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:

Related:

Infant mortality rate: UP records highest rate for SC at 57.8, Chhattisgarh at 41.6 for ST

MOE: Alarming dropout rates among SC, ST, and OBC students in premium institutes of India since 2018

Displacement due to Airport Expansions? Union Response in Rajya Sabha Leaves Questions Unanswered

Union government data shows increasing employment, decreasing unemployment rate since 2018

Union data shows increasing beneficiaries of scholarships for OBCs in the past 5 years

Over 5 years, 1033 serious coal accidents reported, 717 took place in Telangana alone

The post Where thou representation: 3 women justices in the Supreme Court, 8.86% of the current strength appeared first on SabrangIndia.

“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)

The post Serious times, grave challenges: India 2023 appeared first on SabrangIndia.

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?

The post Witness Protection in India: an idea gathering dust appeared first on SabrangIndia.

The report also states that in India, per capita public spending on legal aid is only Rs. 0.75 per annum. In a country where over 1.25 billion population is eligible for free legal aid, the per capita spending of 75 paise is quite a disgrace. One may infer that economically weaker sections must have low accessibility to legal remedies due to lack of proper infrastructure for legal aid across the country.

This is the data offered by the India Justice Report, 2019 brings out other staggering data points. A first time initiative of the Tata Trusts, it lends weight to bare bone common knowledge of India’s failing criminal justice system.

By the people, for the people

Despite every government’s mandate to provide an accessible, affordable, impartial, efficient and responsive justice system to all in keeping with the constitutional promise, either of ‘equality before the law’ (Article 14) or the universal duty of all governments to ensure ‘the protection of life and personal liberty’ (Article 21), India fails in this regard. A judiciary over burdened with litigation, an unprofessional police force, also overworked and insufficient in number, poor conditions of prisons and growing number of under trial prisoners, are just the tip of the iceberg.

India has promised measurable progress in justice delivery via the universally agreed upon UN Sustainable Development Goals (SDGs). Goal 16 specifically recognizes the need to ‘provide access to justice for all and to build effective, accountable and inclusive institutions at all levels’.

However, this report highlights that each individual sub-system is starved for budgets, manpower and infrastructure; no state is fully compliant with the standards it has set for itself.

International rankings

On the 2019 Rule of Law Index, India’s overall ranking is 68 amongst 126 countries. Looking at 3 other parameters in the same index, which comprise the overall index are Order and Security; Civil Justice ad Criminal Justice. While India ranks at a poor 111 for Order and Security, it ranks comparatively better in Civil Justice at 97 and at 77 for criminal justice which is still not among the top 50%.

1. Prisons

Salient findings

• Prevalence of HIV, sexually transmitted infections, Hepatitis B and C, and tuberculosis in prison populations is two to 10 times higher than the general population.
• In 2016, 67.7% of India’s prison population were undertrial prisoners
• Kerala ranks first in overall average of all indicators of prisons in the state.
• The prison occupancy in Delhi is as high as 180%
• In Uttar Pradesh 95,366 inmates are handled by 1 correctional personnel.
• In 2016, Uttar Pradesh, with over 68,000 undertrial inmates, had the highest number and accounted for about 23 per cent of all undertrial prisoners.
• Nationally, 19 states and UTs spent between ₹20,000 to ₹35,000 per inmate annually. This is less than ₹100 per day on each prisoner.

The report speaks of the overcrowding and staff shortages can be as hard on prison staff as prisoners. Low salaries, poor training, lack of promotional opportunities, long hours, arduous workloads and high vacancies at all levels characterize prison administrations across states. High vacancy in prison staff create certain practical compulsions. Where rules provide for convicts to act as warders, convict officers or night watchmen, certain prisons come to be heavily dependent on long-term inmates, who manage various tasks, from main gate registration to working on all administrative tasks and even disciplining others. Dependence means their behaviour with other prisoners—any exploitation, violence, collusion in illegal activities or corruption—has to go unchecked.

For prisons to have a more reformative and rehabilitative character, such shortcomings in terms of budget spending and filling up of vacancies become important considerations. The important factor of increasing number of under trial prisoners is also a ghost that haunts our justice system and many a times unwarranted arrests and delay in filing of charge sheet are responsible for these figures.

