and State Legal Services Authorities on the topic of delay and arrears reduction as well as enhancing timely justice to raise awareness about the problem and develop effective strategies. There has been substantially increased attention to the use of Alternate Dispute Resolution (ADR) techniques, in particular mediation and Lok Adalats. A system of planning and management is being developed and recommended to High Courts for their consideration. A National Judicial Infrastructure Plan, A National Judicial Education Strategy and a National Mediation Plan have been developed and are in different stages of implementation. The results of these massive initiatives have been encouraging. Reversing earlier trends, filing of new cases as well as disposal has gone up at the national level. However, aggregate pendency has increased because the increase in filing has been faster than the rate of disposals in general.

I must also comment on the importance of Legal Aid programmes, especially those which seek to impart legal literacy in remote and backward areas. We must acknowledge that access to legal education is still confined to a privileged few and that the existing pool of judges and lawyers is not adequate to bring about the changes that we desire. In recognition of this fact, a Committee headed by a sitting Supreme Court judge has been recently appointed to oversee the training of motivated young individuals as paralegals, who can then expand the reach of the legal aid programmes. We are also in the process of designing a project dedicated to the improvement of access to justice in the North-Eastern region of our country. It is our hope that improved awareness and access to legal remedies will help in mitigating the socio-political conflicts in troubled areas.

Efforts are also being made to incorporate Information Technology (IT) based solutions in order to strengthen the judicial system. Under the E-Courts project, most judicial officers in the country have been provided with computers, printers and access to legal databases. Steps are also being taken to digitize precedents as well as the permanent records of courts at all levels. At present the daily cause-lists, orders and judgments of the Supreme Court and the respective High Courts are freely available online through the Judgment Information System (JUDIS). In the coming years, the objective is to ensure that materials pertaining to all subordinate courts as well as tribunals will also be made freely available through this system.

Another important element of judicial reforms is that of organising educational programmes, which are held at the National Judicial Academy (Bhopal) and the various State Judicial Academies. These programmes are periodically held for the benefit of sitting judges from all levels. They are designed to raise awareness about the latest legal developments as well as the strengthening of skills for court-management, research and writing. Special efforts are made to sensitise judges to the complex interactions between law and social realities. These programmes also serve as a common forum for judges serving in different parts of the country to interact and learn from each others’ experiences.

Recently, the Union Minister for Law and Justice has also unveiled some proposals for systemic reforms. There are plans to establish a ‘National Arrears Grid’ which will compile reliable statistics on the institution, disposal and pendency of cases at all levels. The top law officers of the Central Government have also resolved to reduce the extent of litigation which involves governmental agencies. A ‘National Litigation Policy’ is being designed wherein administrative remedies will be strengthened in order to reduce the burden before the courts. A comprehensive legislation dealing with the subject of standards and accountability in the higher judiciary is also on the anvil.

To conclude, I would like to extend my heartfelt gratitude to all my colleagues who are serving at the various levels of the judicial system. I hope that they will all strive to uphold the high standards of dignity and integrity that are expected from anyone who holds a judicial office. I must also place on record my gratitude to the administrative staff members who have been working hard to keep pace with the increasing case-load. Like any public institution, the quality of justice-delivery also depends on the trust and confidence of the larger public. We rely on an active bar, a free press and a vigilant citizenry to point out our unintended mistakes so that we can improve our functioning. I sincerely hope that the dialogue between the judiciary and the various stakeholders in our society continues to take place in a cordial and constructive manner.

Jai Hind!

http://beta.thehindu.com/news/national/article54845.ece?homepage=true