Saturday, 30 August 2014
Wednesday, 20 August 2014
SOLIDARITY RALLY FOR NORTH EAST STUDENTS by PRIYA MITTAL
About 700 students arrived in school buses along with their
teaching staff at the National protest site Jantar Mantar, New Delhi on 20 August, 2014. These
students appeared in school uniforms and both boys and girls were present in
equal numbers. It was one of the most peaceful rally – no slogans; no speeches;
and announcement on mike.
The rallyists – majority of them Sikhs – were carrying
placards with the following messages in Hindi, English and Punjabi:
-
Let’s expand our mentality to stop racism
-
Is it a crime to look different
-
North Easterns Dear Brethern
-
Live and Let Live
The rally was led by the teachers; students carried a banner
with a message “Solidarity Peace March, Guru Nanak Public School, Rajouri
Garden, New Delhi”.
The rallyists marched along the
length of Jantar Mantar in a disciplined manner. The Vice-Principal of the
school, Ms. Anvinder Arora explained that the rally was organized in the wake
of increasing acts of assaults on boys and girls from North-East studying in
universities in Delhi. Prior to today’s rally the school had organized a poster
competition in the school.
Saturday, 16 August 2014
FULL COURT OF SUPREME COURT MUST APOLOGISE TO JUDGE, J-1
On 6th of November, 2013 a law student, I-1
interning under a retired judge, J-1 of the Supreme Court of India (working in
a statutory body) posted on a blog allegations that J-1 had sexually harassed
her on 24th of December, 2012. She had not named the judge. The
issue was reported in a section of the print media on 12th of
November, 2013. The Chief Justice of India (CJI) had two options before him.
Firstly to refer the case to the Complaints Committee to deal with the
complaints related to sexual harassment in the Supreme Court in existence as
per the guidelines and norms prescribed in Vishaka
& ors. Vs. State of Rajasthan & others. The second option was to refer the matter to
an internal panel of judges on the assumption that a retired judge is still a
judge of the Supreme Court and that only an internal panel of judges could
enquire into the issue. The CJI chose the second option and set up a three
judge fact finding committee to ascertain the truth of the allegations. The
panel submitted its report to the CJI on 29 November, 2013. The full report has
not been made public so far. However the operative portion of the report states
inter alia “Further the Committee is
of the considered view that the statement of the intern, both written and oral,
prima facie discloses an act of unwelcome behavior.” The purpose of this
enquiry appears to be political. Even as the three judge panel was conducting
the enquiry, aggressive articulations were made baying for the accused judge’s
blood. A State Chief Minister wrote to the President of India seeking
appropriate action against the judge who was Chairman of a State Human Rights
Commission. An Additional Solicitor General of India (ASG) asked the Prime
Minister of India to remove the judge. Even as this ASG was instrumental in
getting I-1’s affidavit published in a section of the print media. Legal
academicians of a National Law University (NLU) wanted the judge to be
disassociated from the institute. Meanwhile the Union Cabinet gave a nod for
the Presidential reference against the judge; consequently the judge resigned
both from NLU as well as the State Human Rights Commission. There is a lesson
to be learnt from the recent instance of a Gender Sensitization and Internal
Complaints Committee (GSICC) getting an enquiry conducted against two
university students accused of sexual harassment. It has specifically stated
that the two male students are not being asked to resign from students’ body
where they hold posts! Perhaps such words of wisdom should have emanated from
the Judges’ panel which inquired into the case of J-1; and this should have
been done right at the start of the inquiry.
In a
classic flip-flop the Supreme Court on 5 December, 2013 decided by a full court
that the representations made against the former judges of this court are not entertainable
by the administration of the Supreme Court! This decision came in the backdrop
of another complaint by an intern, I-2 alleging sexual harassment against
another retired judge, J-2; this complaint dated 30 November, 2013 was
addressed to the CJI.
