Type: SC Judgements

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.

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.

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.