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Understanding the value of the past

The draft NEP presented the government with a fantastic opportunity to institutionalise the process of truth and reconciliation by revamping its approach to history, instead of the partisan propagandic role history has been employed for over seven decades.

J. Sai Deepak

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Legendary West Indian cricketer Michael Holding recently delivered a powerful message on the ongoing #BlackLivesMatter movement which has taken the United States of America by storm and has started a global conversation on racism, in particular with respect to the stereotypes associated with members of the African community in predominantly White countries. While there are several relevant threads from an Indian perspective to pull from Holding’s heartfelt and deeply emotional message, following are the excerpts which this author wishes to focus on for the purpose of this piece:

“I hear people talking about brainwashing. I didn’t quite understand as a young man what brainwashing meant. I now understand what brainwashing means. We have been brainwashed, and not just Black people, White people have been brainwashed in different ways. I go back many years, think about religion. You and I are supposed to be Christians. I am not really a very holy person, not a very religious person. That’s what we were taught. Look at Jesus Christ, the image that they give you of Jesus Christ- Pale skin, blonde hair, blue eyes, where Jesus came from, who in that part of the world looks that way? But again, that’s brainwashing to show you this is what perfection is, this is what the image of perfection is. If you look at the plays of those days, Judas who betrayed Jesus is a black man. Again, brainwashing people to think “oh he is a black man! He is the bad man!”. Go through history…

These lights that are shining on us, you can tell me who invented the light bulb, right? Thomas Edison, right? Everybody knows Thomas Edison invented the light bulb. Thomas Edison invented the light bulb with a paper filament. It burnt out in no time at all. Can you tell who invented the filament that makes these lights shine throughout? Nobody knows, because he was a black man! I was not taught in schools. Lewis Howard Latimer invented the carbon filament to allow lights to continuously shine. Who knows that?! Everything should be taught! When you go back to schooling as a young man, I remember my school days. I was never taught anything good about black people.

 And you cannot have a society that is brought up like that, both white and black, that only teaches what’s convenient to the teacher. History is written by the conqueror, not by those who are conquered. History is written by the people who do the harm, not by the people who get harmed. And we need to go back and teach both sides of history and until we do that and educate the entire human race, this thing will not stop. They keep on telling me, “There’s nothing called White Privilege”. Give me a break! I do see white people going into a store and I don’t see them being followed. A black man walks in, somebody is following him wherever he goes. That is basic white privilege!…. and things like that have to change!”

 A thousand supremely qualified academics, educators, psychologists and historians can write tomes of books and reams of literature to make the very same point in a circumlocutory and esoteric fashion, but Michael Holding has hit the nail on the head- there is a clear and direct psychological impact of history education in schools on a community’s self-identity at the individual and collective planes, and the way the world perceives and treats members of the community.

While it would be factually incorrect to draw exact parallels between the Indic experience at the hands of various colonizers and the oppression suffered by Africans in different parts of the world, perhaps the common thread is the experience of dehumanisation through slavery which was religiously justified and institutionalised by various forms of colonialism. In fact, indigenous communities of Bharat have suffered bloodier forms of oppression for a longer period of time with the result being that members of several communities suffer from transgenerational trauma, which the Indian State has been conveniently oblivious to thanks to its conscious policy of historical amnesia since the 1950s.

The continued insensitivity underlying the said approach has been sought to be justified on grounds of preserving social harmony, when the fact remains that the fragility of this pretence of harmony is exposed so often that harmony is the exception and is rarely intentional. This thoroughly exposes the Indian State’s inability to wrap its head around the importance of presenting true history before the society so that the right lessons are drawn by all stakeholders. In general, one of the central purposes of teaching history is to ensure that, while the current generation cannot be held responsible for the reprehensible behaviour of its ancestors, there is sufficient disincentive in the form of social sanction against repeating such behaviour. This is the very object of memorializing the trauma of the past.

The Indian State’s failure to grasp this basic role of history education is one of the single biggest reasons for the existing fissures in the Indian society, and if the 484-page Draft National Education Policy 2019 (“the Draft NEP”) is anything to go by, there is no sign of improvement on this front. The Draft NEP presented the Government with a fantastic opportunity to institutionalise the process of truth and reconciliation by revamping its approach to history, instead of the partisan propagandic role history has been employed for over seven decades. However, there is no sign in the document that the Government has either the intent or the stomach for such an exercise.

While the Draft NEP (a) indicates a review of certain accepted premises of the Indian education system and (b) tentatively attempts to proffer a path which remoulds the system in a manner which is consistent with Indic civilizational ethos and aspirations, it appears that this is more inadvertent and incomplete than intentional and comprehensive. As a consequence of this diffident approach, the Draft NEP lands a half punch. For a nation which aspires to be a “Vishwaguru”, the Draft NEP lacks the civilizational confidence needed to revamp the education system to be able to achieve that status in the foreseeable future.

Even if such a lofty purpose were not placed at the centre of this exercise, at the very least the NEP is expected to be sensitive to the long existing and emerging challenges which can be traced to the Indian education system, right from the history curriculum which actively aids the maleficent process of historical amnesia, to the science curriculum which reinforces the accepted false notion that science and reason are essentially Western constructs which have been imported to civilize the superstitious natives.

The sad irony is that while colonizers had no compunction benefitting from Indic knowledge systems despite perpetuating negative stereotypes about it through the education system to deprive the native of his/her sense of selfworth, Indian education policy makers have had no qualms whatsoever in perpetuating the same mindset to the detriment of the present and the future, and certainly at the expense of the past. In other words, independent India has continued with the very same education system which was designed to produce glorified Anglicised colonialised subjects, instead of producing rooted, civilizationally aware and confident thought leaders, entrepreneurs and nation builders. In short, any Indian achievement is despite the education system, and not because of it.

Another critical aspect of the Draft NEP which is inexplicably terse (a single Paragraph) in its comments and suggestions for improvement, is legal education. The Draft NEP appears to be comfortable with the fundamental Anglo-Saxon outlook of the Indian legal system and makes no attempt to introduce and mainstream Indic legal jurisprudence, logic and reasoning as part of legal curriculum and as part of law-making in the country. This reflects a deep-seated ignorance, apathy and perhaps even a self-loathing approach to the native legal systems which held this civilization together even when it was not a single political unit.

Policy makers appear to be indifferent to the impression that exists in the minds of young law students and practitioners that concepts of justice and rule of law are necessarily and solely attributable to Western thought. No wonder even the highest Court of the land looks to the West for inspiration, as opposed to drawing from the vast ocean of Indic jurisprudence which is much more in sync with the native pulse of this land.

The bottom line is that the #BlackLivesMatter movement has stirred discussions across the globe which have long been brushed under the carpet for various reasons. Bharat must benefit from the momentum provided by this movement to ignite those discussions within its society which have been considered politically incorrect and taboo for generations for the fear of “hurting sentiments”. For a civilization which constantly reiterates its belief in the power of truth, it is sad that its descendants do not seem to have the courage of their conviction to let the truth do the talking through history books. If the truth doesn’t stand a chance in Bharat, does Bharat at all have the right to aspire for the status of “Vishwaguru”?

 J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

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Legally Speaking

LABOUR LAW: ASSESSING LIABILITY AND OBLIGATION OF PRINCIPAL EMPLOYER AND CONTRACTOR

In recent times, there have been sincere attempts to ensure that employees/workers are adequately compensated.

