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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 favour 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.

(The post was first published in https://lawumbrella.wordpress.com/ )

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

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Response of Judiciary to India’s Migrant Crisis During Lockdown

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Mingrant labourers crisis in India and indian judiciary

Shimla-Judiciary has a duty to make the Government accountable for the conditions that migrant workers are facing today. In a series of articles, we will be going through the response of Indian Judiciary to the present Migrant Crisis. In the first of these series, we go through two important directions of the Patna High Court to the Government, which can help in elevating the condition of the Migrant Workers who are the victims of the present lockdown.

Patna High Court this month acknowledged the seriousness of this crisis and passed two important Orders which are marked by empathy for the plight of the present victims.

In one of the order, it has sought a reply from the Bihar government on a petition alleging ‘poor condition of quarantine centres’ in the state where migrant workers have been mandated to stay for three weeks upon their return from other parts of the country. In the other order, it has urged the State Government to reconsider its policy of not engaging with members of civil society in handling the COVID-19 crisis.

Order regarding the poor condition of quarantine centres

(C.W.P No.5656 of 2020)

A Division Bench headed by Hon’ble Chief Justice Sanjay Karol directed the state government to file its reply, noting with concern that Bihar has the “highest population density” in the country and “any mismanagement” at the quarantine centers could lead to a substantial increase in the spread of COVID-19 in the state.

Order Stated:

“From the record, it can be inferred that perhaps in the State of Bihar, more than 2450 quarantine centres stand established by the Disaster Management Department, in anticipation of housing 2.5 lakhs persons, termed as migrants, who are desirous of returning home. Perhaps the figure may be more. Such quarantine centres are to be established and managed as per the guidelines for quarantine facilities framed by the Government of India. There has to be proper segregation of the areas, prominently labelled as low risk, moderate risk and high risk areas. The entry and exit points of the said centres are required to be secured properly, with proper facilities of sanitation etc. Any mis-management in proper handling of such centres may result into the spread and/or increase of the disease in Bihar.

..The relevance, significance and importance of ensuring proper sanitization, cleanliness and orderliness at the Centres is highly imperative, more so looking into the economic condition, demography and population of Bihar. Today, 1/10th of the population of India lives in Bihar with highest density of population ratio. Hence the need, all the more, for monitoring the centres directly by senior level officer(s) at the level of the Government and with a greater vigil.

..In the response, it be categorically stated, in a tabulated form, district-wise, (a) the number of quarantine centres established in the State of  Bihar; (b) number of persons (migrants) housed therein; (c) number of persons who have been allowed to return to their respective places of destination after expiry of the mandatory period of quarantine;  (d) total number of persons (migrants), who are further expected to enter the State of Bihar; (e) the capacity of centres to house such persons; (f) whether provision for security, sanitation and food exists at each one of such centre or not; (g) whether such facility stands outsourced or is being provided  or sought to be provided directly by the employees of the State; (h) whether there is a provision for providing medical aid/facilities; and (i) mechanism for lodging complaints and its redressal.”

Direction for engaging members of civil society in the fight against Corona Virus.

(C.W.P No.5609 of 2020)

A division bench headed by Justice Sanjay Karol in another order observed that “in a democratic society, the Civil Society cannot be ignored”, Order Stated:

“Well, at this stage, we need not say anything further, save and except, that the role of Civil Society, be it in the form of individuals/ CSOs/NGOs, in helping the orphans; elderly persons; and specially challenged persons, cannot be undermined. Public and private participation to overcome natural disasters and adversities is not alien to the culture and heritage of this great nation. Also Practices and teachings of Lord Buddha and Lord Mahavira are well entrenched in the State of Bihar. One cannot forget the importance and significance of the Directives Principles of State Policy, Part IV, (Article 39) and Part IV-A Fundamental duties, more specifically, (Article 51-A (h)) of the Constitution of India, while dealing with the problems arising out of the Pandemic Corona Virus (COVID-19).

We are also of the view that for centralized monitoring of the problems faced by the sectors mentioned above and the relief provided/action taken, technology be used. Perhaps, a Website, to be operated at the level of the Government of Bihar can be opened up where any member of the Society (organized or un-organized) wanting to help the Government or the citizenry, in whatever manner, be it in the form of material or human resources, can register their request and the same dealt with promptly by a duly authorized competent and a responsible officer. We only hope that the Chief Secretary, Government of Bihar shall have part of this order implemented latest by day-after-tomorrow, 29.04.2020.”

