Holding the disputed site was the birthplace of Lord Ram, the majority on the Bench said that each party – the Hindu Mahasabha, the Sunni Waqf Board and the Nirmohi Akhara — would be entitled to one-third share of the disputed land, with Lord Ram’s idol continuing to stay at the place where he was placed.In their separate judgements on the sensitive 60-year old title dispute on Ramjanambhoomi-Babri Masjid structure, Justices S U Khan and Sudhir Agarwal said the area under the central dome of the three-domed structure where Lord Ram’s idol exists belongs to Hindus.Justices Khan and Agarwal decreed that the 2.7 acre land comprising the disputed site should be divided into three equal parts and be given to the Sunni Waqf Board, Nirmohi Akhara and the party representing ‘Ram Lala Virajman’ (Ram deity).
With the Supreme Court dismissing a petition for deferment, the Lucknow bench of the Allahabad high court is all set to pronounce its verdict on the Ayodhya title suit. This past week, the air has been thick with yearnings that the issue could somehow be returned to the slow burner or that the high court verdict could somehow be postponed for a last, hasty shot at reconciliation. The tremulousness is understandable. When an issue has so long resisted resolution — and when that issue has shaken the republic so violently — the reluctance to face it four-square cannot be conveniently dismissed as escapism. However, mature democracies do not deal in wishful thinking, and the Supreme Court, intentionally or not, has been creative in reminding this country of its institutional strength to get on with things. It applied a short pause and then, on the basis of sober deliberation, refused to be inhibited by any political or executive pressure. The process followed by the apex court could turn out to be crucial, for it has reinforced the supremacy of the law in this land.
The law gives the petitioners in the Allahabad high court the option to appeal the verdict in the Supreme Court. One or more of them may do so after the verdict is read out in the afternoon of September 30. However, the challenge for our politics is to separate these individuals’ rights as petitioners from any mobilisation on the issue. For all the reminders of India having moved on, and of the Ram temple movement having lost its political salience, there is suspicion that the political parties are still waiting to see which way a political wind may blow after the verdict. The verdict is not on the demolition of the Babri Masjid on December 6, 1992. But the anxieties that prevail are framed by that event. This puts the onus, first of all, on the BJP of acknowledging that it is more than just another bystander. Its leaders have been strident in appealing for calm, but they have to take the logical next step. They need to deliver on the moderation of their tone and say that they will distance themselves from any rabble-rousing, even if it be by a far-flung affiliate of the Sangh Parivar. They need to make it clear that they will not mobilise by proxy.
Nobody today knows what the verdict will be, if even there will be, in whatever limited sense these words can be used, a winner. But no matter how the verdict goes, the challenge to our democracy is to own the judgment for what it is: an iteration of the triumph of the law and its processes.
The Constitution (One Hundred and Fourteenth Amendment) Bill, 2010 seeks to make long overdue amendments to Articles 217(1) and 224(3) of the Constitution of India, which peg the retirement age of high court judges at 62. Introduced in the Lok Sabha on August 25, 2010, the Bill takes its cues from the 39th report of the parliamentary standing committee on personnel, public grievances, law and justice, that the retirement age of high court judges be “brought at par with the retirement age of [judges] of the Supreme Court”, who presently retire at 65. However, while the objectives of the proposed amendment are laudable, the Bill in its present form may have an adverse impact on the length of the term of Supreme Court judges, unless its enactment is paired with a definitive policy on the age at which judges will be appointed to the Supreme Court.
As things stand today, an appointment to the Supreme Court of India carries with it not merely the ability to pronounce judgements of appellate finality, but also a three-year job extension. In fact, in 1950, the gap between the retirement age of high court and Supreme Court judges was even wider; back then, high court judges would retire at age 60, although the retirement age was raised to 62 by the Seventh Amendment (1956). But Chief Justice A P Shah’s highly visible retirement from the Delhi high court earlier this year brought into question why high court judges must retire earlier than Supreme Court judges at all. Indeed, the Constitution’s retirement age gap seemed to be nothing more than hierarchical hieroglyphics: despite what one may say about Delhi’s cleaner air and better infrastructure, appointment to the Supreme Court does not extend life expectancy.
However, the difference in the retirement age of Supreme Court and high court judges may have been rooted in practical considerations – particularly, it guaranteed that our Supreme Court judges would serve terms of at least three years in office. Today, Supreme Court judges are picked almost overwhelmingly from the senior ranks of the high courts – typically from the pool of high court chief justices across the country. By virtue of the High Court retirement age, these judges, though on the older side, are all under the age of 62. For example, two out of three of the latest appointments to the Supreme Court, Justices H L Gokhale and G S Misra, were appointed at age 61. Similarly, 15 out of 29 Supreme Court judges on Chief Justice S H Kapadia’s court at present were appointed at age 60 or above. Since a judge appointed to the Supreme Court is under 62 by virtue of the retirement age, the Constitution presently ensures that he will serve a term of at least three years in office, i.e. until he turns 65.
