Tag: Aditya Verma column

Supreme Court’s sexual harassment regulations should not be limited to the Court’s precincts

Post author By admin
Post date December 5, 2013
No Comments on Supreme Court’s sexual harassment regulations should not be limited to the Court’s precincts

“No woman shall be subjected to sexual harassment at the Supreme Court of India precincts”, proclaims Regulation 3 of the Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 (“the Regulations”). The Supreme Court of India notified the Regulations in exercise of its administrative jurisdiction. They are now in force and apply independent of other laws that may apply, such as the yet-to-be-notified Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.

The Regulations apply to everyone, not just lawyers (although the definition of aggrieved woman does not include “any female who is already governed by the Supreme Court service regulations”). They are significant because they acknowledge that the sexual harassment of women in the professional environment of litigation is a real problem, especially because litigation has traditionally been a heavily male-dominated profession. But do the Regulations go far enough?

The GSICC

A ten-member Gender Sensitisation and Internal Complaints Committee (“the GSICC”), headed by Justice Ranjana Prakash Desai, has been constituted under the Regulations. The GSICC (through an Internal Sub-Committee of three members constituted in relation to any particular complaint) inquires into complaints of sexual harassment. Such inquiries must be completed within ninety days.

Upon completion of the inquiry, if the complaint is found to be genuine, the GSICC has the power to admonish and also publish such admonition. It can also take other necessary steps to prevent or prohibit future harassment by placing appropriate restrictions on contact between the complainant and the respondent.

Crucially, for deterrence, the GSICC can recommend to the Chief Justice of India, that other orders be passed against the respondent, including orders to debar the respondent’s entry into the Supreme Court precincts up to a maximum of one year. It can also recommend the filing of a criminal complaint and a complaint to a disciplinary authority (such as a bar council). A person aggrieved by an order passed (or not passed) by the GSICC can make a representation to the Chief Justice of India to have it set aside or modified.

Simple and flexible procedure

The standard of proof required for the inquiry procedure is not expressly specified. The inquiry however, has the trappings of civil proceedings with purely civil consequences, which indicates that the normal standard of proof in civil cases would be applicable, that is, the preponderance of probabilities.

The Regulations provide for a relatively simple and flexible procedure for the GSICC and the Internal Sub-Committee. It is appropriate that the GSICC will always be headed by a judge of the Supreme Court as that can ensure consistent adherence to the principles of natural justice and fair play. There may often be an imbalance of power between the complainant and the respondent, which makes it doubly important that the procedure is kept uncomplicated.

While a forensic examination of the Regulations will have to be more detailed, a couple of aspects that may scupper the efficacy of the Regulations in the long term are highlighted below.

Applicability of the Regulations is restricted to the ‘Supreme Court of India precincts’

This is narrower than the concept of ‘workplace’ contemplated under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (and also under the guidelines laid down in Vishaka v. State of Rajasthan. “Workplace” need not be restricted by a brick-and-mortar interpretation, given that sexual harassment has more to do with the relationship and power dynamic between people than the physical space they occupy.

A more considered approach may have to be taken to identify those categories of persons whose relationship with each other has a relevant nexus with the Supreme Court as a workplace, in order that it is appropriate for the administrative jurisdiction of the Supreme Court to extend to their conduct beyond its precincts. An allegation by an intern against a judge of sexual harassment in a hotel room, as a case in point, may well fall outside the purview of the Regulations altogether (See for reference, the amicus petition submitted by Lawyers’ Collective).

Definition of sexual harassment and the scope of the inquiry

In what may be an inadvertent oversight, if a literal interpretation is given to Regulations 2(k)(x) – 2(k)(xiii), the following acts may amount to sexual harassment under the Regulations even if they are not sexually motivated in any manner:

– ‘implied or explicit promise of preferential treatment in her legal career’

– ‘implied or explicit threat of detrimental treatment in her legal career’

– ‘implied or explicit threat about her present or future legal career’

– ‘interference [sic] with her work or creating an intimidating or offensive or hostile work environment for her’

Of course, such acts, if sexually motivated, should fall within the definition of sexual harassment. However, the definition as it currently stands does not require them to be so motivated.

Further, the interpretation of the Regulations vis-à-vis the definition of sexual harassment and the scope of enquiry by the GSICC may also pose problems. For example, sexual harassment can occur via text and electronic messages (Regulation 2(k)(v)). It is difficult to reconcile this with an inquiry whose scope is restricted to sexual harassment ‘at the Supreme Court of India precincts’. It would be impractical to seek proof that such text or electronic messages were either sent from or seen within a particular physical space. Regulation 2(k)(vi) includes ‘stalking or consistently following aggrieved woman in the Supreme Court precincts and outside’, which appears to be incongruous with the geographical limitation otherwise placed on the scope of the complaint or inquiry.

