Category: Human Rights

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Human Rights Supreme Court of India

Four judgments to illustrate the Supreme Court’s liberal approach to maternity benefits

PraptiPatelOn December 3, 2014, the Supreme Court of the United States of America heard the case of Young v. United Parcel Service, a case filed by Peggy Young of Maryland. An employee of the respondent company, she was placed on unpaid leave when she became pregnant in 2006, resulting in the loss of her medical benefits. A district judge and the U.S. Court of Appeals have already ruled in favour of the shipping company, but activists in favour of Young are hopeful that the Supreme Court will take a different stand on the issue.

While the Court ponders the issue, let us look closer home. What has been the stand of the Supreme Court of India on the issue of maternity leave and benefits?

Invasive questionnaires

In Mrs. Neera Mathur v. Life Insurance Corporation of India, the petitioner’s employment with the LIC was terminated after she returned from maternity leave. The reason given was that she had withheld information about her pregnancy in a questionnaire she had filled out at the time of her appointment. After a perusal of the questionnaire, the Supreme Court found that it required female candidates to provide information about the dates of their menstrual cycles and past pregnancies. The Court held that the questionnaire was an invasion of privacy and directed the LIC to reinstate the petitioner and delete the offending columns from its future questionnaires.

Consider Sundays and unpaid holidays for computing period of work to qualify for maternity benefits 
Mother and child, Delhi IndiaIn Ram Bahadur Thakur (P) Ltd. v Chief Inspector of Plantations, a female worker employed at the Pambanar Tea Estate was denied maternity benefits on the grounds that she had actually worked for 157 days instead of the 160 days required to qualify for them. The Supreme Court, however, held that for the purposes of computing maternity benefits, all days including Sundays and unpaid holidays must be taken into consideration.

Daily wagers must get benefits too

WorkSafeAntiSexualHarassmentIn Municipal Corporation of Delhi v. Female Workers’ (Muster Rolls) and Another, the Municipal Corporation of Delhi stated that it granted maternity leave to its regular female workers but not to the daily wage ones, that is, the ones on the muster rolls. The respondents argued that the practice was unfair as there was hardly any difference in the work allotted to female workers who were regular and those who were on daily wage. Accepting the contention, the Supreme Court upheld the right of female construction workers to be granted maternity leave by extending the scope of the Maternity Benefits Act, 1961 to daily wage workers.

Two years uninterrupted childcare leave

In a landmark case last year, Kakali Ghosh v. Chief Secretary, Andaman & Nicobar Administration and Others, the main question was whether a female employee of the Central Government could ask for 730 days of uninterrupted child care Llave under the Central Civil Services (Leave) Rules, 1972. Justices S.J. Mukhopadhaya and V. Gopala Gowda of the Supreme Court held that a female employee of the Central Government is entitled to two years uninterrupted leave for childcare, which may also include illnesses and schoolwork. It held that the judgment of the Calcutta High Court, Circuit Bench at Port Blair was ignorant of the rules framed by the Central Government and directed the respondents to comply with the directions issued by the Central Administrative Tribunal, Calcutta, Circuit Bench at Port Blair.

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Human Rights Litigation Uncategorized

Court (2014) is a searing look at courts but might as well have been based on a theft case

Mansih_myLawCourt (115 min, English/Marathi/Gujarati/Hindi, no subtitles; dir: Chaitanya Tamhane)

A sewage worker’s dead body is found inside a manhole in Mumbai. An ageing folk singer performing an anti-caste composition is arrested and bizarrely accused of performing an inflammatory song that may have incited the worker to commit suicide. The trial unfolds in a lower court, where the hopes and dreams of the city’s ordinary people play out. Forging these fates are the lawyers and the judge, who are observed in their personal lives beyond the theatre of the courtroom. Touching on a wide range of themes from poverty, caste, and power inequalities to antiquated laws and judicial reform, Chaitanya Tamhane’s Court has all the elements of a great plot, but falls well short of being a great film. Too many issues are unsatisfactorily dealt with, leaving the viewer deeply disappointed.