But if the retirement age of high court judges is raised to 65, then the pool of judges from which the collegium will have to pick Supreme Court nominees will necessarily be older. For example, increasing the age of retirement to 65 may make it more difficult for the collegium to ignore a 64-year-old high court chief justice for appointment to the Supreme Court. This may inevitably result in the appointment of judges to the Supreme Court who will spend short one- or two-year terms, if not terms of only a few months. It cannot be emphasised enough that constitutional courts which impact questions of policy must have judges who serve adequate terms in office. After all, its members are judges, not candidates for a masters degree in judicial decision-making.
Over the last 25 years, the average length of the term on the Supreme Court has gradually gone down. Consider that one of India‘s greatest judges, Chief Justice P N Bhagwati, served on the Supreme Court for 13 years – a period even longer than his high court tenure. By contrast, judges on Chief Justice S H Kapadia’s court today have an average tenure of a little over five years in office. Further, over 25 years, India’s Supreme Court has had around 129 judges including 22 chief justices. Conversely, the American Supreme Court (whose judges have life terms) in over two centuries has had only 112 judges and 17 chief justices. The increasingly shorter Supreme Court term may have something to do with the higher turnover of Indian Supreme Court judges.
The proposed 114th amendment to the Constitution is a much-needed reassurance for India’s dedicated and persevering high court judges. It tells them that they are no less valuable than Supreme Court judges, that they are as capable, and that they can and must serve in office for as long a period of time. The Supreme Court bar today benefits from the leadership of its octogenarians, and there is no compelling reason why the high court bench should not benefit from its older sexagenarians, who in any event perform comparable legal work on appellate and arbitral tribunals. But at present, the Bill threatens to shorten the length of an already dwindling Supreme Court term of office, and its enactment must either be more fully thought through or followed by a definitive policy on the age at which judges will be appointed to the Supreme Court.
The writer is an associate attorney at a US law firm.
BY RAVI KIRAN JAIN , SENIOR ADVOCATE IN BAR AND BENCH
“Everything secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity.” -Lord Acton
“Power corrupts, absolute power corrupts absolutely”, a very old saying appears to have been put aside by the Supreme Court while deciding the case of SC Advocates on Record and thereafter deciding Presidential Reference No. 1 of 1998 (AIR 1994 SC 268 and 1999 SC Page 1), popularly known as Second Judges case and Third Judges case respectively. The judgment in the Second Judges case was welcomed because it overruled S.P. Gupta case popularly known as First Judges case. The fallout of S.P. Gupta was that the opinions of the Chief Justice of India (CJI) and Chief Justices of the High Courts were totally ignored in matters of appointment and transfer of judges as power had slipped in the hands of the corrupt executive to the exclusion of the judiciary and for a period of about 12 years the judges were appointed by the corrupt executive. The judgment in First Judges case was given on December 30, 1981, in Second Judges case the judgment was given on October 6, 1993 and in Third Judges case it was given on October 28, 1998. In First Judges case the 7 Judge Bench by a majority held that the primacy in matters of appointment and transfer of judges is that of the executive and not of the judiciary. The S.P. Gupta case went to the extent of holding that consultation by the President of India with the CJI in the case of Supreme Court, and CJI and Chief Justices of the High Courts in case of appointment of a High Court Judge, is only formal.
A 9 Judge Bench was constituted in pursuance of an order dated October 26, 1990 passed in Subhash Sharma vs. Union of India (AIR 1991 SC 128). The papers of the S.C. Advocate on Record Association vs. Union of India were directed to be placed before learned Chief Justice of India to examine the two questions referred therein namely- the position of the CJI with respect to primacy, and justiciability of fixation of judge’s strength. The Bench in Subhash Sharma’s case which referred the said two questions was of the opinion, that the correctness of the majority view in S.P. Gupta vs. Union of India (AIR 1982 SC 149) required reconsideration by larger Bench. It was in this backdrop that the judgment in Second Judges case was welcomed. In the Second Judges case the Supreme Court held that the opinion of the CJI, for the purposes of Articles 124(2) and 217(1), so given, has primacy in the matter of all appointments: and no appointment can be made by the President under the provisions to the Supreme Court and the High Courts, unless it is in conformity with the final opinion of the CJI formed in the manner indicated. The “manner indicated” was that the opinion given by the CJI in consultative process has to be formed taking into account the views of the two senior most judges of the Supreme Court, and the CJI is also expected to ascertain the views of a Judge of the Supreme Court whose opinion is likely to be significant in adjudging the suitability of the candidate, by reason of the fact that he has come from the same High Court. Similarly in matters relating to the appointment in the High Courts, the CJI is expected to take into account the views of the colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. This view of the Supreme Court in Second Judges case rested on the concept of independence of judiciary being the basic feature of the Constitution.