In Vishaka &
ors. Vs. State of Rajasthan & others decided on 13/08/1997 by a three
judge bench of the Supreme Court comprising of the then CJI J.S. Verma, Sujata
V. Manohar, B. N. Kirpal prescribed guidelines and norms for protection of
women from sexual harassment at workplace. The judgement laid down that “these
directions would be binding and enforceable in law until suitable legislation
is enacted to occupy the field.”[i]
Both the judiciary and parliament failed to do the
needful in the next sixteen years. It is evident that post 1997 and up to 2013 successive
Chief Justices of India during these sixteen years are in contempt for not
implementing the Vishakha guidelines
which could have paved the way for sexual harassment cases within the precinct
of the Supreme Court. Obviously all cases of sexual harassment within this
period went unaddressed as Vishakha
guidelines were not enforced. Even then, the Supreme Court on its own motion
did not proceed to do the needful. The Court was geared into action after two
public spirited women lawyers moved a writ petition and pursuant to the Supreme
Court order dated 21.3.2013 in this petition the Complaints Committee to deal
with the complaints related to sexual harassment was reconstituted at the
Supreme Court to have eight members. True, a Complaints Committee already
existed prior to this order but the Regulations pertaining to The Gender Sensitisation
& Sexual Harassment of Women at the Supreme Court of India (Prevention,
Prohibition and Redressal) Regulations, 2013 [Supreme Court Regulations, 2013
for short] were only notified in the Official Gazette of India dated September
21 to September 27, 2013. With this mechanism finally in place the first option
was open to the CJI to get the enquiry conducted against J-1 on allegation of
I-1. But this option was not chosen. The CJI followed the second option by
ordering an internal enquiry. But by 5th of December, 2013 the full
court decided not to entertain representations made against former judges. It
also opined that as the concerned judge had already demitted office on the date
of the incident, no further follow up action is required by the Supreme Court. Ostensibly
the complaint of I-2 dated November 30, 2013 had been received in the Supreme
Court by then. Several questions need to be addressed.
1.
With in a span of
less than four weeks two retired judges of the Supreme Court facing sexual
harassment charges are being treated differently. What about the equality
before the law clause as enshrined in the Indian Constitution?
2.
If the 5th
December, 2013 decision of the full court is to be the order of the day then
shouldn’t the full court in the same breath have declared the enquiry against
J-1 to be null and void so that the two retired judges got equal treatment
before law?
J-1 was forced to
resign from his job of State Human Rights Commission; while J-2 continues to
function in a statutory body.
3.
Recently a girl
student had brought accusations of sexual harassment against two colleagues in
a reputed university. There is no reason to assume that a similar situation
cannot happen in the courts. Consider a Tribunal constituted by two members one
of whom is a retired judge of the Supreme Court and the other an executive
member (non-judicial). Charges of sexual harassment against the two members get
addressed differently – an internal enquiry by the Supreme Court judges against
the retired Supreme Court judge in the Tribunal (as happened to J-1); and the
executive member would be ostensibly covered under The Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [Sexual Harassment
Act, 2013 for short] which came into force on 9.12.2013. To avoid incongruity
would it not be fair that both judges are enquired into under GSICC?
4.
How would the
charges of sexual harassment on CJI be tackled? Who would constitute the
internal panel of judges in such a situation? Or is it being assumed that CJI
is not prone to such indiscretions. (Accusations of sexual harassment have
recently been leveled against a sitting judge of a High Court. Sitting judges
of the Supreme Court including the CJI could be facing such accusations.)
Should not the CJI and all sitting judges also be covered under GSICC?
5.
Presently the
Supreme Court selects judges through the collegium method – that is judges
appoint judges. The same Court – in case of sexual harassment against a judge
constitutes an internal panel (a sort of mini-collegium). Would this repose any
faith in the minds of people that justice would be done to the victim?
6.
