#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

 

#India- UP judge accused of molesting two girls in his office #WTFnews #Vaw #judgemolester


 #India-Towards a Decisive Victory in the Historic Battle for Women’s Rights

Reported by Anant Zanane, Edited by Sindhu Manjesh | Updated: January 23, 2013

Gonda, Uttar PradeshA judge in Uttar Pradesh has been accused of molesting two girls in his chambers at a court in  Gonda district, a two-hour drive from the capital of  Lucknow.

The two separate incidents allegedly took place on Monday.

The girls filed independent police complaints in which they allege that the judge made them undress and touched them inappropriately, claiming that he was trying to determine whether they are minors or younger than 18.

The girls were deposing before the judge in two separate cases of kidnapping that were lodged by their families after they had allegedly eloped. They had been summoned before the court to give their statements, which would have been used as evidence.

The police says that to register a case against the judge, it needs permission from the Allahabad High Court, which is awaited.

Lawyers boycotted the court in Gonda and vandalised the judge’s chambers, demanding his arrest.

 

Sanction pension to mentally challenged person: Madras High Court #good news




CHENNAI : Coming to the rescue of a mentally affected person who was denied disability pension, the Madras High Court has directed the authority to sanction the pension in three months.

Disposing of a writ petition filed on behalf of him, Justice N. Paul Vasanthakumar concurred with petitioner’s counsel that the mentally affected individual was also entitled to get ‘Physical Disability Pension.’

The Judge also pointed out that the government had removed income limit for receiving such pension.

The writ petition was filed on behalf of C. Rajamani (46) of Jodukuli village in Salem district by his brother C. Saravanan, contending that Rajamani was denied pension even after authorities had issued Disability Certificate stating that he had mental disability to the extent of 65 per cent.

An application, submitted by him to Special Tahsildar, Social Security Scheme, Omalur, on June 28, 2010 seeking grant of pension, was rejected on the ground that his mother was getting pension and that the applicant had landed property.

M.R. Jothimanian, counsel for the petitioner, submitted that the income limit mentioned earlier was removed by the government from the financial year 2010-2011 and therefore the petitioner was entitled to get such pension.
When the petitioner again submitted an application, it was rejected on the ground that being a mentally disabled person, the petitions did not come in the category of ‘Physically Disabled Person.’

The counsel also submitted that the issue was clarified by the Deputy Director of State Commissionerate for Physically Disabled Persons, through his proceedings in 2012 stating that “if a person is mentally disabled, he is also entitled to get Physical Disability Pension.”

The counsel further said that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 also defines that physical disability includes ‘mental illness’ and therefore, the petitioner was entitled to get ‘Physical Disability Pension’ at the rate of Rs.1,000 per month.

After hearing the submissions, Mr. Justice Paul Vasanthakumar said, “Considering the said submission and having regard to the Certificate issued by the District Disabled Rehabilitation Officer, Salem, and in the light of the order dated June 28, 2010 removing the income limit, the impugned orders cannot be sustained.”

Setting aside the impugned orders, the Judge directed the Special Tahsildar to sanction pension to the petitioner within three months.

The court also permitted Mr. Saravanan to get pension on behalf of him, after getting orders in the Original Petition which was already filed in the District Court, Salem for appointing him as a guardian.

 

source: The hindu

 

#India- Bombay HC -‘Something is wrong somewhere’ #Vaw #Acidattack


xourtesy- rishabh arrora illustration -tehelka

By , TNN | Dec 13, 2012,

MUMBAI: Referring to the recent attack on a Kandivli woman with an insecticide spray, the Bombay high court on Wednesday lamented the general lack of fear of the law-and-order machinery, saying “something is seriously wrong somewhere”.
A division bench of Justices V M Kanade and P D Kode made the observation as it heard a suo motu public interest litigation (PIL) on safety and security of women. The PIL was taken up a little after the same bench confirmed the death sentence of two persons for raping and killing aBPO employee in Pune in 2007.Expressing concern over the assault on a woman in Kandivli, the high court wondered what causes such attacks. “Something is seriously wrong somewhere. There was a time… (when) the presence of even a single constable was sufficient to deter (criminals). Now, nobody is afraid,” said Justice Kanade.

A neighbour burnt the face of 23-year-old housewife Shraddha Langde on Tuesday morning by pressing open an insecticide spray at her and then clicking a lighter in front of it.

At the previous hearing of the PIL on Monday, the high court took note of the increasing cases of eve-teasing and of instances where people attempting to protect women were assaulted, even murdered.

On Wednesday, public prosecutor Revati Mohite-Dere submitted that the Supreme Court, while dealing with the issue of eve-teasing on November 30, had laid down guidelines for states and union territories to follow. “Until legislation on the issue is introduced, the apex court has set out measures to curb eve-teasing,” she said. In their order, the high court judges said that, in view of the SC guidelines, “it is not necessary for this (high) court to again lay down further guidelines”.

On the subject of providing security to women, the court will hear the state at the next hearing on December 19 or after the Christmas vacation. The government has been asked, if possible, to file a reply.

