#India – Judges have to watch their scorecard


V. VENKATESAN

The deplorably small number of judgments by Justice Cyriac Joseph, especially when courts have a huge backlog of cases, is valid enough reason for concern at his suitability for the National Human Rights Commission

The Indian Supreme Court is an extraordinarily powerful institution in the world. It can make and unmake laws; it can keep the executive accountable, and seek to ensure the autonomy of institutions. It can rewrite the Constitution the way it wants, through its creative interpretation yet remain largely unaccountable for its omissions and commissions. Its collegium has the responsibility to choose judges to fill its own vacancies, but it sees little merit in adopting an open and transparent process while exercising it.

As a result, very little is known about the merits of a judge, before he or she is appointed to the Supreme Court, unless there are serious allegations damaging to the judge’s integrity. There is a vast pool of post-retirement jobs that awaits a retiring judge from the Supreme Court, in the form of membership of statutory tribunals and commissions, yet there is no mechanism to evaluate the suitability of former judges to these bodies.

The Government’s proposal to nominate the former judge of the Supreme Court, Justice Cyriac Joseph, to the National Human Rights Commission (NHRC), has brought into focus the issue of performance-evaluation of a judge.

While the members representing the Government on the NHRC selection committee appear to have favoured his nomination, the two members belonging to the Opposition, Ms Sushma Swaraj and Mr. Arun Jaitley, have submitted dissenting notes pointing to an adverse report of an intelligence agency about the unsuitability of the proposed nominee on the basis of his tenure at the Supreme Court.

Facts

The facts regarding Justice Joseph can be gathered from the Supreme Court’s website.

He authored exactly seven judgments during his tenure, from July 7, 2008 to January 27, 2012. However, he was a signatory to as many as 309 judgments, and 135 orders, all authored by his colleagues on the Bench. The website lists the judgments and the orders authored and/or signed by a judge together, and it requires considerable effort to identify those which were authored and not merely signed by a judge, as the author’s name is affixed on the top of a judgment.

Thus, Justice Joseph authored concurring judgments in two cases, namely, Action Committee, Unaided Private Schools & Ors v. Director of Education & Ors (August 7, 2009), and Haryana State Warehousing Corporation v. Jagat Ram (February 23, 2011). His judgment in the Action Committee, Unaided Private Schools seems to have been necessitated because of the compulsion to resolve the disagreement between the other two judges on the Bench, Justices S.B. Sinha and S.H. Kapadia. Justice Joseph opted to agree with Justice Kapadia in order to help arrive at the ratio of the judgment.

The website also shows that Justice Joseph wrote judgments in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi (December 16, 2010), State of Haryana & Ors v. M/s Malik Traders (August 17, 2011), Deepa Thomas & Others v. Medical Council of India & Others (January 25, 2012), Mohd.Asif v. State of Maharashtra (January 27, 2012), and A.V. Padma v. R.Venugopal (January 27, 2012).

Evaluation

Critics of the Government’s efforts to nominate Justice Joseph to the NHRC have pointed to the number of judgments authored and delivered by him as the factor weighing against him.

While they have a case against him, it has to be admitted that the number of judgments written by a judge alone cannot be a determining factor about his or her competence. As the Supreme Court mostly sits in benches of two or three judges, the senior-most on a bench decides once the hearing is complete, who among them will write the judgment, depending on the interest of the judge. The judge writing the judgment, then circulates the draft for the perusal of the other judge/s, who are then free to agree, or write concurring judgments, or dissents. Superfluous, concurring judgments can make the process of arriving at the ratio of a judgment challenging, and leave the litigants confused. But that cannot be an excuse for a judge to avoid judgment-writing altogether.

Scholars of the Supreme Court have never attempted to evaluate the performance of each judge, on the basis of the number of judgments and orders authored by him or her. It is probably because such a study is likely to lead to comparison, and the drawing of inferences regarding the competence of a judge, which may invite the charge of contempt of court.

