Thursday, March 16, 2017

DUSHYANT DAVE - Judiciary Under Siege as the Executive Flexes its Muscles // KIRAN KUMBHAR: Mob Violence and the Perils of Remaining Meek

Judges whose rulings have gone against the BJP and its leaders are discovering that their prospects for advancement have been blocked.

Should the proceedings of the Supreme Court collegium – which clears appointments to the higher judiciary – go unchecked? In larger public interest, I feel the process of appointment must be more open and objective. The collegium’s recent decisions – non-transparent and secretive – have left the legal world surprised, if not shocked. The decisions do not appear to be objective or independent. 
Pertinently, these decisions have come after the present Chief Justice of India, Justice Jagdish Khehar took charge of the apex court on January 4, 2017, after he presided over a constitution bench which delivered the judgment in a case relating to the National Judicial Appointments Commission (NJAC) on October 16, 2015. The court rejected the NJAC Act which gave politicians and others a say in the appointment of judges.

That the collegium has to be objective in its decisions has long been emphasised by the Supreme Court. “The Chief Justice of India, for the formation of his opinion, has to adopt a course which would enable him to discharge his duty objectively to select the best available persons as judges of the Supreme Court and the high courts,” a bench of nine Supreme Court judges said in a judgment delivered on October 6, 1993, in the case of Supreme Court Advocates on Record Association and others v Union of India.

“Due consideration of every legitimate expectation in the decision making process is a requirement of the rule of non-arbitrariness and, therefore, this also is a norm to be observed by the Chief Justice of India in recommending appointments to the Supreme Court,” it observed, stressing that “merit” was the “outweighing consideration” for selecting judges to the apex court. The rationale behind it, inter alia, was the necessity to “eliminate political influence”; the “constitutional purpose” was to select “the best from amongst those available” for appointment as judges of the superior judiciary.

“It is obvious that only those persons should be considered fit for appointment as judges of the superior judiciary who combine the attributes essential for making an able, independent and fearless judge… Legal expertise, ability to handle cases, proper personal conduct and ethical behaviour, firmness and fearlessness are obvious essential attributes of a person suitable for appointment as a superior judge,” it said. But the recent decisions on the appointment of judges by the collegium leave much to be desired. The cases of Justice K.M. Joseph, chief justice of the Uttarakhand high court, and Justice Jayant Patel, the senior most puisne judge of the Karnataka high court, are classic examples of the destruction of the “legitimate expectations” of two of the most independent judges in the country. Both seem to be paying the price for their independent judgments in the president’s rule case in Uttarakhand and Ishrat Jahan’s case in Gujarat. These judgments are unpalatable to the Narendra Modi government at the Centre.

Though Chief Justice Joseph was earlier slated to be transferred to Andhra Pradesh by a decision of the previous collegium to which some of the members of the present collegium are party, it has not been implemented. He deserved to be elevated because the law seeks to “select the best from amongst those available”. This is not to comment on the merits of the five recent appointees to the Supreme Court who are equally outstanding. But there are three more vacancies in the Supreme Court today. So why was Chief Justice Joseph excluded?

Justice Patel, appointed on December 3, 2001, is senior to four of the five recent appointees. For no reason he is not being confirmed as chief justice although the previous collegium had recommended the transfer of the incumbent chief justice out of Karnataka to facilitate the appointment of Justice Patel in his place. More painful is the fact that the collegium has recommended nine judges for appointment as chief justices in nine high courts. Each of them is junior to Justice Patel by periods ranging from two months to four and a half years. Why so? Justice Patel deserved to be considered for the Supreme Court even directly because Gujarat has no representation on the bench or at least be appointed as the chief justice of an important high court... Read more: 

March 12 was another sad day for the medical profession and the patient-doctor relationship in India. Photos and videos of resident doctors being brutally beaten in a government hospital in Maharashtra’s Dhule have been doing the rounds on social media. As happens so often, the voices of agitating doctors will be given temporary sympathetic ears by the public and by authorities, and then, in a few days, things will go ‘back to normal’. Whether it is violence against doctors in hospitals or against students on campus, we are a society that never collectively condemns mob violence – and that has perhaps been the most important reason we see such attacks happening with increasing frequency and legitimacy.

The socially legitimised hooliganism of the Shiv Sena and its so-called sainiks is a relevant example. I grew up in the Konkan, a traditional power base of the Shiv Sena, and their unique chest-thumping and bullying are part of my childhood folklore. Years later, I encountered these yet again, from an aggressive district leader, during my stint as a medical officer in the region. At 23 years, I was no less aggressive and was was able to shut him down (it was, fortunately for me, just a verbal duel). It helped that I was a local and that he knew that. Otherwise, as happens in most instances, medical officers are forced to give in to the orders (sugarcoated as requests) of politicians – admit this friend to the specia ward, sign a month-long medical leave for this gentleman, do not discharge this saheb, often a criminal avoiding incarceration.

Dealing with borderline goonda politicians is a routine for doctors all over the country, and many have learnt to interact with them in ways that avoid trouble both to themselves and to their professional integrity. Dealing with out-and-out goondas, however, is a different matter altogether. It is a unique Indian situation, taking birth from a combination of a generally inept police and judicial system, and a culture that considers violence to be a legitimate form of argument and protest. Dozens of assaults on doctors, especially resident doctors in government hospitals, occur every year. For example, early last month, a BJP MP assaulted some doctors in a Karnataka town. Last year, doctors were beaten up in, among other places, PuriPatialaNanded and Mumbai. The list is endless.

Each of us has a set of reasons we consider ‘strong enough’ to warrant violence, a threshold that legitimises violence. My primary appeal here is that it is high time we got rid of such a worldview. There is no reason whatsoever that justifies mob violence or physical assault. t has been painful over the years seeing my fellow doctors experiencing the humiliation of being beaten up publicly, and enduring physical and mental and physical trauma after. Often when such assaults happen, we hear news of doctors threatening to strike, demanding (in fact, begging for) government and public cooperation to prevent such incidents in future. But the incidents are soon forgotten. No wonder, when most resident doctors in government hospitals live in constant fear of being beaten up.

When film director Sanjay Bhansali went through a similar violent experience last month, one thus expected doctors to spontaneously empathise with him. I was disappointed when that did not happen, but in many ways, it was unsurprising. Like the average Indian citizen, many Indian doctors too – despite their high level of education – harbour parochial views about religion and caste, and have their own threshold of what they would consider ‘legitimate violence’. While they conveniently exclude the violence that patients and their kin wreak on them, they either openly condone or stay mum about other forms of desi violence.

For example, when in February 2016, I, like hundreds of academics around the world, extended support to the journalists and JNU students who were bullied and beaten up by mobs, many of my doctor friends cursed me. Besides, being a Maharashtrian, I also know of many doctors who have no moral qualms about supporting the mob violence that is typical of the Maharashtra Navnirman Sena, Sambhaji Brigade and the Shiv Sena. It is this contradiction of feeling entitled to absolute protection from mob attacks but not raising a voice when other citizens suffer similar violence, that India’s medical community urgently needs to discuss and introspect on… read more

see also
A letter to Jaitley: Why do students get jailed but RSS leaders who issue vile threats walk freely?