In the year 2019, a Supreme Court bench comprising the aforementioned five judges had ruled in favour of construction of a Ram temple by a trust at the disputed site after the demolition of Babri Masjid in 1992. While handing the disputed land for the construction of the Ram Temple, the bench had said that the razing of the mosque by thousands of kar sevaks or Hindu volunteers breached its 1991 order for status quo at the disputed site and its “obliteration” was a “calculated act” and “an egregious violation of the rule of law”. 

As per the social media post, the invitees to the said ceremony also includes over 50 jurists, which includes former CJIs, judges and lawyers. As per a report of the India Today, Solicitor General Tushar Mehta and former Attorney General KK Venugopal are also among the invitees. It is unclear who all from the judiciary will be attending the said ceremony.

The post can be viewed here:

BIG BREAKING: The five Supreme Court judges, who gave the historic verdict in the Ram Janmabhoomi case, have been invited as state guests for the consecration ceremony of the Ram Mandir on Jan 22. The invitees also include over 50 jurists including former CJIs, judges & lawyers. pic.twitter.com/Hs1rQLnKEi

— Law Today (@LawTodayLive) January 19, 2024

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Babri demolition to Ram Temple: A trajectory of Indian politics

The post Invites to Ayodhya temple inauguration extended to judges who gave the verdict in Babri Masjid demolition-Ram Janmabhoomi case appeared first on SabrangIndia.

Representational Image. Image Courtesy: iStock

According to Indira Jainsing, in an article written on December 26 for The Leaflet, “The Supreme Court faces an existential crisis in the face of the attack it is facing under the ruling dispensation. It is now more than obvious from the speeches made by the Union Law Minister and the Vice-President that the Collegium is under attack. While the system requires bearing in mind the need for diversity of judicial appointments, surely the cure is worse than the disease.”

In such a background, as per A report published in The Times of India (TOI), the issue of the unequal representation of backward and minority communities in the higher judiciary is evident from the fact that 79% of all high court judges recruited in the last five years (2018-2022) are from upper castes is making headlines in media reports. According to TOI reports, the shocking figures have been revealed by the Union Law Ministry in a presentation before a parliamentary panel.

The Law Ministry made the above disclosure before the Parliamentary Standing Committee on Law and Justice and pointed out that despite three decades of the existence of the collegium system of appointment of judges, the social diversity in the higher judiciary, which was initially devised by the Supreme Court, is completely missing in these appointments.

This fact is shocking to all that the appointments made in the 25 High Courts of the country are mostly from the upper castes. It refers to “discrimination” in appointments to the institution, with the Other Backward Classes (OBCs), who account for more than 35% of the country’s population, accounting for less than 11% of appointments to benches and seats in constitutional courts.

Another aspect of this alleged discrimination is that of the total 537 judges appointed to the High Courts since 2018, only 2.6% have been appointed from the minority community. Similar is the story of the Scheduled Castes and the Scheduled Tribes, ranked at 2.8% and 1.3%, respectively.

According to the Law Ministry, “Addressing the issue of social diversity and social justice in the process of appointment to constitutional courts is the primary responsibility of the Supreme Court Collegium and the High Court Collegium.” 

The Law Ministry, while stating the above position before the panel, expressed its helplessness and said that priority had been given to the judiciary in matters of appointment of judges. Therefore it needs to be addressed by the judiciary itself. 

A collegium of judges functions at two levels – the Supreme Court and the High Courts. While the 4-member Supreme Court collegium, headed by the Chief Justice of India, prepares proposals for appointing judges to the apex court, the 3-member Collegium of high courts, headed by chief justices, recommends the names.

Through letters to the Chief Justice and Chief Justices, the Law Ministry has stressed the need to “address the issue of social diversity and social justice” in the higher judiciary. In its presentation before the Parliamentary Standing Committee on Law, it noted that the primacy of the Collegium in the appointment of judges had not removed the existing disparity. It states, “The government appoints only those people as judges of the Supreme Court and High Courts, who are recommended by the respective Court Collegium.”

The Ministry, however, has also clarified that the principle of appointment of High Court Judges, as per Articles 217 and 224 of the Constitution, “does not provide for reservation for any caste or class of persons. It has been urging the Chief Justices that while sending proposals for the appointment of judges, due consideration should be given to suitable candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities and women to ensure social diversity.

