Gogoi’s Retirement Verdict on Sabarimala

A famous—but not so famous—editor of Delhi was known to ring up his erstwhile colleagues (who were not as lucky as him to rise to the top position) every morning his editorial appeared on print. He would specifically ask them whether they had read the last sentence which he claimed was the most important part of the editorial. Because, according to him, he had written it in such a way that nobody would know what to make of it.

The Sabarimala review judgment by the bench headed by Chief Justice Ranjan Gogoi, who has just demitted office, belongs to a similar category. It is virtually a retirement judgment, which pleases possibly everyone and irks none. It leaves the scope for interested parties to interpret the decision whichever way they like, whether they support the entry of women of all ages to the famous hill shrine, or whether they believe that the entry of the women of reproductive age would cause discomfort to the celibate temple deity.

The verdict has expanded the scope of the issue raised in the clutch of review petitions challenging the 2018 September 4-1 majority verdict upholding the right of women of all ages to pray at Sabarimala to include almost everything that is related to religions and religious practices. Accordingly, the Sabarimala issue has been combined with entry of Muslim women in a Dargah/Mosque as well as the restriction on Parsi women married to a non-Parsi to visit the holy fire temple along with the practice of female genital mutilation in the Dawoodi Bohra community. There is nothing wrong with the approach, but it fails to appreciate the fact that the specific issue at Sabarimala is entirely of a different nature.

Law, Opinion, Politics, Religion

By K Raveendran

November 14, 2019

Ayodhya verdict legitimises the act of demolition

The Supreme Court verdict on the Ram Mandir-Babri Masjid dispute in Ayodhya has left many concerns and questions for the people of our country. First of all, as was appealed by almost every political party including BJP, this verdict by a five-judge bench of Supreme Court of India should not be taken as a victory for any group over another. This sounds good but the truth is entirely different. Many senior BJP leaders who are in government and also leaders of RSS-affiliated organisations have made statements which resonate like trumpet of victory. On the other hand, the people who are committed to secularism and justice have started expressing their agony and anxiety over the possible implications of this judgment. Renowned historians, academicians and judicial luminaries have commented openly and pointed out how the ‘faith’ has been kept over evidences and historical facts.

The apex court has agreed that placing of idols in the Masjid in 1949 and the demolition of the Babri Masjid in 1992 were violation of rule of law. The verdict could have addressed the gravity of the crime, that it was not merely demolishing one 450-year-old structure, rather it was an act of creating hatred among different communities of our country’s people. One could recall the profound words of K R Narayanan that demolition of Babri Masjid as the greatest tragedy India faced after the assassination of Mahatma Gandhi.

It is to be noted that the judgment failed to deliver justice in this matter. The judgment has left many lacunae of ethics, equality, justice and constitutionalism within its reasoning.

Law, National, Opinion, Politics, Religion, Society

By D Raja

November 13, 2019

Ranjan Gogoi is not retiring in glory

Chief Justice of India, Ranjan Gogoi, retires on November 17. Lawyers often joke that an incumbent Chief Justice of India always makes the last one look better, and nowhere has it been more true than the present one. In the run up to the retirement of Chief Justice Dipak Mishra in the last week of September 2018, there was much anticipation of the onset of ‘new era’ under the stewardship of the Chief Justice Ranjan Gogoi, who was believed to be upright and no nonsense person, and who participated in that landmark press conference by the four senior-most judges on January 12, 2018. Alas, the last one year has been such a shock to the ‘collective conscience’ of the lawyers, jurists, and common public that people are now talking fondly of Justice Dipak Mishra, and how he was not ‘so bad’. It’s like our current Prime Minister, Narendra Modi, making the Hindutva ideologue, L K Advani look better.

