The IJR 2025 delivers a sobering yet illuminating portrait of the state of justice delivery across the country. Drawing from government data across police, judiciary, prisons, legal aid, and human rights commissions, it presents a powerful call to action. Despite pockets of progress, the national picture remains dominated by chronic capacity deficits, deep systemic inequalities, and a sluggish pace of reform.

A System Under Strain: Deficits and gaps

Across the pillars of justice, major structural weaknesses persist. Police forces nationwide allocate a mere 1.25% of their budget to training, a clear indicator that human capital development remains a low priority. Alarmingly, no state or union territory meets its own reserved quotas for women in the police, exposing deep gender disparities at the very frontline of law enforcement.

The forensic science ecosystem, crucial to modern crime detection and fair trials, is also buckling. Half the sanctioned forensic staff positions across the country remain vacant, paralysing investigations and exacerbating delays. In prisons, conditions continue to deteriorate: 176 prisons report occupancy rates of 200% or more, while over 20% of undertrial prisoners have been incarcerated for one to three years without conviction — an indictment of both police investigation and judicial functioning.

Judicial backlogs have reached staggering heights, with over five crore cases pending across court levels, reflecting a crippling burden on the system. Meanwhile, the promise of judicial dynamism is undermined by the fact that only 4% of cases are initiated suo motu — a marker of proactive judicial intervention — leaving citizens heavily dependent on individual litigation to seek redress.

In the realm of legal aid, there has been a disheartening drop in the number of paralegal volunteers since 2019, and access to basic legal advice in rural and marginalised communities remains worryingly thin.

The crisis extends to prisoner welfare too. For a prison population exceeding 5.7 lakh, the country boasts just 25 sanctioned psychologists or psychiatrists, with 25 states and UTs sanctioning none at all. The absence of mental health support in overcrowded, violent environments exacerbates the cycles of trauma and criminality that prisons are supposed to break.

Green Shoots: Signs of progress

Yet, amidst these dismal findings, rays of hope shine through. A steady expansion of digital infrastructure and gender diversity points towards meaningful, if limited, gains.

By 2025:

• 83% of police stations have at least one CCTV camera, a critical tool for ensuring transparency and accountability in custodial settings.
• 78% of police stations now have women’s helpdesks, offering marginal improvements in gender-sensitive policing.
• 86% of prisons are equipped with at least one video-conferencing facility, easing prisoner access to courts without physical transfers.
• The share of women judges in the district judiciary has climbed to 38%, a vital step towards a more representative bench.

Notably, six states now meet the recommended benchmark of one woman medical officer for every 300 women inmates in prisons, addressing a long-standing neglect of gender-sensitive prison health services.

High courts have managed to maintain case clearance rates exceeding 100% annually since 2017, a promising trend suggesting some resilience even under extreme workload pressures.

Data based on the national findings:

1. Who Leads, Who Lags: Rankings across states

Large and mid-sized states (Map 1)

• Karnataka retains the top position among 18 large states, with a composite score of 6.78/10.
• Andhra Pradesh makes a remarkable jump to second place (6.32), up from fifth earlier.
• Telangana ranks third (6.15), showing consistent progress since 2019.
• Kerala and Tamil Nadu complete the top five.

At the bottom:

• Bihar, Rajasthan, Jharkhand, Uttarakhand, Uttar Pradesh, and West Bengal occupy the lowest ranks.
• West Bengal drops to the bottom (18^th place), swapping places with Uttar Pradesh.

Small states (Map 2)

• Sikkim remains the top-ranked small state (5.20/10).
• Himachal Pradesh and Arunachal Pradesh follow closely.
• Meghalaya, Mizoram, and Goa slide to the bottom ranks among the seven small states.

2. Scorecards of Change: Who improved? (Figure 1: Improvement scorecard)

The report measured whether states had improved between the 2022 and 2025 editions across 68 indicators.

Top improvers among large states:

• Bihar improved on 47 out of 68 indicators — the highest improvement rate.
• Chhattisgarh, Odisha, Rajasthan, and Karnataka also showed strong positive shifts (around 40 indicators each).

Among small states:

• Himachal Pradesh and Sikkim were the most consistent improvers.

Uttarakhand, Haryana, and Madhya Pradesh showed moderate improvements, while states like Maharashtra, Gujarat, and Tamil Nadu showed worrying stagnation or decline.

3. Diversity and Representation: Still a distant goal?

Diversity rankings (Figure 2)

• Karnataka is the only large state to meet SC, ST, and OBC quotas in both police and judiciary.
• Caste-based diversity in judicial appointments is poor across most states, despite constitutional mandates.

Women’s representation (Figure 3–5)

• Five states — Andhra Pradesh, Bihar, Chandigarh, Ladakh, and Tamil Nadu — are moving steadily towards achieving 33% women’s representation in police.
• District judiciary has seen a steady rise in women judges, now at 38%, but High Courts and Supreme Court continue to show male domination.
• Projections suggest that even at the current pace, it will take decades for full gender parity.

4. Human Resources: Vacancies and gaps (Figure 7–9)

• Judge-to-population ratios remain poor across almost all states; subordinate courts suffer from 20% judicial vacancies on average.
• Police vacancies have barely improved since 2017.
• Forensics staffing is dangerously low, jeopardising the quality of investigations and trials; Out of nearly 10,000 sanctioned posts across states, nearly 50% remain vacant.

5. Justice system intent and budgets (Figure 10-11)

• Budgets for judiciary, legal aid, and police have increased — but primarily towards salaries, with little new investment in training, modernisation, or infrastructure.
• States’ contributions to legal aid budgets remain minimal, indicating a continued lack of political will.

6. Pendency of cases (Figure 12-15)

• Cases pending for more than three years account for a large proportion of the backlog in subordinate courts.
• Cases pending more than five years are also rising steadily — indicating systemic failures in ensuring timely justice.

Regional leaders and laggards

Southern states dominate the upper echelons of the justice delivery rankings. Karnataka leads among large states, followed closely by Andhra Pradesh, Telangana, Kerala, and Tamil Nadu. Karnataka stands out as the only state that meets Scheduled Caste, Scheduled Tribe, and Other Backward Classes quotas in both the police and judiciary.

Among smaller states, Sikkim has consistently retained its top position, followed by Himachal Pradesh and Arunachal Pradesh. In contrast, Goa, Mizoram, and Meghalaya have slipped to the bottom rungs.

At the lower end, Uttar Pradesh and West Bengal continue to battle for last place among larger states, highlighting severe structural deficits.

Capacity challenges across the board

The findings also reveal that capacity-building remains elusive across pillars. Police forces struggle with low personnel numbers and training investments. Prisons remain overcrowded and under-resourced. Judicial strength and efficiency remain hostage to persistent vacancies and procedural rigidity. Legal aid services show shrinking outreach efforts. State Human Rights Commissions (SHRCs) display improved case disposal rates, but this masks a worrying trend: many SHRCs reject complaints at the outset rather than offering substantive resolutions, compromising their integrity and public trust.

Moreover, while technology adoption has expanded — with platforms like the National Judicial Data Grid (NJDG) and NALSA’s legal aid management system — poor internet access, patchy digitisation, and bureaucratic inertia hamper real transformation.

A call to action

The India Justice Report 2025 makes it starkly clear: without serious, sustained investment in the structural capacities of the justice system, without a genuine commitment to inclusion, transparency, and systemic reform, India’s vision of equitable, accessible justice will remain out of reach.

Data from the report underscores that while isolated improvements are visible, the system as a whole still falters. Fragmented, underfunded, and often discriminatory, India’s justice institutions need not just incremental changes but a concerted, well-resourced overhaul.

The findings are not just a mirror of current realities, but a roadmap for an ambitious, necessary transformation — one where justice, as promised by the Constitution, can become a lived reality for all.

The complete report may be read here.

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The post Underfunded, Overburdened, and Unjust: The national verdict from the India Justice Report 2025 appeared first on SabrangIndia.

Before The Times of India (TOI) broke the story, a series of crucial developments had already unfolded. By March 15, Chief Justice of Delhi High Court (CJ, Delhi HC) Justice D.K. Upadhyaya already had instructions from (CJI) Justice Sanjiv Khanna on what other details they needed. The following is established on the basis of Justice Upadhyaya’s report:

On March 16, Justice Upadhyaya met the CJI and reported the happenings reported to him. On March 17, Justice Upadhyaya met Justice Yashwant Varma and showed him the photos and videos of the purported cash, at which point Justice Varma expressed concerns that he was being targeted in a conspiracy.

On the morning of March 20, Justice Upadhyaya sent the images and videos to Justice Khanna. That same evening, Justice Upadhyaya was notified about the proposal to repatriate Justice Varma back to the Allahabad High Court, his parent High Court. Justice Upadhyaya endorsed the proposal, stating that it was in the interests of justice. It was only after these internal developments that the TOI publicly reported the story.

The Supreme Court on March 22 announced a three-member Committee comprising of judges from various High Courts that would conduct an inquiry into this incident. On March 24, the Collegium’s resolution to repatriate Justice Varma to Allahabad High Court was published.

This article is not to address judicial corruption, a well-documented issue with established theories on solutions(see here, here and here)—awaiting only implementation. Instead, it highlights how the outrage over the Justice Yashwant Varma fiasco is part of an ongoing erosion of judicial credibility, a concern rooted in legitimate issues. From appointing openly communal individuals as judges to failing to act against sitting judges who make communal remarks, the judiciary’s credibility and public trust have been in steady decline. Yet, the higher judiciary appears to be missing opportunities to restore it.

This article argues that the collegium’s resolutions must be more transparent and informative and striving for this transparency would be a crucial first step in rebuilding trust in the higher judiciary.

The issue: Context

The Collegium is one of the most powerful bodies in India today. Despite having no constitutional mention or statutory status, its power is such that it decides who gets to be a judge in India’s High Courts and the Supreme Court. The Collegium is not answerable to the executive or the legislature— a feature that it draws from one of the core principles of the Indian Constitution—independence of the judiciary. It consists of the Chief Justice of the country and four of the senior-most judges of the Supreme Court—a system in place since 1998.

The NJAC challenge and calls for transparency

In 2014, the NDA government enacted the National Judicial Appointments Commission Act, 2014 to replace the collegium system. A 5-judge bench of the Supreme Court in Supreme Court Advocates-On-Record Association & Anr. vs. Union of India ([2015] 13 SCR 1) declared the NJAC as unconstitutional with one judge—Justice Chelameswar dissenting.  Both the majority and dissenting opinions expressed the need for greater transparency in the process of judicial appointments.

After the judgement, and once he became a senior judge qualified to be in the collegium, it was reported that Justice Chelameswar refused to attend the collegium meetings since it was an opaque process. In 2017, to resolve the deadlock, the Collegium started to make public its resolutions during the tenure of CJI (as he was then) Dipak Misra.

While that process enabled the resolutions to be published, in December 2022, in the case of Anjali Bhardwaj v. CPIO, Supreme Court of India, (RTI Cell), (2022 SCC OnLine SC 1698), the Supreme Court held that held that unless any Collegium discussion culminates into a final decision, the discussion shall not be disclosed to public.

A study in 2022 stated that the collegium systematically failed to disclose critical information essential to an enhanced understanding of its functioning. The study stated that an overwhelming majority of its decisions are not reasoned and that the resolutions fail to provide a meaningful understanding of the considerations, based on which candidates are selected or rejected.

Except for a brief, considerable change during CJI (as he was then) DY Chandrachud’s tenure, the study’s findings hold true.

Collegium communications: A formality within a formality

Currently, the Supreme Court of India publishes Collegium resolutions on its website, offering a glimpse into its decision-making process, including, transfers and appointments of judges to higher judiciary. However, these resolutions often feel like a mere formality—followed more out of precedent than a genuine commitment to transparency. Why?

On March 24, the Supreme Court collegium’s statement was released on the repatriation of Justice Yashwant Varma to Allahabad High Court. It reads as follows:

“The Supreme Court Collegium in its meetings held on March 20 and 24, 2025 has recommended repatriation of Mr. Justice Yashwant Varma, Judge, High Court of Delhi, to the High Court of Judicature at Allahabad.”

If we did not have the Times of India story and had this resolution come out without the nation ever having the knowledge of the alleged cash, the public would have not known what had happened.

More broadly, when judges are transferred, the reasons are often unclear. Whether it is due to seniority, the interests of justice, or a particular skill being required elsewhere, there is little transparency in the decision-making process.

For instance, let us take the example of Justice Arindam Sinha on whose transfer the resolution was notified on the same day Justice Yashwant Varma’s transfer was notified, with similar resolution.

