Administering the Supreme Court Through the Media

As four senior judges of the Supreme Court coming out through a press conference against the Supreme Court of India, the entire legal fraternity as well as the people have been thrown into a frenzy.

Justices Ranjan Gogoi, M.B. Lokur and Kurian Joseph, Justice J Chelameswar, today appeared before the national media today and allegedly broke their silence over the fact that the incumbent Chief Justice of India is one who is not discharging his duties with the due diligence required.

The further call has been that the democracy is being led into danger.

The responses coming in from over the various quarters are falling in every spectrum of morality, while the justices urged the Prime Minister to intervene in the matter urgently.

If there existed some apprehensions of this, or if there were such appalling and urgent circumstances, the justices may have done it confidentially, as has been done on many innumerable occasions.

The direct impact that  the media exposure and the hovering possibilities of a media trial have led to demean the highest Court of the land. The tussle involved, has dented the overall trust that has been reposed in the judiciary by the people.

The direct allegation by the Senior Judges, has been that the CJI, is promoting s preferential allotment of cases, which is detrimental to natural justice.

The allegation, and the call, has such consequences, and the impact of the same may be felt in the days to come, with the Judiciary condemning or boycotting the proceedings emanating from the misinformation propaganda against the CJI.

The office of the CJI is one of the most influential offices in the country, and there has been one incident in the Prasad Medical College case, where Senior Advocate, Prashant Bhushan waived an FIR registered against the CJI in Orissa.

This incident took the CJI by alarm, and then he declared himself to be the last authority after the Registrar General of the Supreme Court, in the administrative side.

The allegations today, may have certain truth lying beneath these as the judges who pursued the trajectory, are known to be honest and responsible judges. The judges might have also tried to follow an in-house resolution system that possibly failed, while the judges’ who have take this extra measure will have to answer collectively not just to the institution, but also the nation.

It is also to be noted that yesterday the Supreme Collegium cleared the names of Senior Advocate Indu Malhotra and Judges KM Joseph for elevation to the Supreme Court, while it cleared certain names for appointment to the High Court as well.

The Judges have also take note of the fact that they are not giving a political statement , but they are cautioning the nation. The caution also comes at a price of the reputation of the judiciary.

The matter is now in the public, and while the media trials are not allowed, the judges have submitted yet the entire judiciary to the trial by the media. Though the urgency and the veracity of the disclosure are not yet confirmed, but the damage has been done. And a fact finding will have to be commenced at  the earliest to bring the matter to truth.

 

Patriotism on the Sleeve: SC & Govt On National Anthem Row

Saare Jahan Se Accha Hindustan Hamara, one would love to cherish this song whenever and wherever, and the occasions which celebrate the establishment and conduct of swaraj in this land is a living example of the moment when we as Indians rejoice to all the patriotic tunes.

The narrative regarding the deviance of the society from patriotism got a new push in the aftermath of the surgical strikes conducted against Pakistan in the year 2015, and the more aggravated form arose when the note-ban incident happened.

The people were explaining that if one loves their country, then any sacrifice for the motherland is falling for short of pay the gratitude to this land. The Right wing, which currently rules the country not only at the Centre, but in states and civic bodies, is depicted by its rigourous stand on nationalism.

The nationalist sentiment is the one which has gained prominence in India, today, because most of the past has been maligned by various leaders at various times, who did not pay much heed to building a sense of patriotism in the masses.

The Right wing gets is fuel to pour into the debate of nationalism vs contempt for one’s land because the dominant political narrative has been about divisive political agendas gaining ground in caste, religion or gender divides. The famous Mandal and post Mandal politics divided the society and catalysed the ‘caste-wars’ which have not been able to loose the spotlight.

The more gloomy scenario comes from the brain drain that India today faces in every economic aspect of life due to the socialistic pattern of society, which made the masses walk-away from the welfare state.

The successive governments, though have been trying to work towards the betterment of the masses, yet there has always been something that has remained unfulfilled.

It is often said these days that patriotism is only to be seen when India plays a cricket match against Pakistan, or when there is a Facebook debate going on, yet nobody dares to remark that when the people dirty the public places, or fight with the law enforcement, play fraud on the taxman, and when they struggle for their livelihood they are unpatriotic.

The definition of patriotism has been simply defined as love for their country. The Supreme Court, in its order of 30th November, 2016, wherein a bench of the current CJI Dipak Misra and Justice Amitava Roy, directed all the cinema halls to play the national anthem.

