NEW DELHI: Former solicitor general Harish Salve on Wednesday said the Supreme Court should make the media aware of the boundaries within which it must operate while reporting court proceedings and suggested that the constitutional court must bring clarity to the contours of press freedom to prevent breach of a citizen’s right to fair trial and right to life with dignity, guaranteed under Article 21.
He agreed with most lawyers in telling a five-judge bench of Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, R P Desai and J S Khehar that it was not for the apex court to frame guidelines but disagreed with other senior advocates who had said that the court could have a case-to-case approach in scrutinizing media reports for transgression of right to life related sub-rights of an accused or a private citizen.
“The Supreme Court is not Press Council of India to tell the media what should not have been written. Media too cannot decide what should be the spread and extent of its right to report conferred on it to meet the people’s right to know. So, the Supreme Court is the only organ under the Constitution which can bring clarity by declaring the contours of right to free speech and expression under Article 19(1)(a) by balancing it against the crucial right to life,” Salve said.
“What the Supreme Court declares as the limits under Article 19(1)(a) will be abided by the responsible media, most of whom are very responsible. That is the surest way to safeguard citizen’s right to life which encompasses their right to privacy and right to live with dignity in a society,” said Salve, who appeared in an application moved by Vodafone months ago complaining about misreporting.
The senior advocate said continuous commentary on the merits of a case while it was being argued and targeting of individuals by media had a chilling effect on judges and lawyers, inhibiting free and frank discussion in a court room. “After all, judges and lawyers are human beings. The court should clarify if such reporting puts in peril such discussion during court proceedings,” he said.
Salve said government’s affidavits could be reported by the press even before it came up for court scrutiny. But if scurrilous allegations were made in any affidavit branding people as terrorists, murderers or money launderers, then the media has to wait till the court scrutinizes the contents of the affidavit in an open court hearing, he said.
The bench asked, “In our country the ground reality is that suit for damages or defamation is not an efficacious remedy against such errant reporting as it would take 20 years for conclusion of such proceedings. Will a high court or the Supreme Court be accused of violating Article 19(1)(a) if it entertained a petition from a person aggrieved by scurrilous allegations reported in the media and passed a temporary restraint order?”
Salve said constitutional courts would be well within their limits to entertain and pass appropriate orders on a writ petition from a private citizen complaining that his/her reputation was being destroyed by scurrilous allegations repeatedly reported by TV channels or print media.
If Salve cited Nupur Talwar case to point at spurious effects of brazen media coverage on a person and his right to fair trial, former law minister Ram Jethmalani cited the Jessica Lal murder case proceedings in Delhi High Court to highlight miscarriage of justice because of sustained media campaign.
Before concluding his arguments, Jethmalani said the courts have power to order repeat publication of material that hurt the right of the accused to fair trial or interference in the administration of justice. “Guidelines on media reporting will not solve the problem. On the contrary, it may create additional problems. The solution lies in enforcing Contempt of Court Act. Send one or two persons to jail under the contempt law and that will bring sanity in reporting,” Jethmalani said.
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When there is a conflict between individual right on homosexuality and societal interest in morality, the latter will prevail, counsel Harshvir Pratap Sharma argued in the Supreme Court strongly opposing the Delhi High Court judgment de-criminalising homosexuality between two consenting adults.
Appearing for the former BJP MP, B.P. Singhal, Mr. Sharma told a Bench of Justices G.S. Singhvi and S.J. Mukhopadhaya that fundamental rights should not be read in isolation. They should be read along with the Directive Principles of State Policy. Every fundamental right was subject to public health, morality and decency.
Counsel faulted the High Court judgment, contending that consent for unlawful act was not consent in the eye of law and one could not claim the right to privacy for indulging in it. The court had dismissed petitions claiming right to gamble. “Tomorrow a pregnant woman might claim the right of abortion. Will the court allow it?”
Pointing out that India is a country of different religions and cultural identities, counsel said the Supreme Court, while deciding the question of legalising homosexuality between two consenting adults, should take this factor into consideration.
He said the Naz Foundation, petitioner before the High Court, claimed that it was working on a HIV/AIDS prevention programme. But when the Lucknow police raided one of its premises, several articles and videos were seized and it was found that the Foundation was carrying out perverted sexual practices in safe places on a collective scale.
Arguing that Mahatma Gandhi had considered homosexuality a vice and immoral, counsel said the word ‘unnatural’ would mean immoral, irrational and against public policy, and any unnatural act would be an offence. Pointing out that the court could interfere only if there was violation of one’s fundamental right, he said that in this case there was no complaint of violation. It was mere apprehension of violation and the court could not interfere unless and until the right was violated, he said.
