Renowned jurist and senior Supreme Court lawyer Fali S. Nariman underlines the need to do away with the collegium system, talks about why the SC judgment on convicted lawmakers is correct, and why ministers should have defended the Section 8(4) ordinance after Rahul Gandhi’s outburst in an interview to Maneesh Chhibber.
Should the collegium system be replaced?
There are many things in the [Judicial Appointments Commission] bill I may not agree with. But there is no doubt in my mind that the collegium system is not working well. There has been no sense of accountability, or of transparency. It is difficult to start criticising what judges do in their non-judicial capacity, because this is a new and different role that judges have taken upon themselves of recommending appointments/ promotions. We need to understand that the role of judges in this, when it was brought in, was intended to take the government off the back of the people. This is because the government at that time had openly propagated that it wanted a judiciary “committed” to its ideology. This was dangerous. So the judges of the Supreme Court said, rather than let the executive do what they wanted, let’s have this collegium system instead. This was an experiment and it was supposed to work, and it would have, if only people had paid a little more attention. Unfortunately, judges simply don’t have the time, they are so overworked in court. That is why this system has failed. What if the new system doesn’t work?
I am not saying that the Judicial Appointments Commission will be the panacea for all present ills concerning appointments in the higher judiciary, but we have to make the new system work. We could not make the collegium system work and by we, I do mean the collective we. I am not blaming only the judges. The collegium system created two different classes among judges: the first five (or first three in the beginning) — were the superior judges, and then there were the rest. They didn’t know what was happening within the first three or five. If we had adopted a system that said that a broad consensus of all judges in the SC would agree on who to recommend for an appointment or promotion, I would have no problem with that system.
Do you agree with the assertion that the judiciary is interfering too much in the domain of the executive?
No, I don’t buy this claim at all. I regret to say that this view is being propagated, unfortunately, by some of our judges too — but only after they retire! I don’t share the view that the courts are transgressing their powers. In any case, I have noticed that when governments in office command a large majority of members of legislatures, the courts do not interfere, except when executive or legislative power is abused. When governments are weak, some judges do impose their ex cathedra off-the-cuff opinions on the government. Hence this talk of “judicial interference”.
Many are criticising the Section 8(4) judgment, saying the matter should have been decided by a Constitution Bench. You were the lawyer for the petitioner Lily Thomas. Your views?
I cannot applaud the judgment because I did appear for the winning side. But, in my humble view, it was, and is, a correct judgment in law. Others may disagree and are entitled to say so. In my view, in the SC, no case of importance to the public should be decided by less than three judges. Earlier, we didn’t have many judges. Now that we have more judges, cases that are precedents should be decided by at least a three-judge bench. I think the chief justice
is trying to do something about this, having more and more three-judge benches. And a matter like this could certainly have been decided by a larger bench. But a bench of two judges, when constituted, must decide the cases put up before it, unless there is another bench decision of two judges taking a particular view with which this bench of two disagrees — in which case, it will be referred to a larger bench of three or five judges. But I see nothing wrong with this particular judgment. The reasoning was as follows: disqualification [in case of conviction] is to be prescribed by Parliament by ordinary law. This is expressly provided for in the Constitution (Article 101). But an exception to disqualification cannot be prescribed by ordinary law, because the Constitution does not permit it. Whenever an explanation or exception to “disqualification” is intended, it has to be in the Constitution itself. Section 8(4) is an exception to the sections on disqualification, that is, Sections 8(1) 8(2) and 8(3). But Section 8(4) — which is an exception — is not in the Constitution itself. This is why Section 8(4) was struck down as ultra vires and unconstitutional.
But Parliament, in its constituent capacity, always has the last word. If you want to provide for an exception to disqualification, you have to do it by amending the Constitution. If that is the wish of Parliament as a constituent body, then it would be alright for convicted criminals to remain in the House, not otherwise. But, as of now, the government doesn’t seem to be agreeable to the idea of amending the Constitution to provide for this, obviously because the government of the day does not want to be seen to be supporting persons already convicted and sentenced to imprisonment for two years or more.
Do you think Rahul Gandhi diminished the prestige of the office of prime minister when he trashed the ordinance?
That is a different matter not connected with law. You must ask him. He’s done it. It only shows somebody is frank and a bit hot-headed as well, and doesn’t have the so-called “maturity” of other politicians. This is because he is not a fence-sitter. Of course, his utterance did undermine the position of the prime minister but this was done openly and in an era that looks for plainspeaking, I would not deplore it.
But, should a party leader criticise,
in such strong words, a decision of the cabinet?
I would throw back at you another question — why didn’t the ministers support the prime minister? Ask why senior ministers did not speak out after Rahul Gandhi had spoken. Why didn’t they say that it was on their advice that the PM had acted? The embarrassment to the PM was not caused by Rahul Gandhi as much as by the silence of the other members of the Council of Ministers.
But what about the manner in which the ministers in government reacted after Rahul Gandhi spoke out, dumping both the ordinance and the bill without any defence of the cabinet decision?
That is the sad and unfortunate part. There is no principle left in politics, only loads of hypocrisy. Shakespeare was right: “the fault, dear Brutus, is not in our stars, but in ourselves that we are underlings”.
Three judges of the Supreme Court, including the Chief Justice of India, have come to the conclusion that Sushil Sharma does not deserve the death penalty for murdering his wife, Naina Sahni, and trying to dispose of her body by burning it in a tandoor. It is no secret that India’s death penalty jurisprudence, at all levels of the judiciary, is in a shambles and the reasoning adopted in Sushil Sharma’s judgment raises very serious concerns about the justice that has been meted out to 22 individuals on the verge of execution after their mercy petitions were rejected by the President (four of them by Pratibha Patil and 18 by Pranab Mukherjee).
While a five-judge Constitution Bench of the Supreme Court is scheduled to hear the pleas of 18 of the 22 individuals only on the issue of delay caused by the State in deciding their mercy petition, the issue that I want to explore in the context of the Sushil Sharma case is the manner in which they were sentenced to death. In terms of the law, not all murders, terrorist acts, rapes and murders, acts of treason, etc attract the death penalty. The “rarest of the rare” doctrine was introduced in Bachan Singh to lend some coherence to instances in which the death penalty might be justified by balancing aggravating and mitigating circumstances. However, the “rarest of the rare” doctrine has evolved into one of the most misunderstood and misapplied doctrines not just in public discourse but even in judicial pronouncements from courts at all levels.
