Appointment of retired judges under Article 224A

• The Supreme Court cleared the way for appointment of retired judges as ad-hoc judges in High Courts under Article 224A of the Constitution.
• The court ruled that the Chief Justice of a High Court may initiate the process of recommending a name if the number of judges’ vacancies is more than 20 per cent of the sanctioned strength.
• The court said the appointments can follow the procedure laid down in the Memorandum of Procedure for appointment of judges.
• The move will help to deal with mounting backlog of cases.
• Since the nominees have been judges before, the need to refer the matter to the IB or other agencies would not arise, shortening the time period.

Back2Basics: About Article 224A

• It allows the Chief Justice of a High Court to allow a retired judge of any High Court to sit and act as the judge of the High Court for that State.
• Previous consent of the President is necessary.
• The acting retired judge would be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court.
• This Article was not part of the Constitution of India, 1950. It was inserted by the Constitution (Fifteenth Amendment) Act, 1963.

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Why the timeline

• The Supreme Court laid down a timeline for the Centre to clear names recommended by the High Court Collegiums.
• The Bench noted that there are almost 40% vacancies in the High Courts, with many of the larger High Courts working under 50% of their sanctioned strength.
• Against the sanctioned strength of 1,080 High Court Judges, 664 have been appointed but 416 vacancies remain. 
• The Bench rejected the contention that laying down a timeline “would be contrary to” certain “observations made in the Third Judges case”, saying the “observations” referred to “deal with the judicial review of a particular appointment and not such aspects of the appointment process like delay”.

The timeline

• The Intelligence Bureau (IB) should submit its report/ inputs within 4 to 6 weeks from the date of recommendation of the High Court Collegium, to the Central Government.
• It would be desirable that the Central Government forward the file(s)/ recommendations to the Supreme Court within 8 to 12 weeks from the date of receipt of views from the State Government and the report/ input from the IB.
• It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly, if Government has any reservations on suitability or in public interest, within the same period of time it may be sent back to the Supreme Court Collegium with the specific reasons for reservation recorded.
• If the Supreme Court Collegium, after consideration of the aforesaid inputs, still reiterates the recommendation(s) unanimously…, such appointment should be processed and appointment should be made within 3 to 4 weeks.

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A judgment by the Supreme Court forbidding judges from making gender-stereotypical comments came as a corrective voice from within the highest judiciary.

Q.Discuss the need for gender sensitization of the judicial institutions.

What is the news?

• The judgment came days after the CJI, during a virtual hearing reportedly asked an alleged rapist’s lawyer to enquire whether his client would marry the survivor.
• His statement coincided with International Women’s Day.
• Days later, a Bench of Justices A.M. Khanwilkar and S. Ravindra Bhat urged courts to avoid using reasoning/language which diminished a sexual offence and tended to trivialize the survivor.

What did the Court say?

• The greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge.
• Even a solitary instance of such order or utterance in court, reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence.
• This judgment is one among a series of interventions with which the apex court has clamped down on abuse and sex stereotyping of women.

No institution is mightier than the modesty of a woman.

SC against stereotyping

Some of the notable judgments which have lashed out at sex stereotyping include:

1. The framing of the Vishaka Guidelines on sexual harassment of women in working places, and
2. Justice D.Y. Chandrachud’s historic judgment giving women Armed Forces officers’ equal access to Permanent Commission while debunking the establishment’s claim that women were physiologically weaker than men
3. In the Anuj Garg case, the Supreme Court had rebuked “the notion of romantic paternalism”, which, “in practical effect, put women, not on a pedestal, but in a cage”

Avoid gender stereotypes such as:

The courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that

• women are physically weak and need protection;
• men are the “head” of the household and should take all the decisions relating to family;
• women should be submissive and obedient according to our culture;
• “good” women are sexually chaste;
• motherhood is the duty and role of every woman and assumptions to the effect that she wants to be a mother;
• being alone at night or wearing certain clothes make women responsible for being attacked;
• lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

Conclusion

• Stereotyping compromises the impartiality and integrity of the justice system, which can, in turn, lead to miscarriages of justice, including the re-victimization of complainants.
• Often judges adopt rigid standards about what they consider to be appropriate behaviour for women and penalize those who do not conform to these stereotypes.

There should be gender sensitization

• The court-mandated that a module on gender sensitization is included, as part of the foundational training of every judge.
• This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny.

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A three-judge Bench of the Supreme Court has found a famous civil rights lawyer guilty of criminal contempt by ‘scandalizing the court’.

Try this question for mains:

Q.What is Contempt of Court? Discuss, how free speech can lead to the contempt of courts?