It may be seen here that Articles 124 and 217 of the Constitution which are relevant regarding the manner of appointment of Supreme Court and High Court Judges is silent about the primacy or supremacy either of the executive or of the judiciary. The ruling of the majority judgment in S.C. Advocates on Record Association vs. Union of India was clear and required no clarification in as much as it was clearly held therein that the opinion of the CJI in the process of consultation in the matter of selection and appointment of judges to the Supreme Court and the High Court’s as well as transfer of judges from one High Court to another High Court is entitled to have the right of primacy, and is binding upon the President of India. However, in purported exercise of his power under Article 143 to refer to the Supreme Court for its opinion questions of law or fact “which have arisen or are likely to arise and which are of such a nature and of such public importance that it is expedient to obtain such opinion”, the President of India made a reference to the Supreme Court in answer to which Third Judges case was decided by a Constitution Bench. A bare perusal of the Presidential Reference which has been quoted in Third Judges case clearly goes to show that it was more of a clarification or an interpretation of the Second Judges case than some “questions of law or fact” of such public importance that it required a reference to the Supreme Court. The Presidential Reference starts by saying “WHEREAS the Supreme Court of India has laid down principles and prescribed procedural norms in regards to the appointment of Judges… in the case of SC Advocates on Record Association vs. Union of India” and then the Presidential Reference proceeds to say:-“AND WHEREAS doubts have arisen about the interpretation of law laid down by the Supreme Court… Now, Therefore, in exercise of the powers…I K.R. Narayanan …. whereby refer the following questions to the Supreme Court of India namely:
(1) Whether the expression “consultation with CJI in Article 217 (1) and 222 (1) requires consultation with a plurality of Judges in the formation of the opinion of the CJI or does the sole opinion of the CJI constitute consultation within the meaning of said Articles”.
And then similar questions about the interpretation of the judgment in Second Judges case from Q No. 2 to 9 were formulated. The Supreme Court in Third Judges case, after having quoted the Presidential Reference in extenso proceeded to give answer to the questions by quoting some parts of the Second Judges case and a perusal of the whole judgment in the Presidential Reference goes to show that it was nothing but an exercise of interpreting/clarifying the majority view in the Second Judges case. It appears that the Presidential Reference was wholly misconceived in as much as no Presidential Reference can be made just to interpret some earlier judgment of the Supreme Court. This reference should have been returned by the Supreme Court without answering it and holding that it was misconceived. In paragraph 9 of the Third Judges case it was observed:-“we record at the outset the statements of the Attorney General that:
1. The Union of India is not seeking a review or reconsideration in the Second Judges case.
2. That the Union of India shall accept and treat as binding the answers of this Court to the questions setout in the REFERENCE”.
Through this judgment the manner of appointment of judges through the collegium system was introduced. It may be seen here that in the Second Judges case there was nothing at all to introduce a collegium system. Although a bare reading of the relevant provisions of the Constitution of India goes to show that the collegium system was not in accordance with the constitutional scheme but it was generally welcomed. To begin with, the system seemed to work well. In early 1999, a large number of judges were appointed in various High Courts and it appeared that all those appointments were made on the basis of objectively viewing the merit by the collegiums of Supreme Court and various High Courts. The appointments were to the satisfaction of all concerned. However, soon after its working for a brief period it started appearing and an impression was gaining ground that the collegium system has derailed from its basic objective of choosing judges on the basis of merit. On the other hand there have been pertinent complaints that the merit had taken a backseat while considering or choosing a lawyer for judgeship and this has been causing anger as well as frustration amongst those who stood deprived of the judgeship despite being eligible on the ground of merit. Of late the majority of the members of the Bar have become more vocal than they were in the past about the inadequacies in the appointment of judges. The collegium of the Supreme Court and the High Courts started laying their hands upon the kith and kin of the senior advocates for choosing judges which created conflicting vested interest in the Bar which prevented a united agitation against the arbitrary manner in which the judges were being appointed.
The judgment in the Third Judges case is clearly against the constitutional provisions. Laying down that there has to be a collegium system for the appointment and transfer of Judges amounts to amending the Constitution of India. But all that was welcomed when the judgment came in as much as it was expected that the collegium system would work objectively.
Why the collegium system has derailed from its basic objective of choosing judges on the basis of merit so soon after it having worked well for a brief period? The reason appears to be that the judges appointed in various High Courts during the period the executive had the supremacy to appoint them (i.e. between 30.12.1981 and 6.10.1993) became senior judges in the Supreme Court and started becoming members of the collegium of the Supreme Court and the collegium of the various High Courts, so much so that when Justice V.N. Khare was the CJI the whole of the Supreme Court was packed with the judges who were appointed in post SP Gupta and pre SC Advocates on Record case who had a different mindset being chosen during the period of the supremacy of the executive.