Finally, there may be a day when laws and regulations against sexual harassment will be gender-neutral in all respects.

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is on the roll of solicitors in England and Wales.)

Tags Aditya Verma column, legal profession, sexual harassment, Supreme Court of India

Uncategorized

Sweet sixty-five

In the eleven months between December, 2013 and October, 2014, of the thirty Supreme Court judges in office at the moment, eleven will turn sixty-five and retire. Unsurprisingly, due to the staggered increase in the strength of Supreme Court judges from eight to thirty-one since 1950, this is the highest rate of retirement in the history of the institution by number. Even in terms of percentage (approximately thirty-seven), the proportion is among the highest for any equivalent period (including resignations and deaths in office).

These eleven judges currently preside over all but four of the fifteen benches of the Supreme Court.

Following the convention of seniority, we should expect three judges to hold the office of Chief Justice over this period — the incumbent Justice P. Sathasivam, followed by Justice R. M. Lodha, and then by Justice H. L. Dattu.

While their sheer number makes these changes significant, it is difficult to speculate if they will lead to a change in the institutional character or overall judicial policy of the Supreme Court. Even in administrative and procedural aspects of Supreme Court practice, where the Chief Justice has discretion, due to the relatively short terms of the individual office bearers, it is tough to consistently implement new policies over a reasonable period of time and assess results.

If the Judicial Appointments Commission starts to function during this period, it will provide an opportunity to analyse what rules and conventions it creates for itself, and how it follows them.

From the lawyers’ perspective, there will be some uncertainty about the fate of cases listed for final disposal or regular hearing before particular judges, if arguments in such cases are expected to take more than a week or two, for instance. The quick succession of retirements will pose a serious logistical challenge, particularly to ensure that part-heard cases do not have to be re-argued ab initio before a new bench due to unforeseen circumstances, and that judges have sufficient time to deliberate and write detailed judgements, where necessary. There may also be cause to be wary of cheeky requests for adjournment not explicitly intended to avoid a case being heard before a particular judge!

One may wonder: why do judges retire? Why at 65? Why do they not have the option of continuing as long as they are physically and mentally fit for the role? In theory, Article 128 of the Constitution provides a mechanism for a retired judge to sit and act as a judge of the Supreme Court. In practice, this provision may just as well not exist.

The idea that judges should retire is neither universal nor consistently followed across the world. For instance, appointment to the United States Supreme Court is for the lifetime of the judge (unless a judge resigns or is removed upon impeachment).

A general argument may be raised that not having an age of retirement allows too much power to an individual judge over a long period of time, and, therefore, change is necessary. There may even be a chance that a judge may wish to continue in office without being physically or mentally fit for the role. On the contrary, in India, where the Supreme Court does not sit en banc, the power that an individual judge has, may be limited in practice. The risk of a judge wishing to stay on the bench for the sake of it may be speculative.

In the respective courts of last resort in many other countries, such as the U.K., Australia, and Canada, retirement ages of judges range between seventy and seventy-five. The Justice Venkatachaliah report (2002) recommended sixty-eight as the age of retirement of judges of the Supreme Court of India. The issue of the appropriate age for retirement of judges was discussed at length in the Constituent Assembly Debates as well. Though he eventually agreed with sixty-five in 1949, an excerpt from Jawaharlal Nehru’s speech is a good starting point for the debate:

“This business of fixing age-limits in India in the past was, I believe, governed by entirely the service view. The British Government here started various services, the I.C.S. which was almost manned entirely by Britishers and then later on some Indians came in, and other services. The whole conception of Government was something revolving round the interests of the services. No doubt, these services served the country; I do not say anything against that. But, still, the primary consideration was the service and all these rules were framed accordingly.

…With regard to judges, and Federal Court Judges especially, we cannot proceed on the lines of the normal administrative services… A young man may be exceedingly good, an old man may be bad. But the point is if an old man has experience and is thoroughly fit, mentally and otherwise, then it is unfortunate and it is a waste from the State’s point of view to push him aside, or force him to be pushed aside, and put in some one in his place who has neither the experience nor the talent, perhaps. We are going to require a fairly large number of High Court Judges. Of course the number of Supreme Court Judges will be rather limited. Nevertheless, there are going to be more and more openings, and the personnel at our disposal is somewhat limited.”

Today, if there are more cases than what a thrity-one-strong Supreme Court can decide in a reasonable amount of time, and there are judges who will be of retirement age or older but are able and willing to serve, at the very least, both thrity-one and sweet sixty-five merit a rethink.

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is admitted as a solicitor in England and Wales.)

