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The age factor

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PUBLISHED IN THE FRONTLINE

The appointment of three new judges to the Supreme Court reopens the debate on the need to appoint judges when they are younger.

The newly appointed judges of the Supreme Court (from left) Justices S.J. Mukhopadhaya, J.S. Khehar and Ranjana Desai.

A FEW weeks ago, the Supreme Court of India’s collegium, consisting of the Chief Justice and four most senior judges, cleared the names of three High Court judges for appointment to the Supreme Court. Once the collegium’s binding recommendation was accepted by the President, the new judges, Justices S.J. Mukhopadhaya, Ranjana Desai and J.S. Khehar, were sworn in to the court on September 13. This new slate of appointments will be worth noting for several reasons. Not insignificantly, this is the first set of Supreme Court appointments made by the present Chief Justice of India, Justice S.H. Kapadia, since he took over the office from Justice K.G. Balakrishnan in May 2010. One of the new judges is a woman – only the fifth woman among 196 judges appointed to the Supreme Court in its history spanning over six decades, and this is the first time two women judges will serve on the Supreme Court at the same time. The new appointments offer a telling glimpse into the trend of Supreme Court appointments during the last decade.

A total of 10 judges retire from the Supreme Court during Justice Kapadia’s term, including seven this year. (Justices B. Sudershan Reddy, V.S. Sirpurkar and H.S. Bedi have already retired, and the others to retire, in the order of retirement, are Justices Mukundakam Sharma, Markandey Katju, J.M. Panchal and R.V. Raveendran. Justices Cyriac Joseph, A.K. Ganguly, and Deepak Verma, in that order, will retire next year during Justice Kapadia’s term). This is the first time seven judges retire from the court in one year. In 2000, during Chief Justice A.S. Anand’s term, six judges retired and, one, Justice M. Srinivasan, passed away, creating seven vacancies that year. The vacancies this year also occur against the backdrop of a larger debate concerning many vacancies in High Courts.

But what does the appointment of the three new judges to the Supreme Court say about the candidates typically selected to the highest constitutional court of India? For one, the three judges are, on average, quite old. Two of them, S.J. Mukhopadhaya and Ranjana Desai, are over 61 years old. The retirement age of High Court judges is 62, and both these judges had less than a year left to retire from their respective High Courts. Since Supreme Court judges retire at the age of 65, both will serve terms of less than four years in the Supreme Court. Is this adequate? Forget for a moment that judges on the Supreme Court of the United States serve in office for life, and forget that judges of the South African constitutional court serve fixed non-renewable 15-year terms, but consider that in India most judges of High Courts serve at least 10-15 years in office, if not more.

For a constitutional court of the stature of the Indian Supreme Court to retain its coherence as an institution, to maintain consistency and predictability in the articulation and application of constitutional norms, it is essential that its judges be given more satisfactory tenures. That is not to say that judges of repute and learning such as Justices Mukhopadhaya and Ranjana Desai should not be appointed to the court: the only contention is that they should have been appointed earlier, or once appointed they should be given fixed but longer terms.

 

At present, the average age of the three new judges to be appointed is over 60.7 years. In fact, of the 38 Chief Justices of India, only three – Justices Harilal Kania, B.K. Mukherjea, and M.N. Venkatachaliah – made appointments of judges who had an average age higher than this (Table 1 illustrates that the average age of appointment to the court during the tenure of these three Chief Justices of India was over 61 years of age).

Interestingly, this is in keeping with the trend of appointment of older judges, on average, to the Supreme Court.

Youngest judges

The data tell us that the youngest Supreme Court judges in the country’s history were appointed in the 1970s. One of the finest judges the Supreme Court has ever seen, Justice P.N. Bhagwati, was only 51 years old when he was appointed to it. The fact that he served close to 14 years in office, a term longer than his tenure as a High Court judge in Gujarat, perhaps had something to do with the stature he attained in the court and the status he achieved as a judge. But even before him, many judges in the 1950s were appointed to the court at age 55 or younger (B.P. Sinha, Syed Jaffer Imam, P.B. Gajendragadkar, A.K. Sarkar, K. Subba Rao, K.N. Wanchoo, M. Hidayatullah, and J.C. Shah). Some of these names are amongst the most well known in India’s legal circles.