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Employee benefit plans and investment schemes are a vital part of the overall compensation package of employees and acts as an important social security parameter for a large workforce in India. While such benefits surely boost the welfare of the bottom line in the short run, a cohesive employee benefit and investment package ensures prosperity of the organization in the long run inasmuch when the employees feel that the benefits and financial security provided by their job is adequate, they tend to be more productive. Over the last few decades, a huge emphasis has been given by the legislature to these investment schemes and benefits to ensure that the employees / workers are adequately compensated. The Employees’ Provident Fund (“EPF”), the Employees’ State Insurance (“ESI”) and Gratuity have been of particular emphasis and importance in this regard. While separate legislations have been enacted to operationalize the payment / deduction of EPF, ESI and Gratuity, namely the Employees’ Provident Funds & Miscellaneous Provisions Act, 1952 (“EPF Act”), the Employees’ State Insurance Act, 1948 (“ESI Act”) and the Payment of Gratuity Act, 1972 (“Gratuity Act”) respectively, the obligation to make such payments / deductions still remains an issue of concern and contention. In most cases, the Principal Employer attempts to shift the liability of the payment / deduction to the Contractor and vice versa. While there are a line of judicial precedents coupled with the provisions of the EPF Act, ESI Act and Gratuity Act which bring about clarity to the issue of liability, it can be often seen that Principal Employers and/or Contractors attempt to evade this liability by misinterpretation and/ or ignorance of law, thereby resulting in prejudice to the workers and protracted litigations thereafter.

DEDUCTION / PAYMENT OF EMPLOYEES’ PROVIDENT FUND UNDER THE EPF ACT

Section 2(e) of the EPF Act defines ‘employer’ in relation to the EPF Act and includes the owner, occupier and/or the person who has the ultimate control over the affairs of the establishment. Further, Section 2(f) defines ‘employee’ which includes any person who gets, his wages directly or indirectly from the employer and specifically includes any person employed by or through a ‘contractor’. Additionally, paragraph 30 of the EPF Scheme, 1952 (“EPF Scheme”) stipulates that the payment of employee contributions (including Employees’ Provident Fund) and those pertaining to the Contractor, shall be the obligation of the ‘employer’. On a perusal of the aforementioned provisions, it appears that the Principal Employer shall be liable for all PF contributions, including for those belonging to the labourers / workers of the Independent Contractor, particularly in view of paragraph 30 of the EPF Scheme. Further, Section 2(f) includes within its ambit even those persons who are appointed through an Independent Contract, which gives the impression that the Principal Employer would be liable for all statutory disbursements / deductions pertaining to such employees, including PF contributions. However, judicial precedents on the issue have clarified the position in relation to the liability of Principal Employer and the Independent Contractor pertaining to the payment of PF contributions. It has been repeatedly held by Courts that in the event the Independent Contractor operates independently having its own code, it would be liable for the PF deductions / disbursements themselves and such liability cannot be imputed on the Principal Employer. The High Court of Madras in its ruling in The Madurai District Central Cooperative Bank Ltd. v. EPFO [2012 LLR 702], while dealing with a situation where an independent code was allotted to the Independent Contractor, clearly stipulated that the obligation under paragraph 30 of the EPF Scheme would only fall on the Principal Employer in the event the Independent Contractor does not have an independent code. However, when such independent code has been obtained, the independent contractor shall be liable for all PF payments. Similarly, the High Court of Madras in its ruling in Brakes India Ltd. v. EPFO [2015 (2) LLN 233 (Mad.)] while dealing with the aspect of PF deductions / contributions by the Principal Employer and/ or the Independent Contractor wherein the Independent Contractor had an independent PF Code, relied on the aforementioned ruling in Madurai District Central Cooperative Bank Ltd of the High Court of Madras and held the Independent Contractor shall have the liability in relation to the PF payments. Further, the High Court of Punjab and Haryana at Chandigarh in its ruling in Calcutta Constructions Company v. Regional Provident Fund Commissioner and Ors. [2015 (146) FLR 579] has held on similar lines that in the event the Independent Contractor has an independent code, such Independent Contractor shall be liable for the PF contributions and not the Principal Employer.

DEDUCTION / PAYMENT OF EMPLOYEES’ STATE INSURANCE UNDER THE ESIC ACT

 Section 2(9) of the ESI Act has stipulated the scope and ambit of ‘employee’ in relation to the ESI Act and includes anybody who is employed through an immediate employer and who works under the supervision of the Principal Employer. Clearly therefore, pursuant to the aforementioned provision, the workers of the Independent Contractor over which the Principal Employer has control and supervision would fall within the ambit of employee under the ESI Act and their monetary liabilities would have to be taken care of by the Principal Employer. However, the element of ‘supervision’ becomes extremely crucial to determine the liability of the Principal Employer for monetary deductions / disbursements. The Division Bench of the Madras High Court in its ruling in South India Surgical Company v. The Regional Director, ESIC [L.P.A. No. 74/1992], while dealing with an issue relating to ESI disbursements / deductions by the Principal Employer and/or the Contractor, held that when the Principal Employer had no control and supervision over the workers of the Independent Contractor, such workers would not fall within the ambit of Section 2(9) of the ESI Act and accordingly would not be ‘employees’ as per the Act. Clearly therefore, the ESI compliances in relation to such workers would have to be taken care of by the Independent Contractors. A Full Bench of the Madras High Court, thereafter in its ruling in ESI Corporation v. Bethall Engineering Company [C.M.A. (NPD) No. 1765 of 1999], while relying of the aforementioned Division Bench decision of the Madras High Court in South India Surgical Company held that in the event the Principal Employer does not exercise ‘supervision’ over the workers of the Independent Contractor, then such workers would not fall within the ambit of ‘employees’ under Section 2(9) of the ESI Act and the monetary liabilities in relation to the workers would accrue to the Independent Contract in such case. Similarly, the Madras High Court in its ruling in Deputy Director, Insurance No. V, ESIC v. India Pistons Repco Limited [C.M.A. No. 1516 of 2010] held that the liability of ESI would only on the Principal Employer when the Principal Employer controls and supervises the work in relation to the workers of the Independent Contractor, otherwise, such liability would be imputed to the Independent Contractor.

