‘Collegium system has failed, must go’


Renowned jurist and senior Supreme Court lawyer Fali S. Nariman underlines the need to do away with the collegium system, talks about why the SC judgment on convicted lawmakers is correct, and why ministers should have defended the Section 8(4) ordinance after Rahul Gandhi’s outburst in an interview to Maneesh Chhibber.

Should the collegium system be replaced?

‘It was not a case, it was a tragedy': Nariman

‘It was not a case, it was a tragedy’: Nariman

There are many things in the [Judicial Appointments Commission] bill I may not agree with. But there is no doubt in my mind that the collegium system is not working well. There has been no sense of accountability, or of transparency. It is difficult to start criticising what judges do in their non-judicial capacity, because this is a new and different role that judges have taken upon themselves of recommending appointments/ promotions. We need to understand that the role of judges in this, when it was brought in, was intended to take the government off the back of the people. This is because the government at that time had openly propagated that it wanted a judiciary “committed” to its ideology. This was dangerous. So the judges of the Supreme Court said, rather than let the executive do what they wanted, let’s have this collegium system instead. This was an experiment and it was supposed to work, and it would have, if only people had paid a little more attention. Unfortunately, judges simply don’t have the time, they are so overworked in court. That is why this system has failed. What if the new system doesn’t work?

I am not saying that the Judicial Appointments Commission will be the panacea for all present ills concerning appointments in the higher judiciary, but we have to make the new system work. We could not make the collegium system work and by we, I do mean the collective we. I am not blaming only the judges. The collegium system created two different classes among judges: the first five (or first three in the beginning) — were the superior judges, and then there were the rest. They didn’t know what was happening within the first three or five. If we had adopted a system that said that a broad consensus of all judges in the SC would agree on who to recommend for an appointment or promotion, I would have no problem with that system.

Do you agree with the assertion that the judiciary is interfering too much in the domain of the executive?

No, I don’t buy this claim at all. I regret to say that this view is being propagated, unfortunately, by some of our judges too — but only after they retire! I don’t share the view that the courts are transgressing their powers. In any case, I have noticed that when governments in office command a large majority of members of legislatures, the courts do not interfere, except when executive or legislative power is abused. When governments are weak, some judges do impose their ex cathedra off-the-cuff opinions on the government. Hence this talk of “judicial interference”.

Many are criticising the Section 8(4) judgment, saying the matter should have been decided by a Constitution Bench. You were the lawyer for the petitioner Lily Thomas. Your views?

I cannot applaud the judgment because I did appear for the winning side. But, in my humble view, it was, and is, a correct judgment in law. Others may disagree and are entitled to say so. In my view, in the SC, no case of importance to the public should be decided by less than three judges. Earlier, we didn’t have many judges. Now that we have more judges, cases that are precedents should be decided by at least a three-judge bench. I think the chief justice

is trying to do something about this, having more and more three-judge benches. And a matter like this could certainly have been decided by a larger bench. But a bench of two judges, when constituted, must decide the cases put up before it, unless there is another bench decision of two judges taking a particular view with which this bench of two disagrees — in which case, it will be referred to a larger bench of three or five judges. But I see nothing wrong with this particular judgment. The reasoning was as follows: disqualification [in case of conviction] is to be prescribed by Parliament by ordinary law. This is expressly provided for in the Constitution (Article 101). But an exception to disqualification cannot be prescribed by ordinary law, because the Constitution does not permit it. Whenever an explanation or exception to “disqualification” is intended, it has to be in the Constitution itself. Section 8(4) is an exception to the sections on disqualification, that is, Sections 8(1) 8(2) and 8(3). But Section 8(4) — which is an exception — is not in the Constitution itself. This is why Section 8(4) was struck down as ultra vires and unconstitutional.

But Parliament, in its constituent capacity, always has the last word. If you want to provide for an exception to disqualification, you have to do it by amending the Constitution. If that is the wish of Parliament as a constituent body, then it would be alright for convicted criminals to remain in the House, not otherwise. But, as of now, the government doesn’t seem to be agreeable to the idea of amending the Constitution to provide for this, obviously because the government of the day does not want to be seen to be supporting persons already convicted and sentenced to imprisonment for two years or more.



Do you think Rahul Gandhi diminished the prestige of the office of prime minister when he trashed the ordinance?

That is a different matter not connected with law. You must ask him. He’s done it. It only shows somebody is frank and a bit hot-headed as well, and doesn’t have the so-called “maturity” of other politicians. This is because he is not a fence-sitter. Of course, his utterance did undermine the position of the prime minister but this was done openly and in an era that looks for plainspeaking, I would not deplore it.