Presently I-2
filed a writ petition before the Supreme Court seeking inter alia, the setting up of a permanent mechanism in the Supreme
Court to redress sexual harassment at the work place for women by all judges,
retired or occupying office. On 15 January, 2014 a notice was issued to
concerned parties. Till the case is decided how are retired and sitting judges
of the Supreme Court to be dealt with in cases of sexual harassment? What if
the case of I-2 takes years to decide?
7.
J-2 continues to
retain his job even as accusations were made against him because the High Court
of Delhi granted injunction against the media from publishing defamatory
allegations against him without stating that they were mere allegations. Ironically
both the Supreme Court Regulations, 2013 and the Sexual Harassment Act, 2013 have
an inbuilt injunction against the name of the complainant, respondent and
witnesses being made public; the only exception is if the complainant writes to
the complaints committee under the aforementioned regulations/law that the name
of the respondent can be made public. And even then it can be made public only
if the complaints committee agrees to it. Besides it is true, of course, that
once the complaints committee finalizes its report the name of the respondent –
if found guilty – can then be made public. Is it fair that a witch hunt was allowed
to be launched against J-1 in the media by politicians, academicians of a
National Law University and by an Additional Solicitor General of India? And he
was damned even before the Internal Enquiry panel submitted its report and was
blackmailed into resigning from his post at the State Human Rights Commission.
Is this ethical? It is all too well for the ASG to use a fig leaf of an excuse
that the I-1 gave her permission to make the affidavit – which detailed the
alleged incident of sexual harassment – public. But is this what a Government
law officer expected to be doing? Shouldn’t she have resigned first before
making the affidavit public? Had the J-1 enquiry been pursued under the Supreme
Court Regulations, 2013 she would never have been able to do that. The ASG was
aware of this as she chose to go public with the affidavit. It is a pathetic
spectacle of a senior law officer of the Government throwing all caution to the
wind and making a mockery of the rule of law. This law officer’s stance was
political and in violation of all the laws in India.
8.
Meanwhile media
reports indicate that complainant Intern I-1 is not pursuing the FIR route. It
is entirely her right to choose the FIR route or opt for another mechanism. The
fact is that no FIR has been filed against J-1; no charge sheet framed and no
court trial is on way. Is it not legally perfectly in order for J-1 to be
immediately reinstated as the State Human Rights Commission and to be provided
ample compensation for the extreme mental, social and psychological trauma
caused to him?
The Supreme
Court should convene a meeting of the full court and pass a resolution formally
apologising to J-1. The Court should get the 5 December, 2013 notice removed
from the web-site as it names J-1. There is a strong case for judges in all
courts in India to face inquiry as per the Sexual Harassment Act, 2013 and if they are sitting Supreme Court judges
then under the Supreme Court Regulations, 2013 whenever a charge of sexual
harassment is brought against them at their work-place. The same should apply to
Attorney-Generals of India, Solicitor Generals, Advocates and Court appointed
Commissioners/ Amicus Curiae and Special Investigation Teams. There can be no
constitutional immunity for the afore-mentioned in cases of sexual harassment.
The victim can also opt to file an FIR under the Indian Penal Code which after
the amendments in February, 2013 now makes sexual harassment a crime punishable
by imprisonment of one to three years and/or with fine or both.[ii]
[By Dr.
Paramjit Singh Sahni. He is the Secretary of Public Interest Litigation Watch
Group. Email: pilwatchgroup@gmail.com]
[i] Vishakha has ceased to be the law of the
land after The Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013 and also the amendments to Indian Penal Code have come
into force.
[ii] The
identity of judges J-1 and J-2 and interns I-1 and I-2 are withheld as required
under the law.