DEDUCTION/PAYMENT OF GRATUITY UNDER THE GRATUITY ACT

 Section 1(3) of the Gratuity Act stipulates the scope of the Gratuity Act and includes within its ambit ‘establishments’ within the meaning of any law and/ or where ten or more employees are employed. Section 2(f) of the Gratuity Act defines ‘employer’ to be the authority having control and supervision of the employees working in the establishments. Further, it is pertinent to note that Section 2(e) of the Contract Labour (Regulation & Abolition) Act, 1970 (“Contract Labour Act”) defines establishment to include any place where any industries, trade, business or manufacture or occupation is carried out. Additionally, Section 2 (vi) of the Payment of Wages Act, 1936 (“Payment of Wages Act”) becomes relevant inasmuch it defines ‘wages’ and includes sums on the termination of the employment of the person. The aforementioned provisions clearly give the impression that the Principal Employer shall be responsible for the payment of gratuity in relation to the workers of the Independent Contractor inasmuch such Principal Employer shall be an ‘establishment’ and liable for wages on termination, which would include gratuity. However, Section 21(4) of the Contract Labour Act stipulates that in the event the Independent Contractor fails to make payment of wages, then the same shall be paid by the Principal Employer which can thereafter be recovered from the Independent Contractor. Accordingly, Section 21(4) of the Contract Labour Act makes it clear that if the primary liability for payment of gratuity to its workers lies on the Independent Contractor, in the absence of which the liability shall lie on the Principal Employer. In the aforementioned context, the Madras High Court in its ruling in Madras Fertilizers Limited v. The Controlliing Authority, Assistant Commissioner of Labour (Gratuity) and Ors. [2003 (97) FLR 275], while dealing with the aspect of gratuity compliances pertaining to the Principal Employer and/or the Independent Contractor, categorically held that in the event the Independent Contractor, who has engaged the workmen does not pay gratuity, then pursuant to Section 21(4) of the Contract Labour Regulation Act, the Principal Employer shall be liable to pay such dues and then recover the same from the Independent Contractor. The aforementioned ruling therefore clearly stipulated that the Independent Contractor, who hires the labourers, shall fall within the ambit of ‘establishment’ in the Contract Labour Act and accordingly the primary liability to pay gratuity would be on such Independent Contractor. In the event such Independent Contract does not fulfill its obligations of paying gratuity, the same shall be fulfilled by the Principal Employer. The Bombay High Court, thereafter, in its ruling in Cummins (I) Limited and Ors. v. Industrial Cleaning Services and Ors. [2017 (1) ARB 705] held on similar lines that in the event the Independent Contractor does not pay gratuity to its workers, the Principal Employer shall pay the same and thereafter recover the amounts from the Independent Contractor. Further, The Madras High Court recently, in its ruling in Superintendent Engineer, Mettur Thermal Power Station v. Appellate Authority, Joint Commissioner of Labour, Coimbatore and Another [(2012) 3 CLR 243], while relying on the decision of the Madras High Court in Madras Fertilizers Limited, held the Principal Employer shall pay the gratuity and recover the same from the Independent Contractor in case of defaults by the Independent Contractor.

CONCLUSION

1. In the light of the aforementioned legal analysis, the following conclusion can be derived in relation to statutory contributions / deductions pertaining to EPF, ESI and Gratuity: i. In the event the Contractor / Sub-contractor has an independent code, the Principal Employer shall not be liable to make PF deductions / contributions pursuant to paragraph 30 of the EPF Scheme and such liability shall be on the Contractor / Sub-contractor. ii. In the event Principal Employer exercises supervision and control over the workers of the Independent Contractor, then such workers would fall within the ambit of Section 2(9) of the ESI Act, and accordingly the ESI liabilities would accrue to the Principal Employer in such case. Otherwise, such liability would be imputed to the Independent Contractor. If the Contractor / Subcontractor has defaulted in its gratuity payments, the Principal Employer shall be liable to make such payments and thereafter recover such amounts from the Contractor / Sub-contractor.

On a perusal of the aforementioned provisions, it appears that the principal employer shall be liable for all PF contributions, including for those belonging to the labourers/ workers of the independent contractor, particularly in view of paragraph 30 of the EPF Scheme. Further, Section 2(f) includes within its ambit even those persons who are appointed through an independent contract, which gives the impression that the principal employer would be liable for all statutory disbursements / deductions pertaining to such employees, including PF contributions.

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Public servants & rule of law: An analysis

A person who does any rash or negligent act which puts the human life or personal safety of others in danger can be punished under Section 336. A negligent act is that act which is committed without taking reasonable and proper care as the circumstances required. Similarly, a rash act is that act which a person commits with the consciousness that harm might be caused to someone by that act but still commits with the hope that it will not.

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With the lockdown opening again, the realization sets in that the second wave of the pandemic came and became a horrifying nightmare come true. India was in international eyes as India recorded lacks of news infections and thousands of deaths every day. The sudden upsurge in cases saw hospitals filled and an acute shortage of oxygen beds, oxygen cylinders, medicines and oxygen concentrators. What we also saw was people losing their loved ones. Everyday praying to not hear of another death. Undoubtedly, to some extent, every individual has his share of responsibility to stay safe. However, the responsibility of the state and its various organs who have duty to manage and foresee the situation is much more. When the second wave came on its peak, sadly the members of State organs instead of fulfilling their responsibilities committed some grossly negligent acts which may fasten criminal liability upon them. We have examined the criminal liability of these state instrumentalities in the view of the conduct of super spreader events, which directly stem out of maladministration.

WHETHER THERE IS ANY IMMUNITY AGAINST CRIMINAL CHARGES

The answer is no. This can be inferred from a judgement of the Apex court wherein it has held that Council of Ministers are public servants within the meaning of Section 21 of Indian Penal Code (IPC) and thus, offences defined under IPC apply equally to Council of Ministers as well as members of Election Commission. However, this immunity is subject to a procedural requirement provided under Section 197 CrPC.

(i) Officials may be held liable under Section 336 and Section 269 of Indian Penal Code, 1860

A person who does any rash or negligent act which puts the human life or personal safety of others in danger can be punished under Section 336. A negligent act is that act which is committed without taking reasonable and proper care as the circumstances required. Similarly, a rash act is that act which a person commits with the consciousness that harm might be caused to someone by that act but still commits with the hope that it will not.

Now let’s see what happened in India, the event of Kumbh Mela Shahi Snan was allowed to happen without following Covid protocols where even Chief Minister of the State was seen without any mask. It was also reported that thousands took the bath in the Ganges without a mask and COVID-19 negative report. All this happened without taking any proper and reasonable care. These facts clearly make the case of a rash and negligent act which endangered the lives of indefinite amount of people.

Then comes the political rallies. Most of the political leaders were found flouting the Covid protocols i.e., not wearing a mask. Election Commission forced the teachers and investigators to perform their duties in the absence of RT-PCR Test. By virtue of Section 32 IPC, the commitment of an offence by performing an act is equivalent to commitment of offence by not taking any action. Thus, the act of members of Election Commission of being mute spectators to the violations of covid protocols by political parties, it makes them liable under Section 336 IPC read with Section 32 IPC.

Proceeding next, a person who commits any act even when he knows that he by that act may spread a disease which is dangerous to life is punishable under Section 269 IPC. It needs no explanation that officials knew that allowing these super spreader activities in the pandemic without following necessary Covid protocols led to the spread of this deadly disease.

It is also important to note here that the “doctrine of contributory negligence” i.e. that the victim too was negligent along with accused does not apply to criminal cases. Thus, the defense that the people in rallies were themselves negligent would not be considered as a legitimate defense if the officials themselves were negligent under these sections.

(ii) Officials can also be made liable under Sections 337, 338 and 304A IPC

Apart from the liabilities mentioned above, if it is proved that any person contracted the disease only from the place of rally or polling station, these officials can be made liable under Section 337 IPC. Further, if the level of infection was so high that it nearly endangered the life of that patient, the officials would be liable under Section 338 IPC. More severely, if it is proved that the person died due to the infection, the officials can be held liable under Section 304A IPC. In fact, the Allahabad High Court has taken judicial notice of the death of 135 persons who were on election duty during Panchayat elections in the State due to Covid-19 because the social distancing norms were not followed at counting areas.

(iii) Liability under Disaster Management Act, 2005

Clause (b) of Section 51 of the Act may also make them liable because they have not followed the directions issued by Government under this Act. The Union Home Ministry has mandated the strict compliance of wearing masks in public places. The refusal of the wearing of masks by the officials in elections may make them liable under this provision.

Further, Section 55 further makes the heads of Department liable if any offence is committed by a specific department. The conduct of the Election Commission which did not mandate the RTPCR tests during elections makes its officials liable under Section 55 of the Act.

