The 90%
JUSTICE MARKANDEY KATJU IN THE INDIAN EXPRESS
The unpleasant truth: 90 per cent of Indians are fools
Someone asked me, “Justice Katju, you say you wish to keep away from controversies, but why is it that controversies keep chasing you?” I replied that while it is true that I wish to be uncontroversial, I have a great defect: I cannot remain silent when I see my country going downhill. Even if others are deaf and dumb, I am not. So I will speak out. As Faiz said: “Bol ki lab azad hain tere/ Bol zubaan ab tak teri hai.”
In our shastras it is written: “Satyam bruyat, priyam bruyat, na bruyat satyam apriyam.” It means, “Speak the truth, speak the pleasant, but do not speak the unpleasant truth.” I wish to rectify this. The country’s situation today requires that we say “Bruyat satyam apriyam”, i.e. “Speak the unpleasant truth”.
When I said that 90 per cent Indians are fools I spoke an unpleasant truth. The truth is that the minds of 90 per cent Indians are full of casteism, communalism, superstition. Consider the following:
First, when our people go to vote in elections, 90 per cent vote on the basis of caste or community, not the merits of the candidate. That is why Phoolan Devi, a known dacoit-cum-murderer, was elected to Parliament — because she belonged to a backward caste that had a large number of voters in that constituency. Vote banks are on the basis of caste and community, which are manipulated by unscrupulous politicians and others.
Second, 90 per cent Indians believe in astrology, which is pure superstition and humbug. Even a little common sense tells us that the movements of stars and planets have nothing to do with our lives. Yet, TV channels showing astrology have high TRP ratings.
Third, cricket has been turned into a religion by our corporatised media, and most people lap it up like opium. The real problems facing 80 per cent of the people are socio-economic — poverty, unemployment, malnourishment, price rise, lack of healthcare, education, housing etc. But the media sidelines or minimises these real issues, and gives the impression that the real issues are the lives of film stars, fashion, cricket, etc. When Rahul Dravid retired, the media depicted it as a great misfortune for the country, and when Sachin Tendulkar scored his 100th century it was depicted as a great achievement for India. Day after day, the media kept harping on this, whereas the issues of a quarter of a million farmers’ suicides and 47 per cent Indian children being malnourished were sidelined.
Fourth, I had criticised the media hype around Dev Anand’s death at a time when 47 farmers in India were committing suicide on an average every day for the last 15 years. A section of the media attacked me for doing so, but I reiterate that I see no justification for the high publicity given by the media to this event for several days. In my opinion, Dev Anand’s films transported the minds of poor people to a world of make-believe, like a hill station where Dev Anand was romancing some girl. This gave relief for a couple of hours to the viewers from their lives of drudgery. Such films, to my mind, serve no social purpose, but act instead like a drug or alcohol to send the viewer temporarily from his miserable existence to a beautiful world of tinsel.
Finally, during the recent Anna Hazare agitation in Delhi, the media hyped the event as a solution to the problem of corruption. In reality it was, as Shakespeare said in Macbeth, “…a tale/ Told by an idiot, full of sound and fury,/ Signifying nothing”. (In an earlier piece in this paper, ‘Recreating Frankenstein’s monster’, IE, March 31, I had said, “The Lokpal Bill will create a parallel bureaucracy, which will turn into Frankenstein’s monster.”) At that time, if anyone had raised any logical questions, he would have been denounced as a “gaddar” or “deshdrohi”. The people who collected at Jantar Mantar or the Ramlila grounds displayed a mob mentality that has been accurately described by Shakespeare in Julius Caesar.
After Caesar’s murder, Mark Antony stirred up the Roman mob, which went around seeking revenge on the conspirators. One of the conspirators was named Cinna. The mob caught hold of another man, also named Cinna, who protested that he was Cinna the poet and not Cinna the conspirator. Despite his protests, the mob said, “tear him for his bad verses”, and lynched him.
The Jan Lokpal Bill 2011 defines an act of corruption as punishable under Chapter IX of the Indian Penal Code or under the Prevention of Corruption Act vide Section 2(e). Section 6(a) of the bill says the Lokpal will exercise superintendence over investigation of acts of corruption, and section 6(c) empowers the Lokpal to punish acts of corruption after giving a hearing. Section 6(e) authorises the Lokpal to initiate prosecution, and section 6(f) authorises him to ensure proper prosecution. Section 6(i)(j) authorises him to receive complaints.
Section 2(c) of the Prevention of Corruption Act defines a public servant very widely. It includes not only government servants but also a host of other categories, such as employees of a local body, judges, certain office-bearers of some cooperative societies, officials of Service Commission or Board, and vice chancellors and teachers in universities.