As the court’s most prolific dissenter, Justice K. Subba Rao went on to herald the demise of the “Gopalan era” in the court. According to one estimate, he wrote as many as 53 dissenting opinions, that is, opinions in which he disagreed with the majority view. In A.K. Gopalan vs Madras, AIR 1950 SC 27, the Supreme Court had held that the constitutionality of a law would have to be tested on the basis of the object of the law itself and not by the incidental effect the law would have on other fundamental freedoms. In a series of cases decided in the 1960s ( Kochuni vs Madras, AIR 1960 SC 1080; Kharak Singh vs U.P., AIR 1963 SC 1295; and Maharashtra vs Prabhakar, AIR 1966 SC 424), Justice Subba Rao expressed considerable doubt over the court’s “object” approach to constitutional analysis, an approach which was soon replaced by the “effects” test in R.C. Cooper vs Union, (1970) 1 SCC 248. Of a similar stature, opinions written by Justices Gajendragadkar and Hidayatullah still elicit adulation in classrooms and admiration in courtrooms. It is not implausible to posit that their age and lengthy terms in office gave them an edge – an occasion to define themselves on the court, and then to define the jurisprudence and docket of the court itself.

In the 1960s, Justice S.M. Sikri was the only judge appointed to the court at age 55, but as the Chief Justice of India he went on to preside over the most significant case in India’s constitutional history, where, as part of the majority, he and six other judges held that our Constitution had a “basic structure”, one which could not be altered or destroyed by constitutional amendment. In the 1970s, too, several judges were appointed to the court at age 55 or younger (Y.V. Chandrachud, P.N. Bhagwati, M. Fazl Ali, R.S. Pathak, O. Chinnappa Reddy, A.P. Sen and E.S. Venkataramiah). Many of these judges left a lasting mark on the jurisprudence of the court.

However, starting with the 1980s, in 30 years, only four judges have been appointed to the Supreme Court at age 55 or younger: Sabyasachi Mukherjee, A.S. Anand, S.P. Bharucha and K.G. Balakrishnan, each of whom went on to become Chief Justice of India. In fact, the data tell us that the oldest judges were appointed to the Supreme Court in the last two decades, that is, between 1990 and 2009. The average age of appointment during 2000-2009 was 59.7 years and during 1990-1999 it was 59.8 years – higher than the average of any previous decade. Justice Kapadia’s three appointments tend to fit this paradigm. In fact, one wonders if appointees to the Supreme Court today would not have been even older had the retirement age in High Courts been 65. If this were so the court’s collegium would have had even older High Court judges to choose from, judges who would potentially go on to serve only a few months in the Supreme Court.

That is not to say older judges cannot mould the jurisprudence of the court in a comparatively shorter but influential cameo innings. Chief Justice M. Patanjali Sastri, one of the first members of the court, was 61 years old when the Supreme Court of India came into being. Similarly, appointed at the relatively late age of 59, Justices Vivian Bose and H.R. Khanna each indelibly altered the trajectory of the court’s jurisprudence. In the famous Anwar Ali Sarkar case, Justice Bose was perhaps the first judge to use the phrase “reasonable, just and fair”, prescient words which would resonate in the court’s opinions decades later in the Maneka Gandhi case (1978) and beyond. Justice Khanna’s dissent in the habeas corpus case served as a moral compass for a court that tried desperately to atone for the wrongs it committed during the Emergency. Imagine a court where the Sastris, the Boses and the Khannas, or for that matter the Mukhopadhayas and the Desais serve not three to six years in office but 10 to 15 years – how much more beneficial that would be for the court and for our system.