Additional Solicitor-General Mohan Jain, appearing for the Health Ministry, in his written submissions, explained its concern for opposing the High Court judgment. “According to the National AIDS Control Organisation, the overall HIV prevalence among different population groups in 2008-09 shows that HIV is higher among the HRG [High Risk Groups], Injecting Drug Users [IDU] 9.19 %, Men who have Sex with Men [MSM] 7.3% and Female Sex Workers [FSW] 4.94 %, while HIV prevalence among the general population is estimated to be less than 0.5%. The estimated number of MSMs and Transgenders [TGs] at high risk in 2009 is 4.12 lakh. Through Targeted Intervention [TI] projects, 2.85 lakh (69%) MSMs and TGs have been covered under services. Since many MSMs are married and have sex with women, their female sexual partners are also consequently at risk for HIV/infection” Reluctance to reveal the same sex behaviour rendered risky sexual practices going unnoticed and unaddressed in MSMs.
The ASG said: “The fear of harassment by law enforcement agencies mostly leads to sex being hurried, particularly because these groups lack ‘safe place’ and they often utilise public places for their indulgence. They do not have the option to consider safer sex practices. The hidden nature of such groups hampers interventions under the National AIDS Control Programme, which is aimed at prevention of AIDS. This makes a large section of MSMs invisible and unreachable.” By creating a friendly environment, the people involved in risky behaviour would be encouraged to reveal information and this would help in providing them total access to the services of preventive efforts.
The ASG said: “HIV Sentinel Surveillance in India, implemented by the National AIDS Control Organisation, is the largest and one of the best systems in the world. The methodology adopted is globally accepted and in accordance with WHO/UNAIDS recommendations for HIV/AIDS surveillance. For this purpose, sentinel sites are set up at specific service delivery points or facilities such as ANC [Antenatal clinic], STI [Sexually Transmitted Infection] clinics and TI projects. TI projects are NGO-based projects that provide prevention services to high-risk groups [Female Sex Workers, MSMs and IDUs.] They are reached at several identified “hot spots” such as brothels, clubs, bus stops, railway stations, parks, theatres, etc, where the high-risk group individuals can be approached. Based on data from the NACP on population size and vulnerabilities of the risk groups, these sentinel sites are established at places where high HIV prevalence is expected and therefore, need to be closely monitored under the programme.”
- Privacy right is no cover for unlawful act: counsel (thehindu.com)
- Shifting stand on homosexuality, Centre draws Supreme Court ire (thehindu.com)
KALPANA SHARMA IN THE HINDU
The Supreme Court clears the way for women to become In-Flight Supervisors in Air India. Thanks to those women who believed in and fought for equality at the workplace.
This judgment passed virtually without comment. The media ignored it. Why should the rights of a relatively small group of women concern the rest of us? Yet the November 17 Supreme Court judgment, by Justices Altamas Kabir and Cyriac Joseph, upholding Air India’s 2005 decision to remove the precondition that an In Flight Supervisor could only be a male, and that women cabin crew could also be appointed to that position, is significant. The troubled airline has not been a shining example of gender equity. Yet, finally wisdom dawned and it did accept that there was no justification for a rule that held a particular job only for men when the men and women on flights had the same training and did virtually identical tasks.
What is fascinating about this case is the manner in which the male cabin crew opposed the new rule and challenged it in court. In 2007, the Delhi High Court upheld Air India’s right to make this change and held that it saw nothing wrong in the rule. That judgment is worth reading in its entirety as it spells out the history of the struggles of women cabin crew in Air India to assert their right to equal treatment. There have been innumerable court cases, on issues ranging from a different retirement age for male and female crew members to a rule at one point where women who became pregnant within four years of being appointed had to quit to one where women cabin crew were grounded if they exceeded a certain weight.
It is hard to fathom why a ‘national’ airline should lag so behind the times on these issues. The women employed by Air India have had to turn to the courts on all these issues. These were not battles for additional powers. The women were simply asserting that they should have the same rights as other employees in a country where equality is guaranteed and where one is working for a ‘national’ airline that ostensibly wishes to promote India’s ‘national’ image.
This last battle, to get the airline to remove the anomaly where a particular job was virtually kept as a ‘male only’ designation for no reason at all, was in some ways the strangest. Senior women cabin crew members of Air India, some of whom trained other cabin crew members including men, had to contend with serving under the same men they had trained simply because, regardless of seniority or experience, they could never get the designation of In-Flight Supervisor. Even after private airlines came on the scene where there was no discrimination between male and female cabin crew, Air India persisted. And when it finally changed the rule, the male cabin crew objected, calling this positive change “discriminatory” and challenged it in Court.
In 2007, the Delhi High Court was quite clear in its ruling. It stated: “The Court finds that IFS (In-Flight Supervisor) is no longer a post, much less a promotional post. It is a function that one among the cabin crew, on the basis of seniority, is asked to perform during the flight. This Court is unable to discern in any of the settlements any assurance or promise held out to the pre-1997 male cabin crew that a female colleague of theirs will never ever be asked to perform the function of an IFS. Nor do the judgments of the Supreme Court say so. The impugned order dated 27.12.2005 is not discriminatory to the male cabin crew. In fact, far from eliminating the possibility of the male cabin crew performing the function of IFS, it provides a chance to their female colleagues as well. In effect it removes the ‘ men only’ tag on the function of IFS. We are asked by the pre-1997 male cabin crew to hold this to be unreasonable. We decline to do so. This Court finds nothing arbitrary, unreasonable or irrational in the pre-1997 male cabin crew being asked to serve on a flight which has their female colleague as an IFS. This then is the jist of the lengthy judgment that follows.” (LPA Nos. 122-125 of 2006, Date of Decision: October 8, 2007.)