In May 2021, while serving as a judge at the Calcutta High Court, Justice Arindam Sinha strongly objected to the division bench led by Acting Chief Justice Rajesh Bindal treating a transfer petition filed by the Central Bureau of Investigation in the Narada scam case as a writ petition. He had also opposed the bench’s decision to stay the bail granted to four Trinamool Congress (TMC) leaders and its move to constitute a larger bench due to divergent opinions between the two judges. Later in September 2021 he was transferred to the Orissa High Court, and now he has been transferred again. We do not know why, in both cases.

Judicial transfers are a natural process, but what prompted this judge’s transfer to that particular court remains unknown. Justice Arindam Sinha’s transfers could well be routine, day-to-day adjustments, but the point to note here is that in the absence of official reasoning, the public is left to speculate.

If someone wants to rule out a few possibilities, they will likely have to track Justice Sinha’s seniority and see whether his transfer aligns with the seniority list. However, the Supreme Court is not bound to follow strict seniority in judicial transfers, and decisions can be made based on other considerations such as administrative requirements, institutional interests, or other factors.

A choice exercised at will

This nonchalant formality is not the case with all collegium resolutions. Some are more detailed; some are just a press note.

For example, in the resolution dated March 6, 2025 to appoint Justice Joymalya Bagchi as the judge of the Supreme Court, the SC has put out a two-page resolution. The resolution talks about the factors that have been taken into consideration, while appointing Justice Bagchi who stands at No.11 in the All-India Seniority list of judges, like the fact that Calcutta is represented by only one judge in the SC.

Has it always been like this?

Yes, but also no. During Chief Justice of India (as he was then) Justice DY Chandrachud’s tenure as CJI [9 November 2022 to 10 November 2024], the collegium resolutions were way more detailed.

For example, take the last collegium resolution during the tenure of Justice Chandrachud as CJI—a resolution regarding appointment of advocates as judges of the Bombay High Court. The resolution had details on consultation with judges over the candidacy, government inputs, professional experience and credentials, experience of those who were appointed. This was not some ideal-comprehensive format but was surely a different way than it had been done before.

However, as soon as Justice Chandrachud retired, the collegium resolutions more or less went back to being as they were, simple communiques of a very powerful body that, to this day answers effectively to no one. We do not know why. No one asked and no one cared to clarify.

Why is it necessary that collegium process is more transparently communicated?

Judicial independence stands as a fundamental pillar of any robust democracy, safeguarding the rule of law and ensuring that justice is administered impartially. Given the collegium system’s origin, the procedures and accountability mechanisms of the Collegium are not as firmly established as those of bodies with a clear constitutional or legislative basis, making it inherently susceptible to questions regarding legitimacy and openness.

The lack of transparency was one of the primary reasons for which Justice Chelameswar authored his powerful dissent in the NJAC case. Due to the Justice Varma incident, there is a renewed push by the ruling establishment for judicial reforms and a relook at the NJAC (See here and here).

The release of more detailed Collegium resolutions holds significant potential to address the criticisms levelled against the system’s opacity. Including the specific reasons for recommending a particular candidate, such as their demonstrated expertise in a specific area of law, notable judgments they have delivered, or their contributions to legal scholarship, would provide a much clearer understanding of the basis upon which the Collegium makes its selections. Explicitly stating the criteria that the Collegium considered for each appointment, going beyond generic terms like “merit and integrity,” would also enhance transparency and allow for public evaluation of whether these criteria are applied consistently across different appointments. While a verbatim transcript of the Collegium’s deliberations might indeed compromise the confidentiality necessary for frank discussions, providing a summary of the key perspectives considered and the rationale behind the final decision could offer valuable insights into the decision-making process. Furthermore, explaining the reasons for not recommending certain candidates (without necessarily disclosing their names if privacy is a concern) could help address concerns about fairness and potential biases within the selection process. In the context of judicial transfers, providing specific reasons beyond the vague “better administration of justice” would help dispel speculation and potential accusations of transfers being punitive in nature.

By moving beyond simply announcing decisions to providing clear explanations for the rationale behind them, more detailed resolutions would foster greater public understanding and potentially increase trust in the judicial appointment process. The fact that collegium resolutions were often detailed during Justice Chandrachud’s tenure suggests that the Collegium possesses the capacity to provide more comprehensive information and might be amenable to revisiting this approach. However, it should not come from a CJI’s prerogative since it can be discontinued by the next one. It must come from a set of rules which the Court as a whole writes for itself and follows.

For example, some have commended the CJI’s decision to put in public some material (albeit redacted to an extent) related to Justice Yashwant Varma’s case. However, the important point here would be to remember that instances of corruption have continued to persist and will do so, in the future. In that case, while commending the act of being transparent, the Supreme Court should also be called upon to arrive at a set procedure in these kinds of cases and make it transparent, if and when they arise in future.

Transparency inherently acts as a form of accountability, incentivising the Collegium to be more meticulous and reasoned in its decision-making process, knowing that their rationale will be made public and subject to scrutiny. Given that the judiciary often emphasises the importance of transparency for other institutions, a perceived lack of it within their own appointment process can be viewed as inconsistent, potentially undermining their moral authority in advocating for openness elsewhere. Public perception of fairness and integrity is paramount for the judiciary’s effectiveness.

Writing better collegium resolutions will not solve the issues with Collegium. They can only be solved by establishing an independent and transparent appointing body which is answerable to the people. While that might take time, this is within the powers of the Collegium and it should not let go off an opportunity to show that it too, can reform itself.

Why should they change now?

Simply put, the changes have to be made to make an effort at rebuilding the eroding public trust in the judiciary. Yes, people are scared of courts. No one wants a contempt order targeting them. However, is fear the tool with which the higher judiciary can sustain its stature in the Indian political scheme? Is it sustainable? It is not.

Sooner or later (now that it is already too late, therefore soon), someone—like George Carlin once did—will stand up and say, “They’ve got the judges in their back pockets,” referring to how the closed door appointment systems and judicial corruption serve the rich and powerful. And when that happens, it would be too late to initiate a contempt proceeding against whoever says it.

Conclusion

While more detailed Collegium resolutions represent a significant step forward, relying solely on them might not be sufficient to achieve full transparency within the system. Even with increased detail, resolutions may not fully capture the nuances of the discussions and considerations within the Collegium or any informal consultations that might occur. The interpretation of broad criteria such as “merit” and “integrity” can still remain somewhat subjective, even if elaborated upon in the resolutions. The possibility of the Collegium tailoring the reasons provided in the resolutions to rationalize decisions already made cannot be entirely discounted. Furthermore, resolutions primarily focus on the final recommendations and might not provide insights into the initial stages of identifying potential candidates or the role played by High Court Collegiums in the overall process.

To further enhance accountability and openness, several other measures could be considered. Establishing clearer and more objective criteria for evaluating candidates, and making these criteria publicly available, would be a crucial step.

The judiciary has long defended itself from the executive wanting to control it. People of India supported the judiciary after they saw how it supported them from its decisions on Right to Education to its exceptional integrity in handling high profile matters involving influential politicians. It is this support that has given the higher judiciary its glorious decades. If the institution ignores the clear warning signs and resists reform, it risks losing its independence to an encroaching executive.

(The author is part of the legal research team of the organisation)

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The post Potential of reasoned Collegium resolutions as a starting point for transparency in the Indian higher judiciary appeared first on SabrangIndia.

Arjun Ram Meghwal, who is currently serving as the Union Minister of Law and Justice, apprised the Rajya Sabha with detailed data on the representation of women and SC/ST/OBC groups in the judgeship of the constitutional courts of India. As per the data provided, at present there were a total of three women justices in the Supreme Court, namely Justice BV Nagarthana, Justice Hima Kohli and Justice Bela M Trivedi. As the current working strength of the Supreme Court stands at 34, the representation of women in the Supreme Court comes down to a mere 8.8%. It is essential to note here during the term of the current Chief Justice of India, DY Chandrachud, no woman has been elevated to the Supreme Court.

Furthermore, the data provides that a total of 111 women judges are present in the various High Courts of India. A total of 790 judges comprise all the High Court’s bringing the percentage of women representation to 14%. The data of the union government shows that the maximum number of women judges are present in the Punjab and Haryana High Court a total of 15, followed by the Madras High Court with 12 women judges and Bombay High Court with 11 women judges. It is crucial to note that there is no representation of women judges in the High Courts of Meghalaya, Tripura and Uttarakhand. It is crucial to note that except for Gujarat High Court, there is no woman Chief Justice in any of the high courts in India. Chief Justice Sunita Aggarwal had been appointed as the CJ on July 19.

Based on the data, it can be deduced that in higher judiciary, a total of 114 women judges are present out of the total 814 judges, forming 13.8 per cent.

A look at the data regarding judges from the SC, ST and the OBC groups shows that between the years 2018 and 2023, a total of 650 judges were appointed and a majority of them were from the general category. As can be deduced from the data, a total of 492 judges belonging to the general category were appointed, which is equivalent to 75.69% of the current strength. This dominance of the general category appointments was in stark contrast to the appointments that took place from the marginalised categories. In period of 6 years, 23 judges (3.54%) from the SC community, 10 judges (1.54%) were from the ST community and 76 judges (11.7%) were the OBCs. The data further shows that a total of 36 judges (5.54%) were minority. Essentially, these groups make up a total of about 22.24% of the judiciary.

It is crucial to note that during the tenure of CJI D.Y. Chandrachud, who took his office in November 2022, there has been an increase in the diverse representation. From having zero representation of the ST community in the High Courts, the number today stands at 5 judges. Additionally, in 2022, there were there 17 OBC judges and 5 judges from the minority, which has now risen to 20 judges 8 judges respectively. It is also pertinent to highlight that while the Supreme Court is working at its sanctioned strength of 34 judges, the 25 high courts have a cumulative shortage of 324 judges, where 790 judges are working as against the sanctioned strength of 1,114.

The necessity for diversity in the judiciary has been highlighted especially by the former Chief Justice N.V. Ramana. He had emphasised upon the importance of diversity in reflecting the nation’s social and geographical diversities. Current CJI Chandrachud had also stressed that diversity in the bench promotes diverse opinions, enhances efficiency, and creates a judiciary that people perceive as their own. The speeches and statements from both the current and former justice underscore the importance of inclusivity, representing various castes, religions, genders, and marginalized communities within the judiciary.

As can be opined, to create a more diverse and representative judiciary, reforms in the appointment process are essential. This would be possible by redefining ‘merit’ to encompass diverse experiences and backgrounds. This highlights the need to harmonise merit with diversity and to identify and promote meritorious candidates from marginalized communities.

The complete answer can be accessed here:

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“When there is an oppressive state, the hope is in the judiciary,” he said. Justice Muralidhar opined that the constitution protects both the strong and the weak, but more the weak. “It is the judiciary that can act as a check on excesses by the majority and protect the weak against the strong”, he said speaking at the event organized by the Academy for Advanced Legal Studies and Training.

“There is a tendency in governments to control other organs of the state. This is not a new phenomenon. We have to learn from history. We have to see how strong a judiciary we can be to anticipate this and still stand on the side of the weak, the oppressed, the dissenter, the minority because for them, the hope is the judiciary” he said.

In his over 90 minute, interactive presentation, Justice Muralidhar also highlighted that the essential facet of judicial functioning is impartiality and fearlessness. He said that the constitution itself must be seen as a statute limiting state power. “To check the excesses of the state you need an independent and impartial judiciary”, he said.

Justice (Dr) S Muralidhar, before his recent retirement, served as the Chief Justice of Orissa High Court between January 2021 and August 2023. During his 17-year-long tenure, he also served as a judge of the Punjab and Haryana High Court and Delhi High Court.

He also said that when orders of the Court are not respected and are overlooked, the legitimacy of court functioning is challenged. He highlighted this as one of the factors affecting the independence of the judiciary. He pointed out the recent case of extension of the term of the director of the Enforcement Directorate by the Supreme Court to illustrate this.

“This is a serious issue, we have so many instances. The most recent example is the extension of the term of the Director of ED. Where the central government came back and said that notwithstanding your judgment we still need more time to find a replacement.”

He also referred to the recent stand of the Centre before the Delhi High Court in the Newsclick case, where the court was informed that the Centre is planning to file a review against the judgment in Pankaj Bansal V Union of India, where the Supreme Court has held that the grounds of arrest need to be furnished in writing to the arrestee under the Prevention of Money Laundering Act.

“Another instance is the recent judgment by Justice Bopanna and Sanjay Kumar on grounds of arrest being furnished to the arrestee under PMLA. The government has already told the Delhi High Court that it is filing a review,” he said.