2. Police

Salient findings:

• Only 6.4% of the police force have been provided in-service training. That means that over 90% deal with the public without any up-to-date training
• Tamil Nadu ranks first in all indicators of Police which means the state has a strong police force with presumably good infrastructure, resources and adequate human resources which are indicative of their quality of delivery output.
• Only 1 amongst 22 sates (for which this data was available) was able to fully utilise its police Modernisation Fund.
• The police’s capacity to deliver is determined by how well the State provisions the police with adequate budgets, personnel, and infrastructure to fulfil its varied and multifarious duties.
• Karnataka is the only state to have very nearly filled officer-level reservations in all caste categories.
• As of January 2017, the average all-India per capita spend on policing was ₹
• In relative terms, among the large and midsized states, the state that covered urban and rural populations the most evenly was Kerala.

This indicates that most police personnel lack proper training after induction into the forces, this could mean any kind of training which is important to keep the forces up to date with technology, or with the new laws that might require sensitization or soft skills in communication, and general topics pertaining to law such as public policy, new trends in criminology, among others.

The budgetary allocation of the states towards the police force is also an important factor to look at for the holistic growth of the forces, which will help in improving infrastructure and thus better and more effective policing.

3. Judiciary

Salient findings:

• There are 28 million cases pending in Indian subordinate courts out of which 24% have been pending for more than 5 years.
• Tamil Nadu ranks first (among 18 states) again in judiciary in overall average of all quantitative indicators.
• On average, no state or UT apart from Delhi spent even 1 per cent of its budget on the judiciary.
• At the subordinate court level, in twenty-one states and UTs, a case remains pending for 5 years on average or more
• Only Odisha and Tripura had a case clearance rate above 100% in both High Court and subordinate court levels.
• Not a single High Court or state’s subordinate judiciary had reached its complete complement of sanctioned judicial posts

The report deals with the requirements of a that a well-functioning judiciary is without doubt vital to the maintenance of rule of law, social cohesion, and sustainable development. The capacity of the judiciary to deliver is significantly influenced by the infrastructure, budgets and human resources available to it, and the diversity within it. Currently, judiciary budgets cover establishment costs, i.e. salary, allowances, and minimum operational costs, but do not usually stretch to capacity building or allow for innovation and experimentation. In the large and mid-sized category, Haryana spends the most (₹201) per capita, while West Bengal at the bottom spends one-fourth of that (₹52).

4. Legal aid

• There is one Legal services clinic per 42 villages.
• Arunachal Pradesh, Lakshadweep and Andaman and Nicobar Islands) do not have a single legal service clinic.
• Kerala ranks first again in Legal aid in overall average of all quantitative indicators
• None of the state in India have used their entire NALSA (National Legal Services Authority) budget allocation
• In 15 states and UTs out of 36, Lok Adalats settled more than 50% of the pre-litigation cases they took up.
• As of 2018, there were 664 district legal services authorities (DLSAs) and 2,254 sub-divisional/taluka legal services committees established across districts
• Tripura, West Bengal, Telangana, Chhattisgarh, Gujarat and Uttar Pradesh are states that are yet to establish DLSAs in all their judicial districts.
• As of January 2019, there were 63,759 panel lawyers and 69,290 paralegal volunteers (PLVs) working with LSIs across the country.
• India has about 5 legal aid lawyers per 1,00,000 population
• The per capita public spending on legal aid is only Rs. 0.75 per annum

The report says that India’s legal aid system is possibly one of the largest and most extensive in the world. ‘Legal services’ are not only restricted to representation in court cases, but also include spreading legal literacy, facilitating actualization of the entitlements of people under welfare laws and schemes, and the provision of advice and counselling. The biggest challenge in the implementation of legal aid services is the uneven organizational practices in the delivery of legal services across districts and sub-divisions. Given that nearly 1 billion Indians are eligible for free legal aid, the creation of necessary infrastructure is a fundamental pre-requisite in the fulfilment of this mandate.