Next, of the three new judges being appointed to the Supreme Court, two (Mukhopadhaya and Khehar) were High Court Chief Justices. There is nothing surprising about this either. In the early years, at least half the judges of the Supreme Court were typically amongst those who were not High Court Chief Justices. This began to show signs of change starting with the end of Justice A.M. Ahmadi’s tenure as Chief Justice of India (1994-1997) when an unprecedented 17 sitting Supreme Court judges (or 73 per cent of the court) were former High Court Chief Justices. This trend reached its zenith by the end of Justice R.C. Lahoti’s term as Chief Justice (2004-05), when an overwhelming 20 sitting Supreme Court judges (or 95 per cent of the court) were former High Court Chief Justices.

CHIEF JUSTICE OF India, Justice S.H. Kapadia. The number of judges retiring during his term will be 10. Of them, three have already retired and four more will retire this year.

For this reason, the fact that two of Chief Justice Kapadia’s new appointees are High Court Chief Justices is not surprising. (In fact, Justice Khehar served as Chief Justice of not one but two High Courts in succession (Uttarakhand and then Karnataka), a trend which has increasingly been seen in the court starting with the 1990s. The overwhelming dominance of High Court Chief Justices in the Supreme Court adds a few years to the average age of the court – after all, only the oldest judges in the country, those who have served the longest terms in the High Courts and risen to positions of seniority, are transferred to other High Courts as Chief Justices.

Neither, perhaps, is it surprising that the only Kapadia appointment to the court not to have been a High Court Chief Justice, Justice Ranjana Desai, is a woman. Only two (Sujata Manohar and Gyan Sudha Misra) of the four women who were appointed to the court before this, previously served as the Chief Justice of a High Court. Justices M. Fathima Beevi and Ruma Pal were not, and neither is Justice Ranjana Desai, although, to be fair, she was the most senior associate justice in the Bombay High Court.

P.N. BHAGAWATI, former Chief Justice of India. He was only 51 years old when he was appointed to the Supreme Court. He served close to 14 years in office and this perhaps had something to do with the stature he attained in the court and the status he achieved as a judge.

What do Chief Justice Kapadia’s appointments tell us about the Supreme Court itself? The appointment of the fifth woman justice of the court must be welcomed. Now there is only one other constituency that has a smaller claim to the court than women – “bar judges”. Since 1950, only four judges have been appointed to the Supreme Court directly from the bar, that is, without having served as a judge in a High Court. Starting with the 1960s, one such judge was appointed in every decade – S.M. Sikri in the 1960s, S. Chandra Roy in the 1970s, Kuldip Singh in the 1980s, and Santosh Hegde in the 1990s.

The 2000-09 decade was the only one since the 1950s when a judge was not appointed to the Supreme Court directly from the bar. The appointment of Justice Ranjana Desai to the court now means that women finally have a stronger claim to the court than the court’s own bar. However, the fact remains that where S.M. Sikri, a bar judge, served as the Chief Justice of India (during the historic Basic Structure hearings, no less), not a single woman has become the Chief Justice of India.

S.M. SIKRI. In the 1960s he was the only judge to be appointed at age 55, and the only one in that decade to be appointed directly from the bar. He went on to serve as Chief Justice of India and presided over the historic case on the “basic structure” of the Constitution.

Despite these statistical inferences, the three new selections for appointment to the Supreme Court must be welcomed, even as we look to see how the Chief Justice of India populates the remaining six vacancies during his tenure.

Abhinav Chandrachud is the author of Due Process of Law (EBC 2011), and, starting this Fall, a research fellow at Stanford Law School.

ORIGIN: http://www.frontline.in/stories/20111021282104900.htm

CRUELTY AGAINST HUSBAND IN INDIA

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DHAWESH PAHUJA in LEGAL INDIA

In India where marriage is the union between man and woman to get social status in the society and marriage is nothing but procreation and caring of the child. According to Westmark Marriage has been often like as an institution made by itself. As there is increase in number of marriages every day, at the same time breakdown of marriages in the society has also been seen to be increasing whether by fault of husband or wife. Though cases filed by wife against husband and in-laws under Domestic Violence Act and 498-A of IPC to claim maintenance and divorce but all complaints are not filed bona-fidely. Freedoms of education, job opportunities, economic independence and social attitude have brought tremendous change in the status of women. The balance of scale has tilted reversely in favour of women.