The well-recognised former judge, Justice Muralidhar also spoke on executive interference in judicial appointments as one of the main factors affecting judicial independence. He expressed serious concerns about the phenomenon of the executive delaying approval of collegium recommendations in order to interfere with the seniority of judges. He spoke of the way in which Justice KM Joseph’s elevation to the Supreme Court was delayed in order to tinker with his seniority.

“All of us know this was interfered with. Justice Indu Malhotra was sworn in first in April. Justice Joseph’s recommendation was reiterated and made later, so the seniority got altered” he said.

Justice Muralidhar referred to how Justice Sanjay Kishan Kaul of the Supreme Court had said that the feeling one gets is that there appears to be another level of screening that is happening that is being used to delay appointments.

“Since the Supreme Court has voiced its concern, we should pay attention to this and what it is doing to the independence of the judiciary. Notwithstanding that the NJAC did not go through, if the executives still have an upper hand in the appointment of judges then it is a matter for concern” Justice Muralidhar said in this regard.

He said that such executive interference is taking place at the level of the High Courts too.

“This is happening at the High Court level also. This happened in Orissa too. We sent a set of 4 names. The first person on the list was cleared later so seniority was altered, no reason given. This tinkering with seniority is a new phenomenon. The interference in transfers is a new phenomenon, the interference with appointment of Chief Justices is a new phenomenon,” he said.

Speaking on the need to bring more transparency in the collegium system, Justice Muralidhar said “this requires a more open debate based on empirical data. Very often all of this is shrouded in mystery. Very often nothing is on paper. We need a more transparent functioning to understand how these two organs, the executive and judiciary look at the same set of names, and why they decide what they decide. Merely changing the system will not give us results”.

Justice Muralidhar ended his lecture with a quote from the 2015 judgement, Madras Bar Association V. Union of India:

“Impartiality is the soul of the judiciary, independence is the lifeblood of the judiciary. Without independence, impartiality cannot thrive. Independence is not freedom for judges to do what they like. It is the independence of judicial thought.”

“An independent judiciary can exist only when persons with competence, ability and independence with impeccable character man the judicial institutions.”

Making history in the Orissa High Court

In a unique move towards judicial transparency and accountability, the Orissa HC under his leadership institutionalized an Annual Report in 2021, in which the court had evaluated its own performance, listed challenges. “For any institution, introspection is necessary to overcome the drawbacks and to enhance efficiency,” the 2021 annual report has stated in a chapter titled ‘Introspection and Challenges’. Sabrangindia had analysed this report in depth.

This report addressed the crucial question of the digital divide over access to justice, managing the docket explosion (increasing number of cases), listing important judgments of each of its 18 judges to remembering staff who succumbed to the Covid-19 pandemic.

Justice Muralidhar, similar to Justice Akhil Kureishi (originally of the Gujarat High Court) have been victims of vicarious exclusion in appointment by the union government under the present regime. There was much comment last year, in October 2022, with the union government deliberately stalling his transfer to the Madras High Court. At the time, the the Orissa High Court Chief Justice has served a long tenure at Delhi High Court from where he was hurriedly transferred after he pulled up the Delhi Police for not doing their job during the 2020 Delhi riots.

Former Supreme Court Judge Justice Madan Lokur, who has been very vocal about recent legal developments in the country, had then stated that the union government is not entitled to selectively pick and choose from decisions made by the Collegium of the SC. That aside, if the last time the Centre sat on the Collegium’s decision on Justice Akhil Kureishi, this time it is conspicuously excluding Justice Muralidhar.

A detailed report on Justice S Muralidhar may be read here.

Background

Justice Muralidhar was appointed as judge of Delhi High Court in 2006 before which he was a practicing advocate at the Supreme Court. It was, however, his sudden transfer from Delhi High Court to Punjab and Haryana High Court in the midst of hearing of the case against BJP politicians Anurag Thakur, Parvesh Verma, Abhay Verma and Kapil Mishra, all with close associations with the ruling Bharatiya Janata Party (BJP) over hate speeches which sparked the North East Delhi riots of February 2020 that had come under strong opposition from within the Delhi Bar itself.

Midnight hearing during Delhi riots 2020

The intervening night between February 25 and 26, 2020 ambulances were prevented from entering minority neighbourhoods to help injured people in Mustafabad area of Delhi thus preventing people suffering from critical injuries, some of them bullet wounds, from getting urgent medical attention.

Around midnight, activist Rahul Roy moved Delhi High Court leading to a two-judge bench convening a special hearing late at night at the home of Justice S Muralidhar. He and Justice AJ Bhambhani heard the phone testimony of Dr Anwar of Al Hind Hospital who informed the court that 2 people were dead and 22 injured were at the hospital. The court then directed Deepak Gupta, DCP East Delhi to reach the hospital and ensure safe passage for the injured so that they may be transferred to GTB Hospital, LNJP Hospital, Maulana Azad Hospital or any other hospital where they can get the care they deserve.

Stating that “police do not have to wait for a court’s order” and “it should take action on its own”, the Delhi High Court sought the police’s stand by 12:30 pm. The bench then asked solicitor-general Tushar Mehta to advise the police commissioner on lodging of FIRs against the perpetrators. The court also asked Mehta and deputy commissioner of police (crime branch) if they have seen the video clip of BJP leader Kapil Mishra making alleged hate speech after which the video was even played in the court room.

The bench had also asked SG Mehta and Deputy Commissioner of Police (crime branch) if they had seen the videos and when the bench was informed that they didn’t come across the video of Mishra’s speech, Justice Muralidhar had said, “There are so many TVs in your office, how can a police officer say that he hasn’t watched the videos? I’m really appalled by the state of affairs of Delhi Police”, reported LiveLaw.

Justice S Muralidhar had questioned the police as to why there had been no FIRs lodged against leaders of the ruling party for their inflammatory speeches. He had said, “You showed alacrity in lodging FIRs for arson, why aren’t you showing the same for registering FIR for these speeches?” He had asked Delhi Police to take a “conscious decision” to register an FIR in 24 hours and expressed “anguish” that the city is burning and questioned the Delhi Police on the delay and its lack of acknowledgement of the speeches themselves as crimes.

Within days, if not hours of this historic midnight hearing, Justice Muralidhar was hurriedly transferred to Punjab and Haryana High Court.

Now, after a 17 year career in India’s constitutional courts, Justice (Dr) S Murlidhar, after retirement has become a clear advocate of judicial independence and autonomy.

The post Whenever there is a strong executive, there has been a visibly weak judiciary: Justice Dr. S Muralidhar appeared first on SabrangIndia.

The first years of Indian Independence were very fraught indeed. Jawaharlal Nehru became the prime minister and served for 16 years. Nehru promoted parliamentary democracy, secularism, science and technology during the 1950s. In January 1950 a new republican Constitution came into being. The Congress under Nehru’s leadership established a democratic Constitution and oversaw a series of mostly fair elections. Another great gift it gave to the people of India was the positive ideology of Hope.

The Congress of the 1950s and the1960s is best regarded as the school of democracy. During this period Indian people learnt to vote and speak their minds freely. They learnt also to craft and entrust independent, impersonal, rule-bound institutions such as the judiciary, the press and (not the least) the Election Commission. Thus, through the 1950s and 1960s, the specific contours of democracy and national unity were intensely debated in all parts of the country. Nehru’s Congress party won successive general elections from 1952 to 1962. Lal Bahadur Shastri became the prime minister after the death of Nehru in 1964 and on his death in January 1966 Indira Gandhi became the prime minister.

Congress under Indira Gandhi

The 1967 general elections, which were held under the prime ministership of Indira Gandhi, cut the Congress’s majority in the Lok Sabha to twenty five, it lost 264 seats in state assemblies and its majority in 8 states.

Till the 1967 the elections of the Parliament and all the State Assemblies used to be held simultaneously and much money was not required to contest election. Politics was an instrument of service. The elections used to be contested on ideologies of political parties. In 1967 elections Congress suffered reverses as a result of anti-Congress wave. It started becoming apparent that in the next elections, which were due in 1972, the Congress Party was bound to lose power in the Centre and many states.

In 1969, Indira Gandhi split the Indian National Congress into two: the one led by Indira Gandhi came to be known as Congress (I), and the other which comprised the then stalwarts in the Congress, came to be known as Congress (O). In 1977, the Congress (O) merged into the Janata Party and thereafter ceased to exist.

In 1971, Indira Gandhi, politically shrewd as she was, was fully able to sense the impatience in the people about removal of poverty, gave a deceptive slogan of ‘garibi hatao’, delinked the parliamentary and the assembly elections, surprisingly, by preponing the same, which otherwise were due in 1972. She utilised a large amount of money in elections for her party candidates and secured a thumping majority, giving a severe blow to the process of political polarisation on an ideological basis. She secured 352 seats in the Lok Sabha in these elections. A series of events since  1971  finally led to the destruction of the Babri Masjid in Ayodhya on the December 6, 1992 demonstrate that both the major political parties-the Congress and BJP–have shown little regard for the rule of law and the country’s judicial institutions.

Both the said parties wanted judiciary to be weak and have been making attempts to make the Court obedient to their governments, both unbalanced the power equations among the three branches of the state. Both the parties also wanted to change the basic structure of the Constitution. Mrs. Gandhi’s government superseded the three senior most judges of the Supreme Court for their ruling in Kesavanand Bharati case, laying down the basic structure doctrine.

During the years, 1971-77 Mrs. Indira Gandhi ruled the country in an authoritarian way. The date, March 23, 1977 is regarded as the day of India’s liberation from authoritarianism as on that date Mrs. Indira Gandhi had lifted the Emergency. In 1977 elections Mrs. Indira Gandhi suffered a crushing defeat and for the first time a non-Congress government of the Janata Party came into power. The Janata Party government could not survive on account of its internal contradictions and in 1979-80 mid-term elections of the Lok Sabha were held. In these elections Indira Gandhi secured majority votes.

Rajiv Gandhi’s Congress and India

The danger of authoritarianism reappeared with the success of Mrs. Gandhi in the post-Emergency elections of 1979-80. In 1984 Mrs. Indira Gandhi was assassinated. Thereafter, Rajiv Gandhi was sworn in as the next prime minister for only two months. In the 1984 elections, in which Rajiv Gandhi had a clean sweep, BJP could secure only 2 seats in the Lok Sabha. The Sangh Parivar started a campaign for the construction of a magnificent Ram Janam Bhoomi Temple at the site of the Babri Mosque and by 1985 built up a sizeable support in the Hindu community. In January 1986, the locks of the 450 year old Mosque were opened and “Ram bhakts” were permitted to offer prayers to “Ram Lala”. It is said that the Prime Minister Rajiv Gandhi’s aide and minister Arun Nehru ordered the Chief Minister Veer Bahadur Singh to ensure that the district administration do this. Thus, in this period, both these parties, the BJP and the Congress, started pandering to communal Hindu sentiments. By 1988, Hindutva organizations led by the RSS organised a mass campaign for building a grand temple exactly where the Mosque stood. They claimed that the Mosque stood at the precise site where Lord Ram was born. By the time  the fifth and the final suit was filed on July 1, 1989 and all the five suits were transferred to the High court to be tried by a Full Bench by order dated July 10, 1989, the political climate had changed beyond recognition.

Union Home Minister Buta Singh signed an agreement with the VHP on the August 17, 1989, to the effect that bricks for constructing the temple would be allowed to be brought from all over the UP without hindrance and collected at plot No. 586 near the Mosque. This agreement was in violation of an order of the Allahabad High Court dated August 14, 1989 that stated that no construction activity could be taken at that spot.

Later, the VHP announced that ‘kar sewa‘would be performed to lay the foundation stone. This was also a violation of the judgment given two days ago, prohibiting any such activity. This repeated defiance of the orders of the court did not weigh with the Prime Minister, Rajiv Gandhi, who inaugurated the campaign of the Congress party the next day from the twin city of Faizabad, and announced, moreover, that the objective of the Congress party was to establish Ram Rajya. Soon thereafter the BJP president Advani at Palampur, after the National Executive Meeting, announced that the inclusion of the construction of the temple in its Election Manifesto “would fetch votes” for it. It would thus appear that the two major political parties were in a race to the finish on this issue.

The race between the two was lost by Rajiv Gandhi and won by L.K. Advani. The next elections were to be held in 1989. The Congress could secure 197 seats only as compared to 404 seats in 1984, and the BJP got 85 seats as compared to only 2 seats in 1984. Thus a non-Congress government came into being in 1989.

