India bequeathed an archaic law on same-sex relationship from the British.

A Supreme Court Bench headed by Chief Justice, Dipak Misra should finally rid India of that anachronistic law that criminalised all sex against the course of nature. Section 377 of the Indian Penal Code (IPC) was one of the parts of the penal code that originated from the Foreign and Commonwealth Office in London when India was still subjugated by the British. Entire tomes of laws for various dependencies were written on King Charles Street in London and the joke goes that as the laws were distributed by ship, Africa got them first, followed by India and then Australia. And here is the funny thing, Section 377 exists in the penal code of 42 nations across the world in one form or another but the section number remains the same. Not just in the nations that once consisted of British India but also vast swathes of British Africa and South-East Asia. This section which criminalised sodomy has led to the persecution of many people across the world for decades, primarily because they were men loving other men.

And even though the United Kingdom itself has removed the shackles of its own Victorian morality to become one of the most sexually and gender progressive nations in the world — though not without the persecution of many over the years including World War II cryptographer Alan Turing — some other westernised former colonies got rid of the provision as well — Australia, New Zealand, Fiji and Hong Kong. It is time that India now takes the lead in individual rights/privacy jurisprudence and rids herself of this provision. There is however going to be a problem in changing minds among a large proportion of the public whose world-views are still shaped by Victorian morals. Queen Victoria might have taken a lot of precious stones from India and she certainly bequeathed to us a bunch of stone-age views on so-called morality in return. Views that have not become so entrenched in nations like India that there are people who with a straight face can argue that homosexuality is not just a sin, but against ‘our cultural norms’.

While this columnist will be the first to admit that he is confused by the expanding number of sexualities and gender-identities today, on a very simple basis, same-sex love is not an aberration or a disease like some claim it to be. It has been around in human history for a really long time, the ancient Greeks of course famously celebrated it, but even in some of Hinduism’s older texts India has had a long established tradition of a third gender. Interpretations are still being made on the role of this third gender as an object of sexual desire; however homosexuality, or love between men, has been a reality in India from the ancient Hindu kingdoms through the Mughal court.

However, one has to disagree with those who believe that social stigma towards Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community will disappear overnight thanks to the stroke of a judge’s pen, they have an inflated opinion of the power of the judiciary. Nothing will change overnight among people who grew up pre-1991; and 1991 is the watershed because it was not just economic reforms that came to India but it was also when India’s lowered her cultural barriers and satellite television began broadcasting Western soft-culture. There is today a large acceptance of homosexuality among the erudite, educated English-speaking population of India. But that does not mean that others do not continue to see homosexuality as a threat to their religious values and also propagate crazy and discredited theories about homosexuality being a disease that can be cured. Sadly, there will continue to be hate and violence directed towards the LGBTQ communities, even if Section 377 is struck off or read down and this must be addressed through legal means every single time.

Hate should not be allowed and the most important thing is education. That too will not happen overnight. We will need to build that acceptance of homosexuality in India. Possibly when a famous personality in sports, Bollywood or politics comes out openly will things be seen to be changing. And even though a couple of Bollywood personalities have all but admitted their sexual orientation, the fear of Section 377 and its potential for misuse, especially in a country where busybodies love filing irrelevant cases for media attention and a police force willing to go along, does call for being careful.

The Supreme Court is not looking at the issues of relationships and inheritance. This will need to be legislated, and even social progressives in India should realise that legalising gay marriage may be a step too far in today’s environment. Social changes are occurring in India and the gradual acceptance of homosexuality as a fact of life by the public at large is taking place. This will need to continue for a while. Gay marriage has been a hot-button topic in many western societies as well; in Australia it became a major electoral issue and many countries have resolved this using a referendum. In India, however, there will need to be legislation. But if we are to move towards an Uniform Civil Code, any new marriage act, which should use the Special Marriage Act as its basis, should not differentiate between genders as well.

Writer: Kushan Mitra

Courtesy: The Pioneer

A Constitution Bench of the Supreme Court on Tuesday delivered its judgment in NCT of Delhi vs Union of India. Delhi is to be ruled and governed by its elected legislatures. But has the Court announcement really made the things less complex?

What next for Delhi? After several years of jostling between the AAP Government which has an overwhelming majority in the city and the Lieutenant Governor (LG) appointed by the Central Government, the Supreme Court (SC) ruled that the elected government of the city has primacy on most matters leaving aside land, police/law and order out of the ambit. At the same time the, SC reaffirmed the fact that the National Capital Territory (NCT) of Delhi remains an Union Territory and does not enjoy the same powers as a State. It held that the LG and the AAP Government, or any future Government, should work together for the benefit of the city and that, in the case of a disagreement, the LG should not refer every single matter to the President of India, that is the Centre.