The Supreme Court assumed “absolute power” in matters of appointment and transfer of judges of the superior courts has become absolutely clear now when we see in a recent judgment given by the Supreme Court in Mahesh Chandra Gupta vs. Union of India (JT 2009(9) SC 199), a 2 Judge Bench has demonstrated that it had assumed such absolute power by virtue of the judgments in Second Judges case and Third Judges case. What particular meaning should be given to the words “Corrupt” or “Corruption” when we talk of judicial corruption is difficult to say. Whatever be the meaning, at the cost of repetition, it is submitted that the Supreme Court put aside the famous saying “Power corrupts, absolute power corrupts absolutely” while giving judgments in Second Judges case and Third Judges case. The Second Judges case and Third Judges case were welcomed when they were given, but then with the passage of time and the manner in which the collegiums of the Supreme Court and the High Courts had been using its power, a realization was coming and controversy was increasingly becoming a matter of debate, and a demand of a judicial commission to replace the collegium system was becoming popular. But now after the judgment in Mahesh Chandra Gupta’s case in which the Supreme Court has demonstrated the assumption of absolute power (which corrupts absolutely) the debate is becoming one sided. The judgment in Mahesh Chandra Gupta’s case was given in the following backdrop.
His appointment was made to the post of Additional Judge of High Court on 18th August, 2008 by the President of India under her warrant. He was a total stranger to Allahabad High Court. He never practiced as an advocate. He was only enrolled as an advocate on 13.7.1975, and thereafter he remained in service at various places between 1975 to 1997, a period during which he ceased to practice and then became member of Income Tax Appellate Tribunal. His appointment was challenged by a practicing advocate of Allahabad High Court Mahesh Chandra Gupta by filing a writ of quo-warranto. The Division Bench comprising of Justice Harkauli and Justice Vikramnath heard the matter at length and at the stage of probing to see a prima facie case, the Bench passed an order, directing the High Court to produce before the Bench a report of Three Judges Committee on the recommendations of which the collegium of the High Court recommended the name of Dr. Satish Chandra to the Supreme Court collegium, only to be perused by the Court on 25 September, 2008, making it clear that if the High Court proposed to claim privilege or raise any objection to the production of the report, it would be open to the High Court to do so by moving an application and if such an application was made on or before 25 September, 2008 it would not be necessary for the High Court to produce the said report unless the said objections were disposed off. The Allahabad High Court was a party in the Writ Petition. In an SLP filed by the High Court against this order, shockingly, the Supreme Court issued notice and stayed further proceedings in the High Court. The Bench was headed by CJI. One would be shockingly surprised to know that the notice was issued in SLP in such an innocuous interim order just for production of the report of a committee and that too for the perusal only of the Court, making it clear that if the High Court had any objection or wanted to claim privilege it could do so, and in that eventuality the report would not be necessary to be produced. Was it a case in which by any stretch of imagination the Supreme Court could issue notice? The notice was issued by a Bench presided over by the CJI, but then it was transferred to a Bench comprising of Justice S.H. Kapadia and Justice Aftab Alam. After the notice was issued in the SLP, the High Court filed a Transfer Petition in the Supreme Court under Article 139A of the Constitution to transfer the original Writ Petition filed by Mahesh Chandra Gupta form High Court to Supreme Court. It was all the more a shocking surprise that the Supreme Court allowed the transfer petition, withdrew the Writ Petition from High Court to itself. Both, the Transfer Petition and the SLP were connected but against all cannons of law the SLP was put aside and the counsel of Mahesh Chandra Gupta was asked to argue the transferred Writ Petition. The counsel submitted that the Supreme Court had no power to transfer the petition of Mahesh Chandra Gupta under Article 139A of the Constitution. The Judges did not agree and proceeded to hear the transferred Petition on merit. Article 139A provides that: “Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or on an application made by the Attorney General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself”.
No other case involving the same or substantially the same question of law as involved in Mahesh Chandra Gupta’s Writ Petition was pending either in the Supreme Court or in any other High Court, and therefore the necessary condition to exercise the power did not exist. The Supreme Court by its judgment dated July 6, 2009, has dismissed the Writ Petition of Mahesh Chandra Gupta and upheld the appointment of Dr. Justice Satish Chandra as Additional Judge of Allahabad High Court.
