Saturday, August 14, 2010

Justice A.P. Shah | Judge of the brave

Justice A.P. Shah | Judge of the brave

Even after retirement, the quest for inclusiveness dominates this legal activist's work

Krish Raghav

If there's one phrase that justice A.P. Shah associates with the safeguarding of freedom of speech in India, it is the common and overused lament of "hurt sentiments".

In case after case, PIL after petition, the 62-year-old architect of the landmark judgement that decriminalized homosexuality in July 2009, has had to deal with knee-jerk outrage disguised as community sentimentality. "Any person who believes in democracy should be worried by this trend in our country," he says. Dressed in a crisp formal shirt, and speaking in precise, carefully weighed sentences, Shah shakes his head as he outlines his concern. "Intolerance is growing in our society. A reply to something one objects to cannot be made with violence. That is no way to move the public discourse forward." The examples are easy to recall—from the attacks on news channel IBN 7's offices in November to the furore over actor Khushboo's comments on premarital sex and calls for censorship of films such as Deepa Mehta's Water. "It's the duty of the court to protect this freedom at every opportunity."

Freedom of speech and expression ("Our courts have consistently maintained this is the most precious of all our rights—the 'ark of democracy', 'the lifeline of any democratic institution'") is a big deal to justice Shah. It's been one of the cornerstones of his tenure as a judge—first as an additional judge of the Bombay high court till 2005, then as chief justice of the Madras and Delhi high courts. His judgements— from making Chennai's buses handicapped-friendly to improving living conditions in prisons—have been described as inclusive, reasoned and sympathetic to the marginalized. "I strongly felt that separating people with disabilities or handicaps to 'special' institutions should be done away with. It should be made visible, brought into the mainstream."

Born in Solapur, Maharashtra, in 1948, Shah comes from a family of lawyers. "I went to a really progressive school in Solapur," he says—one that allowed him to indulge in his "obsession" for reading. "One of my relatives had a book store," he remembers. "He wouldn't let me borrow books, so I used to sit in this dingy room at the back that doubled as a godown, and read for hours."

After graduating from the Government Law College in Mumbai, he practised first in Solapur, then Mumbai. "You could say I was a successful lawyer, if not an activist one," he says. He was appointed an additional judge of the Bombay high court in 1992. "Judgeship changed everything. You look at life in a different way, and you're always involved in a learning process," he says.

An early important case in 1997 involved two documentary films by award-winning director Anand Patwardhan—In the Memory of Friends and Ram ke Naam. "Doordarshan had a policy of telecasting the national award winners on prime time, which they refused to do in this case for frivolous reasons." Shah dismissed the arguments, and the films were aired. "The state cannot prevent open discussion and open expression, however hateful to its policies," the bench wrote in the judgement. He quotes a distinctive Supreme Court observation that suppression of freedom of expression must only be exercised if the offending thought is the equivalent of a "spark in a powder keg".

During his stint in Mumbai, Shah also ruled in favour of reservation for dyslexic students in Maharashtra classrooms, a move that has dramatically increased the public understanding and acceptance of the condition. "Things are getting better (for people with disabilities)," he says. "But there is still an alarming lack of empathy."

Shah shifted to the Madras high court in 2005—a move that proved challenging. It was a stint marked with volatility and political manoeuvring. "Bombay has a great Bar," he says. "Madras is slightly different. It's racked by casteism, and a lot of internal politics." Soon after his appointment, he ruled against then chief minister Jayalalithaa in a case filed against the political magazine Nakkheeran. Jayalalithaa accused the magazine of defamation after it published an article that alleged she was "taking 4,500mg of tablets every day." Shah dismissed the argument, calling for public officials to be more open to criticism.

A year later, he judged a case brought against a film based on reformer E.V. Ramasamy Naicker, or "Periyar". "The Ramayana has this story that Ram touched the back of a squirrel, which is why it has those distinctive marks," Shah says. "Periyar had written a satirical piece asking—if that's true, how come there are no marks on Sita's back?"