Cruelty is an inhuman treatment and it is an act that causes mental sufferings and endangers to the life and health of the other. Cruelty may be in the form of physical as well as mental by the act either of the husband or the wife. Though it is the women who have always been subjected to be tortured and harassed by the husband and relatives, in fact saying this will not be proper as cases of torture and harassment against the husband by the wife is increasing day by day. Cruelty is the main ground to seek divorce as defined under ‘Sec 13(1) (i-a)’ of ‘The Hindu Marriage Act, 1955’ and party who is filing a case must prove that living between husband and wife became impossible.

There are many provisions made applicable for the protection of the women, which has got recognition from our constitutional law. The biased nature of these laws is evident from that fact that unlike almost all laws in INDIA the burden to prove innocence lies on the accused and this means as soon as the complaint is made by the aggrieved person/ wife, the result is that the husband and his family may be immediately arrested and will be considered as accused in the eyes of law. According to the ‘Section 498-A’ of the ‘IPC’ the wife and her parental family can charge any or all of the husband’s family of physical or mental cruelty but genuineness of the case has to be looked into by the court as this section is cognizable, non-compoundable and non-bailable in nature.

What amounts to cruelty against husband? Though it is the duty of the court to decide the case based on facts and circumstances but what amounts to cruelty is an important aspect as misuse of Laws by the wife against husband in society is growing day by day and most apparently some Indian Urban educated women have turned the tables and are using these laws as weapon to unleash personal vendetta on their husbands and innocent relatives and there are certain grounds on which cruelty against husband can be proved:-

• Misuse of Dowry Laws, Domestic Violence Act and ‘Sec: 498-A’ of IPC by wife against husband and in-laws of husband through lodging false complaints.

• Desertion by wife which means wife deliberately intending for separation and to bring cohabitation permanently to an end.

• Adultery by the wife means wife having sexual relationship with some other person during the lifetime of marriage and there must be strict law to punish wife who has committed adultery.

• Wife opting out for second marriage without applying for the divorce proceedings.

• Threatening to leave husband’s home and threat to commit suicide by the wife.

Cruel behavior of wife where wife tearing the shirt of the husband, refusing to cook food properly or on time and breaking of the mangalsutra in the presence of husband’s relatives.

• Abusing and accusing husband by way of insulting in presence of in-laws and in some cases wife abusing husband in front of office staff members.

• Wife refusing to have sex with husband without any sufficient reasons which can be considered as a ground of cruelty and husband can file a divorce petition.

• Lowering reputation of the husband by using derogatory words in presence of family members and elders.

• Lodging FIR against husband and in-laws which has later proved as false report.

• Conduct and misbehavior of the wife against husband i.e. pressuring husband to leave his home, insisting for the separate residence, mentally torture and disrespectful behavior towards husband and in-laws as well.

• Some other grounds of cruelty i.e. mental disorder and unsoundness of wife, Impotency of wife, illicit relationship of wife with some other person and Wife suffering from the filarial.

• Extra-marital affairs of wife can also be a ground of cruelty against the husband.

• Initiating criminal proceedings against husband and in-laws of husband with mala-fide intention by the wife.

CASE LAWS: situations in Hindu marriage where a wife was held as ‘cruel’ to the husband and the Hindu divorce law was applied by the Supreme Court:

I. Mrs. Deepalakshmi Saehia Zingade v/s Sachi Rameshrao Zingade (AIR 2010 Bom 16)

In this case petitioner/wife filed a false case against her husband on the ground of ‘Husband Having Girl Friend’ which is proved as false in a court of law so it can be considered as cruelty against husband.

II. Anil Bharadwaj v Nimlesh Bharadwaj (AIR 1987 Del 111)

According to this case a wife who refuses to have sexual intercourse with the husband without giving any reason was proved as sufficient ground which amounts to cruelty against husband.

III. Kalpana v. Surendranath (AIR 1985 All 253)

According to this case it has been observed that where a wife who refuses to prepare tea for the husband’s friends was declared by the court as cruelty to husband.

Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. A strict law need to be passed by the parliament for saving the institution of marriage and to punish those women who are trying to misguide the court by filing false reports just to make the life of men miserable and ‘justice should not only be done but manifestly and undoubtedly be seen to be done’.

The author is an advoacte in Bengaluru

 

Judicial Overreach

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SUPREME COURT OF INDIA

One of the strongest and most admired pillars in the country’s constitutional edifice is the Supreme Court. Despite some rare egregious failings, it has served as a solid bulwark against open or insidious assaults against the citizen’s rights and freedoms. When the State has failed to act with circumspection or expedition, the Court has admonished it and issued directions calling for specific actions and timetables under supervised oversight mechanisms. These have served society well and upheld and enhanced constitutional values.

The last week, however, has seen the Court issue certain orders and indulge in obiter dicta that carry overtones of judicial overreach. The first is with regard to a petition by Nandini Sundar, Ram Guha and E.A.S Sarma against the depredations of the Salwa Judum, a vigilante group that had gone out of control in the earlier stages of the state government’s campaign against the Naxalites in Chhatisgarh. What was in origin something of a spontaneous uprising of tribal communities against Naxal oppression in parts of Dantewada district was soon “nationalised” by the administration with major opposition support.

The tribals were forced to abandon their hamlets to be “regrouped” along roadsides in ill-prepared rehabilitation villages.Youths were “recruited” as Special Police Officers, given some paltry training and honorarium , provided guns – though quite a few only carried bows and arrows and lathis – and sent out to confront the Naxalites as combatants, guides and spotters alongside the police and paramilitary forces.

As a member of a fact-finding team with the petitioners, this writer can testify to the abject failure of the experiment. Tribal society was divided; the

Salwa Judum became a rabble and a law unto itself; there was enhanced insecurity; living conditions in the camps left much to be desired; and the local economy was derailed. Indeed, the record was so poor that the Salwa Judum experiment was not extended beyond Dantewada.

The Supreme Court last week passionately and eloquently ordered that the Salwa Judum be dismantled and the militia not be used as SPOs in anti-Naxal operations, which it declared unconstitutional. The state’s inability to pre-empt social unrest or build capacity to control it had led to “privatisation” of security. Worse, the rot stemmed from “the amoral political economy that the state endorses and the resultant revolutionary politics that it necessarily spawns”. Theneo-liberal development paradigm postulated rapid growth “via rapid and vast exploitation of natural resources” to meet global competition and accumulate the wealth needed to overcome poverty.

With respect, Judges are surely entitled to their views and to strike down whatever is ultra vires. But the country could be in deep trouble if the Court were to adopt ideological positions and lay down economic policy. Likewise, the Salwa Judum can be arraigned for any wrongdoing. Again, SPOs, properly recruited and trained, have been a lawful and recognised adjunct to the police over decades in many parts of the country under a variety of names such as village volunteer force, village guards and so forth. The Territorial Army, honorary magistrates, resident welfare associations, and recognised NGOs are all variants of legitimate civic institutions that may be called upon to aid the state. To exclude legitimate and licensed civic action would be to leave everything to a monolithic state.

The same ideological animus against “the neo-liberal paradigm” appears in the Supreme Court’s observations on the black money case where it has ordered that the “slow-moving” High Level Committee appointed by the Centre to pursue the matter be subsumed in a new Special Investigation Team that it has named. It has dismissed the Government’s plea of confidentiality regarding the names of foreign account holders disclosed to it under bilateral agreements with foreign entities, albeit with certain safeguards. Further it seeks a comprehensive action plan with an implementation machinery to curb black money in the future.

Here again, their Lordships are tending to assume wide executive powers and seeking what appear to be simplistic solutions to complex problems that are better left to domain experts. Parliament is seized of the matter of unaccounted money in foreign banks and related issues and the Government is now moving forward under relentless public pressure and scrutiny.

How the Government responds remains to be seen. Constitutional clarity is required. There is reason to pause and examine where we are headed. This is not to exonerate the Government for lethargy, laxity or worse but to avoid the danger of the baby being thrown out with the bathwater, leaving the judiciary to run the country and ordain its governing philosophy.