Three manifest errors of law were committed by the Supreme Court in initiating proceedings to bring the Writ Petition from the High Court for being decided by itself and preventing the Division Bench of the High Court, to decide the Writ Petition which passed an innocuous order to produce report of three judge committee. The first is that it entertained SLP against the innocuous order of the High Court, the second is that it transferred the original Petition from the High Court to itself against the Constitutional provision, and the third is that it put aside the SLP and dismissing it as having become infructuous after the judgment in the original transferred petition.
Justice should not only be done but should also appear to have been done. A manifest in justice has not only been done but has demonstrably appears to have been done with impunity by the manner in which the appointment of Dr. Satish Chandra has been upheld by the Supreme Court. The name of Dr. Satish Chandra was recommended by the collegium of the Supreme Court headed by CJI. Besides the aforesaid three manifest errors of law leading to injustice, a grave judicial impropriety was committed that the initiation of the proceedings in the Supreme Court took place at the hands of a Bench presided by CJI, but when it was criticized, the CJI recused himself from the Bench and then transferred it to the Bench presided over by a senior Judge of the Supreme Court, who is also next CJI.
While hearing the transferred petition the judges of the Supreme Court were shown the Three Judge Committee Report. It was perused by them. But it was not shown to the counsel of the petitioner. It was not a fair procedure. After the judgment has been delivered by the Supreme Court it has become a matter of common knowledge in Allahabad High Court that the Three Judge Committee Report made adverse remarks against Dr. Satish Chandra. It was observed in the Report that he had a bad reputation as a judicial member of the Income Tax Appellate Tribunal.
In paragraph 35 of the judgment, the Supreme Court has observed: “….the information contained in the Report of the Sub-committee was also brought to the notice of the Supreme Court collegium, though through a different route”. What was that ‘different route’ has not been disclosed in the judgment neither it was told to the counsel of the parties when the matter was being argued. This observation in the judgment has been made obviously to justify the recommendation of the Supreme Court collegium. This fact that the Report of the Sub-committee was brought to the notice of Supreme Court collegium came to light only through the judgment. There was nothing in record of the Writ Petition to show that the report of the sub-committee was brought to the notice of the Supreme Court.
The Writ Petition filed by Mahesh Chandra Gupta was a writ of Quo Warranto with a prayer for issuance of Quo Warranto directing Dr. Satish Chandra as a Judge of Allahabad High Court to show the authority of his office and justify the constitutionality of his appointment as judge of Allahabad High Court. The Allahabad High Court was only a formal party. No relief was claimed against the High Court. The Division Bench of the High Court from whose board the Supreme Court transferred the petition to itself, had not yet issued a notice to Dr. Satish Chandra, when the High Court went in SLP against the order dated 10.9.2008 directing Allahabad High Court to produce the Report of the Sub-committee of Three Judges. How could the High Court be agreed against such an order? The Division Bench of the Supreme Court has decided the case as if the Writ Petition of Mahesh Chandra Gupta was directed against the collegium of the Supreme Court. It was not so.
Coming to the merits of the judgment after having held that Dr. Satish Chandra was enrolled as an advocate on July 13, 1975 and thereafter never practiced, the Supreme Court held that the requisite constitutional requirement is not actual practice as an advocate and what is required is that in order to be eligible a person should have a right to practice and remains enrolled as an advocate with such a right of practice although he may not have actually practiced. In paragraph 23 of the judgment it has been held that “actual practice cannot be read into the qualification provision, namely, Article 217(2)(b). The legal implication of the 1961 Act is that any person whose name is enrolled on the State Bar Council would be regarded as ‘an advocate of the High Court’. The substance of Article 217(2)(b) is that it prescribes an eligibility criteria based on ‘right to practice’ and not actual practice”.
In the concluding part of the judgment the Supreme Court observed: “Before concluding, we may state that ‘continuity of an Institution’ is an important Constitutional principle in the Institutional decision-making process which needs to be insulated from opinionated views based on misinformation. At the end of the day ‘trust’ in the decision-making process is an important element in the process of appointment of judges to the Supreme Court and the High Court, which, as stated above, is the function of an integrated participatory consultative process”. The judges who decided this case are living in ivory towers. The credibility of the Supreme Court as institution has further been eroded by this judgment. The judgment is being severely criticized by the members of the Bar in the corridors of the High Court. It is also being criticized by almost all the judges here at Allahabad. A total stranger claiming himself to be an advocate of this High Court has been foisted upon the people here.
The rationale of Mahesh Chandra Gupta boils down to this: A citizen cannot challenge the appointment of judge on any ground whatsoever even if he has a bad reputation or even if he has obtained recommendation of collegium by practicing fraud. The judges of High Courts should not have the courage to exercise their power under Article 226 of the Constitution to entertain a writ of Quo Warranto against a judge of High Court and if they do so the same would be treated by the collegium of Supreme Court to be a Writ Petition against them. For eligibility mere enrolment as an advocate is enough- actual practice at the Bar is not required. ‘Suitability’ cannot be questioned because it is in the exclusive domain of the My Lords of the Supreme Court. The citizen has to trust the institutional infallibility of the Supreme Court.