Shah was also involved in dismissing the call for banning the film The Da Vinci Code on the grounds that it hurt Christian sentiments. "The foundations of these faiths, or groups, can't be this fickle," he says.

Shah was appointed chief justice of the Delhi high court in May 2008. He introduced an important amendment to the Right to Information Act that brought the office of the Chief Justice of India under the Act's jurisdiction.

His landmark 105-page judgement on section 377, which decriminalized homosexuality, was a culmination of the issues Shah has been involved with. "Strangely enough, the homosexuality issue came up many years earlier, in 1997," he says. A visiting delegation of German legislators had brought up the law in the course of a discussion, asking why an Indian court could not strike it off. "I made an off-the-cuff remark at the time, and said it would be difficult for an Indian judge to rule in favour of it. Little did I know I'd be that judge a decade later!" Shah retired from the Delhi high court on 12 February.

Retirement, however, hasn't lessened Shah's zeal. "It's only been five months, and it all feels so hectic," he says. In June, he travelled with Medha Patkar and Narmada Bachao Andolan activists through "many districts and "affected areas", analysing issues of displacement and environmental destruction. "This was a moving experience for me," he says. "I visited a large number of villages, spoke to people, and headed a people's tribunal appointed to have a public hearing on the issues."

In July, he was involved with a Delhi-based NGO called the Housing and Land Rights Network, which released a report that found funds meant for the benefit of scheduled caste communities had been diverted to build Commonwealth Games infrastructure.

"I've decided not to accept any formal assignment, or 10-5 jobs," Shah says. "But I have to sustain myself with some professional work—so I occasionally act as arbitrator, or do some routine legal work," he says.

Shah is currently involved with an issue brought to his notice by a group of NGOs. "There's an alarming new trend of abortions taking place when the parents find out that the foetus has developed deformities or disabilities," he says. "This is a tremendous prejudice against the disabled. When it starts there—a decision not to give birth because of a disability." Shah hopes to get involved in a campaign to spread public awareness of the issue: "That is the first step. A small, but important one."

Courtesy_

A brief Biography about Justice A.P.Shah as follows:

Chief Justice Ajit Prakash

Ajit PrakashBorn on 13th February, 1948 at Solapur – comes from a family of lawyers – his grand father, father and uncles were in the legal profession. Later on his father became Judge of Bombay High Court and upon retirement served as Lokayukta in the State of Maharashtra.

Justice Shah did his graduation from Solapur and degree of law from Government Law College, Mumbai. After a short span of practice in the District Court at Solapur he shifted to Bombay High Court in 1977 and joined the chambers of the then leading Advocate Justice Shri S.C. Pratap. He then gained experience in civil, constitutional, service and labour matters. He was appointed as an Additional Judge of Bombay High Court on 18th December, 1992 and became permanent Judge of Bombay High Court on 8th April, 1994. He assumed charge of the office of Chief Justice, Madras High Court, on 12th November, 2005 and on transfer took over as Chief Justice, Delhi High Court on 11th May, 2008. Retired on 12-02-2010.

Important judgments on various significant issues

1. Freedom of Speech and Expression: In Anand Patwardhan v. Union of India, 1997 (1) BCR 90, and Anand Patwardhan v. Union of India, 1997 (3) BCR 438 – Quashed the orders of the Government not to telecast the President’s Award winning documentaries “In Memory of Friends” (based on terrorism and violence in Punjab) and ‘Ram Ke Naam’ (based on Ayodhya issue) and directed Doordarshan to telecast the said Documentaries – also stuck down the decision of Censor authorities not to release documentary “Aakrosh” on recent Gujarat communal riots and directed grant of certificate.

2. Environment and Ecological matters: - Issued directions for beautification and maintenance of Girgaon Chowpaty and Juhu Beach – Interpreted Maharashtra Forest (Acquisition) Act highlighting the restrictions and dereservation of forest and use of forest land for non forest use – issued directions to save Hill Stations like Mahabaleshwar and Panchgani.

