Judges Appointing Judges and collegium system

The five-member constitution bench headed by J S Khehar of the Honourable Supreme Court, while hearing the case which challenging the National Judicial Appointments Commission (NJAC) Act where the Act seeks to replace the two-decades-old collegium system, said that, the Constitution framer would have turned in his grave many times “with all that is happening”.

Apex Court’s observation came when Attorney General Mukul Rohatgi said that, “the Constitution framers did not think and envisage that the judges will appoint judges. Collegium system was foreign to the Constitution”. However, Constitution bench of the Apex Court, hit back by saying that, the Constitution framer would have turned in his grave many times “with all that is happening”.

The bench also questioned Rohatgi for referring to the debates in the Constituent Assembly on Articles relating to appointments in the higher judiciary when Article 124 is already amended. Article 124 of the Indian Constitution speaks about the establishment and constitution of Supreme Court.

Earlier, Attorney General Mukul Rohatgi used the phrase “judges appointing judges” to attack the collegium system and observing that B R Ambedkar would have turned in his grave at the way the power was taken from the executive. He described the junked collegium system akin to “you scratch my back, I will scratch yours”.

Government affidavit on benefits to transgender

Division Bench of Kerala High Court comprising of Chief Justice Ashok Bhushan and Justice A.M. Shaffique, while considering a petition filed by High Court lawyer Basil Attipety, seeking a directive to the State government to grant Rs.10,000 as allowance to every transgender in the State a month and direct the Social Justice and Empowerment Department to provide free education, food, shelter, clothing, and monetary allowance to them, directed the State government to file an affidavit in response to a public interest petition seeking a directive to provide all benefits and privileges to transgender in the State as directed by the Supreme Court.

Petitioner further contented that, even though Tamil Nadu and New Delhi had decided to implement the directions which includes free housing program, free admission in government colleges with full scholarship for higher studies and alternative sources of livelihood, Kerala had not initiated any steps in this regard. However, the government pleader submitted that the enumeration of transgender in the state was on.

Don’t demand Aadhaar Card for people seeking benefits

Justice Rakesh Jain of the Punjab & Haryana High Court, while disposing of a petition filed by Sudhir Yadav who had approached the High Court following reports that Aaadhar card was insisted on for various work, including admissions and availing benefits under government schemes, has directed Haryana Government officers not to demand Aadhaar card for people seeking benefits under various Government Schemes.

Petitioner in support of his case, quoted media reports that several officers like Deputy Commissioner, District Education Officer and other senior officers in Haryana were saying that Aadhaar card was mandatory for availing the benefits of government schemes like CM Window, scholarships, fee concession etc.

Petitioned in support of various media reports alleged that, students and parents were harassed in the absence of Aadhaar Card or their inability to submit the same within the prescribed time by concerned authorities.

He further alleged that despite clear orders of the Supreme Court, various schools and other concerned authorities were insisting on Aadhaar card from students for getting admissions and other benefits as well.

Tough time for Kejriwal’s government: SC issues notice

Supreme Court of India
Supreme Court of India

A bench of Justices AK Sikri and UU Lalit, while refusing to stay Delhi HC order allowing Anti- Corruption Bureau of Delhi to take action against officials in corruption cases, clarified that observation made by the High Court on Ministry of Home Affairs notification of May 21 was tentative in nature and it would not be binding.

Apex Court described as tentative a high court observation that the central government’s May 21 order giving Delhi’s lieutenant governor (Najeeb Jung) the final say in posting and transfers of bureaucrats was ‘suspect’, even as it issued notice to the city government on the issue. While saying that observation in paragraph 66 of the high court judgment holding notification suspect as tentative, the apex court said that in respect of other paragraphs it will a call only after receiving reply from the Delhi government.

The apex court issued notice to Arvind Kejriwal Government on Centre petition and asked it to file response within three weeks. The court also said that dispute arising out of power tussle between Delhi Government and Centre should be decided by the Supreme Court and asked the AAP government to take a decision whether it wants the case to decided in Supreme Court or Delhi high court.

Kejriwal Centre Tug-of-War: Delhi High Courts Observations put on hold

Kejriwal Centre Tug-of-War

In a big blow to the Aam Aadmi Party Government in Delhi, the Supreme Court has stayed the Delhi High Court’s observations on Delhi Government’s notification which said that the Lieutenant Governor has no power in posting and transfer of bureaucrats. The Supreme Court further observed that the High Court observations will not have any bearing on the case filed by the Delhi government challenging the Home Ministry notification.

Supreme Court of India
Supreme Court of India

A bench of Justices AK Sikri and UU Lalit of the Apex Court while, refusing to stay Delhi HC order allowing Anti- Corruption Bureau of Delhi to take action against officials in corruption cases, clarified that observation made by the High Court on Ministry of Home Affairs notification of May 21 was tentative in nature and it would not be binding.