On a serious note, let us look at the legacy of the CJI Gogoi, and figure out how people would remember him, and his cases. Within days of assuming the office of CJI, Gogoi stopped the practice of ‘mentioning’ of cases by lawyers, unless it’s a matter of ‘life and death’. Anyone familiar with the Supreme Court would know the longstanding practice of lawyers always wanting to get their matters listed, usually urgent matters, by mentioning them before the CJI. Some hailed the move as an act by a ‘tough’ taskmaster wanting to bring order in an otherwise extremely chaotic legal system, while others thought it was a harsh move, and didn’t bode well for the institution.

However, it didn’t indicate the storm that was to engulf the whole judicial institution itself. In October 2018, the Government effectively sacked the then CBI Director, Alok Verma, by transferring him overnight, on the ostensible ground that CVC was conducting an enquiry against him, while the real reason seemed to be that Verma was investigating his deputy, Rakesh Asthana, against whom CBI had registered a FIR for the offence of bribery few days ago. Verma knocked the doors of the Supreme Court, and after much dilly-dallying, SC reinstated him as the CBI Director, only days before his tenure was to expire in January 2019, and that too being subject to the decision of the Committee set up by CVC to investigate the allegations against him.

Law, National, Opinion, Politics

By Amritananda Chakravorty

November 12, 2019

India Justice Report 2019: Uttar Pradesh worst in delivery of justice

Uttar Pradesh has fared the worst in delivering justice to its people followed by Bihar, Jharkhand and Uttarakhand, according to the Tata Trust’s India Justice Report 2019 which has examined the standards for delivering justice that were promised and provided by the states and union territories.

Maharashtra topped the list of the large states in delivering justice, followed by Kerala, Tamil Nadu, Punjab and Haryana. Among the small states, Goa topped the list followed by Sikkim and Himachal Pradesh. Arunachal Pradesh, Meghalaya and Mizoram ranked low among smaller states (where the population is less than one crore each).

The report–the first of its kind–has highlighted serious lacunae in India’s criminal justice system and ranked states and union territories based on their capacity to deliver justice across the four key pillars–police, prisons, judiciary and legal aid–after examining government data on budgets, infrastructure, human resources, workloads, diversity and five-year trends of police, prisons, judiciary and legal aid in each state.

Law, Life, National, People, Politics

By Nishant Sirohi

November 12, 2019

Time ripe to amend Senior Citizen Act, 2007

With modernization, the Indian society has seen tremendous changes – both good and detrimental. The elderly who have been always been an important component of Indian society and were protected and cared for within the traditional family setup is perhaps the worst affected by the changes. Demographic statistics reveal that India is ageing at a rapid rate: people in the age group of 60 years and above will increase by 326 per cent and those in the age group of 80+ by 700 per cent.

National development, of which the elderly are undeniably an integral part, requires governmental planning, which in turn requires legislative enactments for their validation and implementation. It is time for the government to draw up a robust policy that consciously protects senior citizens from the vulnerabilities of old age and cushions them from the whiplash effect of changing family structures.

Article 41 of the Constitution of India provides that the state “shall, within the limits of its economic capacity and development, make effective provision for securing the right to public assistance in cases of old age”. The Hindu Adoption and Maintenance Act, 1956 also requires Hindu sons and daughters to maintain their elderly parents when parents are unable to maintain themselves. In light of the constitutional mandate, Parliament came up with The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007. It was introduced in the Lok Sabha on March 20, 2007, and finally received the Presidential assent on December 29, 2007.

Law, Life, Opinion, People

By Animesh Upadhyay

October 31, 2019

The chipping away at J&K’s autonomy by successive Govts. & SC’s abdication of duty

Jammu and Kashmir ceased to be a State of the Indian Union today (October 31), and will henceforth be two Union Territories–J & K and Ladakh. It follows the rescinding of Jammu and Kashmir’s semi-autonomous status, enshrined in Article 370 of the Constitution of India. The governors for the two new Union Territories are G C Murmu for J & K and R K Mathur for Ladakh.

A few rather extraordinary things happened on August 5, which in the ordinary course of things would have demanded an immediate response from the courts. An entire state was placed under a ‘communications lockdown’—which meant that neither regular phone lines nor the internet was working and physical movement severely curtailed, in violation of a series of expressly guaranteed fundamental rights. Top leaders, including three former Chief Ministers were detained, bizarrely with the Union Home Minister denying it.