Tags Aditya Verma column, judges, retirement of judges, Supreme Court

Uncategorized

Judicial appointments – the devil will be in the details

Post author By admin
Post date September 16, 2013
1 Comment on Judicial appointments – the devil will be in the details

The Judicial Appointments Commission (“JAC”) that has been proposed for the appointment of judges to the Supreme Court and the High Courts (“judges”) including the Chief Justice of India does not guarantee better outcomes. The proposal contemplates a more transparent and broad-based process compared to the current “judicial collegium system”. However, it does not make merit the dominant criterion for appointment and so risks making the process subject to elaborate political bargaining.

Role of Parliament: After the 120^th Constitution Amendment Bill (“the Amendment”) is enacted and brought in force, the President will appoint judges on the recommendation of the JAC. According to the Amendment, the Parliament can make law to provide for the composition, functions, and procedure of the JAC, as well as the manner of selection of persons for their appointment as judges. As a consequence, Parliament will also enact and bring in force the Judicial Appointments Commission Bill, 2013 (“the JAC Bill”).

Can the new scheme of judicial appointments upset the balance?

Generally speaking, an amendment to the provisions of the Constitution relating to the appointment of judges requires a two-thirds majority in Parliament, as well as ratification by at least one-half of the legislatures of the States. An ordinary law requires only an ordinary majority in Parliament.

Therefore, after the Amendment and after the JAC Bill becomes the JAC Act, Parliament will only require an ordinary majority to repeal or amend the new law. Theoretically, if a single party were to achieve an absolute majority in Parliament, it could amend the composition of the JAC to suit its own ends, even to the extent of excluding the judiciary from the process completely.

Composition of the JAC: According to the JAC Bill, the JAC will be composed of six persons:

– The Chief Justice of India (the CJI) as Chairperson;

– Two other judges of the Supreme Court next to the CJI in seniority;

– The Union Minister in charge of Law and Justice; and

– Two eminent persons (to be appointed by the “collegium” consisting of the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha).

Views of members of the Bar are not explicitly a part of the appointment process, though the two “eminent persons” on the JAC may well turn out to be legal professionals. For the appointment of judges to the High Courts, the views of the respective Governor, Chief Minister, and Chief Justice of that High Court will also be elicited.

Regulations of the JAC: Crucially, Parliament will delegate to the JAC the power to make regulations specifying its own procedure for inviting recommendations, short-listing candidates, and discharging its functions. These regulations must be laid before Parliament, which will have the power to modify or annul them.

While the Amendment and the JAC Bill reveal who will be responsible for appointing judges and that there will be a procedure specified for appointment, they do not tell us what the procedure will be. That will be specified in the regulations.

Who can be a judge?

According to the JAC Bill, the JAC will have a duty to ensure that the person recommended by it is of “ability, integrity and standing in the legal profession”. This is in addition to the constitutional requirements of prior judicial or advocacy experience that currently apply (ignoring the “distinguished jurists” provision for the moment).

In a pure merit-based system, relevant factors would only be those that have regard to a person’s suitability for judgeship. Judges’ appointments would not be means to any other ends. While it is significant that the JAC Bill provides a merit-based statutory standard for the appointment of judges, an equally relevant question arises about those who may not be appointed despite fulfilling that standard. Unless the regulations of the JAC go on to specify that “ability, integrity and standing in the legal profession” (or a more sophisticated merit-based standard consistent with it) will be the only or dominant criterion, it appears that it would be open to the JAC to consider other factors in appointing judges, provided that the statutory standard is satisfied. (Compare this with a relatively open merit-based selection process for an appointment to the Supreme Court of the United Kingdom).

The challenge faced the JAC: The history of appointment of judges in India is marked by a tussle for control between the executive and the judiciary. Many perceive the JAC to be another salvo in this exchange. This perception can be changed if the JAC will emphasise and give primacy to merit-based factors in its regulations and functioning. Whether it is the collegium system or the JAC, the standards on the basis of which judges are appointed should be more important than the persons who appoint them, bearing in mind that those who appoint must have the necessary information and tools to make that qualitative assessment.

As with the collegium, the success of the JAC, assessed from the perspective of judicial independence and impartiality, will depend on how it will frame its own regulations for inviting recommendations and short-listing candidates, and which factors it will consider while discharging its functions. Without stating standards for selection, there is no inherent reason why influence over appointments of judges by one institution would be preferable over the other.

Read more about the constitutional ping pong that is the history of the debate on judicial appointments in India here.

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is admitted as a solicitor in England and Wales.)

Tags Aditya Verma column, constitutional law, judicial appointments, judicial independence

Supreme Court of India

Access, apps, and arithmetic

Post author By admin
Post date September 2, 2013
No Comments on Access, apps, and arithmetic

Three days ago in Hauz Khas in New Delhi, on Chaudhary Dalip Singh Marg:

Me: “Bhaiya, Supreme Court chaloge?” (Brother (?), will you go to the Supreme Court?)

Auto-driver: “Kaunse waale?” (Which one?)

