Judge Sonia Sotomayor

Mainstream / Monday 21 September 2009,

By Justice V R Krishna Iyer

Great Judge Sotomayor, I salute you. Why? You are a super symbol of gender power, a fine paradigm of feminine title to judicial authority to dispense justice at the national level, a glory not only for the womanhood of the USA but a symbol of the woman’s super-stature in the sex performance in all humanity. You are the robed sex on the Supreme Court Bench, an inspiration for women in all countries now neglected because the masculine gender occupies an unjust majority in all the three great constitutional instrumentalities.

This wise and graceful egalitarian nomination by the glorious Obama phenomenon is a bold assertion of equality of the sexes and proof of women’s liberation movement which is part of a broad liberation movement initiated by women the world over to improve their social position by freeing themselves from the constraints and disadvantages of a society said to be dominated by men. ‘Women’s lib’ has very strong roots in the USA and Europe and Tamil culture and has been politicised, especially by radical feminists who challenged even in temples the continued existence of male dominance in capitalist societies.

Is God a male? No. Bhagavathi, Parvathi Saraswathi, Lakshmi are sublime celestial powers. This capitalist godism is not socialist. The whole structural ethos of Manmohan is distanced from the socialist revolution in Russia that resulted in the raising of the status of both sexes with the result that the first woman who went into outer space in the world was a woman in the USSR, Valentina Tereshkova. And there were judges in the Soviet Union where women were on an equal footing with men.

In India alas, there is a printed declaration of equality of sexes as a fundamental right but 0.5 per cent of women are judges. In Muthamma’s case [1979 SCC (4) 260], women are discriminated against in the foreign service rules even in the case of right to matrimony. If a woman IFS officer marries, she must resign while when a man weds the conjugal life continues unbroken. Why no valid ground for this discrimination? So I struck down this disparity in Muthamma’s case, argued for the state by Soli Sorabjee, who fairly conceded the impropriety of this vice. Only in rare cases have we a lady Prime Minister even in a democracy. Half of humanity is women and yet no political party even in a democracy supports half the number of legislators from among the sisters. Even among judges in Victorian England women are rarely elevated to the High Bench. In short, social revolution must begin with equal share for women in constitutional instrumen-talities and learned professions sharing state power. Even Sonia Gandhi wielded power only when Rajiv was assassinated and the nation was shocked. Till then her presence and power were behind the screen. There is almost criminal cultural treatment against Sita by Rama who eventually submitted to discrimination by terrorism to forest life based on rumour. She was saved from this disaster by a Godsend earthquake. In the cultural epics of India polygamy was the privilege of kings (vide Krishna) and monogamy was strictly enforced against women.

Sonia Sotomayor is a majestic challenge to this discriminatory cosmic patho-logy so necessary in feminine suppression in India where unconstitutionality between the sexes is rampant even in Parliament notwithstanding Indira and Sonia Gandhi. Smt Pratiba Patil, by chance a President, is a ceremonial celebrity—these are exceptions; nowhere near Queen Elizabath or Victoria in terms of Power. Our socialist Republic has promises to keep and miles to go before it can claim to fulfil even the Preamble.

Our great Parliament has disgracefully failed in not approving of even one-third of MPs in favour of women. It is time that in the next election any party which does not include this promise in its manifesto should be de-voted by women voting in favour of candidates who promise to support this percentage promotive of this minimum. This does not mean reservation without merit.

Sonia Sotomayor, chosen by Obama, is by all standards a highly qualified person and will surely be a luminous celebrity as a distinguished jurist. Judge Sotomayor has lived the American Dream. Born and raised in a South Bronx housing project, she distinguished herself in academia and then as a hard-charging New York District Attorney.

Judge Sotomayor has gone on to earn bipartisan acclaim as one of America’s finest legal minds. As a Supreme Court Justice, she would bring more federal judicial experience to the Supreme Court than any Justice in 100 years. Judge Sotomayor would show fidelity to the Constitution and draw on a common-sense understanding of how the law affects day-to-day lives.

In India too if only the notorious collegium which has no constitutional status except a bizarre precedent with a narrow majority which binds, nevertheless adopted merit as a ground for selection. Of many candidates men and women are now chosen on irrelevant personal affectionate grounds to personal favouritism, party support and nepotism and close relationship. Many of the judges now selected can be replaced by better ones but a weak executive, itself lacking in merit of the highest order, submits to a syndrome of dynastic and other unhappy considerations. Women of exceptional merit at the Bar and possessing academic excellence are available but miss the Bench since they are women.

The Dravidians marvel of Kannagi and Kovalan where the former (wife) threatened to burn Madurai city. If her husband was sentenced to death unjustly and the ruler resented afraid of Kannagi’s rage. I conclude with a quote from Shakespeare:

From women’s eyes this doctrine I derive:

They are the ground, the books, the academes,

From whence doth spring the true Promethean fire.

