Juvenile Justice

Poster - Juvenile Justice

“Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition”.
-Isaac Asimov

It is a harsh reality today that juveniles are often involved in a large number of crimes. Hence, this presents a special challenge for law enforcement.

The Juvenile Justice concept was derived from the notion that the problems of juvenile delinquency in abnormal situations are not possible to rectify within the framework of the conventional processes of criminal law. One of the principle roles of juvenile justice has been to provide specialized treatment for better social integration and preventive treatment services for children.

Through the UN Convention on the Rights of the Child, 1989, the highest point in the quest for ensuring rights to juveniles has been reached. India, being a signatory, has made efforts to ensure the child such protection and care for his or her well-being, whether undertaken by public or private social welfare institutions, courts of law, administrative or legislative bodies, the best interests of the child shall be a primary consideration.

One of the principle roles of juvenile justice has been to provide specialized treatment for better social integration and preventive treatment services for children. The array of opportunities must help the children in satisfying various needs of children.

The present Law i.e. Juvenile Justice (Care and Protection) Act allows for juveniles (16 to 18 years) to be tried as adults for heinous offence like rape and murder. It also makes it mandatory for setting up Child Welfare Committees and Juvenile Justice Boards in every district. Both must have at least one woman member each.

Further, under this act several rehabilitation and social reintegration measures have been provided. For example, children are provided with various skill set training and also other facilities like education, health, nutrition, de-addiction, treatment of diseases, vocational training, skill development et al which help them reignite their spirit of cooperation and a sense of belongingness to society.

However, there are certain loopholes in the Act itself and a number of things need to be improved at the ground level as well. Juveniles are less knowledgeable than adults, and time and again exhibit fewer respect to the authorities. The infantile behavior of many children leads them to often engage in unusual behavior when in the company of their peers. Juveniles also present a special trouble for law regulators, as they are less mindful of the consequences of their actions and of the effects of their delinquent behavior on their victims, their parents and families, their peers, and themselves.

Thus, a lot more remains to be done to ensure a smooth running of the juvenile justice system in the country. This is why discourse regarding this topic and opinion of experts and stakeholders is extremely necessary.

Realizing the importance of the same, at the NAF one full theme has been dedicated to Juvenile Justice.

I think it’s important for us as a society to remember that the youth within juvenile justice systems are, most of the time, youths who simply haven’t had the right mentors and supporters around them – because of circumstances beyond their control.

-Q’orianka Kilcher


Rural Sanitation: Cleanliness in Godliness.

Poster - Rural Sanition

The age of technology that we live in today has kept us aware with issues all over various social media platforms, but there is one story that we, as Indians, constantly neglect despite it being a pertinent problem – that of Rural Sanitation. The scourge of manual scavenging which was a daily affair until recent times in villages has slowly seen a reduction in its practice post the judgment against it by the Supreme Court in the case of Safai Karamchari Andolan v. Union of India and Ors.

The present day India though is far better off than the pre-independence India, a lot yet needs to be done. Today there are various schemes of the government to improve the sanitation condition but its implementation has a long way to go. For example the 2014 election victory brought with it the enormous hope of Swachh Bharat, something that was envisioned from the times of Gandhi but despite efforts being taken each day, it is yet to see fulfillment.

Sanitation is not limited merely to maintaining cleanliness in public spaces and environment but is also inclusive of safe drinking water, liquid and solid waste management and personal hygiene. The Central government has taken several initiatives towards realizing the goal of sanitation with the first effort in 1986 through the Central Rural Sanitation Program that aimed at providing a clean, healthy and environmentally acceptable disposal of excreta and thus creating good sanitation and improving health standards. This program was modified in 1993 to include development of at-least one model village covering sanitary latrines, conversion of dry latrines garbage pits, soakage pits, drainage, pavement of lanes, sanitary latrines in village institutions, cleanliness in ponds, tanks, clean surrounding around hand pumps and other drinking water- sources. It was followed by the Total Sanitation Campaign in 1999 which was implemented in phases with start-up activities.

