When Should Judges Retire?

Above: A longer tenure for judges has many advantages A demand to raise the retirement age of judges in the higher judiciary will help tackle pendency and vacancies, but this should be conditional upon efficiency in handling judicial work   ~By Prof NR Madhava Menon In a fervent appeal to the prime minister, a senior member of the Bar and a BJP spokesperson reportedly requested him to take immediate steps to raise the retirement age of judges at all levels to 70 years in order to address the mounting problem of arrears and the delay in filling up vacancies in time. It is not for the first time that this issue was raised within the government and outside. Each time it has been raised, there has been wide support for the move, though it was more in relation to High Court and Supreme Court justices rather than judges of the subordinate courts. Unfortunately, the issue got linked to several other reforms including judicial appointments, judicial performance standards and assessment, judicial accountability and judicial independence, with the result that nothing much could happen even on this relatively non-controversial matter of raising the retirement age. In today’s circumstances, prolonging the decision on raising the age of retirement of judges is not in public interest.…
Continue reading

India-China Yin Yang In Tibet

Above: PM Narendra Modi and Chinese President Xi Jinping reset the relationship in Wuhan in April/Photo: UNI The latest military drill conducted by China in Tibet was probably a reminder to India that the subtext of the military situation in Doklam remains a potent point of confrontation   ~By Col R Hariharan  China’s People’s Liberation Army (PLA) conducted a military drill in Southwest Tibet on June 25 to test civilian-military integration and logistic support in high altitudes. Beyond the military dimensions of the exercise, it has connotations on India-China relations and on Presi­dent Xi Jinping’s process of consolidating his power through civil-military integration. In terms of India-China binary, the exercise comes in the wake of Wuhan summit in April when PM Narendra Modi and President Xi Jinping  had agreed to build a future relationship based “upon mutual respect for each other’s developmental aspirations and prudent management of differences with mutual sensitivity”. But the tabloid Global Times’ report on the military drill did not reflect the Wuhan spirit. It referred to China’s victory in the 1962 war against India. It quoted Song Zhongping, a military expert, to say that in the 1962 conflict, “China failed to protect its fruits of victory due to poor logistics support” because the biggest challenge of battle at the high altitude was to provide sustainable logistics and armament support.…
Continue reading

Judges in Politics

Above: Retired judge Justice Abhay Thipsay (extreme right) with Rahul Gandhi and other Congress leaders/Photo: Twitter Former chief justices and judges have often ventured into politics but to imply that their judicial pronouncements were dictated by some extraneous considerations is contemptuous   ~By Upendra Baxi  From time to time, episodes of ideological or political party affiliation of appellate justices have sent eddies and whirlpools across the calm still waters of adjudicative process. Only triumphant confidence and serenity have met this occasional disquiet. It would be no different with retired Justice Abhay Thipsay, former judge of the Bombay and Allahabad High Courts who recently joined the Congress. He had joined the Bar in 1979 and became a magistrate in 1987; he was elevated to the High Court in 2011 after serving 24 years in the district judiciary. He was transferred to Allahabad High Court in May 2016, from where he retired in March 2017. Many a brethren have publically hailed Justice Thipsay for having a just reputation of being an honest and upright judge, and he himself has stated that throughout his judicial career, he decided cases without fear and favour, according to the law and the Constitution regardless of the impact on political parties.…
Continue reading

Aadhaar facial recognition intrigue: Global lessons India would ill-afford to ignore

~By Sujit Bhar Apart from fingerprint and iris scans, the Modi government now wants to attach facial recognition software to each authentication centre While the Supreme Court is yet to deliver its verdict on Aadhaar and security/privacy issues related to its linkages, the government is merrily adding layers upon layers to the biometric overload already existing in the cards. Apart from fingerprint and iris scans, now the government wants to attach facial recognition software to each authentication centre, which means that the government will be on a facial scanning overdrive. The government’s argument is that if international airports and other such entry points can use such software for identification purposes why can’t we do it within India’s borders? Technically, any Indian who has visited certain countries of the world has had to go through iris scans, body searches, through facial recognition software and such heavy duty authentication processes. Separating the ordinary public from terrorists is the objective here. But even in those countries, facial recognition software is not used on its own people by their respective governments. This is an approach more suited to dictatorial administrations or pretentious democracies – China is seemingly setting up such a system. Functional, ideal democracies would naturally cry foul.…
Continue reading

Abetment to Suicide: What a Relief!