The “rarest of the rare” doctrine is often misunderstood as referring only to the heinousness of the crime. The focus is equally meant to be on the mitigating circumstances of the person including whether it has been decidedly shown that she is beyond reformation.
Reasons for commutation
The Court seems to have placed significant weight on the point that the State had not led any evidence to show that Sushil Sharma was beyond reformation. These are very important moves by the Court as it is a clear attempt to move away from multiple judgments in the past where the focus was only on the brutal nature of the crime. This is an important step in the inevitable course correction that the Supreme Court will have to undertake on the manner in which it examines aggravating and mitigating circumstances in death penalty cases.
By taking the position that the State, while demanding the death penalty, should demonstrate that the individual will revert to such crimes, the Court has brought the focus back on the mitigating circumstances and the appropriate burden on the State. It is this aspect of reformation that was articulated in Bachan Singh that has been ignored most often and the obligation is most certainly on the State to show the impossibility of reformation. It is of course not the position in Bachan Singh that any one factor can trump all others and Courts are meant to balance aggravating and mitigating circumstances. Reformation is an issue that is relevant to all prisoners who appear before the Court irrespective of the nature of the crime, age, sex and social background. If judges want to balance away the interests of reformation in favour of other factors, Courts must be left free to do so. However, there must be an obligation and culture of justification as far as reformation of the death row convict is concerned. As judges seal the fate of the convict, the least they must do is explain the evidence presented before them that led to the conclusion that the convict could not be reformed. If no such evidence is presented before the Court, there must be a presumption of reformation and judges must meet a high threshold of justification if they want to override that presumption. A disingenuous strategy adopted in many judgments confirming the death penalty has been to cite the brutality of the crime as indicative of the impossibility of reformation. To argue that an individual cannot be reformed because of the crime she has committed is a perverse articulation of what was intended in Bachan Singh.
Sushil Sharma has certainly benefited from the substantial weight assigned to reformation as envisaged in Bachan Singh. But the 22 individuals who stand on the verge of execution have not had the benefit of such enquiry into the possibility of their reformation. Apart from highlighting the brutality of the crime, in none of their cases did the State lead any evidence on reformation and unlike in Sushil Sharma’s case, neither did any judge ask the State why it had not presented any such evidence. We must have no illusion that we have brought these 22 individuals extremely close to their death without any court of law in this country having paid adequate attention to the possibility of their reformation.
Almost all of these 22 individuals have spent a very long time in prison and it reflects the lack of humanity in our legal system that we have no mechanism to evaluate the changes they have undergone. The most tragic aspect of death sentences in India is that we often have an image of the prisoner that is frozen in time. It is an image of her when she committed the crime and our moral judgment of the person at that point of time is all that seems to matter. There is no place in our public and legal imagination for the effects of long periods of incarceration. Some of them are the most trusted prisoners in the jails in which they are lodged, some others contribute to the administration of the jail by maintaining records and teaching other prisoners about work they could do in jail, some others have picked up skills and earned degrees while simultaneously having introspected about their time in jail. Of course it is not just about the good things. Incarceration and differing levels of alienation from their families have left many of them extremely mentally vulnerable, displaying signs of severe depression and psychosis. In that sense, these 22 individuals have suffered a double injustice. Neither was the possibility of their reformation explored at the time of sentencing them to death nor is the system interested in evaluating them as individuals as they are today.
It would be unconscionable to hang any of these 22 individuals without considering the issue of reformation meaningfully. Otherwise, it starts to look like there is one standard of justice for people like Sushil Sharma and quite another standard when it comes to Shivu, Jadeswamy, Maganlal, Jafar Ali, Gurmeet Singh, Suresh, Ramji, Perarivalan, Murugan, Santhan, Saibanna, Simon, Madaiah, Gynanaprakasan, Bilavendra, Dharampal, Sonia, Sanjeev, Praveen Kumar, Bhullar, Umesh and Sundar Singh.
(Anup Surendranath is the director of the Death Penalty Research Project at the National Law University, Delhi.)
The Environment Ministry has systematically undermined the National Green Tribunal, giving expert committees a free hand to grant forest clearances to private projects
The Ministry of Environment and Forests (MoEF) has adopted a confrontationist approach with the National Green Tribunal (NGT). In its recent affidavit before the Supreme Court of India, the ministry stated that the tribunal has “exceeded its brief” and caused it “embarrassment” in Parliament. The affidavit was withdrawn and time sought to file a proper affidavit. The Supreme Court even threatened to stay the operation of the tribunal in view of the hostile approach of the MoEF towards the green body.
It is therefore necessary to trace the reasons for this “conflict” and “embarrassment” and the implications of staying the operation of the tribunal.
The NGT is a Statutory Tribunal and was created by Parliament as a specialised judicial and technical body to adjudicate on environmental disputes and issues. The enactment of the NGT Act, 2010 was itself an outcome of a long process and struggle. The Supreme Court in a number of cases highlighted the difficulty faced by judges in adjudicating on complex environmental cases and laid emphasis on the need to set up a specialised environmental court. Though the credit for enacting the NGT Act, 2010 goes to the then Environment Minister Jairam Ramesh, it became functional only because of repeated directions of the Supreme Court while hearing the Special Leave Petition titled Union of India versus Vimal Bhai (SLP No 12065 of 2009). The recent developments and the hostile approach of the MoEF towards the NGT seems to suggest that the aim of Mr. Ramesh’s successor (Jayanthi Natrajan) is to dismantle the tribunal.
Despite all the hurdles including financial and administrative bottlenecks, the NGT has emerged as a new hope for the environmental movement in the country. The NGT Act is no less important than the Right to Information Act, 2005, the Right to Food Bill and the National Rural Employment Guarantee Act, 2005. Environmental degradation affects livelihoods, health and access to food. Environmental struggles most often aim at ensuring that information about proposed projects (Environment Impact Assessment reports), air and water quality data is shared with the people. Over the last two years, the NGT has delivered 185 judgments on various environmental issues. The MoEF together with the Central Ground Water Authority, the Central Pollution Control Board and the various State governments have been forced to wake up from years of slumber and total inactivity. One of the most significant powers of the NGT is the capacity to do “merit review” as opposed to only “judicial review.” Under the writ jurisdiction of the High Court or Supreme Court, the courts are essentially concerned with the “decision making process” and not the “merits” of the decision. As a merit court, the NGT becomes the primary decision maker and therefore can undertake an in-depth scrutiny into not just the law but also the technical basis of a particular decision.
