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Three New Judges Recommended for HP High Court

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New Judges appointed in HP High Court

Shimla-Collegium comprising of Ranjana Gogoi, Chief Justice and S.A. Bobde and N.V. Ramana JJ. has recommended the names of three advocates- Satyen Vaidya, Anoop Chitkara, Jyotsna Rewal Dua- to be appointed as Judges of the Himachal Pradesh High Court.

The above recommendations were made by the Chief Justice of the Himachal Pradesh High Court on January 11, 2019, in consultation with his two senior-most colleagues. The recommendation has the concurrence of the Chief Minister and the Governor of Himachal Pradesh.

All three nominees were found suitable by the Supreme Court Collegium for elevation to the High Court after consulting colleagues familiar with the High Court affairs, considering inputs of the Department of Justice and personal interaction.

The above names will be confirmed as Judges only when the President in the exercise of the powers conferred by clause (1) of Article 217 of the Constitution of India notifies the recommendation of the Collegium.

The Process of Appointment of Judges of High Court in Brief

When a permanent vacancy is expected to arise in any year in the office of a Judge, the Chief Justice will as early as possible but at least 6 months before the date of occurrence of the vacancy, communicate to the Chief Minister of the State his views as to the persons to be selected for appointment.

The Chief Justice must consult two of his seniormost colleagues on the Bench regarding the suitability of the names proposed. All consultation must be in writing and these opinions must be sent to the Chief Minister along with the recommendations.

If the Chief Minister desires to recommend the name of any person he should forward the same to the Chief Justice for his consideration. Since the Governor is bound by the advice of the Chief Minister heading the Council of Ministers, a copy of the Chief Justice’s proposal, with the full set of papers, should simultaneously be sent to the Governor to avoid delay.

Then the above-mentioned proposal travels to the Supreme Court. The Chief Justice of India would, in consultation with the two seniormost Judges of the Supreme Court, form his opinion in regard to a person to be recommended for appointment to the High Court. The Chief Justice of India and the collegium of two Judges of the Supreme Court would take into account the views of the Chief Justice of the High Court and of those Judges of the High Court who have been consulted by the Chief Justice as well as views of those Judges in the Supreme Court who are conversant with the affairs of that High Court. It is of no consequence whether that High Court is their parent High Court or they have functioned in that High Court on transfer.

After their consultations, the Chief Justice of India will in course of 4 weeks send his recommendation to the Union Minister of Law, Justice and Company Affairs. Consultation by the Chief Justice of India with his colleagues should be in writing and all such exchange of correspondence with his colleagues would be sent by the Chief Justice of India to the Union Minister.

Once the names have been considered and recommended by the Chief Justice of India, they should not be referred back to the State Constitutional authorities even if a change takes place in the incumbency of any post. However, where it is considered expedient to refer back the names, the opinion of Chief Justice of India should be obtained.

The Union Minister would then put up as early as possible, preferably, within 3 weeks, the recommendation of the Chief Justice of India to the Prime Minister who will advise the President in the matter of appointment.

 As soon as the appointment is approved by the President, the Secretary to the Government of India in the Department of Justice will inform the Chief Justice of the High Court, who will obtain from the person selected (i) a certificate of physical fitness  and (ii) a certificate of date of birth

As soon as the warrant of appointment is signed by the President, the Secretary to the Government of India in the Department of Justice will inform the Chief Justice and a copy of such communication will be sent to the Chief Minister. He will also announce the appointment and issue necessary notification in the Gazette of India.

Deven Khanna is a Lawyer practising at High Court of Himachal Pradesh, other H.P Courts/Tribunals and the Supreme Court of India, he is an alumnus of a National Law School.

Environment

Forest Fires – NGT Issues Guidelines for Effective Implementation of Action Plan for Control

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NGT Guidelines for controlling Forest-fires-in-himachal-pradesh

Shimla-Himachal Pradesh is the storehouse of biodiversity and animal life, which exists in perpetual threat of forest fires. Out of total 45,000 species of plants found in the country, 3,295 species (7.32 percent) are present in the state. More than 95 percent of flora species are natural to the state and characteristic of Western Himalayan flora, while about five percent (150 species) are exotic introduced over the last 150 years.