Friday, 8 August 2014
THE NATIONAL LAWYERS’ CAMPAIGN FOR JUDICIAL TRANSPARENCY AND REFORMS (Press Conference at Press Club, New Delhi on 8 August, 2014)
THE NATIONAL LAWYERS’ CAMPAIGN FOR JUDICIAL
TRANSPARENCY AND REFORMS
304, Hari Chambers, 3rd Floor, 54/68 SBS Marg, Near Lion Gate, Fort Mumbai- 400 023 E-Mail: aminrohini@gmail.com, mathewsjnedumpara@gmail.com
Cell # +91 98205 35428
|
|||||
Mathews J. Nedumpara
President
|
Mrs. Rohini M. Amin
Vice President
Mumbai
|
Ms. Sophia Pinto Vice
President
Bangalore
|
K. Lingaraja
Vice President Delhi
|
A. C. Philip
Vice president, Cochin
|
Navaneetha Krishnan T
General Secretary
|
PRESS RELEASE
The National Peoples Campaign for
Judicial Transparency and Reforms and the National Lawyers Campaign for
Judicial Transparency and Reforms, first ever in the history of independent
India, conducted a three-day campaign in New Delhi seeking –
a)
video-recording
and simultaneous telecast of proceedings of all Courts and Tribunals in the
country and in particular of the Supreme Court and High Courts, which could be
done with least effort and expenditure and in no time, which could readily
obtain an end to the misbehaviour from the Bench, its excessive interruption,
threatening lawyers and litigants and all sorts of abuse, not merely by the
Judges, but by lawyers and litigants too who do not behave well. If video-recording and its simultaneous
telecast is introduced, the stampede for the lawyer who wears silk, for the
litigant public believe that a lawyer designated as a Senior Advocate alone has
some chance of being heard and others are treated as underdogs, except for a
couple of noble Judges, will come to an end.
There will thereafter be no lobbying by lawyers with 20/25 years of
standing at the bar for designation as a Senior Advocate, which requires
majority of votes of the Judges of the High Court or the Supreme Court, as the
case may be;
b)
Open
selection of Judges of the Supreme Court and High Courts by advertisement of
the vacancies, receipt of applications, scrutiny thereof and selection in a
most open and transparent manner, so that the vast majority of eligible lawyers
will have a fair opportunity to be considered, except of the current cabal
system where kith and kin of Judges and senior lawyers alone are considered;
c)
Restoration
of freedom of speech by scrapping the most abused offence called scandalizing
the Court;
d)
Introduction
of an effective mechanism for dealing with complaints of corruption,
misbehaviour, incompetence etc., against Judges of the higher judiciary in
which lay people have a participation, instead of whatever is the mechanism
being reduced to a body of Judges and lawyers;
e)
Transfer
of Judges of the High Courts, re-introduction of the system where 1/3rd
of the Judges of a High Court are from outside the State; even 1/3rd
is not enough, it ought to be at least ½;
f)
Bringing
an end to the uncle Judges syndrome; make it mandatory that a Judge, who has
his son or daughter or immediate relative practising in the High Court where he
functions, is liable to be transferred to another High Court;
g)
Repeal
the concept of absolute impunity to Judges, and even for lawyers, and the
impunity be confined to where they act bona fide;
h)
Enact a
law to make it expressly clear that Judges like other citizens are liable for
prosecution and that a First Information Report is liable to be registered when
Judges commit a cognizable offence which has nothing to do with discharge of
their judicial function, like where they commit an offence under the Motor
Vehicles Act or outraging the modesty of a woman or indulging in rave party,
without least intending to suggest that Judges indulge in such offences.