However, the Supreme Court has asked the Delhi government to reply within three weeks. The court also said that dispute arising out of power tussle between Delhi Government and Centre should be decided by the Supreme Court and asked the AAP government to take a decision whether it wants the case to be decided in Supreme Court or Delhi High Court.

Don’t hang the convicts hurriedly and secretly, says Supreme Court

Supreme Court on in its recent judgment said that the execution of death sentence cannot be carried out in a hurried and secret manner. A bench of justices AK Sikri and UU Lalit of the Apex Court observed that proper procedure must be followed by Government authorities and execution cannot be done till the convict exhausts all remedy available to him to save his life.

Supreme Court, while quashing the execution warrants of a young woman and her lover, convicted for killing seven members of her family including a 10-month-old baby in Uttar Pradesh in 2008, noting that it was issued “in haste” by giving a go-by to mandatory guidelines.

Holding that, the death convicts cannot be denied fundamental right to life, observed that Government cannot hang condemned prisoners without giving him prior notice and allowing him to meet family members.

“Right to life under Article 21 of the Constitution does not end with the confirmation of the death sentence. The basis to the right to dignity also extends to the death row convicts. Therefore, the sentence of death has to be executed with total dignity.

“That is why there are many judgments mandating the manner in which the death sentence has to be executed,” the bench said and added that “therefore the procedure prescribed by the Supreme Court and the Allahabad High Court for execution of death sentence is in consonance with Article 21”.

Apex court further observed that right to life does not end with the confirmation of the death sentence observing that the basis to the right to dignity also extends to the death row convicts. In the given case Apex Court observed that the death warrant was signed by the Sessions Judge in haste without waiting for the convicts to exhaust the available legal remedies.

Analysing the Suprme Court’s stand on the Fatwa

Raghavi Viswanath

In terms of religious significance and Islamic jurisprudence, fatwa is a legal ruling given by Muslim scholars based on religious evidence. Therefore, fatwas are primarily based on the four main sources of Islamic law namely, the Quran (which is the holy book of Islam), the sunnah (which incorporates anything the Prophet said, did or approved of), the consensus of Islamic scholars and in cases where there is no concrete evidence to rely on, these scholars formulate opinions based on inductive or deductive reasoning and the corpus of such opinions is known as ijtihaad. The Supreme Court’s stand on the fatwa can be analyzed through its decision in the Public Interest Litigation filed by advocate VishwaLochan Madan.

The All India Muslim Personal Law Board has appointed certain people who are called Ulemas. They are legal scholars who apply the principles of Shariat law and deliver rulings. The petitioner challenged the validity of the Dar-al-Qazas and Dar-ul-Ulooms.  He further claimed that the Dar-al-Qazas sought to set up a parallel jurisprudential system, and pleaded to the Apex Court to declare such institutions illegal on the basis that religious clerics did not have the authority to impose such rulings that no one could oppose and thereby curtail fundamental rights.

He further called upon the Supreme Court to disband all Shariat Courts, restrain the All India Muslim Personal Law Board, Dar-ul-Ulooms and Dar-al-Qazas from training any muftis and lastly, prayed to the Court to restrain them from adjudicating marital disputes amongst Muslims. The stand of the principal respondent, the Union of India, was that fatwas are primarily advisory in nature. While the Dar-al-Qazas are accorded with the powers to issue fatwas by Shariat sources, they still cannot enforce the fatwas have no legal value.

The Supreme Court, upon hearing the arguments from both sides, adjudicated that the Dar-al-Qazas have firstly not been created by laws enacted by competent legislatures, and neither have they legal authority to enforce their rulings. By this logic, the fatwas issued by them cannot be questioned or challenged in any court of law.

The court howevermade it clear that the religious background of fatwas cannot be used as tool to coerce people into abiding by it. One has to understand the subtle differences between declaring fatwas illegal (which the Court did not do) and preventing fatwas from infringing on individual’s fundamental rights.

The bench, headed by Justice CK Prasad, staunchly put forth its stand that no religious institution could impose rulings that curtailed the fundamental freedoms of individuals, and ordered that Dar-al-Qazas could not issue fatwas pertaining to rights of persons who did not seek the fatwa or having direct interest in its issuance. Furthermore, it declared that when a fatwa was issued against the wishes of any person, then he or she could bring an action against its issuance in a Court of law.

Law and the Mother – Maternity Benefit Act

Raghavi Viswanath

History bears testimony to the fact that maternity has been viewed as a disability. Since the times of the Industrial Revolution, pregnant women have been treated as a liability. Employers have expressed no qualms with regards to dismissing pregnant women from service without granting them pay for the maternity period.

