Law Resoursce India New Delhi 04/11/2014
In view of the order dated 26 July 2012 in Criminal Appeal 135/2010 – Budhadev Karmaskar vs State of West Bengal & Ors the present debate and controversy stirred up by the NCW Chairperson Lalita Kumarmanglam on Legalization of sex trade is a contempt of Supreme Court Orders. The National Commission of Women has been a party to the case and are aware of the Bench clarification dated 26 July 2012.
Speaking to the Times Of India she said that “I will only speak about the issue after the national consultation on November 8,” . “It is my personal and professional view that sex work should be legalized but the commission must make an informed decision and I am open to listening to all views. I will be using a lot of time next week to hold informal consultations on the issue, talking to all advocacy groups and others to understand what their apprehensions are.”
On October 28, Kumaramangalam told a daily that legalization will bring down trafficking of women and lower the incidence of HIV and other sexually-transmitted diseases. She also said she intends to put forth the proposal at the November 8 meet of the SC appointed Panel.
Bharti Dey of Durbar Mahila which supports the Legalisation Debate has stated “Police very often get paid to let off traffickers. Regulation will decriminalize the trade,” says Dey, whose organization currently runs self-regulation units and has sent at least eight traffickers to jail. She also points out that many of those entering the profession are extremely poor, have few options and know what they are getting into. “But they make it to our communities through traffickers and middlemen. Legalizing will remove these middlemen,” she says.
Supreme Court Lawyer and President of Shakti Vahini Ravi Kant while opposing the statement of the NCW Chairperson statement stated “Prostitution is Organised Crime and Violation of Fundamental Rights. Trafficking and sexual slavery is worst form of Human Rights Violation. No women joins this inhuman trade out of choice. More then 95% of the women have been trafficked and forced into the sex trade”.
He further elaborated that ” Immoral Traffic Prevention Act 1956 criminalises the organised crime of Prostitution. Organised Prostitution creates a demand for young girls for the brothels which is met by trafficking of minor girls from across the Country.Giving Prostituion a legal status will be giving boost to demand of young minor girls who will be trafficked. In countries where such legalization has happened it has led to exploitation of women and girls and also commodification of women bodies.
He added that there here is no doubt that women who have been caught in the sex trade need access to all Government facilities and schemes and efforts must be made to see that they join the mainstream and are properly rehabilitated. Also those who indulge in this organised crime of human trafficking which leads to kidnapping of young girls from across the country need to be properly punished.
On the role of the Governmental agencies he lamented “The sad part is that inspite of various recommendations from the Supreme Court in various cases no geniune efforts have been made by any Government to see that this social malice which results from Organised Crime be eradicated”.
Kant further stated “The statement of the National Commission for Women Chairperson for legalising prostitution is deplorable. It is time that the Government of India ammends the Immoral Traffic Prevention Act and brings in harsher punishments to the people who are involved in this organised crime”.
The Supreme Court in its order dated 26 July 2012 has clarified that its endeavor to provide right to life and access to governmental schemes should not be construed as an encouragement to prostitution. The clarification had come from a bench of Justices Altamas Kabir and Gyan Sudha Mishra after additional solicitor general P P Malhotra had drawn the court’s attention to its July 19 order in which it had sought suggestions from the SC-constituted panel on creating “conditions conducive for sex workers who wish to continue working as sex workers with dignity”.
Malhotra had said there was a danger of the order being construed as an incentive to indulge in an activity that had been termed as an offence under the Immoral Traffic Prevention Act, 1956.
The Judges on the bench passed had passed separate orders, but both meant to clarify that the panel would recommend steps to create “conditions conducive for sex workers to live with dignity as per provisions of the Constitution Article 21”.
Justice Kabir added a precautionary clarification — “The above modification should not be construed to mean any attempt made to encourage prostitution.”
Hearing the Petition Justice Mishra had clarified, “I prefer to add…sex workers have a right to live with dignity but the collective endeavour must be on part of the sex workers to give up the trade in case they are given alternate platform.”
The Detailed Order of the Bench Dated 26 /07/2012 is as follows :
1. CRLMP.NO.12415 of 2012, has been filed on behalf of the Union of India, for modification of the order passed by this Court on 19th July, 2011, referring certain issues to the Committee which had been constituted by the said order itself.
2. The first modification sought by the Union of India is for deletion of the Durbar Mahila Samanwaya Samiti, from the panel. The second modification sought is with regard to the third term of reference, which reads as follows:-
(3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.
3. Appearing in support of the application, the learned ASG, Mr. P.P. Malhotra, submitted that the Samiti in question had been actively advocating the revocation of the Immoral Traffic(Prevention) Act, 1956, and had also been advocating the recognition of sex trade being continued by sex workers. The learned ASG submitted that the continuance of such Samiti in the panel is giving a wrong impression to the public that the Union of India was also inclined to think on similar lines. The learned ASG submitted that this wrong impression should be removed by excluding the Samiti from the panel.
4. As far as the second issue is concerned, the learned ASG submitted that wording of such reference could be suitably modified so as not to give an impression that the Union of India was in favour of encouraging the sex workers, in contravention of the provisions of the aforesaid Act.
5. We have heard Mr. Pradip Ghosh, learned senior advocate and Chairman of the Committee, as also learned senior advocate, Mr. Jayant Bhushan, who is also a member of the Committee and its co- Chairman and Mr. Grover, learned senior advocate, on the issue.
6. It has been submitted by Mr. Ghosh that at the meetings of the Committee, the members of the Samiti had contributed a great deal towards the understanding of the problems of the sex workers and it was not as if the said Samiti was encouraging sex trade, but were providing valuable inputs into the problems being faced by people engaged in the trade. Mr. Ghosh, Mr. Grover, and Mr. Bhushan, in one voice urged that the presence of the Samiti in the Committee was necessary even to function as a sounding board in respect of the problems that are faced by this marginalised and unfortunate section of society.
7. We agree with the submissions made by Mr. Ghosh, Mr. Grover and Mr. Bhushan, learned senior counsel, and are not, therefore, inclined to delete the Samiti from the Committee, as prayed for by the Union of India, and such prayer is rejected.
8. As to the second issue, it will not in any way make any difference to the terms of reference, if the wording of the third term of reference, is modified to the following effect:-
“Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution.”
9. The above modification, should not, however, be construed to mean that by this order, any attempt is being made to encourage prostitution in any way.
10. CRLMP.NO.12415 of 2012, is, therefore, disposed of in term of the aforesaid order.
11. Let this matter now be listed for consideration of the Sixth and Seventh Interim Reports, filed by the Committee, on 22nd August, 2012, at 3.00 p.m.
12. Let this Bench be reconstituted on the said date and time for the aforesaid purpose.
.………………J. (ALTAMAS KABIR) NEW DELHI; JULY 26, 2012.