A new jurisprudence on the environment is steadily emerging in the country and is an example for the rest of the world. Today, nearly 50-60 Appeals and Applications are heard each working day before the various benches of the NGT. At a time when Environment Impact Assessments reports are a blind “copy and paste,” job where public hearings are a “mockery” and non-compliance with environmental rules and regulations are the order of the day, the NGT serves to restore faith in the “Rule of law.”
Why is the MoEF not keen to see the NGT functioning? The answer is quite simple. The conduct of the ministry as well as the various statutory bodies on the environment has never been called into question in a systematic manner and its decisions have rarely been subject to any “merit review.” This has given a free hand to the various expert committees, boards and the officials as well as the Minister to arbitrarily grant approval to projects disregarding the environmental and social impact of projects and most often in violation of laws and rules. The recent report of the Comptroller and Auditor General of India (CAG) clearly proves the casual manner in which forest clearance issues have been dealt with by the MoEF as well as the State governments mostly to favour private companies. History tells us that the MoEF’s designs have largely succeeded. Post the Bhopal disaster, the National Environment Tribunal Act was passed by Parliament in 1995 to fix liability on a polluter. It never became operational. The National Environmental Appellate Authority set up through an Act of Parliament in 1997 was made defunct by the MoEF and led the Delhi High Court to conclude that the intention of Parliament to set up an effective grievances redressal forum has been defeated.
The recent affidavit is a wake-up call to those trying to protect the environment, the rights of communities as well as ensuring greater accountability in the government’s functioning. If the MoEF succeeds in its design, it would mean its third success in stalling a parliamentary legislation meant to keep a watch on its activities and decisions and protecting the rights of communities.
(Ritwick Dutta is an environmental lawyer and managing trustee of Legal Initiative for Forest and Environment.)
How many slaves work for you? Paradoxically — in 2013 — the question is still very relevant, and you might be surprised by the answer. Depending on where you live, what you buy, what your lifestyle is, you have almost certainly been touched by slavery. Almost nobody is clean.
Modern-day slavery takes many forms: human trafficking, forced and bonded labour, sexual exploitation, domestic servitude and forced marriage. Sadly, the list goes on. But the common denominator of all these crimes is the evil intention to strip human beings of their freedom, and then to use, control and exploit them.
There are currently 29.6 million slaves around the world, more than ever before in history, and roughly equivalent to the population of Australia and Denmark combined. Modern-day slavery is a fast-growing industry worth $32 billion a year, equal to the profit of McDonald’s and Walmart combined. And while back in 1809, the price of a slave — adjusted to today’s value — was $40,000, today it is only $90; that’s how little it costs, in the globalized economy, to buy a human being!
Slavery is a global issue. In some parts of the world people are still being born into hereditary slavery, in others people are trafficked from one state to another, have their passports taken away and are enslaved. Modern-day slaves walk among us. You might tip one during your stay at respectable hotels chains around the world, you might speak to them at your nail salon. They look like maids, regular workers, but they are slaves.
It’s a story of debt, fraud and coercion. In the majority of western countries, trafficking is tied to immigration. It’s estimated that every year between 14,500 and 17,500 people are trafficked into the United States. Some enter legally, with a visa and a job. But that job is subcontracted, hiding the harsh reality of abuse and exploitation behind the façade of a clean uniform. Once inside the country, those trafficked are forced to repay recruitment fees, the cost of their travel, accommodation bills. As a result, they end up working an incredible number of hours, seven days a week, without being paid, in the impossible attempt to repay a debt which will never be settled. That’s how many become slaves.
Modern-day slaves are found in unexpected places. In recent years, Washington, the capital of the free world, has been rocked by allegations of human trafficking by diplomats working at embassies and international institutions. In 2007, a young Tanzanian woman who had been brought to the United States by a diplomat as a domestic worker, made headlines when she sued her former employer and his wife for allegedly trafficking her and using her for forced labour. The woman, who spoke no English, was promised a job as a housekeeper with a fair wage, but instead was forced to work 16-hour days without pay. She had her passport taken away, was not allowed to leave the house on her own, and was denied medical treatment. The woman eventually won over $1 million in compensation but her former abusers returned to East Africa and never paid her. Diplomats are not immune to shame.
There are currently 880,000 people engaged in forced labour across the European Union. 58 percent are women, the majority victims of sexual exploitation — the most lucrative form of slavery. In the UK the number of slaves is believed to be 4,600. Victims are mostly trafficked from Africa, but also Asia and Eastern Europe. Most of them cross the border illegally, and once in the UK are forced mainly into sex work (62 percent) and domestic servitude (25 percent), but are also exploited though complex schemes involving welfare benefit fraud. In the UK, slaves work in restaurants, nail salons, door-to-door leafleting. A big role is played by the Vietnamese drug barons who, according to DrugScope, control two-thirds of Britain’s cannabis trade. They use nail salons as brothels and places to launder money raised from the sale of cannabis grown on suburban UK farms. Farms run by slaves.
The difficulty with slavery is that it is a crime not well understood, and often concealed under the justification of custom, ethnicity, even religion. In Mauritania 4 percent of the population is presently enslaved. Adults and their descendants are the full property of masters who can buy and sell them. They are born into slavery and are not allowed any possessions. They are the possession, predominantly, of the White Moors, one of the three ethnic groups of Mauritanian society. Enforcing anti-slavery laws here remains extremely challenging since only victims are allowed to file a complaint. Slaves are illiterate and do not know their rights. The government continues to deny the scale of the problem, and foreign journalists risk arrest for investigating the issue. This year only two cases of slavery have been reported so far.
India — with a population of over 1.2 billion — has more slaves than any other country in the world: 14.7 million. With extreme poverty culturally tolerated, the practice of caste and debt bondage is endemic. Sexual exploitation of women and children is also widespread, although India has ratified a number of key international treaties aimed at eradicating slavery. Enforcement of such laws remains sporadic and weak, and many NGOs on the ground have reported a lack of support for their efforts to free people from forced labour.
Global statistics show a common trend: slavery is a silent crime. Victims don’t come forward. Across the EU the number of convictions for human trafficking has dropped by 13 percent in the past few years; and the latest US Trafficking in Person Report shows that in 2012, only 7,705 prosecutions took place, despite the number of identified victims reaching 46,570.
There are many reasons for the small number of prosecutions. Victims often don’t see themselves as such, especially victims of sexual exploitation, who tend to develop a psychological dependence on their abuser. Victims of domestic slavery are often foreign nationals who live in conditions of house arrest, unable to speak the language of the country they are in. Then there’s fear, that fear resulting from total annihilation of self-esteem. Slavery is all about controlling people. Some of the things the traffickers make people do are all about humiliating them and trying to control them: you see human beings with the name of their owner tattooed on their body, reminding one of the Nazi period. It’s a lethal mix of abuse of power and corruption, and it thrives in poverty.