While the Supreme Court’s muted response to habeas corpus petitions has been widely noted, it is also important to acknowledge how the spirit of autonomy enshrined in Article 370 has practically been done away with over the years by various Central Governments, and how the courts failed to stand up on each of those occasions leading to the unfortunate situation today.

Law, National, Politics

By Mythili Vijay Kumar

October 30, 2019

Anjali Bhardwaj: RTI Amendment an Expression of Modi Government’s Lack of Political Will to be Transparent

On 24th October, the Government of India notified the Right to Information (Term of office, Salaries, Allowances and Other Terms and Conditions of Service of the Chief Information Commissioner, Information Commissioners in the Central Information Commission, State Chief Information Commissioners, and the State Information Commissioners in the State Information Commission) Rules, 2019, pursuant to the 2019 Amendment to the Right to Information Act, 2005 (discussed here).

In an interview with The Kochi Post, Anjali Bhardwaj, RTI Activist and Co- Convenor of the National Campaign for People’s Right to Information (NCPRI), and one of the founders of Satark Nagrik Sangathan, addressed the major concerns with the newly notified Rules and the present and future of the RTI regime in the country, among other things.

What are your major concerns with the new Rules?

Corruption, Features, Interview, Law, RTI

By Gitanjali Balakrishnan

October 8, 2019

UAPA: National Security and Fundamental Rights Not Mutually Exclusive

The discourse on terrorism often devolves into positing that individuals’ rights can reasonably and necessarily be sacrificed at the altar of national security. Such an assertion is dangerous, and proceeds from a reactionary understanding of terrorism, and leaves one wondering for whom the State intends to secure peace through the erosion of freedoms.

The Unlawful Activities Prevention Act, 1967, was preceded by the Prevention of Terrorism Act, 2002, (POTA), and before that by the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). Both Acts were decried for being draconian, and for the widespread misuse of their provisions. However, unlike the UAPA, both legislations also had provisions that allowed for review of their functioning (‘sunset clauses’). TADA lapsed in 1995. The fate of POTA, which was enacted in 2002 in the aftermath of the Parliamentary attacks in 2001, was not too different: POTA was repealed in 2004.

The UAPA was enacted in 1967 as a measure to curb secession movements, but its origins can be traced to the Criminal Amendment Act, 1908, passed by Lord Minto to keep the colonial administration from appearing weak in the face of anarchical crimes. The titular “unlawful activity” has primarily been defined on those lines, but expanded further to include acts, words, or anything which ‘disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India’ or ‘which causes or is intended to cause disaffection against India’.

Law, National Seurity, Opinion, Politics

By Gitanjali Balakrishnan

October 5, 2019

Norms on Judicial Recusal Must Be Enforced

On October 3, 2019, the newly elevated Justice Ravindra Bhat became the fifth judge in the Supreme Court to recuse himself from hearing the appeal by Gautam Navlakha, a human rights activist, who has been implicated in the Bhima Koregaon case. Before Justice Bhat, Chief Justice of India, Ranjan Gogoi, and three other judges—Justice N V Ramanna, Justice B R Gavai and Justice R Subhash Reddy—had recused from the case, without citing any reasons. It’s an irony that the Supreme Court is functioning to its fullest capacity after long with 34 judges, but no judge wants to hear a matter of grave threat to the personal liberty of a citizen. This brings us to the question of the law on judicial recusal, as part of judicial independence and impartiality.

According to Black’s Law Dictionary, recusal means “removal of oneself as a judge or policy maker in a particular matter, especially because of a conflict of interest.” At the heart of judicial recusal lies one of the fundamental tenets of the administration of justice, as expressed in the Latin maxim, nemo debet esse judex in propria causa (no one can be a judge in her own cause). Connected to this is the other tenet: justice should not only be done, but also seen to be done.

