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
My guest this week is one of Indian judiciary’s most important shining lights, Justice P N Bhagwati. It tells you about the creative energy in his mind that even now, when he is about to turn 90 very soon, he is working on two books, including his memoir. The judiciary is in news these days. The government complains about the Supreme Court’s obiter dicta, we also editorially complain about it. It seems somehow that the tension between the executive and the judiciary has become too much.
Well, that can’t be helped. Even in normal times there is bound to be some tension between the judiciary and the executive, particularly because the judiciary is entrusted with the task of enforcing the Constitution and it has got to enforce the fundamental rights of citizens and these fundamental rights sometimes come into conflict with what the government desires to do. But that is a conflict that can be resolved by the judiciary and whatever the judiciary decides as a matter of law and the Constitution should be accepted by the executive. Then there will be no tension.
But do you think that sometimes the executive doesn’t accept it?
Yes, in the last few years there have been occasions when the executive has not accepted decisions of the judiciary.
Sir, two recent judgments. I don’t know if you have followed them. The Salwa Judum judgment and the black money judgment in which the government felt, and many of us also felt, that the bench had exceeded the constitutional limits. In both cases there are appeals now for review.
Appeals are there, the Supreme Court will have to dispose of those appeals according to law. But very often, judges forget, lawyers also forget, that law is not an abstraction. Law is something which has been moulded and developed by the courts, by the judges. Law is ultimately what the judges make it, and therefore the judges must have a social perspective. They must be anxious to see that human rights become meaningful for the large masses of people in the country. They should not feel worried about the executive or I would say even about what people say. Their function should only be to enforce the basic human rights that are embodied in our Constitution.
In your own career as a judge, did you feel pressure from the executive and how did you deal with it?
No, I never felt any pressure from the executive. I delivered several judgments, many of them against the government, but not once did I feel that the executive felt offended. It’s possible that they didn’t like my judgments but they never showed any anger.
You were a judge when the executive was much powerful than it is now. Mrs Gandhi’s executive was very powerful.
But the judiciary of my time was equally powerful. Let me tell you that there was never a single occasion when the judiciary and my leadership felt thwarted by the executive or by Mrs Gandhi.
But look at the praise that you wrote for Mrs Gandhi. Most judges today would be embarrassed to write such a flowery prose about a prime minister.
I wrote about her because she fully deserved what I said. She had given this country a united India. Let us not forget the fact.
But somebody who rose to become Chief Justice of India, was it correct for you to write praise for her? It didn’t compromise you?
Publicly, no. But the CJI writing to the PM or the PM writing to the CJI privately was not wrong.
But today it would be out in the RTI and published.
It should not be published. It does a lot of harm.
So are you then saying that these correspondences should not be exposed to RTI?
It should not have been exposed to RTI. Basically what I wrote and what she wrote to me, I don’t remember now, was in the strictest confidence.
But does it pass the test of propriety for the Chief Justice of India to write praise in such flowery prose to the PM and expect it to be kept confidential?
No. I entirely agree with you it was wrong on my part.
You agree with that. But you got carried away? Why did you write that?
I was carried away by the result that was achieved.
…in the election?
Because I always believed that the welfare of the people was the ultimate goal, both of the judiciary and the executive, and anything which tends to further that goal or improve the condition of the people is something that deserves praise.
You did not write in anticipation of any benefits or rewards?
In my life, I have never anticipated anything. But I always believed that my duty is to serve my people. I was in the freedom struggle. I went to jail in 1942. I have always fought for the rights of the people and you look at my judgments.
You started the PILs. You used the postcard and treated it as PIL. Tell us the story of the postcard.
When I became a judge in the Supreme Court, I went round the country and when I visited various villages and towns, people gathered around me because they were interested in seeing a Supreme Court judge. I used to talk to them and I realised for the first time how important a judge’s function was. When people came, many of them were in tatters, many of them had sunken bellies. I realised that my justice was not reaching them. My justice, which I was administering, was meant for the few who could afford lawyers, litigation, court fee. That brought a change in my heart, my attitude. And then I started getting postcards, I started treating them as writ petitions. And ultimately I developed the whole theory of public interest litigations.
That’s your great positive contribution, but let me take you back to your regret and to the letter to Mrs Gandhi. When did you first feel that it was wrong to have written it?