Each of us, not just law enforcement agents, has a role to play in the battle against human trafficking. Teachers, doctors, bus drivers, flight attendants, government officials of all ranks, everyone who uses hotels, restaurants, nail salons is potentially in contact with modern-day slaves, and has a moral responsibility to come forward. As consumers we have the duty to demand to know more about the origin of the products we buy. We must not turn a blind eye.
Businesses must demand real transparency from sub-contractors, assessing the real working conditions of those in remote supply chains. On the other hand, governments should take bolder action to make businesses accountable, fining the hiring firms for violations of national employment laws committed by their subcontractors. This is the innovative approach recently adopted by the State of California.
Governments must consider slavery as a crime, not an immigration issue. Victims must be reintegrated in society with the necessary economic and psychological support. Earlier this year, in the UK, three very young victims of human trafficking were prosecuted, convicted and jailed for the very crimes their traffickers forced them to commit. In the words of the barrister who fought, successfully, to have the sentence overturned, this was a ‘miscarriage of justice’. In the United States, a first victory has been won as victims of human trafficking now have the right to stay in the country while suing their perpetrators, using U.S. law.
Lawyers must work to ensure that all victims of human trafficking have access to free legal representation, compensation and restitution of a sum of money equivalent to their unpaid work. A groundbreaking approach has been taken by the Netherlands, where since 2011 Dutch authorities have eight months to collect the restitution money. If they fail, the government has committed itself to paying restitutions directly to all victims.
Governments must also end the culture of impunity for the traffickers and the offenders, whoever they are. Slavery should trump all diplomatic immunities, and should be fought on an international basis, helped by all parties who can contribute to successful prosecutions.
The financial industry must be vigilant. Earlier this year the Thomson Reuters Foundation and the Manhattan District Attorney Cyrus R. Vance Jr, launched an international financial working group against human trafficking. The group — which includes the biggest banks and financial institutions in the United States — has developed criteria to identify financial transactions that are linked to human trafficking and is working with law enforcement agencies to share and improve these processes.
The fight against human trafficking is one, which – as a civilization – we cannot afford to lose. Slavery should belong to the history books. Let’s all work together to put the business of human trafficking out of business.
Human trafficking is one of the themes at the forthcoming Trust Women Conference in London, Dec 3-4. Organised by the Thomson Reuters Foundation and the International New York Times, Trust Women is the conference dedicated to putting the rule of law behind women’s rights.
Follow Monique Villa on Twitter: www.twitter.com/TR_Foundation
- Lord Advocate: ‘Human trafficking is slavery’ (scotsman.com)
- Modern Slavery: Broken Promises and a Life of Captivity (theepochtimes.com)
- Monique Villa: They Walk Among Us – 30 million people are slaves, half in India (huffingtonpost.com)
- Revealed: India is home to nearly half of world’s 30 million modern-day slaves – euronews (euronews.com)
- Dubious distinction: India has half the world’s modern slaves, study shows (timesofindia.indiatimes.com)
- They walk among us (devex.com)
- A stain on humanity: 29million slaves worldwide (metro.co.uk)
- Nearly 30 million people in slavery: report (abc.net.au)
- Global Slavery Index Reveals More Than 29 Million People Living In Slavery (eurasiareview.com)
A Punjab and Haryana High Court decision to halt the framing of charges in the graft case against its former judge Justice Nirmal Yadav raises disturbing questions about judicial accountability
When Anupam Gupta, special public prosecutor for the CBI in the “cash at the doorstep” corruption case against former judge of the Punjab and Haryana High Court Nirmal Yadav, burst out in anger against the High Court’s recent decision to halt the framing of charges against her, it cast a shadow of disquiet on possibly the most watched prosecution of a judge in the higher judiciary in recent times.
In a written statement he said, “I am deeply distressed by the High Court’s order passed today. It betrays an insensitivity to judicial corruption that cannot be viewed with equanimity. The High Court cannot have a dual approach or standard — one for judges and another for all other accused. Would the High Court have passed this order if the principal accused had not been a former High Court Judge?”
His statement, duly reported by newspapers, was greeted by pin drop silence in the legal universe. That Mr. Gupta is a well known activist on judicial accountability is one reason why his outburst was not immediately dismissed as a mere reaction to a legal setback in court. The other is, because each time in the last couple of years it appeared that the case against Justice Yadav would be dropped, the lawyers of the Punjab and Haryana High Court rose as one to ensure its continuation.
Justice Nirmal Yadav is being tried for allegedly receiving illegal gratification of Rs.15 lakh in August 2008. The money was wrongly delivered at the residence of another lady judge of the High Court, who reported the matter to the Chandigarh police. In March 2011, the President granted sanction to prosecute her under Section 19 of the Prevention of Corruption Act and she became the first serving high court judge in the country to be charge sheeted in a corruption case.
In July this year the CBI court in Chandigarh finally ordered charges to be framed against her, but Justice Yadav filed a revision petition before the High Court against the order, saying that it was “illegal, erroneous and untenable in the eyes of the law.” Hearing the petition, Justice N.K. Sanghi summoned the entire record of the CBI court and directed that her petition be heard within three months. This in effect means that until the High Court decides on her petition, the trial will remain frozen before the trial court.
Speaking to The Hindu, Mr. Gupta says: “Justice Sanghi failed to observe the elementary precaution and propriety of issuing notice to the CBI and hearing it before passing the September 13 order. By requisitioning the trial court’s record, the Judge has, for all practical intents and purposes, disabled the Special Judge, CBI, from proceeding any further with Justice Nirmal Yadav’s trial for a virtually indefinite period of time. Given the practice in the High Court and the volume of litigation before it, the prospect of Justice Yadav’s petition being finally decided by the High Court within three months is far too remote to be believed. A cynic would not be wrong in assuming that, despite its gravity, the case has been put in the cold storage.”
Strong words these and his statement was eagerly circulated in the approving bar.
When asked by The Hindu for his response to Mr. Gupta’s allegations, Justice Sanghi declined comment but did say that if at all he does respond, it will be through his orders.
The ruckus now is because in July the CBI judge Vimal Kumar had given a 61-page order in which he rejected the defence taken by Justice Yadav and the co-accused, ruling that “there was overwhelming evidence” against all of them. He had pointed out contradictions between the statements of Justice Yadav and the other accused. While she had denied all the happenings of August 2008 and claimed that she is being framed, the others accused in the case have admitted the same to some extent.