CONCLUSION

Clearly, the facts show incidents of clear injustice to the people. The question arises what can be done? The apex court may take action on its own against the officials if it is of the opinion that injustice has been caused to public. Additionally, anyone can also file PIL in Supreme Court under Article 32 or High Court under Article 226 of the Constitution to remedy the injustice caused because of the deprivation of right to life guaranteed under Article 21 of the Constitution. The courts have now become chief social activists by giving interest to society’s paramount importance and instituting legal actions against the criminal acts happening in the country to protect the rights of its citizens. It’s the time for courts to exercise that power.

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Legally Speaking

Forum shopping: Responsibility to recuse, but when

The problem of forum shopping can be congruously solved by the very judge who has been requested to recuse by his deliberation upon the matter on the basis of facts presented whether his recusal is appropriate for the case or whether the application for his recusal reeks malice. Further impetus can also be provided toward curbing the practice of forum shopping by penalising such litigants and their counsel for their effort toward perversion of the course of justice.

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Litigant cannot be permitted to browbeat the court by seeking a Bench of its choice.

Justice M.R. Shah

INTRODUCTION

Judges like other human beings are at times prone to succumb to their emotion while delivering their judgment instead of applying proper and sound reasoning to substantiate their decision. While most of the time it goes unnoticed, there are instances when it becomes too evident to be ignored by arguing counsel and justice seeking client before his bench. This change in heart while delivering judgement can be attributed to their prior personal or incidental experience of the Judge. While this unintended bias is possible this is not the case all the time. Such instances are used as a means to secure a judge who has a lenient attitude towards the litigant’s case. This practice of securing a more compassionate judge toward for the litigant is called forum shopping.

While, forum shopping predominantly relates to selection of country on the basis of laws in international transaction which appears more favourable in nature, this concept has now seeped into our own municipal legal system with clients trying to have their case presented before a judge who is considered more inclined to deliver judgement in favour of him or his class of litigant. The concept of forum shopping does not find any place in our statute books but numerous precedents and judgements delivered by Hon’ble Supreme Court and numerous High Courts has composed a basic jurisprudence around it.

SUPREME COURT AND HIGH COURTS’ VIEW ON THIS ISSUE

Justice Gautam Patel of Bombay High Court in the recent case of Raja Mahendragir & Anr v Shankuntaladevi Shankar Puri, came down heavily on the litigant seeking his recusal on the ground that his client will never get justice from him. The contention of litigant and his counsel were on flimsy grounds comprising of a string of judgements delivered on similar matter by him against a class of litigant to which the present litigant belonged. In his application requesting for recusal, he stated that,

“From the orders passed by the Honourable Justice G.S. Patel till this day as well as his way of working of not giving to the real heir enough opportunity to collect the necessary documents, I have become absolutely certain that I will never get justice from him. Hence, our aforesaid matter may kindly be transferred from his Court to some other Court as we have no faith in him.”

Thus, it was an identifiable trend in the Judge’s judgement (whether the trend identified by the litigant was erroneous or not the author does not wish to comment) which prompted the litigant to seek his recusal which was ultimately dismissed.

The Hon’ble Supreme Court has not just disapproved such practice but also depreciated it considering the effect it evidently has on the image of the impugned Judge and the Judiciary as a whole. In the case of M/s Chetak Construction Ltd. v. Om Prakash & Ors, the court deliberated upon the issue at length and remarked that litigants endeavour for forum shopping cannot be allowed by courts in the interest of impartial justice delivery system. The court further opined that, “A litigant cannot be permitted choice of the forum and every attempt at forum shopping should be crushed with a heavy hand”. The court in the aforementioned case categorised a set of acts which can be considered as forum shopping. Primary among them were.

Requesting the concerned Judge to recuse himself on flimsy grounds of conflict of interest.

In cases where the presiding Judge has a conflict of interest and has an inherent interest in the output of the case, he is required to recuse himself from the bench deliberating upon it. This is because; there is a possibility that the Judgement delivered by the Judge might be biased. While this rule is an unwritten one governed by good conscience and moral rectitude of the Judge, at times, this rule is used by litigants to have a judge recused from the case who has a record of delivering judgements not in favour of litigant belonging to particular class. Such instance puts the Judge in a state of topsy turvy where the Judgement he will be delivering at a future date will most probably be brought to question for its healthfulness.

By stipulating the valuation of suit in manner which put it before a judge or court of preferable jurisprudential standing.

One other way to have the case brought before a favourable court is to have the valuation according to the requirement of the preferred court. The jurisdiction of a court is determined by the plaintiff’s valuation in the plain. For instance under Andhra Pradesh Civil Courts (Amendment), Act, 2018, a case amounting to 20 Lakh Rs will be presented before Junior Civil Judge, cases amounting to between 20 Lakh to 50 Lakh Rs will be before Senior Civil Judge and cases amount to above 50 lakh will be before District Court. The litigant in such a situation will be within his right to stipulate the valuation in his Suit at such amount on reasonable grounds in order that his case may be presented before a judge or class of judge who is more likely to deliver judgement in his favour.

Appeal to superior court on not attaining a favourable Judgement

While this category cannot be considered as a mode of forum shopping per se but it has been used by litigants to have a critical judgement overturned on appeal in favour of him.

The principle laid down in the case of M/s Chetak Construction Case was further reiterated in the recent case of Neelam Manmohan Attavar v. Manmohan Attavar by a division bench of Hon’ble Supreme Court.

The law in this realm was succinctly laid down in the case of Seema Sapra v. Court on its own Motion wherein the court drew support from the Schedule Three of Indian Constitution which provides Oath of Judge for Judges of High Courts and Supreme Court requiring them to duly and faithfully perform the duties of the office they are upon to enter without fear and ill will. The Supreme Court considered the judge’s succumbing to such pressure to recuse from delivering judgement as not fulfilling the very oath they took will entering the coveted office to render service to the people.

In the very case of Seema Sapra, while it was being heard by the High Court of Delhi, a total of 28 judges had to recuse from hearing the case for one reason or another. Furthermore, even at the Supreme Court three judges had to recuse themselves from hearing it on grounds of conflict of interest. Such instance led to imposition of undue burden on the already over burdened courts which are required to hear hundreds of cases every single day.

SOLUTION TO THE PROBLEM OF FORUM SHOPPING

Their cannot be an absolute solution to this nodus of forum shopping. The solution to it lies with the decision of concerned judge on whether he will recuse himself or not. One has to keep in mind that recusal is matter own choosing for the concerned judge. It is open to him to either reject the application for his recusal or to accept it. While an impartial judge is quintessential to the justice deliverty system in our country or for that matter any other country, it is oblivious duty of the concerned judge to discharge the responsibilities he has been bestowed with.

The problem of Forum Shopping can be congruously solved by the very judge who has been requested to recuse by his deliberation upon the matter on the basis of facts presented whether his recusal is appropriate for the case or whether the application for his recusal reeks malice. Further impetus can also be provided toward curbing the practice of forum shopping by penalising such litigants and their counsel for their effort toward perversion of the course of justice. Such penalty will ensure that the litigants and their counsels are aware of possible ramification of their misadventure if it gets exposed before the court.

