A Judge Retires, & Shames
Mansukh Kaur
Last week, an Indian judge retired. Well, that is hardly news. What is news is that the retirement of this particular Indian judge underlined the complete failure of the official Indian establishmet to bring any transparency to administering the judicial domain, and showed how even appointments of Supreme Court judges are shrouded in mystery in a country that has the cheek to call itself a democracy.
Large sections of the media tended to agree that Justice A P Shah, who retired as Delhi High Court Chief Justice, deserved to be in Supreme Court, and was bypassed because of a system of appointments that is deeply and fundamentally flawed. India's minorities have often complained of under-representation, and the women have rarely been represented in the apex court judiciary.
Justice Shah minced no words in stating the facts and said he was indeed hurt at not being elevated to the Supreme Court. “It is for the people to judge. It would not be fair on my part to comment on that. But I cannot pretend not to be hurt. The sense of hurt is always there,” he said last Thursday, his his last working day in office, as Friday and Saturday were holidays.
The Sikh community has reason to celebrate the judge and his stances on public issues. It was a bench headed by him in the Delhi High Court that had only recently directed the trial court to wrap up the four cases pending in the 1984 anti-Sikh pogrom cases within six months. The bench had also appointed a special public prosecutor and an advocate to argue the cases in the trial court and the high court after hearing an appeal by the 1984 massacre victims who pleaded for speedy trials.
Justice Shah also warned the agencies against treating these cases as routine ones, compared these to the Gujarat riots, and said, “See the historical background and sensitivity involved in these cases. Don’t you think like Gujarat riots cases, Special Public Prosecutor be appointed to handle these cases?”
Last year, a bench headed by him imposed a fine of Rs 2 lakh on the Apollo Hospital for not providing free treatment to poor patients, held it guilty of making "a complete mockery of agreement by not providing free treatment to the poor people'' and directed it to reserve at-least 200 beds for the poor patients. It also directed the hospital not to impose any kind of charges from the poor, even for any tests. He also asked the government of Delhi to direct all its hospitals to come up with a referral centre for sending poor patients for free treatment at Apollo Hospital. Such examples are few and far between in India.
Shah told Shekhar Gupta, editor-in-chief of the Indian Express: "The basic flaw in the system is lack of transparency. There are no procedures. There are no parameters fixed for the elevations, either in the High Court or the Supreme Court. The system is very opaque. If I use the words of Justice Krishna Iyer—very strong words—but he said that this selection process is carried in a secret and bizarre fashion. Not very open."
He made headlines because of several important cases including striking down of Section 377 of the Indian Penal Code making consensual s*x between two consenting adults legal, to misuse of the mechanism of public interest litigation and corruption in the judiciary besides his recent judgement blasting the Delhi government for demolishing night shelters for poor while putting in hundreds of crores into infrastructrure for Delhi Commonwealth Games.
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Justice Shah had prevented the Maharashtra government from suppressing Doordarshan’s telecast of a film about terrorism in Punjab and Ram Ke Naam, a documentary about the Ayodhya issue. He recently told the trial court trying cases of anti-Sikh massacre to wrap these up in six months. he had minced no words in calling for higher sensitivity in dealing with these kinds of cases. |
Justice Shah now plans to work with Baba Amte’s son, Prakash Amte, at the Anand Wan Ashram in Chandrapur district of Maharashtra.
He left his mark across a spectrum of cases. During his time at the Bombay High Court, he had outlawed political party's right to call for a bandh and made the Shiv Sena and the BJP deposit fines of 20 lakh rupees each and directed that the money be used to improve public services in the city. In another case, Justice Shah had prevented the Maharashtra government from suppressing Doordarshan’s telecast of a film about terrorism in Punjab and Ram Ke Naam, a documentary about the Ayodhya issue. At the Madras High Court, where Justice Shah had spent two years building up the infrastructure of justice delivery, he set up a child centre in the family court, mediation centres in the districts and decentralised training programmes for judges.
When an overzealous Delhi government was on its way to sending beggars back to their native states, Shah and Justice Muralidhar intervened to stop them. “Poverty is not a crime,” they observed. “It’s strange that a criminal can reside in the city but if someone is asking for alms, then he is thrown away.”
Last month, as temperatures dropped to 4 degrees, the MCD demolished a night shelter for the homeless on Pusa road. Responding to a newspaper article, Justice Shah and Justice Endlaw directed the MCD to restore the shelter immediately. The MCD has now been directed to draw up a plan to construct 144 permanent shelters for the homeless across the city.
In a stream of rulings like these above, Justice Shah has led bench after bench in defending those very ordinary people — cycle-rikhshawalas, the disabled, slum-dwellers and most recently the victims of the 1984 massacres — whom no one else has time to remember.
Very recently, the Supreme Court itself made a rare, self-critical comment. “Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations,” said the ruling, authored by Justice Singhvi. “The attractive mantras of globalisation and liberalisation are fast becoming the raison d’etre of the judicial process.” In a time when the government and the judiciary have fallen into a hard consensus on corporate-led development, modest regard is paid to its social and environmental cost. Many courts place implicit trust in the intentions of companies and in the idea that any corporate interest result directly in the improvement of the lives of others. The time spent on corporate disputes has increased as the importance given to matters concerning the underprivileged has fallen.
It’s this context that has made Justice Shah’s court an extraordinary one. Late last year, a judgment of Justice Shah’s reminded a corporation of its obligations to pay the city back, he directed Apollo Hospitals to give 33 per cent of its beds and 40 per cent of its Out Patient services for free, as they’re legally bound, saying, “Health care… cannot be left to be regulated solely by the invisible hands of the market.”
Justice Shah’s judgments have held off some of the Darwinian forces trying to morph Delhi into a city free of too-poor people. Some of the judges at the top level may also not like him; after all, he forced them to declare their assets and make these details available to the people under the Right to Information Act.
Many will also remember Justice AP Shah for what he did for the disabled: With a wife who is a psychologist. the judge understood what it meant to be a disabled. "It is very necessary to bring such children into the mainstream. We need not have any special schools for dyslexic students, they should be in the mainstream. Disabled should be in the mainstream... There should not be any special schools for anyone," he said.
He also slammed corporate interests and other vested and entrenched moneyed people using PILs as a weapon to remove the poor from the city. "I mean, it’s very sad that on PILs, the courts passed orders for demolition of slums. So a perception was created that the courts are anti-poor. That was an unfortunate development in the recent past. For instance, in the division bench case which we overruled, several orders were passed against rickshaw-pullers. And the orders were passed without hearing them. Neither rickshaw-pullers nor their representatives appeared before the court. Same with those whose slums were removed. So that is one aspect which really is very disturbing. A PIL should be used as a powerful weapon to give relief to the poor and vulnerable sections and not used against them."
Justice Shah may have missed the elevation to the Supreme Court, but like Justice H R Khanna, also similarly bypassed, he will be remembered for much longer that those whom the official Indian establishment preferred.