Cash for verdicts
Earlier during investigations, the CBI had uncovered shocking details of several much bigger cash transactions allegedly received by Ms Yadav in exchange for giving favourable verdicts. In one she even quashed an FIR under Sec 482 of CrPC in a murder case in 2006, for which she allegedly received Rs.50 lakh. These details — that emerged from custodial interrogation of a co-accused, who had arranged for the Rs.15 lakh to be delivered to Justice Yadav’s residence — are in the report of the Superintendent of Police and was brought to the notice of the court. The contents of the SP’s report, kept under wraps till a couple of months ago, (reported in The Hindu on August 4) were also forwarded to Justice S.H. Kapadia, the then Chief Justice of India (CJI) who had in July 2010 given sanction to prosecute the judge. These findings however were not included in the charge sheet.
But stranger things have happened in this case. In December 2009, the CBI taking a plea that it has not received sanction from the CJI to prosecute the judge, filed a closure report. The plea was based on a letter from the Law ministry stating that the then CJI, Justice Balakrishnan, had observed “that no action was required for the present” in the matter. The High Court Bar Association slammed the action of the CJI and intervened in the case to oppose the closure.
Justice Balakrishnan clarified through a statement issued by his office that he had not received any request to prosecute the judge and that the CBI had not even shown him its final report in this regard. In March 2010 the trial court rejected the closure report and ordered further investigation. In the eventuality, the proposal to sanction the prosecution of Justice Yadav was moved before the CJI three months later following which the President who is the competent authority to grant sanction to prosecute the judge, did so in March 2011.
Justice Yadav has retired but is believed to wield considerable influence through her brother, a cabinet minister in Haryana. Mr. Gupta on the other hand has announced that he is collecting material and will be writing to the CJI soon. With the trial stalled amid these serious allegations that raise questions about the impartiality of the judiciary towards one of its own, there is nothing to indicate as of now, if the air will be cleared anytime soon.
The verdict of death for the bestial gang rape in Delhi last December is based on Supreme Court judgments, which stipulate that capital punishment will be imposed in “the rarest of rare” cases, where the community’s “collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty” because of the abhorrent nature of the crime, which would include “the manner of the commission of the murder,” for instance, “if it was committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner,” or where the victim was “subjected to inhuman acts of torture or cruelty in order to bring about his or her death.”
There are several dangers in a process in which a life is taken because that is what the community wants, as in the Roman amphitheatre, where the mob decided if the defeated gladiator should die. Apart from turning the judiciary into a khap panchayat, how does this august fraternity commune with the community, or divine that its conscience wants blood? In the 21st century, flooded as it is with 24-hour television and social media on tap, outrage can be manufactured, reality distorted. Even when, as after the Delhi crime, the revulsion was real and widespread, how does the judiciary determine that those who were shocked would only recover with the deaths of those who had shocked them? Diplomats, who must assess the mood of the country they are posted in, take it as given that the media only partially reflects it, since the strident few drown out the diffident majority. An Embassy spreads its tentacles wide, speaking to and gauging the mood of people in different sectors, levels and locations, to understand what they really want. No judge can do this. What a judge takes as the collective conscience of the community can only be the slant carried by the media. To base decisions on life and death on this is injudicious.
Secondly, what is the community whose conscience the judge must tap into and channel into a pronouncement of death? For a sessions judge, it will presumably be that of the local community. If that judgment is overturned on appeal, it can either mean that the judge had misread that conscience, or that the High Court felt that the conscience of the larger community of the State did not want blood. If the Supreme Court reinstated the death sentence, this would presumably mean that the national conscience was at one with the local, but that of the State concerned was out of step with both. Which is the segment of the community to whose conscience judges must defer? Logically, it should be the one most affected, which would imply that no sentence of death from a sessions court should be overturned. How does a judge in the State or Central capital determine that the local community had not been galvanised into bloodlust?
But what would happen, for instance, in the cases that should shortly come to trial for the murders in the recent communal violence in U.P.? The most appalling cruelty is committed during communal riots. One of the criteria invoked in the Delhi judgment to justify the death sentence, the barbaric and revolting nature of the murder, would apply. In these cases, however there would be no collective conscience to consult, since the community is split in two. Each half would demand the death sentence for the murderers from the other community, but mourn its own murderers as martyrs if they were hanged. In these cases, therefore, where one of the criteria laid down by the Supreme Court conflicts with the other, which will prevail?
Nor should we forget that, while the use of torture to bring about death is rare in crimes committed by individuals, it is routinely practised by the army and the paramilitary in States wracked by political violence. Unaccounted numbers of Kashmiris disappeared into the maws of Papa-II, the infamous torture chamber run by the paramilitary in Srinagar. Those bodies that were recovered bore marks of the most terrible torture. Very large numbers disappeared forever. To say that the collective conscience of the Kashmiri Muslim community is merely shocked would be an insult. It has lived with rage, pain and a searing sense of injustice for two decades; its tormenters have escaped with impunity, because the collective conscience of the rest of the country has not even been stirred.
Across our subcontinent, in Manipur, similar cases abound, including that of Thangjam Manorama, taken from her home in Imphal late at night by a unit of the Assam Rifles, led by two Majors, tortured with a knife, forced into her genitals in the presence of her family, tortured even more brutally later, raped and shot. Her body was not received by dignitaries, it was found lying in a ditch. There have been many other killings like this, but this one, like the gang rape case in Delhi, set off a storm, leading to a “naked protest” by Manipuri women in front of the paramilitary camp. If any crime matched both the criteria invoked in the Delhi judgment, the bestiality of the murder and the collective indignation it produced, this one did. However, the officers and men responsible are immune because the army’s Court of Enquiry held they were all innocent.
Justice not blind
These communities, and the tribals in the naxal belt, will argue bitterly that justice is not blind; it sees who you are and where you come from and, in its scales, the collective conscience of the community only registers when it has political weight. If you are a Kashmiri or a Manipuri, your shock is gossamer.
One of the crimes that the Supreme Court has laid down as likely to shock the collective conscience of the community is a “murder committed in the course of betrayal of the motherland.” It appears murders committed in its ostensible defence do not shock. Patriotism is the last refuge of the serial torturer. If he walks free, though, why should others hang?