Contempt of Court

• According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt.
• Civil contempt means willful disobedience to any judgment, decree, direction, order, writ or another process of a court or willful breach of an undertaking given to a court.
• On the other hand, criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which

1. Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
2. Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

What did the court rule in this case?

• The tweets had the effect of attempting to destabilize Indian democracy.
• A defamatory publication concerning “the judge is a serious impediment to justice”.
• The court could not ignore the disrespect and disaffection created by the “scurrilous” tweets.
• If such an attack is not dealt with a requisite degree of firmness, it may affect the national honour and prestige in the comity of nations.

A suo motu action

• The prior consent of the Attorney General (AG) of India is not required to suo motu initiate the inherent contempt powers of the Supreme Court.
• The Contempt of Court Act of 1971 cannot limit this power of the court. The statute only provides the procedure in which such contempt is to be initiated.
• The suo motu contempt powers of the top court are drawn from Article 129 of the Constitution, which says the Supreme Court, as a court of record, has the power to punish for contempt of itself.

What would be the penalty?

• The Contempt of Court Act of 1971 punishes with imprisonment that may extend to six months or fine of ₹ 2,000 or both.
• This is provided in case the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

Also read:

Explained: What is Contempt of Court?

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Reversing the 2011 Kerala High Court decision, the Supreme Court upheld the right of the Travancore royal family to manage the property of deity at Sree Padmanabha Swamy Temple in Thiruvananthapuram.

Try this question from CSP 2016:

Q.In the context of the history of India, consider the following pairs

Term		Description
1.	Eripatti	Land, revenue from which was set apart for the maintenance of the village tank
2.	Taniyurs	Villages donated to a single Brahmin or a group of Brahmins
3.	Ghatikas	Colleges generally attached to the temples

Which of the pairs given above is/are correctly matched?

a) 1 and 2

b) 3 only

c) 2 and 3

d) 1 and 3

What did the apex Court say?

• The court said that as per customary law, the shebait rights (right to manage the financial affairs of the deity) survive with the members of the family even after the death of the last ruler.
• The ruling ends the legal battle the temple and members of the royal family have fought with the government for decades over control of one of the richest temples in the world.

What is the case about?

• The central legal question was whether the heirs of the last Ruler of Travancore could claim to be the “Ruler of Travancore” after the death of the ruler in 1991.
• The court examined this claim within the limited meaning of that term according to the Travancore-Cochin Hindu Religious Institutions Act, 1950 to claim ownership, control and management of the ancient Temple.

Earlier cases of ownership: A background

• All the temples which were under the control and management of the erstwhile Princely States of Travancore and Cochin were under the control of the Travancore and Cochin Devaswom Boards before 1947.
• However, as per the Instrument of Accession signed, since 1949, the administration of the Padmanabhaswamy Temple was “vested in trust” in the Ruler of Travancore.
• The state of Kerala was carved out in 1956 but the temple continued to be managed by the erstwhile royals.

The legal battle

• In 1971, privy purses to the former royals were abolished through a constitutional amendment stripping their entitlements and privileges.
• The move was upheld in court in 1993 and the last ruler of Travancore who died during the pendency of this case continued to manage the affairs of the temple till then.
• In 1991, when the last ruler’s brother took over the temple management, it created a furore among devotees who moved the courts leading to a long-drawn legal battle.

Is the temple the property of the royal family?

• The character of the temple was always recognised as a public institution governed by a statute.
• The argument of the royal family is that the temple management would vest with them for perpetuity, as per custom.
• Even though the last ruler executed a detailed will bequeathing his personal properties, he had not included the Sree Padmanabhaswamy Temple as his personal property or dealt with it in his will.

What about the treasure in the vaults?

• A consequence of who has administrative rights over the temple is whether the vaults of the temple will be opened.
• In 2007, the heir claimed that the treasures of the temple were the family property of the royals.
• Several suits were filed objecting to this claim and a lower court in Kerala passed an injunction against the opening of the vaults.
• The Kerala High Court in the 2011 ruling passed an order that a board be constituted to manage the affairs of the temple, ruling against the royal family.

What impact would this ruling have?

• Since 2011, the process of opening the vaults has led to the discovery of treasures within the Padmanabhaswamy temple, prompting a debate on who owns temple property and how it should be regulated.
• Despite being a secular country that separates religion from the affairs of the state, Hindu temples, its assets are governed through statutory laws and boards heavily controlled by state governments.
• This system came into being mainly through the development of a legal framework to outlaw untouchability by treating temples as public land; it has resulted in many legal battles.

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