Soon thereafter, I would say. I realised that I should not have treated that letter the way I did. Perhaps I exceeded my jurisdiction.
In the praise that you wrote for her?
No, not that the praise was ill informed but as a judge, as the chief justice, I shouldn’t have written it.
If you had written this, then you had wished it had not become public?
Definitely. It was not meant to be public.
What harm does it do if it becomes public, as it became public?
Well, perhaps to an extent people might feel that I’m pro-government. But very soon the impression that I am pro-government was dispelled.
But apart from that letter to Mrs Gandhi, one thing that rankles is your habeas corpus judgment, the ADM Jabalpur case, when you ruled with the majority of the judges to say the government could take away the right to life of a citizen.
Still looking back, legally we were right, the majority was right. But if I were sitting alone and I would have an opportunity to say it again, I would have taken a different view though that different view would not have been consistent with the words of the Constitution.
As you said earlier, law is not an abstraction. And law is what the judges make it out to be. Did you, as a judge, fail to make the right interpretation, or the right use of that law?
I’ve always admitted that. As a bold judge, as an imaginative judge, as a judge working for the people, I should not have taken that view.
Many of your critics say you cannot just express regret because that judgment did or could have done damage to the liberty of Indian citizens.
But I don’t see how could it have done damage because I think the amendment was made and in fact two years later or so, a similar case came before me and I took a different view. I said in the judgment that the view I had taken was wrong and I changed my view.
One judge disagreed and that was Justice H R Khanna. At that point did you think he was wrong?
At that point, perhaps I must have thought so.
Did you have any conversation with him on this?
No, he didn’t discuss with me. Soon after, he resigned because he was superseded.
That is the whole point. It becomes obvious to join the dots. All the judges who favoured the judgment, the judgment that Mrs Gandhi wanted, rose to become chief justices. The only one who did not was Justice Khanna.
But I became chief justice much, much later.
But the fact is that everyone on that bench, except Justice Khanna, rose to be CJI.
That’s because of seniority. Purely because of seniority. And Khanna should not have been superseded.
But Mrs Gandhi superseded him.
It was wrong on the part of Mrs Gandhi not to appoint Justice Khanna as CJI according to seniority.
What would you have told Justice Khanna if you had met him now?
I would have said it was very brave of you to give the dissenting judgment.
The ’70s saw the habeas corpus judgment and then you had the Kesavananda Bharati judgment that protected our freedom forever. It was the most important five years, I would say, in the evolution of India’s constitutional history. Do you think the period we are seeing now is a period comparable to that? There is the Jan Lokpal movement, there is a demand for a Judicial Accountability Bill. You were a party to setting up the collegium system and now the executive and Parliament are both going after it saying the system is not right. Judges are giving judgments that are setting up monitoring committees on everything.
If you are talking about appointment of judges, I have publicly said that appointment of judges should not be left entirely in the hands of the executive, nor should be left entirely in the hands of the CJI.
…which is the case now.
Now it is a collegium.
Now only the judiciary does it.
Collegium is alright but collegium should be run with some principles to guide it. The old system under which I worked was much better. The CJI made a recommendation after consulting some of the senior judges. Then the government, the law minister would discuss the matter with the CJI, and then we would make the appointment. Look at the earlier appointments, most of them were very good.
But right now, the problem is that there are so many vacancies in the courts. Allahabad High Court has 100 vacancies.
No vacancy in the High Court or the Supreme Court should be allowed to remain unfilled for a long time. Judges have assumed to themselves the power to make appointments, which is a wrong thing. In my opinion, the Constitution has been wrongly interpreted.
So it can’t just remain a fully in-house job?
No, it can’t. If you make the first five judges decide, then sometimes it is possible—I don’t want to make any allegations—that there may be give-and-take among the judges. You have my man, I will have your man. Therefore, I have always maintained and publicly said that appointments should be in the hands of CJI and the law minister.
Do you think the judiciary is under a bit of siege? One, it has resisted reform, it took such a public outcry for them to even declare their assets, RTI and now appointments. Then they are delving into areas of governance, setting up special investigating teams and monitoring them, asking the director of RAW to report to them on black money.
One feels sad that judiciary should come to this pass.