The turn of the century saw several other schemes being enacted like the Nirmal Gram Purashkar – the incentive scheme for promotion of rural sanitation (2003), the growth of Rural Sanitary Marts and Production Centres – that caters to the need for materials and guidelines in constructing different sanitary facilities which are technologically and financially suitable to the rural areas. Other initiatives include Construction of Individual Household Latrines, Women Sanitary Complex and School Sanitation.

The above objectives of sanitation though can be truly fulfilled not just by creating infrastructure and formulation of policies by central government but through a significant change in the mindset of villagers themselves. What the hours needs is awareness and sensitization towards the pressing problem of rural sanitation and active participation from villagers, local NGOs and other concerned stakeholders. The Legal Services at Gujarat National Law University through its Annual Forum is taking one such initiative towards spreading awareness. After all, in the words of the Prime Minister Narendra Modi himself, if India can send a mission to Mars and launch a record number of 104 satellites on a single rocket, the mission of a clean India does not seem too big to achieve.

Water and sanitation has not had the same kind of champion that global health, and even education, have had. – Jim Yong Kim

2nd National LSC Interlinking Annual Forum : Disability and Mental Health.


report from the World Health Organisation and the World Bank in June 2012 estimated than around 1 billion people live with a disability and it is estimated that this number will only increase in future.
The memoirs of those who have triumphed despite physical challenges are among the most remarkable in literature. Their stories would be astounding for able-bodied people, and their further drive to physically create the text is as awesome as the rarest athletic performance. From Helen Keller to Ira Singhal or the Indian Blind Cricket Team, they represent the fortitude of the human spirit when physically challenged individuals find the strength to lead exceptional lives despite phenomenal obstacles. But for most, their journey isn’t easy. The aid from government or people, further discourages them. In India, The Rights of Persons with Disability’s Bill 2014, expanded the definitions of physical disabilities to cover 19 conditions from the earlier 7 (in 1995). This bill was brought to comply with the UN Convention on Rights of Persons with Disabilities to which India became a signatory in 2007.The amended bill includes acid attack and Parkinson’s disease.
On March 27 this year, with the Lok Sabha passing the Mental Health Bill 2016, the parliament has ushered in new changes for the rights of the mentally disabled. The Bill ensures every person shall have a right to access mental health care and treatment from mental health services run or funded by the appropriate government. The Bill also assures free treatment for such persons if they are homeless or belong to Below Poverty Line, even if they do not possess a BPL card. Importantly, person who attempts suicide shall be presumed to be suffering from mental illness at that time and will not be punished under the Indian Penal Code, among a host of other benefits. Recently, our Prime Minister, Narendra Modi talking about mental illness, it helps in breaking the stigma regarding mental illness.                                      .
The people with disabilities, say that the social stigma attached to mental ill health and the discrimination they experience can make their difficulties worse and make it harder to recover. On one hand, they struggle with the symptoms and disabilities that result from the disease. On the other, they are challenged by the stereotypes and prejudice that result from misconceptions about mental illness. As a result of both, people with mental illness are robbed of the opportunities that define a quality life.
Researchers are beginning to apply what social psychologists have learned about prejudice and stereotypes in general to the stigma related to mental illness. We have made progress in understanding the dimensions of disabilities but there is a long way to go, firstly in spreading awareness about disabilities, especially mental illness and secondly in formulating laws in favour of the disabled people. Change strategies for public stigma have been grouped into three approaches: protest, education, and contact- all of which needs to addressed immediately. In view of this, one of the themes in The 2nd LSC Annual National Inter-linking Forum deals with ‘Disability and Mental Health.’

Successful efforts towards RTE: GNLU-LSC members felicitated by DDO, Ahmedabad.

img-20160927-wa0004The GNLU-LSC takes great pride in announcing that two of the projects undertaken under various collaborations were completed successfully this year. The students who displayed exemplary efforts in the successful completion of this project were felicitated by the District Development Officer , Ahmedabad.