List of verified NGOs, charities and private institutions, which are working on the ground:

  1. safaindia.org
  2. cjp.org.in
  3. parikrmahumanityfoundation.org
  4. feedingindia.org/donate
  5. kashtakaripanchayat.org
  6. robinhoodarmy.com
  7. https://goonj.org/support-covid-19-affected
  8. fdci.org or write to them at [email protected]seedsindia.org/covid19/
  9. https://tinyurl.com/ydgmfpcm
 
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Pandemic – ‘Nationwide Lock-down’ A Tale of Caution & Hope

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Curfew Relaxation in Himachal Pradesh 3

Shimla-It’s for the first time in the history of our planet that the entire Humankind is together and is focused on fighting with one problem.

In India, from many days Doctors have been coming out and demanding a nationwide lockdown fearing the wrath of the virus which has been raging hell all across the world. The State has now responded and has ordered a 21-day lockdown for the entire nation, which is an unprecedented move.

The Lockdown is an extreme step which is demanded by these extraordinary circumstances. And as expected it has and will continue to have a huge impact on the economic health of the country. It has paralysed virtually all commerce and has put millions of people out of work, leaving many struggling with basic requirements like food and medicines. This has caused much debate in the media and elsewhere that whether we are ‘over-reacting’ to the coronavirus outbreak?

In this post, the author argues that the present step of a ‘National Lockdown’ is the most efficient and only available first response which the Government could have taken to tackle the immediate and ongoing existential crisis.

The viability of measures is to be seen through the lens of precaution and what might be the risk to reward outcome of the decision. The ‘precautionary principle’ which has had its evolution through various judgments of our Supreme Court ultimately boils down to an understanding that “if one is bound to err then always err on the side of minimising the risk and the scale of catastrophic harm than to take high-risk measures for immediate gains”.

The question which has arisen for consideration is,  ‘what is at stake by acting too strongly versus what is at stake by acting too weakly?.

The answer, when we think about it with any seriousness, is that too strong action will more quickly reduce wealth and economic activity; whereas too weak action could put crores of lives at stake across the country, and a far greater economic impact will await us down the line.

It is here then that the value judgments behind political decisions about pandemics come into full light. Are we willing to risk economic potency, or are we willing to risk our neighbours, friends, and elders’ lives? The United States and the United Kingdom who have not still imposed a complete nationwide lockdown and are also planning to lift the partial lockdown at the time of Easter (as announced by President Trump) have obviously given a very feeble response and have given considerable weightage to their economy rather than their people. India has chosen to completely focus on its people.

Precautionary Principle 

The Global pandemic and nature of this virus is a powerful reason for aggressively employing the Precautionary Principle to reduce our collective exposure to this deadly virus, an exposure which is grave.

It is hoped that a strong regulatory action which includes measures of forced quarantine, curfew and nation-wide lockdowns, (reduction of public transport/movement/contact) throughout the country would go some way towards lowering contagion even if not completely getting rid of it.

The basic point is that we need to consider the viability of measures through the lens of precaution, and always err on the side of minimising the risk and scale of catastrophic harm. We should be willing to make huge economic sacrifices. So that many of our fellow citizens don’t have their very lives sacrificed at the altar of ‘economic growth’.

The individual choices that we are all facing over the coming months should also be shaped by precaution. We need to be aware that passing this virus to others can create huge contagion cascades that infect thousands of people. It is only by taking pronounced physical distancing steps as early on as possible can we ensure that we are not fueling the wildfire of this pandemic. For many, this may mean a lonely few months, but that is by far a worthwhile price to pay to reduce the scale of this catastrophe.

A Caution- Listen to The Cry of the Poor and Homeless

Though the step by the Government of Lock-down is commendable, there are certain extremely important issues to be kept in mind.

Our country is home to the largest undernourished population in the world. It ranks 102 in the Global Hunger Index, has 1 in 5 people living on less than Rs.150 per day. We have the largest number of street children!

We need an Economic Task Force and a distribution strategy for the supply of essential commodities to the needy.

With the massive outbreak of COVID-19 across the country, there is a *huge and urgent* need of ration and other supplies for daily wage workers, workers in the informal sector as well as masks for doctors and nurses at the frontline.

There have been some announcements which have been made by the State to tackle the above situation such as:

  •  Pradhanmantri Garib Kalyan Yojana – Rs. 1,70,000 crore (Rs. 1.7 trillion) package for poor stuck in lockdown Rs. 50 lakhs insurance cover for health workers in Covid 2019 front.
  •  Pradhanmantri Ann Yojana – 800 Mn people will get additional free 5 kg wheat/Rice and 1 kg, Dal, for 3 months from ration
  • Farmers will get upfront Rs. 2,000 in their account directly
  •  MNREGA – Daily wages increased from Rs. 182 to Rs. 202. Rs 2,000 per worker will be an additional income.
  •  Old Age peoples – Poor senior citizen/widow / handicapped will get additional Rs. 1,000/pm for another 3 months.
  • Mahila Jan Dhan Account – Women will get additional Rs. 500/pm for another 3 months
  • Ujjwala Yojana – Below Poverty Level family will get free LPG cylinder for next 3 months
  •  Up to 20 lakh collateral-free loans for the SHGs from earlier 10 lakh crore cap
  • For organised sector employee and others who earn below Rs. 15,000 salary, Government will pay 12% + 12% provident fund (contribution of employee and employer) under EPF for the next 3 months.
  • EPFO regulations will be amended to allow workers under EPFO to draw up to 75% of their non-refundable advance or 3 months of wages, whichever is lower.
  •  State governments to be directed to utilise an existing Rs 31,000 crore welfare fund for the benefit for 3.5 crore construction workers

Hope & Love

Hope now is that the underprivileged will continue to receive help not only from the Government but also from the super-rich and the various religious institutions that India is so infested by and is proud of. If there was any time for religious institutions to shine this is exactly that time.

We live in a world where infinite money is printed to support corporations and banks and millions are donated to ‘Gods and Godmen’, at the same time nakedly excluding the millions homeless, who are left scrounging for their next meal. India can break this vicious cycle and take steps here out of compassion and empathy. India, the oldest civilization of the world can lead the world and show the light of ‘reason & love’ in its civilized response to the present existential crisis.

There is nothing we can do to change the constraints of our existence. Heartbreak and death await us all one day. As  Albert Camus once said;

 Love is not just a confrontation with the absurdity of the world; it is a refusal to be broken by it.  It is our choice whether we shrink from the slings and arrows of fate, or whether we stand in the full light of the sun while it shines above us.

India! its time to stand at a “physical distance” but stand Together.

 

(The post was first published in https://lawumbrella.wordpress.com/ )

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Transfer of Judges – A Tool to Undermine the Institution of Justice

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Justice S. Muralidhar

Shimla- Justice S Murlidhar of Delhi High Court who was hearing a petition on Delhi Riots, had sharply condemned both the government and police on Wednesday. His scathing remarks questioned the working of the police. Following it, orders for his immediate transfer came late at night the same day to the Punjab and Haryana High Court.

Earlier on 12th of February, a resolution of the collegium was passed deciding on transfer. Widespread protests were made by lawyers against the resolution of the collegium as the decision was unreasoned, unconventional, against past practices and had the potential to significantly affect the functioning of Courts.

Coincidently the judge on the day of the Center’s notification of transfer was hearing a PIL on DELHI Riots and had asked why there shouldn’t be FIRs against those who had indulged in hate speech before the riots occurred.  He told the Delhi Police chief to “seriously consider the consequences” of not registering the FIR.

The judge has been regarded by the DELHI Bar as one of the ‘citizen-friendly judges’ who is known for standing up for individual rights and for passing many orders for checking unconstitutional use of state power. The Judge has delivered several landmark judgments and was known to be impervious to pressure.

The Collegium & Sherlock Holmes

Former Supreme Court Judge Justice Madan Lokur had raised questions on the manner of functioning of the collegium. The Judge observed;

“The mystery behind the change in the appointment of the chief justice from one high court to another will need a Sherlock Holmes to unravel”.

As a rule of practice, It is only when a person is being appointed as a high court judge for the first time that he or she is sent out of his practising court. Once a permanent High Court judge is appointed and posted, he is transferred to another high court only upon elevation as Chief Justice. In the present case, there has been a departure from this rule of practice. In such circumstances where the norms are not being followed and an unconventional procedure is followed then it becomes imperative that reasons are recorded in writing stating the cause of such a departure. Not only reasons have to be recorded but even the consent of the judge needs to be taken. These principles flow from the basic structure of the constitution i.e “independence of the judiciary”.

However, the Notification affecting the transfer doesn’t mention the reasons for the decision, nor does the resolution of the Collegium passed on 12th February state any good reason for the transfer.

The Strike of Lawyers

The hurried manner in which the transfer is effected is troubling so much so that the Delhi High Court Bar Association (DHCBA) has condemned the transfer recommendation and also passed a resolution unanimously regarding this. The Bar Association had expressed dismay at the transfer of one of the finest judges by the collegium of the Supreme Court.

Expressing “shock” at the collegium recommending Justice Muralidhar’s transfer, the high court bar association hoped the decision would be recalled, saying such transfers were “detrimental” to the institution.

The resolution stated;

“Unequivocally and in the strongest possible terms, the Delhi high court bar association condemns the said transfers… Such transfers are not only detrimental to our noble institution but also tend to erode and dislodge the faith of the common litigant in the justice dispensation system. Such transfers also impede free and fair delivery of justice by the bench,” a resolution passed by the association said.
The association requested its members to abstain from work on 20 February 2020, “as a token of protest as the said transfer is a rarest of rare case, the majesty of our revered institution is at stake”.