Representatives of the male cabin crew had argued that they would not work under women, even if they were senior. The job had been promised only to men and they were determined to hang on to it. And women could not claim the right to equality in this matter because the job of a woman on flight and a man on flight were substantially different, they argued. Yet passengers on flights can observe for themselves that the men and women in the cabin crew do exactly the same things — welcome you, make announcements about safety regulations, serve you food and drink, clear up after you, help anyone needing help, remain alert in case there is an emergency and act if such an occasion should arise.
All this is so obvious that it does not need repeating. Yet, none of this convinced the flight pursers employed by Air India who challenged the Delhi High Court judgment. The Supreme Court ruling, one hopes, has settled the matter and Air India will now be permitted to join the 21st century. And perhaps it will finally also decide to use gender-neutral terms to describe the men and women who are part of the cabin crew.
The court battles fought by women cabin crew of Air India are significant for other reasons. Many of the women who went to court could just have sat back and accepted conditions as they prevailed. After all, they had a secure job and a reasonable salary. But because some of them took the risk of even losing their jobs and challenged these discriminatory provisions, those who join the airline now will be much better placed than their seniors. The lesson these battles hold out is that discrimination does not disappear on its own and that managements are not struck by a sudden realisation that they should be fair to their employees. Positive change is more often than not the result of battles fought by those who believe strongly in equity and justice.
Email the writer: firstname.lastname@example.org
In a relief to millions of workers in the building and construction sectors, the Supreme Court has upheld the finding of the Delhi High Court that certain legislations and rules – which allowed the levy of a cess on builders and contractors to create a fund for welfare of these employees, were Constitutionally valid. The court turned down the contention of the appellants – Dewan Chand Builders and Contractors – that the cess was a “tax” and that there was no nexus between the levy and the intended purpose.
The court said, “The inevitable conclusion is that in the instant case there does exist a reasonable nexus between the payer of the Cess and the services rendered for that industry and therefore, the said levy cannot be assailed on the ground that being in the nature of a ‘tax’, it was beyond the legislative competence of Parliament.”
The principal ground for challenge to the validity of The Building and Other Construction Workers Welfare Cess Act (or the Cess Act), 1996 by the appellants was the lack of legislative competence of Parliament. The core issue arising for consideration was whether the cess levied under the scheme of the Cess Act is a ‘fee’ or a ‘tax’.
The apex court said, “There is no doubt in our mind that the Statement of Objects and Reasons of the Cess Act, clearly spells out the essential purpose (of what) the enactment seeks to achieve, that is to augment the Welfare Fund under The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (or the BOCW Act).”
“It is clear from the scheme of the BOCW Act that its sole aim is the welfare of building and construction workers, directly relatable to their constitutionally recognised right to live with basic human dignity, enshrined in Article 21 of the Constitution of India,” it said. “The levy of Cess on the cost of construction incurred by the employers on the building and other construction works is for ensuring sufficient funds for the Welfare Boards to undertake social security schemes and welfare measures for building and other construction workers. The fund, so collected, is directed to specific ends spelt out in the BOCW Act. Therefore, applying the principle laid down in the aforesaid decisions of this Court, it is clear that the said levy is a ‘fee’ and not ‘tax’,” the court said.
Earlier, the Delhi High Court had rejected the builders’ plea challenging the cess levied under the BOCW Act. The Statement of Objects and Reasons of the BOCW Act says, “It is estimated that about 8.5 million workers in the country are engaged in building and other construction works. Building and other construction workers are one of the most numerous and vulnerable segments of the unorganized labour in India. The building and other construction works are characterized by their inherent risk to the life and limb of the workers.”
Its preamble says that it is “An Act to regulate the employment and conditions of service of building and other construction workers and to provide for their safety, health and welfare measures and for other matters connected therewith or incidental thereto.”
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Once the victim is rehabilitated, it is not in her interest to recall her to the court of law for any purpose including evidence, as she is compelled to relive the trauma and indignity. Therefore, it would be better to take into consideration the statement given by her before repatriation and act accordingly. If, however, her recall is necessitated, it should be done in such a way that it causes least harm to her. Dislocating her from the rehabilitated ambience usually causes serious problems. Therefore, if her statement is to be recorded, or evidence taken, it should be done in commission or through video conferencing at an appropriate place which would create least disturbance and discomfort to the person concerned. The Supreme Court has held in State of Maharashtra vs Praful Desai (2003 4 SCC 601) that the recording of evidence by way of video conferencing might be done in cases where the attendance of the witness cannot be ensured without delay, expense and inconvenience. It was also held by the apex court that recording of evidence by video conferencing was a ‘procedure established by law’ under Article 21 of the Constitution and did not violate the rights of the accused. The court observed that although the rights of the accused must be safeguarded, they should not be overemphasised to the extent of forgetting that the victim also has rights. Therefore, the ITPA should make it mandatory to provide video conferencing facility at the place where the victim would find it comfortable. The victim’s best interests should be the deciding factor in choosing the place and time of video recording/conferencing.
