Judgment in a recent POCSO case was questionable and revealed a lack of knowledge in the judge. One wonders how judgments of High Court judges, which are meant to be the law declared for the entire state, can be so inaccurate and legally incorrect? This can lead to a miscarriage of justice. Therefore, it is critical that the process of appointment of judges requires proper and total scrutiny regarding competence, character, and experience of the candidate, writes JUSTICE SC DHARAMADIKARI.
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THE recent judgments of the Nagpur bench of the High Court of Bombay delivered by Justice Pushpa Ganediwala in relation to offenses under the Protection of Children from Sexual Offences (POCSO) Act, 2012 have led me to believe that judges often forget the basic principles of interpretation of statutes.
POCSO will complete a decade very shortly and judges by now are expected to be familiar with it. The preamble to the Act says that India, having been party to the United Nations Convention on the Rights of the Child, is obliged to take measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity. The law also says that sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed.
Chapter II is titled as penetrative sexual assault and punishment therefor. The sub-chapters of this Chapter under the headings "Aggravated penetrative sexual assault", "Sexual assault", "Aggravated sexual assault" and "Sexual harassment and punishment therefore" deal with various sexual acts to which the child is subjected.
Section 7 dealing with sexual assault says: "Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
This Section is in three parts. One relates to what the abuser does to the child, the second what the abuser makes the child do to him/her and the third deals with physical contact without penetration, but with sexual intent. All these are separated by "or". Thus, sexual intent may have to be present throughout in the touch by a person of the child's private parts or breast or making the child touch the private parts or breast of the person involved or any other person. The last part of the Section deals with any other act involving physical contact without penetration. This act is also an offence, provided sexual intent is present.
The words "involves physical contact without penetration" is a distinct act. A "touch" is the expression used in the first part, whereas the word "physical contact" is used in the last part. This interpretation of the statute ought to have led the judge to conclude that the act complained of was one of sexual assault, as per the meaning of Section 7.
While dealing with an appeal, judges may interfere with the findings of the trial court only if they are perverse or manifestly illegal. None of this was evident from the impugned judgment and the judgment of the trial court rendering a conviction ought not to have been disturbed.
“While dealing with an appeal, judges may interfere with the findings of the trial court only if they are perverse or manifestly illegal. None of this was evident from the impugned judgment and the judgment of the trial court rendering a conviction ought not to have been disturbed.
In Satish v. State of Maharashtra, the judge ought to have been aware that the ingredients of Section 7 were met and hence, the judgment of the trial court ought not to have been reversed. In Libnus s/o. Francis Kujur v/s State of Maharashtra, the offence under Section 7 may not have been committed, but clearly an attempt to commit such an offence was made with sexual intent and the judge should have noticed Section 18 of the Act. While the sentence has been reduced to a conviction for sexual harassment, no reasons are given indicating any mitigating circumstances. The judge has blatantly ignored the purpose of the statute. The language of the statute is not ambiguous. There was no occasion to apply the ejusdem generis rule which could be invoked only when a contrary intention appears.
“The judge has blatantly ignored the purpose of the statute. The language of the statute is not ambiguous. There was no occasion to apply the ejusdem generis rule which could be invoked only when a contrary intention appears.
The Supreme Court in Maharashtra University of Health Sciences & Ors. v. Satchikitsa Prasarak Mandal &Ors. [2010 (3) SCC 786] has considered this rule and held, by following English judgments, that there are exceptions to the Latin expression ejusdem generis. This principle is presumed to apply only if there is no contrary indication. It will not apply if the intention is not to apply it.
As is very aptly put by Lords Scarman in Quazi v. Quazi [(1980) AC 744], this rule, like many others of statutory interpretation, is a useful servant but a bad master. In a later judgment following this principle, the Supreme Court held that this is not an inviolable rule of law, but only a permissible inference in the absence of an indication to the contrary.