The Legal Services Committee, GNLU established the Kalam library earlier this year. It was inaugurated on 18th January, 2016. The Centre has adopted Koba, a village near GNLU, where most of its activities are based. Apart from undertaking activities like the Kalam Library and “I am Kalam” drive, LSC also undertook the RTE project in July and sent a delegation from LSC to attend the Kalam conclave held in Lucknow in July this year.

The details of these activities are as follows:

  1. RTE

Created feedback forms for the Workshop that the Kalam foundation wanted to carry out with the DDO office.

Web portal structure: A sample form used for RTE admissions was made by the students

Brief and simplified version of the RTE Act

Research on the education Schemes and policies in India and the implementation of RTE in India in general and Gujarat in specific.


  1. District Panchayat Project

Research and simplified versions of the following schemes and programs:

– Grishmotsav

– Health initiative District Panchayat Ahmedabad

– Twin District MOU

– Dikri Vadhaamna Utsav

– Nutrition kit distribution

– E-Shikshak

– Sharadotsav


– Vanche Gujarat

– Ghadtar

– Ambaji Padyatra

– Joy of giving

– Digital locker

– Agriculture Start up


img-20160927-wa0008The Right to Education project was initiated by the Government of Gujarat in order to plug loopholes in the education sector. A team of 6 members of LSC, Abhishek Vyas, Abhijit Kujur, Chaitra S, Priya Kumari, Priyanshi Meena and Saloni Gupta, were part of the team which worked on this project. This opportunity was provided to the GNLU-LSC by Mr Saurav Singh ( National Coordinator of the Kalam Center) . Mr Singh is also a keen enthusiast and a supporter of all other initiatives of  the GNLU-LSC.

The project, which was completed in two months, was divided into two parts. For the first part, the team created a website, FAQ’s about RTE, simplified version of RTE Act and feedback forms for Parents, Principals and Students availing the RTE quota. The forms were framed to gather information about conditions of schools, treatment of children and quality of education modules amongst others. The second part of the project dealt with education schemes in India, implementation of these schemes in the country, education schemes particular to Gujarat and RTE admissions in Gujarat.

After successful completion of the project, all the LSC students members were also provided with an internship certificate to that effect.

The GNLU-LSC wishes to continue to achieve similar milestones further.

Dehgram Visit: A SEWA-LSC collaboration.

By Sakshi Sharma ( With inputs from Abhishek Vyas and Ankita Dinker)


On 3rd September 2016, a few members of the Legal Services Committee were in for some social work with the added bonus of being able to come across practical problems faced by the village dwellers that are perpetually seeking solutions to them

Abhishek Vyas, Ankita Dinker, Nancy Joshi and Saumya Rawal undertook a trip to Dehgram, a municipality in the district of Gandhinagar to interact with the residents especially women. This trip and the subsequent interaction was organized by the famous NGO “SEWA” with assistance from our legal aid clinic.

For those unaware, SEWA in itself embodies a movement and aims at redressing the grievances of poor and self employed women. Self Employment Women’s Association, is a registered trade union from 1972 which caters to women working in unorganized sector and that primarily constitute the unprotected labour force. SEWA through its work and objectives aims at achieving self reliance and full employment of self employed women workers to make them autonomous, self sufficient and empower them both economically and in terms of decision making ability.


This specific evening at Dehgram turned out to be quite eventful where the LSC was involved with SEWA in order to understand and assist the local women with their problems and provide legal aid. An activity like this not only exposed the members to what are the problems faced but on also how most people are unaware of their rights, how they can receive legal assistance and subsequent relief.

The problems of the women present in the crowd were primarily based on personal laws or were property disputes. Amongst those mentioned some were forceful occupancy of land of others, fraudulent possession of land, cruelty by in laws and domestic violence, abandonment by husband while some others involved acquisition of land by the government and lack of electricity.

An opportunity like this raised an important question on how we as students can give back to the society or how many of us, upon completion of our education will actually be willing to help those in need rather than criticizing the government for failing to address the issues of the poor. After all, change begins from within.

