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Sathasivam the Humanitarian: 3 reasons we’ll miss the former CJI (and 1 question mark)

Sathasivam the Humanitarian?
Sathasivam the Humanitarian?
Rights lawyer Monalisa argues that the former Chief Justice of India (CJI) P Sathasivam introduced a seldom-seen sensitivity into the Supreme Court’s jurisprudence and culture, though one major opportunity was clearly missed.

Chief Justice of India P Sathasivam’s stint in the Supreme Court has been responsible for the rare sensitivity that the apex court has shown in recent times. Hopefully, his retirement on Saturday will not be the end of that.

The tone and the tenor of the Chief's court, in the past 10 months or so, had been that of sympathetic, patient hearings that, as some would say, bordered on activism.

1. Criminal Justice

A few landmark decisions can be attributed to his relatively short innings, and Justice Sathsivam departed with another laudable gesture: the Centre-State tussle over the remission of those convicted of Rajiv Gandhi's murder, was referred to a Constitution Bench, which will give an authoritative decision on the question of remission and release of convicts.

This ruling will give finality to issues of early release at the behest of the executive. Identifying seven specific issues to be dealt with by the larger bench, the judgment noted that these are of “utmost critical concern for the whole of the country, as the decision on these issues will determine the procedure for awarding sentences in the criminal justice system”.

Sathasivam’s efforts towards strengthening the somewhat fractured criminal justice system translated into decisions which have been welcomed by the weaker sections and the civil society among others.

By deciding to penalise police officials who refuse to file First Information Reports (FIRs) in cognisable offences, the CJI granted much relief to survivors of sexual offences who are often met with not only refusal to file FIRs but also intimidation and harassment.

The decision has helped correct the usual power imbalance in the criminal justice system between the offender and the victim and it is not surprising that the number of FIRs registered has increased. 

approached the CJI at his residence at 11:30pm to request the stay of execution

The CJI’s words - “making registration of information relating to commission of a cognisable offence mandatory would help the society, especially, the poor in rural and remote areas of the country” - are achieving their purpose.

Perhaps emboldened by Sathasivam's demeanour, senior counsel Colin Gonsalves in early August of last year approached the CJI at his residence at 11:30pm to request the stay of execution of a convict, which was scheduled for the next morning. He, and his client, got the desired relief.

If that was a hint of what was to follow, the apex court in a landmark judgment decided that “unexplained delay is one of the grounds for commutation of sentence of death into life imprisonment”. The matter had arisen as a challenge to inordinate delay by the President in deciding on mercy petitions of those on the death row. Sathasivam in his decision cautioned: “Remember, retribution has no Constitutional value in our largest democratic country.”

the Chief advocated a departure from hard-to-meet eligibility criteria and rather preferential norms

2. Inclusionary Justice

One of his first steps on entering office, as the CJI has recounted on various occasions, was to try to make the judiciary more inclusive. With emphasis on inclusion of more women judges and those from weaker sections of society, the Chief advocated a departure from hard-to-meet eligibility criteria and rather preferential norms.

No wonder then that the Chief's tenure has seen the appointment of the first ever woman Chief Justice of the Delhi High Court, an institution headed only by men for nearly five decades. Chief Justice G Rohini was sworn in on 21 April 2014.

In keeping with his oft-expressed concern for marginalised communities, the CJI wrote a judgement against the practise of manual scavenging and noted the state perpetrated scavenging by Indian Railways - a ‘profession’ outlawed nearly twenty-five years ago. However, his judgement went further and included elaborate scheme for compensation, concessional loans, residential plots and other measures of rehabilitation for those involved in scavenging.

With the recent spate of communal clashes in the country and the consequent in flow of PILs, Court 1 also administered a constant check on the response of the state and its machinery. Both in Kishtawar clashes and in Muzzafarnagar riots, the CJI's bench kept the state counsels on their toes by asking questions about the status of relief camps, steps taken by the state, status of compensation and rehabilitation for those affected.