Important Themes in the Report

1. Women

• There are 7% women in the entire police workforce. And at officer level, we have only 6% women.
• Only 18% of panel lawyers with Legal Services Institutions (LSIs) that provide legal aid are women
• Women account for 28% in the lower judiciary, and 12% at the High Court level.
• Bihar is the lone state that has adopted 38 per cent reservation for women, across sectors in public recruitments.
• Nationally, Chandigarh and Dadra and Nagar Haveli had the highest share of women in their overall police force at 18 per cent and 15 per cent respectively
• Over 5 years, 31 states and UTs have improved women’s representation in the force. The pace, however, is much too slow.
• Maharashtra, Uttarakhand and Kerala posted a decline in the overall percentage of women in the period from 2012-2016.
• There are just 9.6 per cent women across all levels of the prison administration.
• Thirty-six per cent of PLVs (24,999 of total 69,290 PLVs) appointed are women.

Quite naturally women have an important role to play in a justice delivery system where offences against women have consistently been on the rise. A women’s perspective and -approach in dealing with offences against women is imperative and the shortage of women personnel in the justice delivery system is alarming and needs to be mitigated at the earliest, for a balanced system.

The presence of women judges portrays the institution that upholds law and dispenses justice as an equal opportunity space driven by fair, meritocratic, and non-discriminatory practices and norms.[1] The presence of a large number of women panel lawyers and PLVs is essential for reaching out to a constituency that is often under-served and faces socio-cultural barriers when they try to come forward for legal assistance

2. Personnel

Police

• There are 151 police personnel per one lakh people
• Sanctioned strength: 193 per one lakh people
• In India police cover is 1 for every 663 individuals, going as high as over 1,600 in some cases.

This raises some serious questions on the efficacy of the police workforce and and also on public safety. How can one policeman protect 663 individuals?

Prisons

• Prisons are understaffed by at least 33% with the highest vacancies found at the officer and correctional staff levels
• Nationally, on an average, vacancies ranged from 33% to 38.5%.
• The Model Prison Manual, 2016, has suggested one correctional officer for every 200 prisoners, and one psychologist for every 500
• As of 2016, this ratio stands at one welfare officer per 2,033 prisoners, and 21,650 prisoners for one psychologist
• 12 states and UTs have a shortfall of 50% or more medical officers.
• There are only 621 correctional staff across India’s 1,412 prisons.

The report says that the All India Committee on Jail Reforms (1980– 1983), popularly known as the Justice Mulla Committee, had made several recommendations to develop an All India Prison Service as a professional career service with appropriate job requirements, sound training and proper promotional avenues. Unfortunately, even nearly forty years on, these recommendations have not been systematically implemented. After the Mulla Committee Report, there had been no study on prisons and prison reforms, until the Supreme Court set up the Justice Amitava Roy Committee in 2018.

3. Judiciary

• In 27 states and UTs including, Haryana, Maharashtra and Kerala, there is just one subordinate court judge for over 50,000 people.
• Each of the 18 Large and Mid-sized states had High Court judge vacancy of above 25%
• At the subordinate Court level, six of the 18 Large and Mid-sized states had over 25% vacancy of judges
• Only Sikkim has a High Court judge vacancy of less than 20%.

The shortages in personnel or long-standing vacancies lead to overworked staff burdened with increasing workload. It is known that our justice delivery system is over burdened due to increasing population and the justice delivery system needs a workforce commensurate with the increasing population. India is a demographically enriched country and yet we are unable to harness this to mitigate the personnel shortfall across sectors. The report says that there is a structural challenge when it comes to filling the vacancies of judges at high court and subordinate level, the impending lack of infrastructure. However, at the current strength of judges, the infrastructure is even 11.3% surplus, if the positions are to be filled to a 100%, there will be a shortfall of 4,071 court halls.

4. Diversity

• There are 19 States and UTs having more than 15% reservation for Schedules Castes (SCs) in officer; their target has not been met. The average gap being 35%
• There are 14 states and UTs having more than 15% reservation for Scheduled Tribes (STs) in officer cadre; their target has not been met. The average gap being 44%
• There are 22 states and UTs having more than 15% reservation for Other Backward Classes (OBCs) in officer cadre; their target has not been met. The average gap being 55%
• Tamil Nadu ranks first in the Diversity index amongst all 4 pillars of justice, which is based on 10 indicators such as ratio of actual to reserved positions for SCs, STs, and OBCs and percentage of women in all four services; Maharashtra ranks 4^th.
• Only 2 out of 31 states (for which this data was available) met at least 80% of their declared quotas of reservations
• Nine states in India do not reserve any kind of quota.