Another order by the High Court of Delhi has made notable improvement in the field of criminal jurisprudence and victim protection in India. On 27 February 2004, the High Court delivered this order, in Crl. M.1467/04 in Crl. W. 532/1992, in a petition filed by an NGO Prajwala of Hyderabad through its advocate Ms. Aparna Bhat. Thanks to the intervention of the Delhi High Court, girls rescued from the brothels in Delhi were repatriated and rehabilitated in their hometowns in several parts of India including Andhra Pradesh. The rehabilitation work was carried out by the Government of Andhra Pradesh with the involvement and participation of the NGO, Prajwala. Many of these girls who had been rehabilitated to districts like Nellore, were summoned by the trial court in Delhi for providing evidence against the exploiters. Since these girls were repatriated after spending considerable time in the rescue home in Delhi, ideally speaking, their statements should have been recorded by the trial court during that period. However, due to the delays in the trial, this was not done and, therefore, these girls were called to Delhi. The government agencies in Andhra Pradesh tried their best to get in touch with these girls. Since their efforts failed, Prajwala was asked to step in again. The NGO realised that these girls were reluctant and unwilling to go to Delhi mainly because they did not want to relive the trauma and agony which they had undergone. It was decided to move the trial court for facilitating the recording of evidence of these girls to their hometowns. However, the court did not approve of this for want of required infrastructure. The matter was, therefore, taken up with the High Court of Delhi which directed the government counsel to look for alternatives. Since National Informatics Centre did not have the required facilities, the counsels for the government and the NGO took initiative, interacted with the government of Andhra Pradesh and found that video conferencing facility was available in Andhra Bhawan, New Delhi. The A.P. government agreed to provide this facility, which they have in Delhi and the concerned district headquarters in Andhra Pradesh. The High Court confirmed the availability of these facilities at A.P. Bhawan by judicial officers and then gave orders for recording the evidence of the victims through video conferencing. The court also directed that the state of Andhra Pradesh make appropriate arrangements for the same and that the trial court ensure adequate safeguards enumerated in the decision of the Supreme Court in State of Maharashtra vs.Dr. Praful B. Desai, 2003 4 SCC 601. This was a historical decision of the Delhi High Court because, for the first time in India, inter-state video conferencing was being utilised in criminal trials. Once implemented, this judgment can go a long way in protecting the rights of trafficked victims and, therefore, is a judgment truly honouring the human rights of the victims.
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The Indian media display certain defects. These should ideally be addressed and corrected in a democratic manner. But if the media prove incorrigible, harsh measures may be called for. The time has come when some introspection by the Indian media is required. Many people, not only those in authority but even ordinary people, have started saying that the media have become irresponsible and wayward, and need to be reined in.
Only a couple of days back I read in the newspapers that the Union government has issued some regulations regarding licences for news channels, to which there was a lot of reaction. Under the Constitution of India, freedom of the media is part of the freedom of speech guaranteed by Article 19 (1) (a). However, no freedom can be absolute, and reasonable restrictions can be placed on it. One of the basic tasks of the media is to provide truthful and objective information to the people that will enable them to form rational opinions, which is a sine qua non in a democracy. But are the Indian media performing this role properly?
I may only mention certain defects in the functioning of the India media today.
One of the defects is that the media often twist facts. I would like to give an example.
One day, a leading English newspaper published on its front page a photograph of Justice Gyan Sudha Misra of the Supreme Court with the caption: “Supreme Court Judge says that her daughters are liabilities.” This was a distorted and fallacious item of news, published on the front page.
Supreme Court Judges have to disclose their assets and liabilities. Against the liabilities column, Justice Misra had written: “two daughters to be married.” Strictly speaking, it was not necessary to mention this because liabilities mean legal liabilities, for example, housing loan, car loan, and so on. Justice Misra’s intention was obviously to say that she would have to spend on her daughters’ future marriage. She has three daughters (no son), only one of whom has been married. Justice Misra never said, nor intended to say, that her daughters were liabilities. The news was false and defamatory, with the obvious intention of creating a sensation.
A second defect concerns the issue of paid news that has become prominent of late. In the 2009 elections, it was a scandal. How this vicious practice could be stopped needs to be discussed. Incidentally, in compliance with an order of the Chief Information Commissioner dated September 19, 2011, we have placed the 71-page report of the Committee consisting of Paranjoy Guha Thakurta and Sreenivas Reddy on our website, http://www.presscouncil.nic.in with the disclaimer that the Press Council had rejected this report at its meeting held on April 26, 2010.