A question that requires consideration is how is it that the judgments of High Court judges which are meant to be the law declared for the entire state can be so inaccurate and legally incorrect? Writing a judgment entails the application of the law to a given set of facts. A judge is assisted to a large extent by the quality of the arguments of the advocates appearing before him/her. When the judge of a High Court lacks knowledge or experience, there is likely to be a miscarriage of justice. Therefore, it is critical that the process of appointment of judges is looked at carefully.
“When the judge of a High Court lacks knowledge or experience, there is likely to be a miscarriage of justice. Therefore, it is critical that the process of appointment of judges is looked at carefully. The process requires proper and total scrutiny regarding the competence, character and experience of the candidate.
The process of appointment requires proper and total scrutiny regarding the competence, character and experience of the candidate. Just being at the Bar for a number of years without a significant contribution to the law does not make a person eligible for appointment as a judge. No person has a vested or legal right to be appointed as a judge. One of the reasons for an increase in the number of appeals from High Courts to the Supreme Court is the poor quality of judgments from there. Conflicting judgments and views confuse the litigant. The process of appointment must be taken seriously.
Apart from transparency, the process demands the evaluation of the candidates by applying realistic standards. A benchmark has to be set, below which the appointing authorities should not go. A broad consultative exercise with the Bar and experts should be undertaken and the collegium and administrative committee of senior High Court judges be held accountable and answerable throughout.
Like every other power, the power to appoint judges of the higher judiciary is also a trust. That has to be discharged honestly and efficiently by the appointing body. In the collegium system of appointment of judges, it was expected that the best and most meritorious will be picked, overlooking narrow considerations of caste, sex, religion or place of birth. However, the collegium and the executive are often seen to be surrendering merit and quality by making appointments contrary to the established norms and standards. There is no justification for a quota system. There is no compulsion to elevate a certain percentage of the members of the district judiciary to the High Court.
“Like every other power, the power to appoint judges of the higher judiciary is also a trust. That has to be discharged honestly and efficiently by the appointing body.
If quality and merit are lacking, there is no mandate to fill vacancies. The best and most meritorious candidates from the district judiciary, irrespective of seniority, gender, caste and religion should be appointed. However, sometimes kneejerk reactions or the introduction of the practice of proportionate representation to all communities and castes, as also gender, results in an imbalance. Naturally, appointments turn into disappointments.
It may be that a female police or medical officer understands the problems faced, especially by adolescents and a girl child. Maybe, a female teacher is best suited for teaching and educating a girl child. However, justice is neither guaranteed nor assured by assigning cases involving children and women to women judges exclusively. There is no quota or reservation in the higher judiciary.
“However, the collegium and the executive are often seen to be surrendering merit and quality by making appointments contrary to the established norms and standards. There is no justification for a quota system.
When all things are equal and a balance has to be struck, then preference can be given to a female candidate or anyone belonging to the downtrodden sections of society or minorities. Failing all this, blind adherence to any unwritten or uncalled-for quota rule is bound to be fatal to the delivery of justice. Ultimately, we all exist for the litigant and consumers of justice.
It is the public at large who has the highest stake in judicial appointments. We ought to bear in mind only their interests. There is no need to sacrifice merit and excellence. Just as it is the fundamental duty of every citizen to promote harmony and the spirit of common brotherhood among all people in India, transcending, religious, regional, linguistic or sectional diversities, to renounce practices derogatory to the dignity of women, so also every citizen must strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.
If members of the collegium and executive functionaries in-charge of making appointments to the higher judiciary are citizens of India as well, then they are obliged to discharge these fundamental duties effectively.
If we do not strike at the root cause of erroneous and wrong judgments, by improvising and reforming the process or procedure of appointment of judges to the higher judiciary, justice will be a casualty. Then we cannot blame members of the public when they question the competence of the judge of a premier Court like the High Court of Judicature at Bombay.
Non-confirmation of non-performing additional judges, transfer or shifting of erring permanent judges, allegedly in the public interest, to small High Courts is hardly a solution for the malady. This is but akin to dressing a bleeding wound with Band-aid. By this, the wound will never heal fully.
(Justice S C Dharmadhikari retired from the Bombay High Court. The views expressed are personal)