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Obligation of a father to maintain his son will not come to an end when he attains majority: Delhi High Court on Section 125 of CrPC

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In a brilliant, balanced, bold and brief judgment titled Urvashi Aggarwal & Ors vs Inderpaul Aggarwal in CRL.REV.P. 549/2018 & CRL.M.A. 11791/2018 (Stay) delivered on June 14, 2021, the Delhi High Court has minced no words to make it clear that the obligation of a father to maintain his son under Section 125 of CrPC would not come to an end when the son attains the age of majority after reasoning that the entire burden of his education including other expenses would fall entirely upon the mother. A single Judge Bench comprising of Justice Subramonium Prasad who delivered this extremely learned, laudable and landmark judgment directed that a sum of Rs 15,000 per month is to be given as interim maintenance to the mother from the date of the son attaining majority till completion of his graduation or starts earning, whichever is earlier. The Court observed that, “It cannot be said that the obligation of a father would come to an end when his son reaches 18 years of age and the entire burden of his education and other expenses would fall only on the mother. The amount earned by the mother has to be spent on her and on her children without any contribution by the father because the son has attained majority.” It also did not shy away from observing that, “The Court cannot shut its eyes to the rising cost of living. It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter.”

To start with, Justice Subramonium Prasad of Delhi High Court who authored this notable judgment first and foremost sets the ball rolling by observing in para 1 that, “The present revision petition is directed against the order dated 21.04.2018, passed by the Additional Principal Judge, Family court, Tis Hazari, Delhi, declining maintenance to the petitioner No.1/wife and granting maintenance only to the petitioner Nos.2 and 3 herein.”

While elaborating on the facts of the case, the Bench then puts forth in para 2 that, “The facts leading to the present petition are as under:

a) The petitioner No.1 got married to the respondent herein on 11.11.1997. Out of the wed-lock two children i.e. the petitioner Nos. 2 and 3 were born on 14.8.2000 and 14.8.2002 respectively.

b) Disputes arose between petitioner No.1 and the respondent herein. Petitioner No.1/wife filed a petition under Section 125 Cr.P.C for grant of maintenance.

c) The respondent/husband instituted a suit for divorce. d) During the pendency of the divorce petition, the petitioner No.1 filed a petition under Section 24 of the Hindu Marriage Act, 1955 seeking maintenance. The Family Court declined maintenance to the petitioner No.1 and granted maintenance of Rs.7,000/- per month to the two children which was later enhanced to Rs.13,000/- per month.

e) A decree of divorce was granted on 28.11.2011.

f) The petitioner No.1 filed MAT. APP. No.6/2012 challenging the decree of divorce, which is pending before this Court. This Court vide order dated 25.03.2015 directed the respondent to pay maintenance of Rs. 15,000/- each to the respondent Nos.2 and 3.

g) The respondent has married again and has got a child from the second marriage.

h) A perusal of the material on record shows that the petitioner No.1 and the respondent are both Government employees. The petitioner No.1, at the time when the impugned order was passed, was working as an Upper Divisional Clerk in Delhi Municipal Corporation and the respondent is working as a Joint General Manager (HR) with the Airports Authority of India. The monthly income of the petitioner No.1, in the affidavit filed by her in the year 2016, is shown as Rs.43,792/- per month and she has stated that her monthly expenditure is Rs.75,000/-. She also stated that her net income is Rs.37,762/- per month. On the other hand, according to the affidavit dated 06.02.2016, filed by the respondent, he was earning a gross salary of Rs.96,089/- per month.

i) The petitioner No.1 moved an application for grant of interim maintenance claiming a sum of Rs.40,000/- per month. The learned Family Court after considering various factors came to the conclusion that since the petitioner No.1 is earning sufficiently for herself, she is not entitled to any maintenance. As far as petitioner Nos. 2 and 3 are concerned, the learned Family Court apportioned the income of the respondent into 4 shares, out of which two shares have been given to the respondent and one share each i.e. 25% has been given to the two children. Out of 25% for each children, as directed by the Family Court, the respondent had to pay 12.5% to each of the child out of his gross income less minimum statutory deductions which were to be computed by the employer of the respondent. The learned Family Court has said that the petitioner No.2 i.e. the son of the parties would be entitled for maintenance till he attains the age of majority and the petitioner No.3 i.e. the daughter would be entitled for the maintenance till she gets employment or gets married whichever is earlier. The learned Family Court further said that since the respondent has to maintain his son, born from his second marriage, it was directed that from the date of birth of his son from the second marriage, the share of the respondent shall be 10% each for 2 kids, from the wedlock with the petitioner No.1, as his entire salary was apportioned to five shares (two for the respondent, one each for the three kids). It has been held that since the second wife of the respondent herein is also working, she has the liability to bear 50% of the cost of her son, thereby making the share of the respondent herein as 10% towards the child from the second marriage. The order dated 21.04.2018, reads as under:

“8. Interim maintenance to petitioner no. 1 is declined at this stage as she is able bodied and earning sufficiently for herself and as regards the standard of living behoving with the status of the respondent, the same are questions of fact and triable issues and would be looked into when it would be decided finally after trial whether petitioner no. 1 is entitled for maintenance or not.

9. As regards petitioner no. 2&3 are concerned, the income of the respondent has to be apportioned in four shares @25% i.e. two for himself and one each for the children and from that 25% share for each kid 50% thereof has to be contributed by the respondent for each kid. So the respondent is liable to pay 12.5% each to both the children as his share out of his gross income minus minimum statutory deductions which would be computed by the employer of the respondent However, amount of reimbursement obtained by the respondent for which he has spent from his own pocket will not be calculated for the purposes of apportionment of the share in favour of the children. The petitioner no. 2 and 3 would be entitled to 12.5 % each per month as share of the respondent in the aforesaid manner from the date of application till the pendency of the case. The son of the parties shall be entitled for the maintenance till he attains the age of majority and the daughter till she gets employment or gets married whichever is earlier. The respondent has no liability to maintain his mother-in-law and sister-in- law being under no such legal obligation. The mother of the respondent being pensioner as father of the respondent was a government employee, the respondent has no obligation to maintain her financially. 10. Since the respondent in this case has the liability to maintain his son born from his present wedlock it is ordered that from the date of birth of his son from second wedlock the share of the respondent shall be 10% each for 2 kids from the wedlock with the petitioner as his entire salary in the above terms needs to be apportioned to five shares (two for the respondent, one each for the three kids). Each shares comes to 20%. The second wife of the respondent being also working has the liability to bear 50% for son thereby making the share of the respondent as 10% for the son from second wedlock.”

j) It is this order which is under challenge in the instant revision petition.

k) It is pertinent to mention here that a number of petitions have been filed by the parties against each other. This Court is not dwelling into the details of those petitions since they are not relevant for the present proceedings.”

On the one hand, the Bench then points out in para 3 that, “The learned counsel for the respondent has taken the primary objection stating that the present application is not maintainable and is barred under Section 397(2) Cr.P.C inasmuch as the order granting interim maintenance is an interlocutory order. The said argument has been rebutted by the learned counsel for the petitioners.”