1. While concurring with the views of my learned brother Justice Altamas Kabir, I prefer to add in regard to the second issue that this Court should not be misunderstood to encourage the practice of flesh trade or advocate the recognition of sex trade merely because it has raised the issue to emphasize the rehabilitation aspect of the sex workers, for which this Court had taken the initiative right at the threshold. I consider this essential in order to allay any apprehension which prompted the Union of India to move this application for modification, by highlighting that the sex workers although have a right to live with dignity as the society is aware that they are forced to continue with this trade under compulsions since they have no alternative source of livelihood, collective endeavour should be there on the part of the Court and all concerned who have joined this cause as also the sex workers themselves to give up this heinous profession of flesh trade by providing the destitute and physically abused women an alternative forum for employment and resettlement in order to be able to rehabilitate themselves. I, therefore, wish to reiterate by way of abundant caution that this Court should not be perceived to advocate the recognition of sex trade or promote the cause of prostitution in any form and manner even when it had stated earlier in its terms of reference regarding conditions conducive for sex workers who wish to continue working as sex workers with dignity.
2. Thus, when we modify the earlier term of reference and state regarding conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution, the same may not be interpreted or construed so as to create an impression or draw inference that this Court in any way is encouraging the sex workers to continue with their profession of flesh trade by providing facilities to them when it is merely making an effort to advocate the cause of offering an alternative source of employment to those sex workers who are keen for rehabilitation. When we say conditions conducive for sex workers to live with dignity, we unambiguously wish to convey that while the sex workers may be provided alternative source of employment for their rehabilitation to live life with dignity, it will have to be understood in the right perspective as we cannot direct the Union of India or the State Authorities to provide facilities to those sex workers who wish to promote their profession of sex trade for earning their livelihood, except of course the basic amenities for a dignified life, as this was certainly not the intention of this Court even when the term of reference was framed earlier.
3. We, therefore, wish to be understood that we confine ourselves to the efforts for rehabilitation of sex workers which should not be construed as facilitating, providing them assistance or creating conducive conditions to carry on flesh trade for expanding their business in any manner as it cannot be denied that the profession of sex trade is a slur on the dignity of women. Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution be therefore understood in its correct perspective as indicated above.
J (GYAN SUDHA MISRA) New Delhi, July 26, 2012
Because we cannot risk another judicial decision on appointments, writes FALI S. NARIMAN.
In the Constitution of India, 1950, the appointing authority for judges in the higher judiciary is the government of India, acting in the name of the president of India. Judges of the Supreme Court are appointed after consultation with the chief justice of India (CJI) and other judges of the Supreme Court (or high courts) as the appointing authority deems necessary for the purpose; judges of high courts are appointed after consultation with the CJI, the governor of the concerned state and the chief justice of the concerned high court. This simply worded prescription — expressed in Articles 124(2) and 217(1) — worked well in practice for the first two decades. By convention, whosoever the CJI recommended as judge was, almost invariably, appointed; whom the CJI did not recommend was not appointed.
But in 1981, in the S.P. Gupta case, much later known as the “first judge’s case”, a bench of seven judges of the Supreme Court presided over by Justice P.N. Bhagwati held (4:3) that the recommendations of the CJI for judges to be appointed in the higher judiciary were, constitutionally, not binding on the government of India. The (Congress) government, then in office, was delighted. It was now payback time. So when Bhagwati assumed office as CJI, the Congress government, still in office, declined to appoint judges recommended by him, since it was he who had judicially declared (in the S.P. Gupta case) that “consultation” in Article 124 did not mean “concurrence”.
It was much later, with the accumulated experience of the deleterious consequences flowing from the majority judgment in the first judges case, that new faces on the bench decided to take a “fresh look” at Article 124(2). In what has now become known as the “second judges case” (1993), a bench of nine judges held (by a majority, 7:2) that a collegiate opinion of a collectivity of judges was to be preferred to the opinion of the CJI. It also said that if the government did not accept the “recommendation” of the “collegium” (then consisting of the three senior-most judges), it would be presumed that the government had not acted bona fide.
Even after the judgment in the second judges case, recommendations made by the collegium were not made in the spirit in which the new doctrine had been propounded, since the collegiate of the three highest constitutional functionaries (the senior-most judges of the court) could not see eye to eye in the matter of appointment of judges to the higher judiciary. So when (again, by convention) the then senior-most judge, Justice M.M. Punchhi, became the CJI in January 1998 and recommended, with the concurrence of his two senior-most colleagues, that a particular list of five named persons be appointed to fill the vacancies in the highest court (all strictly in accordance with the methodology laid down in the second judges case), the government took exception to some of the names — justifiably, according to disinterested and knowledgeable persons.
But the CJI was adamant. When the government said that some of the names suggested could be accepted, but not all, the CJI said: “It will be all or none.” Apprehending the initiation of contempt proceedings, the government of the day (the NDA government with the BJP in the driving seat) thought it expedient to seek a presidential reference under Article 143 of the Constitution for the advisory opinion of the Supreme Court on certain dicta expressed in the second judges case.
All that ultimately happened after the presidential reference was that the collegiate was enlarged (by judicial diktat) from three to five of the senior-most justices, perhaps on the principle that there was greater safety in larger numbers. Meanwhile, Chief Justice Punchhi demitted office since he had reached the constitutional age of retirement. His successor, along with the four senior-most justices in the collegium, recommended names of appointees, which were accepted. This shows (it is said) that the collegium system worked. The response of lawyers has been, “Yes, but not always in this manner.”
The truth is that the system of recommendation for judicial appointments by a collegium of the five senior-most judges (like that of the three that went before) is not institutionalised: no mechanism is prescribed (by the collegium itself), no office is set up, no data gathered in advance, no criteria evolved as to who among the high court judges — all aspirants to a place in the Supreme Court — should be recommended. There is no reason given as to why a broad consensus among all the justices of the Supreme Court is not to be preferred to the views only of the five senior-most.
The entire system operates ad hoc, based on no principle. And the choice of judges to be recommended has varied in quality with the collegium’s fast-changing composition. The system has failed, according to me and many others. But in the opinion of the judges, including a succession of chief justices of India, it has not. More importantly, the BJP government that is now in office had, as part of the NDA government in 1998, categorically informed the nine-judge bench hearing the presidential reference that it was not seeking a review of the judgment in the second judges case — the judgment that first initiated the novel idea of a “collegium” of senior-most judges.
In this situation, what would be the right thing to do? I believe that before embarking on the new experiment of a broad-based National Judicial Commission, even one loaded with a majority of sitting judges as members, it is imperative that there should be meaningful dialogue between the executive and the collectivity of all the judges of the Supreme Court (represented by its chief justice), so that a mutually acceptable solution can be found. It must be found. Statesmanship is the need of the hour, because we cannot risk another judicial decision. The executive, the judges and the lawyers must resolve to avoid, at all cost, a fourth judges case.
The writer is a constitutional jurist and senior advocate to the Supreme Court
The relationship between “democracy” and “secrecy” has always been debated, and it has been highlighted by the system of judicial appointments. The proposed judicial appointments commission (JAC) seeks to partly answer that question. Under review is the judicial collegium method of appointments, in use since the 1990s (which consists today in the supremacy of five senior-most justices of the Supreme Court, including the chief justice of India), as against the constitutional method in place between the 1950s and the 1990s (where the executive nominated candidates in consultation with the CJI and such other justices as it deemed fit).