High Courts have reinforced that a suicide note naming a person is not sufficient evidence of the offence of abetment. This will relieve innocent people framed of these charges   ~By Upendra Baxi  In the popular mind, a mere mention of names in a suicide note is sufficient, if not clinching, evidence of abetment to this crime. But this is scarcely so in law; nor is a first information report (FIR) or even a charge-sheet always decisive; these can be quashed by courts. The criminal justice system is based equally on presumption of innocence and jurisdiction of strong suspicion upon which investigation and prosecution rests. Justices have to find the right balance between guilt beyond reasonable doubt and self-victimage of a suicide, which is not always a victimless crime. Three recent decisions of High Courts reinforce the position that a mere suicide note naming a person does not constitute sufficient evidence of the offence of abetment. Justice AH Joshi of the Bombay High Court delivered a stark message: “This is no mathematical equation, that a suicide note plus threat equals abetment…If harassment is proved, show the proof.” He further said: “A threat to kill is not abetment. …An advice to kill is also not abetment.” It is noteworthy that this appeal, filed by the woman victim’s family, was dismissed by the Court for non-appearance of the lawyer.…
Continue reading

Lateral Entry into IAS: Cracks in the Steel Frame

Even so, the IAS is a permanent civil service and must remain so. It must also go through fundamental and holistic reconfiguring to transform itself into a vibrant, professional management cadre so that the unimaginative, acquiescing and egocentric civil servant can become an imaginative, un-acquiescing and result-oriented manager. To make this happen, IAS reformers should become iconoclastic, take the bull by the horns and demolish pet theories, myths and mindsets that have crippled the dynamism of the service. First and foremost is the “bureaucratic gagging”—“a civil servant should only be seen, not heard”. Under this anachronistic arrangement, some of India’s best minds that constitute the IAS are being throttled and wasted as mere status quo time-servers who can’t even openly speak against rotten corruption and creeping authoritarianism. Second, the notion of “subservience to political masters” envisages a meek and “abdicating” role for IAS officials and therefore, is self-defeating. If they strictly observe “political subservience” and surrender to the rulers-of-the-day who represent only about a quarter of the population and do their bidding without demur, where will the majority flee? Third, too much of protection can reduce a person to cowardice. This is what is happening to many IAS officials—they willingly become cowards and do not have the courage to face even minor inconveniences for upholding honesty and integrity in governance.…
Continue reading

Cantonments: The Row over Roads

Above: Police arrest Congress activists demanding opening of roads passing through the cantonment area in Secunderabad/Photo: UNI The recent decision by the defence minister to throw open cantonment roads to the public has created a huge controversy with armed forces personnel raising valid objections to the change ~By Praful Bakshi  The word Cantonment is taken from the French expression Canton, indicating a Corner or District where winter quarters were established during a military campaign so that army formations could encamp and train. In such situations, the stay could be for a longer period than during ordinary tactical maneuvers. The French Canto, shares its etymological expression with the Swiss Canton. In the study of evolution of mankind, there is no doubt that urgency of security and safety occupies a prominent place. It is even mentioned in the Maslows Theory of Hierarchy of Needs. As early as 3000 BC, civilizations in Mesopotamia and India were developed by the creation of small towns along rivers with fortified banks and high walls guarded by armed soldiers. The two-fold requirement of this fortified living enclosure was the protection of people and the wealth of the community. This above concept manifested in various ways over time in the form of fortified towns and vast settlements well guarded by armed personnel who were also part of the society.…
Continue reading

Cantonments: The Row over Roads

Above: Police arrest Congress activists demanding opening of roads passing through the cantonment area in Secunderabad/Photo: UNI The recent decision by the defence minister to throw open cantonment roads to the public has created a huge controversy with armed forces personnel raising valid objections to the change ~By Praful Bakshi  The word Cantonment is taken from the French expression Canton, indicating a Corner or District where winter quarters were established during a military campaign so that army formations could encamp and train. In such situations, the stay could be for a longer period than during ordinary tactical maneuvers. The French Canto, shares its etymological expression with the Swiss Canton. In the study of evolution of mankind, there is no doubt that urgency of security and safety occupies a prominent place. It is even mentioned in the Maslows Theory of Hierarchy of Needs. As early as 3000 BC, civilizations in Mesopotamia and India were developed by the creation of small towns along rivers with fortified banks and high walls guarded by armed soldiers. The two-fold requirement of this fortified living enclosure was the protection of people and the wealth of the community. This above concept manifested in various ways over time in the form of fortified towns and vast settlements well guarded by armed personnel who were also part of the society.…
Continue reading