The order was questioned by a sitting judge of the Supreme Court, Justice DY Chandrachud, where he simply said that the society goes to a cinema hall for undiluted entertainment which must not be meddled with by preaching a lesson of patriotism, as it isn’t a rule to wear patriotism on their sleeve.

The Government of India yesterday moved an application before the Supreme Court, requesting it to order status quo ante, and let the issue be decided by a joint committee which has been constituted by the government to suggest ways of implementing the order in other ways, or read into its impact.

The move of the Government needs a perspective which the Court try to bring to the fore, it is the dissociation of the masses from the motherland, which needs to be addressed to make people more nation oriented over other matters.

India first-Patriotism on the sleeve.

Special Courts for Cases Against Legislators: SC Aims to Decriminalise Politics?

The Supreme Court has nudged the Central Government on a PIL filed by a Delhi BJP leader, and an Advocate Ashwini Kumar Upadhyaya, seeking directions from the Supreme Court to expedite proceedings in the ‘1581’ cases pending against members of Parliament and the Members of Legislative Assemblies.

The Supreme Court has stirred another hornet’s nest which has been in the lurch since the Election Commission last tried to promote a blanket ban on candidates with criminal background from contesting elections.

The move of the election commission did not go down well with the legislators of all hues from the entire country. Meanwhile, in the SC the Government in its affidavit has cited the report of the 11th Finance Commission which advised setting up of 12 courts in the states where the number of cases range higher than 65. The government has also pegged an expenditure of Rs 65 lakh per court. The commission also stated that such fast track courts would deal with 165 cases annually.

The issue that has been dealt with here, is based on a report compiled by the ADR, (Association for Democratic Reforms). The Government also informed the Court, that there doesn’t exist any mechanism to monitor cases against the legislators and there also no data as how many fresh cases have been registered against legislators after 2014.

The Supreme Court has remained cautious and yet has ordered that the government must set up the courts at the earliest and wrap up all the pending cases within one year. Thus this move does not touch any other aspects of the laws that must be put in place to decriminalize politics.

The immunity provisions that legislators enjoy during their term may not allow the entire process bearing great results. The major political parties may also see themselves in a fix if their sitting legislators are incriminated and found guilty. The Court has also allowed the EC to remain at ease despite its lack of data regarding the litigation pending against the legislators.

The EC needs to be given more powers which has not been talked of in the judgment. Legislators involved in litigation must deserve a clean chit first to be able to contest elections, while any kind of criminal litigation pending must be a blanket ban on their seeking election.

The Supreme Court has set its foot a great path that will eventually led to decriminalizing the politics that is being pursued in India. The Representation of People’s Act must be one that makes the powers with the EC more effective assuring quality legislators being put up by parties.

There must also be a regulation on the profession of a Politician, which remains the least regulated professions, and is the need of the hour to reflect the apt consciousness of the masses.

The Supreme Court has also observed the apt need to fast track the cases on an urgent need as these cases may not be genuine, but may just be a move aimed at marring the reputation of the ‘imandaar neta’.

The direction is appreciated, while the response of the Government and the EC are not in line with the promise of ensuring politics free from anti-social elements.

Dealing With The Abuse of Dowry Laws: An Initiative for the SC

The Supreme Court has culled from various sources and has decided to do away with or implement with some changes a procedure given out by Justice(s) UU Lalit and Ashok Bhushan, whereby they clipped the police of their powers to immediately arrest the accused in a case of 498A- IPC.

In the aforesaid judgement, the Court also laid down the foundations of a fact-finding committee which had three members, and all of them males, to inquire whether the allegations of torture are corrector not.

The Amicus Curiae, Ms Indu Malhotra appointed by the Court has said that there is no need of such a committee which defies the purpose of such a law, as the dowry laws grant immediate relief to the victim in cases of dowry related violence.

Thus there is a wide issue that here demands attention of the Court as well as our law makers. The sudden change that the Dowry Protection laws did bring in the society has led to a reduction in dowry related violence, yet there is the human nature that assumes more significance and changes things for people.

The Dowry laws were put in place at a time when the incidents of death and dowry related violence were on the rise and had caught considerable attention. The menace had been so rampant that even the cinema took to the cause.

Now over the years there is more awareness and the literacy rate among women have considerably gone up, in the wake of such commendable situations, the Dowry laws have also assumed the role of a purely legal weapon to extort money from the husband and his family. There have been incidents where many husbands have been held in detention only to discharged later due to lack of evidence. There are occasions recorded across India where the woman and her family use the legal machinery to their advantage and threaten the family of the husband to meet their demands when the marriage is at the point of no recovery.