Neither method can be said to have failed or succeeded, because the citizen has no way of knowing who the candidates are, how they are selected and why. No empirical study of judicial appointments is possible because the records are not available, and like the electoral nomination of candidates, the right to information does not exist so far as judicial elevations or transfers of high court justices are concerned. Stories in which judges, lawyers, law ministers and journalists tell us about the “system” are abundant, but such anecdotal evidence is hearsay and not ordinarily admissible in a court of law.
In the three judges cases, including a reference for advisory opinion, the court arrogated the power to elevate (and transfer high court) justices through a tortured interpretation of Articles 124 and 217 of the Constitution, by saying that the word “consultation” shall mean the “consent” of the CJI. But a constitutional convention giving primacy to the CJI was already in place — according to the law secretary’s affidavit, only seven out of some 348 recommendations were negatived by the Central government. If the system of executive nomination has worked so well, why the change?
Are the CJIs, in some cases, constrained to approve executive-dominated elevations? Justice Markandey Katju’s recent expose suggests that the CJI is vulnerable to alleged manoeuvring by the prime minister’s office. The justices in the judges cases seemed to think so, given that they accorded primacy first to the CJI, then to two judges and the CJI, and finally to a collegium of five justices.
To its credit, the UPA government introduced nearly half a dozen bills for judicial appointments and transfers, and contemplated a slew of measures on judicial standards, accountability, non-impeachment offences and transparency of the judicial process. The new government is espousing the cause; it clearly disfavours the political bravado that inspired a Union law minister to say that he had justices in his pockets; this is no longer the signature tune of modern governance. Rather, the state now wants a JAC that would avoid the vices of politicians appointing judges, and of the justices appointing their own.
This is welcome, as is the agreement that the senior-most judge may only be the CJI (at least till 2021, when even reforms contemplating a minimum tenure for the CJI may occur). The many UPA bills made the CJI the chair of the JAC, converged in making two senior-most justices of the Supreme Court members, provided a
process to identify two eminent citizens, and finally culminated in the 120th constitutional amendment bill, which too lapsed in the Lok Sabha. The NDA is likely to revive the amendment and bill in the new Lok Sabha. The text of the bills, the debates in Parliament as they occurred, the Law Commission’s report and other reports make compulsory, if dull, reading on this vexed subject.
In a consultation with eminent jurists convened by the Union law minister on July 28, while most went to the extent of saying that the judicial collegium had failed and agreed that the system of appointments needed to be changed, all the “jurists” endorsed the “dominance” of the CJI and his senior companions. If the advice of the CJI and his companion justices is to have an “edge” or “dominance”, how is it to be achieved? Should the JAC then adopt a weighted voting procedure, not unlike the United Nations Security Council? If the JAC is to decide by consensus, what will happen if the justices do not yield? What if some other eminent members, including the Union law minister, remain recalcitrant? And how much weight, if any, should be given to the Intelligence Bureau reports on prospective candidates?
A greater fundamental difficulty is posed by the basic structure doctrine. I have previously argued in these pages (‘Just governance’, IE, June 10) and at a New Delhi consultation that the best course is to obtain an advisory opinion from the Supreme Court on a draft amendment bill, considering whether abolition of the judicial collegium offends the basic structure and if it does, how the alternate JAC could be made constitutionally compatible. Already, the CJI has made it clear that the matter can only be settled in a judicial opinion; since the judges cases were decided judicially, no question arises of a mere administrative order by the court.
The court may advise the president that the basic structure is not violated or that certain changes to the JAC could save it from the indictment of offending it. This will result in a healthy dialogue on system change and collaboration, rather than an avoidable conflict between Parliament and the Supreme Court.
The basic structure here is the independence of the judiciary and judicial review. It is this power that ultimately decides the essential features of the Constitution. Appointments and transfers of justices definitely affect the basic structure, and the court should have a say in it. The executive may present evidence before the justices on why the judicial architecture needs to be reformed, and how the judicial collegium has “failed” the nation. Since almost all the leaders of the Bar believe that the judicial collegium has “failed” in drawing the best and brightest to become justices, they should have little difficulty in persuading the court.
The argument against an advisory opinion is that it would take undue time. But the 2G reference was relatively expeditiously disposed; the non-collegium justices would be justified in accelerating the opinion. In any event, the time taken for the reference will be democratically well-invested. The alternative of an adversarial proceeding, where the court may continue via a stay order to make appointments and transfers, scarcely advances the cause. Even under Kesavananda Bharati vs State of Kerala (which enshrined the basic structure doctrine), Parliament has plenary powers to amend the Constitution. However, enacting the JAC without consulting the court may invite judicial wrath, and even lead to a constitutional crisis.
The writer is professor of law, University of Warwick, and former vice chancellor of the Universities of South Gujarat and Delhi
The Supreme Court has taken the position that it cannot be expected to abandon its role of being the guardian of the fundamental rights of all persons within the territory of India
In a span of about 45 days, the Supreme Court of India has delivered two judgments that have received diametrically opposite reactions — one will count among the Court’s most poorly reasoned judgments while the other is likely to be heralded as one of its finest for its clarity and fidelity to earlier decisions. The contrast between Justice Singhvi’s judgment upholding the criminalisation of homosexuality and that of Chief Justice Sathasivam affirming the rights of mercy-rejected death row prisoners could not be starker. After Justices Singhvi and Mukhopadhaya upheld the constitutionality of Section 377 of the IPC in Suresh Kumar Koushal, the credibility of the Court as a counter-majoritarian institution had suffered a serious setback. However, the Chief Justice, along with Justices Ranjan Gogoi and Shiva Kirti Singh, has done a remarkable job in partly restoring the credibility of the Court through a thoroughly reasoned judgment in Shatrughan Chauhan v Union of India. In Chauhan, the Court has concluded that inordinate delay in the rejection of mercy petitions of death row convicts amounted to torture and that it is a sufficient basis, in and of itself, to commute a sentence of death to life imprisonment. It is not just about the contrast in outcomes in these two cases but the processes adopted by these two judgments will go a long way in determining the position they will occupy in the judicial history of this country.
Any comparison between the two judgments must begin by acknowledging complexities involved in both cases. The legal response to homosexuality in India through Section 377 has been on the statute books for over 150 years. Though attitudes towards homosexuality have undergone significant changes, it would only be fair to acknowledge that it is nonetheless a deeply divisive issue in India. It would also be a fair assessment that the death penalty and treatment that must be accorded to those sentenced to death are extremely polarising issues. The case before the Supreme Court in Chauhan was particularly delicate because the President had rejected mercy to all 15 prisoners before the Court. However, all 15 prisoners had returned to the Supreme Court seeking enforcement of their right to life on the ground that their suffering on death row due to the inordinate delay by the executive (ranging between 11 to 1.5 years) entitled them to commutation of their death sentence. It must also be noted that the Supreme Court in both cases was being asked to intervene in situations where other organs of the state had already made certain determinations. In Koushal, the legislature had made the political determination that homosexuality would be criminalised by not repealing Section 377. Similarly, in Chauhan, the executive, through the President of India, had rejected all the mercy petitions.