As I informed him that there is only one Supreme Court in India, ‘India Gate ke paas’ (‘Near India Gate’), I thought to myself whether there was any chance that the auto-driver was subtly driving home the point that the Supreme Court being located only in one place made it relatively inaccessible for the rest of the country, and that smaller benches all over the country was the way to go?

Now, that would be an enlightened auto-driver. He may be right or wrong about Supreme Court benches, but by this standard, the ‘ordinary litigant’ would likely be a truly informed and empowered one!

Of course, what gave the auto-driver away was ‘Ek Saket mein bhi toh hai’ (‘There is one in Saket as well.’). It would have meant precious little to him to learn that ‘Woh toh District Court hai’ (‘That is a District Court’). If the rule of law presupposes that citizens have a basic awareness of their courts, we have a long way to go.

The astute use of technology will doubtless be critical in making courts more accessible. The Supreme Court’s recently released Display Board application for Android mobile devices seems to be an attempt in this direction. After it was released (with some fanfare), I imagined that the app would look something like this:

Current Status - All Courts — Current Status – All Courts

Current Status - Court-wise — Current Status – Court-wise

Search by Court Number + Item Number. Images courtesy Akhil Verma.

At the moment, the application replicates the Supreme Court Display Board as on the website. One hopes that it is a work in progress, with an update to follow soon (there is a Java version as well).

There are harmless quirks, and there are harmless quirks that can result in a case being dismissed for ‘non-appearance’. Imagine that you are an advocate on your very first visit to the Supreme Court. You are nervous, but prepared. You have two ‘matters’ – one each in Court 14 and (the currently unoccupied) Court 15. It looks like you will not have to run around too much because the court rooms should be adjacent.

Beware! As you bound up the stairs from the main entrance, you will see Court 1 (the Hon’ble Chief Justice’s Court) in front of you, flanked by Courts 2 and 5 to your left, and Courts 3 and 4 to your right.

You eventually figure out that Courts 6-15 are accessible through a long corridor leading to the other end of the compound. The first room to your left after the corridor, thankfully, is Court 14. Phew! Next to that is… Court 12. Confused? Where is Court 15, or even 13 for that matter! You run along further, crossing 10, 8, and 6. Then 7, 9, 11, and 13, after which is 15 (more than 100 metres away from Court 14).

Remember: 5, 2, 1, 3, 4; 14, 12, 10, 8, 6, 7, 9, 11, 13, 15 (counting anti-clockwise).

Why this sequence? Beats me, though a Court by any other number would be just as cramped for space.

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is admitted as a solicitor in England and Wales.)

Tags access to justice, Aditya Verma column, Supreme Court, Supreme Court Android App, Supreme Court building

Supreme Court of India

What are we here for?

“We are here to help you.”

One can imagine these words being uttered by a salesperson, or even printed in bold on an advertisement for the Delhi Police. It is not what one would, as a matter of fact, expect to hear in a court room; definitely not from the presiding judge.

Yet, remarkably, in the Registrar’s Court No. 2 a few days ago, when a petitioner-in-person lost his cool — agitated and frustrated that his case would again not be listed before the Supreme Court for hearing because service of documents was not complete on all respondents — these simple words were what the presiding judge had for him.

These words are remarkable, not because the presiding judge sensibly preferred them over a stern rebuke to the petitioner-in-person for violating the decorum of the Court, nor simply because they demonstrate an acknowledgement of the emotional pitfalls of litigation, especially for those courageous enough to fight their own cases without a lawyer; these words are remarkable because they force all of us to examine the question “What are we here for?”

What is the purpose – of the Supreme Court, its judges, its staff, its advocates, its litigants, its reporters, its commentators, and other stakeholders? In assessing our respective roles in the administration of justice, is there a lens we can use that is not teleological, and if not, what does this lens show us?

Au contraire, are we fooling ourselves by evoking a singular, grand purpose of participation in the administration of justice for all players, if only because such a purpose is a Sisyphean one? Perhaps it is more appropriate to accept that the administration of justice is nobody’s responsibility. Things are what they are for no cause attributable to anybody in particular. Therefore, individual actors need not be mindful of their actions beyond their explicit obligations.

By referring to current judgments and institutional developments at the Supreme Court, as well as opinions, comment and anecdotes, this fortnightly blog will offer a space for reflection.

If you are in any way associated with the Supreme Court, chances are that your association has lasted longer than mine (barely a year now). Your thoughts, suggestions, and — I hope there will be no need for these — corrections, are most welcome.

Next fortnight

Have you tried the Supreme Court’s Android app?

5, 2, 1, 3, 4, 14, 12, 10, 8, 6, 7, 9, 11, 13, 15 – if these numbers mean nothing to you, you are yet to take your first steps in decoding the Supreme Court’s institutional grammar.

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is admitted as a solicitor in England and Wales.)

Tags Aditya Verma column, Supreme Court of India