Will this substantially change matters in Delhi? The AAP certainly hopes so and moved quickly to declare ‘victory’ even though a core contention, that they have the same powers as any other State Government, was not upheld. Contentious issues, such as the establishment of an Anti-Corruption Bureau to investigate past instances of corruption remain. Is this a ‘policing’ matter? The same is the case with the implementation of a scheme to install Closed-Circuit Television Cameras; would this impinge on the authority of the Central Government which controls the Delhi Police? Does the Delhi Government have the authority to transfer DANICS cadre officials or does that right remain with the Centre? Many of these issues will be further addressed in a subsequent sitting of another Bench of the Supreme Court. Other decisions of the AAP Government such as widening the ambit of their health and education schemes which have been held up, however, might be easier for the Arvind Kejriwal Government to implement.

The fact, though, is that governance issues in Delhi — complicated to begin with — have become even more complicated given BJP-AAP hostility. The Centre, the State of Delhi and five different municipal corporations of this City-State which is also the National Capital of India if working at cross-purposes will result in delayed, confused decision-making. And this allows politicians of all hues to play their favourite game of passing the buck. This was highlighted by Delhi’s previous Chief Minister, Sheila Dixit, who pointedly said that the Supreme Court decision changes nothing substantially. Dixit ran a Congress Government in the city for three terms with a Central Governments controlled by the BJP in her first term and the Opposition in control of the municipalities. Her non-confrontationist attitude and ability to make compromises allowed the city and its associated infrastructure to grow exponentially under her stewardship. A similar spirit is required from both the AAP Government and the BJP. Delhi’s population has been growing at a rapid pace and there are huge issues of infrastructure, healthcare, education, electricity and water supply facing the city. These need all sober minds and leaders with the welfare of the governed at heart to come together. A long shot? Sure. But anything else will only spell doom for Delhi.

Writer: Pioneer

Courtesy: The Pioneer

Finally putting an end to the long pending dispute, Supreme Court bench ruled that The Chief Justice is the “master of the roster” and has the power to assign cases.

Earlier Shanti Bhushan’s petition had called for a panel of senior judges to decide on the rostering of judges and assigning of cases.

The government’s top lawyer had opposed it, saying it will result in chaos.

In April, a three-judge bench headed by Chief Justice of India Dipak Misra held that the Chief Justice was “master of the roster” who alone has the power to decide on the allocation of cases, virtually setting at rest the controversy raised by four of its next senior-most judges.

“There is no dispute that the Chief Justice is the master of roster and allocates cases to Judges. The constitution is silent on the Chief Justice. Conventions and judgements over the time and accepted by all stake holders that the Chief Justice is first among judges and senior most,” said the Supreme Court.

In January, four top ranking judges called an unprecedented press conference in which they took on the Chief Justice Dipak Misra.

Shanti Bhushan had said in his petition that “master of the roster” cannot be an “unguided and unbridled” discretionary power, exercised arbitrarily by the Chief Justice by hand-picking the benches of select judges or by assigning cases to particular judges.

In an unprecedented event on January 12, the four top ranking judges after the Chief Justice – Justices J Chelameswar (now retired), Ranjan Gogoi, Madan B Lokur and Kurian Joseph – called an unprecedented press conference in which they took on the Chief Justice and said the situation in the top court was “not in order” and many “less than desirable” things had taken place. The judges had also criticised the way sensitive cases were being assigned by Justice Misra to junior judges.

During the arguments, Attorney General KK Venugopal stressed on the need for “unity” among the judges of the top court and said that Mr Bhushan’s petition could lead to “conflict” among judges on who would hear a case, besides creating a multiplicity of authorities.
“It is essential that there should be one person doing this and if it has to be one person, then it has to be the CJI,” the Attorney General had said.

Senior counsel Dushyant Dave and advocate Prashant Bhushan, who had appeared for Shanti Bhushan, had questioned the manner in which some “sensitive cases” were allocated to specific judges in violation of rules. They said there was “ambiguity” in the rules as to whether the Chief Justice did have the power to frame the roster.

By Vishnu Sharma AOR Supreme Court of India & Legal Adviser with Opinion Express Group

The Supreme Court on Friday engaged the Centre to set up a committee to study how temples of architectural and cultural importance across the nation are being managed, particularly in the interest of devotees and utilisation of offerings/donations.