The masculine, militaristic, ultra-Hindu nationalism, which is being propagated by the BJP and the Sangh Pariwar, represents a far greater danger to the Indian democracy than the personal authoritarian rule which Mrs. Indira Gandhi imposed on the country. The movement for the construction of a Sri Ram Temple by destroying the Masjid was clearly a movement for encouraging Hindus to humiliate Muslims. The main reason why the Babri Masjid was destroyed on December 6, 1992 was that the Narasimha Rao government at the Centre did not like to take any firm action against the so-called Kar Sewaks because it was reluctant to alienate Hindu votes.

Looking back, we find that the people of this country had an urge to participate in the political process. This was evident in the elections that took place till 1967, and then in 1977. Until this time, a common man could hope to get elected, because until then, electoral politics had not come in the vicious grip of casteism, communalisation and criminalization. It was in 1989, when the fifth suit was filed and all the suits were transferred to the High Court that the poll politics came in the vicious grip of casteism, communalisation and criminalisation.

Ayodhya Judgement 2019

The controversial judgment in the Ayodhya case by the Supreme Court was delivered on November 9, 2019. By now, the Union Home Minister Amit Shah has declared the construction of the temple would be completed by the January 1, 2024. That means that the issue would be used in parliamentary elections as an “achievement” and claim that the grand Ram temple has been built due to their efforts. The BJP thus is still keeping the issue of Babri Masjid alive, but Congress is now out of the race.

The Constitution Bench which decided the Ayodhya case comprised of Chief Justice Ranjan Gogoi, Justice Bobde, Justice S. Abdul Nazeer, Justice Ashok Bhushan and Justice D.Y.Chandrachud. Chief Justice Ranjan Gogoi has been nominated as Rajya Sabha member, Justice S.Abdul Nazeer has been made a Governor within a month of his retirement and Justice Ashok Bhushan is currently the Chairperson of the National Company Law Appellate Tribunal.

Independence of the Indian Judiciary

The judgment in the NJAC case came on October 16, 2015. Unfortunately, till N.V.Ramanna took over as the Chief justice of India, at least four of his predecessors were perceived as standing with the government, even when the fundamental rights and civil liberties of the people were under attack and dissent was being suppressed under the UAPA and the draconian law of sedition. It was only after Justice Ramanna took charge that some faith in the judiciary was restored. During his tenure, Supreme Court agreed to revisit the sedition law and urged the government to refrain from lodging FIRs under the said laws.

Justice U.U. Lalit, who had a tenure of less than 3 months, made sincere efforts to bring about the much needed reforms in the listing of cases with a view to ensuring that important cases no longer remained on the back burner and were heard expeditiously.  The present Chief justice of India is known for his commitment to Fundamental Rights and Civil Liberties of the people.

A “Committed” Judiciary

The present government had no problems with the Supreme Court so long as it was docile and was by and large toeing its lines. But now fearing a more assertive court, the esrstwhile Union Minister of Law and Justice (Kirin Rijiju) and the Vice President (Dhankar) find the collegium system of appointment of judges to the High Courts and Supreme Court “opaque and not accountable.” The former Law Minister, Kiran Rijiju, has also questioned the court’s order putting the sedition laws in abeyance.

When the Modi government was formed in 2014, they announced that the appointment of judges by the collegium should go. With this objective, the NJAC Act 2014 was enacted. Its validity was challenged.  The Supreme Court declared the NJAC Act and the consequential amendment to the Constitution as unconstitutional on the ground that it was against the judicial independence and thus contrary to the basic features of the Constitution. The Court did what it is ordained to do under the Constitution. Nothing more nothing less.

Most politicians, while in power, are allergic and intolerant to an independent judiciary. It requires a politician to rise to the level of a statesman and a visionary to understand how vital an independent judiciary is to the functioning of a constitutional democracy. Authoritarian regimes want that the judiciary should be executive-minded. Indira Gandhi also wanted to have a committed judiciary. ‘Committed’ here means committed to the executive.

The re-emergence of Indira Gandhi after her authoritarian and personal rule, especially between 1972 to 1977, started after 1979-80 elections when Indira Gandhi defeated the Janata Party in the elections.

Granville Austin in his book ‘Working a Democratic Constitution’wrote  “During January 1980 Justice Bhagwati wrote  ‘Dear Indira ji’  letter to the Prime Minister congratulating her on her election and praised her  ‘iron will…..uncanny insight and dynamic vision, great administrative capacity and…… heart which is identified with the misery of the poor and the weak’. The justice continued that: “  The judicial system in our country is in a state of utter collapse. We should have a fresh and uninhibited look at [it]… and consider what structural and jurisdictional changes are necessary. …….”

The unfinished task of having a ‘committed judiciary’ which Mrs. Gandhi wanted to accomplish during 1971-77 was completed on her re-emergence with the help of the judgment of a constitution bench of the Supreme Court headed by Justice Bhagwati in the S.P Gupta case. In that case, known as the First Judges case, the Supreme Court appeared virtually to surrender itself to executive power exercised through the President. According to the decision in the First Judge case, under the Constitution the prime responsibility for the appointment of judges was upon the executive, which meant the executive government and opinion of the executive government was to prevail over the views expressed by the Chief Justice of India. The position of the Chief Justice of India in the matter of appointment of judges was reduced to a nullity. ‘Consultation’ meant little more than passing on information and definitely did not imply consent. The S.P Gupta case judgment was delivered on  December 31, 1981 and it continued to hold the field for about 12 years, up to October 1993, when the judgment in the Second Judges case was given.

Collegium is Supreme

Thanks to the Second Judges case, the Supreme Court, realising the grave error committed in the First Judges case, virtually reversed the judgment in the case holding that the judiciary shall have supremacy in the matter of appointment of judges, and not the executive.

The Third Judges case arose out of a reference made by the President under Article 143 (1) of the Constitution as it was thought that the decision in the Second Judges case created some complications. The questions posed by the President were answered by a unanimous opinion of five Judges of the Supreme Court. (Judgment delivered by Bharucha J). The ultimate effect of the Third Judges case at the end of the day was the substitution of a collegium of five judges instead of three that is to say, the Chief Justice and the next four senior most judges. With these judgments the Congress Party finally gave up the issue of appointment of judges and assertion of the power of the executive.

More recently, under the Modi 2.0 regime, Vice President Jagdeep Dhankhar   sparked a debate on the separation of powers between the executive and the judiciary. He criticised the Supreme Court  for using the doctrine of basic structure to strike down the constitutional amendment that introduced the National Judicial Appointments Commission Act. On December 7, 2022, in his maiden speech in the Rajya Sabha, Dhankar called the striking down of the NJAC Act a “severe compromise” of parliamentary sovereignty and disregard of the “mandate of the people”. It is well-known that in the constitutional scheme of things in India, there is no such thing as the parliamentary sovereign’. If at all it is, it is the ‘constitutional sovereignty’, though we often talk of national sovereignty, which is correctly said. The law minister had also written to the Chief Justice of India seeking government representation in the collegium.

The law minister and the vice president questioned the judgment of the Supreme Court which came to be known as the Kesavanand Bharati case. The said judgment was delivered 50 years ago. In this judgment the court has held that while Parliament has the power to amend the Constitution, it does not have the power to amend its basic structure. It was and is held as one of the finest judgments delivered so far.

Both the erstwhile law minister and the vice president have attacked the basic structure doctrine not only to challenge the NJAC case but for more sinister design. The BJP really wants to change the basic structure of the Constitution, The BJP, for example is against the words ‘secular’ in the Preamble of the Constitution. Although this word was not in the Constitution, as it stood initially, it was inserted in the Preamble by the 42nd Constitutional Amendment Act. The BJP does not want that India should remain a secular country. They want that the word ‘secular’ be omitted in the Preamble of the Constitution, facilitating the declaration of India as Hindu state.

It is worthy to note here that Chief Justice Sikri and Justices Shelat, Grover and Khanna had declared secularism as one of the basic features of the Constitution even before the Forty-second Amendment, by which the word ‘secular’ was inserted into the Preamble of the Constitution. That the ‘secular’ nature of the Constitution is one of its basic features has subsequently been emphasised in innumerable cases.

Subsequent to the Kesavananda Bharati case, the Supreme Court made occasional exploratory searches to identify the basic features of the Constitution. In Kesavananda Bharti case itself, Chief Justice Sikri enumerated what he considered were some of the basic features of the Indian Constitution:

1) supremacy of the Constitution;

2) republican and democratic form of government;

3) secular character of the Constitution;

4) separation of powers between the legislature, the executive and the judiciary;

5) federal character of the Constitution.

Illustrating the statement that the basic structure of the Constitution could not be altered, Khanna J, said:

“It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the State according to which the State shall not discriminate against any citizen on the ground of religion cannot likewise be done away with.”

In State of Rajasthan v. Union of India, independence of the judiciary, judicial review, and separation of powers were held to be the basic features of the Constitution.  This was reiterated in Subhash Sharma v Union of India, by a seven-judge Bench.

India 2023

Now let us discuss the present political scenario. The present political parties have no will or capability to think beyond the centralised system of governance. They are incapable to maintain the integrity of the Constitution and its secular character, and their calculated political actions towards weakening the key democratic institutions are ruinous.

I suggest a new civic movement must emerge with the aim of defending the Constitution and democratic institutions. Human rights defenders, activists and the people, who respect the Constitution should come to gather to fight to secure it.

A people’s movement should be developed on a non-party basis against the present government’s anti-constitutional policies, tactics, governance, ultra-Hindu nationalism of which is the main tool. And it can be done. Such endeavours have already started in the country. Bharat Jodo Abhiyan is one of them.

A large number of persons, who are in the non-government organisations  (NGOs), and who believe in democracy and secularism, and who are determined that India must never turn a theocratic or semi-democratic state, have  joined the Bharat Jodo Abhiyan. A few of such persons are:  Yogendra Yadav, Prashant Bhushan, Admiral Ram Das, Ram Puniyani, Medha  Patkar, Amol Palekar, Irfan Engineer, Nikhil Ray, P.V.  Rajagopal, Pooja Bhatt, Sunilam, Gauhar Raza, Shabnam Hashmi, Professor Anand Kumar,  Kumar Prashant, Prof. Shekhar Pathak, Kavita Srivastava, Ajit Bhuian,  Manoj Kumar Jha, Prahlad Tipania, Ashok Kumar Pandey, Rajeev Dhyani, Bhanwar Meghwanshi, Dr Subhash , Surendra Pal Singh, Ramchandra Rahi, T.M. Krishna,  Roop  Rekha Verma, S.P. Kumar and  Justice Kolse  Patil.

It is timely now that we talk a bit of Rahul Gandhi, who has of now generated some hopes and expectations for the better of the Indian democratic scenario and who is for  long unleashing unrelenting attacks on the ultra-nationalism, crony capitalism, and who is delivering hammer-blows to the Indian government’s  present fascistic policies, tactics and aims.

Rahul Gandhi was only 20 years of age when his father Rajiv Gandhi was assassinated in 1991. He came into active politics sometime in 2004 when Atal Bihari Vajpayee was the Prime Minister of the NDA government. In 2004 elections nobody expected that NDA would not return to power.  A significant political scenario emerged after the Lok Sabha elections of 2004. After years of sheer disgust and frustration with the system, which the Indian polity had remained plagued with, the unexpected poll   results had revealed that the voters had finally delivered a hard blow to the high profile politics, based on emotive communal divide, which had literally dumped the basic issues into the dustbin of electoral politics.

Rahul Gandhi had just entered the politics when his mother, Mrs Sonia Gandhi in 2004,  delivered a master stroke, either guided by strategic reasons or out of  a sense of sacrifice, when she refused to become Prime minister of India and instead nominated Dr Manmohan Singh as the prime minister. During the prime minister ship of Dr Manmohan Singh there were large-scale violations of human rights. In 2009 drastic amendments in the UAPA were made under which human rights activists remained in jails for a long period of time. Rahul Gandhi did not join the government after the Lok Sabha elections of 2004 and 2009.

In the 2014 and 2019 elections, the Modi government remained in power. During this period, there was virtually no opposition in the Lok Sabha. A group of senior Congress leaders, known as G-23, weakened the Congress further. The situation resulted in Rahul Gandhi and his mother remaining as the main leaders of the Congress.  Unlike his father Rajiv Gandhi, who was sworn in as the Prime Minister on the death of his mother Smt. Indira Gandhi for a short period of a month but who, in the general elections that followed (December 1984), enjoyed a clean sweep.

Unlike his father, Rajiv, Rahul Gandhi has had to compulsorily remain in politics and he has consistently kept raising people’s issues as the Leader of Opposition.  For 2024 elections it became necessary for him to have the Bharat Jodo Yatra. The aim of this yatra was to unite India and come together to strengthen our nation.

