Monday, December 18, 2017

Structural re-engineering of judicial system – a prospect

A detenu’s plea for hearing his appeal

Underneath the multi-layered solutions proffered to countless ills afflicting judicial system, suggestion for setting up a National Court of appeal with regional benches in Chennai, Mumbai and Kolkatta did some rounds before the idea was temporarily buried with the Attorney General telling the then Chief Justice T.S.Thakur’s court on April 26, 2016 that “We will only be adding to lawyers’ pockets. The Supreme Court should not consider this when its own dockets are full.” Recently, in Sadaulla @Sadab @Nanka, a detenu serving a life sentence, after a conviction of Sessions Court in the State of Jharkand had moved the High Court and Supreme Court successively to obtain bail without success, pending his appeal and later approached the High Court again pointing to the fact that he had served 10 ½ years in person and requesting to set a date for hearing in his appeal.  The High Court ordered that it has no time to hear his appeal and dismissed the application. When the matter reached the Supreme Court yet again, it ordered notice on 27.10.2017 promising to consider what the remedies could be to administered to ensure hearing of criminal appeals within reasonable time. The court noted that the scene of inability of the High Court to hear the appeal was not limited only to Jharkhand High Court and similar was the position prevailing in several High Courts where a large number of criminal appeals were pending.

SC Arrears Committee recommendations

The Supreme Court order makes reference to minutes of the 'stakeholders' meeting called by the Arrears Committee on 8th April 2017 and what it reveals is interesting. It records the fact that pendency of cases which are more than five years old in High Courts is more than 40% and disposals of criminal appeals are less than the corresponding rate of institution. In the High Courts, there are 16.29 lakh cases that are more than 5 years old of which 7.43 lakh cases are more than 10 years old. Underlining the need for re-engineering the structure of administration of justice by which the Supreme Court and the High Courts may discharge their core constitutional functions, it suggested that statutory appeals could be dealt with by an alternative mechanism by courts of appeal, which in the hierarchy will be higher to the district judges but below the High Court. In other words, an intermediary tier between the High Court and the District Court is envisaged that will have a cadre drawn partly by selection from the Higher Judicial Service and partly from the Bar through Centralised recruitment mechanism.

Intermediate appellate court between District Court and High Court

This suggestion has a distinct advantage. In the Constitutional scheme of things, High Courts are not subordinate to Supreme Court, in matters of judicial administration, the way the District courts are to the High Courts. Setting targets for disposals to High Courts could not be done and increasing numbers of High Court judges are never easy matters. With the above suggestion, it may be possible for High Courts to set disposal norms to be achieved for such intermediate appellate Benches and their functions could be closely monitored. Based on performance, integrity and suitability, members of the appellate Benches may be considered for elevation to the High Courts.  Hitherto, 1/3 of judges of the High Court are drawn from the cadre of District judges; now, they will be from the members of the appellate Bench. Dealing with a possible objection that creating another Appellate Forum might not necessarily result in reducing the docket load of the High Courts, the Committee noted that scope of interference in constitutional jurisdiction of the High Courts under Article 226 and 227 is circumscribed and will not be the same as deciding on facts and law. Consequently, the decisions of these appellate Benches cannot be appealed as a matter of course against to the High Courts.

The aborted initiative

The attempt of the Supreme Court to look into its own recommendation on its judicial side has been unfortunately aborted when the Chief Justice withdrew the case before himself and 2 Companion judges and 'recalled'  the order on 8.11.2017 by a placid observation that High Courts shall expeditiously hear appeals where accused persons have already spent 10 years, as though it was exercising a review or intra court appellate jurisdiction. If the Supreme Court will not address the problems of persons in jails whose appeals are not being heard for more than a decade, will the reform come from some quarters who will deal with how to improve the quality of jails so that persons inside have no need to complain, after all?  If that happens, Mallya will have lost one line of argument from his armoury before the Magistrate to thwart his extradition!

Thursday, October 20, 2016

Frames of reference..

K. Kannan on triple talaq laws in India and in several Muslim-majority countries: Frames of reference: The thicket of legal dialogues on the validity of triple talaq conceals the result of churnings that have already taken place in our courts on this subject. The renewed debate has come through a quest

Thursday, October 13, 2016

Saturday, August 27, 2016

Organ Donation - Imperatives for preparing the whole family

Organ Donation - Two unusual cases

Organ donations come with different types of problems, We have two examples here: one, where the spouse was objecting to donation of a portion of liver by her husband to his father and two, a person wanting to donate his body immediately for research, when the hospital declined on the ground that a living person cannot donate his own body. The results in these judicial decisions have been reasonably predictable. 

 The Andhra Pradesh High Court confronted a curious situation in Suma Kiran Malena v Secretary Medical and Health and others (2007),where the wife of the donor filed a writ petition challenging the decision of her husband to donate a portion of the liver to his father, who was reportedly suffering from decompensated cirrhosis of liver, an incurable HCV-related liver function. The Court rejected the petition as not maintainable, holding that no legal right existed for the wife to prevent her husband’s decision! The court ruled that case had been filed on two wrong assumptions: that her husband’s affection towards his parent should be subservient to the marital relationship between him and the petitioner, and that he could not donate his organs without her consent. Though the case was lost, it signals an important aspect that has to be factored at all times that consent for transplant is desirable of all members of the family, by counselling and if need be, by persuasion, if the individual donor has already signified his consent. 

By no stretch of imagination can the Act that makes possible organ donation be taken as allowing someone else’s life to be taken to save one’s own. In C.A. Thomas Master v. Union of India (UOI ) and Ors (2000)  the petitioner claimed that he had approached some of the medical institutions under the control of the state government, including the District Hospital, Thirssur, seeking help to facilitate his voluntary death and for donation of his organs, including the heart, kidneys, and eyes. His request was not taken seriously and he was told that none of the hospitals under the state government had such facilities to enable the petitioner to voluntarily cause his death, which would not be suicide. The petitioner therefore approached the high court of Kerala for the issuance of a writ of mandamus commanding the respondents to start ‘Mahaprasthana Kendra’ or voluntary death clinics in each district Hospital so as to facilitate voluntary death and donation of bodily organs as well as their transplantation. There was a further prayer for a direction to the respondents to appoint a commission to study the practice of voluntary death in ancient India and to suggest methods for its practice in the context of  environmental changes and technological advancement. The petitioner also prayed for a direction to the respondents to set apart funds and set up infrastructure for assisting voluntary organizations that are willing to facilitate voluntary deaths and the donation of bodily organs. The court said that in the absence of any legislation, and in view of the decision of the Supreme Court in Gian Kaur’s case upholding the provision in the IPC making the attempt to suicide as an offence, no distinction could be made between suicide as ordinarily understood and the right to voluntarily end one’s life as distinguished by the petitioner. Now even an attempt to suicide has been de-criminalised by repealing s 309 IPC, but the effect would be the same. The doctor cannot be commanded to take away the life of a healthy person only in order to facilitate organ donation.

Tuesday, August 02, 2016

A tricky debate on abortion