Suryanelli gangrape case: Kurien not to be made an accused, rules court #Vaw


Thiruvananthapuram: In a major relief to PJ Kurien and a setback for the Suryanelli gangrape survivor, a Session Court ruled on Saturday that the Rajya Sabha Deputy Chairman will not be made an accused in the nearly two decade-old case. The court rejected the survivor’s plea based on prime accused Dharmarajan’s affidavit stating he never took Kurien to the guest house, where the girl was lodged.

Dharmarajan, in the affidavit, had also said that an old TV interview, in which he claimed Kurien’s involvement in the crime, was given under the influence of alcohol. A few days after his interview to a channel, Dharmarajan was arrested from Karnataka after absconding for several years by jumping bail.

Sessions Judge Abraham Mathew in his Saturday’s order held that the survivor’s plea for inclusion of Kurien in the sex scandal case was not maintainable. The girl, hailing from Suryanelli in Idukki district of Kerala, was abducted in January 1996 and was transported to various places in the state and sexually exploited by different persons.

Kurien not an accused in Suryanelli gangrape case: CourtThe Sessions Court in its order held that the survivor’s plea for inclusion of Kurien in the case was not maintainable.

The survivor had moved the court against Kurien based on the ‘revelation’ of the sole convict in the case Dharmarajan, who had claimed in an interview a few months back that he had taken Kurien in a car to a guest house at Kumily where the girl was lodged.

Dharmarajan had later retracted the claim in the court through an affidavit stating he had never met Kurien and he was in an inebriated state when he made the charge. The 1996 case came into focus recently after the Supreme Court invalidated the Kerala High Court‘s verdict acquitting 35 accused in the case.

(With Additional Inputs From agencies )

 

#India -No jeans, mobile phones for Brahmin girls: BJP MP #Vaw #moralpolicing #WTFnews


We are under attack from Western culture, our culture doesn’t teach us to wear jeans,’ BJP MP Raghunanandan Sharma tells Rediff.com‘s A Ganesh Nadar.

Bharatiya Janata Party MP Raghunandan Sharma has come up with the following suggestions to check crimes against women: Girls should not be allowed to use mobile phones before marriage and women should not wear jeans.

Sharma — a member of the Rajya Sabha and vice-president of the BJP’s Madhya PradeshImages ] unit -expressed his views at a meeting of Brahmins in Ratlam district on Sunday.

The BJP MP termed mobile phone usage by students, particularly young girls, as a big menace and the genesis of other evils.

Sharma lambasted girls wearing jeans, saying it was the attire of American cowboys and in no way gelled with Indian culture.

Sharma, who was born a year before Independence, told Rediff.com on Tuesday, “I don’t know what the problem with you journalists is. I was at my samaj meeting. It was a meeting of my society of Brahmins.”

“I am a representative of the Brahmins and I am their leader. I was trying to suggest ways to improve my society. The advice was only for Brahmins, not for the country.”

“I was speaking not as a MP or a BJP leader, I was speaking as a Brahmin to other Brahmins. I have my ideas of improving my society, what is your problem?”

“We are under attack from Western culture, our culture doesn’t teach us to wear jeans,” Sharma added.

“I have every right to tell my society of Brahmins how to dress, not to use mobile phones and whatever I think is good for my society.”

“Nowhere did I suggest that I am trying to change the country, change my party’s views or change my state’s views. This was advice only for my people and meant only for them

 

#India – Suryanelli Gang Rape survivor moves HC- against parliamentarian P J Kurien #Vaw #goodnews


She seeks to implead herself in a petition to conduct further investigation against parliamentarian P J Kurien.

 June 12, 2013, 

Kochi:The victim in the Suryanelli gang rape case has approached the High Court, seeking to implead herself in a petition to conduct further investigation against parliamentarian P J Kurien in the case.

In the petition, she submitted that there exist enough reasons to allow the petition for further investigation against Kurien.

“If I am not heard in this case, the cause of justice will be sabotaged. Hence, it is very essential to implead me as an additional respondent in the petition by the Kerala Mahila Sangham. If the impleading petition is not allowed, I will be put to irreparable hardships,” she submitted.

A Division Bench, comprising Chief Justice Manjula Chellur and Justice K Vinod Chandran, is considering the petition filed by Kerala Mahila Sangham state committee secretary Kamala Sadanandan.

The petitioner also sought a directive to produce the records of the investigation conducted by Siby Mathews, former investigating officer, on Kurien’s role in the case.

“Inquiry report in favor of Kurien should not be taken into consideration as it was not based on an FIR, nor was it according to the terms of the Code of Criminal Procedure,” it said.

“Kurien is using his political clout to sabotage the possibility of any further investigation against him,” the Sangham alleged.

Meanwhile, a Division Bench, comprising Justice K T Shankaran and Justice M L Joseph Francis, allowed a petition filed by Jacob Stephen, an accused in the Suryanelli case, seeking permission to attend the 16th Co-Operative Congress in New Delhi from June 21 to 29. The Bench allowed the accused to attend the congress.

The case relates to the rape of a 16-year-old girl of Suryanelli in Idukki District in 1996.

The victim was allegedly abducted and taken to various places and sexually exploited by over 40 different persons.

