J. Venkatesan IN THE HINDU
Notwithstanding controversies, it passed several important judgments
NEW DELHI: The year 2009 was eventful and memorable for the Supreme Court and Chief Justice of India K.G. Balakrishnan. The Court faced several controversies, the notable being the collegium’s decision to elevate Karnataka High Court Chief Justice P.D. Dinakaran as one of its judges.
This controversy was preceded by a clean chit to Punjab and Haryana High Court Judge Nirmal Yadav in the Rs. 15-lakh cash-at-door scam. After 13 months, she was transferred to the Uttarakhand High Court.
It all began with the Central Information Commission (CIC) directing the Court’s Central Public Information Officer (CPIO) to provide information about whether or not the judges had filed declaration of assets. On an appeal from the CPIO, a single judge of the Delhi High Court stayed the Commission’s order. However, in his final order, the judge held that the Chief Justice of India was a public authority under the Right to Information Act, which meant “asset declaration is covered by the RTI Act.”
A Division Bench of the High Court reserved verdict on an appeal against the single judge’s order.
Within a few days of the High Court reserving the verdict, the CIC passed another order directing the Supreme Court Registry to make public the records relating to the appointment of three Supreme Court judges, who superseded their seniors. It also asked the CJI to disclose the name of the Union Minister who allegedly spoke to Madras High Court judge S. Regupathi over an anticipatory bail case. Curiously, the CPIO filed an appeal in the Supreme Court itself and got a stay on the order.
The CJI and the judiciary faced criticism from various quarters about why judges should shy away from disclosing their assets, though in the absence of a law they were not bound to do so. However, the judges yielded to the public and media pressure, and the full court of the Supreme Court, by an August 26 resolution, decided to put details of the assets of judges on the Supreme Court website. Accordingly, 23 judges, including Justice B.N. Agrawal who retired, disclosed their assets.
Justice Dinakaran was one of the five judges recommended for elevation. This recommendation could not come through because of allegations of land-grabbing made against him by the Forum for Judicial Accountability. Justice Dinakaran is allegedly in possession of 440 acres at Kaverirajapuram in Tamil Nadu’s Tiruvallur district. Further probe by the Survey of India is awaited, even as impeachment proceedings were initiated by 75 Members of Parliament against Justice Dinakaran in respect of a series of charges.
Another controversy erupted a few days ago. The Law Ministry returned the file of Chief Justice of the Allahabad High Court C.K. Prasad after President Pratibha Patil raised a query whether seniority was overlooked in the elevation of Justice Prasad of the Patna High Court cadre, who is junior to Chief Justice of the Jharkhand High Court Gyan Sudha Misra.
The President also wanted to know why no woman judge was being appointed to the Supreme Court for more than three-and-half years. The matter is yet to be resolved.
Notwithstanding the controversies, the Supreme Court passed several important judgments in politics, religion, human rights, matrimony, ragging and public interest. It came to the rescue of BJP candidate from Pilhibit Varun Gandhi by quashing the detention order passed by the Mayawati government under the National Security Act. Despite opposition from the State, the court ordered his release on parole to enable him to file his nomination for the Lok Sabha elections, and he was set free at last.
The Court permitted the Tamil Nadu government to instruct the Special Public Prosecutor in Bangalore conducting the trial in the wealth case against AIADMK general secretary Jayalalithaa to withdraw the London Hotel case, which was heard along with the wealth case, for paucity of evidence.
In the Sethusamudram case, the court granted two months to the Centre to spell out its stand on the expert committee’s report on an alternative alignment to the Sethusamudram ship channel without cutting across the Adam’s Bridge or the Ramar Sethu. The Court was not impressed with the Centre’s submission that it would need another 18 months to conduct the Environment Impact Assessment (EIA) for the alternative alignment suggested by the Supreme Court when it reserved the verdict on July 30, 2008.
The Supreme Court held that it was empowered to grant divorce by mutual consent under Section 13 B of the Hindu Marriage Act even if the wife or husband withdrew such consent during the proceedings in the lower court and prior to the passing of the decree.
“Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders, and a decree for divorce is finally passed. It is only the Supreme Court, in exercise of its extraordinary powers under Article 142 of the Constitution that can pass orders to do complete justice to the parties.”
THE CAMPAIGN FOR CHANGES IN LAW FOR PROTECTION OF VICTIMS GOT A HUGE WIN WHEN CENTRAL GOVERNMENT DECIDED TO NOTIFY THE CrPC AMMENDMENTS WHICH RECEIVED THE PRESEDENTIAL SIGNATURE LAST YEAR IN JANUARY 2008. THIS THE CENTRAL GOVERNMENT WAS FORCED TO DO DUE TO THE SERIOUS LAPSES IN RUCHIKA CASE. THE MEDIA NEED TO BE LAUDED AND PREAISED FOR RAISING THESE LAPSES AND CREATING A NATIONAL CAMPAIGN. THE SHAKTI VAHINI TEAM ALONG WITH NATIONAL NETWORK OF LAWYERS FOR RIGHTS AND JUSTICE, NOIDA LOK MANCH, ACTIVIST FOR GOOD GOVERNANCE AND MEMBERS OF THE NATIONAL MEDIA COALITION WERE ONE OF THE FIRST GROUPS TO HIT THE STREET AND SUPPORT THE JUSTICE FOR RUCHIKA CAMPAIGN. A REPRESENTATION WAS SUBMITTED TO SHRI VEERAPPA MOILY UNION LAW MINISTER.
AS ACTIVIST FIGHTING FOR CHANGES IN LAW FOR PROTECTION OF VICTIMS THIS HAS BEEN A LONG STANDING DEMAND AND THE GOVT BY ACCEPTING THESE AND BY NOTIFYING THE AMENDMENTS HAVE LAID DOWN THE ROAD FOR VICTIM CENTRIC JURISPRUDENCE IN WHICH THE CAUSE OF VICTIMS WILL BE IMPORTANT INGREDIENT .
THE NEXT FIGHT FOR WE ACTIVISTS AND CAMPAIGNERS WILL BE TO GET THE COMPENSATION PART OF THIS AMMENDMENT IMPLEMENTED IN SPIRIT . ONCE PROVIDING COMPENSATION BECOMES A STATE LIABILITY THERE IS NO DOUBT THAT STATE WILL TAKE STRONG STEPS TO REDUCE SUCH CRIMES.
THIS WIN SHOULD BE DEDICATED TO THE THOUSANDS OF VICTIMS WHO HAVE SILENTLY SUFFERED DUE TO THE LAPSES IN THE LAW.
THE IMPORTANT PROVISIONS WHICH HAVE BEEN NOTIFIED ARE :
Definition of a Victim:
In section 2 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the principal Act), after clause (w), the following clause shall be inserted, namely:—‘(wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;’
Victim Can engage Advocate to support and help the Prosecution
In section 24 of the principal Act, in sub-section (8), the following proviso shall be inserted, namely:— “Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.”
Statement of the Victim to be done in a safe place or a place of her choice and by a women police officer
In section 157 of the principal Act, in sub-section (1), after the proviso, the following proviso shall be inserted, namely:—
“Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.’’.
Use of Audio Video for Statements
In section 161 of the principal Act, in sub-section (3), the following provisos shall be inserted, namely:—
‘‘Provided that statement made under this sub-section may also be recorded by audiovideo electronic means.’’.
Use of Audio Video for Confession/Statement
In section 164 of the principal Act, in sub-section (1), for the proviso, the
following provisos shall be substituted, namely:—
“Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:
Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.”
Investigations of Child Sex Abuse to be done in time bound
In section 173 of the principal Act,—
(a) after sub-section (1), the following sub-section shall be inserted, namely:—
“(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.”;
b) in sub-section (2), after clause (g), the following clause shall be inserted, namely:—
“(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code.”.
Witness Can Be Done By Using Electronic Means
In section 275 of the principal Act, in sub-section (1), the following proviso shall be inserted, namely:—
“Provided that evidence of a witness under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence.”.