The yatra began on the September 7, 2022, from Kanyakumari to Jammu and Kashmir spanning a distance of 4000 kms over the course of about 136 days. The yatra received an overwhelming response: lakhs of people have joined the yatra to raise their voice against the economic, political, social issues that are afflicting our nation today. The yatra sought to address rampant unemployment and inflation, politics of hate and division, and over centralisation of our political system.

People from all walks of life came together to be a part of this historical movement. After Bharat Jodo Yatra a Bharat Jodo Abhiyan has been launched on the 6th February 2023 in which about 600 people participated came from around the whole country.

The draft resolution for National Convention of Bharat Jodo Abhiyan says:

“Today We the People of India embark upon a mission, a seven year long journey, to defend the future of India. Today we launch a movement, the Bharat Jodo Abhiyan, that can reclaim our republic, renew our Constitutional values, rescue our democratic institutions and rekindle the spirit of our freedom struggle. A movement of resistance to the unfolding assault on our Constitution, our nationalism, our civilization – indeed, the very idea of India. A movement of national reconstruction that extends its horizon from helping political change to fostering socio-cultural change and indeed combating climate change, that offers a credible hope to secure the constitutional promise of justice, liberty, equality and fraternity for every Indian.

“We are a group of citizens who have worked with various peoples movements, voluntary organisations and political formations. Many of us have participated in the historic Bharat Jodo Yatra from Kanyakumari to Srinagar, from despondency to optimism, from keeping quiet to expressing ourselves, from finger pointing to taking personal responsibility and from apolitical stances to explicit assertion of our political role as citizens. The unprecedented success of this yatra places an extraordinary responsibility on everyone who shared this journey with their body, mind or soul. We launch Bharat Jodo Abhiyan to fulfill this responsibility, to exercise our right to protect our hard won freedom and to discharge our sacred duty to defend our Constitution.”

It seems to me, nay,  my belief  is, that the menace that is hovering over our Constitution is very real, and very serious, and ignoring the same would tantamount to ignoring the imminent dangerous changes that may be effected not long before in India’s civilisation and cultural fabric and firmament.

In these circumstances, the immediate role, and response of, “WE, THE PEOPLE OF INDIA”, would decide at the end of the day whether we survive as a secular, federal, republican nation? Only our response to the situation would determine whether the gains and achievements that we earned through thousands of years of continual struggles and odyssey survives or are destroyed.

(The author is a senior advocate and national president of People’s Union for Civil Liberties- PUCL)

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Appointing “theocratic judges” who perversely interpret the Constitution as a Hindu Constitution is the way in which Hindu Rashtra will get firmly established, says Mohan Gopal in this interview.

 One of India’s foremost legal scholars has stated that the Modi government is interfering in judicial appointments adding “it happens in many ways – subtle, not so subtle, explicit or implicit”. More importantly, Prof. Mohan Gopal adds this interference is happening because “this government (has) an explicit mission to overthrow the present Republic and establish a Hindu Rashtra”. Going one step further, he also says “it will be very dangerous to give this government … any role in judicial appointments”. He concludes “we must preserve and protect the Collegium because that is our best hope for now.”

This is the gist of an interview that will undoubtedly invite huge reactions. In this 50-minute interview to Karan Thapar for The Wire, Prof. Mohan Gopal, who is a former Vice-Chancellor of the National Law School of India and a former Director of the National Judicial Academy of the Supreme Court, explains in meticulous detail the nature of the Modi government’s interference in judicial appointments – where he specifically cites the example of Justice Akil Kureshi – as well as why he believes this government has “an explicit mission to overthrow the present Republic and establish a Hindu Rashtra”.

Prof. Gopal states that he believes the present government has a two-part strategy to establish Hindu Rashtra by 2047, not by overthrowing the Constitution but by the interpretation of the Constitution as a Hindu document by the Supreme Court. Part one of this strategy is the appointment of what he calls “theocratic judges” i.e. those who are prepared to go beyond the Constitution to find sources of law in religion i.e. Sanatana Dharma, the Vedas, ancient Indian religious principles. The second part of this strategy is to identify sources of law outside the Constitution.

In an analysis which he presents of the 111 judges appointed to the Supreme Court between May 2004 and today (i.e. by both the UPA and the NDA governments) – details of which are within the interview– he believes that the number of theocratic judges has increased very substantially under the NDA.

Prof. Gopal also identifies two judgements where he believes the concerned judges have gone beyond the constitution to find the source of law in religion. These two judgements are the Hijab judgement and the Ayodhya judgement.

Prof. Gopal ends the interview with three bits of advice to the Collegium. First, the Collegium must consciously choose and put on the bench those who are committed to protecting the Constitution against what he calls “this subversive attack”. Second, the Supreme Court must open Collegium recommendations for scrutiny on the judicial side so that information brought to the Collegium’s attention after a nomination has been made can be considered and, if need be, the nomination withdrawn. Third, the Collegium must consciously diversify its recommendations in terms of religion, caste, region as well as economic class. As Prof Gopal puts it “we need a rainbow judiciary”.

Only the most diverse set of recommendations will ensure judges resist attempts by what Prof. Gopal calls “the ruling Hindu oligarchy” to pack the judiciary with theocratic judges.

The interview may be viewed here:

Related:

Executive’s attacks on Judiciary’s Independence condemnable, assault signals an authoritarian regime: PUCL

“Unacceptable”, Centre withholding names approved by Collegium: Supreme Court Issues Notice to law secretary over delay in judicial appointments

Collegium system & transparency of judicial appointments: a conundrun

Is the Centre overreaching itself in returning Collegium recommendations, again?

The post Modi govt’s interference in judicial appointments is aimed at overthrowing the Republic & establishing Hindu Rashtra: former VC, NLS, Prof Mohan Gopal appeared first on SabrangIndia.

On January 19, the Supreme Court Collegium, headed by Chief Justice of India D Y Chandrachudand comprising of Justices S K Kaul and K M Joseph, reiterated its decision to appoint five advocates as High Court judges. Amongst the five candidates, the collegium recommended the name of senior advocate Saurabh Kirpal for appointment as judge of the Delhi High Court.The three-member Collegium said the proposal for appointment of Kirpal as a judge of the high court has been pending for over five years and needs to be processed expeditiously.

Saurabh Kripal, the son of BN Kripal, former CJI of the country, Kirpal openly identifies as a gay man – and lives with his partner in New Delhi. The recommendation was unanimously made by the Collegium of the Delhi High Court on October 13, 2017 and approved by the Supreme Court Collegium on November 11, 2021. Setting a new standard for transparency in the otherwise veiled and centred collegium, CJI Chandrachud publicly released the objections that were posed by the Centre and the reasons given by the collegium while reiterating its recommendations.

The Collegium, referring to communication from the Research & Analysis Wing and former Union Law Minister Ravi Shankar Prasad, said that “it appears that there are two objections to the recommendation which was made by the Collegium of this Court on 11 November 2021 approving the name of Shri Saurabh Kirpal namely: (i) the partner of Shri Saurabh Kirpal is a Swiss National, and (ii) he is in an intimate relationship and is open about his sexual orientation.”

Objections forwarded by the Centre

1. Saurabh Kripal’s partner being a Swiss National

Rejecting this objection, the Collegium had said: “As a matter of principle, there can be no objection to the candidature of advocate Saurabh Kirpal on the ground that his partner is a foreign National.” “There is no reason to pre-suppose that the partner of the candidate, who is a Swiss National, would be inimically disposed to our country, since the country of his origin is a friendly nation. Many persons in high positions including present and past holders of Constitutional offices have and have had spouses who are foreign Nationals,” the Collegium had said.

2. The sexual orientation of Saurabh Kripal

“The letter of the Law Minister dated April 1, 2021states that though ‘homosexuality stands de-criminalised in India, nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India. Moreover, it has been stated that the candidate’s ‘ardent involvement and passionate attachment to the cause of gay-rights’ would not rule out the possibility of bias and prejudice,” the Collegium statement said.

On the Centre’s concerns about Kirpal’s sexual orientation, the Collegium’s statement lauded Kirpal for being open about his sexual orientation, saying it “goes to his credit” that he has not been surreptitious about it.

The Collegium said that “it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground.”

“Furthermore, in regards to this objection, it needs to be noted that the decisions of the Constitution Bench of this Court have established the constitutional position that every individual is entitled to maintain their own dignity and individuality, based on sexual orientation. The fact that Saurabh Kirpal has been open about his orientation is a matter which goes to his credit. As a prospective candidate for judgeship, he has not been surreptitious about his orientation.

“His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity. His conduct and behaviour have been above board. It may have been advisable for the candidate not to speak to the Press in regard to the reasons which may have weighed in the recommendations of the Collegium being sent back for reconsideration. However, this aspect should not be considered as a negative feature, particularly since the name has remained pending for over five years,” the Collegium said.

A small victory despite a delay of five years

The Supreme Court has now openly backed senior advocate Saurabh Kripal in his fight against homophobia and discrimination. But, as the objections put forth by the Centre are released,other issues have come to the forefront. Even though homosexuality has been de-criminalised in India in the year 2018, an upper caste gay man had to wait five years, until now, before he could be considered for a promotion that he deserved.

Diversity in judiciary

It is pertinent to note, that one of the objections that were forwarded by the Centre revolved around the bias that an openly gay man might hold. In other words, the Centre has subtly said that Saurabh Kripal may give out such pronouncements that might keep up with changing times and would be progressive for the LGBTQIA+ community, which in turn might cause a ripple in this male upper caste dominated system. Every day, many petitions concerning religious minorities, caste minorities, gender minorities and the LGBTQIA+ communities are filed in courts. The orders in most such cases are pronounced by benches where no member is from the marginalised community directly affected. Even during the judgement pronouncing decriminalisation of homosexuality, the constitutional bench comprised of people who were not from the community.

The questions that arise now is that if the existing judges of the Courts are equipped to handle such cases. How diverse is the current judicial system? And, how fair are the judgements that are given by benches where there is no representation of the community that has filed the petitions.

Even in cases of judgements concerning the communities of Dalits, Adivasis, Women, Transgender people, Muslims or Christians, how much of the opinion of the affected communities are taken into consideration before the judgements are pronounced, if no member from the marginalised community exist on the bench?

To date, 247 judges have been appointed to the Supreme Court. The maximum strength of judges initially was eight, which has now been stretched to 34. As on the date of penning this piece, from the current list of the 28 sitting judges at the Supreme Court, only three women judges are present, namely Justices Hima Kohli, Bela Trivedi and B.V. Nagarathna, one Muslim judge, Abdul Nazeer, one Parsi judge, namely Justice Jamshed Burjor Pardiwala, one Christian judge, namely K.M. Joseph, and two Dalit judges, C.T. Ravikumar and Bhushan Ramkrishna Gavai. None of the current judges are from the queer community or the ST community. Through this, it can be deduced that even the current list of judges sitting at the Supreme Court, a majority of them are from the privileged castes.

Women and other marginalised communities, such as Scheduled Castes and Scheduled Tribes, are chronically under-represented. Despite the fact that there are over a hundred million indigenous tribal members, no judge from a Scheduled Tribe has ever been appointed to the Supreme Court in its 70-year history. Only three of the 25 Supreme Court justices chosen since 2014 have been women, with two more appointed in 2018.[1] Despite accounting for around 25% of the Indian population, neither Scheduled Castes nor Scheduled Tribes are adequately represented on the Bench. Frequently, the Supreme Court rules on issues affecting marginalised people.

Recent judgements on problems impacting these communities, such as the eviction from forests or compensation awards, have shattered these groups’ faith in the Court. The Supreme Court is not representational of India’s diversity, despite the fact that it, like other state institutions, should work towards inculcating people from all communities, especially women belonging to the marginalized community. It has been debated by many that higher judiciary operates like ‘Old Boys Club’ given the high levels of representation of just a few families on High Court and Supreme Court benches.

Gender Representation in the judiciary

Women Representation:

On September 1, 2021, when Justices Hima Kohli, Bela Trivedi and B.V. Nagarathna were sworn in as judges of the Supreme Court, the Law Minister Kiren Rijiju had called it a “historic moment for gender representation”; India’s ambassador to the US said it was “a proud moment”; and many others tweeted congratulatory messages to the new justices on their “momentous day”. While the nominations were undoubtedly applauded because they decreased the gender imbalance in India’s top court, a majority of people believed the celebrations were premature because the uneven gender balance in India’s judiciary had yet to be addressed. The most women members present the Supreme Court had been 4, the current three and the now retired Justice Indira Banerjee.