Finally, it took the Supreme Court to restore the sanctity of the Puri Jagannath temple as a receptacle of people’s faith, make it accessible to devotees and free them from the oppressive hold of servitors, who thought it their divine right to intervene in rituals, offerings, prasad and even day-to-day running of affairs. The apex court has also ordered a committee to study the manner in which other shrine boards at peeths were run and coopt their best practices as a manual for running the centuries-old temple. What though is pitiable is that the court had to intervene despite the temple administration being a largely secular affair with representatives of the state government on the board and the Puri gajapati being a nominal head. But over the years, the BJD has hardly applied its mind on rescuing the crowning glory of Odisha, letting it slide into the hands of exploitative servitors, who it nursed as a constituency. They may be the descendants of the original keepers but have been waylaid by political imperatives and patronage and taken to autocratic and self-serving means of running operations. Considering that it is one of the richest shrines and has a hold of the cultural consciousness, the Puri temple has over the years emerged as a power centre, inspiring awe and fear among common devotees rather than respect. But the State Government allowed this mindset to fester. Neither did it invite neutral culture icons on the board.

A run-through of the last few headlines has only been about controversies, the latest being about an ASI team visiting the sanctum sanctorum for repairs and finding that the keys to the temple treasure trove have been missing for years. The Puri king and servitors have denied knowledge of the key or its possession though the chief priest has maintained that it automatically does not imply loot as the seal on the lock remains unbroken. But it definitely raised questions and doubts about the safekeeping of something that was bestowed on the temple for benefitting devotees rather than being used as collateral for running a temple economy. There have been further episodes of reversing rituals at whim, denying prasad, arbitrary usage of offerings and arrogance and misbehaviour by servitors. The incident where a young girl was viciously manhandled for holding on to the rope of the chariot of Lord Jagannath during rath yatra even drew censure from the Puri Shankaracharya himself. Besides, the upkeep of the temple itself left much to be desired, with devotees complaining of slippery grime and extortion for availing prasad or darshan. In all this, the beautiful essence of the Puri temple as a concept, as a beacon of Jagannath culture, and its civilisational context as a gana dharma (mass religion) have been lost. Lord Jagannath was never about royal patronage though the royals adopted the folk nirguna form of the tribals. He emerged out of common men and as a lord of the universe embraced all tenets of Hinduism, Jainism Buddhism, Vaishnavism to embody a mass living philosophy. That is why all temple rituals are in the form of processions and spectacles to enable the participation of the devout; they have been historically inclusive rather than exclusive, plebeian rather than elitist. The apex court reminded us of this ethos.

However, the ruling, though specific to the Hindu shrine, should be understood in its wider implications. Rigidity of clergy and intermediaries, mandated by heredity and tradition, is costing the devout in other faith shrines across the country and consigning them to the status of subjects rather than stakeholders. And the gatekeepers of faith, by virtue of their psychological clout ordained by the office they hold, have become heavily politicised too. It’s time for ritual cleansing and some real community service.

Writer: Pioneer

Courtesy: The Pioneer

Demanding for fast tracking in 2G cases appeal, on the very first day of hearing of CBI and ED’s appeal on May 25 in Delhi High Court, the Special Public Prosecutor Tushar Mehta said the 2G Scam is a monumental scam and shame on the Nation. He was objecting to the usual delaying tactics played by some accused claiming that they have not yet received notice and some demanding for more time to reply for the notice issued on March. Now the case is heard by Justice SP Garg and he is going to retire in June and a new Judge has to hear the appeal arguments from August first week.

As rightly demanded by Tushar Mehta, the appeal of CBI and ED against the very bad judgment of trial court Judge OP Saini must be heard on daily basis. The Judiciary must take call to the undo the bad trail court judgment, which is totally against the findings of Supreme Court and Delhi High Court. It is another question, how trial Judge OP Saini arrived in such a bizarre conclusions and totally ignored the concrete proofs of money transfers between former Telecom Minister Raja’s firm and his party controlled TV channel from co-accused telecom operators.

The very idea of the accused persons now acquitted is to drag the appeal process to four – five years. Such is the level of money spin in this case which I can vouch as a reporter who started tracking this humongous scam from late 2008. The more than 1500-page judgment of the trail court is totally bad in law with many errors and full of false narrative. I have read this bad Judgment of Judge OP Saini many times and it is totally against the Supreme Court Judgment cancelling all the 122 licences. It is also against the Delhi High Court’s Judgment which was ratified by Division Bench and Supreme Court on the allotment of licences on dubious First-Come-First-Serve basis by Minister A.Raja.

CBI and ED in its appeal petition described Judge OP Saini’s judgment as totally erroneous. The Judge has ignored the spirit of Prevention of Corruption Act and even went up to give clean chit to Minister A.Raja by putting blame of officers. The trail Judge has even blamed officers whom he has not yet examined. Without examining a person, how Judge blamed then PMO’s top officers TKA Nair and Pulok Chatterjee. Don’t know why these two officers keeping criminal silence when they were blamed by trial judge without examining them. They should have approached Delhi High Court at least to rectify this. Are they shouldering the sin committed by their boss and real boss?