The pathetic lot of womanhood is best brought out in Shelley’s sad note:

Desires and Adorations,

Winged Persuasions and veiled Destinies,

Splendours, and Glooms, and glimmering

Incarnations of Hopes and fears,

And twilight Phantasies;

And Sorrow, with her family of Sighs,

And Pleasure, blind with tears, led by the gleam

Of her own dying smile instead of eyes,

Came in slow pomp.

Women, awake, arise and stop not till your equal status is secured.

(The author, a retired judge of the Supreme Court, is a well-known champion of human rights and civil liberties.)

http://www.mainstreamweekly.net/article1651.html

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Are conflicting orders inherent in judiciary?

EXCELLENT ARTICLE WRITTEN BY DHANANJAY MAHAPATRA ON CONFLICTING VIEWS OF THE DIFFERENT SUPREME COURT BENCHES ON A SINGLE ISSUE

Dhananjay Mahapatra, TNN 21 September 2009, 03:27am IST

TIMES OF INDIA

Identical issues and problems evoke different, sometimes even contradictory, views from people. But when it comes in the shape of orders from the Supreme Court, the logic behind the diktats is prone to questioning.

No one can argue that monuments and statues should be built at the cost of thousands of trees and huge expenses even if one accepts the fact that creation and destruction are part of the life cycle of everything.

But when three Benches of the Supreme Court between May 29 and September 11 view a singular issue — UP chief minister Mayawati’s fetish for statues of dalit leaders and her own — then it surely is a cause for concern.

On June 29, a Bench of Justices Dalveer Bhandari and A K Ganguly took serious note of UP government’s decision to be generous with the purse strings to fulfil her fetish. It had sought answers from the Mayawati government despite its counsel making a valid counter-point — why no one questions the thousands of crores spent on etching names of politicians from a particular family?

Two weeks later, on July 10, another Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam cut short a petitioner, who raised the matter of crores of rupees worth statue projects and drew a contrast with rampant poverty, illiteracy and lack of health infrastructure in the state. The court appeared to accept the state’s plea that every penny being spent on memorials and statues was budgeted for and approved by the legislature.

Refusing to pass any restraint order, the Bench had said, “If a democratically elected government takes a decision and the House approves it, there is little the courts can do unless diversion or misappropriation of public funds is involved.”

Two months later, on September 8, a Bench comprising Justices B N Agrawal and Aftab Alam had a very different judicial perception of the entire issue and was convinced that work at the memorial projects must stop as challenges to these were pending in the Allahabad High Court and SC. The UP government had little option but to volunteer an undertaking to stop work. It apparently did not and rightly invited the wrath of the SC, which warned that “playing with fire” could prove very costly.

The jigsaw puzzle over the issue started unveiling with the May 1, 2008, order of a Bench comprising Justices H K Sema and Markandey Katju, which stayed an Allahabad HC order restraining the government from pulling down old buildings to make way for the memorials.

The same Bench had observed, “When a court restrains the executive from doing its job mandated by the Constitution or law, then the executive can ignore such an order. If amendment to the Master Plan (of Lucknow) is permitted under law, the government can do it even if the courts order to the contrary.”

But contradictions, like creation and destruction, are also a part of life, be it a person, judge or the apex court. Famous American author and poet Oliver Wendell Holmes had agreed with this and said, “People who honestly mean to be true really contradict themselves much more rarely than those who try to be `consistent’.”

It was not an imagination of a poet alone. Famous French mathematician, physicist and philosopher Blaise Pascal had also seen the sign of strength in contradictions and said, “Contradiction is not a sign of falsity, nor the lack of contradiction a sign of truth.”

Be it poetry or judicial orders, Mayawati may not be amused at all. It reminds one of US president Thomas Jefferson’s similar predicament when Chief Justice John Marshall’s ruling in Murbury vs Madison (1803) laid down the firm foundation for the doctrine of judicial review, which gave courts the power to strike down a law when it conflicted with the Constitution.

Jefferson had said, “This doctrine made Constitution a mere thing of wax in the hands of judiciary, which they may twist and shape into any form they please.” Well, the doctrine of judicial review is well entrenched in India and has paid more dividends to people than creating doubts.

http://timesofindia.indiatimes.com/news/india/Are-conflicting-orders-inherent-in-judiciary/articleshow/5034731.cms

READ THE ARTICLE IN TIMES OF INDIA

Are conflicting orders inherent in judiciary?

Dhananjay Mahapatra //

Identical issues and problems evoke different, sometimes even contradictory, views from people. But when it comes in the shape of orders from the SC, the logic behind the diktats is prone to questioning.

FALI NARIMAN ON JUDICIARY

Eminent jurist Fali S Nariman feels that though the Bar has no veto, it has every right to caution judges.