Retired Chief Justice NV Ramana had been a vocal advocate of getting more women judges appointed in the judiciary. He had once said, “After 75 years of independence, one would expect at least 50% representation for women in the judiciary at all levels. But with great difficulty, we have now achieved a mere 11% representation of women in the Supreme Court.”^[2]

While our current CJI is a man with a hitherto unmatched vocal awareness on gender issues who promotes gender empowerment, it is crucial that matters which affect the whole community of women, such as marital rape or grant of period leave, are heard and decided by benches with women representation. The presence of adequate women on the bench, not just in the Supreme Court but in High Courts and trial courts is critical to the judiciary’s legitimacy.

Achieving equality for women judges in regards to their representation at all tiers of the judiciary and on policy-making judicial councils should be our objective, not only for women, but also for the accomplishment of a more just rule of law.  Women judges apply their lived experiences to their judicial acts, experiences that trend toward a more comprehensive and empathic perspective—one that includes not only the legal foundation for judicial action, but also understanding of the implications on those affected.

LGBTQIA+ representation:

Joyita Mondal became the first openly transgender person to be appointed as a judge of a Lok Adalat, or People’s Court, in the year 2017. This accomplishment, at 29 years old, was the pinnacle of her path from homeless school dropout to founder of an organisation (‘Dinajpur Notun Alo’) dedicated to assisting transgender Indians in her region.

This was a significant victory for the transgender community, as there are few options for transgender people in India, many of whom are forced to beg or work as sex workers to survive. Joyita’s appointment was approved since she is a social worker with “proven credibility as a judge.”

If the recommendation of Saurabh Kripal is finally –albeit with reluctance –accepted by the Centre, he will become the first openly gay man to be appointed as a judge in the judiciary. As can be deduced from this, there is a dire need for more LGBTQIA+ representation in the judiciary. On the other hand, it is probable that some members of the bench do belong to the community but have kept their identity hidden owing to the stigma attached to the same. The appointment of Kirpal as judge will open doors of opportunity for the LGBTQIA+ community to identify themselves so, despite being at the Bar or even the Bench.

On Constitution Day 2022, the Supreme Court of India issued a Sensitization Module for the Judiciary on the LGBTQIA+ Community, with the goal of educating judges, magistrates, and judicial personnel in India about the LGBTQIA+ community. One of its primary points is the admission that there are no legal or constitutional safeguards in India to protect members of the queer community from discrimination.

The guidebook was developed as a collection of recommendations that may be adopted by some courts and judges. The authors to the handbook are diverse as well, including lawyers, activists, and scholars; nevertheless, it is unclear whether there is adequate representation from queer and trans* people practicing law.

The module lays down guidelines for police and magistrates to follow when adjudicating criminal complaints or dealing with issues filed by or against LGBTIQA+ individuals, which is critical because police awareness of how they should treat people from the LGBTQIA+ community has been mostly lacking.

Caste and Religion based representation in the judiciary

Religion based representation:

Muslims are not simply one of India’s many minority groups; they constitute one of the largest Muslim populations in the world and hence a significant minority. In India, Muslims account for about 15% of the population, but their presence in the higher judiciary is almost non-existent. Currently, the Supreme Court has only one Muslim justice. Many legal luminaries and scholars believe that Muslims should have enough representation in the higher judiciary so that minorities can have faith in the highest judicial institution that decides the legal fate of the nation.

In the recent past, a number of issues concerning the Muslim population have been decided upon by the Supreme Court. From the issue of hijab ban on Muslim women, on which a split judgement was delivered, and the Gyan Vapi case (where the matter of applicability of the sensitive Places of Worship Act, 1991 has been called to account, to cases of hate speech, targeted violence and forced evictions against Muslims have been pronounced by various high courts and the Supreme Court. In most of these cases, the bench comprised of judges who did not hail from the affected community at all. It is crucial that while major judgements affecting the Muslim minority are given, a member from the community is present. Doing this might increase the trust of the public in the judiciary as well as bring a much needed ground perspective.

Caste based representation

Inequitable representation of backward and minority communities in higher judiciary is evident from the fact that 79% of all high court judges appointed in the past five years (2018 to 2022) are from privileged castes, according to a presentation made recently by the Union law ministry before a parliamentary panel.[3] Absence of judges from agrarian communities (farmers) or those from the working class backgrounds render sensitivity of the Bench to issues of farmers and worker’s rights a serious question.

Scheduled caste representation in the legislature, executive and public services, was included in the Constitution. However, this did not extend to the judiciary.

The first Scheduled Caste judge to be appointed was Justice K. Varadarajan in December 1980. After his appointment, there was always one Scheduled Caste judge at the Court until 2010.It is also worth noting that except for a short period of a year in 1990, two Dalit judges had not served on the Court at the same time, till this was changed in August 2021, with the appointment of Justice C.T. Ravikumar. Justice Ravikumar belongs to the Scheduled Caste community. His appointment, in addition to Justice Bhushan Ramkrishna Gavai is significant: this now means that 6% of sitting judges in the Supreme Court now belong from a Scheduled Caste.

But, even after more than seven decades of achieving independence, there is almost no representation of the Scheduled Tribes. The SC/ST communities in India has been, and still are, one of the most oppressed and otherised communities. The violence against the SC and ST communities have been increasing. When an upper caste individual pronounces a judgement on issues concerning the caste minorities, their knowledge on the level of discrimination and ostracisation faced by them is limited. Legislation requires judges to use their independent discretion and reasoning to decide various matters depending on their facts. It is hard for judges not to draw from their own lived experience when doing so. This is why, among other aspects of diversity of identity, a close look at the diversity and plurality within India’s higher and other judiciary is essential; to ensure equitable representation and comprehension of the interests and issues of all classes of people.

Conclusion

In the current judicial system of India, there exists a hegemony of privileged caste Hindu men. While on the one hand it can be argued that diversity of any kind enhances the court’s legitimacy and builds public confidence, there is considerably more merit in substantive diversity. Often, diversity then becomes a token symbol to evoke a feeling of representation and inclusivity in the highest courts. 

The reiteration of Saurabh Kripal’s recommendation with the aim of promoting diversity is a progressive and much needed step towards passing the mic and making space for individuals who can push for equal rights and prevent regressive legislation from being passed. It is however a beginning and not enough.

A robust and healthy democracy ought to allow individuals from the oppressed and marginalised classes to raise their voices, and help bring equity and equality by shaping the law and policy that governs our country. The dearth of diverse voices and lived experiences in Legislature and Judiciary must be remedied.

It is time that all countries, especially India- which is a proud diverse democratic country, take steps to ensure full participation of all the minority communities- gender, class, religion, caste or sexual orientation, rural urban divide- in all walks of life and their representation at various levels including leadership positions.

The post How diverse and inclusive is the Indian judiciary? appeared first on SabrangIndia.

Recent statements, sharp and strident from India’s minister for Law and Justice, Kiran Rijiju, on the apparent ‘lack of transparency’ within the Collegium system for appointment of judges to Indian courts, has been met with a dignified response from India’s 50^th Chief Justice, DY Chandrachud.

Speaking to the Indian Express on the charge of the Collegium working being opaque, Justice Chandrachud said there is a “legitimate… public interest in knowing how judges are appointed” but “we also need to preserve the privacy of the people”, members of the Bar or judges of the High Court “who are under consideration”.  This revived controversy has brought back into focus the debate on appointments to higher judiciary.

In this context, this article tracks the adoption of collegium system in judicial appointments.[1]

Before, any further discussion, it is important to note that one of the fundamental features of the Indian Constitution is the Doctrine of Separation of Powers. French Philosopher Montesquieu said that when the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. This separation of powers between different branches of the government makes sure that there is a system of checks and balances.

In the Indian context, the Supreme Court and High Courts not only interpret the Constitution but also protect the fundamental rights of citizens under Article 32 and Article 226 respectively. The Supreme Court also has original jurisdiction over Centre-State disputes, central government, state -other states, the inter-state disputes under Article 131 of the Indian Constitution. To perform the functions it is empowered to, the Supreme Court needs to be free from any political pressure when it is making any decisions. It requires no explanation that appointment of judges be without any political motivation.

Appointment of Judges.

Article 124(2) of the Indian Constitution states as follows:

Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Court in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

Provided that]—

a. a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in clause (4).

And with respect to appointment of the judges to the High Court, Article 217(1) states as follows:

217. Appointment and conditions of the office of a Judge of a High Court

“(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years….”

The appointment of judges used to happen with full discretion of the executive until the case of  the Supreme Court Advocates on Record Association vs. Union of India in 1993.  The first case to deal with on the issue of appointment of judges is SP Gupta vs. Union of India.

SP Gupta vs. Union of India[2], 1982

In this case, a number of petitions involving important constitutional questions regarding the appointment and transfer of judges and the independence of judiciary. One of the issues raised was regarding the validity of Central Government orders on the non-appointment of two judges. To establish this claim, the petitioners sought the disclosure of correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India. The state claimed that the information is privileged under Article 74(2) of the constitution, which states that the courts shall not enquire into the correspondence between the council of ministers and the president. One of the petitioners also argued that the consultation meant concurrence of the Chief Justice in the matters of appointment of judges.

The court was to deal with the question to interpret the word ‘consultation’ which the president is supposed to do with the Chief Justice before appointing a judge. The court stated as follows”

“But, while giving the fullest meaning and effect to consultation’, it must be borne in mind that it is only consultation which is provided by way of fetter upon the power of appointment vested in the Central Govt. and consultation cannot be equated with concurrence. ”  

The court also stated that the court is not required to abide by the advice from the consultations. The court stated

“It would therefore be open to the Central Government to override the opinion given by the constitutional functionaries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge in the High Court or the Supreme Court, so long as such decision is based on relevant considerations and is not otherwise mala fide. Even if the opinion given by all the constitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with such opinion, though being a unanimous opinion of all the three constitutional functionaries, it would have great weight and if an appointment is made by the Central Govt. in defiance of such unanimous opinion, it may become vulnerable to attack on the ground that it is mala fide or leased on irrelevant grounds. But we do not think that ordinarily the Central Government would make an appointment of a Judge in a High Court if all the three constitutional functionaries have expressed an opinion against it. We may, however, make it clear that on a proper interpretation of Clause (2) of Article 124 and Clause (1) of Article 217, it is open, to the Central Government to take its own decision in regard to appointment or non-appointment of a Judge in a High Court or the Supreme Court after taking into account and giving due weight to the opinions expressed by the constitutional, functionaries required to be consulted under these two Articles and the only ground on which such decision can be assailed is that it is mala fide or based on irrelevant considerations.”

This meant that the control of appointment of judges vested with the executive, virtually. This was not to be changed until eleven years later in 1993 case of SC AOR Association vs. Union of India.

Supreme Court Advocates on Record Association vs. Union of India[3]

In this case, the SC overruled the judgement in SP Gupta vs. Union of India and introduced a specific system to appoint judges rather than affirming the executive discretion as was done in the SP Gupta case.

In this case, firstly, the court noted that primacy should be given to the Chief Justice’s opinion when there is a consultation between the President and the CJI. If there is unanimous decision, there is no need to be considering the CJI’s opinion but if there be a conflict, the judgement said, the most weightage should be given to the CJI’s opinion.

The court also stated that – in exceptional cases alone, for stated strong, cogent reasons, disclosed to the Chief Justice of India, indicating that the recommended individual is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. The opinion of the Chief Justice of India has not mere primacy but is determinative in the matter of transfers of High Court Judges/Chief Justices.

The court also stated that the CJI’s opinion be formed after consultation with the senior judges since power cannot be vested with one man. The court stated

“However, it need hardly be stressed that the primacy of the opinion of the Chief Justice of India in this context is, in effect, primacy of the opinion of the Chief Justice of India formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion.”

The court said that “inter se, seniority amongst Judges in their High Court and their combined seniority on all India basis” should be “kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court”. It also said that “the legitimate expectation of the High Court Judges to be considered for appointment to the Supreme Court, according to their seniority” must be duly considered. 

‘Presidential Reference’ for clarification of SC AOR Association vs. Union of India, 1998[4]

In 1998, the President referred to the Supreme Court, using his constitutional powers vested in him under Article 143, for clarification, the SC’s guidelines in the case of SC AOR Association vs. Union of India. The President called for an opinion of the SC on multiple questions on transfer and appointment of judges and the role of CJI in the whole process.

This judgement gave more detailed procedure to the whole appointment process by mandating that the CJI should consult with 4 senior most judges of the Supreme Court while making recommendations to the SC and that the sole individual opinion of the CJI does not constitute consultations within the context of Article 124(2).

The court stated as follows-establishing the collegium system that we see today:

“The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four senior most puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two senior-most puisne Judges of the Supreme Court.”

Another important development that this judgement has brought in is that it mandated that the views of the senior judges who are consulted by the CJI and the views of CJI himself be conveyed to the government in writing and thereafter, the government can appoint them.

