Soli J Sorabjee in The Indian Express
Cruelty is a ground for divorce under the Hindu Marriage Act. The problem is that this Act does not define cruelty. A bench of the Supreme Court comprising Justices Sathasivam and Ganguly in a recent illuminating judgment has dealt with this vexed problem. Justice Ganguly, speaking for the Court, rightly points out that cruelty in matrimonial cases can be of infinite variety. “It may be subtle or even brutal and may be by gestures and words. It may take the form of violence. At times, it may be just an attitude or an approach.” Again, the alleged cruelty “may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance”. In a realistic vein, the Bench approving the observations of Lord Reid in a House of Lords judgment ruled that in matrimonial cruelty cases there is no presumption that the parties are reasonable people “because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people”.
Thereafter follows a wholesome caveat: “We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties.” One passage in this elegantly penned judgment—”silence in some situation may amount to cruelty”—is puzzling. When a spouse is ranting and shrieking, silence is the best option, otherwise there would be endless vociferous recriminations which would certainly add to noise pollution. There is real silence when a human being withdraws from the noise in order to find peace in his inner sanctuary.
Incidentally, silence can be cruel when a judge hearing a case maintains a monastic silence with the inscrutable face of the sphinx. Counsel has no clue about what the judge is thinking, whether he has understood counsel’s submissions or they have passed him by. Should counsel repeat his or her arguments or keep silent like the judge? A cruel predicament indeed and an instance of subtle judicial cruelty.
Union Law Minister M Veerappa Moily has written to the Chief Justice of India and Chief Justices of all High Courts, asking them to recommend names of only persons of impeccable integrity and merit for elevation to the Bench. The letter was sent out early this week.When contacted, Moily acknowledged having written the letter, saying the government wanted the judiciary to take into account aspirations of the public before recommending names for judgeship.
This comes even as questions continue to be raised over the manner in which the Supreme Court collegium recommended the name of Karnataka High Court Chief Justice P D Dinakaran for elevation to the Supreme Court despite serious charges against him. Rajya Sabha MPs have moved an impeachment motion against Dinakaran.
The Vice President has already formed a three-member committee of jurists, comprising Supreme Court Judge V S Sirpurkar, Andhra Pradesh High Court Chief Justice A R Dave and senior Supreme Court lawyer P P Rao, to investigate the charges against Dinakaran, including those of corruption and land-grabbing.
In his letter to the judiciary, Moily has requested the CJI and judges to ensure that the recommendation of names made by them take care of the aspirations of all sections of the society, including women.
“Merit should be the most important criteria. But no person of questionable integrity should be there. We would also like the recommendations to be made expeditiously so that there are no vacancies,” Moily told The Sunday Express.
Set to introduce the Judges Standards and Accountability Bill in the ongoing session of Parliament, Moily said the legislation would go a long way in tackling instances of corruption in the judiciary.
“I firmly believe that Indian judiciary is among the best and most honest in the world. But there are some aberrations. And the Judges (Inquiry) Act, which provides for only impeachment in case corruption charges are proved against sitting judges, has not had any effect. This is why the proposed Bill will be a long step forward,” he said.
“At the same time”, Moily said, “the Bill will also strengthen the judiciary. I believe in taking the judiciary along. We can’t allow judges to work under the shadow of fear or harassment. That is why the Bill has proposed strict action against anybody making frivolous, vexatious complaints against judges. We have to provide a congenial environment (to judges).”
Union Law Minister M Veerappa Moily on Saturday said the government is yet to consider the proposal of increasing the retirement age of the judges of the Supreme Court and high courts by three years.
Refuting speculation in a section of the government to enhance the retirement age by three years to 68 years for Supreme Court judges (from 65) and 65 years to the high court judges (from 62), Moily said there was such a move by some members of Parliament and a section of the judiciary. A section of parliamentarians had mooted the idea in order to arrest the ever-increasing gap of 250 judges at the high court level. But raising the age limit will require amendment to Article 124 (2) of the Constitution by a two-thirds majority in Parliament. It is learnt that the opposition parties, including the Left, did not accept the move to amend the Constitution to give the judges another breather of three years.
The Justice Venkatachalaiah Committee to review the working of the Constitution had suggested that the age of the judges of constitutional courts—the Supreme Court and high courts—be increased to 68 years as the retirement age for Supreme Court judges and 65 years for the high court judges.
Tenured posts in US
In the United States there is no age of retirement for federal judges. They are tenured posts. If a federal judge feels that by reason of old age he cannot function, he will receive the last drawn salary as pension for the rest of his life. In the United Kingdom and Canada, judges retire at the age of 75.
Jawaharlal Nehru, India’s first prime minister, had said in the Constituent Assembly on May 24, 1949, when the provision concerning the age of judges was taken up for consideration: “With regard to judges, and federal court judges especially, we cannot proceed on the lines of the normal administrative services. We require top men in the administrative services. Nevertheless, the type of work that a judge does is somewhat different. It is, in a sense, less physically tiring. Thus a person normally, if he is a judge, does not have to face storm and fury so much as an administrative officer might have to. But at the same, time it is a highly responsible work, and in all countries, so far as I know, age-limits for judges are far higher. In fact there are none at all.’’
Chief Justice of India K G Balakrishnan is of the opinion that the abolition of the practice of retiring SC and HC judges at the prescribed age would impart greater stability to the legal system. It will also tackle the perennial problem of shortage of judges, he felt. Speaking at the fifth national conference of the association of retired judges at Indore on April 21, 2007, the CJI had said: “Superannuation of SC judges at 65 is a sheer waste of their abilities, expertise and experience, since that’s the age when their intellectual faculties are at their peak”