We are introduced to Narayan Kamble, a rousing Dalit folk singer who moonlights as a tuition teacher to earn his living but for the most part, goes around the city’s Dalit chawls with his troupe singing the compositions of Sambhaji Bhagat. Halfway through his performance, a group of police land up and arrest him. Kamble’s role in the film, for the most part, ends here: the rest of it is centred on a criminal court, and its three main actors. We are introduced in some detail to Kamble’s lawyer, Vinay Vora, a genteel Gujarati criminal defence advocate who shops for wine and cheese, hangs out at nightclubs and listens to jazz in his car. Opposing him is Public Prosecutor Nutan (whose name, strangely enough, we don’t learn till the closing credits), a middle-class Maharashtrian who juggles her job with managing two kids and a diabetic husband, commuting by the local train everyday. Mediating these sometimes-comical interactions between the two in court is the razor-sharp Sessions Judge Sadavarte, who is a stickler for procedure even at the cost of efficiency – and in a way, also symbolises everything that is wrong with the judicial system.

Court_ChaitanyaTamhane_poster

Through these three characters, the film gives us a searing look at the everyday life inside a courtroom. Kamble’s trial and tribulation is an incidental vehicle. Class, language, and caste collide in sometimes-violent ways: the English-speaking Vora versus the chaste Marathi-speaking Nutan; the Dalit chawls versus the posh residences. Several problems of the judicial system are also showcased extremely well, with the focus on Vora’s frustration as he struggles to extricate his client from jail, despite the prosecution’s case crumbling further after each hearing. The personalities of the three characters play out in ironic, nuanced contrast. Vora, despite his high-flying lifestyle, is the saviour of the oppressed, visiting Dalit chawls, and speaking at Leftist seminars defending civil liberties. Nutan, despite her seemingly mundane, ordinary background, is a cheerleader for the kind of xenophobic rhetoric that would make Bal Thackeray proud. Sadavarte, for all his acumen in court and faith in legal procedure, is revealed to be a very different kind of believer in private. Tamhane develops the flaws in each character rather well, and by the end it is hard to decide whom to love – or hate – more.

Court won the Best Debut at the Venice and Mumbai Film Festivals – and it is easy to see why. The film is well made, with good dialogues, screenplay and editing. The long shot is used liberally and to good effect, and the de-glamourised colours create an effect of everyday Mumbai, as opposed to a “filmy” setting. Refreshingly, the film also manages a fairly accurate depiction of the judicial process, steering well clear of the tiresome “tareekh pe tareekh“ trope. As a story, though, it fails: one is left wondering why the director chose a very powerful background without any intention of developing it. In the end, even the theme of legal or judicial reform is not taken beyond a point. The disappointment could best be summed up by the comments of a lady who sat in front of me at the screening at the Dharamsala International Film Fest: “What was the point of choosing a political story? They could as well have used a common theft case to illustrate the point.” Go and watch Court for the film as a cinematic experience, but if you’re looking for a story or the treatment of an issue, you’d be better off watching the likes of Anand Patwardhan’s Jai Bhim Comrade.

(Manish is a legal researcher based in Ahmedabad.)

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Human Rights Supreme Court of India

A revolutionary judge who gave new meaning to the Constitution – V.R. Krishna Iyer (1914-2014)

Suhrith_ParthasarathyJustice V.R. Krishna Iyer, a judge of the Supreme Court of India between 1973 and 1980, and a champion of individual liberties and social justice, died on Thursday in Kochi at the age of 100. As a Supreme Court judge, Krishna Iyer infused life into the otherwise abstract rendering of constitutionally guaranteed fundamental rights. In so doing, he changed the core of the Court’s jurisprudence; the Court, during Krishna Iyer’s tenure, moved from being a decidedly positivist body into one that, howsoever briefly, thought of social justice as the underlying aim of the Constitution. His ability to coalesce his inherent sense of compassion and integrity with an intellect of stupendous brilliance allowed him to make indelible marks on the development of the law as a means to justice.

Krishna Iyer began his practice as a lawyer in 1937 in the courts of Thalassery, where he often represented labourers and menial workers. But he soon found himself gravitating towards a more active political life. In 1952, at the young age of 37, he was elected to the Madras Legislative Assembly, with the support of the Communist Party. Later, he would also serve as a minister in Kerala’s first government. To politics he brought an invigorating blend of empathy and statesmanship, but it is his revolutionary role as a judge of the Supreme Court that he will be most remembered for.