Forest department records show 22 percent, or 8,267 sq km of the total forest area, particularly in the mid and low hills, is fire-prone. Majority of the fires are reported from pine forests since, during summer, the trees shed pine needles that are highly inflammable for their rich content of turpentine oil. The pine forests are found up to an altitude of 5,500 feet.

Official figures show that 2018 was the worst year with 2,469 fire incidents reported — the highest in eight years — that consumed 25,300 hectares of forest across the state. In 2012-13, the second-worst year, pine forest fires consumed 20,773 hectares with a total of 1,798 cases.

There are 196 forest ranges in the state, of which 80 are most sensitive and fire-prone.

Recently A Coram of Adarsh Kumar Goel (Chairperson), J. and S.P. Wangdi (Judicial Member), K. Ramakrishnan (Judicial Member), JJ. and Dr. Nagin Nanda (Expert Member) in Rajiv Dutta v. Union of India laid down guidelines for effective implementation of the action plan for controlling forest fires.

Tribunal in one of its interim Orders had sought a report on:

  • Fire alerts
  •  Mapping of forest areas which are critical and vulnerable
  •  Steps for fire line cutting as preventive measures for forest fires

Further, in the same order, a direction was made to prepare “A National Policy” periodically, and keep it updated under Section 5 of the Environment (Protection) Act, 1986.

Section 5 of the Act envisages Forest Fire Management Plans, Crisis Management Policy, plans for relief, rehabilitation and restoration, financial resources, manpower, transport, fire-fighting equipment, community involvement, including 2 involvement of Panchayati Raj Institutions, Van Panchayats, satellite-based forest fire alert system in collaboration with the National Remote Sensing Agency (NRSA) and the Forest Survey of India (FSI), use of media for information, dissemination and awareness, having a nodal officer to oversee fire prevention and control at Head Quarters to coordinate with different Government agencies, dissemination of best practices and experiences, network of automated surveillance or watch towers/observation posts at strategic locations, mock drill exercises, capacity building at various levels.

The Hon’ble Tribunal, on the basis of the said report submitted by MoEF, gave the following guidelines:

  1. Though a comprehensive action plan had been duly adopted, its implementation required a robust institutional mechanism in view of the increase in the incidents of forest fires.
  2. Institutional mechanism for preventing and controlling forest fires may comprise of representatives of the MoEF&CC, Central Pollution Control Board (CPCB), Wildlife Institute of India, National Disaster Management Authority, Indian Council of Forestry Research and Education (ICFRE), Forest Survey of India (FSI) and the National Remote Sensing Centre representing the Central Government on one hand; and the Principal Chief Conservator of Forests of all the States/Union Territories on the other hand.
  3. The Central Monitoring Committee will be headed by the Secretary of MoEF with seven members mentioned in point no. (ii) above. The Secretary would be free to add any member or expert, apart from special invitees, if any.
  4. Central Monitoring Committee must meet once in three months and address all the issues arising out of forest fires, including the effective implementation of NAPFF.
  5. The Tribunal also noted that from the NAPFF, a national level database must be developed for burnt area assessment on a yearly basis.
  6. Standardized protocols and procedures must be developed by ICFRE and FSI to facilitate the reporting of the area affected and losses due to the forest fire.
  7. ICFRE was also directed to assist in designing and organizing adequate training programs for forest officials at various levels.
  8. The Secretary, MoEF&amp may issue directions for the constitution of an appropriate institutional mechanism at State levels also.

 

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HP CM Jairam Makes Scandalous Comments on Judiciary, Says It’s Taking Decision Without Considering Merit

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HP Cm Jairam Controversial statement on Judiciary

Shimla-The courts are the guarantors of justice, whose role is fundamental in a State based on the rule of law, and it is imperative that they must enjoy public confidence. They must accordingly be protected from the destructive attacks that are unfounded.

In this day and age of robust media, the courts and judges are used to being criticized and take it on the chin. According to the settled law, one can freely criticize the judgments of the court. What is not permissible is to make statements that are  “an attempt to influence the court” and  “purported to scandalize the court”. 