As pointed out in ‘Recreating Frankenstein’s monster’, there are about 55 lakh government employees (13 lakh in the Railways alone). There will be several lakhs more in other categories coming under the definition of public servant according to the Prevention of Corruption Act. Obviously, one person cannot supervise and decide on presumably millions of complaints pouring in against them. Hence, thousands of Lokpals, maybe 50,000 or more, will have to be appointed. They will have to be given salaries, offices, staff, etc. Considering the low level of morality prevailing in India, we can be fairly certain that most of them will become blackmailers. It will create a parallel bureaucracy, which in one stroke will double the corruption in the country. And who will guard these Praetorian Guards? A body of Super Lokpals?
All this was not rationally analysed. Instead, the hysterical mob that gathered in Jantar Mantar and Ramlila grounds in Delhi thought that corruption would be ended by shouting “Bharat Mata ki Jai” and “Inquilab Zindabad”.
It is time Indians woke up to all this. When I called 90 per cent of them fools my intention was not to harm them, rather it was just the contrary. I want to see Indians prosper, I want poverty and unemployment abolished, I want the standard of living of the 80 per cent poor Indians to rise so that they get decent lives.
But this is possible when their mindset changes, when their minds are rid of casteism, communalism and superstition, and they become scientific and modern.
By being modern, I do not mean wearing a nice suit or a beautiful sari or skirt. Being modern means having a modern mind, which means a rational mind, a logical mind, a questioning mind, a scientific mind. At one time, India led the world in science and technology (see my article “Sanskrit as a language of Science” on kgfindia.com). That was because our scientific ancestors, like Aryabhata, Brahmagupta, Sushruta, Charaka etc, questioned everything. However, we subsequently took the unscientific path of superstition and empty ritual, which has led us to disaster. Today we are far behind the West in science and technology.
The worst thing in life is poverty, and 80 per cent of our people are poor. To abolish poverty, we need to spread the scientific outlook to every nook and corner of our country. It is only then that India will shine. And until that happens, the vast majority of our people will continue to be taken for a ride.
The writer, a former judge of the Supreme Court, is chairman of the Press Council, express@expressindia.com
River-engineering and the courts
BY V R KRISHNA IYER PUBLISHED IN THE HINDU
The concept of judicial infallibility is valid, but a legal pronouncement need not always be the last word on a given subject.
The article in The Hindu by Ramaswamy R. Iyer, “With all due respect, My Lords,” on March 2, a critical study of the ruling of the Supreme Court giving certain directions under the authority of Article 141, relating to inter-linking of rivers was noteworthy. And his request to reconsider the decision deserves serious consideration.
What the Supreme Court decides is final not because it is infallible; it is infallible because it is constitutionally final and structurally supreme. If ignorance is made final, governance becomes chaos. That is why the Montesquieuan theory of the trinity of instrumentalities is accepted by many Constitutions across the world, including the Indian Constitution. What is in the realm of the Executive is decided by the Executive. What is legislative, in the shape of law, is decided by the Legislature. When there is a dispute over a fact or law, the decision of the court is final, and all the other branches of the structure are bound by the judicial decision.
From this perspective, river disputes fall within the jurisdiction of the judiciary. But, for instance, how high an aircraft should fly without the possibility of danger, or how a safe dam should be constructed to store water, are matters highly technical, and hence these do not belong to jurisprudence or judges. I was once a Minister for Irrigation and Electricity (in Kerala) and started projects on the advice of engineers. The court never interfered, nor could they. There may be some areas where submergence by a river may cause risks — and on the basis of clear technical advice a court may pronounce an order. The jurisdictional borders of the Executive, the Legislature and the Judiciary are fairly clear, and one of them cannot interfere with the other. Viewed from this angle, I agree with Mr. Ramaswamy Iyer’s critical observations.
Judges, merely because they wear robes, cannot decide on the course of rivers, whether they should be linked or not, and if at all, how they should be linked — just as they cannot decide on matters to do with the safety of flights or other such technical issues. Judges are not infallible; and they cannot issue executive directions or promulgate legal mandates or punitive impositions in such contexts.
‘Hasten slowly’
The central flaw of the Supreme Court’s verdict on the inter-linking issue is the failure to realise that a pan-Indian river project may have dangerous limitations. The Ganga and the Cauvery are two great rivers, but they cannot be linked up without first making a careful and exhaustive study of the various features of the terrain through which they flow over a vast territory of India. Otherwise, it may well end up as a horrendous blunder, irreparable after the decision is operationalised. A national debate involving also the great engineers, especially river engineers, that we have is essential before undertaking the implementation of a national project such as this.
The Supreme Court is indeed infallible, but while in its jural specialties it may well be top of the league, it is largely innocent in matters to do with mighty river-engineering. Therefore, great caution with all the wisdom at our command, must first be used to study the implications and the perils of this Himalayan-scale project before implementing a juristic wonder beyond what the Supreme Court has so lightly directed. Where the implications are too great to grasp and the consequences may be beyond repair, “hasten slowly” will be a good piece advice. Never assume that the robed wisdom that is good for jurisprudence will not land us in dangerous waters.