In this interaction with The Indian Express Editor-in-Chief Shekhar Gupta on NDTV 24×7’s Walk the Talk, Nariman says the time has come to have a judicial ombudsman and unless a judge has the image of the institution in his mind, there’s no point in being an SC judge

Read this Walk The Talk from the OP ED PAGE OF INDIAN EXPRESS

‘I am very angry with SC saying if Govt tells us to disclose (assets) we will disclose. That’s what Govt wants — it wants to control the judges’

The Indian Express

SUPREME COURT REQUESTS GOVERNMENT TO CONSIDER THE MERCY PETITIONS EARLY

Excerpts from Criminal Appeal No.338/2007

In  T.V.Vatheeswaran vs. State of Tamil Nadu (1983) 2 SCC 68 and Ediga Anamma vs. State of Andhra Pradesh (1974) 4 SCC 443 it has been held that a delay of two years was permissible beyond which the sentence ought to be converted to life.    In Bhagwan Bux Singh & Anr. vs. The State of U.P. (1978) 1 SCC 214 similar observations were made with respect to a delay of two and a half years and in Sadhu Singh vs. State of U.P. (1978) 4 SCC 428 to a delay of three and a half years. We find, however, that as per the latest position in law, no hard and fast rules can be laid down with respect to the delay which could result as a mitigating circumstance, and each case must depend on its own facts. We have in this connection gone through the judgment in Vivian Rodrick vs. The State of West Bengal (1971) 1 SCC 468 and this is what the Court had to say:

“It seems to us that the extremely excessive delay in the disposal of the case of the appellant would by itself be sufficient for imposing a lesser sentence of imprisonment for life under Section 302. Section 302, IPC    prescribes two alternate sentences, namely, death sentence or imprisonment for life, and  when there has been inordinate delay in the    disposal of the appeal by the High Court it seems to us that it is a relevant factor for the  High Court to take into consideration for   imposing the lesser sentence. In this particularcase, as pointed out above, the appellant was committed to trial by the Presidency Magistrate

as early as July 31, 1963, and he was convicted    by the Trial Judge on September 4, 1964. It is now January 1971, and the appellant has been

for more than six years under the fear of sentence of death. This must have caused him unimaginable mental agony. In our opinion, it would be inhuman to make him suffer till the Government decides the matter on a mercy petition. We consider that this now a fit case for awarding the sentence of imprisonment for life. Accordingly, we accept the appeal, set aside the order of the High Court awarding death sentence and award a sentence of imprisonment for life. The sentences under Section 148,IPC

and Section 5 of the Explosive Substances Act and under Section        302,    IPC,   shall   run concurrently.”

Likewise in State of U.P. vs. Sahai & Ors. (1982) 1 SCC 352 which pertained to a murder of four persons in a particular ghastly manner, it observed as under :

“The next question that remains is as to the sentences to be imposed on the respondents. Although the Sessions Judge had given all the respondents, excepting Sahai, sentences of life imprisonment under Section 302 read with Section 149 of the Indian Penal Code, he had passed the sentence of death on Sahai because he alone had shot dead three of the deceased persons. The occurrence took place sometime in December 1972, and more than eight years have elapsed since. The accused had been convicted by the Sessions Court but acquitted by the High Court. The present appeal has been pending for five years. Having regard to the reasons given above, therefore, we feel that although the murders committed by Sahai were extremely gruesome, brutal and dastardly, yet the extreme penalty of death is not called for in the circumstances of this particular case.”

It is true that in some of the cases referred to above, a delay beyond two or three years has been said to be excessive but in Sher Singh vs. State of Punjab (1983) 2 SCC 344, this Court while agreeing with the broad proposition with regard to the delay in death penalty cases, declined to accept the outer time limit of two years for the execution of a death sentence, failing which it would be incumbent on the court to commute it to life but at the same time had some very pertinent observations to make. We reproduce some of them herein  below:

“But we must hasten to add that this Court has not taken the narrow view that thejurisdiction to interfere with a death sentence can be exercised only in an appeal against the judgment of conviction and sentence. The question which arises in such appeals is whether the extreme penalty provided by law is called for in the circumstances of the case. The question which arises in proceedings such as those before us is whether, even if the death sentence was the only appropriate sentence to

impose in the case and was therefore imposed. It will be harsh and unjust to execute that sentence by reason of supervening events. In very recent times, the sentence of death has been commuted to life imprisonment by this Court in quite a few cases for the reason, inter alia, that the prisoner was under the spectre of the sentence of death for an unduly long time after the final confirmation of that sentence, consequence upon the dismissal of the prisoner’s special leave petition or appeal by this Court.” and further

“The prolonged anguish of alternating hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional, and physical integrity and health of the individual can render the decision to execute the sentence of death an inhuman and degrading punishment in the circumstances of a given case.”