The abuse of the law that was meant to protect the rights of the women, has thus assumed the role of a tool for harassment, and while not acknowledging this amicus curiae said that a fact-finding committee does a disservice to the aim of the law.

It must be borne in mind that law may not confer special privileges to one gender while not providing for a mechanism to resist the abuse of the privilege by the members of the same gender against the other.

The Court may not completely do away with the policy being laid down in the judgement. If the CJI, Dipak Misra feels that it is a transgression of the judicial mandate, then they may move a request with a detailed report, as to why the in the opinion of the Judiciary there needs to be a change in the dowry related laws while in motion.

This is a matter that needs attention as the stigma of dissolution of marriage and the stigma of spending sometime in a jail produces unhealthy experiences for citizens. The law must only come to the aid of those aggrieved and must protect the innocent. It is therefore the task of the judiciary to take up hurdles faced by the law in motion, and a mechanism to ascertain the veracity of every complaint pertaining to dowry related cases may be a good move in the same direction.

 

Judicial Activism or Judicial Appropriation: CJI vs FM

 

In an event yesterday at the Supreme Court compound to commemorate the National Law Day, the CJI, Dipak Misra and Finance Minster, Arun Jaitley aided by Minister of State for Finance and Commerce PP Chaudhary exchanged words regarding judicial activism and transgressions by the judiciary.

The Government has recently been fighting good cases spanning key aspects of a citizen’s life, like privacy, freedom to marry, and a few more. The trend of Judiciary coming in conflict with the mandate of the Parliament isn’t new. It has continued for over generations, and has seen many deadlocks and Constitutional trickery, that sought to bypass the Supreme Court’s diktat.

The jibes that the two ministers took in are in a broad context, whereby thy seemed to be cautioning the Court of holding its righteous activism. The activism taken up by the Courts is not always abrupt and active, most of the times, the Courts take a passive route to set the legislative and executive machinery into action. It is not a rare possibility that in a country like India, administrative and legislative efficacy is a 100%, there are loopholes, which are plugged in, and certainly there are times when executive or the legislature transgress upon the fundamental rights of the citizens, at those moments the Courts being the guardians of the Constitution play an active role in undoing the doing.

There is obviously a boundary given the fact that there exists a separation of powers between the organs of the State, thereby creating ample of space for al of them to co-exist for the purpose of aiding each other in administering the country as a whole. The argument that the judiciary tries to ‘usurp’ legislative powers, is not a valid one, because the judiciary interprets the laws, and makes it fit  with the Constitutional mandate. Time and again the Supreme Court and the High Courts have held that they don’t wish to tread into the domain of policy making, yet when they give outlines for a change, they reflect the demands of the society, as law is as dynamic as a living organism.

The befitting reply given by the CJI is appreciated, yet the remarks by a man of the stature of Mr Arun Jaitley is totally uncalled for and when he says, how would the judges feel if someone presides over them to do their job, is obviously one reason why the MOP for appointment of judges to the High Courts and the Supreme Court has been stuck.

The Government, this or any other will always want to the Judiciary on its back to gain absolute control over the affairs of the State, yet the judiciary remains a closed-door system, which does not allow interference from either the executive or the legislative.

The activism by the more learned Judges, and the lawyers of the High Court and Supreme Court is far more qualitative and reliable than the mandate of the Parliamentarians who do not seem to have the perspective of a common man, as they often tend to consume themselves with the ends justifying the means. This is clearly reflected by the goalpost shifting that we saw during the Demonetisation exercise and the delay caused when it was the time for remonetisation.

The judiciary has been guarding the democracy time and again, while absolutely not interfering with the spheres of the other two organs of the state, thus a statement alleging the Judges of wrongdoing in the name of activism, is condemned.

Demolition of a State: SC Verdict on Delhi's Political Status

The Supreme Court of India in its judgement yesterday declared that the Parliament has full authority to make laws regarding any matters concerning the State/ NCT of Delhi. This verdict has the effect of demolishing the powers of the Arvind Kejriwal led Delhi Government, which had approached the SC for adjudication on frequent interference in the matters of administration by the Lieutenant-Governor of Delhi.

This marks a new chapter in the powers concerning the NCT of Delhi. The SC verdict out-rightly disrespected the mandate of the people by giving a perverse interpretation to the provisions of the Constitution whereby the Parliament has been given the blunt powers to overpower the State Legislature.

