The Divorce Bill: de-stigmatising leprosy sufferers

Source: DNA dated 18.01.2019
Article by Vineeta Shanker, Executive Director, S-ILF

It is heartening to note that the government has finally taken note of the huge lacuna in the country’s laws which still include clauses that discriminate against those who happen to be affected by leprosy. Recently, the government made a commendable move towards the elimination of leprosy discrimination in India with the Lok Sabha passing the bill removing leprosy as a ground for divorce. In today’s age, when leprosy, being a bacterial disease, is treatable, and a person becomes non-infective within 24 hours of starting treatment, the grounds on which the law was made no longer exist. Even more, disease and ailment as a legitimate reason for divorce within the legal system only enhances and reaffirms the stigma that exists against those affected and is a violation of human rights. This step is sure to contribute to the improvement of the overall social environment and the negative perception around leprosy.

It is worth noting here that even today there are around 19 national and state laws and possibly more municipal and local body laws that discriminate on the basis of leprosy. In fact, the law commission had, in April 2015, suo moto drafted an EDPAL (Eliminating Discrimination Against Persons Affected by Leprosy) bill, which sought to render null and void any law/clause which discriminates on the basis of leprosy. This bill would have obviated the need for the tedious parliamentary oversight on clause-by-clause examination for contravening tenets. Unfortunately, despite having been taken up by a number of NGOs, this bill has not found a suitable champion

The passing of the Divorce Bill is encouraging since it recognises leprosy as a medical condition, as a disease which can be diagnosed, treated, and cured. Through Multi-Drug Therapy (MDT), more than 15 million persons have been cured globally in the last two decades. The strong message that this Bill sends is that leprosy need not be feared. It is in line with the protection of human rights of those affected by leprosy. India is a signatory to the UN Human Rights Council Resolution recognising discrimination against leprosy to be a violation of human rights. For those affected, it is a reaffirmation of their rights and a government recognition that the stigma against the disease is unwarranted.

The need to address the issue of stigma in India is critical. Today India has the highest prevalence rate of leprosy in the world. More than 55 per cent of all new cases are in India, and India accounts for 5 per cent of the total global leprosy burden. Many countries, far behind India in terms of economic growth, have done a better job of tackling the disease and bringing down the new cases to Eliminate Rate � which is less than one per 10,000 population. India too achieved it at the national level as far back as 2005. Unfortunately, however, since then the progress in the elimination of leprosy as a public health concern has been slow and in absolute numbers � stagnant.

The government has in recent years taken cognisance of this and intensified its efforts on multiple fronts to detect, diagnose and treat those affected. Most of these efforts on the medical side have resulted in many more cases being identified and in being identified before the onset of leprosy-related disabilities. This, in turn, will help in interrupting the transmission of the disease and eventually lowering its incidence in the country.

A major factor that slows down the efforts on the medical side is the social stigma attached to the disease as it prevents people from seeking early treatment. Afraid of social exclusion and rejection, those affected try to hide it till it can no longer be hidden. Late detection and treatment, even though it can cure the disease cannot reverse the nerve damage and disabilities. It also results in the continued transmission of the disease.

To address the stigma, greater social awareness and a change in the social environment where leprosy is no longer feared and those affected are accepted and included is essential. To this end, the recent Divorce Bill is a step in the right direction. It gives the right social message.

The good work begun by the government on the social front needs to be further strengthened. The discriminatory clauses in the different laws need to be annulled; affirmative action to include those affected within the social welfare net needs to be stepped up; above all a determined effort at raising awareness about scientific facts about leprosy and overcoming myths and fears associated with it addressed to ensure that India too becomes leprosy free.

An opaque bench

Article in the Indian Express dated January 18, 2019 regarding the Elevation of judges by the Collegium by Ajit Prakash Shah. Link to this article:

http://epaper.indianexpress.com/c/35877699

The collegium system isn’t foolproof

Source: The Hindustan Times dated 16.01.2019

Article by Rajiv Nair (Rajiv Nayar is a senior advocate. The views expressed are personal.)

The supersession of three senior Delhi HC judges exposes a chink in the process of appointment of judges.