There is a further danger. Because public opinion is manipulated with modern technology, the outrage which the judiciary will interpret as an indignation that must be assuaged with blood can only be provoked by the technically adept, or those with the money to influence the media. The men sentenced to death in Delhi, and those hanged over the last year, were mostly from the poorest and most vulnerable sections of society. Neither they nor their families had the financial or technical means to harness the media or the social media in their defence. There is, therefore, an inevitable class bias built into a process where a judge pronounces the verdict of death on the basis of a public outpouring of rage, which the accused have no means of contesting.
The brutality that brings their crimes into the ambit of the rarest of rare is bred into their lives. They have gone to bed hungry as children, suffered illnesses without medicine, defecated in the open, been savaged on the whims of adults, treated like dirt. Compassion has never touched them. Life has beaten sensitivity out of them. Men forced to live like brutes will kill like brutes. When these men, society’s victims, find a victim, they take a lifetime’s frustrations out on him or her. Their murders and rapes are unlikely to be refined. Their brutality might appal a court and nauseate the middle class, by whose standards they are judged, but it is a product of what the community has made of them. This is what should shock the collective conscience of the community.
Lastly, and most troublingly, if a man is to be hanged because the judge feels that the collective conscience is so shocked that it will expect him to inflict the death penalty, can a trial be fair, with the accused presumed to be innocent until he is proven guilty? If, before the trial starts, society has already made up its mind, in the judge’s view, that it will only be satisfied with the death penalty, it has also determined who the guilty are. It is hard to believe that a judge can hear a case entirely on merits, and take popular sentiment into account only at the verdict. On the contrary, if it is now the law that a judge must impose the death penalty in cases where he has concluded that the community demands it, he would be shirking his duty if he were to absolve the men on trial, denying the community, whose servant he is, the satisfaction of a human sacrifice.
When the Supreme Court decreed that the death penalty should be imposed only in the rarest of rare cases, it tried, humanely and honourably, to prevent a rash of judicial killings, but the criteria it has laid down inherently lead to decisions that are, in every sense, fatally subjective. The road to the gallows might be paved with its good intentions, but on matters of life and death, the law cannot be so cruelly flawed.
Tarquin, Auden famously wrote, was ravished by his post-coital sadness. Is the “community” in India ever choked by a post-garroting remorse? Conscience is the uncomfortable reminder that we have done something wrong.
In a nation that aspires to be a modern democracy and claims to be a modern incarnation of the most ancient living civilisation, the death penalty is a barbaric anomaly. It is time the collective conscience of the community repudiated it.
(Satyabrata Pal is a Member of the National Human Rights Commission. These views are personal)
The ordinance seeking to amend the Representation of the People Act interferes with the exercise of judicial power
Bill LXII of 2013, namely, The Representation of the People (Second Amendment and Validation) Bill, 2013 is pending before Parliament. I examine here whether the Bill, when passed as an Act or its provisions promulgated as an Ordinance, will be unconstitutional or not.
The constitutional principle applicable in a situation analogous to this has already been declared five decades ago in the then sensational case of K.M. Nanavati vs State of Bombay (AIR 1961 SC 112). Mr. Nanavati was convicted for an offence under Section 302 of the Indian Penal Code. He held a very high position in the Navy and his services were considered necessary during the pendency of his appeal. In the bona fide exercise of power under Article 161 of the Constitution of India, the Governor of Bombay chose “[…] to suspend the sentence passed by the High Court […] until the appeal intended to be filed by him in the Supreme Court against the conviction and sentence is disposed of […]”
Mr. Nanavati preferred a Special Leave Petition before the Supreme Court. The Supreme Court ruled by a majority of four to one that both Article 142 and Article 161 being provisions in the Constitution should be harmoniously interpreted.
“[…] the order of the Governor granting suspension of the sentence could only operate until the matter became sub-judice in this Court on the filing of the petition for special leave to appeal. After the filing of such a petition, this court was seized of the case, which would be dealt with in accordance with law. It would be for this court […] to pass such orders, as it thinks fit, as to whether the petitioner should be granted bail or surrender to his sentence or to pass such other or further orders as this Court might deem fit in all the circumstances of the case.”
Therefore, the exercise of the ordinance-making power by the President under Article 123 of the Constitution of India in the present case will be unconstitutional. The proposed amendment to Section 8(4) of the Representation of People Act, 1951, by way of Clause 2 of the Bill, provides that the disqualification of an MP/MLA shall not take effect “if an appeal or application for revision is filed in respect of the conviction and sentence within a period of ninety days from the date of conviction and such conviction or sentence is stayed by the court.”
The proposed amendment to the proviso to Section 8(4) reads:
“Provided that after the date of conviction and until the date on which the conviction is set aside by the court, the member shall neither be entitled to vote nor draw salary and allowances, but may continue to take part in the proceedings of the Parliament or the Legislature of a State, as the case may be.”
No doubt the proviso will operate only when an appeal or application for revision is filed in respect of such conviction and sentence within a period of 90 days from the date of conviction and such conviction or sentence is stayed by the court. Subject to what conditions the stay will operate is a matter for the court to decide and the executive/legislature has no jurisdiction in the matter. It is exclusively for the court to decide and by way of a legislative device, the order of the court cannot be modified, varied, or altered as to what restriction will operate on the right of the member consequent on the order of court staying the conviction and/or the sentence. Moreover, in the event of a stay granted by the court without any conditions, it will operate unconditionally.
The aforesaid provision interferes with the power of the court to pass appropriate orders pending the appeal. Though there is no similar provision like Article 142 in respect of the High Courts, the position in law will be the same even in cases of appeals to the High Courts, as such exercise of power by the legislature would interfere with the judicial powers of the High Courts. Even a constitutional amendment will offend the basic feature of the Constitution viz., interfering with the exercise of judicial power.
Suspension of sentence
The exercise of judicial power in suspending a sentence/quashing by appellate courts is provided under Section 389 and 482 of the Criminal Procedure Code respectively. Therefore, an executive order or an ordinance or even an enactment to such effect will amount to interfering with the exercise of judicial power and, hence, will be unconstitutional.
In Indira Nehru Gandhi vs Raj Narain (AIR 1975 SC 1590), under the then existing practice, a single Judge of the Hon’ble Supreme Court exercised powers during vacation of the court. Hon’ble Mr. Justice V.R. Krishna Iyer passed interim orders pending Mrs. Indira Gandhi’s appeal against the order setting aside her election. The learned judge beautifully crafted the interim order to point out that she had two capacities, one as the Prime Minister and another as a Member of Parliament. He ruled that —
“(iii) The appellant-petitioner [as] Lok Sabha member, will be entitled to sign the Register kept in the House for that purpose and attend the Sessions of the Lok Sabha, but she will neither participate in the proceedings in the Lok Sabha nor vote nor draw remuneration in her capacity as Member of the Lok Sabha.