The Greater Noida land acquisition seems also headed the same way with judicial obiter dicta and Congress politics coming together in a heady mixture. Rahul Gandhi’s latestpad yatra seems more geared to next year’s election in Uttar Pradesh than anything else. This betrays a cynical disregard for governance or development in favour of squeezing political mileage anywhere, anyhow, and play-ing a weak Dalit card in whose name he claims to speak.

Inthe 2G case, the CBI’s findings have finally forced out yet another Minister, Dayanidhi Maran, from the Cabinet. This will not rock the UPA too much as the development was long seen coming and the DMK has lost its power to blackmail. In any new cabinet making that follows, no coalition partner, now or ever, should be allowed to dictate terms regarding the number, rank and specific portfolios to be given to its members. There have been many cases of square pegs in round holes and even now we have Alagizhi, the last remaining DMK Minister, who has played truant from work on the ground that he knows neither Hindi nor English. Why then is he there?

An amusing sidelight in the Supreme Court hearing of the 2G matter was the stern admonition to counsel to reject outright opinions taken from retired judges and jurists in the case. This, even as another Bench sought to appoint two retired judges to the black money SIT it proposed, one of them as chairman.

Finally, the last week witnessed the country’s best athletes fail dope tests. The athletes pleaded not guilty and blame was shuttled between the Sports Authority of India, coaches who were said to have recommended performance enhancing drugs and unscrupulous chemists who sold steroids and other banned substances across the counter. This is a shame. Everywhere in India, sport, especially cricket, is being reduced to money and glory at any cost. Faded politicians have captured power in most sports organisations, treating them as personal fiefdoms. A clean up seems necessary, starting from a dysfunctional Union Sports Ministry.

 

Dowry law may be amended

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In the wake of growing complaints about the misuse of anti-dowry laws by women, the Law Commission is studying the possibility of making section 498-A of the Indian Penal Code a bailable offence for the relatives of the husband.

Currently, the law mandates that any accused will be arrested and jailed during the pendency of the case.

A consultation paper prepared by the Commission seeking opinions from experts and the general public feels that “It is pleaded…that the offence under section 498A should be made bailable at least with regard to the husband’s relation.” But as far as the husband is concerned, the paper notes that “there is a sharp divergence of views on it.”

The move comes after the Supreme Court told directed the union government on two occasions to review these laws following instances of false cases and an abysmal conviction rate of 5 percent, suggesting that most of the cases registered were not genuine.

According to experts, the idea probably is to protect the in-laws of the women who file complaints under this section without any evidence of dowry harassment.

Under the section, offenders, including the husband or his family members are liable for imprisonment without even an investigation. The offence is non-bailable, non-compoundable and cognizable on a complaint made to the police officer by the victim (wife) or by designated relatives. Furthermore, the section does not include any provision for a compromise.

The Law Commission is examining three aspects: whether it is feasible to a. categorise the offence as bailable; b. allow the complainant to withdraw a complaint in case of a compromise with the court’s permission; and c. should the police retain the power to make arrests on their own.

The Law Commission has sought public opinion in this regard and has put up a list of 14 questions to study what people expect from this law, how to make it effective, and prevents its misuse.

The oppressed people of India

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Map showing the districts where the Naxalite m...

Image via Wikipedia

Editorial in The Nation

In a recent attack in Chhattisgarh, Maoists killed four Congress activists and injured several others. According to the Pioneer, the present incident is an indication that the left-wing extremists feel sufficiently emboldened to carry out such stunning raids following recent judicial verdicts that have come as a blow to counterinsurgency operations of the State government. It initially predicted that the Supreme Court instruction to the State government to disband and disarm the SPOs and put an end to the Salwa Judum movement, along with its earlier order granting bail to Maoist ideologue Binayak Sen, would give a fillip to ‘Red’ terror. According to the newspaper, “The Supreme Court’s needless intervention in affairs of state that are clearly beyond its jurisdiction has come as a big boost for Naxals. Maoists were and remain enemies of the state and unless they are dealt with in a manner that allows them no quarter they shall continue to press ahead with their sinister agenda.” It also pointed out several things that are controversial:

Firstly, the Supreme Court has a right to intervene where human rights are violated indiscriminately.