George H. Gadbois Jr., who made a seminal contribution compiling the biography of the judges in his recent book, Judges of the Supreme Court of India, 1950-1989, is also silent on this aspect. He perhaps thought that compiling such data could only aim at evaluating the importance or contributions of a judge, which he has consciously avoided.

What data shows

When Justice Joseph joined the Supreme Court in 2008, the strength of the Court rose from 26 to 31, following a Constitutional amendment. Based on the number of judges, the average number of judgments and orders written by each judge could be easily arrived at, given the total number of judgments and orders in a calendar year.

Thus between 2008 and 2012, the average number of judgments and orders per judge varied from 88 (2008) to 27 (2012). The average was just nine in 1955, 14 in 1959, 25 in 1969, 17 in 1977, 15 in 1987 and 71 in 1996. During this period, the strength of the Supreme Court kept on increasing from: eight to 11 (1956), 14 (1960), 18 (1978), and 26 (1986).

Based on this data, it would be hazardous to infer the competence of a judge/judges in a particular year or era. As Gadbois would put it, some of those judges were giants who will be remembered a century from now. Others, to quote Gadbois again, are blips on the radar screen, sidebars to the history of the Supreme Court, likely to be recalled only by the closest of court watchers. In the history of the Supreme Court, some judges are celebrated merely because of their salient contributions to the interpretation of the law and the Constitution, and not because they wrote more judgments than their colleagues.

Yet, the number of judgments written by a judge cannot be dismissed as being irrelevant, especially in the context of the Court’s efforts to limit its own backlog of cases. If the number of judgments authored by a judge is deplorably and consistently below average, then it is an important factor in the evaluation of a judge. The concerns that such a judge may prove to be unequal to the demands of an institution like the NHRC are valid.

A test for government

The Supreme Court, in its March 3, 2011 judgment, set aside the appointment of Mr. P.J. Thomas as Central Vigilance Commissioner, even though the majority in the selection committee had recommended him. The Court quashed his appointment by emphasising the concept of institutional integrity. The key test for institutional integrity, it said, is to ask whether the incumbent would or would not be able to function and whether the working of the institution would suffer following the appointment. This test is as relevant in the appointment of Justice Joseph, as it was in the case of Mr. Thomas.

The Supreme Court held in the same judgment that if the selection committee decides to overrule any dissent while recommending a person for the appointment, it should record clear and cogent reasons for doing so.

In April, the Government appointed Mr. S.C. Sinha, Director of the National Investigation Agency to the NHRC, overruling dissent within the selection committee, pointing out that he did not have the knowledge, or practical experience in matters relating to human rights, as required under the Human Rights Act.

The reasons why the majority in the selection committee overruled the dissent have not been made public, and it is not known whether the Supreme Court’s directive has been complied with.

The appointment of Justice Joseph will constitute another test of legitimacy for the Government.

venkatesan.v@thehindu.co.in

 

Seeking public endorsements for Protest Statement regarding NHRC MEMBER selections.


Please see theprotest statement opposing the selection of former NIA Chief   S C Sinha and Justice Cyriac Joseph to the NHRC.
ON The NIA Chief an IPS Officer is being appointed as member NHRC under the category which as per law is  meant for human rights activists.
Justice Cyriac Joseph’s selection is being opposed on ground of the sexist and anti woman bias displayed during his years of Judgeship. Further there is nothing to show any expertise in human rights or interest during his years on the Bench, whereas there is evidence to the contrary.
As long as NHRC is staffed by such persons it will not discharge its mandate. If you agree with the statement please endorse the same. Let us try and reclaim these institutions.
PLEASE NOTE : ENDORSEMENTS ARE TO BE SENT ONLY TO
Vikash Kumar <vikash@wghr.org.