But, should a party leader criticise,

in such strong words, a decision of the cabinet?

I would throw back at you another question — why didn’t the ministers support the prime minister? Ask why senior ministers did not speak out after Rahul Gandhi had spoken. Why didn’t they say that it was on their advice that the PM had acted? The embarrassment to the PM was not caused by Rahul Gandhi as much as by the silence of the other members of the Council of Ministers.

 But what about the manner in which the ministers in government reacted after Rahul Gandhi spoke out, dumping both the ordinance and the bill without any defence of the cabinet decision?

That is the sad and unfortunate part. There is no principle left in politics, only loads of hypocrisy. Shakespeare was right: “the fault, dear Brutus, is not in our stars, but in ourselves that we are underlings”.


On the verge of unconscionable hangings


AfTH_18_OPed_jpg_1621670eter correctly acknowledging the possibility of reformation as a ground to commute the death sentence, the Supreme Court must now consider the case of 22 individuals awaiting execution in the same vein

Three judges of the Supreme Court, including the Chief Justice of India, have come to the conclusion that Sushil Sharma does not deserve the death penalty for murdering his wife, Naina Sahni, and trying to dispose of her body by burning it in a tandoor. It is no secret that India’s death penalty jurisprudence, at all levels of the judiciary, is in a shambles and the reasoning adopted in Sushil Sharma’s judgment raises very serious concerns about the justice that has been meted out to 22 individuals on the verge of execution after their mercy petitions were rejected by the President (four of them by Pratibha Patil and 18 by Pranab Mukherjee).

While a five-judge Constitution Bench of the Supreme Court is scheduled to hear the pleas of 18 of the 22 individuals only on the issue of delay caused by the State in deciding their mercy petition, the issue that I want to explore in the context of the Sushil Sharma case is the manner in which they were sentenced to death. In terms of the law, not all murders, terrorist acts, rapes and murders, acts of treason, etc attract the death penalty. The “rarest of the rare” doctrine was introduced in Bachan Singh to lend some coherence to instances in which the death penalty might be justified by balancing aggravating and mitigating circumstances. However, the “rarest of the rare” doctrine has evolved into one of the most misunderstood and misapplied doctrines not just in public discourse but even in judicial pronouncements from courts at all levels.

The “rarest of the rare” doctrine is often misunderstood as referring only to the heinousness of the crime. The focus is equally meant to be on the mitigating circumstances of the person including whether it has been decidedly shown that she is beyond reformation.

Reasons for commutation

The Court seems to have placed significant weight on the point that the State had not led any evidence to show that Sushil Sharma was beyond reformation. These are very important moves by the Court as it is a clear attempt to move away from multiple judgments in the past where the focus was only on the brutal nature of the crime. This is an important step in the inevitable course correction that the Supreme Court will have to undertake on the manner in which it examines aggravating and mitigating circumstances in death penalty cases.

By taking the position that the State, while demanding the death penalty, should demonstrate that the individual will revert to such crimes, the Court has brought the focus back on the mitigating circumstances and the appropriate burden on the State. It is this aspect of reformation that was articulated in Bachan Singh that has been ignored most often and the obligation is most certainly on the State to show the impossibility of reformation. It is of course not the position in Bachan Singh that any one factor can trump all others and Courts are meant to balance aggravating and mitigating circumstances. Reformation is an issue that is relevant to all prisoners who appear before the Court irrespective of the nature of the crime, age, sex and social background. If judges want to balance away the interests of reformation in favour of other factors, Courts must be left free to do so. However, there must be an obligation and culture of justification as far as reformation of the death row convict is concerned. As judges seal the fate of the convict, the least they must do is explain the evidence presented before them that led to the conclusion that the convict could not be reformed. If no such evidence is presented before the Court, there must be a presumption of reformation and judges must meet a high threshold of justification if they want to override that presumption. A disingenuous strategy adopted in many judgments confirming the death penalty has been to cite the brutality of the crime as indicative of the impossibility of reformation. To argue that an individual cannot be reformed because of the crime she has committed is a perverse articulation of what was intended in Bachan Singh.

Beyond reformation?

Sushil Sharma has certainly benefited from the substantial weight assigned to reformation as envisaged in Bachan Singh. But the 22 individuals who stand on the verge of execution have not had the benefit of such enquiry into the possibility of their reformation. Apart from highlighting the brutality of the crime, in none of their cases did the State lead any evidence on reformation and unlike in Sushil Sharma’s case, neither did any judge ask the State why it had not presented any such evidence. We must have no illusion that we have brought these 22 individuals extremely close to their death without any court of law in this country having paid adequate attention to the possibility of their reformation.