Non-issues as real issues
A third defect is that the media often portray non-issues as real issues, while the real issues are sidelined. The real issues in India are economic, that is, the terrible economic conditions in which 80 per cent of our people are living, the poverty, unemployment, lack of housing and medical care and so on. Instead of addressing these real issues, the media often try to divert the attention of people to non-issues. Such as that the wife of a film actor has become pregnant, whether she will give birth to a single child or to twins, and so on. Are these the real issues facing the nation?
At a Lakme India Fashion Week event, there were 512 accredited journalists covering the event in which models were displaying cotton garments, while the men and women who grew that cotton were killing themselves at a distance of an hour’s flight from Nagpur, in the Vidharbha region. Nobody told that story, except one or two journalists, locally.
Is this a responsible way for the Indian media to function? Should the media turn a Nelson’s eye to the harsh economic realities facing over 75 per cent of our people, and concentrate on some ‘Potemkin villages‘ where all is glamour and show biz? Are not the Indian media behaving much like Queen Marie Antoinette, who said that if the people had no bread, they should eat cake?
No doubt, sometimes the media mention farmers’ suicides, the rise in the price of essential commodities, and so on, but such coverage is at most 5 per cent to 10 per cent of the total. The bulk of the coverage goes to showing the life of film stars, pop music, fashion parades, cricket and astrology.
Tendency to brand
Here is a fourth defect. Bomb blasts have taken place near the Delhi High Court, in Mumbai, Bangalore and so on. Within a few hours of such a bomb blast, many TV channels started showing news items that said that the Indian Mujahideen or the Jaish-e-Mohammed or the Harkatul-Jihad-e-Islam had sent e-mails or text messages claiming responsibility. The names of such alleged organisations will always be Muslim ones. Now, an e-mail can be sent by any mischievous person, but by showing this on TV channels and the next day in the newspapers, the tendency is to brand all Muslims as terrorists and bomb-throwers.
The truth is that 99 per cent of the people of all communities, whether Hindu, Muslim, Christian or Sikh, and of whatever caste or region, are good. But the manner in which such news is shown on TV screens and published in newspapers tends to create the impression that all Muslims are terrorists, and evil — which is totally false. The person who sends such e-mails or text messages obviously wants to create hatred between Hindus and Muslims, which is the old British divide-and-rule policy continuing even today. Should the media, wittingly or unwittingly, become part of this policy of divide-and-rule?
No doubt there are defects not only in the media but in other institutions also, for example, the judiciary, the bureaucracy, and so on.
There are two ways to remove these defects in the media. One is the democratic way, that is, through discussions, consultations and persuasion — which is the method I prefer. The other way is by using harsh measures against the media, for example, by imposing heavy fines on defaulters, stopping government advertisements to them, suspending their licences, and so on.
In a democracy we should first try the first method to rectify the defects through the democratic method. For this purpose, I have decided to have regular get-togethers with the media, including the electronic media, so that we can all introspect and ourselves find out ways and means to rectify the defects in the media, rather than this being done by some government authority or external agency.
I propose to have such get-togethers once every two or three months, at which we will discuss issues relating to the media and try to think of how we can improve the performance of the media so that it may win the respect and confidence of the people.
If the media prove incorrigible, harsh measures may be required. But in my opinion, that should be done only as a last resort and in extreme situations. Ordinarily, we should first try to resolve issues through discussion, consultation and self-regulation. That is the approach which should be first tried in a democracy. I, therefore, request the Union government to defer the implementation of its recent decision regarding news channel licences, so that we can ourselves discuss the issue thoroughly, and ourselves take corrective measures.
Till now the function of the Press Council was only adjudication. I intend to make the Press Council an instrument of mediation in addition, which is in my opinion the democratic approach. For this purpose, I need help, cooperation and advice from the media.
India is passing through a transitional period in its history, from a feudal agricultural society to a modern industrial society. This is a very painful and agonising period. The media must help society in going through this transitional period as quickly as possible, and by reducing the pain involved. This they can do by attacking feudal ideas, for example, casteism and communalism, and promoting modern scientific ideas.
(This is the edited text of a speech delivered by Justice (retired) Markandey Katju, the new Chairman of the Press Council of India, on October 10 at a get-together with mediapersons at his residence in New Delhi. The full text is available at www.thehindu.com)
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J VENKATESAN IN THE HINDU
Last month, after a gap of about 18 months, the Full Court of the Supreme Court designated 11 retired judges of various High Courts as senior advocates, but deferred its decision on conferring the status on five advocates who had also applied.The Full Court did not designate any practising advocate as senior; without rejecting their applications, it deferred their consideration for the next meeting. Two advocates are among the five lawyers whose names have been deferred for the second or third time. The last meeting of the Full Court for designating senior advocates took place in February 2010, when seven were designated seniors; five of them were retired judges. Since 1962, the Supreme Court has designated 371 lawyers, including retired judges, as seniors.