In retrospect in ADM Jabalpur the message was clear – trust the executive for it can do no wrong. In Mahesh Chandra Gupta the message is clear and unequivocal – trust the institution for it can do no wrong. In Antulay the Supreme Court rose to its majestic heights by admitting that it had been wrong- the plea of institutional infallibility was available even then. In Mahesh Chandra Gupta the process has been reversed.
Power corrupts and absolute power corrupts absolutely, nay it is the fear of losing power. The fear syndrome has struck. It is time to write obit of the Rule of Law and Judicial Review – the signature tune of the Constitution. Also time to bury them in archives of history or, let us say, preserve them for academics or intellectual exercises.
By NILANJANA ROY IN THE NEW YORK TIMES SEPTEMBER 21,2010
NEW DELHI — Should a woman’s sexual experience and history be introduced as evidence in the trial of her accused rapist? Will the Indian legal system ever recognize forced sex between husband and wife as rape? What constitutes the “modesty” of a 10-year-old girl?
A recent report by Human Rights Watch examining the common practice in India of subjecting unmarried women who say they have been raped to what the law calls a “finger test” has reopened a series of questions about the country’s laws governing sexual violence. The report, compiled by Aruna Kashyap, a women’s rights researcher, called for an end to the test, which as the name suggests, involves inserting fingers into the woman to measure “vaginal laxity” and thereby ascertain whether she was “habituated to sex” before the alleged assault.
Although there has been no official response to the report, its findings have provoked widespread outrage in India and elsewhere, with many agreeing that the test is an archaic and scientifically unsupported practice that could exacerbate the trauma of the victim.
In the same week the report was released, less noticed but telling were the routine police reports filed around the country of alleged crimes under Section 354 of the Indian Penal Code, which makes “outraging the modesty of a woman” a criminal offense. One of the cases that came to trial concerned a teacher who had “outraged the modesty” of a 10-year-old in his care. The euphemism effectively veiled the impact of what had really happened — three separate incidents of sexual assault on a child.
In a country where legal reform has been progressive in many spheres, and where the judiciary has often taken an active role in protecting human rights, the slow pace of change in the rape laws is evidence of a larger cultural silence regarding violence against women.
Urvashi Butalia, a prominent feminist scholar and publisher, is blunt in her analysis of the decades of official indifference that have surrounded India’s laws on rape.
“Laws that relate to violence against women, as the rape law largely does, are, in the eyes of the state, best forgotten or not bothered about,” she said in an interview. “Or at least they don’t have the same kind of urgency as, say, corporate legislation might.” “This is still a society that somehow sees women differently, or does not see them at all,” she said. “To me, indifference is much more difficult to fight than active resistance. Resistance is visible. Indifference is often so naturalized that it remains invisible and therefore a major obstacle.”
The first major changes to the laws on rape, which had been inherited almost intact from the days of British rule, only came in 1983. Before then, a woman who said she had been raped had the obligation to prove she had not given her consent.
And it was only this year that the government set up a committee to consider whether the laws should be changed to define sex without consent in marriage as a crime, whether they should be gender-neutral to include the sexual abuse of men and boys, and whether the definition of rape should be expanded to include penetration with objects. The finger test — which ostensibly provides evidence of a woman’s level of promiscuity and has, in some cases, led to rape charges being dropped — is not the only hangover from the days of the Raj.
For Ms. Kashyap, the author of the Human Rights Watch report, the issue goes beyond how the legal system handles rape to the question of how rape is viewed by Indian society. The need for reform goes beyond the law, she said; the need is to change how Indians see rape in the 21st century, as an act of violence rather than an assault on a woman’s chastity.
“Even in its current law-reform phase, the Indian government has retained the coinage of ‘outraging’ or ‘insulting’ the ‘modesty’ of women,” Ms. Kashyap said. “Sexual violence should be completely delinked from patriarchal notions of ‘modesty,’ ‘chastity’ or ‘virginity,’ because ideas of so-called ‘modesty’ themselves perpetuate violence and discrimination. The Indian government should acknowledge that sexual violence is a violation of women’s dignity, equality, sexual autonomy and bodily integrity.”
Underlying the finger test is an unspoken but very strong belief: the idea that a promiscuous woman, or a sexually liberated woman, is fair game, her “modesty” no longer the responsibility of the government to protect.
“Outraging the modesty of a woman” now covers a wide range of cases, many of them unequivocal instances of violence.
The newspapers regularly report incidents in which women, chiefly from the lower castes, are stripped and sometimes beaten as a act of revenge against their communities or families.