Most countries have taken time to acknowledge and internalize the concept of women’s rights. While the Indian Constitution does embody the French idea of equality through Part III, this legal acceptance has not translated into reality. The intention of the legislators can be inferred from the fact that under the Indian Factories Act, the term ‘workman’ has only been defined. For that matter, the General Clauses Act also solely employed the term ‘man’ and subsequently generalized it to include females.

The Maternity Benefit Act is one of the first legislations that were enacted exclusively to secure the interests and rights of women. Enacted in 1961, it permits women to avail of 12 weeks (either before or after the date of delivery) of maternity benefit and the average pay for the period of absence. Before the amendment of 1989, the woman was entitled to maternity benefit only after the delivery. However, after the 1989 amendment, , the woman employee can claim maternity benefit ,under Section 5, for a period not exceeding six weeks preceding the date of delivery. The Act also entitles women who’ve had miscarriages to 6 weeks leave with average pay. It provides medical bonuses ranging from Rs. 1000 to Rs 10,000, subsequent to the 2008 amendment.

The Maternity Benefits Act applies to establishments and factories other than those covered under the Employees’ State Insurance Act. Women who have served the establishment for a minimum period of 80 days in 12 months preceding the date of delivery are eligible for the benefits under the Act. Interestingly, the first Maternity Act was passed by the Bombay Legislature way back in 1929 based on the Recommendations of the Royal Commission on Labor in India. This reflects the growing pressure on the Central Government to create a protective regime for women workers ((Shashi Bala, Implementation of the Maternity Benefit Act, V.V.Giri National Labor Institute, 2012)).

As per the Act, no employer can dismiss or discharge a woman from services during the maternity benefit or give a notice to that effect. For failure to pay maternity benefit or dismissal and discharge of a woman as under the provisions of the Act), the employer is liable to imprisonment up to one year and Rs.5000.

Constitutionally, Article 15 (3) permits the government to indulge in ‘protective discrimination’ and enact legislations to compensate for the subsistence lost by women due to their disadvantaged physical structure.  Article 42, of the Directive Principles of State Policy requires that the State shall make provisions to ensure humane work conditions and provide maternity relief. This Article lays down the standard of legal efficacy that any service rule made by establishments should be judged by ((Judicial View on Shortage of Attendance,http://legalperspectives.blogspot.in/2010/09/judicial-view-on-shortage-of-attendence.html,09/08/2014)). The right to health and safe working environment that is available to pregnant women is enshrined in the umbrella Article 21 also.

The International Labor Conference, in its first conference in 1919, adopted the Convention on Maternity Protection and the Convention concerning the employment of women before and after childbirth (Convention 3). The first convention stated that no woman shall be permitted to work in any industrial or commercial undertaking for a period of six weeks after delivery and will be entitled to maintenance benefits for herself and her child. This Convention was revised in 1952 to allow women to be absent from work for a period for six weeks preceding her confinement. The maintenance amount was to be determined by the competent authority in each country ((W.B Creightan, Working Women and Law, London: Mansell (1979).)).

The issue of termination of services of pregnant women was considered by the Court in the case of Air India v Nargesh Mirza ((AIR 1981 SC 1829)). In this case, under the Air India Corporation Act, an air hostess was to retire upon (i) attaining 35 years of age; (ii) Upon marriage within four years of service; (iii) on her first pregnancy.

The Court undertook an adjudication of the constitutionality of each of the three conditions with respect to Articles 14, 15 and 16. The age limit prescribed was subject to the discretion of the Managing Director who could retain some air hostesses up to the age of 45. The Court held that this unfettered authority vested in the Managing Director contravened the Wednesbury principles and were founded on arbitrariness.  The Court went on to hold that terminating the services of a woman employee upon pregnancy was a curtailment of her individual choice to have children and both of these conditions were struck down as unconstitutional. However, it maintained the fine distinction in the subject-matter of Articles 15 and 16 and enunciated that the said provisions prohibited discrimination solely on grounds of gender excluding all other considerations.

The right to employment of pregnant women was discussed in the celebrated case of NeenaMathur v Life Insurance of Corporation ((AIR 1992 SC 392)). The petitioner, Ms. Mathur was put on probation for six months subject to a satisfactory work performance report. However, she was dismissed from service during her probation period when she applied for maternity leave. The Supreme Court directed LIC to reinstate her. The Court also discovered that the application form required women to divulge details of their menstrual cycles and past pregnancies. The Court held such conduct to be violative of the right to privacy (Article 21) and ordered LIC to delete such questions from future questionnaires.