Above all, the trial court Judgment is totally against the landmark judgments Shamsher Singh Judgment and Bhajan Lal Judgments on corruption cases. The Shamesher Singh Judgment clearly says Minister is the final responsible person and not the officers. Here Judge Saini erratically put blame on officers and doubtfully gives clean chit to Raja, who is indicted by Supreme Court on many words while cancelling the 122 licences in February 2012.

Judge OP Saini has totally ignored the crucial witnesses and terms them as they have political differences with Raja. This is totally against the spirit of the Bhajan Lal judgment which says the political differences is not at all the matter and only fact of the statements only to be considered. If a person is a friend will he depose against? The cases crop up due to difference of opinion and this is a basic fact. Judiciary has only to look into the facts raised by the witness and not the other matters. I have submitted a detailed note on the errors and faults in the trial court Judgment to CBI, ED and Special Public Prosecutor as dutiful citizen of this country.

Now Enforcement Directorate (ED) is seeking data from Stock Exchange Board of India (SEBI) doubting on the prior knowledge of some accused about the controversial Judgment of Judge OP Saini. According to ED, few weeks before the Judgment, there was a huge volume of buying in the almost dead shares of certain companies owned by accused persons. It is high time to finish the probe on this regard and the agencies as well as Judiciary must fast track this probe on the fixing of cases.

The Government, CBI, ED and Special Public Prosecutor must reiterate their demands for the fast track hearing on the appeal against controversial 2G Judgment in Delhi High Court. The Delhi High Court must allot specific time for daily hearing in 2G cases and Chief Justice must take a call to bring justice in the trial court’s judgment which itself looks like erroneous.

[J Gopikrishnan is Special Correspondent with ‘The Pioneer’ daily]

The protest against the citizenship bill 2016 has gained push in Assam as thousands of people from different section of the society joined a full day hunger strike in Guwahati on Tuesday disapproving the bill.

The mass hunger strike organised by the All Assam students’ Union (Aasu) started at 6 am and continued till 5pm which witnessed participation from 28 organizations including different tribal students’ organizations, cultural organizations, senior citizens’ as well as intellectuals and different political parties including the Asom Gana Parishad (AGP) and the Congress. The AGP is a partner of the BJP led government in Assam.

The participants of the hunger strike unitedly sent a strong message to the Government that the controversial Bill will not be accepted at any cost.

“Assam is not a dumping ground of Bangladeshis. Ours is a small, state and we have taken enough burden of foreigners since before Independence. But we cannot afford to have any more Bangladeshis, which ha posed threat to the indigenous people of Assam,” said Aasu Adviser Dr. Samujjal Bhattacharyya.

Writer: Anup Sharma

Courtesy: The Pioneer

Legislature, Judiciary, and Executive, the creators of the Constitution, are the three major organs of the state. Powers among them are isolated. The decision taken by them and the laws made by them can’t be usurped by anyone.

Unlike England, India has a written Constitution. But still, in the UK, the legislature, the executive or the judiciary would never trespass. On the one hand, in India, the judiciary very often breaches this fundamental line. The Supreme Court transgresses into the Parliament’s turf and usurps power of the legislative to enact laws.

This encroachment by the judicial legislation is in sharp contrast to any democratic form of Government where ‘Separation of Powers’ reigns supreme.

This judicial overreach also runs contrary to the basic structure doctrine of the Indian Constitution. For, the founding Fathers of the Nation had earmarked in the Constitution that the legislature, executive and the judiciary would operate and be the masters in their own spheres.

Judiciary was meant to interpret laws made by the Parliament. It could declare a law — made by the legislature or even an Amendment to the Constitution — a nullity or perfectly valid.

But with the advent of Public Interest Litigation, the beliefs of the Founding Fathers of the Constitution became a mirage. Earlier, the judiciary was adjudicating on the English model, as enunciated in our Constitution where laws were only interpreted by the courts.

However, of late, the Supreme Court has been taking suo moto notice of issues where it feels laws in that particular field have not been made by the Parliament; and that its judgement would be the law. This per se is judicial overreach and such judicial activism shakes the very foundation of the doctrine of ‘Separation of Powers’ upon which the Constitution’s edifice stands.

In Aruna Shanbaug’s case (2011[4] SCC 354), former Supreme Court judge Markandey Katju’s opinion to the Bench, which is the law of the land on euthanasia, is a striking example of judicial activism.

Even in the UK and France, Bills on euthanasia could not be passed as there was stiff opposition. In Holland and Belgium, Parliaments have enacted laws but India is not ready as the then Attorney General informed the Bench.

Nonetheless, the Supreme Court, speaking through Justice Katju, took over the legislative function of the Parliament and the judge-made law on legalised killing came into effect.

Such a judgement overreaches into the legislative domain and ex facie has to be deprecated for entering into Parliament’s arena. Such judicial legislation is dehors of our Constitution.