On the other hand, the Bench then brings out in para 4 that, “The learned counsel for the petitioners places reliance on the judgment of this Court in Manish Aggarwal v. Seema Aggarwal, 2012 SCC OnLine Del 4816, which reads as under:

“17. Interim maintenance had been granted under Section 125 Cr. P.C. and the issue arose whether a revision petition could be preferred against that order, as it was alleged to be interlocutory in nature. It was held that the order of interim maintenance was an intermediate or quasi final order. Analogy was drawn from Section 397(2) of the Cr. P.C. and the pronouncement of the Supreme Court in Amarnath v. State of Haryana, (1977) 4 SCC 137 : AIR 1977 SC 2185 qua the said provision was relied upon. Thus, an order which substantially affects the rights of an accused and decides certain rights of the parties was held not to be an interlocutory order so as to bar revision. However, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in the aid of pending proceedings would amount to interlocutory orders against which no revision would be maintainable under Section 397(2) of the Cr. P.C. On the contrary, those orders which decide matters of moment and which affect or adjudicate the rights of the accused, or a particular aspect of trial could not be labeled as interlocutory orders. The Madhya Pradesh High Court held that an application for interim maintenance is a separate proceeding, to be disposed of much earlier than the final order in the main case. Qua the said issue the matter is finally decided by the order passed by reference to the second proviso to Section 125(1) of the Cr. P.C. Such orders were, thus, intermediate or quasi final orders. Thus, if an order does not put an end to the main dispute, but conclusively decides the point in issue it can certainly not be said to be an interlocutory order. The judgement drew strength also from the observations of the Supreme Court in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : AIR 1978 SC 47, where the Supreme Court held that ordinarily and generally the expression “interlocutory order” has been understood and taken to mean as a converse of the term final order. But the interpretation, and the universal application of the principle that what is not a “final order” must be an “interlocutory order” is neither warranted nor justified. In V.C. Shukla v. State, 1980 (2) SCR 380 the Supreme Court held that the term “interlocutory order” used in the Cr. P.C. has to be given very liberal construction in favour of the accused in order to ensure complete fairness of trial, and revisional power could be attracted if the order was not purely interlocutory but intermediate or quasi final.

26. We, thus, conclude as under:

(i) In respect of orders passed under Sections 24 to 27 of the HM Act appeals would lie under Section 19(1) of the said Act to the Division Bench of this Court in view of the provisions of sub-section (6) of Section 19 of the said Act, such orders being in the nature of intermediate orders. It must be noted that sub-section (6) of Section 19 of the said Act is applicable only in respect of sub-section (1) and not sub-section (4) of Section 19 of the said Act.

(ii). No appeal would lie under Section 19(1) of the said Act qua proceedings under Chapter 9 of the Cr. P.C. (Sections 125 to 128) in view of the mandate of sub-section (2) of Section 19 of the said Act.

(iii). The remedy of criminal revision would be available qua both the interim and final order under Sections 125 to 128 of the Cr. P.C. under sub-section (4) of Section 19 of the said Act. (iv). As a measure of abundant caution we clarify that all orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the said Act, which have a character of an intermediate order, and are not merely interlocutory orders, would be amenable to the appellate jurisdiction under sub-section (1) of Section 19 of the said Act.” (emphasis supplied)

In view of the above, this issue is no longer Res Integra and stands covered fully in favour of the petitioners and the revision petition is maintainable.”

To put things in perspective, the Bench then puts forth in para 5 that, “It is contended by the learned counsel for the petitioners that after holding that each of the child is entitled to 25% of the amount of the income of the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent. It is contended by the learned counsel for the petitioners that each of the child is entitled to full 25% of the amount of the salary earned by the respondent. It is further contended by the learned counsel for the petitioners that the learned Family Court has also erred in limiting the maintenance to be given to the petitioner No.2/son till he attains the age of the majority. It is contended by the learned counsel for the petitioners that Section 125 Cr.P.C has to be interpreted in such a manner that the object of Section 125 Cr.P.C is achieved. It is further contended by the learned counsel for the petitioners that the responsibility of a father to take care of his child does not cease after the child attains majority if the child is not able to sustain himself.”

As against what is stated above, the Bench then also points out in para 6 that, “Per contra, the learned counsel for the respondent contends that there is no infirmity in the order of the learned Family Court and that it is a well reasoned order. It is contended by the learned counsel for the respondent that the total amount paid by the respondent to the petitioner Nos.2 and 3 till date is about Rs. 29,25,825/- which is much more than the amount which has been directed by the learned Family Court. It is also submitted by the learned counsel for the respondent that apart from the salary, the petitioner No.1 has got several properties and has got income from other sources and is not only confined to her salary.”

Be it noted, after hearing the counsel of both the parties and perusing the material on record as stated in para 7, the Bench then envisages in para 8 that, “The purpose of Section 125 Cr.P.C has been laid down by the Supreme Court in several judgments. The object of Section 125 Cr.P.C is to prevent vagrancy and destitution of a deserted wife by providing her for the food, clothing and shelter by a speedy remedy. The object of Section 125 Cr.P.C is to bring down the agony and financial suffering of a women who left her matrimonial home so that some arrangements could be made to enable her to sustain herself and her child (refer: Chaturbhuj v. Sita Bai, (2008) 2 SCC 316, and Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353).”

Simply put, the Bench then states in para 9 that, “Since the purpose of granting interim maintenance is to ensure that the wife and the children are not put to starvation, the Courts while fixing interim maintenance are not expected to dwell into minute and excruciating details and facts which have to be proved by the parties.”

It would be worthwhile to mention here that the Bench then without mincing any words states in para 10 that, “The contention of the learned counsel for the petitioners that after recording that both the children are entitled to 25% each of the amount of the salary earned by the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent, cannot be accepted. The balance has to be taken care of by the wife i.e. the petitioner No.1 herein, who is also earning and is equally responsible for the child. The respondent has married again and has a child from the second marriage. This Court cannot shut its eyes to the fact that the respondent has equal responsibility towards the child from the second marriage. The further reduction of the amount after the birth of the child from the second marriage of the respondent also cannot be found fault with and the reasoning given by the Family Court does not warrant any interference at this juncture.”

As it turned out, the Bench then holds in para 11 that, “The learned Family Court refused to grant maintenance to the petitioner No.1 herein on the ground that the petitioner No.1 is working as an Upper Division Clerk in Delhi Municipal Corporation and is earning sufficiently for herself. The learned Family Court further held that as regards the standard of living which was being enjoyed by the petitioners when the marriage subsided is a question of fact and would be looked into when the case is decided finally after both the parties lead evidence.”

Please read concluding on thedailyguardian.com

Finally and far most crucially, the Bench then holds in para 12 that, “The petitioner No.1 is working as an Upper Division Clerk in Delhi Municipal Corporation, earning about Rs.60,000/- per month. The records indicate that the respondent has filed his salary certificate which shows that his gross monthly income, as on November, 2020, is Rs.1,67,920/-. The two children are living with the mother. After attaining the age of majority, the entire expenditure of the petitioner No.2 is now being borne by the petitioner No.1. The petitioner No.1 has to take care of the entire expenditure of the Petitioner No.2 who has now attained majority but is not earning because he is still studying. The learned Family Court, therefore, failed to appreciate the fact that since no contribution is being made by the respondent herein towards the petitioner No.2, the salary earned by the petitioner No.1 would not be sufficient for the petitioner No.1 to maintain herself. This Court cannot shut its eyes to the fact that at the age of 18 the education of petitioner No.2 is not yet over and the petitioner No.2 cannot sustain himself. The petitioner No.2 would have barely passed his 12th Standard on completing 18 years of age and therefore the petitioner No.1 has to look after the petitioner No.2 and bear his entire expenses. It cannot be said that the obligation of a father would come to an end when his son reaches 18 years of age and the entire burden of his education and other expenses would fall only on the mother. The amount earned by the mother has to be spent on her and on her children without any contribution by the father because the son has attained majority. The Court cannot shut its eyes to the rising cost of living. It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter. The amount earned by the petitioner No.1 will not be sufficient for the family of three, i.e. the mother and two children to sustain themselves. The amount spent on the petitioner No.2 will not be available for the petitioner No.1. This Court is therefore inclined to grant a sum of Rs.15,000/- per month as interim maintenance to the petitioner No.1 from the date of petitioner No.2 attaining the age of majority till he completes his graduation or starts earning whichever is earlier. The instant petition was filed in the year 2008. The learned Family is directed to dispose of the petition as expeditiously as possible, preferably within 12 months of the receipt of a copy of this order.” It is then held in the last para 13 that, “Accordingly, the revision petition is allowed in part and disposed of along with the pending application.”