Though the challenges were similar in many ways, there is an unbelievable contrast in the manner in which the Supreme Court responded. In Koushal, the judgment authored by Justice Singhvi does not address the legal issues that were at the heart of the constitutional challenges to Section 377. There are the poorly argued sections on equality under Article 14 and the right to life under Article 21 while completely ignoring the arguments on the protection against discrimination under Article 15. The shortcomings of Koushal are evident when it is compared to the judgment of the Delhi High Court on Section 377 in Naz Foundation. There are established constitutional doctrines to test whether a provision of law is discriminatory and violates the right to equality under Articles 14 and 15 of the Constitution, none of which finds any serious engagement in Koushal. None of this is about whether one supports Section 377 or not. It is about adopting a sound judicial technique — it is about identifying precise and relevant questions; it is about applying constitutional doctrines to those questions in a rigorous manner; it is about reasoned conclusions. Rights adjudication is not about judges merely taking a decision and that is what distinguishes them from politicians. Unfortunately, the judgment in Koushal fails on all these grounds. More than the unacceptable outcome, what must worry us more is that the judgment in Koushal reads like a thinly veiled political decision.
However, the judgment in Chauhan articulates a very difficult legal issue precisely and clarifies the decision of a five-judge bench in Triveniben (1989) on it. While clarifying and relying on Triveniben, there is thorough constitutional reasoning in Chauhan that led the Court to come to the conclusion that inordinate delay in disposing of mercy petitions amounts to torture and that the nature of the crime must have no relevance in that determination. The issue about the nature of the crime was particularly important in the context of the Supreme Court’s decision in Bhullar. In Bhullar, the Supreme Court had concluded that those sentenced to death for terrorist offences could not invoke the argument about inordinate delay in disposing of mercy petitions due to the nature of crimes. While relying on Triveniben to come to the conclusion that the classification of terrorist and non-terrorist offences in the context of inordinate delay in disposing of mercy petitions is constitutionally invalid, the judges, in Chauhan,have not created new jurisprudence and have only clarified the content and application of earlier judgments. There is tremendous judicial skill in the manner in which they have analysed earlier judgments and applied constitutional doctrines.
Challenges and responses
The most obvious difference in the two judgments is the approach to the target groups concerned. In Koushal, the perception that only very few homosexuals have been prosecuted under Section 377 was of tremendous significance to the judges. A numerical approach to rights enforcement is rather baffling and quite alien to the jurisprudence developed by the Indian Supreme Court. In Chauhan, despite dealing with a very small group of individuals (those death row prisoners whose mercy petitions have been rejected) and in particular a group which is often hated and reviled, the judges emphatically held that the protections in the Constitution are available to every individual, without exception. Perhaps the greatest merit of the decision in Chauhan is the rejection of the argument that retribution or strong moral disapproval of actions by death row prisoners can be used to deny them constitutionally protected rights.
As far as institutional relations between different organs of the State are concerned, the Supreme Court, in Koushal, ruled that Parliament was free to amend Section 377 and decriminalise homosexuality. However, if the law were to stand, the judges felt there was no constitutional infirmity. There is a palpable reluctance to meaningfully scrutinise a law on a divisive issue where the political class has made a choice. However, in Chauhan, the Supreme Court squarely addresses the warning that the Court might be overstepping its jurisdiction because the President had already rejected the mercy petitions of all 15 prisoners. The Court is clear that it is not questioning the power of the President to reject mercy petitions but is rather interested and competent to go into the issue of whether the executive violated the rights of the death row convicts due to the inordinate delay. The Supreme Court has taken the position that it cannot be expected to abandon its role of being the guardian of the fundamental rights of all persons within the territory of India, whoever they might be.
The Supreme Court, in Chauhan, had the courage to undertake significant course correction by clarifying the ruling in Triveniben. As efforts to decriminalise homosexuality gather pace again with the scheduled review of Koushal this week, the Supreme Court must see the fact that critical questions about the constitutionality of Section 377 have not been addressed in Koushal. If the review petition does not result in correction of the errors in Koushal, the Chief Justice of India (due to retire in April 2014) will find himself in an interesting position. After having delivered a judgment that has gone a long way to restore the credibility of the Court after Koushal, the Chief Justice will have to decide if he wants to refer the constitutionality of Section 377 to a larger bench. Given the intensity of his commitment to the rule of law as displayed in Chauhan, it would be surprising if Chief Justice Sathasivam lets the poorly reasoned judgment in Koushal be a blot on his tenure as Chief Justice of India. He only needs to look as far as the Delhi High Court’s judgment on Section 377 in Naz Foundation to realise what an alternative legacy could look like.
(Anup Surendranath is an assistant professor of law and director of the Death Penalty Research Project at the National Law University, Delhi.)
The verdict of death for the bestial gang rape in Delhi last December is based on Supreme Court judgments, which stipulate that capital punishment will be imposed in “the rarest of rare” cases, where the community’s “collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty” because of the abhorrent nature of the crime, which would include “the manner of the commission of the murder,” for instance, “if it was committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner,” or where the victim was “subjected to inhuman acts of torture or cruelty in order to bring about his or her death.”
There are several dangers in a process in which a life is taken because that is what the community wants, as in the Roman amphitheatre, where the mob decided if the defeated gladiator should die. Apart from turning the judiciary into a khap panchayat, how does this august fraternity commune with the community, or divine that its conscience wants blood? In the 21st century, flooded as it is with 24-hour television and social media on tap, outrage can be manufactured, reality distorted. Even when, as after the Delhi crime, the revulsion was real and widespread, how does the judiciary determine that those who were shocked would only recover with the deaths of those who had shocked them? Diplomats, who must assess the mood of the country they are posted in, take it as given that the media only partially reflects it, since the strident few drown out the diffident majority. An Embassy spreads its tentacles wide, speaking to and gauging the mood of people in different sectors, levels and locations, to understand what they really want. No judge can do this. What a judge takes as the collective conscience of the community can only be the slant carried by the media. To base decisions on life and death on this is injudicious.
Secondly, what is the community whose conscience the judge must tap into and channel into a pronouncement of death? For a sessions judge, it will presumably be that of the local community. If that judgment is overturned on appeal, it can either mean that the judge had misread that conscience, or that the High Court felt that the conscience of the larger community of the State did not want blood. If the Supreme Court reinstated the death sentence, this would presumably mean that the national conscience was at one with the local, but that of the State concerned was out of step with both. Which is the segment of the community to whose conscience judges must defer? Logically, it should be the one most affected, which would imply that no sentence of death from a sessions court should be overturned. How does a judge in the State or Central capital determine that the local community had not been galvanised into bloodlust?
But what would happen, for instance, in the cases that should shortly come to trial for the murders in the recent communal violence in U.P.? The most appalling cruelty is committed during communal riots. One of the criteria invoked in the Delhi judgment to justify the death sentence, the barbaric and revolting nature of the murder, would apply. In these cases, however there would be no collective conscience to consult, since the community is split in two. Each half would demand the death sentence for the murderers from the other community, but mourn its own murderers as martyrs if they were hanged. In these cases, therefore, where one of the criteria laid down by the Supreme Court conflicts with the other, which will prevail?