Regular gatherings of women are organized by SEWA to carry forward its initiative. The interactive session by LSC was conducted during one such gathering organized at Dehgam. The recorded data will be transferred to the Legal aid cell for further research, so that meaningful follow-ups can be provided.

This activity was an eye opener in true sense and the members of GNLU-LSC were extremely elated on getting this privilege. It is our aim to serve the society and initiatives like these only keep the momentum going

Blood Donation Camp: Come, Be a hero on July 15th, 2016!

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The finest gesture one can make is to save life by donating Blood.

Following the same belief, The Legal Services Committee at the Gujarat National Law University is organizing a Blood Donation Camp on the 15th July 2016 on the campus premises. After a string of successful activities including the immensely impressive “1st National Inter-Linking Legal Services Committee Annual Forum on “Access to Legal Services” (October 3rd-4th)” the GNLU LSC is back in full swing for the year 2016-2017 and what better than a start with its flagship event, THE BLOOD DONATION CAMP.

For the uninitiated ,it has been a GNLU tradition and most importantly an LSC tradition to organize blood donation camps every year in the University Campus.

The University has been following the same for the past 8 years when the first Blood Donation Camp was held in the year 2008 on the occasion of the Foundation Day of the Gujarat National Law University. Ever since it has become a regular practice to hold Blood donation camps annually, which has witnessed overwhelming participation from students and staff alike .

The previous year witnessed one of the most successful Blood Donation camps in the History of Gujarat National Law University. Over 235 people turned up for participation out of which 170 could successfully donate.
This exemplary effort on the part of the members of the Legal Services Committee under the Student Convener Mr. Akshay Kharbanda received immense admiration within the university and also gained widespread media coverage in the print media and several online platforms ( Read the coverage by popular website LAWCTOPUS on the Blood Donation)
Hence, continuing with the tradition the GNLU-LSC is organizing the 9th edition of its hugely successful flagship event in participation with the Indian Red Cross Society, Ahmedabad Chapter.

Important Details

Date: 15th July 2016, Friday

Time: 12:30 pm- 5:30 pm

Venue: Legal History Museum, (Room below the library) Administrative Block, GNLU

In case of any queries or questions, please feel free to contact any of the following:

Akshay Kharbanda (+91-9586883240)

Vishwajeet Singh (+91-9537793879)

Yukti Trivedi (+91-9429782026)

Kaazvin Kapadia (+91-9978800656)

We sincerely request all the Students of GNLU and nearby Colleges in Ahmedabad or Gandhinagar to participate in this noble cause and do their bit for the society.

The blood is red gold in time of saving a life.

Share a little; care a little – Donate Blood.

International Women’s Day: Pledge for Parity.

women's day

“One day I will..”, as the Google doodle whistles, the theme of 2016 International Women’s day happens to be “Pledge for Parity”.

The World Economic Forum had predicted in 2014 that it will take until 2095 to achieve global gender parity. In the next year it was estimated that a slow down was deemed in the already slow rate of progress and that gender equality wouldn’t isolate itself from the world totally until 2133.

8th March, also known as UN Day for Women’s Rights and International Peace, is registered all over the world as International Women’s day. Today is a public holiday in countries such as Azerbaijan, Armenia, Belarus, Kazakhstan, Moldona and Ukraine.


The first International Women’s day was celebrated on March19, 1911, because it commemorated the day that the Prussian king promised to introduce votes for women in 1848. The promise gave hope for equality but it was a promise that he failed to keep. The date was moved to March 8 in 1913.

The UN drew global attention to women’s concerns in 1975 by calling for an International Women’s day. It also convened the first conference on women in Mexico city that year.
Mahatma Gandhi  said,” Intellectually, mentally and spiritually, woman is equivalent to a male and she can participate in every activity“.

Evidently, the International Women’s day logo is in purple and white and features the symbol of Venus, which is also the symbol of being female.


Highlights of the International Women’s day 2016 
The 2016 theme for International Women’s day is ” Planet 50-50 by 2030: Step it up for Gender Equality.”

