Editorial
The Year Best Forgotten
2008 has been described as the year best forgotten. Can we say that of the judiciary as well? Yes, I think we can. The single most devastating event was the Public Provident Fund scam of Ghaziabad. Funds worth 70 million rupees were withdrawn from the Provident fund belonging to Class III and IV staff of the District Court, Ghaziabad, and it was found that 39 'outsiders' were shown as IVth grade employees.
From the press reports it appears that it is alleged that Judges, from a sitting judge of the Supreme Court to judges in the High Court and the District Courts, have to have dipped their fingers into the hard earned money belonging to workers. Surely, this must be a scam of " Satyam" proportions. Non existent employees withdrawing amounts meant for employees for miscellaneous purposes -pocket money to buy a cell phone; taxi fares and we do not know what else! When the matter first came to light, the Supreme Court wanted to deal with it confidentially and on the administrative side. It was the protest of people like Shanti Bushan, which ensured that the matter is now being heard in open court, even if it meant that Shanti Bushan was unpopular with some. But then, perhaps he took the risk knowing that truth is a defence. Who knows what made him say what he said? The matter ended with the Mayawati government being applauded for agreeing to a CBI enquiry. That is where the matter rests, in the crumbling hands of the CBI, which seems to have emerged as the preferred investigator of people in high places. Ever wondered why?
What amazed me is why no demand was ever made to bring the money back to the provident fund and to make it available to those for whom it was meant. Is the state not bound to reimburse the fund for avoidable losses? Are we to wait till such time as the CDI decides who the guilty are?
This one single incident would be enough to qualify this as the year best forgotten. But there is more to come.
The controversy over filling up three vacancies in the Supreme Court has apparently died down but not without tarnishing the image of the highest court with the allegation that it is arbitrary in its own decision making process. Three senior judges, know to be outstanding for their contribution to the judiciary were superseded by the juniors. Why? No answers given. How unaccountable can you get? The problem with this kind of non-accountability is that it leads to the growth of unofficial channels of communication. As in this case, the corridors of the court (my favorite place) were full of rumors that a certain judge of the collegium was against the appointment of the senior-most judge. Once again since we have no official channel of communication and the collegium is like the Sphinx. We go back to the corridor where we learn that certain judgments were cited to conclude that there was more to it than just a judgment on its own merits. If that is indeed a criteria for judging judges, many would be ready with a long list of judgments which we would find questionable.
In fact once again, corridor gossip has it that all was not well with the Bombay Mill Lands case. Like the good lawyers that we are trained to be, we ignored the gossip and carried on with life. In a situation in which a judge’s legal reasoning or lack of it is not a criteria for judging him, how can one fault judgments on any other grounds, unless we have legally admissible proof of misconduct? But that is what it is. The judge in question came out a winner and dealt with his situation with great dignity. Another judge due for appointment known for his human rights record was simply not appointed as unwanted. Where is the justice?
And yet, all efforts to enact a law to make judicial appointments inclusive have failed. All efforts to have a National Commission for the judiciary have been resisted by the Supreme Court itself. There is no adequate mechanism for entertaining complaints against a judge, except a so-called ‘in house procedure’. Why do politicians fight shy of alienating the judiciary on this question? Could it be perhaps that they stand before the judiciary so often, Lalu Prasad, Mayawati, Amar Singh, Mulayam Singh etc etc? Think about it. And why is there no woman in the list of proposed appointees, asked our feminist law minister. There was no answer. Krishan Iyer once asked me unsuspectingly why I was not appointed a judge. He said it was a mystery to him, little realizing that there were good reasons. He only has to read my Adalat Antics over the years to know the reason. But there are others, respectable, respectful others who could be there, but are not. Sometimes I wonder how, on the one hand our policy makers including judges say that only women should hear rape cases and on the other we do not have women judges in the Supreme Court. Do rape appeals not come to the Supreme Court? Or does the limits of their intelligence end at the doors of Sessions courts? Until they are eligible, we will live with an all male court, a situation intolerable in any civilized society.
Another judge made news when his appointment as President of the Consumer Court was challenged on the ground that he was not confirmed as a High Court Judge and was therefore not eligible for the appointment. The issue was grave, the issue of credibility and integrity. If a man is unfit for confirmation to the High Court, how does he qualify as a former additional judge to be appointed as president of the Consumer Court? Integrity surely is a primary requirement of any judicial appointment. And who would have thought that the post of Judge of the Consumer Court was so desirable. The man was an appointee of the Chief Minister having defended him in cases against him. In recent times the trend of seeking post retrial benefits and post additional judge benefits are enormous. He was appointed as an additional judge, not confirmed as a High Court judge, appointed Advocate General and then appointed as a former Judge of the High Court as the president of the Consumer Court. Every day we see newer and newer ways of rehabilitating political friends post the post. The Madras High Court held him ineligible and the matter is now in the Supreme Court.