In essence, the crux of this notable judgment delivered by Justice Subramonium Prasad of the Delhi High Court is that the obligation of a father to maintain his son will not come to an end when he attains majority and only the mother alone would not maintain her without any contribution by the father just because the son has attained majority! The Court very rightly took into account the rising cost of living and obligated the father to maintain his son till he completes his graduation or starts earning whichever is earlier as this is what is in the best interest of the child and of the family! It is the bounden duty of all the lower courts to abide by this notable judgment in all such similar cases without fail.

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Judicial reforms in India need to go beyond informal calls for inclusivity

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On 7 June 2021, it was reported that the Chief Justice of India, in a virtually closed-door meeting with the Chief Justices of all the High Courts, emphasised that the High Court collegiums must recommend Dalit, tribal, OBC, minorities and women for elevation as judges so that the High Court would truly reflect the vast social diversity of the country.

This move is revolutionary because several adverse remarks had been made in the past regarding the demography of the higher judiciary but little had changed. Mr George F. Gadbois’ (a political scientist) in his book titled ‘Judges of the Supreme Court of India’, stated that 92.2% of the Supreme Court comprised male Brahmins and other forward castes based on empirical data between 1950-1989; fast forward to the present-day scenario, Supreme Court now has only 1 woman judge, 1 judge from the Dalit community and 3 judges from the Parsi, Christian and Muslim minority communities collectively. Further, the Ministry of Law & Justice’s 2020 report on ‘Judges of the High Courts’ stated that only 12% of the judges in the High Courts were women; and, Vidhi Centre for Legal Policy’s 2018 report stated that there were only 27.6% of women judges in the lower judiciary. In 2016, even the former director of the National Judicial Academy had remarked that “The typical Indian judge is Hindu, upper-class, upper-caste and male.”

For an institution which according to the aforesaid data has been a bastion of few select privileged classes of the society; the decision by the CJI to diversify the higher judiciary comes as a move that warrants acceptance with arms wide open. However, in spite of the substantive part of the inclusivity policy being in tune with the ethos of a representative democracy, the existing practises concerning the elevation of judges to the higher judiciary based on inclusivity grounds, does not facilitate its smooth and sociologically legitimate implementation.

A glimpse of the collegium resolution dated 08.05.2019

This was a time when there was no representation from the Scheduled Caste community in the Supreme Court for a decade. Thus, the Supreme Court Collegium elevated a judge belonging to the Scheduled Caste community from the Bombay High Court. While doing so the Collegium resolution stated that “His (the judge from the SC community’s) recommendation, in no way, is to be misconstrued to mean that three senior-most Judges from Bombay High Court (two of whom are serving as Chief Justices) are less suitable than him”. Now, there are several challenges attached to such ad-hoc elevations. Firstly, the aforesaid statement made by the Collegium makes it look like the only reason why none of the three other senior-most judges of the High Court were elevated is because they were at the right place at the wrong time; secondly, it still does not ensure that representation of judges with non-traditional background in the judiciary would continue in a sustained manner because after all, it took a decades’ time for the Collegium to realise the lack of representation of the SC community in the Supreme Court; and lastly, the lack of a well-defined policy for selection of the candidates belonging to the SC/ST/women/minority communities could exacerbate the allegations of nepotism and favouritism, a charge that the higher judiciary already has been saddled with time and again.

In light of the same, it is natural that the call for diversification by the CJI must be supplemented with procedural policies that both sustain as well as accelerate the prospect of constituting a diverse, democratic and representative judiciary.

JUDICIAL PERFORMANCE EVALUATION

Judicial Performance Evaluation Programmes conduct periodic assessment of the performances of the judges. It dates back to the year 1978 when the government of Alaska conducted the first judicial performance evaluation programme. However, over the years the judicial performance evaluation programmes have evolved across varied array of jurisdictions to meet their own unique needs; some are also meant for enhancing the accountability of the judges apart from determining the career paths of the judges. The 2017 Vidhi Centre for Legal Policy’s report stated that despite the differences among the practice of judicial performance evaluation; there are few commonalities that remain axiomatic across jurisdictions i.e., they are official state-run programmes, data and information on several parameters is collected from a wide audience through survey mechanisms, and the survey results and recommendations are widely circulated.

Further, the 2017 report after wide consultation with eminent jurists, judges, academicians and advocates recommended that India’s judicial performance evaluation programmes must be run by a statutory body or commission that would carry out the surveys annually to evaluate the performances of the judges for the elevation to the higher judiciary. The programme would be conducted in three phases – the first stage would entail the survey which would be filled by peers on the bench, court staff, eminent advocates to name a few; the second stage would carry out the collation of data, and the third and last stage would be the publication of the data in a public domain along with the recommendations made by the body/commission.

The induction of the judicial performance evaluation programmes is not only desirable but even the need of the hour because the aforementioned statistics evinced that the lower judiciary comparatively enjoyed a greater diversity of judges; it gives a fair, if not ideal, pool of candidates whose performances can be evaluated in order to be elevated to the higher judiciary. This would also prove to be a game-changer because not only would it provide for a rational and uniform basis for the elevation/non-elevation of a particular judge to the higher judiciary but also inhibits the scope for favouritism/nepotism, and its annual reports would ensure that the diversification policy is not compromised or ignored over time. Lastly, since the aim of such programmes is also to ensure that merit is rewarded, it would also cause only the meritorious candidates from non-traditional backgrounds to be elevated to the highest echelons of the judiciary; which is in tune with the vision of the drafters of the constitution who envisaged merit as the sole ground for appointment to the judiciary.

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How Madras High Court judge broke his preconceived notions for LGBTQIA+ community

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‘There are many branches on the tree of life. There is no one way to be, and there is room for everyone to be who they are.” ~ Justice A. Venkatesh

The Tale of two brave girls

This movement for change began when two girls named S. Sushma and U. Seema Agarval who were in a romantic relationship with each other faced harassment and mental pressure from their family due to their sexual orientation and therefore decided to run away from their respective homes and shift to Chennai.

S. Sushma had pursued a bachelor’s degree in Mathematics from Madurai and Seema was pursuing a bachelor’s degree in the Tamil language at that time. They both knew each other from the past two years and their friendship in the sue course of time blossomed into a unique, romantic relationship and both of them see each other as their partner for life time. When the parents of the couple received the knowledge of their relationship, they strongly opposed it and started pressuring them, and that’s when they decided to leave Madurai and shift to Chennai to start their new life.

The girls belong to the LGBTQIA+ community. The NGO’s and other members of the community supported the girls and arranged for accommodation for ensuring their protection. Meanwhile, their parents filed different missing FIR’s for each girl and the police began their search. The Petitioners in the apprehension of threat and danger to their life approached the Hon’ble Court of Madras to issue direction to the Police to protect them from any kind of threat and danger.