i)
Abolition
of Tribunals and revitalizing and strengthening the institution of Civil
Courts;
j)
A common
dress code for all lawyers and abolition of the concept of designation of
lawyers as Senior Advocates;
k)
Declaration
of assets by Judges of the Supreme Court and High Courts; etc.,
to bring an end to a ridicule of the law that no FIR
can be lodged against Judges of the Supreme Court and High Courts, creating a
special class of privileged citizens to whom criminal law is not applicable. President
of the National Peoples Campaign for Judicial Transparency and Reforms, Shri
Mathews J. Nedumpara, President of the National Lawyers Campaign for Judicial
Transparency and Reforms, and ordinary lay people coming from different parts
of the country, such as, Kerala, Tamilnadu, Pune, Mumbai, Gujarat, Assam etc.,
met the Hon'ble Law Minister who was kind enough to agree with the campaigners
almost on all issues. The Law Minister
made it clear that the demands of the campaigners are acceptable in principle
and that all that he requires is some time to make the said demands to be
implemented, some which may require a legislation. Shri Mathews J. Nedumpara and Mrs. Rohini
Amin, President and Vice-President of the President of the National Lawyers
Campaign for Judicial Transparency and Reforms were given audience by the
Hon'ble Chief Justice of India, who too was very receptive to the campaigners
and their ideas and said that video-recording cannot be put to practice
immediately, but sound-recording could be thought of for which he needs to
consult other Judges, the Bar etc. The
Hon'ble Chief Justice also agreed that there is a need for greater diversity in
the appointment of Judges.
*******
Tuesday, 24 June 2014
SOS FOR PROFESSOR SAIBABA
AN
OPEN LETTER TO THE UNION MINISTER OF HEALTH AND FAMILY WELFARE REGARDING
MEDICAL TREATMENT OF A DETAINEE, PROFESSOR G.N. SAIBABA LODGED IN NAGPUR JAIL
Dated: 24 June, 2014
Dear
Dr. Harsh Vardhan,
On
the eve of anniversary of the imposition of Internal Emergency (1975-1977), one
writes this letter to bring to your knowledge the plight of Prof. Saibaba,
lecturer, Ram Lal Anand College, Delhi University and who is presently lodged
at Nagpur Jail since 9 May, 2014. Media reports indicate that he is not getting
the medical attention and service due to him. For ready reference I may inform
you that Prof. Saibaba suffers from Post Polio Residual Paralysis of both lower
limbs since age 5 years. He also has weakness of upper limbs. He suffers from
acute low back pain due to the disturbed anatomical configuration of his bones
and spine. He also suffers from cardiac problem and has high blood pressure.
Prof. Saibaba is wheel chair bound and needs the services of an attendant for
activities of daily living. Both his lower limbs are shrivelled up and he is
unable to use Indian style toilet provided to him in jail.
Reports
indicate that for over a month he has not been provided medication for his high
blood pressure which puts him at risk of getting a brain hemorrhage, a heart
attack and in the longer term, kidney failure. In the absence of an attendant
he has to crawl like an animal to use the toilet seat. In view of the crumpled
up posture that he has to adopt he gets excruciating pain in the back.
Being
a qualified orthopedic surgeon opinion has been sought from the undersigned on
Saibaba’s maze of ailments. The undersigned happens to have submitted his
thesis on Post Polio Residual Paralysis of the lower limbs while pursuing post-graduation
at Maulana Azad Medical College, New Delhi. Subsequently, the undersigned has
worked at Safdarjung hospital and All India Institute of Medical Sciences, New
Delhi as Research Fellow and Research Associate in the Rehabilitation
Department researching on disability evaluation and disability due to Post
Polio Residual Paralysis. Though one has no official status to talk of – one is
involved in people’s health movement/campaign – but after working with leprosy
patients for seven years on voluntary basis one has a very good idea of what
disability does to a fellow human being. Incidentally Prof. Saibaba suffers
from 90% permanent disability. One writes this letter to you as one is aware of
your track record and the keen interest you have shown in preventing and
eliminating polio in India through Pulse Polio Immunization Programme.
Unfortunately the jail authorities in Nagpur are trying to eliminate Prof.
Saibaba himself through their acts of omission and commission. As many of your
party men (belonging to the then Jan Sangh) and Rashtriya Swayamsevak Sangh
(RSS) workers were jailed by Mrs. Indira Gandhi during the infamous Emergency
era along with people owing allegiance to different political ideologies and
even common men and women both young and old, you would appreciate that
specialist medical services are non-existent in Indian Jails particularly for
those who are 90% physically disabled.