Why? If you could elaborate.
During my time, the judiciary enjoyed the highest respect.
Do you think that respect is threatened right now?
That respect has slightly gone down. There are a few judges who still enjoy that respect, I am told. But I can’t say about all judges today.
Why the judiciary is under pressure is because the Lokpal people are saying bring the judges under Lokpal, government is saying there should be a Judicial Accountability Bill.
I’m against bringing judges under the Lokpal because public pressure will mount unnecessarily. It will affect the independence of the judges. But judges should have their own separate body.
With some involvement of the executive or no involvement of the executive?
No involvement of the executive. Why don’t we have a retired chief justice of India, a sitting chief justice, one or two senior sitting judges, attorney general and one leading member of the Bar?
Did you ever discuss this with your very famous contemporary Shanti Bhushan?
I’ve met him occasionally, but have not discussed these issues with him. What is his view?
He wants the judiciary to be brought under the Lokpal.
No, it is dangerous to have the judiciary under the Lokpal.
Because the Lokpal ultimately is a person who is moved by public sentiment. I don’t want that. Let there be a separate Lokpal, if you like, for the judiciary. That is the best thing. I have already made this recommendation of mine in writing.
What is your advice to today’s judges?
Judges should retain their peace of mind because after all they have got to present an image that people will respect. If we show anger unnecessarily then people will feel that we are just like ordinary people. We have to show our stature is above that.
So do you object to obiter dicta?
No, but they should be well placed. Obiter dicta must be called for.
Do you remember any moment from the times of the bench when you used obiter dicta and well?
I must have sometimes, but I can’t recall now after this length of time.
I think one wonderful thing you have done is to keep yourself busy. Your thoughts are always valuable and now you are putting them down in a book. We will all wait for your books to come out.
(Retd.) Justice Bhagwati said that the development of public interest litigation in India could be attributed to his role as a judge. When he was a judge, and even when he was Chief Justice of India, he travelled to the poor regions in Bihar, Orissa, and Uttar Pradesh and saw “stark naked poverty”.
“People came to me in large numbers out of a sense of admiration for me because already I had made a name for myself, and I could see that many of them were in tattered clothes, some of them with sunken bellies, they’d hardly had any food. I realised that my justice was not reaching them at all. My justice was confined to a few fortunate rich people who could come to the court and could afford the luxury of litigation. If you want to go to court, you have to go to a lawyer. You have to brief him and pay him, and then in the Supreme Court it means a lot of costs, which poor men cannot afford, and so they were deprived of justice. So I felt something must be done to bring justice to the doorstep of the common man. So I invented this doctrine of public interest litigation, and I held that where any right of a person is infringed or he has any legitimate grievance and is unable to go to court because of poverty or illiteracy or ignorance, then any public spirited individual or any N.G.O can file an action on his behalf to ask the court to intervene to see that the human rights of poor people are restored.”
Another problem that he faced was that NGOs did not have money to brief a lawyer and file a writ petition. “So I said, it is enough if they write a letter to the court. It is called epistolary jurisdiction – jurisdiction that is invoked by writing letters or epistles to the court. Letters started coming to me from NGOs and poor people. I actually had to set up a department in the Supreme Court to sort them out and whatever appeared to be genuine were placed before me and the court. They would be numbered and then I would issue notice to the other side – usually it was the government or a government officer. On the day fixed, I would take up the case and appoint a lawyer on behalf of the claimant.” Under Article 32 which was very wide in its terms, (Retd.) Justice Bhagwati had vast jurisdiction.
The doctrine of public interest litigation received acceptance overseas as well. When he went to South Africa, Justice Bhagwati was welcomed by Albie Sachs, a famous judge of the Constitutional Court, who publicly called him, “the father of public interest litigation.”
The former Chief Justice of India added that it was now for the lawyers to see public interest litigation prosper. “There are some judges who are against it.” These judges, he said, did not believe that a person without cause of action should be allowed to come to court. “I want the Bar, I want the public, I want the press to ensure that public interest litigation does not die out. He said that it was a mechanism that ensures the balance of power, and it keeps the government under check. He also denied that the judiciary had ever gone overboard with its activism. “In fact, in recent years, the judiciary has been much too reticent. Judiciary must keep only one thing in mind – that they are appointed to do justice, and justice to the common man, not only to those who can afford to go to court, but to the large millions of India. Let them not be obsessed by the British system of justice, which originated and exists under different circumstances. Ours is a poor country, where a large number of people are deprived of their basic human rights.