Source: New Indian Express

 

#India – Face to Face: Kishore Chandra Deo, Union Mininster for Tribal Affairs and Panchayati Raj


 

Akash Bisht Delhi

A five-time MP from Araku (ST) constituency of Andhra PradeshKishore Chand Deowas first elected to the Lok Sabha way back in 1977. He also served one term in the Rajya Sabha and was a member of the Congress Working Committee.  He was sworn in as theUnion Minister for Tribal Affairs and Panchayati Raj in 2011 and has also been a chairperson of several important parliamentary committees. In the wake of the cold-blooded murder of tribals in ChhattisgarhHardnews spoke to the veteran politician

 

Q | On May 17, eight tribals, including three children, were killed by the security forces in Ehadsameta in Bijapur district in Bastar region of Chhattisgarh. This comes nearly a year after 17 innocent villagers were killed in cold blood by the security forces in Sarkeguda.

Last year, when it happened in Chhattisgarh, I had raised the matter with the appropriate authorities and had taken it up with the then Union home minister and also written to the state government. I can only say that this is most unfortunate because if innocent tribals start losing their lives in this manner then it will only create more resentment among them. This kind of action will further drive them into the arms of the extremists. I have said time and again that, to understand the reasons for the extremist problems, we have to get to the roots of it. I want to reiterate that the problem in these areas cannot be treated merely as a law and order one. The problems at the grassroots are far deeper. We have recognized the problems and created an Integrated Action Plan (IAP) for selected tribal and backward districts.

Exploitation is one of the biggest problems staring at tribal populations in these areas. The threat of mining is severe. If we talk about development then the UPA believes in inclusive growth and it means that the process of development should take along people from the poorest, exploited and marginalized sections of society.

Recently, I came to know about the exploitation of tribals in Mahan Coal Fields (Singrauli) in Madhya Pradesh. I got feedback from the locals that the district administration and main functionaries of panchayats have been manipulated by private miners. I am told that merely 15-20 people of the gram sabha had passed contrived resolutions. This was against the directions from the panchayati raj ministry that the gram sabha meetings have to be video recorded. It also goes against the directions of the tribal affairs ministry that community rights have to be recognized. A contrived gram sabha not allowing community rights to the tribals goes against every constitutional provision. This is the first time I was hearing that tribal communities do not want their rights. This is their mainstay and basic source of their livelihood; that is why I sent guidelines and circulars defining what community rights and resources mean. Thus, when such situations arise, you have such unfortunate events like what happened in Chhattisgarh.

Probably, it’s one of those incidents where force was used to tame the people, but this will only polarize people against the State. After all, the State has to gain the sympathy of the people and they have to realize and recognize their rights. The security forces have to be within the perimeters of the existing laws and if you keep flouting laws and conventions then this is what it will result in. This is very sad.

Q | It has been reported that the post-mortems of the dead tribals were being conducted in the open.

It is not only gory, it is inhuman and this is not the way you deal with your own citizens. Health and law and order are under the jurisdiction of the state government. This doesn’t mean that I am trying to play politics; these things have happened under Congress governments too. I have not spared my own party governments and chief ministers. This is not a party matter and is above politics. These situations, when they develop, become a threat to our nation’s security. It is beyond party matters. The states will have to take up the responsibilities and security forces have to restrain themselves when it comes to dealing with innocent people.

It’s no excuse to say that they were being used as human shields and hence they massacred them. Why were they being used as human shields? You have to go into the causes for that. Once you understand that then you can get to the root of the problem. I have discussed this with the present home minister and he understands this very well. He was totally in agreement with me that this is not the way to handle such situations. I will again be writing to the chief ministers, the home minister and environment and forests ministry. If mining clearances are given without the consent of tribals then you will only be antagonizing them. 

Q |There were protests and anger after the gangrape of a young girl in Delhi, but not many spoke about Soni Sori and how she was tortured and sexually assaulted by the Chhattisgarh police.

I was the one who took up her case. It was raised in the Rajya Sabha by an MP. There was an instance when AIIMS refused to admit her despite a court order. I ensured that she was admitted to the hospital and given proper treatment. We need to create awareness among people about their rights.

 

Q | There are reports that Operation Green Hunt is still being pursued by security forces.

If there are any such reports then I will take it up with the appropriate authorities. I am not opposing that certain operations need to be carried out in certain areas, but there has to be some cause. Going around in a trigger-happy mood and shooting innocent people is not the way to go about it.

 

Q |What role do these gram sabhas and panchayats play in tribal areas? Recent reports suggest that there has been an increase of 25 per cent in centrally sponsored schemes but India still ranks very low in the Human Development Index. The scenario is worse in tribal areas.

They play a very vital role in these impoverished regions and if gram sabhas are allowed to play their role, they will do it. The problem is similar to what I mentioned earlier in Mahan Coal Fields. The tribals wanted to file claims under the Forest Rights Act but their claims were not accepted by the local authorities. If you want to empower people, gram sabhasmust be held regularly. I have sent circulars and they need to be video recorded. Video recording is no big deal today and there are cameras available everywhere. Twenty years back they could have said that it is a utopian idea, but that is not the case now. This is to prevent contrived gram sabha resolutions; if people are allowed to play their roles, half of our problems will be solved.

Panchayati raj is a state subject and every state has its own Panchayati Raj Act. My job is to raise awareness, issue guidelines and monitor. Officially, guidelines have been issued. For instance, they need to hold four gram sabhas every year. I would be happy if they have 40, but they have to be genuine. If the state governments do not comply then there is very little that one can do. This year we have launched the Rajiv Gandhi Panchayati Raj Sashakti karan Abhiyan (RGPSA); this is demand-driven. The annual budget allocation for the panchayati raj ministry is Rs 300-350 crore. I have got Rs 6,200 crore from the Planning Commission for the Five Year Plan under RGPSA. That makes it close to Rs 500 crore annually. The Union ministry for rural development has agreed to give one per cent of its annual allocation because most of their schemes have to be implemented and channelized through the gram panchayats. It may be only one per cent for the rural development minister, but for me it is nearly Rs 1,000 crore, as his annual budget is Rs 99,000 crore per annum. So, in total, it makes Rs 1,500 crore a year which is substantial as compared to what I was getting earlier.