The case mentioned above also shows that the apex court’s anxiousness to venture into taboo areas where it should rightly have shown judicial restraint. However, there have been several cases where this lakshman rekha has been breached, yet, the Supreme Court has reiterated explicitly many a time that it should not cross over.

The larger issue is: Why should the Supreme Court legislate or issue such legislative-like and unheard of directions that Parliament is directed to enact a particular law?

By doing so, it shocks democratic countries overseas who too are governed by the rule of law as usurpation is unheard of where the rule of law thrives. Democracy survives only when all the three organs remain in their lanes and do not swim across.

Very often, as English judgements say, emotional facts make bad law. Adjudication by courts must be strictly in accordance with the law and not in derogation of the established principles of the law.

The proposition of the Doctrine of Seperation of Powers was expounded by the same judge.

In Hiramony’s case (2008[1] SCC 630), Justice Katju had opined that the Supreme Court should not encroach on the legislative field. Further, the top Court again, speaking though Justice Katju, held in Shraddhanand case (2007[12] SCC 288) that it had  no power to amend the Constitution by a judicial verdict and that it could not arrogate to itself the power of the Parliament under the Constitution and must maintain self-restraint.

Again, Justice Katju, speaking for the Supreme Court in the Aravali Golf Club case (2008[1]SCC 683), held that in several cases which have come up in the Supreme Court, the Bench has observed that the judges of High Courts were unjustifiably trying to perform executive/legislative functions. This was clearly unconstitutional. In the name of judicial activism, judges cannot cross their limits and try to take on the functions that belong to another organ of the state.

He reiterated that the three organs of the state should not impinge on one another, as otherwise the delicate balance of the Constitution would be upset. Judges must know their limits and not behave like emperors.

Interestingly, Justice Katju said in a judgement that judges could not create law and then enforce it. Judges cannot direct the legislature to make a particular law. All the above judgements too were delivered by Justice Katju but when the euthanasia case came before his Lordships four years later, he chose to gloss over it and the maxim of judicial restraint was ignored.

Such aberrations in our judiciary must not shake up the basic Doctrine of Separation of Powers in India. An effective vigil is a must to ensure that such personal thoughts do not become the law of the land.

(The writer is a practising Supreme Court lawyer)

Writer: DN Goburdhun

Courtesy:The Pioneer

After the impeachment notice against Chief Justice of India Dipak Mishra moved by 64 Opposition MPs failed to go through in the Rajya Sabha, there was an unexpected turn of events in Supreme Court on Tuesday. Two Congress Parliamentarians, who had challenged the decision of the RS Chairman, withdrew their petition after the court did not allow their counsel Kapil Sibal to see the order that listed their petition before a five-judge Constitution Bench.

A Bench of Justices Arjan K Sikri, Sharad Arvind Bobde, NV Ramana, Arun Mishra and Adarsh K Goel, who came prepared to hear the case on questions of law, were taken aback after Sibal sought to see the order constituting the Bench for hearing this case.

Sibal said his advocate on record was informed at 10.29 am (a minute to go before hearing of the case) by the Registry about the matter being listed before a five-judge Bench. Although the list was out late on Monday evening, Sibal wondered if the listing of the case was an administrative order and if so, who passed it. He dropped hints that he intended to challenge this decision if the CJI had passed the order constituting the Bench and listing the case before it.

However, the Bench said, “We should deal with the merits of the case. What purpose will be served by going into this aspect? It will lead us nowhere.”

Sibal assured the Bench that he was not acting with any malice or agenda but to keep the dignity of the institution high and process of law pure. In his view, the matter could travel to a Constitution Bench only by way of a judicial order. He questioned whether the power exercised by the CJI as master of roster was “untrammeled” that such orders could enjoy immunity from judicial scrutiny.

Anticipating a high voltage hearing, the courtroom was jam-packed with lawyers and mediapersons. The hearing was punctuated by objections raised on Sibal’s appearance in the case. Lawyer RP Luthra accused Sibal of pursuing an agenda against judiciary by first signing the motion of removal against the CJI as a Member of Parliament and later arguing it as a lawyer. Another lawyer Ashwini Upadhyay too raised protest by citing a Bar Council of India resolution condemning such a practice.

The Bench said, “If he (Sibal) appears in violation of your Resolution, you are free to take action against him. But you can’t restrain somebody from arguing unless there is an order that restrains him.”

At one point, Sibal submitted that if the Bench felt that he should not appear, he will withdraw. The Bench said, “We leave it to you,” following which Sibal proceeded with his arguments.