An important aspect of this judgement is that it emphasises (does not mandate) a consensus within the collegium system. The court, given that the collegium is consisting of people with different opinions, realised that someday, the CJI might find himself in minority whereas the other senior judges are in majority regarding appointment or non-appointment of a candidate. The court stated as follows on how the collegium should decide on the collective opinion that is to be then sent to the government:

“It is, we think, reasonable to expect that the collegium would make its recommendations based on a consensus. Should that not happen, it must be remembered that no one can be appointed to the Supreme Court unless his appointment is in conformity with the opinion of the Chief Justice of India. The question that remains is: what is the position when the Chief Justice of India is in a minority and the majority of the collegium disfavour the appointment of a particular person? The majority judgment in the second Judges case has said that if “the final opinion of the Chief Justice of India is contrary to the opinion of the senior Judges consulted by the Chief Justice of India and the senior Judges are of the view that the recommended is unsuitable for stated reason, which are accepted by the President, then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible”. This is delicately put, having regard to the high status of the President, and implies that if the majority of the collegium is against the appointment of a particular person, that person shall not be appointed, and we think that this is what must invariably happen. We hasten to add that we cannot easily visualise a contingency of this nature; we have little doubt that if even two of the Judges forming the collegium express strong views, for good reasons, that are adverse to the appointment of a particular person the Chief Justice of India would not press for such appointment.”

After the judgement in 1998, the procedure for appointments was clear. In appointments to both the Supreme Court and High Courts –India’s constitutional courts– the Collegium would be the selecting body and the Government will be the appointing body; the Collegium will have to consider the all India seniority list while appointing judges to the judiciary. The court, as evident from above, emphasised that the Collegium should give an anonymous decision which would mean that the conflict or the reasons for the non-appointment of a candidate, will not be known or disclosed, in general.

Supreme Court Advocates-on-record Association & Anr. vs. Union of India, 2016[5]

It stemmed from a group of petitions challenging the validity of the Constitution (Ninety-Ninth Amendment) Act, 2014 (99th Amendment) along with the National Judicial Appointments Commission Act, 2014 (NJAC Act). These Acts were enacted to replace the Collegium system used for making appointments to the higher judiciary with the National Judicial Appointments Committee (NJAC). The NJAC included the Union Minister for Law and Justice and two eminent persons, besides the Chief Justice of India, and next two senior most judges in the Supreme Court. The Collegium, which the NJAC proposed to replace, included the Chief Justice of India and a forum of the four senior-most judges of the Supreme Court. 

The Supreme Court struck down the amendment to the Constitution down saying that it breaches the Theory of Separation of Powers. The majority opinion of the court held that the involvement of the executive in the appointment of judges impinged upon the primacy and supremacy of the judiciary and violated the principle of separation of powers between the executive and judiciary which formed part of the basic structure of the Constitution. The dissenting judgement by Justice Chelameshwar argued that the independence of the judiciary is not established by merely the primacy of the opinion of the Chief Justice or the Collegium.

Conclusion

The Collegium system could withstand one attempt to dilute it, by the executive, via the NJAC judgement but a better accountable system of appointing judges will not be, arguably a bad thing. Since the power of judiciary resides in the trust of people in the system, a transparent system which checks and balances, with more accountability of those who appoint the judges to appoint judges to the higher judiciary will only make the democracy stronger.

The context and timing of the demand for an NJAC and the track record of the present regime in giving a go-by to all constitutional and parliamentary procedures and principles has invited charges of ‘Parliament is being used to dismantle the Indian Constitution brick by brick.’

Given this conundrum, the appointment of higher court judges and the need for accountability and transparency remains stuck, between a rock and a hard place.

The post Collegium system & transparency of judicial appointments: a conundrun appeared first on SabrangIndia.

After deferring the bail order thrice, the Karkardooma Court in Delhi denied bail to Dr. Umar Khalid on March 24, 2022. This was in connection with the case related to the alleged larger conspiracy behind the communal violence that broke out in East Delhi in February 2020. Now compare this to how quickly some people who engaged in hate speech and even made open calls for violence with impunity were granted bail… A clear pattern emerges. Even in cases where political dissenters are granted bail it is usually after a long period of incarceration and constant harassment.

The case of Dr. Umar Khalid is prominent because he was arrested by the Delhi Police in September 2020, under the Unlawful Activities (Prevention) Act, on the charge of larger conspiracy to allegedly unleash violence to defame the Indian government during a visit by former US President Donald Trump.Many other activists and political dissenters have fallen victim to this draconian statute which is being regularly abused often to incarcerate politically inconvenient voices, more specially so by the executive in the past 7 years. Here is a list of cases which portray the unfair, biased and discriminatory treatment given to those who dare to stand up for their rights.

Bail denied:

Fahad Shah, Journalist & Editor of Srinagar-based magazineThe Kashmir Walla

Shah was first arrested for his Facebook post on Pulwama encounterin February 2022 for allegedly “uploading anti-national content including photographs, videos and posts with criminal intention to create fear among public and the content so uploaded can provoke the public to disturb law & order,” as per the police. He was granted bail on February 26, but then booked in a case registered in Shopian. When he managed to get bail in that case on March 5, he was arrested again in another case, making it his third arrest in just over a month!

Siddique Kappan, Journalist and Writer

Kappan, a senior reporter, who is also secretary of Kerala Union of Working Journalists (KUWJ) Delhi unit, and also a member of Press Club of India, has been behind the bars for more than 2 years now. The Allahabad High Court had admitted his bail application filed by him seeking to quash the “patently illegal prosecution sanctions” against him under the Unlawful Activities (Prevention) Act (UAPA) but the Court has granted one week’s time to Kappan’s counsel Advocate to file the rejoinder and has listed the matter for March 28, 2022.Kappanhad gone to cover the Hathras horror of the alleged gangrape, and murder of the 19-year-old Dalit woman that had made headlines all around the world. Siddique Kappan never reached the spot from where he had intended to write his news reports. He was arrested by the Mathura police on October 5, 2020, along with three others – Ateeq-ur-Rehman, Masood Ahmed and Alam, and has been detained ever since on trumped up charges. He was arrested on an apprehension that he may cause a breach of peace but later on he was charged under Unlawful Activities (Prevention) Act (UAPA) and till today he has not been granted bail.

Gulfisha Fatima, Student Activitst&Tasleem Ahmed, Activist

The duo was denied bail in the case related to alleged “larger conspiracy” behind the communal violence that broke out in North East Delhi in February 2020. They have been booked under the anti-terror law, UAPA. Additional Sessions Judge Amitabh Rawat dismissed Fatima’s bail plea, saying in view of the charge sheet and the accompanying documents, the allegations against the accused appear to be “prima facie true” and therefore, no relief can be given on account of the embargo under the Unlawful Activities (Prevention) Act (UAPA).Similarly, the judge also dismissed the bail application of Ahmed, saying he was actively involved along with Fatima and others in the protest, before and at the time of the riots in North East Delhi, and the allegations against him also are prima facie true.

Father Stan Swamy, Jesuit Priest & Tribal Rights Activist

An 84-year-old Jharkhand-based tribal rights defender was arrested on October 8, 2020, by the anti-terror National Investigation Agency (NIA) in connection with the Bhima Koregaon Maoist conspiracy case and died at a Mumbai hospital while in judicial custody in July 5 2021, while awaiting bail. Reports have suggested he was ill-treated in jail. As per the findings of The UN Working Group on Arbitrary Detention, “Father Swamy’s arrest and detention lacked a legal basis.” Even the Indian government has not refuted these allegations against its treatment of Fr Swamy who “had fully cooperated all along in the investigation and was not viewed as a flight risk or as a person who would interfere with the legal process.” His custodial death, it said, was a “failure” on the part of India’s government and will “forever remain a stain” on India’s human rights record.

Hany Babu, Delhi University Professor and Kabir Kala Manch members

Judge Dinesh E Kothalikar of a Mumbai Special Court denied bail to them stating, “There were reasonable grounds for believing that the accusations were prima facie true.” Kabir Kala Manch was one of the 250 Dalit and human rights organisations that participated in the Elgar Parishad, an event that took place in Pune city on December 31, 2017, a day before violent clashes broke out between Maratha and Dalit groups near the village of Bhima Koregaon. On July 28, 2020, Hany Babu, Associate Professor at Delhi University (accused no.12) was arrested for multiple alleged offences punishable underUAPA.He was accused of being a member of CPI (Maoist), deemed a terrorist organisation under the first schedule of Unlawful Activities (Prevention) Act (UAPA), and was allegedly in correspondence with the members of CPI (Maoist). Members of Kabir Kala Manch were arrested by the NIA on the accusation for the commission of offences punishable under IPC and UAPA.

Bail granted

Ashwini Upadhyay, BJP Leader & Supreme Court Lawyer

On August 8, Upadhyay was part of a rally in support of the Uniform Civil Code at Jantar Mantar. Many in the gathering raised calls for violence and massacre against the Muslim community shouting “Jab M***e Kate Jaenge Ram Ram Chillaayenge.”The derogatory slur M***e, is a reference to Muslims often used for inciting hate against the community, especially in Hindi speaking North India. These crowds chanted that Muslims will be forced to say “Ram Ram” while they are hacked to death. A clear call for violence against the community. He was arrested with five other people on August 10 for raising communal slogans. But just a day later, he was granted bail by a Delhi Court on a bond of Rs. 50,000. “As far as the offence u/s 153A (promoting enmity between different groups on grounds of religion, race, etc) of IPC is concerned except for mere assertion, there is nothing on record to show that the alleged hate speech to promote enmity between different groups was done in the presence or at the behest of the accused,” the order reportedly said.

Preet Singh, Organiser of the Jantar Mantar event

A lower court initially denied him bail. As previously reported by SabrangIndia, the Metropolitan Magistrate UK Jain watched the video footage of the sloganeering, and observed that accused Deepak Singh and Preet Singh were seen together making “scathing remarks which are undemocratic and uncalled for from a citizen of this country where principles like Secularism hold the value of basic feature imbibed in the Constitution.” But Singh was granted bail by the Delhi HC on just after a week of his arrest in connection with the raising of anti-Muslim threats calling for violence against Muslims in the forms of slogan at a rally in favour of a uniform civil code at Jantar Mantar. He reportedly justified his action saying we was “demanding Hindu Rashtra not promoting enmity”. Without indulging in the issue of whether or not Singh was involved in hate speech, the court noted in its order that as per the video footage and the call records of Singh, he had left the spot at around 2:00 P.M., where after the main provocative words/slogans were shouted by the co-accused at around 4:00 P.M.

BhupenderTomar (akaPinky Chaudhary), Hindu Raksha Dal President

Chaudhary was granted bail after being arrested in connection of inflammatory and anti-Muslim slogans raised during the same protest as the one attended by Ashwini Upadhyay and Preet Singh at Jantar Mantar in August. Based on the observations drawn by the Delhi High Court in Preet Singh’s case, the court observed that Chaudhary left the spot of meeting at 1:29 P.M and was also not required for interrogation.

Ashish Mishra, son of Union Minister Ajay Mishra

Mishra was granted bailby the Lucknow bench of the Allahabad High Court on February 10, 2022, in connection with the October 3, 2021 Lakhimpur Kheri incident. He was arrested for allegedly mowing down and killing four protesting farmers and one local journalist in Tikonia village of Lakhimpur Kheri district. The timing of his bail was also curious as it was on the same day that the first phase of the Assembly elections began in Uttar Pradesh. The court reportedly observed, “Fully looking at the facts and circumstances of the case, it is clear that as per the FIR, the role of firing was assigned to the applicant (Ashish Mishra) for killing the protesters, but during the investigation it was revealed that no one was hurt by firearms, nor were its marks found on the body of any deceased or injured person.”

YatiNarsinghanandSaraswati, Head priest of Dasna Devi Mandir

Narsinghanand was arrested by Haridwar Police on January 15 in connection with the Dharma Sansad in Haridwar for allegedly making communally incendiary statements. He was denied bail by the Chief Magistrate Court in Haridwar Mukesh Arya who observed, that as per the case diary, the statements made by Narsinghanand had the potential to disturb communal harmony in the area and that it is evident that his statements were inflammatory and could provoke communal disturbances and violence in the area as well. But on February 7, Sessions Judge Vivek Bharti Sharma granted him bail while observing that the offences invoked against him were punishable up to 3 years of imprisonment. The court also considered his criminal history but noted that Narsinghanand had not been convicted in any of the cases against him.

In fact he had be booked in connection with four complaints- two of them regarding Dharam Sansad hate speeches, one relating to objectionable remarks against women and another relating to an assault of a journalist. He has been granted bail in all the four cases and now roams scot-free!