I am ready to give funds to strengthen the panchayati raj infrastructure. I have put some conditions and they have to comply with provisions of the 73rd and 74th amendments of the Constitution. First, they will have to hold elections within six months as prescribed by the Constitution. Then, they will have to devolve their funds, functions and functionaries and hold gram sabhas regularly. I have evolved this marking system where I will be marking them according to these constitutional provisions. States that will comply will get funds accordingly, and since all state governments want funds, so, I think. I will be able to convince them.

Another important thing is that I am not thrusting these funds for any specific purpose. One state may say that they have sufficient panchayat ghars and they don’t want money for that but they want money to pay salaries. I have asked them to give me plans and, based on the requirements, I plan to give them the money. The Union communications ministry has promised that they will give broadband connections to 2,46,000 panchayats in the country by 2014. In fact, they have already done it for 50,000 panchayats. In remote and tribal areas, where there is no power, we will have solar systems. So, the states that need money for computers or solar equipment, I will give them money. We have four software systems that many states are using and six more software systems have been developed and people are being trained. Once the training is over then the state governments will have 10 software systems to use. There will be social accounting and e-governance, and everything that is going on in these panchayats will be documented. This will help us monitor these schemes and take them forward. 

Q | Which are the states that are doing well?

There are certain states that have been doing well but nobody has devolved all the 29 items that are in Schedule 5 of the Constitution. Some states comply with 12, some with 14. States like Kerala, West Bengal, Odisha and Karnataka have been doing very well. In the last couple of years, Haryana has been lagging behind, but now it is performing well. I have started a trend of giving awards for the best performing states. Now, we are also giving awards to specific panchayats for good practices. All this is to sensitize them and give them incentives to make them aware. Recently, there was a Commonwealth Conference for local bodies in Uganda. Unfortunately, the ministry of external affairs made the urban development ministry as the nodal ministry, although the Commonwealth was keen that we participate. I wanted to send some panchayati raj representatives to the conference to give them a sense of empowerment.

 

Q |What about states that are performing below your expectations?

We have not made a list of that. Jharkhand is one such state that hasn’t had elections in 12 years; they had elections when Arjun Munda came to power. The elected representatives are there but what will they do if you don’t give them any funds or devolve any functions? I had written to the chief minister and had gone to Ranchi. Ultimately, the call has to be taken by them.

Another example is Jammu and Kashmir. They had elections after 12 years, but no functions have been given to these elected representatives. No funds are given to them for whatever reasons. They said that because of Article 370 they are not bound by the 73rd and 74thamendments. I said fine, they must be having a Panchayati Raj Act of their own so they should devolve powers according to that. That is not happening. In my state, Andhra Pradesh, there have been no elections in the last two years — hence, there are nopanchayats. So, whom do you talk to? I have been writing to them and there is a constitutional requirement that they have to do it in six months. Besides, this is a Congress-ruled state.  

Q | In north India, panchayats are feudal in nature and Dalits and minorities have no say in them. Similarly, in tribal areas, tribals have no say and local bodies are easily bought off by big business and multinationals. How do you counter this?

Gram sabhas have a special role to play in these areas under statutory provisions within the Panchayat Extension to Scheduled Areas (PESA) Act. This was enacted by the central government in 1996. Fifteen years have passed, but, unfortunately, out of the nine scheduled states, only three have made rules. Six have not even done this and they have made their own rules. According to PESA all state governments have to amend their Panchayati Raj Act to see that they are compliant with PESA, but they have not done so. According to PESA, gram sabhas will not be in the panchayat level, but it will be held in every habitation. This is a clarification that I have sent to all state governments of the scheduled states.

Ultimately, they have to take the call. By empowering the gram sabha, we can give the people the role, however indirect it may be, to partake in the process of governance and development. This is one way to draw tribals into the mainstream and to make them feel that they are part of governance. This should get them out of these threats of taking to extremist ways.

In the scheduled areas, even if multinationals buy the panchayats, they cannot enter since there are constitutional provisions and safeguards under Article 244 and the Fifth Schedule. Constitutional safeguards and provisions cannot be overridden by resolutions of gram sabhas or panchayats and even by the devious methods deployed by the state government to flagrantly and blatantly overcome constitutional safeguards. This is totally illegal.

Governors have special powers, so I have written to governors of all scheduled states. I received a reply from the governor of Chhattisgarh. I have written to the governor of Odisha arguing that constitutional provisions have been totally violated in the case of Vedanta. It is a scheduled area and Vedanta is a private company which has no locus standi there. I have written to the governor of Andhra Pradesh who chose to abdicate his powers and rights and I had to take other action.

If you take the case of the Orissa Mining Corporation which is registered under the Companies Act, 1956, these are corporations that can’t take land in Schedule 5 areas. Irrespective of that provision they give land on lease to private companies like Vedanta. This is completely against the provisions of the Constitution. In recent times, there have been a number of cases where shares have been disinvested in such companies. Article 244 of the Constitution can only be amended by Parliament in the manner prescribed in Article 368 of the Constitution. Hence, by disinvesting and taking this surreptitious route, are they not subverting constitutional provisions and bypassing the authority of Parliament?