VRKrishnaIyer1914-2014

In 1973, after a mere five years as a judge of the Kerala High Court, Krishna Iyer was elevated to the Supreme Court. Here, his judgments, written in effusive—and often dynamic—prose, quickened the march of the law in numerous and diverse fields. The law, he believed, was a means to achieving the ends of justice. And it was this fundamental ethos that allowed him to imbue in the court’s philosophy, a proclivity for loosening the standards of locus standi. In fact, it was Krishna Iyer’s judgment in The Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, which served to forge the movement towards public interest litigation, which has today achieved a hallowed status. Where public interest demanded, “even Article 226, viewed in wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights,” he wrote. “Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualization of the right to invoke the higher Courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law.”

It was his indefatigable concern for equality as an all-pervading value that allowed him to foster a jurisprudence, which would give new meaning to a hitherto tepid Constitution. In both Sunil Batra and M.H. Hoskot’s Case, Krishna Iyer’s fundamental concern for the rights of the prisoner spoke to his larger commitment to a constitutional morality. “I hold that bar fetters are a barbarity generally and, like whipping, must vanish,” wrote Krishna Iyer, in Sunil Batra v. Delhi Administration. “Civilised consciousness is hostile to torture within the walled campus. We hold that solitary confinement, cellular segregation and marginally modified editions of the same process are inhuman and irrational.” In appealing to similar values, Krishna Iyer ruled in M.H. Hoskot v. State of Maharashtra that if a prisoner sentenced to imprisonment was unable to exercise his right of appeal, for want of legal assistance, “there is implicit in the Court under Article 142, read with Articles 21, and 39A of the Constitution, power to assign counsel for such imprisoned individual for doing complete justice.” Krishna Iyer’s dogged commitment to equality as a virtue also saw him make colossal contributions to labour law. His expansion of the mere textual meaning of the word “industry,” in Bangalore Water Supply and Sewerage Board v. A. Rajappa continues to resonate even today.

Krishna Iyer’s mark on the polity did not end with his tenure on the bench. In the years since his retirement, he used his tireless verve to advocate causes that appealed deeply to his conscience, and, as it would so happen, to the Constitution’s essential values, properly understood. Of the death penalty, for example, he wrote that a legislative abolition of the punishment would be “a statutory tribute to the Founding Fathers of Article 14.” Were the legislators to do so, it would also equally be a fitting tribute to the glorious ideas of Justice Krishna Iyer, ideals that, more than anything else, appealed to the securing of an equal society.

(Suhrith Parthasarathy is an advocate practising at the Madras High Court.)

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Human Rights

What can literacy rates and telephone use teach us about the problem of undertrial prisoners?

Sumathi_Chandrashekaran_LongRoadToJusticeReformOf all the categories of persons incarcerated in prisons, the worst are the stories of undertrial prisoners. In the widest sense, undertrials are people who have not been proven guilty, but whose innocence is yet to established. The history of the prison system is rife with tales of undertrials who have spent years and years in jail for petty crimes, usually because they are unable to pay bail amounts, or worse, because they have no access to the justice system. This situation has not gone unnoticed. In September 2014, the Supreme Court directed the release of undertrial prisoners who have spent half of the maximum sentence prescribed for the offences they are alleged to have committed.

This is not the first time that undertrials have been the focus of judicial attention, but as advocate Vrinda Bhandari pointed out, while many deeper problems remain unaddressed, releasing undertrials is only a short-term solution. The condition of the other participants in the criminal justice system (police, prosecutors, judges, and prison administrators) is a significant problem in itself, as these professions tend to be  “overworked, understaffed and underpaid”.

Some of the richest data available for analysing questions of law and policy in India relates to prisons and prisoners, through the National Crime Records Bureau, and its annual Prison Statistics India, the latest edition of which was published in October 2014. Combined with other data available from different sources, many interesting correlations can be drawn, with the usual caveats about data quality and the fact that mere correlation does not imply causation. The note focuses on state-wise undertrial populations, taking into consideration that several relevant issues are under the control of individual states, notably the police and prisons. The lack of access to the justice system and the inability to post bail suggests it might be interesting to examine two sets of intersections, between undertrial populations and first, the criminal justice system, and second, development indicators in states. Each scatterplot drawing below plots the undertrial population on the vertical axis against the other indicator on the  horizontal axis. The dotted lines indicate the median values (the value in the middle of the dataset) of each indicator and they divide the plot into four quadrants.