A.G. Perarivalan, convicted for aiding assassins of Former PM Rajiv Gandhi

He was granted bail by Supreme Court even as he was serving a life sentence in connection with the May 1991 assassination of former Prime Minister Rajiv Gandhi. The Bench took into consideration that the applicant has spent over 30 years of his life in prison.

Amitabh Thakur, Former IPS Officer

Thakur was granted bail after 6 months of his arrest for allegedly protecting a rape accused, BSP MP Atul Rai in August, 2021. He was accused of creating false evidence in the case to save Atul Rai. A single-judge bench of Justice Rajeev Singh (Allahabad High Court) stated, “Let applicant Amitabh Thakur be released on bail in FIR no. 309 of 2021, under Sections 120-B, 167, 195-A, 218, 306, 504, 506 of the IPC, police station Hazratganj, district Lucknow, on his furnishing personal bond of ₹20,000 and two reliable sureties each of the like amount.”

Ishrat Jahan, Advocate & Political Activist

She was finally granted bailin March, 2022 after spending a harrowing 25 months behind bars since her arrest in February 2020, on charges of “inciting violence, rioting and attempt to murder” under the Indian Penal Code. After spending a month in judicial custody, Ishrat along with four others were granted bail by Additional Sessions Judge Manjusha Wadhwa on March 21, 2020. The court had noted that the role assigned to Ishrat is that she incited the crowd to remain present at the protest spot as well as raised slogans of freedom, however, no overt act had been imputed to her regarding taking law into her own hands. But on the very same day, she was re-arrested under UAPA charges and remained in jail since then. For a brief period of 10 days, she was released on interim bail on account of her wedding in June 2020. Ishrat had moved for interim bail in November, which had been then rejected by the Delhi Sessions Court.

Chetan Kumar (aka Chetan Ahimsa), Activist and Kannada film actor

He was granted bail after his arrest for allegedly making controversial remarks against the judge hearing the hijab ban case.  Kumar had merely reposted a two-year-old tweet, where he had written about when “Justice Krishna Dixit made such disturbing comments in a rape case” and asked if the same judge “determining whether hijabs are acceptable or not in gov’t schools” will have “the clarity required?” Now, the right-wing has been in an overdrive spreading fake news of his possible deportation to the United States.

Related:

Jantar Mantar hate speech case: Delhi HC grants bail to accused Preet Singh
Jantar Mantar case: Hate monger Pinky Chaudhary granted bail
Dharam Sansad: Hate monger YatiNarsinghanand granted bail

The post Indian judiciary on granting bail: Different strokes for different folks? appeared first on SabrangIndia.

One expects that after having waited for years for a law to be passed, the troubles caused by its absence will simply go away. That is, however, does not happen as the devil lies in the implementation. The lack of both awareness and application of the Witness Protection Scheme, 2018 is surely one of the reasons where the country over, witnesses –especially from the most marginalised sections –are still subject to threat to their lives and destruction of their property.

An English philosopher Jeremy Bentham is oft quoted on the subject, “Witnesses are the eyes and ears of justice.” In yet another shocking incident of its kind, two Dalit witnesses were brutally assaulted by the accused in a criminal case. The incident was caught on camera and it took place in Mainpuri, Uttar Pradesh. They had taken refuge in a nearby village apprehending such an attack. After suffering severe injuries and even filing a complaint, no arrests have yet been made.

Although the 2018 Witness Protection Scheme has been around for close to a year now, on the ground, India’s criminal justice system continues to reel without its implementation.
 

CJP and Witness Protection, the long battle

The Citizens for Justice and Peace (CJP) has been actively pushing for a witness protection programme/scheme since its direct involvement with legal aid for the Victim Survivors of the Gujarat 2002 pogrom. In Witness Protection A Pre-requisite to a Healthy Criminal Justice System, secretary CJP, Teesta Setalvad, argues that

“That the Indian Criminal Justice System suffers from multiple sores, affecting the deliverance of justice has been acknowledged by all. While large numbers of pending cases and delays are the simplest manifestations of this malaise, broken down, case by case, trial by trial there are four areas that need citizen’s attention and campaigns for reform. CJP has centered its initiatives in correcting these maladies. Without a sustained and robust campaign the system, with vested interests will not allow correction.

Time bound trials, Independent Investigation, Witness Protection and Independent Prosecution are these four areas.

After 67 years of a constitutionally driven Criminal Justice System, indicators about the state of the rule of law, a vital ingredient in a democracy, are frightening:

• Criminal Trials take an average of 10-15 years to reach completion
• Convictions are as low as 4 per cent, in mass crimes, and about 33 per cent in individual crimes
• In over 70 per cent of our cases witnesses turn hostile

In 95 per cent of the cases where the criminal cases fall flat because of the malady of the witnesses turning hostile, the State does not play a positive role, remains passive, and does not appeal the acquittal. The state in fact does little or nothing to reassure the witness and provide adequate security cover. Therefore a disturbing trend that has come to light is that the state has become the major defaulter in the failure of the rule of law.

Justice M Jagannadha Rao had expressed his views on the subject in an article published on Sabrangindia in 2005,

“The victim of a crime is an important player in the administration of justice both as a complainant/informant and as a witness for the prosecution/state….Without the victim’s active support, the investigation of a crime may not come to a logical end….But despite being an important component of the criminal justice system, much attention has not been paid to the rights of victims.”

He identified two important aspects in terms of witness protection; first was to ensure that the witness does not turn hostile which can be done by protecting the identity of the witness and the second is to protect the physical and mental vulnerability of the witness by providing physical protection to the witness, so he or she does not feel threatened.

A very critical case in which witness protection was identified to be a critical aspect of the administration of public justice was the one of the Gujarat 2002 related criminal trials, the Naroda Patiya massacre case. In 2011, the Special Trial Court directed the Special Investigation team (SIT) to provide more protection to 6 witnesses in the case after receiving an application from them to that regard and also because one important witness in the case, Nadeem Saiyed was killed in broad daylight by unidentified persons.

In fact, in pioneering orders from the Supreme Court in the matter (NHRC v/s State of Gujarat (2010), 15 SCC 22) and those of 2004, human rights defenders, Teesta Setalvad, over 600 witness survivors were accorded witness protection by the CISF that continues to this day.

Witnesses turn hostile in a high number of criminal cases. The experiences of the Best Bakery Case (Zahira Habibullah Shaikh v/s State of Gujarat, 2004), the Sakshi case, (Sakshi v/s Union of India, 2004)  and the Domestic Working Women’s Case (Delhi Domestic Working Women’s Forum v/s Union of India, 1995) have all pointed to the need for urgent witness protection. The experiences in all these cases show that only when non state players, citizens, back witnesses that the struggle for justice become meaningful and in some degree successful. It is only in such situations that witnesses have found the courage to speak out. CJP’s complete stance and its analysis of witness protection, before the witness protection scheme of 2018 came into being, can be read here.
 

The Supreme Court’s on Witness Protection

The need for witness protection has been highlighted in many judgments of the Supreme Court, specially cases like Sakshi v. Union of India where the court took extra ordinary measures to ensure protection of the witness:

“The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witness do not have to undergo the trauma of seeing the body or face of the accused.”

The problem of witness turning turning hostile was highlighted by the Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat[1]:

“If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface.… Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of the State represented by their prosecuting agencies do not suffer.… There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth presented before the court and justice triumphs and that the trial is not reduced to a mockery”

The Court also highlighted the role of the state in protecting witnesses in criminal cases where parties involved are powerful in terms of money and political patronage:

“As a protector of its citizens it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology.”

There are several other such judgments of the Supreme Court where the State’s role in protecting its witnesses has been emphasised. It is this growing body of jurisprudence that led, ultimately to the Witness Protection Scheme 2018 coming into being. This was a case where the witnesses in the Asaram rape case had petitioned the court seeking protection. This Scheme was drafted with the inputs from 18 States/UTs and the Central Ministry of Home Affairs. Although criminal intimidation of witnesses was made a criminal offence under section 195 A of the Indian Penal Code in 2006, no formal structure had, until then, been established for protection of witnesses per se.
 

Adverse impact of lack of Witness Protection

The lack of witness protection over the years has led to many a case where the culprits have gotten away and one such controversial case was the infamous Sohrabuddin case in which over 90 witnesses had turned hostile because the accused in the case were people with strong political backgrounds and that included the current Union Home Minister, Amit Shah.

Another case which is sub judice presently, is the Pehlu Khan lynching case and in one incident in September 2019, a vehicle carrying the lawyer, Pehlu Khan’s sons and other witnesses was attacked by men in an unmarked vehicle while on their way to the Court to depose in the case. A letter was then written to DGP and IGP of Rajasthan by the People’s Union for Civil Liberties with the support of CJP requesting provision of witness protection to the witnesses in the case as there was evident apprehension of imminent threat but the same did not elicit action.

The Judgment that laid out India’s Witness Protection Scheme

The 14th Law Commission Report (1996-97) was first such report to focus on the issue of witness protection. The most instrumental piece of law in witness protection remains the case of Mahender Chawla & Ors. Vs. Union of India & Ors. [Writ Petition (Criminal) No. 156 of 2016]. The Witness Protection Scheme laid out in the said judgement, as per Article 141/142 of the Constitution of India, is binding on all Courts within the territory of India and enforceable in all States and Union Territories; this was endorsed by the government in the Rajya Sabha in July 2019.

Some key observations made by the Supreme Court in this landmark judgment are noted below:

“Whenever, in a dispute, the two sides come out with conflicting version, the witnesses become important tool to arrive at right conclusions, thereby advancing justice in a matter.”

“In the words of Whittaker Chambers, a witness is “a man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences.”

“Because of the lack of Witness Protection Programme in India and the treatment that is meted out to them, there is a tendency of reluctance in coming forward and making statement during the investigation and/or testify in courts.”

“The present legal system takes witnesses completely for granted. They are summoned to court regardless of their financial and personal conditions. Many times they are made to appear long after the incident of the alleged crime, which significantly hampers their ability to recall necessary details at the time of actual crime. They are not even suitably remunerated for the loss of time and the expenditure towards conveyance etc.”

“It hardly needs to be emphasised that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State”

The Court, while quoting from a judgment in Swaran Singh v. State of Punjab[2]  emphasized upon and reiterated several hardships that witnesses have to undergo in criminal cases like how the witness is not given any respect by the court, there is no proper place assigned for them to wait until the hearing begins, during the trial the witness is subjected to prolong stretched examinations and cross examinations

The court rightly observed that criminal justice is closely associated with human rights.

“Whereas, on the one hand, it is to be ensured that no innocent person is convicted and thereby deprived of his liberty, it is of equal importance to ensure, on the other hand, that victims of crime get justice by punishing the offender. In this whole process, protection of witnesses assumes significance to enable them to depose fearlessly and truthfully. That would also ensure fair trial as well, which is another concomitant of the rule of law.”

The Court also interpreted Article 21 of the Constitution as follows:

“If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution. The right to life guaranteed to the people of this country also includes in its fold the right to live in a society, which is free from crime and fear and right of witnesses to testify in courts without fear or pressure. “
 

The provisions of the scheme, in brief

In order to receive protection, an application in prescribed form is required to be made to the competent Authority (Standing Committee in each District chaired by District and Sessions Judge) which then calls for a Threat Analysis report from the ACP/DSP of the concerned police division. The report categorizes threat protection (as per the three categories, ‘A’, ‘B’, and ‘C’) and suggest protection measure. The application is to be disposed of within 5 days of receipt of said report and the order thus passed is to be implemented by the Witness Protection Cell which is also set up under this scheme.

The scheme specifies that the protection should be proportionate to the threat and should be granted for 3 months at a time. The measures may include, inter alia, temporary change of residence, phone number, and escort to and from court, in camera trials, concealment of identity of witness and so on.

The complete judgment can be read here.

Coming back

The Witness Protection Scheme has been around for about 11 months now but it is not clear whether litigants and lawyers are at all aware of its provisions and even if they are whether it is taken seriously enough to be used by lawyers in their respective cases. In the case that was highlighted in the beginning, of the two Dalit witnesses being assaulted by the accused in a case where they were charged under the SC/ST Act [The Scheduled Castes and The Scheduled Tribes (Prevention Of Atrocities) Act], had they been provided with protection under the scheme, they would have been probably saved from the attack.

Related:

Assault on Dalits for deposing as witnesses in court in Uttar Pradesh’s Mainpuri

Witness protection

After Nadeem’s murder, court orders more security for Naroda witnesses

Witness Protection Scheme

Pehlu Khan’s Sons, Lawyer and two Case Witnesses attacked!

Lack of Witnesses Protection Derailing Justice in Sohrabuddin case?

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