Therefore, never be in a hurry. Study every dimension of this huge project. When the project was announced a decade ago in 2002, one section of public opinion supported it, and another opposed its implementation. It is without taking any note of the conflicting public opinion that the present binding directions have been issued by the court.
(V.R. Krishna Iyer was a Judge of the Supreme Court of India.)
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National Legal Research Desk on Violence Against Women and Children
Supreme Court of India
The Constitution of India provides for special treatment of women, guarantees equality and prohibits discrimination. The government of India has been strengthening various laws focused on women and children. This has been more visible since the Beijing CEDAW Conference. The recent years have been witness to some landmark interpretations and directives related to Violence against Women. Despite the constitutional mandate of equal legal status for men and women, the same is yet to be realized. The dejure laws have not been translated into defacto situation for various reasons such as illiteracy, social practices, prejudices, cultural norms based on patriarchal values, poor representation of women in policy-making, poverty, regional disparity in development, lack of access and opportunity to information and resources, etc. The ground situation more or less remains the same.
Most of the laws come with various institutional machinery, partnership between various stakeholders and active role of NGOs. These institutions need to be in existence in order for the law to be effective. Also the policies and programmes made at the top takes a long time to percolate to the bottom and there is an urgent need of sharing information and resoursces.
The awareness on laws and access to justice remains dismal. At the district and the state level sensitivity on women rights among judicial officers, administration and the police is very low. This leads to a situation where the implementation of the law becomes difficult. Recently India has increased its budgetary support for the implementation of various laws on violence against women and it becomes increasingly more important for the organization like Shakti Vahini to work on governance specially related to women and children issuesThe National Legal Research Desk (NLRD) has been instituted to strengthen the implementation of the laws related to Women and Children in India. NLRD focuses on documenting the recent changes in the law, collect and compile the Recent Landmark Judgments of the Supreme Courts of India & the High Courts and ensure wide scale dissemination of the same through the government and the non government machinery. The NLRD will work with Law Enforcement Agencies, Police Academies, Judicial Agencies, Government Agencies, Statutory Agencies, NGOs, Civil Society and Mass Media on promoting Access to Justice for Women and Children. The NLRD website is a knowledge Hub for compilation of all Laws, Judgements and Resource materials on Violence against Women and Children in India. In the first phase (2012) it will focus on the laws related to Human Trafficking, Domestic Violence, Juvenile Justice, Rape Laws, PCPNDT Act , Honour Crimes and Victim Compensation.
Govt faces Supreme Court ire over pendency
Supreme Court of India
DHANANJAY MAHAPATRA IN THE TIMES OF INDIA
NEW DELHI: The Supreme Court on Thursday said pendency of 3 crore cases could not be effectively dealt with unless the government created more courts and filled vacancies because annual disposal of cases by trial courts, high courts and the Supreme Court only matched the numbers filed every year, leaving the backlog untouched.
If a bench of Justices A K Ganguly and T S Thakur questioned additional solicitor general Harin Raval on the Centre‘s policy decisions on judicial reforms including speeding up of justice delivery, another bench of Justices A K Patnaik and Swatanter Kumar was critical of the UPA government’s decision to scrap fast-track courts.
The bench of Justices Ganguly and Thakur accepted Raval’s contention that it would be a mismatch if the government was asked to create more posts of judges when a large number of such posts was lying vacant.
But it wanted to know from the ASG whether any of the policy decisions intended to create more courts in view of a finding that the country would require 75,000 more trial judges in the next three decades.
It asked the Centre to refer to the Law Commission, which is doing a comprehensive study in this regard, to include in its terms of reference the need for increasing the number of courts and ways and means to deal with the vacancy problem.
On the other hand, amicus curiae and senior advocate P S Narasimha drew the attention of a bench of Justices Patnaik and Kumar to the scrapping of fast-track courts from March 31, 2011.
The bench said during the All India Conference of Chief Justices and Chief Ministers, there was unanimity that FTCs had played a constructive role in reducing arrears and should be continued.
It looked into the law ministry’s file relating to discontinuation of these courts and found that a decision had been taken to run morning and evening courts in place of fast-track courts. Narasimha said whenever there was an attempt to hinder speedy justice, constitutional courts had inherent power to take necessary corrective measures to ensure financial grants to sustain existing justice delivery system. The bench reserved verdict on the issue.
“When an Institution No Longer matters, we no longer matter.”
Supreme Court of India
Chief Justice of India Shri S H Kapadia- Speech on the ocassion of Law Day 2011
We have assembled today to celebrate the anniversary of a momentous event, the anniversary of the adoption of our Constitution, the day on which our founding fathers subscribed to this document by signing the same and thereby unfolding the philosophy – social, economic and political, for the governance of free India. We have every reason to be proud of and to celebrate that unique occasion. We take this opportunity to thank the founding fathers, for this document, who spent a good deal of their time and energy in giving shape to this suprema lex which was to guide the future destination of the country. We are ever grateful to them. The foremost reason why we are proud of our Constitution is that it promises governance through the Rule of Law. While in many countries which initially opted for a democratic form of Government the euphoria lasted for brief spells, we are of the view that in our country, notwithstanding its complexity, democracy has stabilized and democratic institutions have flourished. The survival of democracy in India has left many bewildered.