Undertrials and the criminal justice system

As proxies for the criminal justice system, two parameters were looked at. First, the note examined the health of district and subordinate courts, based on data from Court News (Q4, 2013). This was derived as a measure of the working strength of the courts relative to the sanctioned strength of the courts, to arrive at a percentage of how “healthy” the courts were. The hypothesis was that states with more “healthy” court systems, that is, states where district and subordinate courts were working closer to their sanctioned strength, were also the states that had lower undertrials as a percentage of all prisoners. The relationship, as the image shows, is indistinct, but might become significant if the data are studied in greater detail (which this note does not attempt). Illustratively, if health of courts and undertrial populations for each state are studied over a longer period of time, it might be possible to show individual trendlines for each state, and test for inverse trends between the indicators.

Undertrials_healthofIndiancourts_India

Second, the note examined the police force per 10,000 people in various states, based on data for 2011, from data.gov.in, and the population census. The police force was taken as a measure of the total armed and civilian police force in states relative to the population of the states. The analysis discounted for outliers such as states in the north-east and Jammu & Kashmir, given their special situation regarding police and law enforcement. However, there did not appear to be any correlation between the strength of the police force, and the percentage of undertrial prisoners.

Undertrials_Strengthofpolice_India

A better proxy for the criminal enforcement and prosecution system might have been the number of public prosecutors in various states. Unfortunately, the central government does not maintain any data as regards the number of public prosecutors working in various courts in various states.

Undertrials and development

The fate of undertrials is often attributed to their inability to understand their rights or their inability to post the bail amounts that might otherwise let them out of prison. As proxies for these, two indicators were looked at. First, the percentage of undertrials in prisons was compared with literacy rates in various states, based on data from the 2011 census. It appears that states that are relatively more literate also tend to be states that have a fewer number of undertrials in prison.

Undertrials_Literacyrate

Second, the percentage of undertrials was compared with the tele-density of wireless connections across several areas in India, based on regulatory data, which was taken as a proxy for income. (Tele-density, or telephone density, means the number of telephone connections for every hundred people in an area.) Here, too, it appears that states with higher wireless tele-density tend to have a fewer percentage of undertrials in prison.

Undertrials_teledensity_India

The degree of civilisation in a society, Dostoevsky is believed to have written, can be judged by entering its prisons. Could it be that society, too, has something to tell us about the prisons we create?

(Sumathi Chandrashekaran is a lawyer working in the area of public policy.)

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Human Rights Supreme Court of India

Five instances where judges considered the use of criminal contempt for criticism of their integrity

PraptiPatelRecently, a Delhi High Court judge initiated contempt proceedings against a legal news magazine that published a report which claimed that a nightclub in the capital was allowed to remain open beyond the licensed closing time because the judge’s son had an interest in the club.

‘Criminal contempt’, defined under Section 2(c) of the Contempt of Courts Act, 1971 as a criminal offence, is the act of communicating, either through spoken or written words or other visible representations, something that, among other things,

scandalises, or tends to scandalise, or lowers, or tends to lower, the authority of any court. Under Section 12 of the Act, criminal contempt can be punished with simple imprisonment up to six months or a fine up to Rupees Two thousand or both.

The somewhat old-fashioned rationale behind this power is that in order for the judiciary to carry out its functions, it was essential for the courts to be perceived as fair and unbiased. Let us look at five instances where courts have used this power to penalise communication in the media that has been critical of the integrity of judges.

1. Perspective Publications v. State of Maharashtra (1968)

Blitz, a weekly newspaper, had lost a suit in which a firm of architects claimed damages of Rs. 3 lakhs from them. Justice Tarkunde of the Bombay High Court had passed the decree. Later, an article that appeared in a publication brought out by Perspective Publications and written by its editor, alleged that the judgment had been decided in favour of the firm because Justice Tarkunde’s father, brother, and other relatives were partners and had a large pecuniary interest in the firm. They were found guilty of contempt of court and sentenced to a month of simple imprisonment and a fine of Rs. 1000. “The publication of a disparaging statement”, Justice Mukherjee held “will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability, or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties.”