The motto being implementation of the new Sustainable Development Deals. Around the world, UN women has been organizing International Women’s day events in more than 40 countries, including a cycle rally in New Delhi on March 6.

“We have shattered so many glass ceilings we created a carpet of shards. Now we are sweeping away from the assumptions and bias of the past so women can advance across new frontiers” says UN Secretary General, Ban-Ki-Moon, in his message of 2016 event.

Enthusiastically, women all over the world celebrate today as a day of Equality and Respect, as a day to acknowledge their roles as mother, daughter and many more, as a day of enhancing the social structure and ensuring Gender Parity.

Happy International Women’s day!

Legal Awareness Camps in Bihar: An initiative by GNLU-LSC

IMG-20160117-WA0003Knowledge of Law is power and helps self-realization. 

India, the largest democracy in the world, has an emergent need for generating “Awareness of Rights” as knowledge so that people live in consonance with the true dictates of democracy and Rule of Law.

Legal literacy is commonly understood as knowing primary levels in law. When citizens, particularly marginalized or underprivileged groups, know what the law has to offer them, they can recognize and challenge injustices much more forcefully. Hence legal literacy essentially becomes the first step towards that knowledge of law, which can transform people’s lives.

Therefore in their bid to enhance Legal Awareness for the empowerment of individuals regarding issues involving the law and promote consciousness of legal culture, the Rule of Law along with the scope for the future generations in the field of law, THE LEGAL SERVICES COMMITTEE ,GNLU and its volunteer Akshat Kumar conducted legal literacy campaigns in a couple of districts in the State  of Bihar.

The 2-phase campaign targeted schools in the districts of Nalanda and Patna(rural) . The theme of the campaign was “ Law: Its scope and prospects in India”. The 1st phase of the campaign was conducted at R.B. +2 SCHOOL, NALANDA and H.S.+2 SCHOOL,PANDITGANJ from 30th November 2015 to 5th December 2015.
With an overwhelming participation of around 250 students at both the schools ranging from 10th standard to vocational courses , the LSC Campaign focused more on spreading awareness  about the scope and prospects in field of law for our future generation as well as enlightening them about their fundamental rights and duties.

The  campaign comprised of  a total of 6 brainstorming sessions which included presentations, documentaries , quizzes and one-on-one interaction with the students.The presentations mainly focused on how with the changing times, the prospects of a career in the legal arena has changed making it a more lucrative, explorable and intellectually challenging.

Students were briefed about National and Private law schools and their entrance exams like CLAT, AILET etc. The documentary and quiz sessions mainly focused on the basic fundamental rights and duties which every person must be aware of.
Sharing his amazing experience, Akshat Kumar, a first year student of the Gujarat National Law University recalls  “It was a whole new experience for me and I was totally amazed by the incredible response generated to the awareness campaign.The curiosity which the students displayed in putting forth their queries left me by surprise. It was as if they wanted to absorb as much as possible within a short span of one week  and then use that information to not only change their lives but also develop the society and enhance the legal culture around them.”

Akshat was assisted by Dr. Rajiv Kamal and Mr. Shubro Sanyal, Sr. Lecturers at R.B.+2 School Nalanda. On being quizzed on their experience, they stated “Programs like these should become a part of the regular curriculum of the children as they not only enhance their knowledge but also open new fields for career and future prospects”.

This initiative by the LSC was appreciated by the school administration who look forward to more such programs which are committed towards intellectual and general development of the society.
The initial apprehension was completely cured by the extremely amazing response to the Legal Awareness Camps which has fueled the preparations for the  2nd phase of the campaign  due to kick start in the 3rd week of March tentatively in Vaishali district and Urban areas of Patna.

Beef Ban- The Debate!


The bill banning cow slaughter in Maharashtra, pending for several years, recently received the President’s assent, which means red meat lovers in the state will have to do without beef.

This measure too almost twenty years to materialize after it had been initiated during the previous Sena-BJP government. The bill was first submitted to the President for approval on January 30, 1996.