Double injustice

Almost all of these 22 individuals have spent a very long time in prison and it reflects the lack of humanity in our legal system that we have no mechanism to evaluate the changes they have undergone. The most tragic aspect of death sentences in India is that we often have an image of the prisoner that is frozen in time. It is an image of her when she committed the crime and our moral judgment of the person at that point of time is all that seems to matter. There is no place in our public and legal imagination for the effects of long periods of incarceration. Some of them are the most trusted prisoners in the jails in which they are lodged, some others contribute to the administration of the jail by maintaining records and teaching other prisoners about work they could do in jail, some others have picked up skills and earned degrees while simultaneously having introspected about their time in jail. Of course it is not just about the good things. Incarceration and differing levels of alienation from their families have left many of them extremely mentally vulnerable, displaying signs of severe depression and psychosis. In that sense, these 22 individuals have suffered a double injustice. Neither was the possibility of their reformation explored at the time of sentencing them to death nor is the system interested in evaluating them as individuals as they are today.

It would be unconscionable to hang any of these 22 individuals without considering the issue of reformation meaningfully. Otherwise, it starts to look like there is one standard of justice for people like Sushil Sharma and quite another standard when it comes to Shivu, Jadeswamy, Maganlal, Jafar Ali, Gurmeet Singh, Suresh, Ramji, Perarivalan, Murugan, Santhan, Saibanna, Simon, Madaiah, Gynanaprakasan, Bilavendra, Dharampal, Sonia, Sanjeev, Praveen Kumar, Bhullar, Umesh and Sundar Singh.

(Anup Surendranath is the director of the Death Penalty Research Project at the National Law University, Delhi.)


The Environment Ministry has systematically undermined the National Green Tribunal, giving expert committees a free hand to grant forest clearances to private projects

The Ministry of Environment and Forests (MoEF) has adopted a confrontationist approach with the National Green Tribunal (NGT). In its recent affidavit before the Supreme Court of India, the ministry stated that the tribunal has “exceeded its brief” and caused it “embarrassment” in Parliament. The affidavit was withdrawn and time sought to file a proper affidavit. The Supreme Court even threatened to stay the operation of the tribunal in view of the hostile approach of the MoEF towards the green body.

It is therefore necessary to trace the reasons for this “conflict” and “embarrassment” and the implications of staying the operation of the tribunal.

Specialised body

The NGT is a Statutory Tribunal and was created by Parliament as a specialised judicial and technical body to adjudicate on environmental disputes and issues. The enactment of the NGT Act, 2010 was itself an outcome of a long process and struggle. The Supreme Court in a number of cases highlighted the difficulty faced by judges in adjudicating on complex environmental cases and laid emphasis on the need to set up a specialised environmental court. Though the credit for enacting the NGT Act, 2010 goes to the then Environment Minister Jairam Ramesh, it became functional only because of repeated directions of the Supreme Court while hearing the Special Leave Petition titled Union of India versus Vimal Bhai (SLP No 12065 of 2009). The recent developments and the hostile approach of the MoEF towards the NGT seems to suggest that the aim of Mr. Ramesh’s successor (Jayanthi Natrajan) is to dismantle the tribunal.

Track record

Despite all the hurdles including financial and administrative bottlenecks, the NGT has emerged as a new hope for the environmental movement in the country. The NGT Act is no less important than the Right to Information Act, 2005, the Right to Food Bill and the National Rural Employment Guarantee Act, 2005. Environmental degradation affects livelihoods, health and access to food. Environmental struggles most often aim at ensuring that information about proposed projects (Environment Impact Assessment reports), air and water quality data is shared with the people. Over the last two years, the NGT has delivered 185 judgments on various environmental issues. The MoEF together with the Central Ground Water Authority, the Central Pollution Control Board and the various State governments have been forced to wake up from years of slumber and total inactivity. One of the most significant powers of the NGT is the capacity to do “merit review” as opposed to only “judicial review.” Under the writ jurisdiction of the High Court or Supreme Court, the courts are essentially concerned with the “decision making process” and not the “merits” of the decision. As a merit court, the NGT becomes the primary decision maker and therefore can undertake an in-depth scrutiny into not just the law but also the technical basis of a particular decision.

A new jurisprudence on the environment is steadily emerging in the country and is an example for the rest of the world. Today, nearly 50-60 Appeals and Applications are heard each working day before the various benches of the NGT. At a time when Environment Impact Assessments reports are a blind “copy and paste,” job where public hearings are a “mockery” and non-compliance with environmental rules and regulations are the order of the day, the NGT serves to restore faith in the “Rule of law.”