The provisions of the Maternity Benefit Act were questioned before the Courts in the case of Municipal Corporation of Delhi v Female workers ((AIR 2000 SC 1274)). In this case, the Union of Female workers claimed that they should be treated as regular workers under the Maternity Benefits Act despite the fact they had been employed under Muster roll and were temporary workers. The Court held that their claims were constitutionally sound and in consonance with Articles 39 and 42 of theConstitution.

The Act, nevertheless, is is not free of flaws. It re-enforces the parochial notions of burdening the woman with the responsibility of nurturing the child. Furthermore, the prescribed maternity leave is not sufficient for the woman to recuperate after the delivery and does not take post-natal risks into account. During the 44th Indian Labor Conference in 2012, it was proposed that the period of maternity leave should be increased to 24 weeks from 12 weeks. However, the Minister for Labor and Employment put these doubts to rest stating there the government had no plans of amending the existing provisions of the Act ((Available at http://loksabha.nic.in/)).

It needs to be noted that the Indian social milieu is gradually becoming more progressive. It has come to accept the fact that maternity benefits are a form of social security that guarantees remuneration for women despite the fact that their productivity might decrease and they may be absent from work during the child bearing process. Such legislations embody the State’s commitment to provide a gender-friendly and accommodative work environment for women employees.

President gives nod to National Judicial Appointments Commission Bill

The National Judicial Appointments Commission Bill, 2014 has received President’s assent on 31st December, 2014.The National Judicial Appointments Commission Bill, 2014 gives the executive an equal role in the appointment of judges to the highest judiciary, as a constitutional body.

A Constitution Amendment Bill needs to be ratified by at least 50 per cent of the Assemblies, and the recent amendment to make the National Judicial Appointments Commission a constitutional body for appointment of Judges to the Supreme Court and the High Courts was recently ratified by the legislatures of 15 States.

The 121st Constitution Amendment Bill stipulates amendments to Articles 124 (2) and 217 (1), which deals with the appointment of judges in the Supreme Court and the High Courts, respectively. Under it, every Judge in the Supreme Court and the High Courts would now be appointed by the President in consultation with the National Judicial Appointments Commission. The National Judicial Appointments Commission would end the Supreme Court collegiums’ two-decades-old grip on appointments of Judges.

A six-member panel led by the chief justice of India will decide all appointments of judges to the Supreme Court and the 24 high courts. This panel will also include the law minister, two eminent personalities and two senior-most judges of the court. The eminent persons will be named by a panel, comprising the Prime Minister, the chief justice of India and the leader of the opposition in the Lok Sabha.

The National Judicial Appointments Commission has the Chief Justice of India as chairperson and two senior most Judges of the Supreme Court as members, apart from the Union Law Minister and two eminent personalities, one of whom would be nominated from among the Scheduled Castes, the Scheduled Tribes, minorities, the Other Backward Classes or women.

Under the collegium system, the government has no say in appointments. It could send back selections but had to clear them if the collegium insisted. Under the new system, the government can veto any appointment as it will have three nominees on the panel. Any two dissenting notes can veto a candidate. Normally, the senior-most judge would be recommended as chief justice but other criteria such as merit will also be taken into account.

Supreme Court commutes death sentence to life imprisonment

A Bench of Justices Dipak Misra, R F Nariman and U U Lalit said that, “Though no time limit can be fixed within which the mercy petition ought to be disposed of, in our considered view the period of 3 years and 10 months to deal with such mercy petitions in the present case comes within the expression “inordinate delay.”

Supreme Court considering the period of 3 years and 10 months delay by the Centre in deciding mercy petition of a prisoner as “inordinate delay” has commuted the death sentence of the condemned prisoner to life imprisonment.

While granting relief to the convict, the Supreme Court also noted that the right of death convict was further violated by incarcerating him in solitary confinement for the last seven years ever since his death sentence was upheld by it in 2007.

The Supreme Court had earlier ruled that a death convict should never be put to solitary confinement till his mercy petition was disposed of.

It is a case where the convict Mr. Ajay Kumar Pal, who was awarded death sentence by trial court in April 2007 for killing 5 people including three children. Offence occurred in the year 2003. His conviction and sentence was upheld by the Supreme Court on March16, 2010. Within a month he sent his mercy plea. Subsequently, his mercy petition was rejected by the President of India on November 08, 2013.

Convict thereafter moved Supreme Court for commutation of his death sentence on grounds of delay on the part of Government in deciding his mercy plea. Bench observed that, “the combined effect of the inordinate delay in disposal of mercy petition and the solitary confinement for such a long period, in our considered view has caused deprivation of the most cherished right. A case is definitely made out under Article 32 of the Constitution of India and this Court deems it proper to reach out and grant solace to the petitioner for the ends of justice. We, therefore, commute the sentence and substitute the sentence of life imprisonment in place of death sentence awarded to the petitioner.”