The socio-economic transformation – a welfare State and an egalitarian society as its objective – must also be through the process of law. It is true that such desired socio-economic transformation through process of law has been slow, however, the march has been steady. Today, rule-specific laws are being substituted by rights-specific laws (RTE, RTI, Food Security Bill). These socio-economic legislation requires a paradigm shift in the matter of interpretation of Article 14, Article 21 and Article 19(1)(g) of the Constitution. Courts have come from formal equality to egalitarian equality to the concept of Deprivation.
Judicial independence is one of the essential elements of Rule of Law. Every civilized society has seen the need for an impartial and independent judiciary. The principle of Judicial Independence has acquired renewed significance, since the Constitution of India has conferred on the Judiciary the power of judicial review. However, keeping in mind the doctrine of Separation of Powers, Judiciary has to exercise considerable restraint to ensure that the surcharged democracy does not lead to a breakdown of the working of the Parliament and the Government. The Judiciary needs to work in the area demarcated by the Constitution. Awareness about rights has grown while correspondingly redressal from the Executive has been reduced. The Executive has its own compulsions – huge population, lack of resources, high inflation, global economic region etc. As a consequence litigation has multiplied. Despite commendable achievements in terms of disposal which I will presently demonstrate, the challenge is and should be for Zero Pendency in which direction a lot needs to be done.
Today, the crisis of confidence in human institutions has come to the forefront. The deficiency of every institution in tackling the growing and complicated social problems has become a common feature. It is a challenge for every institution. Every democratic institution needs to meet this challenge. The viability of judicial institutions depends upon their acceptability by the people. When the viability of the system gets into disrepute and ultimately the system becomes less and less useful to the community, the challenge lies in rejuvenating the system by restoring its credibility and people’s faith in it. Thus, the foremost challenge to the
Judiciary today is viability of the system. Citizens approach the Court only when there is confidence in the system and faith in the wisdom of the Judges. This is where the Public Trust doctrine comes in. The Institution stands on public trust.
I am an optimist. I do not share the impression that judicial system has collapsed or is fast collapsing. I strongly believe and maintain that with all the drawbacks and limitations with shortage of resources and capacity, we still have a time-tested system. This is no justification to discard the system by giving it bad name. Judiciary has performed a commendable job, which is indicated by the Status Report. Before reading the statistical data, let me say that there is a need to highlight that all the stakeholders are accountable for maintaining and achieving standards of Court Excellence. The general tendency is to put the entire blame on the Judges.
The executive including the police and the Bar have an important role to play in expeditious disposal of cases. There is a backlog of cases, however, it is not as big as is sought to be projected. Please note that 74% of the cases are less than five years old. The focus: expeditious disposal of 26% of cases which are more than five years old i.e. “Five plus free” should be the initiative.
CONCLUSION :
Image via Wikipedia
India is an aspirational democracy. It is the shared idea of India to emerge from Society which has individuals of diverse ideologies, cultures and religious denominations. We must, therefore, identify common strands that will bind us, as one nation and one people. Unless this is done we cannot build a modern and strong India. In the hierarchy of values, judicial integrity is above judicial independence. Judicial accountability needs to be balanced with judicial independence. I would request the Bar as well as eminent jurists to deliberate upon constitutional concepts such as Judicial Independence and Judicial Accountability. We, the Judges, do not mind a studied fair criticism. However, as an advice to the Bar please do not dismantle an Institution without showing how to build a better one. Please remember “When an Institution No Longer matters, we no longer matter.”
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Bringing legal aid a step closer home
U. Sarathchandran IN THE HINDU
The provision of legal aid to the poor and the disadvantaged exists in all civilised countries, often guided by charitable and philanthropic concerns. In a democratic set-up, the philosophy of legal aid has acquired a new meaning, with an emphasis on the concept of equality of all human beings, increasingly drawn from the universal principles of human rights. Free legal aid to the poor and marginalised members of society is now viewed as a tool to empower them to use the power of the law to advance their rights and interests as citizens, and as economic actors. Such a paradigm shift in the concept of legal aid gains greater importance when India is viewed as a growing economic power.