CAG report

Why is the MoEF not keen to see the NGT functioning? The answer is quite simple. The conduct of the ministry as well as the various statutory bodies on the environment has never been called into question in a systematic manner and its decisions have rarely been subject to any “merit review.” This has given a free hand to the various expert committees, boards and the officials as well as the Minister to arbitrarily grant approval to projects disregarding the environmental and social impact of projects and most often in violation of laws and rules. The recent report of the Comptroller and Auditor General of India (CAG) clearly proves the casual manner in which forest clearance issues have been dealt with by the MoEF as well as the State governments mostly to favour private companies. History tells us that the MoEF’s designs have largely succeeded. Post the Bhopal disaster, the National Environment Tribunal Act was passed by Parliament in 1995 to fix liability on a polluter. It never became operational. The National Environmental Appellate Authority set up through an Act of Parliament in 1997 was made defunct by the MoEF and led the Delhi High Court to conclude that the intention of Parliament to set up an effective grievances redressal forum has been defeated.

The recent affidavit is a wake-up call to those trying to protect the environment, the rights of communities as well as ensuring greater accountability in the government’s functioning. If the MoEF succeeds in its design, it would mean its third success in stalling a parliamentary legislation meant to keep a watch on its activities and decisions and protecting the rights of communities.

(Ritwick Dutta is an environmental lawyer and managing trustee of Legal Initiative for Forest and Environment.)

They Walk Among Us – 30 Million People Are Slaves, Half in India


How many slaves work for you? Paradoxically — in 2013 — the question is still very relevant, and you might be surprised by the answer. Depending on where you live, what you buy, what your lifestyle is, you have almost certainly been touched by slavery. Almost nobody is clean.

Modern-day slavery takes many forms: human trafficking, forced and bonded labour, sexual exploitation, domestic servitude and forced marriage. Sadly, the list goes on. But the common denominator of all these crimes is the evil intention to strip human beings of their freedom, and then to use, control and exploit them.

There are currently 29.6 million slaves around the world, more than ever before in history, and roughly equivalent to the population of Australia and Denmark combined. Modern-day slavery is a fast-growing industry worth $32 billion a year, equal to the profit of McDonald’s and Walmart combined. And while back in 1809, the price of a slave — adjusted to today’s value — was $40,000, today it is only $90; that’s how little it costs, in the globalized economy, to buy a human being!

Slavery is a global issue. In some parts of the world people are still being born into hereditary slavery, in others people are trafficked from one state to another, have their passports taken away and are enslaved. Modern-day slaves walk among us. You might tip one during your stay at respectable hotels chains around the world, you might speak to them at your nail salon. They look like maids, regular workers, but they are slaves.

It’s a story of debt, fraud and coercion. In the majority of western countries, trafficking is tied to immigration. It’s estimated that every year between 14,500 and 17,500 people are trafficked into the United States. Some enter legally, with a visa and a job. But that job is subcontracted, hiding the harsh reality of abuse and exploitation behind the façade of a clean uniform. Once inside the country, those trafficked are forced to repay recruitment fees, the cost of their travel, accommodation bills. As a result, they end up working an incredible number of hours, seven days a week, without being paid, in the impossible attempt to repay a debt which will never be settled. That’s how many become slaves.

Modern-day slaves are found in unexpected places. In recent years, Washington, the capital of the free world, has been rocked by allegations of human trafficking by diplomats working at embassies and international institutions. In 2007, a young Tanzanian woman who had been brought to the United States by a diplomat as a domestic worker, made headlines when she sued her former employer and his wife for allegedly trafficking her and using her for forced labour. The woman, who spoke no English, was promised a job as a housekeeper with a fair wage, but instead was forced to work 16-hour days without pay. She had her passport taken away, was not allowed to leave the house on her own, and was denied medical treatment. The woman eventually won over $1 million in compensation but her former abusers returned to East Africa and never paid her. Diplomats are not immune to shame.

There are currently 880,000 people engaged in forced labour across the European Union. 58 percent are women, the majority victims of sexual exploitation — the most lucrative form of slavery. In the UK the number of slaves is believed to be 4,600. Victims are mostly trafficked from Africa, but also Asia and Eastern Europe. Most of them cross the border illegally, and once in the UK are forced mainly into sex work (62 percent) and domestic servitude (25 percent), but are also exploited though complex schemes involving welfare benefit fraud. In the UK, slaves work in restaurants, nail salons, door-to-door leafleting. A big role is played by the Vietnamese drug barons who, according to DrugScope, control two-thirds of Britain’s cannabis trade. They use nail salons as brothels and places to launder money raised from the sale of cannabis grown on suburban UK farms. Farms run by slaves.