I have sent a letter based on the Supreme Court ruling on Vedanta. The Supreme Court, in its order, has mentioned about Article 144 (1), but they have not gone deep into the matter. Probably, the counsel who was arguing this case didn’t raise this. The counsel was from the ministry of environment and forests. By the time I became minister, it was too late for the tribal affairs to get involved in this case. But I did raise a lot of hue and cry and I saw to it that an affidavit from my ministry went to the Attorney General who gave it to the Supreme Court. That is the reason why they have made my ministry the nodal authority for looking at the Forests Rights Act and PESA compliances in the Vedanta case.

 

Sole convict in Suryanelli rape case retracts charge against PJ Kurien #WTFnews Timing ?


PTI  THODUPUZHA, KERALA, MAY 29, 2013 | UPDATED 18:18 IST
PJ Kurien
Rajya Sabha Deputy Chairman PJ Kurien
In yet another twist to the nearly two-decade-oldSuryanelli sex scandal, the lone convict in the case, Dharmarajan on Wednesday retracted his allegation that Congress leader and Rajya Sabha Deputy Chairman P J Kurien was involved in the case.In an affidavit filed through his lawyer in the Sessions Court at Thodupuzha in Idukki district, Dharmarajan said he made the allegation as the reporter of a Malayalam TV channel barraged him with questions while he was hiding in a place near Mysore after jumping bail.

Dharmarajan, who surrendered in February last after absconding for several years, said he was not familiar with Kurien and he had seen his pictures only in media.

Withdrawing his claim that he had taken Kurien in his car to a guest house in Kumali where the victim was lodged, Dharmarajan said in fact he did not even have a car of his own.

The affidavit was submitted in a private petition filed by the victim seeking legal action against Kurien in the light of Dharmarajan’s “revelation.”

Dharmarajan dropped a bombshell in February claiming in a television interview that Kurien was present at the guest house where the victim was exploited and that he (Dharmarajan) was under pressure from the investigators to refrain from mentioning the Congress leader’s name.

A lawyer by profession, Dharmarajan was the only accused convicted by the Kerala High Court in 2005 while it cleared 34 others earlier held guilty by a special court that conducted trial in the case in the late 1990s.

After serving a brief jail term, Dharmarajan was freed on bail but never returned to prison and his whereabouts were unknown till he resurfaced in February, after the case took a new turn with the Supreme Court asking the Kerala High Court to conduct a re-trial.

The sex scandal took place at Suryanelli in Idukki district January 1996. A 16-year-old was threatened, abducted and abused by a bus conductor and was later confined and sexually assaulted for 45 days by 42

 

Women Deliver unaware of charges against Kurien, is that Enough ? #Vaw #Rape


AARTI DHAR, The Hindu

P J Kurien. File photo
The HinduP J Kurien. File photo

“Had we known of the controversy, we would not have permitted PJ Kurien to speak at the side event,” say the organisers of Women Deliver conference

With twitterati in India launching a tirade against Rajya Sabha P.J.Kurien’s presence at an international conference on women underway here, the organisers of Women Deliver on Wednesday said they were unaware of charges against him.

In a statement issued here, Women Deliver said it took the issues of violence against women and rape very seriously.

We were unaware that Indian Parliamentarian PJ Kurien is facing allegations of rape. While we cannot comment on the specific allegations, had we known of the controversy, we would not have permitted PJ Kurian to speak at the side event. Addressing violence against women is central to our mission as an organization and one of the focus areas of this global conference,” the statement said.

Mr Kurien, who is facing serious charges of rape, is also chairperson of the Asian Forum of Parliamentarians on Population and Development, that had invited him to speak at the Global MPs Conference, held as a side event at Women Deliver conference.

As the word on Mr Kurien’s participation spread, social media overflowed with condemnations. Tweeted Vidyut: massive anger over women’s rights situation, sweet promises by Sonia/sarkar, half hearted committee/law passed, then Kurien at Women Deliver”

Women’s activists lost no time in writing to UPA chairperson, Sonia Gandhi and Prime Minister demanding Mr Kurien’s removal as chairperson of Rajya sabha.

Mr Kurien’s case involves gang rape of a minor girl in Suryanelli in Kerala. While the victim has alleged that she was raped by 42 men over 40 days and one of them was Mr Kurien. In 2005, the Kerala High Court tried 35 men but Mr Kurien was not among them- and acquitted 34. This order was recently set aside by the Supreme Court following which there have been demands of Mr Kurien’s removal as chairperson of Rajya Sabha.

 

P J Kurien , rape accused a speaker in Women Deliver Conference, Feminists Protest #Vaw #WD2013


By- Rukmini Sen, at http://hillele.org/

In a letter to the Prime Minister Manmohan Singh and Congress Chief Sonia Gandhi, Feminists and women activists accross India have expressed their shock that PJ Kurien has been invited as a lead speaker to the third Global Women Deliver Conference in Kuala Lumpur, Malaysia, from May 28- May 30th 2013. Rajya Sabha Deputy Speaker P J Kurien is an accused in the Suryanelli Rape Case and GWD Conference is one of the largest global event of the decade to focus on the health and empowerment of girls and women.