JUDICIAL CORRUPTION AND APPOINTMENTS
When asked about the process of appointment of judges, (Retd.) Justice P.N. Bhagwati was clear: he had seen the collegium system develop before his eyes, and did not approve of it. “I am against the collegiums system; the former system – where the Chief Justice of India and the Law Minister would consult senior colleagues such as the Attorney General (as I did in my tenure as Chief Justice) in order to see that they had made the right recommendation — was much better. If there is a collegium of five, bargaining will go on amongst them. That is why the quality is going down.” He was vociferous about going back to the old system, which would be most suited for selecting the best person for the judiciary.
The next question raised was one raising a lot of furore lately – relating to judicial accountability. How can judges be held accountable without impinging on the independence of the judiciary? Justice Bhagwati opined that it was a difficult question; the only definite was that the independence of the judges should not be encroached upon at all. “My view is that the Chief Justice should set up a small committee to look into this matter. Whenever the allegations of corruption occur, they must come straight to the Chief Justice alone. He, with his two senior most colleagues should look into the whole question… There must be a mechanism to check corruption, but it must be manned by an independent body, not the legislature or the executive.”
ADM JABALPUR CASE – SUPREME COURTS DARKEST HOUR
“The instances of the Apex court‘s judgment violating the human rights of the citizens may be extremely rare, but it cannot be said that such a situation can never happen.” A Supreme Court bench comprising Justices Aftab Alam and A. K. Ganguly recently lamented thus, referring to the majority judgment in the infamous A.D.M. Jabalpur v. Shivkant Shukla case, popularly known as The Habeas Corpus case. Former Chief Justice of India, Hon’ble Mr. Prafullachandra Natwarlal Bhagwati, who was part of that tainted majority, concurs with Justice Alam and Justice Ganguly, only much later in time and context.
The discussion began with the role of political ideology in the bench; judges come from different backgrounds, for example, Justice Krishna Iyer had a clear background with the communist government. Recently, the Supreme Court has been very critical of the developmental attitude of the Central government. Justice Bhagwati was emphatic on the point: “The question of interpretation is the most important — how the court reads and interprets facts and relates it to the law requires a lot of skill, insight and vision. So your political ideology is bound to colour your judgment, you cannot avoid it. But it should not blind you to the words used by the Legislature.”
Asked to discuss the Supreme Court’s attitude during the Emergency — what some advocates refer to as the “dark days” — Justice Bhagwati held some regrets. “The Supreme Court’s attitude was far from satisfactory; it should have been more bold. It should have tried to uphold the rights of the people, but the Supreme Court failed; there is no doubt about it.”
Speaking about the ADM Jabalpur case specifically, Justice Bhagwati said that if not a disgrace, the case was something for which the Supreme Court should be ashamed. He did not absolve himself: “I was there — I plead guilty. I don’t know why I yielded to my colleagues. In the beginning, I was not in favour of the view that the majority took. But ultimately, I don’t know why, I was persuaded to agree with them. I still feel that the whole judgment was against my conscience. I have always been for freedom, freedom of speech and freedom of expression; I have always believed and always stood by these principles. It was an act of weakness on my part.”
Justice Bhagwati re-iterated that the Supreme Court’s willingness to expand the scope of Part III and Part IV of the Constitution came about because of its guilt for passing the ADM Jabalpur judgment. “I realised that I had made a big error and so I started developing Articles 14, 19, 21, 32, as no one else has done. I practically re-wrote these articles.”
He also recalled that Maneka Gandhi was a wonderful case; though he didn’t remember who argued the facts, but it gave him an opportunity to mould the law and develop it. “She had been deprived of her rights, and I upheld them. After the judgment was over, I met Manekaji at some function and I couldn’t help but remark, “I have made you immortal.” Everyone cites that judgment now. “
BHAGWATI ON HIS CAREER
“I started practice in February, 1948 February, and soon acquired a very large practice. There were some very good lawyers. I used to sit in the library of the Bombay High Court, and next to me a gentleman called Mr. J. C. Bhat, a very able lawyer, used to sit. There was Mr. Seervai, who has written a book on the Constitution, who was also an excellent lawyer.” He recounted it being a wonderful experience.