The Supreme Court follows a rigorous procedure for considering applications of practising advocates. As per the rules, a minimum of five sitting judges are expected to recommend the candidature of a practising advocate. Upon such a recommendation, the application is placed before the Full Court. Though the Chief Justice of India has discretionary power in exceptional cases, the status is invariably granted by the Full Court unanimously. Section 17 of the Advocates Act of 1961 empowers both the Supreme Court and the High Courts to designate the practising advocates with a 10-year standing in the Bar and one who has completed 45 years of age as senior advocate. The original Act required designation only on the basis of “experience and standing at the Bar.”
However, with an amendment in 1993, the requirement has been “standing at the Bar or special knowledge of experience in Law.” The aim of the amendment is that the advocates with a special knowledge of Law should be designated as senior advocates, as they bring in their expertise in deciding cases. In the fast-expanding field of Law, expertise has become very crucial. The fields of expertise include criminal, civil, commercial, taxes, constitutional, arbitration, inter-State water disputes, patents and copy rights and telecom disputes.
The High Courts grant the designation liberally. Recently, the Bombay High Court designated 17 advocates. The Delhi High Court designated 12 advocates in February 2011. Even the smaller High Courts, such as Sikkim with three judges and Uttarakhand, have designated advocates quite liberally. Many of the practising advocates of the Supreme Court have been designated by these High Courts.
The designation is the practice followed by the Commonwealth countries. In England, the designation is known as Queen’s Counsel or King’s Counsel. Traditionally, Queen’s Counsel were selected from among barristers. However, after 1994, even the solicitors are considered for designation. The system of designation was reformed in 2005 to make it more inclusive. During 2008-09, 2009-10 and 2010-11, the designation of Queen’s Counsel was conferred on 104, 129 and 120 lawyers.
Though the designation is a mark of recognition, it places restriction on practice. The designated seniors are not expected to file ‘vakalat’ or entertain clients directly; they are not supposed to draw pleadings. Legal experts are unanimous that there must be proper guidelines put in place for designation and all applications should be disposed of in a time-bound manner, say, six months. Further, if an application is rejected, they say, the reason must be communicated to the applicant.
According to the senior advocate and former president of the Supreme Court Bar Association, M.N. Krishnamani, lack of proper guidelines and norms led to a situation a few years ago, when 64 lawyers got designated by the Sikkim High Court as senior advocates when not even one of them belonged to Sikkim and not even one of them appeared in a single matter before that court.
He feels that the insistence on recommendation by five judges even for presenting an application may not be relevant since the decision is taken unanimously by the Full Court. Though the designation of seniors should not be liberal, the whole process has to be more transparent and certain discreet norms have to be applied. If statistical data are collected, that will prove that judges’ close relatives get designated even when they are young, and judges’ relatives become High Court judges easily.
The former Attorney General, Soli Sorabjee, says there is nothing wrong in five Supreme Court judges, including the Chief Justice, performing the function. There should not be any inflexible rule that every retired judge of the High Court should be designated as senior counsel. There are some judges of the High Court who have acquired dubious reputation, and they do not deserve to be made senior counsel. The designation should not be deferred for a long time; there cannot be a fixed time of six months, but applications should be decided in a reasonable time.
Senior advocate K.K. Venugopal, while justifying the rigid norms, says: “The reasons why the court is not liberal in granting the status is that the court expects the highest standards of rectitude to be maintained by seniors, though, of course, this would apply to others as well.” Asked whether any time limit could be fixed for the disposal of applications, he says: “I do not think there should be any time limit within which an application must be decided. This is because there is no vacancy to be filled within a time limit.” On applications being deferred, he says: “It would be to the advantage of an applicant if the decision is deferred rather than being rejected outright…”
Supreme Court Bar Association president P.H. Parekh says: “The system that five Supreme Court judges should recommend an advocate’s name…is quite reasonable and proper. However, the designation should be granted more liberally than is being done now, “especially to those advocates who appear in the Supreme Court regularly and who have been appearing for a sufficient long time. Their designation should be liberally considered,” he says.
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It was assumed by our Constitution makers that once a judicial committee finds a judge guilty of misbehaviour, Parliament would automatically endorse the finding of the judicial committee and pass the appropriate address to the president with the requisite majority. That was the assumption underlying this provision. Unfortunately, Parliament did not build up a convention on these lines. Therefore, the procedure became difficult and doubtful.
In former Supreme Court judge Justice V. Ramaswami’s case in 1993, the ruling party, the Congress under P.V. Narasimha Rao, did not issue a whip to the members and in fact, told them to abstain from the vote. Ramawami’s supporters prevailed on the party, and this abstention by the Congress defeated the motion, which set a very bad precedent, and earned a bad name for the party. That event has encouraged some judges to take a very rigid stand: not to resign even when serious allegations are made against them by responsible persons. It has had a negative impact on the minds of these people, as errant judges assume nothing will happen to them since impeachment is such a difficult procedure. This has been a serious setback to the independence and the credibility of the judiciary.