In this letter written and signed by some senior feminists of the country it is stated that “In 1996, in the state of Kerala, a 16-year-old girl was abducted and brutally gang-raped by 42 men over a 40 day period. She was tied up, and transported place to place throughout the state, and raped by various men at various points. When she was finally dumped by the rapists and taken to the hospital the doctors said her groin and private areas were so savaged, and she had bled so much that a few more days and she would be dead!”. The victim, however, found courage and named and identified her rapists. One of them was P J Kurien, who she recognized and identified from a photograph. On September 06, 2000, a special court had found 35 of the men involved guilty and sentenced them to rigorous imprisonment for varying terms.

The Kerala High Court, however overturned this ruling. It acquitted all 35 convicted rapists and found only one of them guilty of crimes related to the sex trade and sentenced him to a 5- year jail term and a fine of Rs 50,000. “The reason for the acquittal was political pull, especially that of P.J. Kurien, who was a Union Minister and a member of the ruling Congress party”.

In fact, even the witness on whose statement Kurien was later acquitted, has recently admitted that he had actually testified to seeing Kurien in the guest house, around the time the victim was raped there. According to him, the police officer in charge had changed his statement to protect Kurien, with bribes having been given to buy his silence! Furthermore, the only man convicted in the case has also testified that Kurien was in the
guest house at the time of the rape. The testimony comes in spite of pressure being applied by the investigating officer on people not to testify against Kurien! Despite this, the government has refused to remove Kurien from office and re-try his case with the new evidence emerging against him.

Meanwhile, the rape survivor and her family have had to move houses constantly, and continue to be ostracized by society, while facing harassment from various quarters. The harassment increased because the survivor refused to retract Kurien’s name from the list of men who had raped her!

The video top is to understand how the rape survivor and her family have been further victimized over the years

The Feminist groups across the country have condemned the Government of India’s decision to permit PJ Kurien who is a rape accused to leave the country when there is a case against him in order to represent the Indian government at an international conference which is focused on women and girls health issues.

Feminist groups across the country have demanded that Women Deliver should not allow P J Kurien to speak or participate in any of the meetings or platform in the conference. Some of the leading feminists of the country have expressed surprise that “they do not check the credentials of dignitaries invited on a such a prestigious International Forum on the issues of Womens Health”. Women activists of the country have insisted that for future the conference organisers should check if delegates have a background in the subject matter of the conference, in the course of which they would also discover their misdeeds.

Feminists across the country have demanded that Kurien immediately vacates his position of Chairman of Asian Forum of Parliamentarians on Population and development

They have further demanded UNFPA which has sessions wherein ministers, parliamentarians and senior government officials will be speaking on women’s reproductive health and how they can be

LINK TO PETITION HERE- http://kractivist.wordpress.com/petition-stop-p-j-kurien-rape-accused-in-women-deliver-conference-wd2013-wdlive/

#India – Rape accused Kurien heads for global meet on women #WTFnews #Vaw


Undeterred by Oppn boycott back at home, Rajya Sabha deputy chairman will be the lead speaker at the mega event

dna correspondent @dna

New Delhi: Rajya Sabha deputy chairman PJ Kurien, who is battling rape charges, would represent India at a global conference to discuss issues related to women and their empowerment. The conference is being attended by 60 parliamentarians from world over.
After Congress refused to dismiss Kurien last February, after the resurfacing of the Suryanelli sex scandal case which has rocked Kerala off and on since 1996, opposition parties in Rajya Sabha have decided not to allow him to preside when the House discusses issues related to women.
The case relates to abduction and serial rape of a 16-year-old schoolgirl of Suryanelli in Kerala by 42 men over 41 days in January-February 1996.
Undeterred by the charges and opposition boycott back home, Kurien will deliver the inaugural address at the 3rd Global Women Deliver conference at Kuala Lumpur, capital of Malaysia.
The event will be attended by the prime minister of Malaysia Datuk Seri Najib Razak among other dignitaries.
The three-day conference from May 28 is touted as the largest global event of the decade to focus on the health and empowerment of women.
Women Deliver is a global advocacy organisation bringing together voices from around the world to call for action to improve the health and well-being of girls and women.
Besides, the European Parliamentary Forum on Population and Development in cooperation with its sister parliamentary networks in Africa, Asia and America will organise a parliamentarians forum during the conference.
The three-day event will also review the progress of Millennium Development Goals, whose deadline of 2015 is fast approaching.

 

 

#India – Is the Mechanism for Appointment of Judges Working?


May 11, 2013

Supreme CourtBy S Farman Ahmad Naqvi,

The question regarding how to appoint judges at the High Courts and Supreme Court has been bothering not just the top echelons of judiciary in India but the executive too. Though the “collegium system” which appoints judges has been in place for quite some time now, there have been murmurs of dissatisfaction over the practice in different quarters.

The collegium system – which is followed in the appointment of judges to the Supreme Court and the High Courts, has recently been challenged in the Supreme Court. The petitioner, Rajasthan-based Suraz India Trust wants the court to declare the system “ultra vires” and “unconstitutional” because the constitution does not mention it anywhere and it has been brought into existence through the judgments of the Supreme Court. The bench, which heard the matter, referred it to the Chief Justice of India for “appropriate direction” as the petition rose “complicated legal issues.” On its part, the government has said that the matter required reconsideration.