He was eventually elevated to the Bench. “In 1960, the Chief Justice of the new state of Gujarat, Justice S.T. Desai invited me to be a judge in the Gujarat High Court. I readily accepted, because I had always aspired to be a judge – as a judge you get an opportunity to mould the law and develop it. I was also the Chief Justice of the Gujarat High Court for six years. But my real opportunities came when I came to the Supreme Court in 1973.” Law, as per Justice Bhagwati, is like plasticine in the hands of a great judge, which he can mould as he likes, provided he has the vision and the requisite craftsmanship. “I started moulding and developing the law. Then came Articles 14, 19, 21, and 32, and I practically re-wrote Parts III and IV of the Constitution. I still remember, those days it was a thrilling experience. I would get up at five in the morning and start writing my judgments (I rarely dictated, I always wrote my judgments, because only then the best of you comes out).”
Aju John then asked him about his time in the Supreme Court, and the advocates and his colleagues on the Bench. In terms of advocates, Justice Bhagwati particularly recalled two, the likes of which he doesn’t see anymore: “The Attorney General, Mr. Motilal Setalvad was an outstanding lawyer, as was Mr. C.K. Daphthary.” He was also full of praise for his brother judges, saying that some of them were very good. “Two eminent ones I remember were Justice Krishna Iyer and Justice Dhirubhai Desai (people don’t remember him but he did a lot for industrial law, he was very pro-labour). Justice Eradi from Kerala was also a good judge — these three I distinctly remember.”
Rejecting the criticism of judicial activism, the Supreme Court has said the judiciary has stepped in to give directions only because of executive inaction what with laws enacted by Parliament and the State legislatures in the last 63 years for the poor not being implemented properly. A Bench of Justices G.S. Singhvi and A.K. Ganguly pointed out that laws enacted for achieving the goals set out in the Preamble to the Constitution had been extremely inadequate and tardy, and the benefit of welfare measures enshrined in those legislation had not reached millions of poor, downtrodden and disadvantaged sections, nor did efforts to bridge the gap between the haves and have-nots yield the desired result.
Writing the judgment in a case related to sewerage workers, Justice Singhvi said: “The most unfortunate part of the scenario is that whenever one of the three constituents of the state i.e. the judiciary issues directions for ensuring that the right to equality, life and liberty no longer remains illusory for those who suffer from the handicaps of poverty, illiteracy and ignorance, and directions are given for implementation of the laws enacted by the legislature for the benefit of the have-nots, a theoretical debate is started by raising the bogey of judicial activism or overreach.”
The Bench pointed out that the orders issued for the benefit of weaker sections were invariably challenged in the higher courts. In a large number of cases, the sole object of this exercise is to tire out those who genuinely espouse the cause of the weak and the poor. Justifying the directions issued by the Delhi High Court for protection of sewerage workers on a public interest litigation petition, the Bench said: “The superior courts will be failing in their constitutional duty if they decline to entertain petitions filed by genuine social groups, NGOs and social workers for espousing the cause of those who are deprived of the basic rights available to every human being, what to say of fundamental rights guaranteed under the Constitution.”
The Bench clarified that it deemed it necessary to erase the impression and misgivings among some people that the superior courts, by entertaining PIL petitions for espousing the cause of the poor who could not seek protection and vindication of their rights, exceeded the unwritten boundaries of their jurisdiction. The judges said it was the duty of the judiciary, like that of the political and executive constituents of the state, to protect the rights of every citizen and ensure that everyone lived with dignity.
Quoting the judiciary’s objectives as mentioned in the 1995 Beijing statement, the Bench said these would include ensuring that all persons were able to live securely under the rule of law; promoting within the proper limits of the judicial function the observance and attainment of human rights, and administering the law impartially among persons and between persons and the state.