Justice Anand Venkatesh took note of the facts of the case and arranged for a meeting in the mediation centre for the couple and their parents, he also sat with the parents to understand their viewpoint on the notice of same-sex relationship.

Counselling session were arranged for the parents to understand the same-sex relationship in today’s world and also, to understand their daughter’s emotional state and feelings toward the relationship but nothing good came out of it. No change was recorded in the attitude and thinking of the parents.

For the very first time, the Indian Judiciary has given a helping hand to the LGBTQIA+ community not just by issuing the guildlines for their protection and safety, but also actively took part understand their feelings and emotions, and to break the pre-conceived notion which exists in our society concerning the LGBTQIA+ community.

How did the Judge overcome his Prejudice?

The Hon’ble Judge of the Madras High Court, Justice Anand Venkatesh passed an order while deciding on the Writ Petition no. 7284 of 2021, S. Sushama and another v Commissioner of Police and others, in favour of the Lesbian couple who were continuously subjected to harassment by the police officials after their respective parents filed a missing report against them.

The Judgment is itself is a step towards creating a safe environment for the LGBTQIA+ community in our Country, but it was not easy for him to break this pre-conceived notion about the Gay and Lesbian community which exists in our society.

Justice A. Venkatesh agreed that it was not easy for him to understand the mindset and the situation of the petitioners as he has never encountered anybody belonging to the LGBTQIA+ Community and therefore never had a chance to understand in depth about their emotions and mindset.

For better understanding and the analysis of the situation in hand Hon’ble Justice of the Madras High Court underwent psycho-educative session with various counsellors and professionals who deal with the LGBTQ+ community to understand their issues better.

In a report submitted by the clinical Phycologist Dr Vidya Dinkaran, she stated that the Hon’ble Judge participated in a session with her and broke his flawed notions about the LGBTQ+ community. The Hon’ble Judge after interacting with the Petitioners and the parents realised that “There has been a misconception that went to the cutting edge was how homosexuality is all the time saw distinctly with a sexual undertone (i.e.), a relationship restricted uniquely to sex.

The report stated that how Justice Venkatesh communicated on paying attention to the lesbian couple was the point at which he understood the imperfect notion about the community he had and how two ladies came to be viewed as a couple before the finish of that conversation for him. He came in with the consciousness of the bias he holds. This was developed by seeing how no two heterosexuals in a relationship will be judged promptly as being together just to participate in sex and it shouldn’t be different for any two individuals with different sexual Orientations.

After realising his bias toward this community, Justice Venkatesh interacted with different people belonging to the LGBTQ+ community to deepen his knowledge and understanding of the diversity amongst people of his own country. Also to gain insights on their living situations and the discrimination being faced by them in the society. Therefore, an interaction was scheduled with Dr Trinetra Haldar Gummaraju, MBBS Intern and an influencer from Kasturba Medical College and her mother Ms Haima Haldar. Dr Trinetra, a transwoman herself shared her journey and lived experiences with the judge and Dr L.Ramakrishnan, Vice President, SAATHII.

All these interactions finally broke all his notions about the LGBTQ+ Community and he started looking at them as a normal human being and in the judgement, he confessed that, Dr Vidya Dinakaran and Dr Trinetra and his Guru’s who helped him to break his pre-conceived notion and pulled him out of the darkness.

Justice Anand Venkatesh noticed that a cultural change is required in the approach towards LGBTQIA+ connections. The threats they face are because of the way that their relationship loath cultural authorization. He quoted in his Judgement, S. Sushama and another v Commissioner of Police and others that, 2021:-

“…the actual problem is not the fact that the law does not recognise a relationship but that the sanction that is accorded by the society is not available. It is only for this reason, I strongly feel that the change must take place at a societal level and when it is complemented by law there will be a remarkable change in the outlook of the society by recognising same-sex relationships”,

And therefore, in the light of the above-made observations this court feels that there should be stringent laws made by the Legislative Authorities for the LGBTQ+ community to protect them from the harassment, social and mental torture and from prohibiting any kind of activities to change their sexual orientation through means such as black magic or undergoing medical operations.

GUIDELINES ISSUED BY COURT FOR PROTECTION OF THE LGBTQIA+ COMMUNITY

The Hon’ble High Court of Madras issued notice to the Union and the Central Government to make laws that protect them and till the time, the laws do not come into force the following guidelines shall be followed to protect the LGBTQIA+ community who are living in the most vulnerable environment and there is no law for their safety and protection. The guidelines are as follows:

On receipt of a missing complaint of any adult who after the investigation is found to belong to the LGBTQ+ community, the Police officials, in that case, shall shut the complaint without any further actions and harassment to the persons.

The Ministry of Social Justice and Empowerment (MSJE), needs to enrol Non-Governmental Organizations (NGOs) which have the adequate ability and experience in dealing with the issues looked at by the LGBTQIA+ people group. The rundown of such NGOs alongside the location, contact subtleties, and administrations gave will be published on the official website which will be updated regularly.

Anyone belonging to the LGBTQIA+ community, who is facing harassment of any kind can approach the listed NGOs for the protection of their interests.

The Service provider NGOs shall maintain a record of the person in private who seeks help from them and share such data with the Ministry regularly to keep a check on the atrocities faced by them and take measure accordingly.

The offences faced by the person belonging to the LGBTQIA+ community shall be dealt with adequately with the help of the Counsellors and the State Legal Service Authority and in certain cases, law enforcement agencies shall also provide help.

With particularity of issue of convenience, reasonable changes are to be made in existing short stay homes, Anganwadi covers, and “Gramin greh” (a haven home for transsexual people, the motivation behind which is to give asylum to transsexual people, with fundamental conveniences like a safe house, food, clinical consideration and sporting offices. Plus, it will offer help for limit building/expertise improvement of people locally, which will empower them to lead an existence of nobility and regard) to oblige any and each individual from the LGBTQIA+ people group, who require covers or potentially homes. The MSJE will make sufficient infrastructural courses of action in such a manner, inside a time of 12 weeks from the date of receipt of a duplicate of this request.

Any such measures need to be taken for safeguarding the interest of the LGBTQIA+ community and help them to lead a normal life like any other person. The Central Government is also requested to frame such policies to protect the LGTQIA+ community from being harassed by their family members and society.

Awareness programmes to break the prejudices against the LGBTQIA+ community shall be carried out by the concerned department of the Union and State Ministries to spread awareness amongst the people.

LGBTQIA+ RIGHTS IN INDIA: CURRENT SCENARIO

The present scenario in India is that the Apex Court in their Judgement of Navtej Singh Johar v. Union of India (2018) SCC 1, decriminalised Homosexuality between the consenting adults. But there are no laws for the protection of the LQBTQIA+ community in India, they can get married but there are no laws for the legalisation of their marriage which deprives them of many rights which a heterosexual couple have like, buying life insurance for your partner and adopting children etc. Adoption by a single person belonging to the community is recognised but not by same-sex couples. Despite strong political movement in support of Pride Month and the guidelines still today the LGBTQIA+ community continue to suffer on daily basis.

CONCLUSION

The current situation is grim for lesbian, gay, sexually open, and transsexual youth in India. Many faces provocation and tormenting, and to stay away from embarrassment and savagery they regularly skip classes or exit school out and out.

In the past year’s Court decisions has laid down a better guideline for their safety and protection from harassment based on their sexual choices and sexual character, and the Indian government’s position on LGBT rights has developed impressively. Yet, substantially more is expected to ensure individuals based on sexual and sex character in India.

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