The law will ban beef from the slaughter of bulls and bullocks, which was previously allowed based on a fit for slaughter Certificate.

The new Act will, however, allow the slaughter of water buffaloes. The punishment on the sale of beef could be 5 years imprisonment and with an additional fine of Rs. 10,000/-

Indian express quoted president of the Mumbai Suburban Beef dealer Association saying “Apart from rendering people jobless, the immediate effect will be the spiraling prices of other meats as the people will be forced to gravitate to them.”

Below are the two different views of how, people might either support or dissent to the recent Beef ban. – The Debate

Drunk driving (first time)- 6 months imprisonment; Molestation- 2 years imprisonment; causing grievous hurt- 7 years imprisonment; evasion of income tax- 3 months to 7 years imprisonment; in a secular country named Hindustan, above is the rule of law. Why….?? Why is cow slaughter considered more heinous than molestation?

It is because age-old religious texts consider “Cow as MOTHER”.

India has a total of 191 million cows and their progeny and not enough shelters to house them. Why aren’t policy makers who have banned cow slaughter in almost 24 states out of 29 states of India looking up to providing these holy beings a shelter to their legs?

Jurist KTS Tulsi argues “the cow is just an excuse and its extremely dangerous that the law is being used to crystallize public opinion against other communities and create diversion in society. Do you want another Babri Masjid or worse, another Godhara??”

Godhara was the place where Mohammad Akhlaq and his son Danish were killed under the curtain of few people’s assumption that they slaughtered a cow. Under the assumption that a cow was slaughtered, the people slaughtered a human being and indeed slaughtered humanity.

Then comes another question: how should secularism in India be defined? Had secularism been defined truly, beef ban would have been subjected to disqualification as an assault on the key principle on which our nation was found: Secularism.

Beef ban violates the right to choice of food, which is certainly a part of right to life and right to liberty. Democratic Youth Federation of India’s President on hosting an event where beef was distributed free said “what one should eat or wear, or what language one speak- all these are personal choices and they can simply not be imposed”. A few petitioners challenged the validity of section 5D of the Maharashtra Prevention (Amendment) Act, 1955 which restricts people of the state from possessing beef even if slaughter is done outside Maharashtra. Arguing against this section, Adv Chinoy said “the act is meant for banning slaughter and removal of the provision in question does not affect the act….. The only reason I can see is easing enforcement, but that is no reason to stop import of beef as it is a fundamental right guaranteed by the constitution”.

The question in front of us is wide: Does beef ban not violate the right to any occupation within the territory of India? And the answer seems to have varied dimensions!!

Let’s take a few steps backwards and reflect upon the primary ethics and virtues that we need to take care of as the part of natural justice, Humanity for we are human beings (or so we call ourselves, in spite of the widespread demonic instances we  seldom fail to display). The relentless slaughter of animals in no way is humanity, let alone the slaughter of men in the wake of the riots these issues cause. An official at a beef transport group in Maharashtra state said around 10 vehicles travelling to Mumbai had been stopped in the last week of February, the animals taken forcefully and drivers beaten up by members of Hindu nationalist groups despite carrying valid documents. These are the ways that the animals that are taken for slaughter are being treated. And in fact, So many times it is even illegal. Introduction of the beef ban could promote a vegetarian culture in the future, the killing of other animals could also stop. Maybe the illegal business would stop too.

We argue that the ban on beef is an infringement of our right to choice, choosing what food we would like to eat, but let us think this way, aren’t we infringing the right to life of the poor animals who cannot voice their claims to live. Oh but, who cares, they are just animals, the fundamental rights are not so fundamental as to extend upto recognizing the rights if the animals. Isn’t it?? The constitution only recognizes the rights of the “superior being” that man today considers himself. Human being as he would call himself with the least bit of humanity.

The matter is being unnecessarily hyped and is wrongly being interpreted as a hurt to religious sentiments of minorities, Or to those who feel that the imposition of ban should not be solely based on hurt to religious sentiments as their rights to choose what to eat is being infringed. But it is worth noting that in the case of Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamal, The Gujarat high court had ordered a ban on meat, during Jain festivals in Gujarat, though it recognized that the basis should not be hurt to religious sentiments, but the ban was considered as a justified restriction.