Recently on 1st May 2013, in a written reply to a question in the Rajya Sabha, Dr. Ashwani Kumar, Minister of Law & Justice, said that representations have been made by various agencies and expert bodies to review/change the present procedure of appointment of judges. Based on the suggestions received, there is a proposal to establish a broad based Judicial Appointments Commission. However, no decision has been taken by the Government so far, Dr. Kumar informed the House. He also informed the house that the appointment of Judges to High Courts and Supreme Court is based on a Memorandum of Procedure for Appointment of Judges of Supreme Court and High Courts* (see at http://doj.gov.in/sites/default/files/memosc.pdf ) prepared in 1998 pursuant to the Supreme Court Judgment of October 6, 1993 read with their Advisory Opinion of October 28, 1998.

How the collegium system came into being is very remarkable. In a decision rendered by a seven-judge Constitution Bench in S.P. Gupta Vs. Union of India (AIR 1982 SC 149), the majority held that „consultation? does not mean „concurrence? and ruled further that the concept of primacy of the Chief Justice of India is not really to be found in the Constitution. It was held that proposal for appointment to High Court can emanate from any of the four constitutional functionaries mentioned in Article 217 – and not necessarily from the Chief Justice of the High Court. This decision had the effect of unsettling the balance till then obtaining between the executive and judiciary in the matter of appointment. The balance titled in favour of the executive. Not only the office of the Chief Justice of India got diminished in importance, the role of judiciary as a whole in the matter of appointments became less and less.

After this judgment, certain appointments were made by the Executive over-ruling the advice of the Chief Justice of India. Naturally, this state of affairs developed its own backlash. In 1993, a nine-Judges Constitution Bench of the Supreme Court in Supreme Court Advocate-on-Record Association Vs. Union of India (1993(4)SCC 441) over ruled the decision in S.P. Gupta. The nine-Judges Bench (with majority of seven) not only overruled S.P. Gupta’s case but also devised a specific procedure for appointment of Judges of the Supreme Court in the Interest of “protecting the integrity and guarding the independence of the judiciary.” For the some reason, the primacy of the Chief Justice of India was held to be essential. It held that the recommendation in that behalf should be made by the Chief Justice of India in consultation with his two senior-most colleagues and that such recommendation should normally be given effect to by the executive. Elaborate reasons were recorded in support of the proposition that selection of judges must be in the hands of the judiciary in this country and how the systems prevailing in other countries are alien to our constitutional system.

One of the judges relied upon Article 50 of the Constitution which speaks of separation of judiciary and executive and excluded any executive say in the matter of appointment to safeguard the „cherished concept of independence.” It held at the same time that it was open to the executive to ask the Chief Justice of India and his two colleagues to reconsider the matter, if they have any objection to the name recommended but if, on such reconsideration, the Chief Justice of India and his two colleagues reiterated the recommendation, the executive was bound to make the appointment.

Reaction to this judicial assertion of power has not been uniform. In short, the power of appointment passed into the hands of judiciary and the role of the executive became merely formal. The 1993 decision was reaffirmed in 1998 [1998(7) SCC 739] in a unanimous opinion rendered by a nine-Judge Bench of the Supreme Court on a reference being made by the President under Article 143 of the Constitution. All the basic conclusions of the majority in the 1993 decision were reaffirmed.

There was, however, some variation. It was held that the recommendation should be made by the Chief Justice of India and his four senior-most colleagues (instead of the Chief Justice of India and his two senior-most colleagues) and further that Judges of the Supreme Court hailing from the High Court to while the proposed name comes from must also be consulted. In fact, the Chief Justice of India and his four senior-most colleagues are now generally referred to as the “Collegium” for the purpose of appointment of Judges to the Supreme Court.

The present collegium system of appointment of judges of Supreme Court and High Courts has resulted in an anomaly in as much as the executive no longer has to share any responsibility in filling up vacancies, the entire responsibility being that of the collegium. It appears that this system had outlived its life and its pessimistically failed to fulfill the aspirations of people.

At the Congress party’s national convention on “Law, Justice and the Common Man”, union urban development minister and party veteran S. Jaipal Reddy raised serious doubts on the Supreme Court’s Collegium system of judicial appointment? “The current system of judicial appointment is faulty; it is faulty because it is opaque. The opacity of this system attracts charges of nepotism and lack of transparency. The government is bringing a legislation (the Judicial Standards and Accountability Bill), which should address this sense of grief over the conduct and reputation of judges and the manner of their appointment,” Reddy said. (http://www.dnaindia.com/india/report. Mar 28, 2010.)

Leader of opposition in Rajya Sabha and a senior Advocate of Supreme Court Mr. Arun Jaitley said the collegium system was better than executive appointing judges and he would never advocate executive interference in judiciary. “But the collegium system of appointing judges too lacks in terms of quality and integrity. The standard needs to be improved far more,” He said.

“I have always preferred a National Judicial Commission where judiciary has primacy, executive participates and includes some eminent citizens who act in safeguarding public interest,” he added. Time of India Aug 29, 2011.

One of the country’s top legal luminaries Fali S. Nariman while speaking at National Law University (New Delhi) made bold exposure on drawbacks of collegiums-system of appointing judges. The speech delivered in presence of Chief Justice of India directly hinted at personal equations and not merit being followed in recommending elevation of judges at Supreme Court. Eminent lawyer gave two recent examples which echo views of right-thinking persons of the civil society. First was superseding country’s known-distinguished judge Justice A P Shah in his elevation as Supreme Court Judges, who retired in February 2010 from Delhi High Court. Fali S. Nariman justified his comments with example of Justice A.K. Patnaik who after being overlooked three times, was at last elevated to Supreme Court just after retirement of the collegium-member opposing him from the Supreme Court. (http://www.merinwes.com Nov 22, 2009).