Secondly, no law authorises a State government to arm common people to combat the Maoists; this divides the society and leads it towards a civil war like situation. So if the court challenges an unlawful act of the Chhattisgarh government and asks it to disband the people’s militia, such as Salwa Judum and Koya Commandos, it does fall in its jurisdiction.

Thirdly, it is not the court’s decision that encouraged the Naxals to attack political figures; it is the sense of deprivation that is the motivating force. The Naxal movement has been triggered by a decade-long repression by the local administration and apathy by the federal government. Unless the underlying causes of the movement, such as social disparity, economic depravity and political exclusion are removed, India can find no peace.

Naxalites are active in the areas where the poorest of the poor live. Primary government facilities are practically absent in the Naxal infested areas. Infant mortality rates are among the highest in the world in the region, owing to malnutrition and hunger. Estimates suggest the infant mortality rate to be at 47 percent in the Naxalite affected regions of the country, a condition worse than Sub-Saharan Africa. So, despite being well aware of the reasons that are behind the rise of Naxalism, the Indian government is only depending upon force to end that problem. The government must understand that Naxals are alienated Indian citizens and once their grievances have been suitably redressed, their movement will come to an end. According to Arundhati Roy, “The people in India’s mineral heartland are tribals, who are the poorest of the poor, and the government’s war against India’s indigenous people is a frightening and unjust one.”

In 2008, an expert group appointed by the Planning Commission submitted a report called Development Challenges in Extremist-Affected Areas. It said: “The Naxalite movement has to be recognised as a political movement with a strong base among the landless and poor peasantry. Its emergence and growth need to be contextualised in the social conditions and experience of people, who form a part of it. The huge gap between state policy and performance is a feature of these conditions. Though its professed long-term ideology is capturing state power by force, in its day-to-day manifestation, yet it is to be looked upon as basically a fight for social justice, equality, protection, security and local development.”

Paul Wilkinson also notes: “Rebellions do not generally just fade away. They have to be put down ruthlessly and effectively, if normal life and business are to be restored.” India is blindly following this school of thought and is using force to crush this movement. Since its inception in 1967, the movement only sees coercion from the government side. Instead of addressing the real causes of Naxalism, the Indian government is implementing draconian laws to tackle the armed movement. The adoption of draconian laws such as new Special Public Protection Act to address the Naxalite armed movement is leading to serious human rights abuses. The Special Public Protection Act is a vague and overly broad law that allows detention of up to three years for “unlawful activities”. The term is so loosely defined in the law that it threatens fundamental freedoms set out by the Indian Constitution and international human rights law, and could severely restrict the peaceful activities of individuals and civil society organisations to investigate such allegations. Apart from Central Reserve Police Force (CRPF), the Border Security Force (BSF) and the notorious Naga battalion, Special Police with totemic names like Greyhounds, Cobras and Scorpions are committing unconscionable atrocities in remote forest villages. The story does not end here, the Indian government supports and arms the Salwa Judum that has killed, raped and burned its way through the forests of Dantewada District of Chhattisgarh leaving 300,000 people homeless, or on the run.

The counterinsurgency strategy of the Indian government with Salwa Judum/Koya Commandos at its core has unleashed civil strife. Young people are becoming the fodder of militarisation; they are being recruited as SPOs to counter Naxalite violence. Their studies are being disrupted and they are not getting any training that would help them in the future. There is a need that the government respect the Supreme Court verdict and take steps to dismantle armed vigilante groups that commit human rights abuses.

Similarly, all state and national security legislation that does not provide for international standards of due process or fair trial or allows for prolonged and arbitrary detention should be repealed.

The Indian media should also show neutrality. Instead of serving the purpose of the government and projecting Naxals as terrorists engaged in futile and meaningless conflict against the State, it should highlight their miseries and demands.

India cannot finish off this menace through coercive methods and needs to tackle the causes of the movement such as poverty, landlessness and unemployment. The Naxalites are alienated Indian citizens and once their grievances are properly redressed, their movement will automatically come to an end.