Public Statement Opposing Selection of Mr. S.C.Sinha (IPS – former NIA Chief) and Justice Cyriac Joseph (former Judge of Supreme Court of India) to the NHRC

As members of human rights organisations, women’s rights groups, lawyers, academics and activists, who are engaged with a range of human rights issues we express our strong opposition and disagreement with the recent selections of new members to the National Human Rights Commission (NHRC). We assert that the guiding principles for appointing members to the NHRC are: that they must be persons with a proven track record and experience in the field of human rights; the composition must reflect the plurality and diversity of peoples, particularly the vulnerable and marginalised communities in the country; and the process must be transparent and the appointments credible and must inspire confidence.

We are disturbed to learn from media reports that the Appointment Committee of the NHRC has completed its selection process for the two positions which became vacant with the retirement of Mr. P.C. Sharma (IPS retd.) on 27th June 2012 and Justice G.P. Mathur on 18th Jan’ 2013, with the selection of:

[i] Mr. S.C. Sinha, Former Chief of the National Investigating Agency [NIA]

[ii] Mr. Justice Cyriac Joseph, Former Judge of  the Supreme Court of  India who retired on 27thJan’ 2012

It is noteworthy that serious and credible objections have been raised against these names by 2 members of the statutory Appointments Committee of the NHRC viz. the Leader of the Opposition in the Lok Sabha and the Leader of the Opposition in the Rajya Sabha.

The Paris Principles 1993 prescribe the minimum standards required by national human rights institutions to be considered credible and to operate effectively, among which the composition of the Commission is crucial. The Paris Principles underscore pluralism, diversity and transparency. The International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights Sub-Committee on Accreditation (ICC-SCA), has on 9th June, 2011, recommended that the limited recruitment process of the Indian NHRC be altered as it restricts diversity and plurality in membership.1The UN Special Rapporteur on the situation of Human Rights Defenders, Margaret Sekkagya, after an official country visit to India has also recommended “that the functioning of the national commission be strengthened by, inter alia, broadening the selection criteria for the appointment of the Chair and diversifying the composition of the Commission, including regarding gender”2.

It is important to highlight that the vacancy created by the completion of tenure of Mr. P.C. Sharma IPS [Retd.], belongs to the category under Sec. 3(2)(d) of The Protection of Human Rights Act, 1993, which provides for, ”two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights’.

It is indeed shocking and shameful that the government has selected a former IPS police officer, Mr. S.C. Sinha, former NIA Chief, as member of NHRC under this clause. It is a matter of record that the highest number of complaints received by the NHRC annually are against police torture, harassment and brutality. This appointment is in contravention of The Protection of Human Rights Act, 1993, the Paris Principles, and amounts to an abuse of power. In a country that boasts of a large number of prominent human rights and women’s rights activists, the appointment of a Police Officer under this category, is unacceptable and deserves to be set aside.

The consistent violation of the mandate of the Protection of Human Rights Act, the Paris Principles and the principles of pluralism and diversity is apparent from the following facts:-

1.      The NHRC, India has hitherto been only comprised – other than the judges appointed to it – by representatives who are retired senior bureaucrats – IAS, IPS, IRS, IFS etc.;

2.      NHRC, India has been ‘advised’ in the recent ICC recommendations that the NHRCI has not had a woman member for the past 8 years;

3.      There is no one representing the members of the SCs and STs or Minorities on the NHRCI as of now;

4.      Further, there has also not been a single member representing civil society since the inception of the NHRC, India.

We wish to underscore the fact that for over 19 years, since the constitution of the NHRC there has not been a single representative from the human rights, women’s rights or democratic rights movement, appointed to the NHRC, despite a very vibrant and active civil society movement in the country society. The members of the NHRC have on each occasion been selected from retired IAS, IPS, IFS, and IRS etc. The list of persons who have in the past been appointed against this particular category of statutorily reserved for persons engaged with human rights is enclosed as Annexure A. Conspicuous by their absence from this list are human rights and women’s rights activists. No person belonging to the Scheduled Caste or Scheduled Tribe has ever been appointed as a member of the NHRC. NHRC records themselves reveal that dalits, adivasis, religious minorities and persons from the North-East face severe violations and deprivations, yet not a single activist from these constituencies has ever been appointed to the NHRC.