The difficulty with slavery is that it is a crime not well understood, and often concealed under the justification of custom, ethnicity, even religion. In Mauritania 4 percent of the population is presently enslaved. Adults and their descendants are the full property of masters who can buy and sell them. They are born into slavery and are not allowed any possessions. They are the possession, predominantly, of the White Moors, one of the three ethnic groups of Mauritanian society. Enforcing anti-slavery laws here remains extremely challenging since only victims are allowed to file a complaint. Slaves are illiterate and do not know their rights. The government continues to deny the scale of the problem, and foreign journalists risk arrest for investigating the issue. This year only two cases of slavery have been reported so far.

India — with a population of over 1.2 billion — has more slaves than any other country in the world: 14.7 million. With extreme poverty culturally tolerated, the practice of caste and debt bondage is endemic. Sexual exploitation of women and children is also widespread, although India has ratified a number of key international treaties aimed at eradicating slavery. Enforcement of such laws remains sporadic and weak, and many NGOs on the ground have reported a lack of support for their efforts to free people from forced labour.

Global statistics show a common trend: slavery is a silent crime. Victims don’t come forward. Across the EU the number of convictions for human trafficking has dropped by 13 percent in the past few years; and the latest US Trafficking in Person Report shows that in 2012, only 7,705 prosecutions took place, despite the number of identified victims reaching 46,570.

There are many reasons for the small number of prosecutions. Victims often don’t see themselves as such, especially victims of sexual exploitation, who tend to develop a psychological dependence on their abuser. Victims of domestic slavery are often foreign nationals who live in conditions of house arrest, unable to speak the language of the country they are in. Then there’s fear, that fear resulting from total annihilation of self-esteem. Slavery is all about controlling people. Some of the things the traffickers make people do are all about humiliating them and trying to control them: you see human beings with the name of their owner tattooed on their body, reminding one of the Nazi period. It’s a lethal mix of abuse of power and corruption, and it thrives in poverty.

Each of us, not just law enforcement agents, has a role to play in the battle against human trafficking. Teachers, doctors, bus drivers, flight attendants, government officials of all ranks, everyone who uses hotels, restaurants, nail salons is potentially in contact with modern-day slaves, and has a moral responsibility to come forward. As consumers we have the duty to demand to know more about the origin of the products we buy. We must not turn a blind eye.

Businesses must demand real transparency from sub-contractors, assessing the real working conditions of those in remote supply chains. On the other hand, governments should take bolder action to make businesses accountable, fining the hiring firms for violations of national employment laws committed by their subcontractors. This is the innovative approach recently adopted by the State of California.

Governments must consider slavery as a crime, not an immigration issue. Victims must be reintegrated in society with the necessary economic and psychological support. Earlier this year, in the UK, three very young victims of human trafficking were prosecuted, convicted and jailed for the very crimes their traffickers forced them to commit. In the words of the barrister who fought, successfully, to have the sentence overturned, this was a ‘miscarriage of justice’. In the United States, a first victory has been won as victims of human trafficking now have the right to stay in the country while suing their perpetrators, using U.S. law.

Lawyers must work to ensure that all victims of human trafficking have access to free legal representation, compensation and restitution of a sum of money equivalent to their unpaid work. A groundbreaking approach has been taken by the Netherlands, where since 2011 Dutch authorities have eight months to collect the restitution money. If they fail, the government has committed itself to paying restitutions directly to all victims.

Governments must also end the culture of impunity for the traffickers and the offenders, whoever they are. Slavery should trump all diplomatic immunities, and should be fought on an international basis, helped by all parties who can contribute to successful prosecutions.

The financial industry must be vigilant. Earlier this year the Thomson Reuters Foundation and the Manhattan District Attorney Cyrus R. Vance Jr, launched an international financial working group against human trafficking. The group — which includes the biggest banks and financial institutions in the United States — has developed criteria to identify financial transactions that are linked to human trafficking and is working with law enforcement agencies to share and improve these processes.

The fight against human trafficking is one, which – as a civilization – we cannot afford to lose. Slavery should belong to the history books. Let’s all work together to put the business of human trafficking out of business.

Human trafficking is one of the themes at the forthcoming Trust Women Conference in London, Dec 3-4. Organised by the Thomson Reuters Foundation and the International New York Times, Trust Women is the conference dedicated to putting the rule of law behind women’s rights.

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