The law on judicial recusal had developed in common law jurisdictions quite early, but recusal was limited only if the concerned judge had a pecuniary interest in the matter at that time, and the doctrine of judicial bias was introduced later as one of the grounds. However, in the United States, the issue of judicial recusal became part of a statutory regime as early as in 1792, wherein a judge could be disqualified when she had a pecuniary interest in a proceeding, had acted in the proceeding, or had been a counsel for the concerned party. This law was later amended to include relationship with a party as one of the grounds.

Law, Opinion, Society

By Amritananda Chakravorty

September 27, 2019

Independence of Judiciary on its Last Legs

Over the last few years, the issue of independence of judiciary in India has constantly been in the public domain and for good reasons, particularly after the landmark press conference of the four senior most judges on 12^th January, 2018, who decried executive interference in the judiciary. Ironically, one among the four judges at the press conference, Ranjan Gogoi, is the current Chief Justice of India (CJI), under whose watch, the edifice of the independent and impartial judiciary is crumbling fast. Before we come to the recent developments, let us first understand what independence of the judiciary essentially means.

At a basic level, the concept of judicial independence entails that a judge should be free from any pressure from the legislature/executive or any other person/body in deciding a particular case. At a macro level, it means separation of powers—that the legislature, executive and judiciary are independent of each other, and act as checks and balances of each other. Independence of judiciary is critical in a country like India, since the High Courts and the Supreme Court have the power of judicial review—the Courts can strike down legislations passed by the Parliament and State Legislatures on the grounds of violation of fundamental rights or the basic structure of the Constitution.

The independence of judiciary does not mean that the judicial powers are absolute or can be exercised arbitrarily; they are totally subject to the Constitution. In fact, the independence of judiciary is nothing but judicial integrity and accountability. Therefore, higher judiciaries like the Supreme Court and the High Courts are called ‘institutions of integrity’—their public legitimacy rests on their integrity. An integral part of building public legitimacy is to have a fair and impartial system of judicial appointments, which is under attack in the last few years.

Law, National, Opinion, Politics

By Amritananda Chakravorty

September 16, 2019

The Pros and Cons of the NMC Act

Healthcare dispensation in India has not exactly been in the best of health of late. It has been at the receiving end of numerous symptoms viz: corporatisation and its fallout, reluctance among doctors to serve in the hinterlands, privatization of medical education and, corruption within the ‘watchtower’ of practice of medicine in India—the Medical Council of India (MCI). It is imperative that this vital, yet ailing sector be nursed back to health and vitality.

The BJP-led NDA government brought in the National Medical Commission (NMC) Bill, which was passed by the Rajya Sabha and Lok Sabha on August 1 and July 29, 2019 respectively to become an Act. The Act, which will repeal the Indian Medical Council Act 1956, was not received well by India’s medical fraternity. Doctors owing allegiance to, and exhorted by the Indian Medial Association (IMA), struck work across India.

An earlier version of the Bill was introduced during the previous Lok Sabha and later referred to the Parliamentary Standing Committee on Health and Family Welfare. It lapsed with the dissolution of that Lok Sabha. Is the bill disastrous, as the doctors led by the IMA make it out to be?

Health, Law, National

By George Jacob

September 13, 2019

The Opacity of Judicial Appointments

Late last evening, in response to the questions raised regarding Justice V K Tahilramani’s resignation purportedly over her seniority being overlooked, the Supreme Court issued this rather cryptic statement:

“… it is stated that each of the recommendations for transfer was made for cogent reasons after complying with the required procedure in the interest of better administration of justice. Though it would not be in the interest of the institution to disclose the reasons for transfer, if found necessary, the Collegium will have no hesitation in disclosing the same.”

This interesting sleight of hand whereby the Collegium reiterates that it ‘does’ have cogent reasons for the transfers but ‘won’t disclose them’ is reflective of an understanding the judiciary has long held regarding accountability of its own actions—as long as the appointment process is formally free of the executive, the Collegium needn’t be accountable to anyone else for its actions.

Law, National, Opinion

By Mythili Vijay Kumar