Attorney General KK Venugopal told the court that the petition was not fit to be heard as out of the seven political parties and 64 MPs who moved the removal motion, only 2 MPs had approached court raising doubts whether the other MPs had accepted the Chairman’s order. Sibal replied by saying such an argument has no foundation in law. He offered to bring 60 petitions to court, if this argument was to be accepted.

The Bench finally asked Sibal if he was willing to continue arguments on merits. But Sibal being adamant to be supplied the administrative order first, chose to withdraw the petition and the Bench ordered accordingly.

By Abraham Thomas: Courtesy – The Pioneer

At the launch of Arun Shourie’s new book – ‘Anita gets Bail’, AP Shah, former Chief Justice of the Delhi High Court, RM Lodha, former Chief Justice of India, and Fali Nariman, Senior Advocate argued the current  judicial landscape.

The wheels of justice often grind slow. And that is the reason, Arun Shourie — a journalist, economist, author and former cabinet minister—has decided to take up the cudgels on behalf of the ordinary citizen by taking up the case of his wife. His new book, Anita gets Bail – What are our courts doing? What should we do about them? revolves around a false case against his wife Anita Shourie. The book was released in the presence of RM Lodha, former Chief Justice of India; AP Shah, former Chief Justice of the Delhi High Court; Fali Nariman, Senior Advocate, and acclaimed journalist Rajdeep Sardesai.

Advocate Nariman quipped that Shourie writes a book almost every year but this book fulfills an important vacuum in public life. He added, “The provision for one appeal is a precaution, a provision for two appeals means panic and provision for multiple appeals means a complete lack of faith in the system.” Sardesai read excerpts from the book, after which Justice AP Shah spoke about the problems that the judiciary is currently facing and why this is the apt timing for Shourie’s book to release. “This book could not have come at a better time. Most of us are only too aware of what is happening and some of us talk about these things in hushed whispers or, occasionally, in loud voices. But Shourie has done what most of us have not. He has put pen to paper, and in his own distinctive style, and with remarkable flair, ‘called out’ the judiciary and those who staff the system.” He spoke about various problems such as a low judge-to-population ratio, a generally inadequate number of judges, poor infrastructure and an executive not entirely supportive of the judiciary. Justice Shah commented on some pressing issues like delay in the Bombay Blast case, the Bhopal Gas Leak case and the Jayalalitha Disproportionate Assets case to highlight the delay in getting justice in our country.

Shourie made a suggestion that the media houses can send correspondents to spend a day every month in a randomly selected lower court and report the happenings in those courts that day. It would help the general people to understand better as the state of justice in India today and he agreed with him. Justice Shah said that Shourie’s book draws attention to an array of uncomfortable questions. “I congratulate and thank him for having made us uneasy.”

Justice Lodha began by saying that the book mirrors how an open and shut case (referring to the case of Shourie’s wife) takes years to come to a conclusion. He also spoke about the independence of the judiciary and the leadership of Chief Justice Misra. “I want to talk about the present state of affairs where the independence of this judiciary is being challenged. As this is happening, the CJI and the Supreme Court are being brought into the domain….”

“…In the past few weeks, the Supreme Court has emphasised that the CJI is the master of the roster. Yes he is, there is no doubt about that. But can he do what he likes?…” added Justice Lodha. He called out the current phase of Supreme Court. “The phase that we are seeing today in the Supreme Court, to say the least, is disastrous. Collegiality must return. CJI is the leader and he should take everyone along with him.”

Justice Lodha emphasised that if what is happening in the Supreme Court is taken as a model by the High Courts, then the day is not far when the judicial system of the country will become chaotic. He concluded by praising the author, “Arun Shourie has done a yeoman’s service by giving us this book. It has shaken me. I feel sorry that I could not do much… Everyone has to work really hard for restoring the efficacy and credibility of the judiciary.”

The author addressed the audience at last and said that the judiciary is going through turbulent times. “It should not be perceived that I have a negative feeling towards the judiciary. It is only that, there is a well-planned assault on the judiciary not just by one person but by an entire ideology which is totalitarian and wants total control over the country.” Shourie said that the judiciary must thwart any attempts made against its independence. And the judiciary should never think that if an attempt has been thwarted once, the work is over. ‘They’ will come in a different way. He asserted,“We are being accustomed to a new normal. Children are being raped and the new deputy CM of Jammu and Kashmir says it is a small thing.”

He said, “if the present CJI Dipak Misra has to say repeatedly that he is the master of the roster … this already means that he has lost the moral authority.”

Shourie urged the senior lawyers present in the audience to directly discuss the situation with the Chief Justice of India and come up with ways by which it can be fixed.

Writer: Team Viva

Courtesy: The Pioneer

Gender-based violence cannot be eliminated by higher budgetary outlays. The policies are bound to have minimum impact if they are not backed up by inclusive public spending.