Whenever the Supreme Court Collegium sends recommendations, the Law Ministry examines them, and the Intelligence Bureau conducts a background check of the recommended candidates, and then a detailed report including the High Court Collegium’s recommendations is sent to the Supreme Court Collegium for their advice. Then after the names are cleared by the Supreme Court collegium, the central government notifies the appointments.

In case of disagreement between the government and the apex court, the government sends back such names to the SC collegium for reconsideration. But once the SC collegium reiterates the same name, the government is bound to appoint that person as a judge per the existing collegium system.

SITUATION SIMILAR IN OTHER INSTITUTIONS

This situation is present not only in the courts, where there is no reservation provision. The situation is more tragic in those institutions where reservation exists for the disadvantaged sections. It is the constitutional responsibility of the institutions to fill vacancies in these sections. For example, in the case of AIIMS, out of 1,111 faculty positions, a total of 275 positions for assistant professors and 92 positions for professors lay vacant. However, following media reports, the Parliamentary Committee stated in its report that despite being qualified, competent and experienced reserved category doctors were not being appointed to faculty positions.

A similar case was also found in the media. A report released by Oxfam India-Newslaundry showed that upper-caste people hold 90% of top media positions in India. The shocking fact is that not a single dalit or adivasi is not part of the mainstream media leadership.

From the above facts, one can guess that discrimination against dalits/tribals is institutional and systematic, but minorities and other backward classes are also victims of it. Even in the ‘golden age of independence’, these sections are fighting for their existence, and the funny thing is that no one is listening.

Courtesy: newsclick.in

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At the Second Justice H.R. Khanna Memorial National Symposium, Justice Pardiwala, a sitting judge of the Supreme Court of India, raised concerns about how social media platforms were used to launch a personal attack against judges in wake of the court’s scathing criticism of Nupur Sharma.

Readers would recall that on July 1, the vacation bench of Justices Surya Kant and JB Pardiwala rebuked Nupur Sharma while dismissing her petition to club FIRs against her in different states with the one in Delhi over her remarks on the Prophet Muhammed. The court had made verbal observations about the role of the now suspended spokesperson of the Bharatiya Janata Party (BJP) in inciting communal violence due to her objectionable remarks made during a television news debate.

The bench came down heavily on Nupur Sharma for making “disturbing” and derogatory remarks against Prophet Mohammed and igniting communal rift in the country. The bench reportedly held that she has a “loose tongue” and held her single-handedly responsible for what is happening in the country” including the brutal murder in Udaipur where a tailor beheaded for allegedly supporting and sharing her remarks.

Now, Justice Pardhiwala has taken umbrage at how personal attacks were made against the judges on social media.

He reportedly said, “Personal attacks on judges for their judgments lead to a dangerous scenario where the judges have to think about what media thinks instead of what the law really thinks. This harms the rule of law.”

As per The Hindu, the judge reportedly said, “Social and digital media was primarily resorted to expressing personalised opinions more against the judges, rather than a constructive critical appraisal of their judgments. ” He said this tendency was “harming the judicial institution and lowering its dignity. In India which cannot be defined as a completely mature or defined democracy, social media is employed frequently to politicise purely legal and constitutional issues.”

In his address at the function, Justice Pardiwala further reportedly stated, “The remedy of judgments does not lie with social media but with higher courts in the hierarchy. Judges never speak through their tongue, only through their judgments. In the modern-day context, trials by digital media are an undue interference in process of justice dispensation and cross that Lakshman Rekha many a times.”

NDTV quoted him citing the Ayodhya case as an example, and saying, “It was a land and title dispute but by the time the final verdict came to be delivered, the issue attained political overtones. It was conveniently forgotten that someday or the other some judge had to decide the contentious civil dispute which was indisputably the oldest litigation pending in the court of the country running into thousands of pages. This is where the heart of any judicial proceeding before the constitutional court may disappear and the judges deciding the dispute may get a bit shaken, which is antithetic to the rule of law. This is not healthy for the rule of law.”