Parliament enacted the Legal Services Authorities Act, 1987 in order to give effect to Article 39-A of the Constitution to extend free legal aid, to ensure that the legal system promotes justice on the basis of equal opportunity. (November 9 is observed as National Legal Services Day, to commemorate the enactment of the legislation.) Those entitled to free legal services are members of the Scheduled Castes and the Scheduled Tribes, women, children, persons with disability, victims of ethnic violence, industrial workmen, persons in custody, and those whose income does not exceed a level set by the government (currently it is Rs.1 lakh a year in most States). The Act empowers legal services authorities at the district, State and national levels, and the different committees (legal services institutions) to organise Lok Adalats to resolve pending and pre-litigation disputes. It provides for permanent Lok Adalats to settle disputes involving public utility services. Under the Act, “legal services” have a meaning that includes rendering of service in the conduct of any court-annexed proceedings or proceedings before any authority, tribunal and so on, and giving advice on legal matters. Promoting legal literacy and conducting legal awareness programmes are functions of legal services institutions.
Access to justice
The Constitution treats all citizens as being equal and provides them equal protection under the law. Yet, the common person faces barriers to ‘access to justice.’
Illiteracy, lack of financial resources and social backwardness are major factors that hinder the common person from accessing justice. There are other invisible barriers: lack of courage to exercise legal rights, the proclivity to suffer silently the denial of rights, and geographical and spatial barriers are examples. Such barriers keep people disempowered and subjected to exploitation by powerful people. This results in their being shoved away from the mainstream, and they become constrained in becoming potential economic actors contributing to the nation’s development.
The Act provides for a machinery to ensure access to justice to all through the institutions of legal services authorities and committees. These institutions are manned by judges and judicial officers. Parliament entrusted the judiciary with the task of implementing the provisions of the Act, as the other pillars of the government were neither inclined nor had the expertise to take up the responsibility to provide access to justice to the weaker sections.
Reaching out
One of the problems faced by legal services institutions is their inability to reach out to the common people. This hiatus between them and the common people was perceived as indirectly defeating the objectives of the Act. It is in this context that the National Legal Services Authority (NALSA) has come up with the idea of para-legal volunteers to bridge the gap between the common person and legal services institutions.
The scheme seeks to utilise community-based volunteers selected from villages and other localities to provide basic legal services to the common people. Educated persons with commitment to social service and with a record of good character are selected. The volunteers are trained by district legal services authorities. The training equips them to identify the law-related needs of the marginalised in their locality. Such needs include assistance to secure legal rights, benefits and actionable entitlements under different government schemes that are denied to them. Coming as they do from the same locality, they are in a better position to identify those who need assistance and bring them to the nearest legal services institutions to solve their problems within the framework of law. They can assist disempowered people to get their entitlements from government offices where ordinary people often face hassles on account of bureaucratic lethargy and apathy.
Legal aid clinics in villages
In order to reach out to the common people, NALSA has come up with a project to set up legal aid clinics in all villages, subject to financial viability. Ignorance of what to do when faced with law-related situations is a common problem for disempowered people. Legal aid clinics work on the lines of primary health centres, where assistance is given for simple ailments and other minor medical requirements of village residents. Legal aid clinics assist in drafting simple notices, filling up forms to avail benefits under governmental schemes and by giving initial advice on simple problems. A legal aid clinic is a facility to assist and empower people who face barriers to ‘access to justice.’
Trained para-legal volunteers are available to run legal aid clinics in villages. The common people in villages will feel more confident to discuss their problems with a friendly volunteer from their own community rather than with a city-based legal professional. The volunteers will refer any complicated legal matters that require professional assistance to the nearest legal services institutions. When complex legal problems are involved, the services of professional lawyers will be made available in the legal aid clinics.
Free and competent legal services
There has been a widespread grievance that lawyers engaged by legal services institutions do not perform their duties effectively and that the lawyers are not paid commensurately for their work. In order to solve these problems, NALSA has framed the National Legal Services Authority (Free and Competent Legal services) Regulations, 2010 to provide free and competent legal services. Scrutiny of legal aid applications, monitoring of cases where legal aid is provided, and engaging senior lawyers on payment of regular fees in special cases, are the salient features of the Regulations. In serious matters where the life and liberty of a person are in jeopardy, the Regulations empower legal services authorities to specially engage senior lawyers.
Children’s rights, a neglected field
Juveniles including children constitute more than a third of India’s population. Yet, children and their rights are neglected. The problems of children are often seen through the spectacles of an adult. Consequently, the rights of children who are orphaned, abandoned and in conflict with the law are not properly handled by government officials and juvenile justice institutions. Denied care and protection, they may end up as children in conflict with law. At the same time, children in conflict with the law need care and protection. In October 2011, the Supreme Court, in Sampurna Behrua v. Union of India , a public interest litigation, directed the Directors General of Police of the States to designate one police officer in each police station as juvenile/child welfare officer. The court directed legal services authorities to train such police officials and give free legal services to all children in conflict with law on an incremental basis, starting with the State capital cities.
Legal services to the mentally-ill and the mentally-retarded, to workers in the unorganised sector, and to solve disputes arising out of the implementation of the Mahatma Gandhi National Rural Employment Guarantee Act, are other schemes drawn up by NALSA for implementation by legal services institutions. A web-based monitoring system is in place to monitor their activities. NALSA works with civil society organisations, specialised statutory bodies and government departments.