Nor should we forget that, while the use of torture to bring about death is rare in crimes committed by individuals, it is routinely practised by the army and the paramilitary in States wracked by political violence. Unaccounted numbers of Kashmiris disappeared into the maws of Papa-II, the infamous torture chamber run by the paramilitary in Srinagar. Those bodies that were recovered bore marks of the most terrible torture. Very large numbers disappeared forever. To say that the collective conscience of the Kashmiri Muslim community is merely shocked would be an insult. It has lived with rage, pain and a searing sense of injustice for two decades; its tormenters have escaped with impunity, because the collective conscience of the rest of the country has not even been stirred.
Across our subcontinent, in Manipur, similar cases abound, including that of Thangjam Manorama, taken from her home in Imphal late at night by a unit of the Assam Rifles, led by two Majors, tortured with a knife, forced into her genitals in the presence of her family, tortured even more brutally later, raped and shot. Her body was not received by dignitaries, it was found lying in a ditch. There have been many other killings like this, but this one, like the gang rape case in Delhi, set off a storm, leading to a “naked protest” by Manipuri women in front of the paramilitary camp. If any crime matched both the criteria invoked in the Delhi judgment, the bestiality of the murder and the collective indignation it produced, this one did. However, the officers and men responsible are immune because the army’s Court of Enquiry held they were all innocent.
Justice not blind
These communities, and the tribals in the naxal belt, will argue bitterly that justice is not blind; it sees who you are and where you come from and, in its scales, the collective conscience of the community only registers when it has political weight. If you are a Kashmiri or a Manipuri, your shock is gossamer.
One of the crimes that the Supreme Court has laid down as likely to shock the collective conscience of the community is a “murder committed in the course of betrayal of the motherland.” It appears murders committed in its ostensible defence do not shock. Patriotism is the last refuge of the serial torturer. If he walks free, though, why should others hang?
There is a further danger. Because public opinion is manipulated with modern technology, the outrage which the judiciary will interpret as an indignation that must be assuaged with blood can only be provoked by the technically adept, or those with the money to influence the media. The men sentenced to death in Delhi, and those hanged over the last year, were mostly from the poorest and most vulnerable sections of society. Neither they nor their families had the financial or technical means to harness the media or the social media in their defence. There is, therefore, an inevitable class bias built into a process where a judge pronounces the verdict of death on the basis of a public outpouring of rage, which the accused have no means of contesting.
The brutality that brings their crimes into the ambit of the rarest of rare is bred into their lives. They have gone to bed hungry as children, suffered illnesses without medicine, defecated in the open, been savaged on the whims of adults, treated like dirt. Compassion has never touched them. Life has beaten sensitivity out of them. Men forced to live like brutes will kill like brutes. When these men, society’s victims, find a victim, they take a lifetime’s frustrations out on him or her. Their murders and rapes are unlikely to be refined. Their brutality might appal a court and nauseate the middle class, by whose standards they are judged, but it is a product of what the community has made of them. This is what should shock the collective conscience of the community.
Lastly, and most troublingly, if a man is to be hanged because the judge feels that the collective conscience is so shocked that it will expect him to inflict the death penalty, can a trial be fair, with the accused presumed to be innocent until he is proven guilty? If, before the trial starts, society has already made up its mind, in the judge’s view, that it will only be satisfied with the death penalty, it has also determined who the guilty are. It is hard to believe that a judge can hear a case entirely on merits, and take popular sentiment into account only at the verdict. On the contrary, if it is now the law that a judge must impose the death penalty in cases where he has concluded that the community demands it, he would be shirking his duty if he were to absolve the men on trial, denying the community, whose servant he is, the satisfaction of a human sacrifice.
When the Supreme Court decreed that the death penalty should be imposed only in the rarest of rare cases, it tried, humanely and honourably, to prevent a rash of judicial killings, but the criteria it has laid down inherently lead to decisions that are, in every sense, fatally subjective. The road to the gallows might be paved with its good intentions, but on matters of life and death, the law cannot be so cruelly flawed.
Tarquin, Auden famously wrote, was ravished by his post-coital sadness. Is the “community” in India ever choked by a post-garroting remorse? Conscience is the uncomfortable reminder that we have done something wrong.
In a nation that aspires to be a modern democracy and claims to be a modern incarnation of the most ancient living civilisation, the death penalty is a barbaric anomaly. It is time the collective conscience of the community repudiated it.
(Satyabrata Pal is a Member of the National Human Rights Commission. These views are personal)
In a landmark verdict, the Supreme Court on Friday held that citizens have right to cast negative vote rejecting all candidates contesting polls, a decision which would encourage people not satisfied with contestants to turn up for voting.
The apex court directed the Election Commission to provide ‘none of the above options’ at the end of the list of candidates in electronic voting machines (EVMs) and ballot papers to allow voters to reject those contesting polls.
A bench headed by Chief Justice P Sathasivam said that negative voting would foster purity and vibrancy of elections and ensure wide participation as people who are not satisfied with the candidates in the fray would also turn up to express their opinion rejecting contestants.
It said that the concept of negative voting would bring a systemic change in the election process as the political parties will be forced to project clean candidates in polls.
The bench noted that the concept of negative voting is prevalent in 13 countries and even in India, parliamentarians are given an option to press the button for abstaining while voting takes place in the House.
The court said right to reject candidates in elections is part of fundamental right to freedom of speech and expression given by the Constitution to Indian citizens.
It said that democracy is all about choice and significance of right of citizens to cast negative voting is massive.
With the concept of negative voting, the voters who are dissatisfied with the candidates in the fray would turn up in large number to express their opinion which would put unscrupulous elements and impersonators out of the polls, it said.
The bench, while reading out the operative portion of the judgement, did not throw light on a situation in case the votes cast under no option head outnumber the votes got by the candidates.
It said that secrecy of votes cast under the no option category must be maintained by the Election Commission.
The court passed the order on a PIL filed by an NGO, People’s Union for Civil Liberties (PUCL) which had submitted that voters be given the right to negative voting.
Agreeing with the NGO’s plea, the bench passed the path-breaking verdict and introduced the concept of negative voting in the election process, saying that it would further empower the voters in exercising their franchise.
The latest verdict is part of series of judgements passed by the apex court on the election process.
Earlier, the apex court had restrained people in custody from contesting elections.
The apex court has also ruled that MPs and MLAs would stand disqualified after being convicted of serious crimes.
The government has brought an ordinance seeking to negate the court’s judgement striking down a provision in the electoral law that protected convicted lawmakers from immediate disqualification.
A two-judge bench of the apex court had felt that the issue on negative voting needed to be adjudicated by a larger bench as there were certain doubts over the interpretation of the ruling passed by a Constitution Bench in the Kuldip Nayar Vs Union of India case relating to a voter’s right.
Under the existing provisions of Rule 49(O) of the Representation of People Act, a voter who after coming to a polling booth does not want to cast his vote, has to inform the presiding officer of his intention not to vote, who in turn would make an entry in the relevant rule book after taking the signature of the said elector.
According to the PUCL, Rule 49(O) was violative of the constitutional provisions guaranteed under Article 19(1)(a) (Freedom of Speech and Expression) and Article 21 (Right to Liberty) and violated the concept of secret ballot.