Another issue being raised is that the people employed in the slaughter industry would massively suffer, and run out of businesses.

Now, lets discuss the disadvantages of having meat, According to the Harvard School of Public Health, meats should be placed at the very top of any food pyramid, which signifies they should be eaten sparingly and in small portions. Meat is relatively high in saturated fat and cholesterol, which increase the risk of cardiovascular diseases such as heart attack and atherosclerosis. . Also the conventionally raised beef often contains hormones and antibiotics which should be preferably avoided.

On the other hand, Vegetarian diets are linked to better overall health and lower mortality rates, according to a study published in “JAMA Internal Medicine” in June 2013. Low in saturated fat and cholesterol, meat-free diets reduce your risk of such chronic conditions as heart disease, type 2 diabetes and hypertension, as well as assist with weight maintenance, as reported in “Nutrition Reviews” in 2006. If you’ve decided to go vegetarian for health or philosophical reasons, you have a wealth of options to choose from for your 100 percent meat-free diet.

You, the readers, decide for yourselves, what is better? Shouting from the roof tops about the rights that we feel are being violated or first affirming to our own standards of behaviors that the righteousness and conscience demands, confirming to what the superior law of Morals and our duties demands off us, adhering to the law of Justice of nature and living with all other creatures giving them their share of right that the nature had reserved for them.

Though this Debate might start sparks of disagreement, we respect your views and invite your say in the matter, in the comments section below.

National Judicial Appointment Commission – THE VERDICT!

By Tejpal Singh Rathore 

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Democracy, Law and Politics are subjects that are most difficult to understand and comprehend. This is all the more exemplified in a nation as diverse as ours. Now that we are in our 66th year of Independence, the gap in ideologies is stretched to the extremes and hence is a serious cause of the prevailing unrest and divide. However, as has been stated by various thinkers and political greats and recently reiterated by the President Shri. Pranab Mukherjee, our diversity is our greatest strength.

In the midst of the economic and political turmoil, on 16th October, 2015, the Apex Court of the country, the Hon’ble Supreme Court of India decided, in a historic decision, that the National Judicial Appointments Commission (NJAC) was ‘unconstitutional’ and impinges upon the principle of Independence of the Judiciary.

The NJAC was a policy initiative by the National Democratic Alliance (NDA) Government to revive the appointments and transfers of judges in High Courts and the Supreme Court. The commission was established by amending the constitution through the 99th Amendment Act, 2014. The Commission comprises of the Chief Justice of India (CJI) as the Chairperson, 2 Senior most judges of the SC, the Prime Minister of the nation, The Law Minister (at the Centre) and 2 Eminent Persons (from the legal fraternity). The proposal is preceded by the Collegium System of Appointments which will now prevail as the system for appointment of judges.

The principle of “Independence of the Judiciary”, is a constituent principle of the Basic Structure Doctrine as was laid down in the iconic decision of the SC “Keshavananda Bharti v. UOI” in 1987. The interpretation of the Independence of Judiciary principle has been the domain of the judiciary of this country. This interpretation has become a bone of contention between the Judiciary and Legislature in the last five decades.

Before we accord our attention to the verdict of the SC, it is imperative that we understand the background and roots of the Collegium System. The Collegium System evolved as a result of three landmark judgments of the SC known as the ‘Three Judges Cases’.

The First Judge’s Case was the SP Gupta Case. It was decided on December 30, 1981 and stated that the President could, with reasonable justification, refuse judges’ names as recommended by the CJI. This gave the Executive greater power than the Judiciary in the appointment process.

In the Second Judge’s Case, a Nine-Judge Bench of the SC reversed the decision in the Fisrt Judge’s Case and created the Collegium System. The concluding (and majority) verdict by Justice Mr. J.S. Verma, on October 6, 1993, stated in law, that the CJI must be given the primary role in judicial appointments and stated that the Chief Justice shall be the “Appointing Authority” and the President a “Consultee” only.