Thereafter, there have been a number of cases involving judges of against whom serious allegations of misconduct have been made. There have been cases where criminal prosecution was also initiated. Shamit Mukherjee of the Delhi high court and Nirmal Yadav of the Punjab and Haryana high court are examples. There have also been some cases where the Chief Justice of India did not give his permission to proceed; such permission is required in law. K. Veeraswamy, a former chief justice of the Madras high court, was prosecuted for having disproportionate assets. The real point is that because impeachment is difficult and uncertain, some judges behave irresponsibly.
In the Justice Soumitra Sen case currently before Parliament, a committee was set up, consisting of a sitting judge of the Supreme Court, Justice B. Sudershan Reddy, an eminent lawyer like F.S. Nariman, an eminent judge like Chief Justice Mukul Mudgal of the Punjab and Haryana high court. That committee found this gentleman guilty of retaining the monies of a client that he received as an advocate-receiver, and of holding on to that money in his account even after becoming a judge of the high court. He returned the money only later, after the high court ordered him to do so. This was considered to be misbehaviour on the part of the judge.
Instead of accepting the findings given by an impartial committee, Sen has chosen to challenge the findings in Parliament. This isn’t a healthy development. The Rajya Sabha has since voted for his impeachment. Now it all depends on the vote in the Lok Sabha. According to me, in principle, it is not a wise decision to make MPs the custodians of judicial ethics and judicial conduct. If they are to apply their own standards of probity to the misbehaviour of judges, they might find it difficult to find him guilty of serious misbehaviour warranting removal. Therefore, there should be another method for easier removal of a judge found to be guilty of doubtful integrity.
I suggest an amendment of the Constitution to incorporate a provision permitting the immediate removal of a judge who, in the opinion of the collegium of the Supreme Court is a person of doubtful integrity and doesn’t deserve to remain in office. He can be paid some compensation in lieu of the forsaking of service, instead of having to suffer him on the bench with doubts about his honesty in the minds of the public. The judicial system cannot afford to have such black sheep on its rolls.
If such a provision is made, it can be applied to public servants found to be of doubtful integrity. Proving corruption in a court of law is difficult because the bribe-giver and -receiver will thwart all attempts to prosecute them. The same problem arises with departmental enquiries. Even in those rare cases where prosecution succeeds, it takes a long time and by the time the decision comes, the judiciary would have suffered an irreparable loss. On the other hand, if such people are removed forthwith, on payment of some compensation, the system would be much healthier and will enjoy greater credibility.
Those inclined to accept gratification will also be under check for fear of removal forthwith if discovered. It will have a salutary effect even on the existing judges and will instill fear in their minds, so that they do not resort to corrupt ways, and remain honest. Of all the institutions, the judiciary especially cannot afford to have corrupt persons in its ranks. Therefore I strongly recommend such a provision being made in the Constitution. In that case, the impeachment procedure would become redundant.
There is a judicial accountability bill in the works, but well intentioned as it is, it does not go far enough, and does not have adequate teeth to deal with the problem effectively. There should be a provision for the suspension of a judge when complaints against him are being investigated. At the same time, we must take care to ensure that disgruntled litigants do not level false accusations against judges who might have decided against them. We have to protect judges from such baseless complaints. The judicial accountability bill will have the unintended effect of allowing false complaints to be made, which is not conducive to the independence of the judiciary. There is no provision for the speedy removal of an errant judge.
The Supreme Court has been trying an in-house procedure, but it is not a transparent one. There is a feeling that cases are pushed under the carpet for fear of adverse publicity. Therefore, there is a clear need for a transparent mechanism of accountability for judges. Even in the matter of declaration of assets in public, there was hesitation within the judiciary. It is necessary to ensure transparency in these matters in order to sustain the confidence of the people in the system.
The writer is a senior advocate in the Supreme Court, and an expert in constitutional law
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KALPANA KANNABIRAN IN THE HINDU
Three judgments by the Supreme Court, in July, demonstrate the significance of social action. They draw important connections between courts, social sciences and social movements; connections that are often forgotten or negated in courts.
Three judgments by the Supreme Court in the month of July mark a sharp departure from pedantic legalism and point to the possibilities of a transformative constitutionalism that sustains and elaborates the idea of constitutional morality developed in the Naz Foundation judgment of the Delhi High Court in 2009. The three cases are also very different pieces that speak to different realities in similar fashion: Ram Jethmalani v Union of India (SIT); Nandini Sundar and Others v State of Chhattisgarh (SJ); and Delhi Jal Board v National Campaign for Dignity and Rights of Sewerage and Allied Workers (DJB). It might be argued, and rightly too, that radical jurisprudence by the Supreme Court is not a recent phenomenon — it has an older history rooted in struggles for civil and political rights. While that is the genealogy of this jurisprudence, we need yet to celebrate each signpost in the development of deliberative jurisprudence that responds not merely to the manifestations of a case, narrowly construed, but sees the larger socio-political context as an inextricable part of the bare facts, so to speak.