Psychologists Testifying: Healing Rape Victims

In 2002, the Delhi police passed a standing order that clinical psychologists should provide trauma counseling to sexual abuse victims. This has helped many get access to justice and can be the foundation for future victimology in India   ~By Rajat Mitra  It was a case of child sexual abuse in which I had been called to testify. The psychological report which I had presented to the police while interviewing the 10-year-old girl mentioned her symptoms. While being counseled, she said that her father had been sexually assaulting her for several years and she only felt comfortable talking about it now as she felt safe and didn’t want her sister to go through it too. She also showed signs of psychological trauma that are only shown by long-term survivors of sexual assault. I told this to the police and submitted a report as asked by them. The defense counsel, considered one of the best in the field, came late to the court where I was testifying. He began by addressing the judge, saying that if psychologists start coming to court to give their opinion, then lawyers would be begging with a bowl in their hands. As the defense lawyer began to ask me questions, five junior lawyers accompanying him slowly surrounded me like a cricket team does to a batsman.…
Continue reading

Medical Negligence: Private Healthcare on Steroids

Above: A doctor in a government hospital in Patna examines a child suffering from brain fever/Photo: UNI Due to compromised Medical Councils, greedy corporate hospitals and their target-driven doctors have ended up treating patients like assembly lines for profit ~By Jai Dehadrai The Delhi Medical Council recently gave a clean chit to a large corporate hospital in the Capital where doctors had wrongly pronounced a newborn baby dead and handed over the cloth-wrapped body to the grief-stricken parents. Luckily for the baby, tragedy was averted when his parents spotted some movement and realised that the doctors had negligently pronounced their child dead without even bothering to check for signs of life. While the tragedy of a child being cremated alive was averted, the Delhi Medical Council’s perverse order giving a clean chit to the doctors and concerned hospital meant that justice had evaded that family. This, despite the fact that in such stark cases of gross medical negligence, where the actions of the doctors are so obviously irresponsible, the Supreme Court has repeatedly held that even the mere occurrence of such acts are enough to imply negligence. In other cases, the apex court has also said that doctors involved in heinous acts of negligence ought to be proceeded against under criminal law, be-sides having their licenses cancelled.…
Continue reading

The Brahminisation of Hindustan

~By Murad Ali Baig The Brahmins were the priestly class of the tribe of the Aryas (not Aryans). There is, however, no unanimity about where these Aryas came from. There was also a tribe of Aryas in ancient Persia who had a priestly class called Arthvan, phonetically similar to Brahmin, meaning a person of essence.  Like the Rig Veda in India they had a similar holy book the Zend Avesta. Both books were written in a similar language as Old Sanskrit was nearly identical to Old Persian. They were also written in the same cursive Kharoashti script written from right to left. The phonetic Devanagri script was only used in India after the fifth century CE. According to the Zend Avesta they also had a class of warriors called Rateshwar (charioteers) that is phonetically similar to the Kshatriyas in India. Their third class was the Vastrayosh, similar to Vaishya, who were their cattle herders and workers. When the Aryas gave up their nomadic life and settled down, the Vaishyas became traders and farmers. There had originally been no fourth class but as the nomads picked up tribal people and stragglers on their travels they later added a fourth class who were called Hutoksh in Persia and Shudra in India.…
Continue reading

Why always status quo when change is the only constant?

Administrative services: Proposal to give weightage to performance in the foundation course could be a change that might be able to boost performance ~By Abhishek Dixit On May 17 the Prime Minister’s Office circulated a proposal to concerned ministries for suggestions and action, intending to add a fourth layer of scrutiny to the civil services examination process, which may lead to major change in the allocation of services as well as cadres to successful candidates of civil services examination. However, without debating the merits and demerits of the proposal, many of us have raised an alarm. The UPSC, a constitutional body, is responsible for the selection of candidates based on merit and objectivity for India’s elite services including IAS, IPS, and IFS. As of now, the exam is conducted in three stages, namely, prelims, mains and interview. Based on a candidate’s marks in mains and interview stages, cadre and service allocation are done. Following which, the selected candidates are sent for the 3-4 month Foundation course. As per PMO’s proposal, ministries and departments are supposed to “examine the feasibility of giving due weightage to the performance in the foundation course, and making service allocation as well as cadre allocation to all-India services officers based on the combined score obtained in the exam and the foundation course.” This has generated a lot of criticism from serving officers, as well as from retired civil servants and aspiring candidates. …
Continue reading