Hate speech, malicious, vicious, fallacious, incendiary, derogatory; these problematic terms are not new to Indians as we are good at finding absolute freedom in social media virtual spaces. When it comes to religious freedom, we find social media as a platform to eagerly share our thoughts which may or may not hurt others’ spiritual view point.

In 2021, the IT Ministry came up with a new set of rules that strictly monitor ‘offensive’ content on social media, and such social media companies have been told to disclose the first or originator of a ‘mischievous’ message or tweet. This raises questions on end-to-end encryption and subsequently privacy.

The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, had laid down the mechanism of self-regulating bodies that shall be headed by a “retired judge of the Supreme Court or of a High Court, who shall be appointed from a panel prepared by the Ministry.”

The Rules require social media platforms to exercise due diligence in terms of any content that is “defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy, including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws of India” [Rule 3(1)(b)].

3. (1) Due diligence by an intermediary: An intermediary, including social media intermediary and significant social media intermediary, shall observe the following due diligence while discharging its duties, namely:—

(b) the rules and regulations, privacy policy or user agreement of the intermediary shall inform the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that,—

(viii) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting other nation;

In addition to the due diligence observed under rule 3, a significant social media intermediary shall also appoint, under rule 4, a Chief Compliance officer who shall be responsible for ensuring compliance; a nodal contact person for 24×7 coordination with law enforcement agencies and officers; appoint a Resident Grievance Officer; publish periodic compliance report every month.

The concerned Regulatory body would have to register with the Ministry of Information and Broadcasting, and it is tasked to oversee the adherence by the publisher to the Code of Ethics, and address grievances that have not been resolved by the publisher within 15 days. The body had been mandated to provide guidance to all such social media and OTT platform entities on various aspects of the Code of Ethics.

As per the rules, a self-regulating body while disposing a grievance or an appeal would have to issue guidance or advisories to the applicable publisher/entities as under:

(a) warning, censuring, admonishing or reprimanding such entity;

(b) requiring an apology by such entity; or

(c) requiring such entity to include a warning card or a disclaimer; or

(d) in case of online curated content, direct such entity to (i) reclassify ratings of relevant content; (ii) make appropriate modification in the content descriptor, age classification and access control measures; (iii) edit synopsis of relevant content;

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The Supreme Court three-judge Bench of Chief Justice SA Bobde, Justices AS Bopanna and V Ramasubramanian refused to quash disciplinary proceedings against a Madhya Pradesh Judge in a sexual harassment case filed by a junior judicial officer, reported Bar & Bench.

CJI SA Bobde noted that “sexual harassment allegations cannot be brushed aside under the carpet”, while refusing to quash the plea but granted him the liberty to appear before the inquiry.

Senior Advocate Balasubramaniam, who appeared for the petition was reportedly told by the Bench, “You are walking on a very thin ice, you can fall any time. You may have a chance that you may be acquitted. But as matters stand now, you are convicted.”

LiveLaw reported that after hearing the arguments, the Bench stated that it will write a short order dealing with the petitioner’s contention and dismiss the Special Leave Petition. However, on the Senior Counsel Balasubramaniam’s request for liberty to withdraw, the Court granted him permission to withdraw the case with liberty to participate in the inquiry.

During the previous hearing on this matter, Senior Advocate Ravindra Shrivastava, appearing for the Madhya Pradesh High Court, had read out some WhatsApp messages sent by the petitioner judge to the complainant/judicial officer who was harassed.

To this, LiveLaw had quoted the CJI saying, “To flirt with a junior official is not an acceptable conduct for a judge.” The WhatsApp messages were found to be “offensive and improper.”

The sexual harassment complaint against the Madhya Pradesh judge was registered in 2018. He had earlier approached the Supreme Court to quash the disciplinary proceedings initiated by the High Court, but the top court had declined to entertain it, asking him to approach the High Court instead.

As the High Court refused to entertain his plea, he once again approached the apex court, which stayed the disciplinary proceedings against the judge in September last year, according to a report in Bar & Bench.

In the previous hearing in the top court on February 16, the Bench had recorded that the High Court is proceeding with the matter even though the petitioner has retired from service as it wanted to “send a strong message”. The Bench was also told that a charge-sheet has been filed in the departmental proceedings, which the petitioner has not chosen to challenge.