The parliamentarians, especially, have a duty as elected representatives, to respect the independence of the courts and to ensure that any comments made are well-informed. As what is at stake is the “right to a fair trial” of a litigant and public confidence in the “administration of justice”.

Scandalizing the court’ is a convenient way of describing a statement which, although it does not relate to any specific judge, is a scurrilous attack on the judiciary as a whole, which is made to undermine the authority of the courts.

One such scurrilous attack undermining the Majesty of the Hon’ble Court came from none other than the Hon’ble Chief Minister of Himachal Pradesh Jairam Thakur on the State Administrative Tribunal (SAT).  As reported in Tribune News Service, dated May 14, the CM said:

“Though it would not be appropriate for me to comment on the functioning of the SAT, it has been witnessed that decisions are made without considering the merit of the case. There is very strong opposition amongst the ministers, party legislators, other elected representatives and organization leaders about the functioning of the SAT. So after holding deliberations with party MLAs, post elections, we could take a call on its future,

The Chief Minister said it was immaterial in whose term the Chairman or the Members of the SAT are appointed but the decisions must be fair and impartial. He did not mince words in stating that employees were getting stays on transfers without any merit. reported the newspaper.

The attributed statements appear to bring the court into disrepute, it asserts that the judges of the Tribunal are deciding cases without applying the law.

The statement refers to “Transfer Matters” and how they are not being decided to the liking of the Government. The statement implies that Government employee’s ‘transfer disputes’, which he raises against the Government, in the Tribunal, are not being decided in a way the Govt./ministers/organizational heads prefer. This is also given as a sole reason to shut down the tribunal in the future.

The attributed statements, on their face,  appear to influence the court in its decisions in ‘transfer matters’ and to interfere with the due administration of justice in the State. Comments conflate “correctness of decisions” with the satisfaction of political parties/ ministers/organizational heads. Further, the comments also are indirectly implying that the Tribunal is not “fair and impartial” in these matters.

The statement imputes unfairness when it says that “cases being decided without there being any merit’. This amounts to lowering the authority of the court and it certainly interferes with the performance of judicial duties. The minister has failed to respect the “doctrine of separation of powers” and breached the principle of “independence of the judiciary”.

Scandalising the Court Amounts to Contempt

The Chief Minister is not the first Chief Minister to make such scandalous remarks against the Courts. The famous case regarding a court being “scandalized” is that of E.M.S Namboodiripad v. T.N. Nambiar (1970). Namboodiripad, the then Chief Minister of Kerala had made a comment on how Marx & Engels considered the judiciary as an instrument of oppression and also that judges were guided and dominated by class hatred, class interests, and class prejudices. Found guilty of contempt by the Kerala High Court, the Chief Minister appealed to the Supreme Court, where a bench led by the Chief Justice of India, Hidayatullah, upheld the conviction and imposed fine. The judgment states,

“Judged from the angle of courts and administration of justice, there is not a semblance of doubt in our minds that the appellant was guilty on contempt of court. Whether he misunderstood the teachings to Marx and Engels or deliberately distorted them is not to much purpose. The likely effect of his words must be seen and they have clearly the effect of lowering the prestige of judges and courts in the eyes of the people. That he did not intend any such result may be a matter for consideration in the sentence to be imposed on him but cannot serve as a justification. We uphold the conviction.”

When the judiciary as such or a Judge, in particular, is attacked in this manner and the attack contains various kinds of imputations, such contempt is treated as scandalizing the court. The Oxford English Dictionary defines the word “scandalize” as “offend the moral sensibilities of; horrify or shock by a (real or imagined) violation of morality or propriety.”

To allow an insult and belittlement of an “institution of justice” is to expose the administration of justice to the grave danger of inhibiting the appreciation of the people of our courts, and the necessity of people confidently having recourse to our courts, for the settlement of their disputes. The faith in the judiciary is of prime importance.

It would be apt at this juncture to remember the wise words of Lord Denning the “best-known and best-loved judge of this, or perhaps any, generation” who said:

“It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not.

All we would ask is that … those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.”