Legal services institutions have until now functioned in uncharted waters, often making their presence felt only at certain ports of call like court-based legal services, organising legal literacy camps and Lok Adalats. Now, with a paradigm shift in the concept of legal services, legal services authorities are reaching out to the people to facilitate ‘access to justice’ to all in the most practicable and economical manner.
(The author is Member-Secretary, National Legal Services Authority, New Delhi.)
Para-legal volunteers can help bridge the gap between the ordinary citizen and legal services institutions.
http://www.thehindu.com/todays-paper/tp-opinion/article2610220.ece
Juvenile officer at every police station must: court
J VENKATESAN IN THE HINDU
“He shall take care of safety, food and basic amenities of the child”
The Supreme Court has directed the Director-Generals of Police of all the States and Union Territories to ensure that at least one police officer in every police station is designated as Juvenile/ Child Welfare officer to deal with the children in conflict with law. In its interim order, a Bench of Justices R.V. Raveendran (since retired) and A.K. Patnaik said: “The Home departments and the DGPs of States/UTs will further ensure that Special Juvenile Police unit, comprising all police officers designated as Juvenile or Child Welfare Officer, is created in every district and city to coordinate and upgrade the police treatment to juveniles and the children as provided in Section 63 (2) of the Juvenile Justice [Care and Protection of Children] Act, 2000.”
According to the Juvenile Justice (Care and Protection Children) Rules 2007, as soon as a juvenile is apprehended, the designated juvenile/child welfare officer of the nearest police station shall be asked to take charge of the matter. The officer shall produce the child before the Juvenile Justice Board (JJB) within 24 hours.
He shall intimate the parent or guardian, collect his socio-economic background and report the matter to the JJB.
Except in grave offences like rape, murder or one committed jointly with an adult, the case against a juvenile or child shall not be registered as an FIR and no charge sheet shall be filed, except making an entry in the general diary of the police station. The officer shall be responsible for the safety, food and basic amenities of the offender. Since the Act and the Rules framed were not being followed, the Supreme Court had been monitoring the implementation of the Act on the writ petition filed by Sampurna Behura and passed orders to the States/UTs from time to time. The court has already passed several orders for constitution of JJBs under Section 4 of the Act and Child Welfare Committees under Section 29 of the Act and most of the States and UTs have taken steps to constitute them.
Monitoring to continue
The Bench in its recent order made it clear that it would continue to monitor implementation of the provisions of the Act and asked the District Legal Service Authorities to provide the required training to the officers. It directed the matter to be listed in the first week of January, when the State governments and the UTs would file an affidavit outlining steps taken by them pursuant to this order.
http://www.thehindu.com/news/national/article2562888.ece
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Will politicians understand hunger by experimenting with fast?
DHANANJAY MAHAPATRA IN THE TIMES OF INDIA
Anna Hazare’s success reminded the political class about the magnetic effect a fast has on the common man, who suffers hunger on a daily basis and is hungry for good governance that could ensure some sort of social and economic equality in his poverty stricken and discrimination filled life.
Two politicians in Gujarat have gone on fast. If Narendra Modi is using the communal harmony-coated fast for a boisterous projection of US-certified development in the state to exorcise the ghost of post-Godhra riots, then Shankersinh Vaghela is fasting to scratch the still fresh wounds to widen the chasm between communities for electoral gains.
But no politician seems inclined to go on fast for the 40 crore Indians who even after 64 years of independence live below the poverty line. Recently, for the benefit of the Supreme Court, the Planning Commission said a person is below the poverty line if he is unable to buy food worth Rs 20 a day at a time when almost every essential commodity is out of his reach.
And if he did not live below the poverty line, that is if he is able to spend Rs 21 a day on himself and his family, then he would have to buy ration from the market as he would be disentitled to get it from PDS shops.
Faced with an absurd definition of poverty, fast has become a common man’s constant companion. Political inaction to streamline supply of subsidised foodgrain to the poor forced Supreme Court to intervene decisively. When Justices Dalveer Bhandari and Deepak Verma said “not a single person should die of starvation”, it would have sounded like a poll-eve political slogan had it not been accompanied by stern directions for distribution of additional grains in 150 poorest districts.
It is the faceless common man — farmer, cobbler, iron-smith, washerman, landless labourer, daily wager, painter, plumber, sewage worker, sweeper — who sustains the wheels of the economy, yet faces the brunt of the economic policies of the government.
Would politicians take turns to live for a few days in the households of the poor and try to understand the hunger, anger and anguish that is stripping the common man of the right to live with dignity? Have they tried to understand the root cause behind the suicide of over 1.40 lakh farmers who left behind tales of debt, poverty and sorrow? Is waiver of loans the answer?
Poverty and hunger have drawn the Supreme Court’s attention periodically. In People’s Union for Democratic Rights vs Union of India [1982 SCC (3) 235], it said utter, grinding poverty had broken the backs and sapped the moral fibre of a majority of the population. “They have no faith in the existing social and economic system. What civil and political rights are these poor and deprived sections of humanity going to enforce,” it had asked.