“Death sentence is constitutionally valid and permissible within the constraints of the rule in Bachan Singh. This has to be accepted as the law of the land. We do not, all of us, share the views of every one of us. And that is natural because, every one of us has his own philosophy of law and life, moulded and conditioned by his own assessment of the performance and potentials of law and the garnered experiences of life. But the decisions rendered by this Court after a full debate have to be accepted without mental reservations until they are set aside.”

The   Bench    also   relied   on   a     sociological   study “Condemned to Die, Life Under Sentence of Death” by Robert Johnson which we too have found appropriate to quote to complete the narrative :

“Death row is barren and uninviting. The death row inmate must contend with a segregated environment marked by immobility, reduced stimulation, and the prospect of harassment by staff. There is also the risk that visits from loved ones will become increasingly rate, for the man who is “civilly dead” is bandoned by the living. The condemned       prisoner’s ordeal is usually a lonely one and must be met largely through his own resources. The uncertainties of his case – pending appeals, unanswered bids for commutation, possible changes in the law – may aggravate adjustment problems. A continuing and pressing concern is whether one will join the substantial minority who obtain a reprieve or will be counted among the to-be-dead. Uncertainty may make the dilemma of the death row inmate more complicated than simply choosing between maintaining hope or surrendering to despair. The condemned can afford neither alternative, but must nurture both a desire to life and an acceptance of imminent death. As revealed in the suffering of terminally ill patients, this is an extremely difficult task, one in which resources afforded by family or those within the institutional context may prove critical to the persons’s adjustment. The death row inmate must achieve equilibrium with few coping supports. In the process, he must somehow maintain his dignity and integrity. Death row is a prison within a prison, physically and socially isolated from the prison community and the outside world. Condemned prisoners life twenty-three and one-half hours alone in their cells…..”

The Court concluded with the following significant observations :

“A prisoner who has experienced living death for years on end is therefore entitled to  invoke the jurisdiction of this Court for examining the question whether, after all the agony and torment he has been subjected to, it is just and fair to allow the sentence of death to be executed. That is the true implication of Article 21 of the Constitution and to that extent, we express our broad and respectful agreement with our learned Brethren in their visualisation of the meaning of that Article.

The horizons of Article 21 are ever widening and the final word on its conspectus shall never have been said. So long as life lasts, so long shall it be the duty and endeavour of this Court to give to the provisions of our

Constitution a meaning which will prevent human suffering and degradation. Therefore, Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution. The essence of the matter is that all procedure, no matter what the stage, must be fair, just and reasonable.”

The judgments rendered aforesaid have thrown model underlying philosophy of the aforesaid judgments has already indicated above stem out not only from Article 21 of the Constitution but from the judgments rendered by the 8th Amendment in the US Constitution ratifying way back in 1791 which provide that no cruel and unusual punishment shall be inflicted. While construing this provision, the Court of the Magistrates while observing that the Eight Amendment does not prohibit capital punishment did indicate that as pending execution had it dehumanizing effect and lengthy imprisonment prior to execution and the judicial and administrative procedures essential to the due process of law are carried

out. Penologists and medical experts agreed that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture. Relying on Coleman vs. Balkcom, 451 U.S. 949, 952 (1981) observed that “the deterrent value of incarceration during that period of uncertainty may well be comparable

to the consequences of the ultimate step itself” and when the death penalty “ceases realistically to further these purposes,…..its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or  public purposes.         A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative  of    the   Eighth Amendment.” The Courts have, however, drawn a distinction whereby the accused himself has been responsible for the delay by misuse of the judicial process but the time taken by the accused in pursuing legal and

constitutional remedies cannot be taken against him. The Court nevertheless cautious which we have reproduced as under:

“We must take this opportunity to  impress upon the Government of India and  the State Governments that petitions filed  under Article 72 and 161 of the Constitution  or under Sections 432 and 433 of the  Criminal Procedure Code must be disposed of  expeditiously. A self-imposed rule should be  followed by the executive authorities  rigorously, that every such petition shall be  disposed of within a period of three months  from the date on which it is received. Long  and interminable delays in the disposal of   these petitions are a serious hurdle in the          dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice. Several          instances can be cited, to which the record of this Court will bear testimony, in which petitions are pending before the State  Governments and the Government of India for an inexplicably long period. The latest instance is to be found in Criminal Writ Petition Nos. 345-348 of 1983, from which it would appear that petitions filed under

Article 161 of the Constitution are pending before the Governor of Jammu & Kashmir for anything between five to eight years. A pernicious impression seems to be growing that whatever the courts may decide, one can always turn to the executive for defeating the verdict of the court by resorting to delaying tactics. Undoubtedly, the executive has the power, in appropriate cases, to act under the aforesaid provisions but, if we may remind, all exercise of power is pre-conditioned by the duty to be fair and quick. Delay defeats justice.”