- Voter has right to negative voting: SC (kashmirthrone.wordpress.com)
- Voter has right to negative voting: SC (thehindu.com)
- SC gives voters right to reject candidates (niticentral.com)
- Voter has right to negative voting: Supreme Court (dnaindia.com)
- Voters have right to reject: Supreme Court (goodgovernanceblog.wordpress.com)
- Supreme Court gives voters right to reject all candidates in a poll (ndtv.com)
- Supreme Court Gives Voters Right to Reject Candidates (indiatimes.com)
- SC recognises right of voters to reject all candidates (ibnlive.in.com)
The comprehensive reforms suggested by Justice Verma and his colleagues will protect the right to dignity, autonomy and freedom of victims of sexual assault and rape
Starting with Tarabai Shinde’s spirited defence of the honour of her sister countrywomen in 1882, women’s movements in India have been marked by persistent and protracted struggles. But despite this rich and varied history, we have in recent weeks found ourselves shocked at the decimation of decades of struggle.
At a time when despair and anger at the futility of hundreds of thousands of women’s lifetimes spent in imagining a world that is safe drive us yet again to the streets; at a time when our daughters get assaulted in the most brutal ways and our sons learn that unimaginable brutality is the only way of becoming men; at a time when we wonder if all that intellectual and political work of crafting frameworks to understand women’s subjugation and loss of liberty through sexual terrorism has remained imprisoned within the covers of books in “women’s studies” libraries; at a time like this, what does it mean to suddenly find that all is not lost and to discover on a winter afternoon that our words and work have cascaded out of our small radical spaces and transformed constitutional common sense?
The Report of the Committee on Amendments to Criminal Law headed by Justice J.S. Verma is our moment of triumph — the triumph of women’s movements in this country. As with all triumphs, there are always some unrealised possibilities, but these do not detract from the fact of the victory.
Rather than confining itself to criminal law relating to rape and sexual assault, the committee has comprehensively set out the constitutional framework within which sexual assault must be located. Perhaps more importantly, it also draws out the political framework within which non-discrimination based on sex must be based and focuses on due diligence by the state in order to achieve this as part of its constitutional obligation, with the Preamble interpreted as inherently speaking to justice for women in every clause.
If capabilities are crucial in order that people realise their full potential, this will be an unattainable goal for women till such time as the state is held accountable for demonstrating a commitment to this goal. Performance audits of all institutions of governance and law and order are seen as an urgent need in this direction.
The focus of the entire exercise is on protecting the right to dignity, autonomy and freedom of victims of sexual assault and rape — with comprehensive reforms suggested in electoral laws, policing, criminal laws and the Armed Forces (Special Powers) Act, 1958, and the provision of safe spaces for women and children.
Arguing that “cultural prejudices must yield to constitutional principles of equality, empathy and respect” (p.55), the committee, in a reiteration of the Naaz Foundation judgment, brings sexual orientation firmly within the meaning of “sex” in Article 15, and underscores the right to liberty, dignity and fundamental rights of all persons irrespective of sex or sexual orientation — and the right of all persons, not just women, against sexual assault.
Reviewing leading cases and echoing the critique of Indian women’s groups and feminist legal scholars — whether in the case of Mathura or even the use of the shame-honour paradigm that has trapped victim-survivors in rape trials and in khap panchayats, the committee observes: “…women have been looped into a vicious cycle of shame and honour as a consequence of which they have been attended with an inherent disability to report crimes of sexual offences against them.”
In terms of the definition of rape, the committee recommends retaining a redefined offence of “rape” within a larger section on “sexual assault” in order to retain the focus on women’s right to integrity, agency and bodily integrity. Rape is redefined as including all forms of non-consensual penetration of sexual nature (p.111). The offence of sexual assault would include all forms of non-consensual, non-penetrative touching of sexual nature. Tracing the history of the marital rape exception in the common law of coverture in England and Wales in the 1700s, the committee unequivocally recommends the removal of the marital rape exception as vital to the recognition of women’s right to autonomy and physical integrity irrespective of marriage or other intimate relationship. Marriage, by this argument, cannot be a valid defence, it is not relevant to the matter of consent and it cannot be a mitigating factor in sentencing in cases of rape. On the other hand, the committee recommended that the age of consent in consensual sex be kept at 16, and other legislation be suitably amended in this regard.
Rights advocates in Kashmir, the States of the North-East, Chhattisgarh, Gujarat and other areas that have witnessed protracted conflict and communal violence have for decades been demanding that sexual violence by the armed forces, police and paramilitary as well as by collective assault by private actors be brought within the meaning of aggravated sexual assault. This has been taken on board with the committee recommending that such forms of sexual assault deserve to be treated as aggravated sexual assault in law (p. 220). Specifically, the committee recommends an amendment in Section 6 of the AFSPA, 1958, removing the requirement of prior sanction where the person has been accused of sexual assault.
Clearly a sensitive and committed police force is indispensable to the interests of justice. But how should this come about? There have been commissions that have recommended reforms, cases that have been fought and won, but impunity reigns supreme. If all the other recommendations of the Committee are carried through, will the government give even a nominal commitment that the chapter on police reforms will be read, leave alone acted on?
The Delhi case
The recent gang rape and death of a young student in Delhi has raised the discussion on the question of sentencing and punishment yet again. The first set of questions had to do with the nature and quantum of punishment. Treading this issue with care, the committee enhances the minimum sentence from seven years to 10 years, with imprisonment for life as the maximum. On the death penalty, the committee has adopted the abolitionist position, in keeping with international standards of human rights, and rejected castration as an option. The second question had to do with the reduction of age in respect of juveniles. Despite the involvement of a juvenile in this incident, women’s groups and child rights groups were united in their view that the age must not be lowered, that the solution did not lie in locking them up young. Given the low rates of recidivism, the committee does not recommend the lowering of the age, recommending instead, comprehensive institutional reform in children’s institutions.
The report contains comprehensive recommendations on amendments in existing criminal law, which cannot be detailed here except in spirit. The significance of the report lies, not so much in its immediate translation into law or its transformation of governance (although these are the most desirable and urgent), but in its pedagogic potential — as providing a new basis for the teaching and learning of the Constitution and criminal law and the centrality of gender to legal pedagogy.
(Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad. Email: firstname.lastname@example.org)
Of all the promises made in the Constitution, the most important are the promises of the ‘right to life’, the ‘right to dignity’, the ‘right to personal liberty’ and the ‘right to bodily integrity and health’. However these promises are yet to be redeemed for women. Rape and other forms of sexual assault,domestic violence,dowry death and honour killings — the most brazen violation of these rights — are a real and daily danger for most women.
The cry that has been reverberating in the streets of the capital — and across the country — from a new and younger generation of citizens is: “We want justice”. It is addressed to us judges and lawyers whose primary responsibility is to protect the rights of the people. The women of this country are no longer willing to tolerate the unconscionable delays in the delivery of justice. It is the sacred duty of judges to prevent violence against women in the home; at the work place and on the streets and hold the perpetrators accountable. What is it that stops courts from securing justice for women? Why has the law not been able to convict the accused when it comes to crime against women? The situation is best summed up by a famous Orwellian quote—’ to see what is in front of one’s nose needs a constant struggle’.