The guarantee of public goods — security, infrastructure for governance, law making and enforcement, provision of material and cultural goods especially for classes that lack the power, privilege and status to secure these for themselves — is state obligation. Neither markets (which cater to self-centred activities of individuals and groups) nor purely private social action can be expected to stand in for the state and provide public goods (SIT, 7). Central to the delineation of the problem in these cases is the opening out of the idea of constitutionalism to include a broader idea of justice that enables the mapping of injustice in all its complexity. Tracing the link between the existence of perennial channels for unaccounted monies abroad and the erosion of developmental goals of the state, the Supreme Court contextualises the need to reign in cash flows and ensure total accountability with reference to the structure of a neo-liberal economy. Gunnar Myrdal’s caution about the dangers of a “soft state” that spawns the “unholy nexus between the law maker, the law keeper, and the law breaker” (SIT, 10) is immediately relevant.
“Carried away by the ideology of neo-liberalism, it is entirely possible that the agents of the State entrusted with the task of supervising the economic and social activities may err more on the side of extreme caution, whereby signals of wrongdoing may be ignored even when they are strong. Instances of the powers that be ignoring publicly visible stock market scams, or turning a blind eye to large-scale illegal mining have become all too familiar, and may be readily cited (SIT, 15).”
The framework of justice by this token stretches illimitably beyond the narrow confines of constitutional law and decided cases to the letter and spirit of the constitution.
“Modern constitutionalism posits that no wielder of power should be allowed to claim the right to perpetrate state’s violence against anyone, much less its own citizens, unchecked by law, and notions of innate human dignity of every individual (SJ, 3).”
The court locates the heart of the conflict and repression in Chhattisgarh in the amoral political economy endorsed by the state and the departure of state policy from Nehruvian socialism in favour of a free market economy, the natural corollary of which is “muscular and violent statecraft.” The intimate connections between neo-liberal economic policy and a violently authoritarian state have been demonstrated in one country after another. The routine derogation of fundamental rights and human rights, large-scale displacement and dispossession of primarily indigenous tribal communities is an inseparable part of this process.
Courts have more often than not insulated themselves from philosophical and political frameworks of justice, ploughing the over-trodden, unproductive furrow of strictly applied “constitutional law” instead. Drawing on a wide range of writing — from Conrad’s Heart of Darkness to reports prepared at the instance of the Planning Commission — the Salwa Judum judgment puts back into focus the constitutional scheme with socialism and the directive principles of state policy at the centre. It is against this backdrop that the Supreme Court frames the issue of compliance to Articles 14 and 21, and Article 355 with specific reference to the large-scale occupation of schools and hostels by security forces ostensibly to combat maoist forces; the deployment of the “koya commandos” or the salwa judum and the arbitrary use of extreme violence by this militia armed by the state; the arbitrary terms of employment of this tribal workforce that violates constitutional safeguards; and the obstruction of citizen’s peace missions by the state. The adverse impact of this entire scenario is directly on the adivasi communities of Chhattisgarh — both as gun-toting SPOs and subjugated villagers.
The case of the Delhi Jal Board points to the predicament of sewerage workers in a globalised economy where essential jobs are outsourced by the state, which then refuses to take responsibility for the health or safety of workers, and challenges claims to reparations. The specific questions placed before the Supreme Court by the state authorities concerned the locus standi of the National Campaign for Dignity and Rights of Sewerage and Allied Workers; the appropriation of legislative powers by the high court; the validity of the high court’s order of interim compensation to families of workers who had died after inhaling noxious fumes while cleaning manholes. That the state needs judicial intervention (which ironically, it challenges) in order to provide the barest of safeguards and entitlements to the most underprivileged category of workers is cause for concern, throwing as it does, the entire range of constitutional guarantees and obligations to the winds.
While upholding the decision of the Delhi High Court, the Supreme Court importantly for us, asserts that social action litigation is an important part of constitutionalism. In a situation where the implementation of the goals set out in the Preamble to the Constitution has been halting and sporadic over six decades, the court observes, arguments against judicial activism and on judicial overreach have the sole object of tiring out those who espouse the cause of the weak and the poor (DJB, 15). Yet, private social action can only force public accountability — remedies are and must be part of state obligation (as the SIT bench reminds us).
Each of the three cases considered here demonstrate the significance of social action — the campaign against state repression and the Salwa Judum in Chhattisgarh, the nationwide campaign against corruption that began in a sense with the movement for the right to information, and the movement for dignity of workers engaged in hazardous and stigmatised forms of labour. The judgments draw important connections between courts, social sciences and social movements, connections that are often forgotten or negated in courts.
These judgments take a radical view of “development,” thereby addressing not just fundamental rights, but importantly, rendering the Directive Principles justiciable in effect — by resisting a disaggregated reading of the Constitution. At the other end, what the constitutionalism approach to the problem of development accomplishes is the framing of development as a bounded endeavour — and hence of justice as spatially and socially hedged in, to be held together by the state, through clear measures of protection against harm, distribution of good and the realisation of capabilities. These are not responsibilities easily or willingly borne by any government, but are undeniably state responsibility and must be used to discipline governments.
(Kalpana Kannabiran is Director, Council for Social Development, Hyderabad.)
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