I am a victim of politics and legal system: Justice Dinakaran

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A day after resigning as theSikkim Chief Justice, Justice P. D. Dinakaran on Saturday said that he has been made a victim of a conspiracy hatched by politicians and the legal system.

Stating that the politicians and the legal system have pushed him into this situation, Justice Dinakaran said: “I am the victim of the whole system- political, executive and also partly the legal system. I expected the rule of law would be available to me. Rule of law is not maintained here. Process of natural justice has been thrown into the air.”

Justice Dinakaran, who is facing impeachment allegedly on charges of corruption and judicial misconduct, in his resignation submitted to President Pratibha Devisingh Patil said that he had been denied fair opportunity to defend himself and his reputation by the Judges Inquiry Committee.

He said he had a suspicion that his misfortune was because of the circumstances of his birth in the socially oppressed and underprivileged section of the society.

Justice Dinakaran, born into a Dalit-Christian family of agricultural background, however, clarified that it was a reference to his rural background and not the caste.

“These people (vested interests) will not tolerate that a man from agriculture community rises into such a high position. This is what I meant when I wrote (in my resignation letter) that I am from underprivileged section. Some people have accused me of using communal language but I am not playing the Dalit card. I want to make it sure. Rural people are still underprivileged in this country,” he said.

The charges against Justice Dinakaran include land grabbing, accumulation of unaccounted assets, passing judicial order for extraneous considerations, following which his elevation to the Supreme Court was also stalled.

He noted the land in contention is his ancestral property.

“The properties were purchased prior to my elevation, yet charges were framed against me. The properties were owned by relatives from 1993, 1994 onwards. There was a repeated exchange of gifts and advances within the families. How does this become illegal? I don’t know how this is illegal,” said Justice Dinakaran.

61 year-old Justice Dinakaran, who was due to retire on May 5, 2012, said that he resigned to show his moral integrity.

“I do not have any lust for position or power. Nor do I intend to adopt tactics or protract the proceedings. If you think by doing all these things I want to continue for another eight months, I am prepared to quit and show my bonafide that I am not such a person,” said Dinakaran.

He said he had lost faith in the fairness of the procedure adopted by the inquiry committee, headed by Supreme Court judge Justice Aftab Alam, as it had decided to go ahead with the proceedings without awaiting the result of his petition challenging the entire process of inquiry.

CJI confounded at PIL on Noida Extension

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In connection to the problem on the Noida Extension,the SC has witnessed a severe vexed moment when the CJI remarked an out of the blue opinion and  annoted and terming as “The biggest problem” the state of affairs when the Supreme Court is called upon to give ex-post facto approval to buildings and projects after crores have been invested.

“The most acute problem over the years the Supreme court has faced is that the plans, the buildings, the projects come up and suddenly at the end a PIL comes and we are required to decide ex-post facto approval.”

“This is the biggest problem the which Supreme Court is facing. Should crores of investment be just thrown out or should we give ex-post facto approval. If so, in what cases?” he said at an international seminar.

In Noida Extension, an estimated 2.5 lakh houses are planned and out of that about one lakh units have already been sold by builders.

Noida Extension Flat Buyers Welfare Association (NEFBWA) which represents nearly 30,000 affected flat owners in Greater Noida, is expecting that the Allahabad High Court will admit its applications on July 26 to become a party in the cases related to land acquisition.

High Court has quashed the acquisition of about 750 hectares of land from farmers by the Greater Noida Development Industrial Authority (GNIDA), affecting more than 26,000 flat-owners and about 20 realty projects of developers, including Amrapali and Supertech.

Justice Kapadia said local bodies also create problems for the Supreme Court when they first approve a project but backtrack later and suggested that the British legal system could give India some directions as UK has devised some concepts to face this challenge.

On July 6, the Supreme Court had upheld the Allahabad High Court’s order to quash acquisition of 156 hectare of land from farmers in the Shahberi village of Greater Noida. Last week, the High Court passed another order quashing the acquisitions of 589.13 hectares of land acquired from the farmers.