MediaLaws

2. In Re S. Mulgaokar (1978)

A letter was circulated among judges of the Supreme Court and the High Courts on drafting a code of ethics for judges. The Indian Express published the details of the letter and also commented on the character of the judges, specifically referring to some who lacked ‘moral courage’. The suit was dismissed and the article was not held to amount to contempt of court. Justice Krishna Iyer laid down six principles to determine if the publication of some matter amounts to contempt of court.

3. Court On Its Own Motion v. M.K. Tayal and Others (2007)

yksabharwalMid-Day published an article with a cartoon which alleged that Justice Y.K. Sabharwal, a former Chief Justice of India had headed a Supreme Court bench which passed certain orders in the matter of sealing off commercial establishments in residential areas even though the sons of the Chief Justice had a vested interest in those commercial establishments. The article cast aspersions on the soundness of the judgement and imputed that the sons had benefitted from it. Following the publication, senior advocate R.K. Anand had submitted a copy of the paper to the Court and accused the newspaper of scandalising the judge and the Court. The Court took suo moto cognizance of the matter and the newspaper’s editor, publisher, resident editor, and cartoonist were held guilty of contempt of court. “The manner in which the entire incidence has been projected”, the Court held, “gives the impression as if the Supreme Court permitted itself to be led into fulfilling an ulterior motive of one of its members. It tends to erode the confidence of the general public in the institution itself.”

4. Dr. Subramanian Swamy v. Arun Shourie (1990)

RamakrishnaHegde_JusticeKuldipSingh_ArunShourie_SubramanianSwamy

Justice Kuldip Singh, then a judge of the Supreme Court, was appointed the chairman of a commission of inquiry to probe into allegations of corruption against Ramakrishna Hegde, the former Chief Minister of Karnataka. When the commission released its report, it refuted all the allegations. The Indian Express published an article titled “If Shame Had Survived”, criticising the report for being “deferential” to the Chief Minister and accusing Justice Singh of “inventing theories and probabilities” to argue against the allegations. The article also highlighted how Justice Singh had failed to include the evidence of the key witness in the case and said that “If there had been any sense of honour or shame, a Judge would never have done any of this.” Subramanian Swamy filed a contempt petition against Arun Shourie, who was the editor of the newspaper, contending that the editorial was a scandalous statement in respect of a sitting judge of the Supreme Court. Even though the Court took suo moto cognizance of the matter, the petitions were dismissed, partly because the law was amended during the course of the proceedings to include truth as a defence and partly because Justice Singh, as member of a commission of inquiry, was not a court for the purposes of the contempt law.

5. Shri Surya Prakash Khatri & Another v. Smt. Madhu Trehan and Others, 2001

A fortnightly magazine called Wah India published an article listing fourteen judges of the Delhi High Court and evaluated them on parameters of punctuality, knowledge of the law, integrity, quality of judgments, manners in court, and receptiveness to arguments. The evaluation was apparently based on a survey that took in the opinions of fifty “senior lawyers”. The Delhi High Court issued a notice against the magazine’s Editor-in-Chief and directed the Delhi police to ensure that copies of the allegedly offensive issue were withdrawn from newsstands and the shops that sold it. Copies of the issue that had not been circulated were thus seized and confiscated. The Court held that prima facie contempt had been committed by the respondents because the ranking of the judges amounted to scandalising the judiciary. The Court also refused the apologies that were tendered by the accused.

The law on criminal contempt of court in India has been invoked against the press several times because of perceived insults to the judiciary. In Germany, France, Belgium, Austria, and Italy, however, there is no concept of criminal contempt of court and the only options that the judges have are in their personal capacity: either file a criminal complaint or institute an action for libel. In the United Kingdom, even though the criminal offence was only abolished in 2013, the last successful prosecution happened in 1931. Various Indian judgments on the issue have been quick to point out that “scandalising the judiciary” amounts to contempt under the statute but isn’t it time that the judiciary made a conscious move to give a more liberal interpretation to the law? Healthy debate and criticism are necessary in a democracy and there is no reason the judiciary should be above it.

(Prapti Patel is a student of the Indian Law Society’s Law College in Pune.)