No doubt the courts, while upholding the laws and enforcing them, do give support to one side but they do not do so out of any impure motives. They do not range themselves on-the-side of the Government when the law does not warrant so. To charge the judiciary as unfair and impartial, to say that the judges are not guided by law and cases are not being decided on merit, instinctively favouring the Government Employees, is to draw a very distorted and poor picture of the judiciary.

Whatever your political views, support your local judges and the institutions of justice. Its the only thing between you and the oppression by the powerful.

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Beyond Feudalism, A Step Towards Equality: HP High Court Gets 3rd Female Judge

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“There are too few women in the higher levels of Indian Judiciary and only three women judges in the apex court here is just “token representation”….

“There is a bias against women in India in terms of judicial leadership, although people don’t seem to realise their bias.”

-Justice Sabrina Mckenna – Hon’ble Supreme Court of Hawaii

India is a country where for a woman to rise to the top echelons of the societal pyramid is more often than not the exception and not the norm. When we are in colleges and universities we are taught about the principles of equality between the two sexes, but when we join the society, we come across the ground realities of Indian Society which dismiss the idea of gender parity as a mere utopian idea.

It is for the third time in history that a woman has been elevated as a Judge in Hon’ble High Court of Himachal Pradesh. Mrs. Jyotsna Rewal Dua, who has had an illustrious legal career, has been recommended by a resolution of a collegium of the Hon’ble Supreme Court for the aforementioned elevation. If appointed, she will be the sole woman judge of the Himachal Pradesh High Court.

The Late Mrs. Leila Seth, the first woman to serve as the Chief Justice of a High Court in India, which incidentally happened to be the Hon’ble High Court of Himachal Pradesh, in an interview, recounted her experience as a Chief Justice in the following terms:

“In most cases, male lawyers/judges, especially in upper Himachal, had a feudal mentality. They were not used to a woman sitting on their head. But as I was a mother of two boys, I knew how to handle men sensitively. I would gently ask their opinions first before ‘imposing’ mine on them. In Delhi, my male colleagues would introduce me as “meet our first lady judge”. I would take objections saying, ‘do you ever introduce your male colleague as ‘male judge’, so please avoid prefixing lady before me, a judge is a judge…. It didn’t often go down well with many.”

The Late Hon’ble Chief Justice’s experiences showcase the difficulties they the faces not only in the legal profession, which is perhaps just a microcosm reflecting the wider picture but also in Indian society. In this context, it is all the more impressive for Mrs. Dua to be recommended for elevation. As juniors, we would look on in rapt attention in the courtroom as Mrs. Dua made her submissions in a concise and precise manner without ever impinging on the court’s valuable time. Perhaps it was the ‘to the point’ nature of her submissions or perhaps her reserved nature, an extremely attractive quality in a judge, which struck a chord with the Collegium. Still, it is heartening to note that in the legal profession, which seems to be a bastion for men, a lady can rise to heights which an entire society is designed to keep her from.

In total, eight women have served as Judges of the Hon’ble Supreme Court in independent India. This number shows the extent to which women are suppressed. However, not to be entirely pessimistic, the Indian Judiciary and the legal profession as a whole seem to be at the very least trying to keep up with the times. At present, there are three sitting women judges at the Hon’ble Apex Court which is at the very least, an improvement.

Furthermore, in April, 2017, with the elevation of the Hon’ble Mrs. Indira Banerjee as the Chief Justice of Madras High Court, it was a momentous occasion for the Indian Judiciary when women headed the four Historical High Courts of Delhi, Bombay, Calcutta and Madras, these High Courts being first few set up in colonial India. These facts show that while the Indian legal profession still remains tilted in the favor of men it is moving in the direction of the utopian equality which was mentioned earlier.

As far as the recommendation to elevate Mrs. Dua is concerned, it could not have come at a more opportune time. The perspective of a woman is needed to garner a more humane approach while dealing with cases of rape, divorce, dowry and other matters where a male judge may not be fully equipped to understand the emotional difficulties women go through during these trials and tribulations. While the resolution to recommend Mrs. Dua for elevation is a welcome step, this author hopes for more women occupying our Constitutional and other critical positions in society and of course, the government.

Post by Author Ishan Kashyap (Advocate, HP High Court)

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