Three years later, in the case K C Vasantha Kumar vs Karnataka, the SC said, “Chronic poverty is the bane of Indian society. Market economy and money spinning culture has transformed the general behaviour of society towards its members. Bank balance, property holdings and money power determine the social status of the individual and guarantee the opportunities to rise to the top echelon. How the wealth is acquired has lost significance. Purity in means disappeared with Mahatma Gandhi and we have reached a stage where ends determine the means.”
Even when poverty still ruled society, the apex court in the year 2000 in Islamic Academy case said right to development was also part of human rights. “Economic prosperity or elimination of poverty is not the only goal to be achieved but along with it allow individuals to lead a life with dignity with a view to (make them) participate in the governmental process, so as to enable them to preserve their identity and culture,” it said.
Sadly, we are very far from eradicating poverty, which was the poll slogan of the Congress party in the 1970s. Politicians still do not understand that hunger and poverty afflict the soul of a person and drive him to do things which are strange to his social and moral DNA.
Fasting may have brought Hazare support for a campaign against corruption. But fasting surely will not get politicians the votes. What voters need is development in the true sense and this alone can ensure prosperity and help eradicate poverty.
35 yrs later, a former Chief Justice of India pleads guilty
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INDIAN EXPRESS
Over 35 years after he signed off — with the majority on a five-judge bench of the Supreme Court — to rule that even the right to life could be abrogated, former Chief Justice of India P N Bhagwati today said he was sorry for that ruling.
“I was wrong. The majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would agree with what Justice (H R) Khanna did. I am sorry (for the judgment),” Bhagwati told The Indian Express today.
In the 1976 ADM Jabalpur vs Shivkant Shukla case, popularly known as the habeas corpus case, Justices Bhagwati, A N Ray, Y V Chandrachud and M H Beg agreed with the then Indira Gandhi government that even the right to life stood abrogated during the Emergency. The verdict constitutes one of the darkest chapters in the history of the court as it struck at the very heart of fundamental rights.
“I don’t know why I yielded to my colleagues,” said Bhagwati. “Initially, I was not in favour of the majority view. But ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that time, a young judge…I was handling this type of litigation for the first time. But it was an act of weakness on my part.”
Justice H R Khanna, incidentally, was the only judge on that bench who dissented with the majority view arguing that the Constitution didn’t permit the Right to Life and Liberty to be subject to any executive decree. This cost him the job of CJI.
He claimed that his later judgments dealing with fundamental rights did uphold the Constitution. Was it the lure of high office? “I can’t say this. It would not be right for me to say this,” he said.
Incidentally, during the Emergency, Bhagwati praised the Indira government but after the Janata Government came, he was critical of her. After Indira’s return, he sent her a gushing letter: “…I am sure that with your iron will and firm determination, uncanny insight and dynamic vision, great administrative capacity and vast experience, overwhelming love and affection of the people and above all, a heart which is identified with the misery of the poor and the weak, you will be able to steer the ship of the nation safely to its cherished goal.”
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Objection, your honour
THE ROT IN JUDICIARY
SATYA PRAKASH IN THE HINDUSTAN TIMES
As Justice Soumitra Sen of the Calcutta High Court faces impeachment proceedings, the focus is back on corruption in the Indian judiciary, often accused of opposing measures to introduce transparency and accountability in an institution that also judges the works of the Legislature and the
Executive.
During the debate on the resolution in the Rajya Sabha to remove Justice Sen, cutting across party lines, MPs attacked the judiciary for corruption, lack of accountability and the collegium system of appointments, in which the executive hardly has any role to play. No wonder, in his farewell speech, Justice VS Sirpurkar of the Supreme Court described the statements against the judiciary as “indigestible”.
Should the Judiciary be under Lokpal?
Gandhian Anna Hazare, who had been on an indefinite fast since August 16 to demand a strong Lokpal (anti-corruption ombudsman), first demanded that the judiciary be brought under the Lokpal. However, team Anna is now said to have agreed to keep the judiciary out of the purview of the Lokpal if the government simultaneously brings the Judicial Standards and Accountability Bill with strong provisions to deal with judicial corruption.
“Judiciary can’t be covered by this (proposed) Lokpal. It should be covered by another alternative mechanism. We call it the National Judicial Commission,” leader of Opposition in the Rajya Sabha Arun Jaitley said on August 18, during the debate on Sen’s impeachment.
According to former Chief Justice of India PN Bhagwati, bringing the judiciary under the Lokpal would “seriously” affect its independence. Only a “specialised agency” should be entrusted to ensure accountability in the judiciary, whose autonomy could be compromised if brought under the Lokpal, Bhagwati said in an open letter to Hazare.
