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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 sex
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. |
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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.
17
February 2010
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