3. Democratic Justice

Of equal relevance has been the CJI's contribution to the altered electoral politics and processes in the nation. Clearly unappreciative of the tactics of the political class, the CJI made the rampant practise of leaving blanks in nomination papers and related affidavits, a potential ground of disqualification from contesting elections.

compel the political parties to nominate a sound candidate

This manoeuvre had meant an exemption from perjury for politicians and enabled them to evade crucial questions like criminal history, assets and for some, marital status. The judgement duly noted, “The voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament/Assemblies and such right to get information is universally recognized. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy.”

Another significant decision, which ensured transparency in the electoral process, was when the CJI ruled that a paper trail or receipt should be made available to the voter. This would ensure that the Electronic Voting Machine has correctly recorded her vote. Deciding to equip the  EVMs with the NOTA or “None of the Above” button, the Chief's court stated that “in a vibrant democracy, the voter must be given an opportunity to choose none of the above (NOTA) button, which will indeed compel the political parties to nominate a sound candidate”.

Gender Justice?

Sathasivam in his tenure has dealt with the controversial issue of sexual harassment and there, the Chief’s action was found lacking in many respects. It was during Sathasivam’s tenure that revelations of sexual harassment of young law students interning with former Supreme Court judges became public.

Needless to say, it dealt a huge blow to the institution which had propounded principles of equality and identified sexual harassment at the work place as a violation of the gamut of Fundamental Rights- including that of Right to Life and Right to Equality.

The Supreme Court also came under attack for the failure to comply with the Vishaka judgement in its spirit. In 1997, the Supreme Court had made in compulsory to have an in-house mechanism of sexual harassment complaint redressal in this landmark judgement- the apex court was found lacking in complying with its own direction.  

While the CJI was quick to set up a 3 judge committee to look into the matter after the first instance became public, criticism was quicker to follow. The 3-judge committee’s role and responsibilities were questioned, absence of any external member was  conspicuous, and questions arose about its jurisdiction over a retired Supreme Court judge.

That much more could have been done by the former CJI, was obvious.

The committee gave detractors more ammunition when it failed to do anything concrete apart from finding that prima facie untoward conduct, sexual in nature, was made out on the retired justice’s part.

That much more could have been done by the former CJI, was obvious.

However, just before to his retirement, the CJI, following the relevant committee’s recommendation, punished a lawyer for indulging in sexual harassment within the court premises. The quantum and severity of punishment - barring the offender’s entry in to the Supreme Court premises for 6 months - has evoked mixed reactions.

It must be remembered that when Sathasivam embarked upon the task of manning the office of CJI, it was marred with disrepute. Critics of his predecessor Justice Altamas Kabir had openly lambasted him even as his retirement drew close. Allegations of corruption and nepotism surfaced in the media on his retirement day and became more frequent afterwards. While those allegations have never been actually proven, the credibility of the office was long gone.

CJI Sathasivam was quick to revive that fast depleting faith in the judiciary.

Aadmi Justice

In the past few months, Court No 1, the awe inspiring, domed structure, has been a little more accessible to the bar and many hapless litigants. It has been witness to multiple Public Interest Litigations (PILs) being admitted by the court and genuine requests of the bar and petitioners being accommodated, at the behest of the CJI.

Any lawyer worth her salt will say that getting any matter, especially PILs, admitted in a court of law, is a feat in itself. The former CJI granted them often to both lawyers and litigants.

The final outcomes have often been a well-reasoned, rights-based orders rooted in the Indian Constitution, with detailed directions to the executive and its machinery.

While many have called his orders populist and even unimaginative, these judgments have taken the first step: identifying an issue and then going on to give suitable relief.

Hopefully, Sathasivam’s successor in the CJI’s office, RM Lodha, will strengthen the foundations laid by him.

Monalisa is a lawyer working on rights and gender based issues, currently a consultant for an NGO.

Also read: Court Witness’ profile of ‘Sathasivam the Safe’

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