Twice this week, the Supreme Court made references to neoliberalism and drew parallels between its cases and instances from literature and history. Excerpts:
The state of Chhattisgarh claims that it has a constitutional sanction to perpetrate, indefinitely, a regime of gross violation of human rights in a manner, and by adopting the same modes, as done by Maoist/Naxalite extremists. It also claims that it has the powers to arm, with guns, thousands of mostly illiterate or barely literate young men, who are appointed as temporary police officers, with little or no training, and even lesser clarity about the chain of command to control the activities of such a force…
As we heard the instant matters before us, we could not but help be reminded of the novella Heart of Darkness by Joseph Conrad, who perceived darkness at three levels: (i) the darkness of the forest, representing a struggle for life and the sublime; (ii) the darkness of colonial expansion for resources; and finally (iii) the darkness, represented by inhumanity and evil, to which individual human beings are capable of descending, when supreme and unaccounted force is vested, rationalised by a warped world view…
Conrad describes the grisly and the macabre states of mind and justifications advanced by men, who secure and wield force without reason, sans humanity, and any sense of balance. The main perpetrator, Kurtz, breathes his last with the words: “The horror! The horror!”
Through the course of these proceedings, as a hazy picture of events and circumstances in some districts of Chhattisgarh emerged, we could not but arrive at the conclusion that the respondents were seeking to put us on a course of constitutional actions whereby we would also have to exclaim, at the end of it all: “The horror, the horror.”
The problem cannot be the people of Chattisgarh, whose human rights are widely acknowledged to being violated by the Maoists/Naxalites on one side, and the state and some of its agents on the other. The problem rests in the amoral political economy that the state endorses, and the resultant revolutionary politics that it necessarily spawns.
The culture of unrestrained selfishness and greed spawned by modern neoliberal economic ideology, and the false promises of ever increasing spirals of consumption leading to economic growth that will lift everyone, under-gird this socially, politically and economically unsustainable set of circumstances in vast tracts of India, and Chattisgarh in particular. The justification often advanced by advocates of the neoliberal development paradigm… in India is that unless development occurs, via rapid and vst exploitation of natural resources, the country would not be able to either compete on the global scale, nor accumulate the wealth necessary to tackle endemic problems of poverty, illiteracy, hunger and squalor.
On the one hand the state subsidises the private sector, giving it tax break after tax break, while simultaneously citing lack of revenues as the primary reason for not fulfilling its obligations to the poor through social welfare measures. On the other hand, the state seeks to arm the youngsters amongst the poor with guns to combat the anger and unrest. Tax breaks for the rich, and guns for the youngsters amongst poor, so that they keep fighting amongst themselves, seems to be the new mantra…
Our constitution is most certainly not a “pact for national suicide.” In the least, its vision does enable us to recognise, and prevent, the emergence and the institutionalisation of a policing paradigm, the end point of which can only mean that the entire nation, in short order, might have to gasp: “The horror! The horror!”
It is clear to us that the lives of thousands of tribal youth appointed as SPOs are placed in grave danger by virtue of the fact that they are employed in counterinsurgency activities against the Maoists/Naxalites in Chhattisgarh. It is equally clear that in this policy, jointly devised by the Union and the states facing Maoist insurgency, as implemented in Chhattisgarh, the young tribals have literally become cannon fodder in the killing fields of Dantewada and other districts. The training that the state of Chhattisgarh claims it is providing those youngsters… is clearly insufficient.
Many of these tribal youngsters, on account of the violence perpetrated against them, or their kith and kin and others in the society in which they live, have already been dehumanised. To have feelings of deep rage, and hatred, and to suffer from the same is a continuation of the condition of dehumanisation.
It is clear that one of the primary motives in employing tribal youth as SPOs is to make up for the lack of adequate formal security forces. The situation has been created in large part by the socioeconomic policies followed by the state. The policy of privatisation has also meant that the state has incapacitated itself from devoting adequate financial resources in building the capacity to control the social unrest…
It is clear to us that these tribal youngsters are being given firearms on the ground that SPOs are treated “legally” as full-fledged members of the police force, and are expected to perform the duties, bear the liabilities, and be subject to the same disciplinary code… Yet, the Union of India and the state believe that all that they need to be paid is an “honorarium”.
Article 14 is violated because subjecting such youngsters to the same levels of dangers as members of the regular force, who have better educational backgrounds, receive better training, and possess a better capacity to benefit from training that is appropriate for the duties in counterinsurgency activities, would be to treat unequal as equals.