(iv) Independently of the restrictions under para III on her Membership of the Lok Sabha, her rights as Prime Minister or Minister, so long as she fills that office, to speak in and otherwise take part in the proceedings of either House of Parliament or a joint sitting of the House (without right to vote) and to discharge other functions such as are laid down in Articles 74, 75, 78, 88, etc., or under any other law, and to draw her salary as Prime Minister, shall not be affected or detracted from on account of the conditions contained in this stay order.”
It may be noted that the court did not permit her as a Member of Parliament to even participate in the proceedings. As a member, she could only sign the register kept in the House and attend the session. The Bill and the Ordinance, however, provide for disqualified members to also take part in proceedings pending the appeal.
In a particular situation where peculiar facts demand that in the interest of the nation, if the court is of the opinion that a disqualified member should be permitted to vote on a particular motion in the House, it may permit him/her to vote. This power of the court is also interfered with by the proposed amendment. There may be special circumstances like the nature of the offences or the peculiar facts of the case or the nature of the subject matter which may have to be voted in Parliament where the court may permit voting, akin to how a convicted person undergoing imprisonment may occasionally be released on parole for any good, compelling reasons.
That the court passes similar orders pending appeal in election matters is not a good reason to support the Ordinance/Act as that is the exercise of judicial power pending appeal which cannot be done by exercise of executive/legislative power.
The Bill, if enacted as law, and/or the Ordinance will also be violative of Article 14 of the Constitution as being arbitrary, discriminatory and irrational.
(The author is currently a Member of Parliament, Rajya Sabha, and former Attorney General of India)
In a landmark verdict, the Supreme Court on Friday held that citizens have right to cast negative vote rejecting all candidates contesting polls, a decision which would encourage people not satisfied with contestants to turn up for voting.
The apex court directed the Election Commission to provide ‘none of the above options’ at the end of the list of candidates in electronic voting machines (EVMs) and ballot papers to allow voters to reject those contesting polls.
A bench headed by Chief Justice P Sathasivam said that negative voting would foster purity and vibrancy of elections and ensure wide participation as people who are not satisfied with the candidates in the fray would also turn up to express their opinion rejecting contestants.
It said that the concept of negative voting would bring a systemic change in the election process as the political parties will be forced to project clean candidates in polls.
The bench noted that the concept of negative voting is prevalent in 13 countries and even in India, parliamentarians are given an option to press the button for abstaining while voting takes place in the House.
The court said right to reject candidates in elections is part of fundamental right to freedom of speech and expression given by the Constitution to Indian citizens.
It said that democracy is all about choice and significance of right of citizens to cast negative voting is massive.
With the concept of negative voting, the voters who are dissatisfied with the candidates in the fray would turn up in large number to express their opinion which would put unscrupulous elements and impersonators out of the polls, it said.
The bench, while reading out the operative portion of the judgement, did not throw light on a situation in case the votes cast under no option head outnumber the votes got by the candidates.
It said that secrecy of votes cast under the no option category must be maintained by the Election Commission.
The court passed the order on a PIL filed by an NGO, People’s Union for Civil Liberties (PUCL) which had submitted that voters be given the right to negative voting.
Agreeing with the NGO’s plea, the bench passed the path-breaking verdict and introduced the concept of negative voting in the election process, saying that it would further empower the voters in exercising their franchise.
The latest verdict is part of series of judgements passed by the apex court on the election process.
Earlier, the apex court had restrained people in custody from contesting elections.
The apex court has also ruled that MPs and MLAs would stand disqualified after being convicted of serious crimes.
The government has brought an ordinance seeking to negate the court’s judgement striking down a provision in the electoral law that protected convicted lawmakers from immediate disqualification.
A two-judge bench of the apex court had felt that the issue on negative voting needed to be adjudicated by a larger bench as there were certain doubts over the interpretation of the ruling passed by a Constitution Bench in the Kuldip Nayar Vs Union of India case relating to a voter’s right.
Under the existing provisions of Rule 49(O) of the Representation of People Act, a voter who after coming to a polling booth does not want to cast his vote, has to inform the presiding officer of his intention not to vote, who in turn would make an entry in the relevant rule book after taking the signature of the said elector.
According to the PUCL, Rule 49(O) was violative of the constitutional provisions guaranteed under Article 19(1)(a) (Freedom of Speech and Expression) and Article 21 (Right to Liberty) and violated the concept of secret ballot.
- Voter has right to negative voting: SC (kashmirthrone.wordpress.com)
- Voter has right to negative voting: SC (thehindu.com)
- SC gives voters right to reject candidates (niticentral.com)
- Voter has right to negative voting: Supreme Court (dnaindia.com)
- Voters have right to reject: Supreme Court (goodgovernanceblog.wordpress.com)
- Supreme Court gives voters right to reject all candidates in a poll (ndtv.com)
- Supreme Court Gives Voters Right to Reject Candidates (indiatimes.com)
- SC recognises right of voters to reject all candidates (ibnlive.in.com)
The Supreme Court on Wednesday held that chargesheeted Members of Parliament and MLAs, on conviction for offences, will be immediately disqualified from holding membership of the House without being given three months’ time for appeal, as was the case before.
A Bench of Justices A.K. Patnaik and S.J. Mukhopadhaya struck down as unconstitutional Section 8 (4) of the Representation of the People Act that allows convicted lawmakers a three-month period for filing appeal to the higher court and to get a stay of the conviction and sentence. The Bench, however, made it clear that the ruling will be prospective and those who had already filed appeals in various High Courts or the Supreme Court against their convictions would be exempt from it.
Section 8 of the RP Act deals with disqualification on conviction for certain offences: A person convicted of any offence and sentenced to imprisonment for varying terms under Sections 8 (1) (2) and (3) shall be disqualified from the date of conviction and shall continue to be disqualified for a further period of six years since his release. But Section 8 (4) of the RP Act gives protection to MPs and MLAs as they can continue in office even after conviction if an appeal is filed within three months.
The Bench found it unconstitutional that convicted persons could be disqualified from contesting elections but could continue to be Members of Parliament and State Legislatures once elected.