Hon’ble Judge has been a part of important decisions as, disclosure of assets by judges under RTI, Legalization of Homosexuality and 1984 anti-Sikh riots.

Transfer of Judges – A Threat to The Independence of Judiciary

If the judiciary has to be a bulwark for the protection of the “rights of the individual” and mete out even-handed justice without fear and favour” then it should be independent.

Exercise of the judicial function is one which requires more than any other work a proper balance of mind and an undisturbed and peaceful life. Administration of justice cannot properly be done by a disgruntled judge. If transfer hangs over his head like a Damocles’ sword, the balance of justice slips out of his hand. An immediate and unnoticed transfer may cause so great inconveniences that it may compel him to quit rather than comply with the transfer order.

In the judges’ case, the Supreme Court held that the consent of the judge was not necessary for his transfer from one High Court to another. According to the Court, there are three safeguards against arbitrariness in the use of the President’s power to transfer judges under Article 222. They are:

  1. There must be full and effective consultation with the
    Chief Justice of India.
  2. The power of transfer can be exercised in the public interest only and not by way of punishment.
  3. Judicial review of the decision of the President to
    transfer a judge.

However, do these safeguards suffice to preserve the independence of the judiciary, one of the cardinal faith of the Constitution? Judges, unlike government servants, hold an office under the Constitution and there is no master-servant relationship between the government and the judge. A close study of Sankal Chand’s case and the Judges case would reveal that the Supreme Court has miserably failed to bring out the clear distinction between the transfers by punishment and transfers in the public interest or the present matter, as the order put it, “for better administration of justice“. These expressions are not capable of any precise definition and in a given set of circumstances may be applied differently by different people. In many cases, it would not be possible to rule out some elements of a penal character. The present procedure, as it stands, has instead of limiting the scope of transfers only enhanced its scope by giving a very elastic definition of public interest and ‘better administration of justice”.

Object /Reason and purpose of transfer needs to be spelt out in Orders

The great Mr Palkhiwala, after examining the Judges’ case had rightly pointed out that the dichotomy was not between transfer in the public interest and “for better administration of justice” and transfer by punishment, but the dichotomy was between transfer in’ public interest’ and transfers for ‘extraneous considerations’. According to him, the object of the transfer and not the result, or effect, of the transfer is the decisive factor. The object of the purpose needs to be clearly spelt out in such orders and this cannot be done in a slip-shod manner.

Consent OF the Judge must be sought

Justice Bhagwati in Sankal Chand’s case and reiterated in the Judges case that the “transfer is made consensual” was the only effective safeguard for a judge against arbitrary transfer and only if such an interpretation is accepted, the noble concept of independence of the judiciary can be preserved. This view is shared by many eminent jurists, judges, lawyers etc. The Lord Chief Justice of England, Hon. Lord Lane, speaking on “Standards of Judicial Independence” expressed the view that a judge ought not to be liable to be transferred from one High Court to another without necessarily seeking his consent. Justice H. R. Khanna, a former judge of the Supreme Court, regretted that the Law Commission’s recommendation that no judge should be transferred without his consent unless a panel consisting of the Chief Justice of India and his four seniormost colleagues find cause for such a course has fallen into deaf ears.

The Hon’ble judge not only ‘did not give his consent‘ but had also taken a critical view of the functioning of the police and remarks made by the members of the ruling party. The timing of the transfer during the pendency of such a sensitive matter is highly suspicious and can have a chilling effect upon judges and judicial functioning.

Better administration of justice can be achieved by providing detailed reasons to the Hon’ble judge and the people of India. Transfers without reason can instil fear in the minds of the judges, the first casualty of which would be the justice itself.

The constitutional provision (Article 222) on the transfer of judges has a direct and proximate connection with the independence of the judiciary. This provision, like many other constitutional provisions, can be made use of for achieving many useful purposes as well as evil purposes until a clear and reasonable interpretation is given to the Article keeping in view the principle of “independence of the judiciary”  in mind. Its abuse will have many dangerous effects on the judiciary and its independence. If the judiciary loses its independence and becomes subservient, the net result would be that the Constitution will lose its prominence. Justice Khanna has aptly put it like this:

“Once the independence of the judiciary is undermined and the seats of Justice came to be occupied by men with pliable conscience’ and subservient to the political wing of the State, the first casualty would necessarily be the supremacy of the Constitution, for it, would be open to every branch of the State to ride roughshod over the provisions of the Constitution.”
(The post was first published in https://lawumbrella.wordpress.com/ )

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