This judgment has very wide implications when the citizenry comes to face with the issues that have not been resolved so far. The blame will be shifted upon the BJP led central government for the failures of the Delhi Government.

The SC clearly gave riding powers to the Centre in terms of the lists contained in the Constitution whereby the State government are being reduced to mere puppets in the hands of the Central government.

The SC verdict is flawed in as much as it fails to reach out to the intention of the Constitution makers whereby they created a separate legislative machinery to manage the NCT of Delhi.

The NCT of Delhi has one of the most complex habitats in India which is faced with many problems faced by the developing modern world. The Parliament on the other hand has assumed wider roles, which are ever-expanding; in the light of this how does one expect the Centre to be ruling the NCT?

The SC verdict has also not been able to explain to us, that if the State Government has not teeth, then what will it bite on, which means why there is a state government at all!

The SC verdict has also pushed the blame of all failures of the Arvind Kejriwal led AAP government on the Centre, and the L-G, whereby Kejriwal’s calls that the Centre meddles with his functioning also stand affirmed.

The judgement needs to debated in the intellectual circles and the people need to be given with an explanation as to why do they elect representatives if the Central government is the ultimate legislative and executive authority for the NCT of Delhi.

The future of Delhi with this verdict assuming significance will bloom to one of chaos and anarchy only amounting to discomforting the general citizenry. The prospects of the future being brim, the masses will have to demand more administrative and legislative rights from the State to address issues like underdevelopment, crime, and general administration among environmental and congestion issues.

#Demand_Delhi

Speedy Justice is A Fundamental Right Order Recalled by SC!

The proverb, ‘justice delayed is justice denied’ is the essence of natural justice. The cornerstones of the third and the most important organ of the State, the Judiciary is the role it performs in enhancing the administrative efficacy of the State altogether. While the people during their intercourse with the law in motion come across certain anomalies what lies ahead when the Courts begin to delay justice to offenders on the pretext of lack of benches and judges?

The issues that hamper the effective delivery of justice start with the lack of Judges in the lower judiciary. The lower Judiciary also has a peculiar aspect to its powers which makes it the busiest Courts in the nation with a huge amount of cases pending trials, some at over initial stages. The actively contested cases then reach the High Courts. The High Courts on the other hand often act as a strainer which strains out cases lacking the substantial matters of legal adjudication and then the story becomes gloomy.

The overall scenario today, with not just the lower judiciary but as well as the Higher Judiciary stands in a ditch. The last time we had a CJ of India pitching for intervention from the Narendra Modi government was Justice TS Thakur. Justice Thakur even broke down at a public gathering citing his inability to be at the top yet being unable to trigger changes in the judiciary. He observed that against the sanctioned strength of 1079 judges in the High Courts, a full 478 posts remained vacant. This amounted to 44.3% of the posts lying vacant. Since 2015 the SC and the Central government have been engaged in a tug of war which was preceded by the NJAC Bill being sacked by the SC. The Court has also asked the central government to provide a draft memorandum of procedure, which has unfortunately not become a reality yet.

A bench opf Justices UU Lalit ad AK Goel had on October 27 given a veridct whereby specifying that speedy justice a fundamental right. This involved the wider application of the reforms being deployed in the Judiciary. But it seems that CJI Justice Dipak Misra’s ideas do not align themselves with the spirit of providing speedy justice,while he promotes international arbitration.

The case was of one convict who has spent over 11 years in prison and has not been able to get any redress from the High court of Jharkhand. The HC on its turn replied by saying that the convict is not the only one facing tough times but there are others who have faced a good amount of time in jails! The HC also added that due to lack of judges, there is not enough time to ensure speedy disposal of cases and the HC finds it tough to push through one particular case.

This is not just the case with one Court in our country. The author being associated with the Courts, has been a witness to many cases from the Uttar Pradesh, Uttarakhand, Haryana and Maharashtra coming the Supreme Court seeking speedy disposal.

Even the SC is faced with a similar problem of ever increasing cases and a handful of judges! The solutions to this problem are multi-fold and not just one sided.

The e-Courts project has not been implemented fully yet, and the Indian legal databases have not been able to innovate on new technologies to make justice delivery technically assisted so as to reduce the burden of the judges.

There are certain cases where judges work overtime and take up pending disputes and a very notable step happened this summer when under the leadership of Justice Khehar, the SC judges took turns and addressed cases that were pending for long.

The recent judgement of the recall by the SC of the fundamental right to speedy justice is not the correct step, rather the approach has to be wide and holistic i delivering service to the nation.