It deserves special mention that for the last 8 years and 7 months, since 27th Aug’ 2004, when Justice Ms. Sujata V. Manohar, completed her term, i.e. 8 years and 7 months ago, no woman has ever been appointed as a memebr of the NHRC. This glaring fact reflects not only the embedded prejudice that operates in myriad ways to exclude women but also violates the constitutional mandate of equality and non discrimination. It is distressing and unpardonable that at a juncture when the Justice Verma Committee Report has observed that violence against women is a manifestation of the discrimination and inequality suffered by women, the government is still reluctant to discharge its obligation and continues to deprive women of equal opportunity. The ICC-SCA, in General Observations 2.1 interpreted the Paris Principles as: Ensuring Pluralism, and “further emphasizes that the principle of pluralism includes the meaningful participation of women in the National Institution”.

We have also learnt that the Appointments Committee has selected Mr. Justice Cyriac Joseph, who had retired from the Supreme Court of India on 27th January 2012, to fill the vacancy in the category of a member who is or has been a Judge of the Supreme Court of India. It is apparent from a holistic reading of The Protection of Human Rights Act, 1993, that any interpretation of this clause for purposes of appointment to the NHRC, would inherently require that the Judge must have an established and credible record of respecting, protecting and promoting human rights. Further there should not even be a whisper of allegation against him of discrimination or prejudice against women, dalits, religious or ethnic minorities and others. Any such allegation in his personal or public life, should disqualify the Judge from membership of the NHRC. Moral integrity demands not only that the member of the NHRC should not be monetarily corrupt but that he should be free of bias and should have an abiding faith and resolve in the charter of human rights and principles of equality.

It is to be recalled that Justice Cyriac Joseph was earlier selected to be appointed as the Chairman of Telecom Disputes Settlement Appellate Tribunal (TDSAT), New Delhi after Justice S. B. Sinha. Justice Sinha during his judgeship was known for being a workaholic. But due to some ‘reports’ from an “agency” to the Chief Justice before taking a final decision on Justice Joseph’s appointment to the TDSAT, but contained  ‘observations’ on the former judge’s “style of functioning”. In particular, the report had commented on alleged delays in delivering verdicts. It is now known that during his period of service of 1300 days on the Supreme Court from 7th July 2008 to 27th January 2012, J. Cyriac Joseph delivered only 10 judgments in all on the following dates : 18th October 2011, 14th November 2011 (3 judgments), 15th November 2011, 16th December 2011 [ 2 judgments] 25th January 2012 and 27thJanuary 0212 [ 2 judgments]. How a Judge found unfit for the post of TDSAT chairman owing to his working style is fit for membership of the NHRC is inexplicable. The spate of violations experienced by people across the country demands from the members of the NHRC very high levels of integrity, commitment and efficiency, as the right to life and dignity of the most disadvantaged is at stake.

We invite your attention to Article 51A of the Indian Constitution which requires that all citizens renounce practices derogatory of women. This is particularly expected of judges who swear on oath of allegiance to the constitution.

A judge both in his judgments and in his conduct in court is expected to be respectful of women including women lawyers. Justice Cyriac Joseph is reputed to have made extremely derogatory remarks in the presence of women lawyers during the course of arguments in court causing harassment to them. That apart, it has been alleged against him that he attempted to interfere with pending investigations in a criminal prosecution for murder of a nun Sister Abhaya  in Kerala by visiting the forensic laboratory where analysis of the narco analysis test of the accused was being conducted, while he was a sitting judge of the Supreme Court of India. The Kozhikode Bar Association passed a resolution against Justice Cyriac Joseph demanding an investigation into his role and suspending him from work for that period.

Far from demonstrating a track record of commitment to human rights he has demonstrated a derogatory attitude towards women. Such a person cannot be considered to be qualified for appointment as a member of the NHRC.