“This matter before the Gender Sensitisation Committee has come to an end with the lady refusing to participate. Now the High Court wants to proceed. It is duty bound to proceed also, in a departmental enquiry. Is there any law which can prevent the High Court from proceeding with enquiry? Right to departmental enquiry is an inherent right of the employer even if there is no provision in the service law”, remarked the CJI.

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Justice Sachar was educated in Lahore, first at the D. A. V. School, and then at Government College Lahore and Law College, Lahore. In 1952, Sachar enrolled as an advocate in Shimla; in 1960, he enrolled as an advocate in the Supreme Court. Sachar was appointed as an Additional Judge of the Delhi High Court in 1970, then reappointed as a permanent in 1972. He also served as acting Chief Justice of the Sikkim High Court.  He served as Chief Justice of the Delhi High Court from August 1985 to December 1985, when he retired.

Justice Sachar was a longtime advocate for human rights, and was associated with the rights group People’s Union for Civil Liberties (PUCL) following his retirement. In 1986, he was elected as president of the PUCL, and he remained in this position until 1995. He co-authored the ‘Report on Kashmir Situation’, when militancy had reached a high. He also served on an advisory committee to review the Protection of Human Rights Act, and to consider if changes and amendments were required. The committee submitted its report in 2000, and recommended adaptations to the membership of the National Human Rights Commission (NHRC), its procedures to avoid delays, and recommended expanding its scope. Sachar was also a strong proponent for reservations for women in Parliament, and had several times stated that this measure could help avoid gender bias in legal cases. 

Sachar also served as the United Nations Special Rapporteur on Promoting the Realization of the Right to Adequate Housing. In his capacity as Special Rapporteur, Sachar researched and published literature in the 1990s on the the causes of the global housing crisis, as well as the legal issues tied to “the human right to adequate housing.”  In 2000, Sachar served on an unofficial two-day judiciary inquiry tribunal by the Indian People’s Human Rights Commission (IPHRC) that looked into the large-scale demolitions of slums in the Sanjay Gandhi National Park, resulting thousands of slumdwellers being evicted. Sachar said in his statement that the move to displace about two lakh people from the national park was a human rights violation, and questioned how “environmental concerns” weighed “against humans”. 

In 2003, Sachar, serving as PUCL’s counsel, argued that the Prevention of Terrorist Activities Act (POTA) should be reversed as it violated fundamental rights. He contended that the act’s provision that made statements given to the police admissible as evidence contradicted the right of the accused under criminal law, and argued that the act did not include appropriate provisions to uphold citizens’ fundamental rights. In October 2009, Sachar noted that innocent people were “victimised in the name of terror probes,” saying that they were being “taken into custody without registering a charge and are being detained” for long periods. He emphasised the need to reverse laws that permitted an individual’s detention without charges. 

Most significantly, in 2005, Sachar was appointed to head a committee established by the then United Progressive Alliance (UPA) government to examine the social, economic and education conditions of India’s Muslims. The Sachar Committee, as it came to be known, submitted a report to Parliament in November 2006. The report said Muslims in India were even behind Scheduled Castes and Scheduled Tribes, and underscored the fact that Muslims were not adequately represented in the fields of politics, civil service, the military and the police. The committee’s recommendations included the establishment of an equal opportunities commission to consider minority communities’ complaints, and connecting madrassas to boards of higher education. 

Sachar remained an advocate for civil liberties well into his twilight years. In August 2011, at age 87, Sachar was detained for protesting against the detention of anti-corruption activist Anna Hazare and his associates under the imposition of Section 144 of the CrPC. “Anna and his supporters are not confrontationist, nor am I. It is the government which is being so by clamping down on peaceful protesters and arresting people,” he said. Sachar had backed a Lokpal Bill that placed the executive, the Prime Minister, and Parliament in its purview. In 2012, Sachar spoke at the launch of a campaign to collect a million signatures in a push against sedition laws. “It seems tragic that we should be asking the government to redeem the pledge of Nehru,” Sachar said. In 1951, Nehru said of the Indian Penal Code’s Section 124A, which outlaws efforts to “excite disaffection towards” the government, “the sooner we got rid of it the better”. Sachar said, “For having a democratic society, it is necessary that these laws go”. 
 

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