Allowing two writ petitions filed by advocate Lily Thomas and Lok Prahari, through its General Secretary S. N. Shukla, the Bench said: “A reading of the two provisions in Articles 102(1) (e) and 191(1) (e) of the Constitution would make it abundantly clear that Parliament is to make one law for a person to be disqualified for being chosen as, and for being, a Member of either House of Parliament or Legislative Assembly or Legislative Council of the State. Parliament thus does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the State Legislature.”
Writing the judgment, Justice Patnaik said: “ The language of Articles 102(1) (e) and 191(1) (e) of the Constitution is such that the disqualification for both a person to be chosen as a member of a House of Parliament or the State Legislature and for a person to continue as a member of Parliament or the State Legislature has to be the same.”
The Bench said: “Section 8 (4) of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution.”
The Bench held: “Looking at the affirmative terms of Articles 102(1) (e) and 191(1) (e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3) (a) and 190(3) (a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution.”
The Bench said: “Under Section 8 (1) (2) and (3) of the Act, the disqualification takes effect from the date of conviction. Thus, there may be several sitting members of Parliament and State Legislatures who have already incurred disqualification by virtue of a conviction covered under Section 8 (1) (2) or (3) of the Act. Sitting members of Parliament and State Legislature who have already been convicted of any of the offences mentioned in sub-section (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act should not, in our considered opinion, be affected by the declaration now made by us in this judgment. This is because the knowledge that sitting members of Parliament or State Legislatures will no longer be protected by sub-section (4) of Section 8 of the Act will be acquired by all concerned only on the date this judgment is pronounced by this Court.”
However, the Bench said: “If any sitting member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by subsection (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and /or sentence.”
The judgment in Kesavananda Bharati v State of Kerala, whose 40th anniversary falls today, was crucial in upholding the supremacy of the Constitution and preventing authoritarian rule by a single party
Exactly forty years ago, on April 24, 1973, Chief Justice Sikri and 12 judges of the Supreme Court assembled to deliver the most important judgment in its history. The case of Kesavananda Bharati v State of Kerala had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23, 1973. The hard work and scholarship that had gone into the preparation of this case was breathtaking. Literally hundreds of cases had been cited and the then Attorney-General had made a comparative chart analysing the provisions of the Constitutions of 71 different countries!
All this effort was to answer just one main question: was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?
Article 368, on a plain reading, did not contain any limitation on the power of Parliament to amend any part of the Constitution. There was nothing that prevented Parliament from taking away a citizen’s right to freedom of speech or his religious freedom. But the repeated amendments made to the Constitution raised a doubt: was there any inherent or implied limitation on the amending power of Parliament?
The 703-page judgment revealed a sharply divided court and, by a wafer-thin majority of 7:6, it was held that Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of the Constitution.” This was the inherent and implied limitation on the amending power of Parliament. This basic structure doctrine, as future events showed, saved Indian democracy and Kesavananda Bharati will always occupy a hallowed place in our constitutional history.
Supreme Court v Indira Gandhi
It is supremely ironical that the basic structure theory was first introduced by Justice Mudholkar eight years earlier by referring to a 1963 decision of the Supreme Court of Pakistan. Chief Justice Cornelius — yes, Pakistan had a Christian Chief Justice and, later, a Hindu justice as well — had held that the President of Pakistan could not alter the “fundamental features” of their Constitution.
The Kesavananda Bharati case was the culmination of a serious conflict between the judiciary and the government, then headed by Mrs Indira Gandhi. In 1967, the Supreme Court took an extreme view, in the Golak Nath case, that Parliament could not amend or alter any fundamental right. Two years later, Indira Gandhi nationalised 14 major banks and the paltry compensation was made payable in bonds that matured after 10 years! This was struck down by the Supreme Court, although it upheld the right of Parliament to nationalise banks and other industries. A year later, in 1970, Mrs Gandhi abolished the Privy Purses. This was a constitutional betrayal of the solemn assurance given by Sardar Patel to all the erstwhile rulers. This was also struck down by the Supreme Court. Ironically, the abolition of the Privy Purses was challenged by the late Madhavrao Scindia, who later joined the Congress Party.
Smarting under three successive adverse rulings, which had all been argued by N.A. Palkhivala, Indira Gandhi was determined to cut the Supreme Court and the High Courts to size and she introduced a series of constitutional amendments that nullified the Golak Nath, Bank Nationalisation and Privy Purses judgments. In a nutshell, these amendments gave Parliament uncontrolled power to alter or even abolish any fundamental right.
These drastic amendments were challenged by Kesavananda Bharati, the head of a math in Kerala, and several coal, sugar and running companies. On the other side, was not only the Union of India but almost all the States which had also intervened. This case had serious political overtones with several heated exchanges between N.A. Palkhivala for the petitioners and H.M. Seervai and Niren De, who appeared for the State of Kerala and the Union of India respectively.
The infamous Emergency was declared in 1975 and, by then, eight new judges had been appointed to the Supreme Court. A shocking attempt was made by Chief Justice Ray to review the Kesavananda Bharati decision by constituting another Bench of 13 judges. In what is regarded as the finest advocacy that was heard in the Supreme Court, Palkhivala made an impassioned plea for not disturbing the earlier view. In a major embarrassment to Ray, it was revealed that no one had filed a review petition. How was this Bench then constituted? The other judges strongly opposed this impropriety and the 13-judge Bench was dissolved after two days of arguments. The tragic review was over but it did irreversible damage to the reputation of Chief Justice A.N. Ray.
Constitutional rights saved
If the majority of the Supreme Court had held (as six judges indeed did) that Parliament could alter any part of the Constitution, India would most certainly have degenerated into a totalitarian State or had one-party rule. At any rate, the Constitution would have lost its supremacy. Even Seervai later admitted that the basic structure theory preserved Indian democracy. One has to only examine the amendments that were made during the Emergency. The 39th Amendment prohibited any challenge to the election of the President, Vice-President, Speaker and Prime Minister, irrespective of the electoral malpractice. This was a clear attempt to nullify the adverse Allahabad High Court ruling against Indira Gandhi. The 41st Amendment prohibited any case, civil or criminal, being filed against the President, Vice-President, Prime Minister or the Governors, not only during their term of office but forever. Thus, if a person was a governor for just one day, he acquired immunity from any legal proceedings for life. If Parliament were indeed supreme, these shocking amendments would have become part of the Constitution.
Thanks to Kesavananda Bharati, Palkhivala and the seven judges who were in the majority, India continues to be the world’s largest democracy. The souls of Nehru, Patel, Ambedkar and all the founding fathers of our Constitution can really rest in peace.
(Arvind P. Datar is a senior advocate of the Madras High Court.)