As the matter was relating to Supreme Court Judge’s appointment and was raised by one of the country’s top legal luminaries Mr. Fali S. Nariman, it caught the eyes of media. However, there are hundreds and thousands of cases relating to appointment of Judges of High Courts either from the higher judiciary or from the bar, where anomalies are abundantly caused but they go unnoticed being found unimportant.

Justice P.N. Bhagwati in conversation with Padmaparna Ghosh while answering the question, “does the collegium system work?” had unequivocally said that “this system does not work satisfactorily. I am not in favour of it. I don’t know that the truth is but going by rumours, bargaining goes on between the collegium judges. People are losing confidence in the mode of appointing judges. Therefore, it is necessary to change it.” (http://indiatoday.intoday.in published on August 29, 2011).

Former Delhi High Court’s Chief Justice A.P. Shah, who could not make it to the apex court, quotes Justice Ruma Pal, formerly Supreme Court judge to say that the process by which a judge is presently appointed to the high court or the Supreme Court is ”one of the best kept secrets in the country”. The constitution dealing with the appointment of judges of the Supreme Court (Article 124) and the high court (Article 217) says that the President would appoint such judges in consultation with other judges. Justice Shah, whose elevation to the Supreme Court was said to have been stalled, says the present system of judicial appointments in the constitutional courts exemplifies the „misalignment? between the core values of judicial independence and accountability. “Our current appointments system is out of step with democratic culture primarily because it lacks transparency, and provides for no oversight. Choosing judges based on undisclosed criterion in largely unknown circumstances reflect an increasing democratic deficit,” Justice Shah points out. He calls for taking lessons from other countries like the UK and South Africa where a transparent process of appointment of judges is followed, while maintaining judicial independence. “International consensus seems to favour appointments to the higher judiciary through an independent commission,” he says. Probably, that is why former Delhi High Court Judge R.S. Sodhi feels the collegium system has not been able to deliver so far. He dubs it as „a total failure?, when it comes to inducting judges of quality. “Keeping the system of appointment of judges within the four walls of collegium has given rise to a lot of criticism like uncle-and-son-syndrome,” Justice Sodhi opines. (http://www.deccanherald.com 20 November 2011).

 

The anomalies are such which ultimately resulting in nepotism, favoritism and casteism although to curb these anomalies? the collegium system was devised in 1993 in the case of Supreme Court Advocates-on-record Association and others Vs. the Union of India and others, by the Supreme Court. The prime reason of Nepotism is unnecessary secrecy adopted in these appointments, and granting free hand to some individuals who are not accountable to any one of their mistakes or calm over mistakes.

Here I deem it appropriate to quote a passage from a judgment of Supreme Court reported in (2010) 7Supreme Court Cases 502 = STPL (Web) 539 SC 7 Hari Singh Nagra Vs. Kapil Sibal where the Court while dealing a contempt plea raised against Sri Kapil Sibal had observed; “There is no manner of doubt that Judges are accountable to the society and their accountability must be judged by their conscience and oath of their office. Any criticism about the judicial system or the judges which hampers the administration of justice or brings administration of justice into ridicule must be prevented. The contempt of court proceedings arise out of that attempt. National interest requires that all criticisms of the judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by any partisan spirit or tactics. There is no manner of doubt that freedom of expression as contemplated by Article 19(1) (a) of the Constitution is available to the Press and to criticize a judgment fairly albeit fiercely is no crime but a necessary right. A fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute contempt. In fact, such fair and reasonable criticism must be encouraged because after all no one, much less Judges, can claim infallibility.”

The cases of anomalies in appointment of judges are great in numbers;

I will try to figure it out one by one in the following paragraph.

1. Under Article 124(2) and Article 217(1) of the Constitution, a judge of Supreme Court/ High Court has to be appointed by the President after „consultation? with the Chief Justice of India (CJI). The government was not bound by the CJI?s recommendation. But in 1993, the Supreme Court introduced the collegium system, taking over primacy in appointments to higher judiciary. A nine-judges Constitution Bench in 1998 ruled that “consultation” must be effective and the chief justice’s opinion shall have primacy. Now India is the only nation in the world where judges appoint judges. In 2008, the Law Commission favoured restoration of pre-1993 position. 2. Law Commission of India in its report no.230, submitted to the Govt. of India on 5.8.2009 under the heading “REFORMS IN THE JUDICIARY – SOME SUGGESTIONS” stated in Para 1.3 and 1.4 as under;

1.3 As a matter of practice, a person, who has worked as a District Judge or has practiced in the High Court in a State, is appointed as a Judge or has practiced in the High Court in a State, is appointed as a Judge of the High Court in the same State. Often we hear complaints about “Uncle Judges”. If a person has practiced in a High Court, say, for 20-25 years and is appointed a Judge in the same High Court, overnight change is not possible. He has his colleague advocates – both senior and junior – as well as his kith and kin, who had been practicing with him. Even wards of some District Judges, elevated to a High Court, are in practice in the same High Court. There are occasions, when advocate judges either settle their scores with the advocates, who have practiced with them, or have soft corner for them. In any case, this affects their impartiality and justice is the loser. The equity demands that the justice shall not only be done but should also appear to have been done. In government services, particularly, Class II and upward, officers are not given posting in their home districts except for very special reasons. In any case, the judges, whose kith and kin are practicing in a High Court, should not be posted in the same High Court. This will eliminate “Uncle Judges”. 1.4 Sometimes it appears that this high office is patronized. A person, whose near relation or well-wisher is or had been a judge in the higher courts or is a senior advocate or is a political high-up, stands a better chance of elevation. It is not necessary that such a person must be competent because sometimes even less competent persons are inducted. There is no dearth of such examples. Such persons should not be appointed and at least in the same High Court. If they are posted in other High Courts, it will test their caliber and eminence in the legal field. 3. The above recommendations of Law Commission and other earlier recommendations relating to subject in discussion were neither implemented nor taken care of in future appointments to the post of High Court Judges.