In a case in July in a Mumbai slum, a young, lower-caste woman was stripped by a mob of about 20 assailants in a case arising from a dispute between families from different castes. Some of the attackers recorded the assault on their mobile phones. Women’s rights advocates have asked that the prison sentence for those convicted of such attacks be extended from two to seven years. The news media still often refer such assailants as “molesters.” A softening and denial of violence is built into the system.
One 36-year-old woman knows this firsthand. She runs her own garment export company in Ludhiana, the largest city in the northern state of Punjab, and could be the prototype for the modern, successful Indian woman. She is also divorced, from a man who raped her so brutally during their 10-year marriage that she has had to undergo vaginal reconstruction surgery. The law only recognizes a form of rape within marriage in the case of girls under the age of 15, who are considered minors whose unions are not legally valid. So she had to obtain her divorce on other grounds.
“I want to tell the world, my family and friends, the truth — my husband was a rapist,” said the woman, who spoke on condition of anonymity to shield her family. “I can tell them about the beatings, but not the rapes. We aren’t supposed to talk about these matters, because they’re shameful. But if there was shame, there was also anger. The anger of being told, ‘He was your husband, he had the right to do this.’ Maybe for others, it will change. My pain has no voice.”
Have some Chief Justices of the Supreme Court indeed been delinquent, or is Shanti Bhushan resorting to bravado? The truth should come out.
Shanti Bhushan is a distinguished Senior Advocate of the Supreme Court. The former Union Law Minister has been a public-spirited counsel of corrective strategy. Now he has, in a stroke of seemingly egregious expression of national conscience, raised a historic, heuristic challenge. He has questioned the integrity of the top brethren of the highest judiciary of the Republic, hurling charges of corruption against eight of 16 Chief Justices of the past. He has defiantly desiderated them in a militant manner. Take action for contempt of court against me, if you dare, he seems to say. And the media have publicised Mr. Bhushan’s action, which sounds much like bravado.
Now it is left to the nation to move on this matter of paramount importance. This is an astonishing event — the rarest of the rare kind. If India is not a coward, if its swaraj is not merely soft and formal but firm and phenomenal, an appropriately high-level investigation, with consequential follow-up action that is punitive and reformatory, is imperative. This is no time to hesitate or involve in an exchange of rhetoric. Nor is this the time for a guarded and diplomatic reaction. This is unprecedented: a succession of Chief Justices have been publicly accused by a Senior Advocate of standing, risking his career.
Take action or face collapse. This is not a matter for ordinary public interest litigation. Until now, in no democracy would such an event have happened. There is not a moment now to relax or show amoral indifference or inaction. Should India keep quiet and go into slumber in the face of Operation Bhushan Bravo now, the world will judge this democracy as a bundle of brave words that, when it comes to action, is a flop show. This is not an hour to relax or retreat from duty. This is an open offensive against the highest court. The court, with vast powers of adjudication of justice and writ jurisdiction, has been put in the dock, so to say. To remain deaf or dumb to this situation will be a shock and a shame. When the judicial system suffers seppuku, we become a society sans justice.
This is a crisis beyond Mr. Shanti Bhushan and Chief Justice S.H. Kapadia themselves. The extraordinarily epic charge demands a trial. How can the courts close its eyes and pretend to be asleep? Wake up and walk with your head high, and create a tribunal as unique as the situation. To fail here will put the nation’s reputation under grave suspicion.
The judiciary is constitutionally empowered to be critical, to quash and be a corrective. It could issue creative writs or directives binding the functional process of the Executive and the Legislature. What about the judges if they are not efficient, competent and capable, and with a vision and mission to transform the social dimension of any policy or action that is violative of suprema lex? In the United States, Chief Justice Earl Warren produced a racial revolution that U.S. President Eisenhower could not achieve. In the Commonwealth, visionary judges have shown their ability to transmute society through judicial activism.
Even in India, public interest litigation has revolutionary potential if our ‘robed brethren’ are really socialist and secular. They do not always possess in plenary fashion such a dimension in terms of perception or vision. On the contrary, some of them often tend to yield to class bias and political pressure by multinational corporations, or class-oriented prejudices. Indeed, some of them seem to be slowly succumbing to corruption by powerful vested interests. This is a grave danger.
Yet, the controversy raised by Mr. Shanti Bhushan poses a serious peril before this Republic’s crimson future. Our tryst with destiny, articulated in the historic address by Prime Minister Jawaharlal Nehru, cannot be implemented since final adjudicatory powers under Article 141 and 144 lie with the highest court. To remain inert and indifferent to the attack is to be amoral and unethical to constitutional mandates. If this Republic is a live constitutional instrumentality, it has received stab wounds on its chest. Our Supreme Court Judges do have a moral stature.