To see the lack of judicial will to get justice for victims of gender-based violence, as stemming from a deeply entrenched prejudice and misogyny in the justice delivery system, including the courts and their judges, is an exercise demanding a constant struggle. It is so much in front of our noses that we, women and men included, legitimise the presence of sexism in our lives and carry it to the corridors of the court and into the courtrooms and into judgements.
This is a part of the Indian reality; from the private sphere of the ‘home’ to the public space like places of work; from the open streets to the corridors of courts playing out in the theatres of justice. Today, the belief in equality is not sincerely held at all. On the contrary, the social system, including the judicial system, is built on a hierarchy along caste and gender lines.
It is no secret that violence against women stems from the deeply unequal relationship between the two sexes in private and public life. It is also no secret that this misogyny is deeply rooted in our society, including within the system of administration of justicefrom investigation to trial, to judgment. A high court judge in Orissa in his judgement once famously held, that it was not possible for a man, acting alone, to rape a woman in good health. There you have it, the distinction between “legitimate” rape and ” illegitimate” rape (to borrow from the infamous comment by Todd Akin) coming from a high court judge.
This is the same thing you hear so often from judges that “women are misusing the law.” They decide what is the legitimate use of the law for women, based on a deeply sexist view of how a woman should behave; what she should desire and how much violence she should tolerate. A casual glance at the kinds of questions a woman is asked in any prosecution of gender- based violence or a reading of judgments of the court will reaffirm this view. On one occasion when a woman lawyer asked for an adjournment, a district judge said, ” I know how you women lawyers make it”. He was rewarded by being appointed to the high court.
Sexual violence against women is unique as it begins in the home and moves out to public places. The problem begins with the assumed consent that women give to sexual intercourse within a marriage. Rape by a man of his wife without her consent is not an offence. Since this is a settled norm, it matters little whether forcible sexual intercourse is with the wife or a stranger on the street. With this accepted culture of rape within marriage standing tall, we have little hope of changing the culture of violence against women anywhere. The assumed consent of a woman to sexual intercourse becomes ingrained in the psyche of a man — as a husband, a son, a brother and this psyche continues into public spaces. Thus it is imperative to recognise that non-consensual sexual intercourse is unacceptable regardless of whether it is with a wife or a stranger, if we want sexual violence against women to stop. A legal culture that creates ‘legitimate and ‘illegitimate’ violence needs to change.
It is heartening to see for the first time, a large number of men on the streets protesting against sexual abuse of women. It is a new generation which brings hope that the tendency for violence against women is about to end as men of future generations will not tolerate such violence.
Lack of adequate number of judges or excessive workload is no longer an acceptable excuse to the women of this country for delaying judicial decisions. They know that it is the abuse of the process of law by vested interests and the utter indifference to women who have been sexually abused, that cause delays, not lack of infrastructure. An approximately 40% increase in the number of judges between 2005 and 2012, has not produced a corresponding decline in the pendency of cases. Justice does not reside in the brick and mortar courtrooms but in the heart and soul of judges and lawyers who represent victims of injustice. Any judge worth the name knows how to prevent delays and an abuse of the process of law by the rich and the famous.
The first duty of judges is to give cases of sexual assault priority and deal with them expeditiously with zero tolerance for delay. The demand for fast track courts is a metaphor for the intolerance of a dysfunctional legal system. While dedicated courts may go some way in dealing with the issue of delays, they will have to be accompanied by support structures, which enable a fair investigation and prosecution.
Women are conspicuous by their absence from the courts as lawyers and as judges. On the other hand, our law schools have at least 50% women students. Yet due to the patriarchy embedded in the judiciary and the legal system, the number of women lawyers and judges is negligible. Even those who manage to penetrate the highly patriarchal framework are discriminated against in terms of appointments, designation as seniors and promotions. Women are constantly under the microscope being pushed to prove themselves while male lawyers need pass no test of competence. The old boys network effectively keeps women out of the span of all zones of influence.
All talk of increasing the penalty for rapists to death is hollow. As the law stands today, a m a n fo u n d guilty of rape can be given a life sentence, And yet in my entire career as a lawyer spanning over 40 years, I have yet to see a single case in which a life sentence has been meted out to a rapist, what then to talk of the death penalty! This calls for urgent action plan by the Chief Justice of India and the chief justices of all high courts to raise as fast as possible the number of women judges in our courts. A few years ago, a woman who I represented in a classic case of sexual harassment, once asked me why her appeal was not being listed before a woman judge in the Supreme Court. My answer was simple, “because there is no woman judge in the Supreme Court.” At this she expressed her amazement and asked, if the Supreme Court could mandate that the chairperson of a sexual harassment committee which was to be set up by employers must be a woman, how come that law does not apply to the court itself ? I had no answer.
A critical mass of women in the judicial system and in the prosecution will inspire confidence in the system for women. The world over, this is known to happen. Women today have no stake in the judicial system and this is reflected in the cry “We want justice”.
A demand for accountability of institutions of justice delivery, the police and the courts must accompany the demand for appropriate laws. Accountability of the police must start with a complaints procedure within the police service itself where a complaint can be lodged for non-performance of duties. A clear command responsibility must be articulated within this mechanism so that in case of non-performance of duties by a junior, the senior officer is held liable. When a pattern of non-performance emerges, leading to a permanent sense of insecurity in which women live, the accountability must be that of the head of the police, and of the political establishment. Confidence in the administration can only be restored by measurable action against people in positions of power.
The judiciary has long been a selfregulating, self- appointing institution. We need a transparent method of appointment of judges where the antecedents of the proposed appointee can be publicly scrutinised. Accountability of the legal system must carry with it, accountability of judges. We need an official mechanism for monitoring the performance of the judiciary to check how content of their judgements meet the constitutional goals of equality. We need independent special rapporteurs drawn from civil society to report directly to Parliament on the performance of the legal system, the judicial system and the police system and violence against women.
It is time for standards to be put in place as to how judges must behave with women lawyers and litigants. The language of the law must be sanitized of all its male chauvinist content. No judge, let alone a Supreme Court judge must ever be allowed to use sexist language in judgements or during the course of arguments in court. Accountability starts at the top with the Supreme Court, what a judge of the Supreme Court thinks and says today, will be said and done by the 17,000 subordinate court judges who deliver justice under the supervision of the high courts.
We need a protocol on how judges ought to behave with women in courts and how they should address women’s issues in their judgements. Gender sensitive language must reflect in judgements dealing with women. This is not a matter of form but of substance. Changing culture and mindsets often requires language to change and rules and regulations, which reflect the change and do not permit a fall from standards. This is the time when the Chief Justice of India must rise to the occasion and speak to the nation and inform us what will be done to restore the confidence of the people in the justice system. Besides his role as a judge, he has a role as the head of the judiciary responsible for the administration of the justice.
The single most important statement we would like to hear from him, is that discrimination against women by judges will not be tolerated; the judiciary will have to exhibit and demonstrate zero tolerance of violence against women in the home, and on the streets.
The goal of law is to sustain life not support its destruction. This is what the 23-year-old was trying to tell us, before she died. “I want to live,” she said, not die of shame. She changed the way society looks at rape — from blaming the victim to focusing on the rapist. All law reform must move in that direction, asking how we can build a new life-sustaining legal culture, a more equal culture, with justice for all. That is the question we must address — with or — without a special session of Parliament.