Prof.
Saibaba needs a wheel chair and an attendant round the clock; western style
toilet-seat; medication for his high blood pressure; basic investigations like
ECG and Echo; daily physiotherapy and occupational therapy; heat therapy for
his low back; a special brace for the low back pain; a hard bed with mattress
to name just a few. One would know this as one is aware of his medical and
orthopedic ailments.
Sir,
reports also indicate that he has been lodged in a dark, solitary cell. You
would appreciate that the bones of his lower extremities in particular are thin
and osteoporotic already. If he is not allowed to have sunlight in his ‘anda’ cell,
his bones would become further weak and osteoporotic leading to pain and even
pathological fracture of the concerned bone. You could take it on authority
that these pathological fractures are extremely difficult to manage surgically
or otherwise. Since I do not have access to his latest reports of calcium,
serum phosphate and alkaline phosphatase; as also the bone densitometry report
and the vitamin D3 levels, it will be unethical for me to opine on whether he
needs Vitamin D administration or not.
Julian
Assange, founder of WikiLeaks was forced to take refuge in the Ecuador
embassy in London and to prevent his bones from becoming osteoporotic due
to absence of sunlight in his room he had to take recourse to a gadget called
sunlamp. He is able to get artificial sunlight which enables the production of
Vitamin D in his bones. Prof. Saibaba could at least be provided a sun-lamp!
Ideally
he needs to be admitted in a hospital for a short while to get his baseline
investigations undertaken. Alternatively, the jail doctors could be apprised of
the urgent medical needs of Prof. Saibaba. As doctors under Hippocratic Oath it
is our duty to ensure that the detainee is provided best of medical care due to
him. If any payments are to be made Prof. Saibaba’s well-wishers would readily reimburse
the same to the jail authorities.
No
doubt Prof. Saibaba has been charged under various sections of Unlawful Activities (Prevention) Act, 1967.
Sir, you would recall that Mr. George Fernandes – who in later years was
installed as Union Defence Minister in the BJP led NDA Government – had been
jailed by Mrs. Indira Gandhi during the Internal Emergency era in the Baroda Dynamite Case.
The CBI charged Mr. Fernandes and others on false and made-up charges
of smuggling dynamite to blow up government establishments and railway tracks
in protest against the state of Emergency. They were also charged with
waging war against the State to overawe and overthrow the government. They were arrested in June
1976 and imprisoned in Tihar Jail, Delhi. This case was politically motivated
and Mr. Fernandes emerged unscathed. Prof. Saibaba’s case, too, needs to be
withdrawn.
Sir,
you would also recall that Shri S. Jaipal Reddy, too, was in jail for 17 months
during the Internal Emergency years. He, too, suffers from Post Polio Residual
Paralysis of both lower limbs since age 2 years. He, too, is wheel chair bound
but is able to walk a few steps with elbow-crutches. Shri Reddy, again with 90
% disability, was imprisoned at a time when fundamental rights were suspended
during the Emergency period. Presently at least no such Emergency has been
declared and even then people with ‘infirmity’, like Prof. Saibaba are being
interned. This apart, Prof. Saibaba should at least be granted the same
facilities in jail which were extended to Shri S. Jaipal Reddy during 1975-77!
Article 14 at least permits this minimal demand to be made of the present
dispensation at the Centre.
Sir,
Prof. Saibaba comes from an oppressed caste and a humble economic background.
Through sheer grit and hard work he struggled to become a lecturer at Ram Lal
Anand College, Delhi University. His torture and incarceration in jail is
evidence enough that the political establishment is doing an ‘Eklavya’ on him.
Thanks.
Yours
truly,
Dr.
Paramjit Singh Sahni,
M.B.B.S.,
M.S. (Ortho)
&
Secretary, Public Interest Litigation Watch Group
Email:
pilwatchgroup@gmail.com
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