If Parliament has a sense of shame, now is the time to act: it cannot wait till tomorrow. Mr. Shanti Bhushan has dared the court. Of course, he will get an opportunity and has an obligation to the nation to prove the truth of his charges. Not to act on the matter will amount to cowardice, timidity, bankruptcy, and an unworthy submission to his audacious invasion on the credibility of India’s highest moral authority, the Supreme Court.
Parliament must act. Let the Prime Minister move a resolution asking the two Houses to meet and pass a motion appointing the highest-ever quasi-judicial body to sit and inquire into any judicatural retreat from their oath of office. This will involve issues of grave importance. It is no longer Bhushan vs. the Supreme Court. It is the people’s right to have a paramount Supreme Court of justice. This nation is greater than Mr. Shanti Bhushan and it cannot have a moral backbone if these charges are not publicly enquired into and consequent changes are made — so that the Supreme Court may shine supreme.
Any Commission or Tribunal that is created should not be confined to the charges in its ambit of enquiry. The public must be able to bring any other charges against the judges of the highest court. This will be a historic, epic tribunal to try its own judges without fear or favour and cleanse the system of any bad elements. Frame a performance prescription, punish any guilty judges.
Or if Mr. Shanti Bhushan fails in his bid, let him face the consequences of his phenomenal folly. There should be no secrecy but only transparency, no contempt proceedings to hide delinquent conduct. This will be an epic battle more important than the making of the Constitution — a national hearing by a superlative tribunal. I suggest the Chief Justices of all the High Courts plus the Speaker and the Chairpersons of the two Houses sitting as a body assisted by the Attorney-General and the Solicitor-General. During the course of these proceedings, ad hoc judges may be appointed to hear cases. The marathon process will involve sittings on three days a week. The other four days could be set apart for their regular judicial work. Such a tribunal will be unique — a brave judicial odyssey. For, never has there been such a spiritual or civil challenge to a nation’s supreme body.
Let us not be afraid of doing the right thing at the right time. Anybody who comes up with charges must suffer punishment if these turn out to be unproven. Nobody can escape after levelling allegations frivolously, nocently, malignantly and mendaciously. Mr. Shanti Bhushan and Prashant Bhushan will either go down in history as tremendous challengers of evil or run afoul of the law for having raised frivolous charges. Justice shall be done to the judges, and equally to those who have levelled unproven charges. Those who seek to defile the system through blackmail will be punished, unless they are able to back up and prove the charges.
Meanwhile, there is one more item of great relevance and importance to be considered by Parliament. This involves the collegium created by a judgment of the Supreme Court to make appointments and recommend the transfer of judges of the higher courts. This instrumentality is the creature of a judgment with no foundation in the Constitution. It constitutes an usurpation of the powers of the Executive with no guidelines whatsoever. It has played havoc and deserves to be demolished by parliamentary correction, by means of an amendment to the law. The collegium is answerable to none, and acts without transparency. Instead of waiting for a larger bench to eliminate it, a constitutional provision must extinguish this instrument.
Dhananjay Mahapatra, TNN, Sep 21, 2010, 03.02am IST
NEW DELHI: Why is there no provision for clean drinking water for citizens in public places like bus stands even though the government has allowed kiosks to come up and sell bottled water? Is right to clean drinking water not part of right to life guaranteed under Article 21 of the Constitution? These questions were raised in a PIL filed by NGO ‘Voice of India‘ which was on Monday entertained by a Supreme Court bench headed by Chief Justice S H Kapadia despite his known aversion to PILs. For the NGO, Dhanesh Iesdhan argued before the bench, which also comprised Justices K S Radhakrishnan and Swatanter Kumar, that if right to clean drinking water was a fundamental right then the governments and municipal bodies must take responsibility and supply it free to the citizens.
He said in those public places where there was provision for free drinking water, the quality of water and condition of storage tanks was so bad that it could be hardly termed safe for drinking purposes. The petitioner requested the SC to issue a direction to all authorities to supply water to every citizen in this country free of cost. The bench agreed with the demand of the petitioner and said: “We are fully conscious of the fact that even after 60 years a citizen of this country is not getting clean potable water.” But, it realised that it would be a gigantic task for the SC to monitor this PIL for implementation of free drinking water in all states and Union territories. “It is, however, not possible for this court to monitor and grant relief to the petitioner on all India basis,” it said.
The petitioner seeks relief essentially against municipal corporations in each state because supply of clean potable water is the function of municipal corporations and other local bodies. Even instances given in the annexures relate to different sectors/localities within the municipalities in different states,” it noted. “In the circumstances, we are of the view that the petitioner may move the concerned high court with regard to its grievances, particularly when such grievances are confined to municipal areas and to specific areas where citizens do not get clean potable water for drinking. We cannot monitor such local institutions under Article 32 of the Constitution,” the bench said.