We therefore urge the government to immediately rescind both the selections made to the NHRC as the same violate the letter and spirit of The Protection of Human Rights Act, the Paris Principles and make a mockery of the mission and purpose of the NHRC. These appointments do not stand the test of credibility, transparency and plurality. It is imperative that a woman member actively engaged with human rights, and associated with the most marginalized communities is appointed to the NHRC to rectify the continuing imbalance and non-representational character of this institution. The government, to inspire confidence amongst the people of India in the NHRC, needs to demonstrate the track record of individuals that qualifies them for membership of the NHRC. If the government is also serious about retaining the global credibility of the NHRC appointing individuals such as Justice Cyriac Joseph and Mr. S.C. Sinha as members will once again call the attention of the International Coordinating Committee of National Institutions to the serious flaws that mark the appointment process for the NHRC. The damage that can be caused by such ill-advised appointments can even lead to the downgrading of the NHRC from the ‘A’ status that it currently enjoys.

Endorsed by:

Vrinda Grover, Lawyer, Delhi

Miloon Kothari, Convenor, WGHR

Kamayani Bali Mahabal, Human Rights Activist, Mumbai

1 International Coordinating Committee of National Institutions for the promotion and protection of Human Rights, Report and Recommendations of the Session of the Sub-Committee on Accreditation — 2011, ICC: Geneva, pp. 13-15. Available at:http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Documents/SCA%20REPORT%20MAY%202011%20-%20FINAL%20%28with%20annexes%29.pdf

2 A/HRC/22/47 , para 52

#India -SC sets aside 2009 ruling, says kicking daughter-in-law is not Cruel #goodnews #Vaw


NEW DELHI: Four years after it shocked women by ruling that kicking a daughter-in-law was not an act of cruelty as defined under Section 498A of Indian Penal Code, the Supreme Court on Thursday erased it from court records.

Allowing a plea by National Commission for Women (NCW), a bench of Chief Justice Altamas Kabir and Justices P Sathasivam and G S Singhvi set aside the July 27, 2009 judgment by which it had quashed the charges under Section 498A against Bhaskarlal Sharma and his wife Vimla Sharma who were summoned by the trial court for allegedly kicking their daughter-in-law Monica Sharma.

A bench of Justices S B Sinha and Cyriac Joseph had said in the 2009 judgment, “Allegations that appellant No.2 (Vimla) kicked the respondent (Monica) with her leg and told her that her mother is a liar may make out some other offence but not the one punishable under Section 498A.

“Similarly, her allegations that the appellant No.2 poisoned the ears of her son against the respondent, she gave two used lady suits of her daughter to the complainant (Monica) and has been giving perpetual sermons to the complainant could not be said to be offences punishable under Section 498A.”

However, if the mother-in-law takes away the gifts given to the couple at the time of the marriage, it amounts to ‘breach of trust’ as specified under Section 406 IPC, the bench had said.

Appearing for NCW, senior advocate Indu Malhotra on Thursday argued that if allegations of physical violence and taking away of ‘stree-dhan’ (valuables of the bride) did not constitute an offence under Section 498A of IPC, then it would send a very wrong signal and have retrograde effect on the object of the provision to curb violence and cruelty against women in matrimonial homes.

Malhotra argued that the complaint filed by Monica Sharma against her in-laws was quashed by the apex court when the matter was at the initial stage of issuance of summons by the trial court. “This will send a very wrong signal,” she said.

Solicitor general Mohan Parasaran, appearing for the government, supported the NCW’s plea for setting aside of the judgment and requested the court to consider the petition filed by Bhaskarlal Sharma and his wife Vimla Sharma afresh.

Vimla’s counsel U U Lalit questioned the locus standi of NCW in a criminal case and said the apex court did not rule that kicking of a daughter-in-law was not an offence under Section 498A but merely said after appreciating the entire evidence that a case of cruelty against the daughter-in-law was not made out.

But the bench agreed with Malhotra and Parasaran, recalled its July 27 judgment and posted the matter for fresh hearing before another bench.

 

 

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