A little over five years ago, the Nirbhaya case shook the nation’s conscience and brought people to the streets in protest against the high incidence of violence against women in the country. The Government, under pressure, took swift measures to address the issue. It passed the Criminal Law (Amendment Act), 2013 (Nirbhaya Act) to bring amendments to laws on sexual offenses. Along with this, the Union Government introduced the Nirbhaya Fund to “protect the dignity and ensure the safety of women in India”.

The Kathua and Unnao cases have once again stirred public outrage, prompting the Cabinet to approve an Ordinance, awarding death penalty for those convicted of raping girls below the age of 12 years. While questions have been raised about the rationale of such a move, arguing against its futility, questions also arise about the intent of successive Governments to address fundamental gaps in the programmatic framework to address violence against women.

Given the sense of urgency witnessed at the time of the Nirbhaya case, it is worth reviewing how Government interventions for addressing violence against women fared in the last few years. Both, budgetary allocations and the utilisation for the concerned schemes throw concerns. Against the recommendations of the Working Group on Women’s Agency and Empowerment for the 12th Five Year Plan, allocations for the five-year period (2012-13 to 2016-17) to Swadhar Greh scheme (shelter homes for women in distress) and One Stop Centres scheme (OSC), which are meant to provide integrated support and assistance to women affected by violence, have been 65 per cent and 74 per cent respectively. Of the allocated funds, fund utilisation in both schemes was 62 per cent and 77 per cent respectively.

Other schemes, such as Ujjawala (for prevention of trafficking) and Mahila Police Volunteer initiative received small allocations of Rs 50 crore and seven crore rupee in 2018-19 respectively. Moreover, the Union Government’s scheme for ‘Assistance to States for implementation of Protection of Women from Domestic Violence Act, 2005? was withdrawn in 2015-16 after funds allocated for the scheme remained unutilised. The operationalisation of Nirbhaya fund too has been plagued by a dearth of appropriate proposals and low levels of fund utilisation.

How does this reflect on the implementation of interventions? The coverage of most interventions is distinctly low. For instance, against the Union Government’s initial proposal of establishing an OSC in each district, only 236 have been approved, of which, 170 OSCs are operational (as of February 2018). Likewise, with a total of 559 Swadhar Greh in the country (as of December 2017), the distribution of these across States is highly skewed. Provisions made under these schemes also fall short of meeting requirements. OSCs, for instance, have a maximum provision for accommodating five women at a time.

Media reports have regularly highlighted the deficiencies in services being provided at these centres. Likewise, a recent report by the National Commission for Women has brought to light how, among other factors, lack of sufficient funds is constraining the quality of services provided in Swadhar homes. Effective implementation of policies and legislations quite simply require adequate funds. Violence against women is unarguably a complex issue, a reflection of the imbalance in gender relations in society. Higher budgetary outlays by themselves will not be able to eliminate gender-based violence but are nonetheless critical to ensure an effective response mechanism to provide appropriate support to women in distress.

Moreover, budgetary allocations for schemes specifically meant to address violence against women, reveals important gaps, more fundamentally, investing in women’s education, health, paid employment and ensuring access to basic, quality services would help reduce their vulnerability to violence. The neglect of women’s interests in budgets, and of other disadvantaged sections of the population for that matter, is not a recent phenomenon. It is time we recognise that policies and legislations, though crucial, by themselves would only achieve limited impact unless backed by adequate public spending.

(The writer works with the Centre for Budget and Governance Accountability)

Writer: Kanika Kaul

Courtesy: The Pioneer

Although thoughts and guesses cannot replace proofs. Nobody in the opposition parties has full proof evidence , still they are demanding the CJI’s removal on plain conjecture.

As someone who has held the Supreme Court  (SC) of India to be a sacred space of our democracy right from the day when I roamed the corridors of the SC as a young bright-eyed lawyer, it is distressing to see seven opposition parties led by the Congress, move a notice for the removal of the Chief Justice of India (CJI) Dipak Misra.

Former Prime Minister and senior Congress leader  Dr Manmohan Singh’s name was conspicuously missing from the list of the 64 parliamentarians who signed the notice for the removal (impeachment) of the CJI and the SC, in a reaction to the notice, said that statements by lawmakers on the impeachment of judges were ‘disturbing’. It is indeed a black day for India as this is the first time in the country’s history where a removal of the CJI has been asked for and that too, without substantial ground.

Be it, Congress’ big-heartedness as they claim that the party did not involve Manmohan Singh because of his stature as former Prime Minister of the country, or be it the former Prime Minister’s own decision not to put his name on the dotted line, it is also quite telling how wrong this move is.To read into the reasoning for the Congress and the Opposition’s demand to remove CJI, be it the recent Judge Loya verdict or the Ram Mandir hearings, will murky the waters further as well as scandalise the judiciary. Without getting into the motivations and keeping politics out of it, no history book will be kind to this foolhardy move against the judiciary.