The report says that diversity within police departments is both an organizational value to be attained and a practical priority when policing a society as varied as India with its state level specificities. The report says that diversity in public institutions affirms the democratic idea of inclusiveness.

Effects on economy

Beyond the moral and normative frame, an unreformed justice system is hampering long-term economic growth. The inability of the system to deliver justice and maintain the rule of law has led to an uptick in violence, which according to the Institute for Economics and Peace, has cost India an equivalent of 9 per cent of its GDP[2]

Development and economic growth are impacted by the degree to which the rule of law is upheld. A closer inspection shows India’s performance is particularly pulled down by delays in registration of property (69 days) and the enforcement of contracts (1,445 days)[3].

 Methodology

The India Justice Report is a quantitative analysis of the capacity of the four pillars of justice, namely, judiciary, police, prisons, and legal aid. They have been studied using six filters – budgets, human resources, work load, diversity, infrastructure and trends (in the last five years). The data sets gathered and presented in this report are vast and quite comprehensive. Here’s a look at the salient features of the report, examining each pillar of justice and the themes therein.

The report points out the absence of qualitative measurement in its methodology and explains that the focus is on qualitative factors like in manpower, infrastructure, the workload burden and trend indicators which are preconditions necessary for qualitative outcomes.

The rankings have been done fairly by bifurcating large and mid-size states and small states on basis of population. Thus, there are 18 Large and mid-size states with population above 10 million and 7 small states with population below 10 million.

The complete report can be read here.

In conclusion

This report, as previous studies have done, makes it amply clear that India’s justice delivery system is plagued with substantive and structural issues which can be resolved with proper and effective budgetary allocation, a need basis assignment of the allocated budget, having well trained and adequate human resources to fulfil the purpose of the institution, have adequate representation for women and other reserved classes so that the justice delivery system can be said to appreciate equal interests of all in the society, build a robust infrastructure to facilitate smooth functioning of all the cogs in the system.  Crucial to all of this however is political will which appears lacking both in the ruling party and the opposition.

While this is not an exhaustive list of measures, one can always innovate and find out newer, better and more efficient ways to make a system work better and to make it more productive and for that it is important that research and development is encouraged in each of the four pillars of our justice delivery system, to recommend time and again innovative ways to improve the workings in the system, instead of waiting for judicial or statutory committees to be formed.

The Executive and the Judiciary have a behemoth task at hand if the entire justice delivery system to work efficiently, all four pillars ought to work in congruence as the success of one depends on the performance on the other and the sooner this is regarded importance, the sooner we will be able to visualize a fair and efficient justice delivery system in India.

[1] Rosemary Hunter, ‘More than Just a Different Face? Judicial Diversity and Decision-making’, Current Legal Problems, Vol. 68, (2015), pp. 119–141.

[2] ‘The Economic Value of Peace 2018: Measuring the Global Economic Impact of Violence and Conflict’, Institute for Economics and Peace, Sydney: October 2018. Available at: http://visionofhumanity.org/reports (last accessed on 25 June 2019).

[3] Doing Business, 2019. Available online at: https://www.doingbusiness.org/content/dam/doingBusiness/media/Annual-Reports/English/DB2019-report_web-version.pdf

The post India Justice Report 2019 shows country’s failing criminal justice system appeared first on SabrangIndia.

Speaking in context of the spate of the arrests made in the aftermath of the Bhima Koregaon violence, senior human rights lawyer Vrinda Grover criticises the manner in which the government is trying to suppress the rights of the citizens, and the voices of those who wish to contest the socio-political imagination propagated by the government. She questions why we continue to operate with the colonial jurisprudence where the citizen is a suspect, and the state is presumed to act in good faith. Grover feels that the authorities and agencies have been used and abused against those who are challenging and contesting the state power.

Courtesy: Newsclick.in

The post False to Assume Agents of State Act in Good Faith: Vrinda Grover appeared first on SabrangIndia.