4. Article 217 of Constitution of India fixes no minimum or maximum age of appointment of a judge of high court, except that, he at least ten years held a judicial office in the territory of India? or in case of an Advocate, he should “at least” having ten years practice in a High Court or of two or more such courts in succession. As the Constitution had not prescribed any age limit hence this provision is used or to say misused to the advantage or to disadvantageous to the chosen few. Members of Collegium sometimes chose few individuals by charting their own norms regarding age but when the next collegium is constituted they devise new age barriers as per their own choice. Sometimes the High Court collegium chooses few bracketed in certain age group but Supreme Court finds them not suitable because of lesser in age or crossed the upper age limit, but where is the rule regarding age limit nobody knows. The rule rests with the new incumbent or the person who had divested the office and here comes into play the nepotism, bias, favoritism and predisposition. Nobody can question the choices of diverse ages at different era because there are no universal governing rules or standard guidelines available to do justice to do appointments upon such high judicial office. No clear cut guidelines and norms for selection of persons for the coveted post of High Court Judgeship e.g. no fix minimum or maximum age limits, which result in selection of a candidate of any age at no point and rejection of another candidate who is bracketed in the same age group at another point of time. One group of selectors has one type of rules and the next set of selectors work out their own rules as per their own exigency.

5. Although for appointment of High Court Judges no reservation rules apply as are applicable upon other services, because it is a constitutional office, but it appears that while panel is being prepared equilibrium tried to be struck between upper castes, OBCs, SCs. NO guiding features are available anywhere to apply the reservation in appointment of High Court Judges. Interestingly Chapter V of Part VI of Constitution does not prescribe any such condition to be followed. But it is a regular feature that relaxations of various natures are being granted to the persons belonging to the above reserved categories. Although Apex Court as well as High Courts is very strict in implementing back door entries in Public Services (Uma Devi’s Case is the latest such law laid down by Supreme Court) where rules were not followed and appointments are made at the whims and fancies of persons sitting at the helm of the affairs.

6. In Para-32 of Special Reference No.1 of 1998 RE, (1998) 7 SCC 739 the Supreme Court lays down,

“Similarly, if in connection with an appointment or a recommended appointment to a High Court, the Views of the Chief Justice and senior judges of the High Court, as afore stated, and of Supreme Court judges knowledgeable about that High Court have not been sought or considered by the Chief Justice of India and his two senior most judges, judicial review is available. Judicial review is also available when appointee is found to lack eligibility.”

7. The dictionary meaning of word eligibility is “allowed by rules or laws to do something or to receive something”. As stated earlier the only eligibility criteria laid down for appointment to High Court is about practice or held a judicial office for ten years under Article 217 of Constitution of India which fixes no minimum or maximum age of appointment of a judge of High Court, except that “he at least ten years held a judicial office in the territory of India” or in case of an Advocate, he should “at least” having ten years practice in a High Court or of two or more such Courts in succession. It means the only qualification required, by the Constitution, for the appointment upon the post of Judge of a High Court is that if someone attains ten years of practice or holds a judicial officer’s post in a State deserves to be appointed as judge of High Court. But some other eligibility criteria are also there which are not written anywhere but are religiously practiced; here lies the legroom for compromises which generate suspicion in terms of integrity and quality, as expressed by Jurists like Fali S Nariman etc. There are no written guidelines for undertaking the exercise. If the same would have been there the doubts could easily be rebutted as just tomfoolery.

8. The administrative burden of appointing judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees lacks any scrutiny.

9. Collegium is a closed-door affair without a formal and transparent system.

10. The limitation of the collegiums? field of choice to the senior-most judges from the High Court for appointments overlooking several talented junior judges and advocates.

Farman NaqviThe author is practicing lawyer at Allahabad High Court, can be contacted at naqvifarman@yahoo.com

 

#India – Govt okays amendments to manual scavenging eradication bill


May 1, 2013New Delhi: The government today approved amendments to a bill that seeks to eradicate manual scavenging.

The Union cabinet, at a meeting chaired by Prime Minister Manmohan Singh, approved official amendments to The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012.

End to manual scavenging. AFP

End to manual scavenging. AFP

The amendments include provisions like mandatory inclusion of women in vigilance committees at district, state and national level and a survey to identify manual scavengers.

“The words insanitary latrines and manual scavengers define taking into account real situation on the ground,” Finance Minister P Chidambaram told reporters in New Delhi.

The bill was introduced on 3 September 2012 and it was referred to the Standing Committee on Social Justice and Empowerment.

The Standing Committee reported to the Lok Sabha and Rajya Sabha in March 2013 and this bill will now be introduced in Parliament.

Chidambaram said the Bill was introduced in Parliament last year and now officials amendments will be included in it.

The bill also has the provision for setting up committees at various levels.

“The provision for constitution of vigilance committee in each district and sub-divisions and a state level monitoring committee and a central-level monitoring committee, it is mandatory to have representation of women in these committees,” he said.

PTI