Article 21 is violated because youngsters with such low qualifications cannot be expected to understand the dangers they are likely to face, the skills to face such dangers, and the requirements of the necessary judgment while discharging such responsibilities.
We order that:
(i) The state of Chhattisgarh desist from using SPOs (against) Maoist/Naxalite activities;
(ii) The Union of India desist from using its funds in supporting recruitment of SPOs for counterinsurgency activities against Maoists/Naxalites groups;
(iii) The state make every effort to recall all firearms issued to SPOs;
(iv) The state make arrangements to protect those employed as SPOs previously;
(v) The state take measures to prevent the operation of any (such) group.
Initiatives for Protection and Welfare of Overseas Indian Workers Indian missions in the Emigration Check Required (ECR) countries, except Qatar have not reported any incidents of atrocities particularly targeting Indian workers. However, cases of complaints from Indian Workers related to fraudulent offers for overseas employment, contractual violations and cheating on the part of foreign employers/ recruiting agents are received in the Missions in ECR countries from time to time. Embassy of India, Qatar has reported that 20 complaints of human rights violations were received during the last two years. Whenever, a complaint is received, action is initiated by the Ministry for suspension or cancellation of the Registration Certificate of the Recruiting Agent. If required, he is also prosecuted through the State Police. Complaints filed against illegal agents are referred to the State Governments for filing criminal cases against them. Whenever there is a complaint against a foreign employer, proceedings for black listing such an employer are initiated. Indian missions also take up these issues with the foreign employers/local governments to protect the interest of the workers.
The Government has taken several initiatives for the protection and welfare of Overseas Indian Workers which include: –
(i) A Nation wide Awareness-cum-Publicity Campaign through media has been launched to educate the intending emigrants about legal emigration procedures, risks of illegal migration and precautions to be taken during emigration.
(ii) The Ministry has set up the Indian Community Welfare Fund (ICWF) in 42 Countries for providing onsite support and financial assistance to Indian workers in distress.
(iii) The Government has established an Overseas Workers Resource Centre (OWRC) which is a 24×7 hour telephone helpline which provides information to intending emigrants as well as emigrants on all aspects of emigration. Complaints can also be lodged through this helpline. (iv) India had signed Labour Agreements with Jordan and Qatar in 1980s to protect the interests of the Indian Workers. Memoranda of Understanding (MOU) were signed with United Arab Emirates (UAE) in December, 2006, with Kuwait in April, 2007, with Oman in November 2008, with Malaysia in January 2009, and with Bahrain in June 2009. An Additional Protocol to the existing Labour Agreement between India and Qatar was signed in November, 2007.
(V) Under these MOUs Joint Working Groups (JWGs) have been constituted that meet regularly in order to resolve bilateral labour issues including the cases of atrocities which come to notice from time to time. These MOUs enhance bilateral co-operation in management of migration and protection of labour welfare.
Human Rights Watch, an international NGO working for human rights, released a report on problems with the existing methods of forensic examination of rape victims on Monday. Authored by Aruna Kashyap, the report deals with “absolute ignorance of survivor rights by the Judiciary and the State.”
Former Chief Justice of Delhi High Court, Justice AP Shah, released the report. “As the report points out, the finger test method which continues to be used for examining rape victims is an archaic method. We need a system to sensitise judges and lawyers on a large scale,” he said.Based on 153 High Court judgments, the report cites judgments where the finger test has been cited as evidence of the victims’ compromised moral character.
“This is despite a Supreme Court order in the State of Uttar Pradesh Vs Pappu case where the apex court held that the victims’ sexual history had no bearing on a rape trial,” Justice Shah said. Eminent women’s rights activist and lawyer Flavia Agnes said the outdated forensic science syllabus is the root of problems in India. “Doctors continue to use the archaic finger test when WHO and gynecological organisations around the world have held that it is no proof of a woman’s virginity. When medical science has progressed to such astounding levels, the MCI does nothing to upgrade forensic science curricula. Students continue to read books which were written in the 1920s. The fact that a scientifically baseless test continues to be quoted and made the basis of High Court judgments is alarming,”she added.
Kashyap stressed on the need for a uniform standard to be set for examination of rape survivors. “Currently there is no set protocol which leaves room for ambiguities that compromise the survivors’ rights,” she said.