The Judicial Standards and Accountability Bill, 2010
The UPA government introduced the Judicial Standards and Accountability Bill in the Lok Sabha on December 1, 2010. It proposes to lay down judicial standards, provide for the accountability of judges, and requires them to declare their assets and liabilities, and also that of their spouse and children.
The Bill requires judges to practise universally accepted values of judicial life, such as prohibition on close association with individual members of the Bar who practise in the same court as the judge and allowing family members who are members of the Bar to use the judge’s residence for professional work.
Law Commission Vice Chairman KTS Tulsi terms it a historic step, saying, “For the first time judges’ conduct is being defined by a statute.”
The proposed law is to replace the Judges (Inquiry) Act, 1968 that lays down procedure for removal of the Supreme Court and high court judges. But most importantly, it empowers the common man to file complaints against judges of the high courts and the Supreme Court.
The numbers game
Under the present system provided for in the Judges (Inquiry) Act, 1968, the process for removal of a judge can be initiated through a resolution either by 100 Lok Sabha members or 50 Rajya Sabha members.
After the MPs submit a duly signed motion to the Lok Sabha speaker or Rajya Sabha Chairman, the presiding officer constitutes a three-member committee to probe the allegations and determine if it is a fit case for initiating the impeachment process.
If the panel indicts the judge, the resolution for removal has to be passed by two-thirds majority in both Houses in the same session. The resolution is then sent to the President, who orders removal of the judge. The judge is given an opportunity to defend him/her.
While retaining the reference procedure, the Bill proposes to introduce a complaint procedure to empower the aam admi to file complaints against judges of the high courts and the Supreme Court.
It seeks to establish two authorities — a National Judicial Oversight Committee and a Scrutiny Panel — to investigate complaints against judges.
The Oversight Committee will comprise a retired Chief Justice of India as the chairperson, a judge of the Supreme Court nominated by the sitting Chief Justice of India, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President. The scrutiny panel shall comprise a former Chief Justice and two sitting judges of that court.
A Parliamentary panel on Law and justice is said to have recommended inclusion of one MP each from the Lok Sabha and the Rajya Sabha in the Oversight Committee. Initial complaints will be made to the Oversight Committee, and they will be referred to the scrutiny panel constituted in the Supreme Court and in every High Court.
If the scrutiny panel feels there are sufficient grounds for proceeding against the judge, it shall report on its findings to the Oversight Committee.
When the panel finds that the complaint is frivolous, or that there not sufficient grounds for inquiring against into the complaint, it shall submit a report to the Oversight Committee giving its findings for not proceeding with the complaint.
If the scrutiny panel recommends investigation into a complaint against a judge, the Oversight Committee will constitute an investigation committee to probe into the complaint. The probe panel will comprise three members. It will frame definite charges against the judge and shall communicate the same to the judge, who shall be given an opportunity to present the case, but if the judge chooses not to be heard, the proceedings may be heard without him present.
THE TAINTED GALLERY
The Removal of a judge
If the Oversight Committee feels that the charges proved against the judge merit his/her removal, it shall request the judge to resign voluntarily, and if the judge fails to do so, it shall advise the president to proceed with the removal of the judge. In such a case, the President shall refer the matter to Parliament, where the rest of the procedure is the same as the one in the case of a motion moved by MPs.
The Bill exempts documents and records of proceedings related to a complaint from the purview of the RTI Act, 2005 but the reports of the investigation committee and the order of the Oversight Committee can be made public. The tainted judges gallery
Why The Collegium stays
Under Article 124(2) and Article 217(1) of the Constitution, a judge of Supreme Court/High Court has to be appointed by the President after “consultation” with the Chief Justice of India (CJI). The government was not bound by the CJI’s recommendation. But in 1993, the Supreme Court introduced the collegium system, taking over primacy in appointments to higher judiciary. A nine-judge Constitution Bench in 1998 ruled that “consultation” must be effective and the chief justice’s opinion shall have primacy. Now India is the only nation in the world where judges appoint judges. In 2008, the Law Commission favoured restoration of pre-1993 position. Despite the UPA government criticising the collegium system, the Bill does not propose to change it.
Post-retirement carrots
During his speech on Sen’s impeachment, Jaitley said: “The desire of a job after retirement is now becoming a serious threat to judicial independence.” Tulsi also described it as a menace. “I agree with Jaitley that judges should not be given post-retirement jobs. If a statute requires a judicial person, a sitting judge can be appointed.”
The way forward
Prevention is better than cure. What is needed is a system that ensures only an honest person becomes a judge. If that happens, the occasion for removal of a judge may not arise. Also, the collegium system must go, says former law minister Ram Jethmalani. “Setting up a National Judicial Commission is the only solution. The Commission must have the powers to appoint, transfer and remove judges,” he said.
He, however, said: “It should be a broad-based body comprising a government representative, the leader of the opposition and representatives of the judiciary, organised Bar, academic world and the world of social sciences.”
http://www.hindustantimes.com/Objection-your-honour/H1-Article1-738669.aspx
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