The Third Judge’s Case (1998), clarified the position on the instance of the President asking the Supreme Court to do so. It cemented the Supremacy of the Judiciary in the appointment and transfer of judges.

The Fourth Judge’s Case (the 2015 SC Judgment) has interpreted Article 124 and Article 217 of the Constitution only to uphold the ‘Exclusivity’ of the Chief Justice in the matter of appointment of judges, excluding the role of the President almost entirely.

And now to the criticisms – one of the most prominent criticisms against the verdict has been (as has been voiced by senior veterans of the legal fraternity) that the rules of interpretation do not allow the judiciary to interpret the law in a manner which is inconsequential and ultra-vires to the intention of the Constituent Assembly. The critics argue that our Constitution provides for the appointments to be made by the President in consultation with the Chief Justice of India (Article 124 and Article 217) and that the NJAC Verdict is the dire opposite of this provision.

The primary rationale behind the enriching 1030 page judgment by the SC is that, the Independence of the Judiciary (a basic doctrine constituent principle) cannot be taken away in any condition. The Hon’ble bench cited the Emergency period when the then Prime Minister of the country Smt. Indira Gandhi openly interfered with the judicial appointments, to eventually plunge India into its darkest period. In 1973, she appointed Justice Ajit Nath Ray as the Chief Justice, superseding 3 more eligible Justices. She obstinately named the subsequent CJI too – Justice Mr. M.H Beg – superseding Justice Mr. H.R. Khanna.

The second criticism and one that has been voiced by many prominent legal and political analysts is that the term “eminent person” hasn’t been defined, either in the verdict or in Article 124A. While referring to the second proviso under sec. 5(2), as well as sec. 6(6) of the NJAC Act, it was submitted, that a recommendation for appointment of a judge, could not be given effect, if the “eminent persons” did not accede to the same. In case they choose to disagree with the other members of the NJAC, the proposed recommendation would have to be thrashed. This provision, on the face of it, undermines the supremacy of the CJI.

Justice Mr. Kurian Joseph, publicly voiced his discontentment with this provision saying that “eminent persons”, who were earlier denied any role in judicial appointments were now to “suddenly” assume “KAFKAESQUE PROPORTIONS” and who could acting in concert, paralyze the whole appointment process.

However, the perspective of the other side is also noteworthy. Noted jurists and senior advocates like Mr. Soli Sorabjee and Mr. Arun Jaitley believe that Independence of the Judiciary has to be upheld but not at the cost of Parliamentary Sovereignty – the foundation of a democratic polity. The Prime Minister and the elected government is also a part of basic structure and represent the will of the people, which cannot be compromised. They believe that the NJAC is the people’s will considering it was passed by both the Houses of the Parliament and ratified by a total of 16 state legislatures.

Another serious concern was that across the world across various kinds of polity, there was absolutely no country where this system was prevalent. In no country across the globe d judges appoint judges.

In effect the Judiciary has quipped that “we admit that the present collegium system lacks transparency, accountability and objectivity”. In spite of this, the Judiciary has so far not come out with mechanisms to deal with these shortcomings.

The growing criticism springs from the practice that in case a provision in law is unconstitutional or turns unconstitutional with time, the judiciary has always had the power to negate it or overrule it. Justice Mr. J. Chelameswar in his lone learned dissent said “I do not even want to embark upon an enquiry whether the constitutional fascination for the basic structure doctrine be made a Trojan horse to penetrate the entire legislative camp.”

The prevalence of law and justice has always and will understandably so, be determined by the balance of powers between the Executive, Legislature and the Judiciary. The Judiciary needs to maintain its quality of judges for a fairer administration of justice while the Executive and Legislature need to keep these aspects in check.

All the rights secured to the citizens under the constitution are worth nothing, and a mere bubble except guaranteed to them by an independent and virtuous judiciary.-

                                                                                                            Andrew Jackson

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