The legislature, executive and judiciary are considered as three pillars of the democracy and to publicly attack a strong and respected institution such as the judiciary with such ease as well as abject lack of thought is shameful. The fine balance between the three is the backbone of India’s Constitution and those asking for the removal of the CJI, must keep in mind the decorum dictated by the Constitution for they seem to have lost the plot. The separation of power that ensures the independence of the judiciary has been very carefully penned in the Constitution by our founding fathers.They made the process of removing the CJI, a painstakingly arduous task, as they more than understood that judgements passed by the judiciary may not please all and thus, made sure that other branches of the Government do not deem themselves to be ‘judge and jury’ on the judiciary or ‘second-guess it’, if any judgment is inconvenient to them.

The signed movement such as this one, which does not stand on a substantial ground, mocks the judiciary and more dangerously, this brazen attack on it by lawmakers has set the worst kind of precedent for the world’s largest democracy. It needs to be understood that it’s not this easy under the Indian Constitution to do a coup d’état on the judiciary. Although enshrined within the Constitution, the process for the removal of the CJI or any other Supreme Court judge can be initiated in either House of the Parliament but it is so tedious that it has multiple levels of checks.

It requires a notice of motion issued by 100 MPs from the Lok Sabha, or 50 from the Rajya Sabha and the Speaker or the Chairman can accept or reject the notice. If and when the notice of the motion for impeachment is accepted, the Speaker or the Chairman is to form a three-member committee to investigate the charges. Upon finding merit in the allegations, if at all, the committee recommends the motion of impeachment be taken up by the Parliament and it would then be put to vote where the House must pass it by a special majority — not less than two-thirds. In other words, at least 364 members should have voted for the motion in the Lok Sabha, and 164 members in the Rajya Sabha. Once both Houses pass the motion, it would then be placed before the President for approval and if the President assents, then the CJI stands impeached.

A simple reality check of the Opposition’s clamour, the hollowness of the allegations that form the basis of the move and the sheer lack of numbers to see this through, make it more than apparent that such a (mis)adventure is doomed from the get go. Unlike a Samurai’s seppuku, there is no honour here and so, therefore, the question that comes to mind is — why such harakiri is being attempted and to what end? Simply put, the idea is not to seek a real impeachment but is a knee-jerk salacious attempt to publicly defame and malign the CJI and the judiciary and also appears to be a tool to intimidate and disrupt it. As with the judiciary, be it questioning the Election Commission on EVMs, the Army on the surgical strikes, the Prime Minister’s or President’s office, the Opposition has seized every opportunity to try to cast shame on strong and respected institutions that make India proud.

While most of the Opposition’s attempts have only ended shaming itself, the vile attempt will not completely break a strong pillar of our democracy but it has compromised the dignity of judiciary. In the past, too, the Congress has indulged in actions that were aimed to destabilise the judiciary. In 1973, Justice A N Ray was appointed as the CJI in a controversial manner that saw him supersede three senior Supreme Court judges. The move was seen as an unveiled and direct attack on the sovereignty of the judiciary and similarly, in 1986 when the Rajiv Gandhi-led Congress Government overturned the then Supreme Court’s landmark verdict in the Shah Bano case, it openly subverted the country’s apex court. This vile attack is a shameful and unveiled attempt to undermine it and the judgments it deliver. The media, which is considered to be the fourth estate, may not understand the magnanimity of this unprecedented Constitutional issue that needs to be dealt with refrain and caution. A great deal of responsibility rests with the lawmakers to not take away the credibility of judiciary and the media will also need to play a responsible role. As per the Constitution, citizens cannot sit on judgment over the judges.

Thus, allegations, counter-allegations, the merits or the lack thereof to make the case for the removal of the CJI or any other judge is not open to debate, least of all, on television channels. I cannot emphasise this enough as it appears that many are debating the competence of the incumbent CJI without reading the status assigned to him in the Constitution of India, wherein it has been made virtually impossible to cast aspersions for his removal without evidence even when the matter is debated under the privilege of the Parliament.

‘Suspicion’ cannot replace ‘evidence’, and right now nobody has the evidence but is crudely demanding CJI’s ouster on plain conjectures. Let it be known that while some quarters work to impair the judiciary, they also jeopardise India’s foreign policy and interests, be it, national security or commerce. Things such as the extradition of economic offenders, terrorists or any such variety would come under a shadow of doubt. Thanks to this motley bunch constantly on the job to undermine every other authority in India but their own self.

(The writer is a lawyer and the State Spokesperson for BJYM, Chandigarh. Views expressed are personal)

Writer: Amrita Bhinder

Courtesy: The Pioneer