3. Protection of disabled person: - Restrained the Central and Western Railways, Railway police and Municipal Corporation from taking any action against the blind vendors/hawkers and directed them to frame a scheme for earning of their livelihood – protected the rights of students suffering from Displexia – issued directions to ensure implementation of reservation policy for disabled in the State Government and State Corporations as well as Local Bodies – Recently delivered a judgment where a staff nurse who was made to retire on the ground of mental illness i.e., Schizophrenia was held entitled to full benefit of Section 47 and salary till retirement - Adopted a proactive attitude towards the rights of the disabled persons, ordered Railways and Metropolitan Transport Corporation, Chennai to ensure barrier free environment in their premises, also directed the MTC to make their buses disabled friendly- initiated steps to make the Chennai High Court disabled friendly.

4. Law relating to women: - Recognized the right of muslim women to receive maintenance under Sections 125 and 127 beyond iddat period and recognized the right of second wife to receive maintenance under Hindu Marriage Act. Both the judgments have been affirmed by the Supreme Court – in Yashaswinee Merchant and others v. Air India, held that the circular issued by Air India directing grounding of air hostesses at the age of 58 years is bad in law. The judgment was reversed by the Supreme Court, but later on Government accepted the High Court's judgment and allowed the Air Hostesses to fly till the age of retirement.

5. PIL: - issued various directions for reforms of prisons and particularly in the context of women prisoners and their children – took note of newspaper report of death of children due to malnutrition belonging to tribal areas and directed various measures to save the lives of children – in B. G. Deshmukh and others v. State of Maharashtra held that no political party had any legal right to call for Bombay Bandh and such bandh caused encroachment upon the fundamental rights of citizen and political parties cannot hold the public members at ransom by calling such bandh. The political party was directed to deposit Rs.20,00,000/- towards fine/token compensation – issued directions for proper rehabilitation of nearly 2000 families displaced by Tarapur project – laid down an elaborate scheme for improvement of institutions wherein women and children are housed and for constitution of juvenile Boards – recognized rights of AIDS patients in employment – acted strictly against unscrupulous builders involved in unauthorised constructions while showing a humane approach towards residential buildings – initiated action to improve the conditions of inmates of prisons, juvenile homes and vigilance homes.

6. Other laws: - Delivered several important judgments pertaining to Admiralty Act, Trade Mark and Patent Act, Service and Labour laws.

7. He gave impetus to mediation movement in Maharashtra – recognized movement of Lok Adalat and also started Pension Lok Adalats – took keen interest in legal literacy mission – prepared panel of Arbitrators including retired High Court Judges, retired District Judges and senior members of the Bar who agreed to work on nominal fees and sometimes without charging any fee.

8. He took leading role in organizing the programmes, relating to sensitization of Judicial Officers, Judges, Family Court Judges etc., regarding Gender Justice – took initiative in starting ADR certificate course in collaboration with Mumbai University, - organized various training programmes for imparting training to Judicial Officers on the subject of Juvenile Justice with the help of TISS and UNICEF.

9. Taking note of the environmental issues, directed the bleaching and dyeing units in Tamil Nadu to pay for every litre of untreated effluents let out by them.

10. Directed various steps for computerisation and networking of all courts in Tamil Nadu, including introduction of touch-screen kiosks, digital boards etc.

Source:

http://delhihighcourt.nic.in/ajitprakash.htm

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This Blog Spot is meant for publishing landmark judgments pronounced by the Court of law as we collected from the renowned Dailies, Magazines, etc., so as to create an awareness to the general public and also to keep it as a ready reckoner by them. As such the readers may extend their gratitude towards the Original Author as we quoted at the bottom of each Post under the title "Courtesy/Sources". Furthermore, the Blog Authors are no way responsible for the correctness of the materials published herein and the readers may verify the concerned valuable sources.



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