Communal violence took its toll in Orrissa and so did terrorism in Mumbai, with different consequences. While the first did not lead to the passing of the Communal Violence Bill, the latter led to an amendment of the Unlawful Activities Act to reverse the burden of proof when found in possession of explosives. It also extended the period of police remand to 180 days with the permission of the court. These changes do seriously undermine protection of the accused under criminal law and are capable of abuse in a climate of religious profiling. (http://www.prsindia.org/docs/bills/1229428309/1229428309 The Unlawful Activities Prevention Amendment Bill 2008.pdf)
On the other than no serious attempt was made to enact a law to deal with violence against minority communities. While the wars on terror demand national attention, so does violence against Christians and Muslims, yet the political response is missing.
The Criminal Procedure Code has been amended to make those offences which are punishable with 7 years imprisonment beyond arrest. There seems no method in this pattern of liberalizing the law of arrest except perhaps to reduce pressure on jails. On the other hand human rights defenders like Dr Sen languish in jail as dangerous terrorists, for no reason other than they oppose the setting up of Salva Judum, a non state formation armed by the state to deal with naxal terrorism. The law becomes a tool of victimization to keep people from democratic protest.
Women had some good news. The Supreme Court held (Komalam Amma v. Kumara Pillai Raghavan Pillai and Ors. AIR 2008 SC 1549) that a divorced woman is entitled to be maintained and given a residence similar to that to which she is accustomed. How does this judgment square with Batra v Batra (2007 (3) SCC 169) where it had been held that there in no law in our country which provided for the right to reside in the matrimonial home? What logic? The Supreme Court does indeed speak in different tongues. We are never the less grateful for the post divorce benefits conferred by this judgment correcting an injustice which had existed over years.
Reproductive rights of women made news. A woman pregnant 28 months approached the Bombay High Court for an abortion on the ground that it had come to her knowledge that she was carrying an abnormal child, The High Court held that this was not in fact established and that it was up to the legislature to change the Medical Termination Of Pregnancy Act which limited abortions to a period of 20 months.. We could expect this issue to continue into 2009 as it remained unresolved by the courts and parliament.
Baby Manji was the baby of the year. Born to a surrogate mother in India of a Japanese father, she became stateless when the news hit the headlines with both countries denying that she was a citizen, The convention on the rights of the child came to her rescue which both countries had signed and which said that every child was entitled to a nationality and to travel. She was the youngest petitioner the Supreme Court has had and my youngest client. Thanks to the intervention of the Supreme Court, she was given a travel document and is now united with her father in Japan. I wonder if one day, she will learn of the legal storm she kicked up in India with allegations of baby sale and hiring a womb thrown around. India is now considering legislation on the subject.
It was a good year for tobacco control, with the ban on smoking in public places coming into force on 2nd October 2008, thanks to health Minister Ramados’s insistence. And despite the resistance of the industry, the law is here to stay. It is no longer fashionable to smoke in public places or in movies.
The unorganized sector found its place in the sun after several years. People like Ila Bhatt of SEWA Ahmedabad have devoted their life to the self-employed and it is thanks to them that we have a law such as this. It is too soon to predict how the schemes will shape up, but we have here an incipient social security scheme for India which is worth looking forward to (http://www.prsindia.org/docs/bills/1229428309/1229428309_The_Unlawful_Ac... ) It is not without its disadvantages, it also has the potential to be a National Vigilance scheme with every marginalised person being numbered with a social security number which can be used against them We need a data protection law with this. However, do major are the benefits of the scheme, that it has to be seen as a revolutionary step forward. Similarily the Naya Panchayat Bill has been passed bringing justice to the doorstep of those living at the village level.
When the history of the UPA government and its legislative record is written, we will see an architecture of employment guarantee, social security for the unorganized, the right to information and a law on domestic violence. Perhaps the missing building blocks will come before the term runs out, a law on non-discrimination for those with HIV/AIDS, a law to deal with communal violence and a law on sexual harassment at the work place. Maybe that is what 2009 holds for us. We will wait and see. Meanwhile Happy New Year to us all.