The writer is Additional Solicitor General of India
Public Interest Litigation is a good thing when it is used to enforce the rights of the disadvantaged. But it has now been diluted to interfere with the power of the government to take decisions on a range of policy matters
Judicial activism is not an easy concept to define. It means different things to different persons. Critics denounce judicial decisions as activist when they do not agree with them. Activism, like beauty, is often in the eye of the beholder. In India, the opening up of access to courts to the poor, indigent and disadvantaged sections of the nation through Public Interest Litigation, popularly known by its acronym PIL, is unexceptionable judicial activism. From 1979, the judiciary led by the Supreme Court in India became relevant to the nation in a manner not contemplated by the makers of the Constitution and became an active participant in the dispenser of social justice.
It is a matter of concern that over the years this original, beneficial and unexceptionable character of the Court’s activism in PIL has been largely converted into a general supervisory jurisdiction to correct actions and policies of government, public bodies and authorities. This is a type of judicial activism unparalleled in any other judiciary.
For basic rights
PIL jurisdiction began haltingly with little idea of its potential when the Supreme Court, in 1979, entertained complaints by social activists drawing the attention of the Court to the conditions of certain sections of society or institutions which were deprived of their basic rights.
In 1979, Supreme Court advocate Kapila Hingorani drew the Court’s attention to a series of articles in a newspaper exposing the plight of Bihar undertrial prisoners, most of whom had served pretrial detention more than the period they could have been imprisoned if convicted. Sunil Batra, a prisoner, wrote a letter to Justice Krishna Iyer of the Supreme Court drawing his attention to torture by prison authorities and the miserable conditions of prisoners in jails. This was taken up as a petition and the Court passed orders for humane conditions in jails. In 1980, two professors of law wrote a letter to the editor of a newspaper describing the barbaric conditions of detention in the Agra Protective House for Women which was made the basis of a writ petition in the Supreme Court. The exploitation of workmen at construction sites in violation of labour laws was brought to the attention of the Supreme Court by a letter. The slave-like condition of bonded labourers in quarries was brought to the attention of the Court by a social activist organisation. A journalist moved the court against the evictions of pavement dwellers of Bombay. Several cases of this type followed.
In dealing with such cases, the Court evolved a new regime of rights of citizens and obligations of the State and devised new methods for its accountability. In 1982, Justice P.N. Bhagwati, correctly stated the purpose of PIL as it originated. He emphasised that PIL “a strategic arm of the legal aid movement which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation.”
No longer were the Court’s clientele drawn from landlords, businessmen, corporations and affluent persons. With PIL, the common man, the disadvantaged and marginalised sections of society had also easy access to the Court with the help of social activists.
This unique judicial activism was not found in other countries and leading judges abroad such as Lord Harry Woolf of the United Kingdom and Justice Michael Kirby of Australia, applauded it.
The new intervention
However, over the years, the social action dimension of PIL has been diluted and eclipsed by another type of “public cause litigation” in courts. In this type of litigation, the court’s intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the society but simply for correcting the actions or omissions of the executive or public officials or departments of government or public bodies. Examples of this type of intervention by the Court are innumerable. In the interest of preventing pollution, the Supreme Court ordered control over automobile emissions, air and noise and traffic pollution, gave orders for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, made compulsory the wearing of seat belts, ordered action plans to control and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at unmanned railway level crossings, prevent ragging of college freshmen, for collection and storage in blood banks, and for control of loudspeakers and banning of fire crackers.
In recent orders, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The Court has passed orders banning the pasting of black film on automobile windows. On its own, the Court has taken notice of Baba Ramdev being forcibly evicted from the Ramlila grounds by the Delhi Administration and censured it. The Court has ordered the exclusion of tourists in the core area of tiger reserves. All these managerial exercises by the Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.
In its most activist and controversial interpretation of the Constitution, the Supreme Court took away the constitutionally conferred power of the President of India to appoint judges after consultation with the Chief Justice, and appropriated this power in the Chief Justice of India and a collegium of four judges. In no Constitution in the world is the power to select and appoint judges conferred on the judges themselves.
The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have failed or neglected to investigate and prosecute ministers and officials of government. Cases of this type are the investigation and prosecution of ministers and officials believed to be involved in the Jain Hawala case, the fodder scam involving the former Chief Minister of Bihar, Lalu Prasad Yadav, the Taj Corridor case involving the former Chief Minister of Uttar Pradesh, Mayawati, and the recent prosecution of the Telecom Minister and officials in the 2G Telecom scam case by the Supreme Court.
The Supreme Court has made an order even in a military operation. In 1993, the Court issued orders on the conduct of military operations in Hazratbal, Kashmir where the military had as a matter of strategy restricted the food supplies to hostages. The Court ordered that the provision of food of 1,200 calorific value should be supplied to hostages. Commenting on this, an Army General wrote: “For the first time in history, a Court of Law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation.”
Even proceedings of Legislatures are controlled by the Court. In the Jharkhand Legislative Assembly case, the Supreme Court ordered the Assembly to conduct a Motion of Confidence and ordered the Speaker to conduct proceedings according to a prescribed agenda and not to entertain any other business. Its proceedings were ordered to be recorded for reporting to the Court. These orders were made in spite of Article 212 of the Constitution which states that Courts are not to inquire into any proceedings of the legislature.
Matters of policy of government are subject to the Court’s scrutiny. Distribution of food-grains to persons below poverty line was monitored, which even made the Prime Minister remind the Court that it was interfering with the complex food distribution policies of government. In the 2G Licenses case, the Court held that all public resources and assets are a matter of public trust and they can only be disposed of in a transparent manner by a public auction to the highest bidder. This has led to the President making a Reference to the Court for the Court’s legal advice under Article 143 of the Constitution. In the same case, the Court set aside the expert opinion of the Telecom Regulatory Authority of India (TRAI) to sell 2G spectrum without auction to create greater teledensity in India.
The Court has for all practical purposes disregarded the separation of powers under the Constitution, and assumed a general supervisory function over other branches of governments. The temptation to rush to the Supreme Court and 21 High Courts for any grievance against a public authority has also deflected the primary responsibility of citizens themselves in a representative self government of making legislators and the executive responsible for their actions. The answer often given by the judiciary to this type of overreach is that it is compelled to take upon this task as the other branches of government have failed in their obligations. On this specious justification, the political branches of government may, by the same logic, take over the functions of the judiciary when it has failed, and there can be no doubt that there are many areas where the judiciary has failed to meet the expectations of the public by its inefficiency and areas of cases.
Justice Jackson of the U.S. has aptly said: “The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions of other branches of Government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching.” Unless the parameters of PIL are strictly formulated by the Supreme Court and strictly observed, PIL which is so necessary in India, is in danger of becoming diffuse, unprincipled, encroaching into the functions of other branches of government and ineffective by its indiscriminate use.
(The writer is a senior advocate of the Supreme Court and former Solicitor General of India. This article is an abridged version of a lecture he recently delivered at the sesquicentennial of the Bombay High Court.)