 

‘No accused doesn’t mean there was no gangrape’ #VAW #Justice


 

 

Gujarat EDN

DNA  04SEP2012

‘No accused doesn’t mean there was no gangrape

Judge ordered govt to pay a rape victim Rs5 lakh as compensation
DNA Correspondent l Ahmedabad

Delivering the verdict in the Naroda Patia massacre case, the special court observed that gang-rapes had taken place during the riot and, in the case of at least one woman, the prosecution had failed miserably to nail the culprits.

The court said that witnesses’ accounts, including that of a victim of gang-rape who had narrated her harrowing experience, indicated that rapes and gang-rapes had taken place in Naroda Patia that day.

“The prosecution has miserably failed to bring on record as to who committed the gang rape on the woman. There is, in fact, no material to believe that she has narrated an imaginary incident,” the court said while ordering the state government to give Rs5 lakh to the woman as compensation. The court further said that when a gang-rape is not proved for want of evidence, it does not naturally follow that gang rape had not taken place.

The special judge refused to accept that just because there was no doctor’s report or injury certificate proving a gang-rape it meant that the gang-rape had not taken place. “Subscribing to this view would amount to turning the face from the hard realities of life,” the court said.

Expressing sympathy for the woman, the court said that when the victim woman was not implicating any of the accused in the incident, it was clear she did not have any other intention in narrating what had happened, except to express her hurt at the violation of her human rights.

“The loud cries of such a victim of crime, if not heard by the system, is a mockery of justice,” the court said.

 

 

Judge attacks forced marriage that put disabled woman ‘at risk’ #goodnews


 

A judge has said the forced marriage of a Muslim woman with learning difficulties should be annulled and condemned the “insulated” families who arrange them.

Daily Life: 3rd prize singles: Andrew Biraj, Bangladesh, Reuters. Overcrowded train approaches station, Dhaka, Bangladesh

An overcrowded train approaches station, Dhaka, Bangladesh Photo: Andrew Biraj, Bangladesh, Reuters
Martin Beckford

By , Home Affairs Editor, The Telegraph

5:00PM BST 16 Aug 2012

Mrs Justice Parker also criticised doctors and social workers for failing to raise the alarm when the woman was sent to Bangladesh to be married to a cousin, which allowed him to settle in England.

She said video of the wedding ceremony showed the bride was “almost comatose” and needed help to repeat vows she did not understand, while her relatives had made “false and misleading” statements about her condition.

And the judge brushed aside claims by the woman’s parents that having her marriage annulled would bring shame upon their family, in a case that was even considered at by the Government’s most senior lawyer, the Attorney General.

Mrs Justice Parker said that forcing marriage on someone who lacks mental capacity is a “gross interference” with their dignity and autonomy, particularly as it means having sex and possibly becoming pregnant without being able to consent.

Under the far-reaching powers of the Court of Protection, which can make life-or-death decisions on behalf of those deemed unable to understand them, the judge ruled that the woman’s foreign marriage should not be recognised as valid in England. She also declared it would be in the woman’s “best interests” for a nullity application to be issued.

“The communities where this is likely to happen also need to be told, loud and clear, that if a person, whether male or female, enters into a marriage when they do not have the capacity to understand what marriage is, its nature and duties, or its consequences, or to understand sexual relations, that that marriage may not be recognised, that sexual relations will constitute a criminal offence, and that the courts have the power to intervene.”

According to the recently published judgment, the woman – known only as DD to protect her identity – has a “very significant degree of learning disability” and needs help with almost all daily tasks.

In 2003 she married a cousin in Bangladesh and after two failed attempts he was granted a spousal visa in 2009, allowing him to move in with his wife at her family home in an English town.

“Eventually” the local authority found out about the situation and police obtained a Forced Marriage Protection order, leading to experts giving evidence on her capacity.

The judge said the council has “accepted its failures” while the woman’s GP had not raised concerns despite being asked on at least three occasions about “marriage and pregnancy”.

At a hearing in 2010 the judge ruled, “in the face of very strong resistance” from relatives, that DD lacked the capacity to marry or consent to sex and that it was unlawful for her husband to have intercourse with her.

Evidence was then considered as to whether or not the marriage should be annulled, leading to the latest ruling.

The judge said the woman lived in a “very traditional family” in a “close-knit community” that was not integrated with other Bengalis in the area.

“Her parents are very largely insulated from mainstream English society and are mistrustful of non-Bengalis. They do not communicate well in English: her mother understands and speaks almost none. They are devout Muslims.”

The judge said DD was a “loved and valued member of her family and that her parents are devoted to her”, and that in their culture it is seen as parents’ duty to arrange marriages and find spouses for disabled children.

Her mother, father and husband “begged” the judge not to quash the marriage as “there would be considerable stigma in Bangladesh for them”.

But Mrs Justice Parker insisted the bride “does not have even the most basic understanding of marriage” and she “rejected” her family’s account of how the wedding came about.

She said the union had “exposed her to great risk” and led to family tensions as well as conflict with social services who look after her.

 

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