The recent decision of the Collegium of the Supreme Court on January 10, 2019, in recommending the names of Justices Dinesh Maheshwari and Sanjiv Khanna to the Court has evoked strong reaction inasmuch as Justice Khanna’s appointment will entail the supersession of Justices Pradeep Nandrajog, Gita Mittal and S Ravindra Bhat of the Delhi High Court. Suppose, for example, we were in the pre-collegium regime, such a decision would have been described as being arbitrary and whimsical because all of the three proposed to be superseded are fine judges and are neither lacking integrity nor judicial competence.

This decision once again exposes a chink in the process of appointment of judges, a process arrogated to itself by the Supreme Court (in the Supreme Court of Advocates on Record case, 1993), where it was laid down that with regard to the appointment of judges, the opinion of the Chief Justice of India (CJI) would not only have primacy but would be determinative in the matter.

The 1993 and 1998 verdicts also gave birth to the collegium system, which comprised of the Chief Justice of India and the senior most four judges of the Court after the CJI.

This is not the first time that the collegium system has inflicted injustice. Justice AP Shah was kept out of the Supreme Court because Justice SH Kapadia was averse to him. Take a more recent example. One of our finest judges, Justice Sanjay Kishan Kaul, suffered the ignominy of not making it to the Supreme Court in time, because he had happened to incur the wrath of Justice TS Thakur, while he was in the Delhi High Court. Several years later, Justice Thakur refused to recommend his name. He made it to the Supreme Court eventually but lost out in being made a Chief Justice of India.

The subjectivity and the inconsistency of the collegium system makes one wonder whether there should be a relook at the process of appointment of judges and the National Judicial Accountability Commission should be re-introduced in some form or the other. Although the NJAC Act, 2014, meant to replace the collegium system of judges, was struck down on October 16, 2015, by a majority of 4 - 1, it may be opportune that the reconstituted Parliament after the upcoming Lok Sabha elections, should bring a legislation so as to bring about a greater transparency and objectivity in the process of appointment of judges. Now take the case in hand. The collegium on December 12, 2018, had apparently recommended the names of Justices Menon and Pradeep Nandrajog to the Supreme Court. The fact that the recommendations were not sent cannot detract from the fact that the proposal to appoint these judges to the Supreme Court had been effectuated. On January 10, 2019, with the departure of Justice Madan B Lokur, (who would have never countenanced any supersession), Justice R Menon, one of the finest chief justices the Delhi High Court has known for a long time, and Justice Nandrajog’s names were recalled by the newly constituted collegium, deeming it appropriate to have a fresh look at the matter allegedly in the light of the additional material that had become available.

What was the additional material that had become available to the collegium justifying the non-appointment of these two judges to the Supreme Court, recommending the appointment of Justice Maheshwari when on October 30, 2018, the collegium itself had overlooked his name? In the past, and certainly under the pre-collegium system, appointments in derogation of the seniority principle would have evoked strong reactions. There were aberrations by the executive but such instances were rare and insignificant. The proposed recommendations are inconsistent with the judicial view of the Supreme Court in the Second Judge’s case, 1993, wherein it had been laid down that:

“Inter-se seniority amongst Judges in their High Court and their combined seniority on all India basis is of admitted significance in the matter of future prospects … It is, therefore, reasonable that this aspect is kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court … this would also lend greater credence to the process of appointment and would avoid any distortion in the seniority between the appointees drawn even from the same High Court.”

Supersession, as a rule, must never be encouraged unless there are grave and compelling circumstances. In the present case, none appear to be so. The government itself had delayed the appointment of justice KM Joseph to the Supreme Court on the ground that there were other judges more senior to him. Justice Maheshwari is ranked 21st and justice Khanna 33rd in the All India Seniority List. It is not as if there is anything against these two judges but why should they not await their turn? Let us see what “sixer” (to borrow the expression of the law minister) the government hits.

Disquiet in section of court over way in which Collegium changed judge choices for SC

Article in the Indian Express dated January 15, 2019 regarding the Elevation of judges by the Collegium by Seema Chishti. Link to this article:

http://epaper.indianexpress.com/c/35808802