In Camera Trials and identity protection
In section 327 of the principle Act,—
(a) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:—
“Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.”;
(b) in sub-section (3), the following proviso shall be inserted, namely:—
“Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.”.
After section 357 of the principal Act, the following section shall be inserted, namely:—
(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under sub-section
(4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”
Right to appeal for the Victim against the verdict of the Trial Court
In section 372 of the principal Act, the following proviso shall be inserted, namely:—
“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”.
FROM THE EDITORIAL IN THE HINDU
If the appalling facts surrounding the case of sexual molestation of a 14-year-old girl by a senior Haryana police officer, S.P.S. Rathore, have transfixed the nation, this is because of the blatant manner in which the accused was able to use his position to subvert the course of justice. Even in a country inured to the rich, powerful, and shameless getting away, the full spectrum dominance unleashed on the helpless girl’s family by Rathore set a new low. And yet, the instant case is not just a morality play about the criminality of one man. It is a cautionary tale about the multiple layers of protection that well-connected offenders enjoy in the Indian criminal justice system by design and default. Subversion begins right after the offence is committed, when the victim finds it impossible to get the local police to register a first information report. Despite numerous court rulings and official guidelines on this matter, police stations around the country routinely refuse to file FIRs against police officers, politicians, and other influential notables. And even if a case is filed, the police often join hands with the accused person’s lawyers to ensure the matter gets delayed for years on end. The foisting of false cases on the family of Rathore’s victim was another old trick the police officer resorted to.
Rathore and men like him are able to get away with such abuses of authority because they are ever ready to commit similar illegalities for their political masters. Unless meaningful police reforms are introduced, this problem will not go away. The Indian system is also surprisingly lenient towards law enforcement officers who try and frame innocent citizens. In the Shopian case involving the suspicious death of two Kashmiri women, the Central Bureau of Investigation, which investigated the circumstances of their death, went a step further and filed criminal charges against a number of individuals who had allegedly sought to incriminate the security forces in the incident. But the same CBI, which took up the Rathore case and came across indisputable evidence of police vendetta against his victim’s brother, did not see fit to file charges against Rathore and all the subordinate policemen involved in the malicious prosecution of the young man on bogus accusations of auto theft. Even at this late stage, it is essential that the CBI be tasked with unearthing the identity of the dozens of bureaucrats, policemen, and politicians who conspired with Rathore to pervert the course of justice. Haryana’s former DGP must get his legal comeuppance; but those who helped him all these years must also get their due.
Please click the link to read the Report on the Criminal Justice System as suggested by Justice Malimath Committee in 2003. This report highlights the lacunae in the criminal Justice system in India and has suggestted important recommendations. These recommendations assume significance when the discussion on the Ruchika case is being discussed across the country.
When the Ruchika Case has come as a shocker and highlighted the failure of the law for the welfare and protection of Victims it is time to visit the Report of Malimath committee on Criminal Justice System. There are some good suggestions which need to be implemented for the welfare of Victims.
FROM THE MALIMATH COMMITTEE REPORT ON CRIMINAL JUSTICE SYSTEM IN INDIA (March 2003)
6.1 Referring to the state of criminal justice in India today, the Government Notification constituting the Criminal Justice Reforms committee observed :
… … ..People by and large have lost confidence in the Criminal Justice System … .. Victims feel ignored and are crying for attention and justice … .. there is need for developing a cohesive system, in which, all parts work in co-ordination to achieve the common goal.
6.2 Very early in the deliberations of the Committee, it was recognized that victims do not get at present the legal rights and protection they deserve to play their just role in criminal proceedings which tend to result in disinterestedness in the proceedings and consequent distortions in criminal justice administration. In every interaction the Committee had with the police, the Judges, the prosecution and defense lawyers, jail officials and the general public, this concern for victims was quite pronounced and a view was canvassed that unless justice to the victim is put as one of the focal points of criminal proceedings, the system is unlikely to restore the balance as a fair procedure in the pursuit of truth. Furthermore, it was pointed out that support and co-operation of witnesses will not be forthcoming unless their status is considerably improved along with justice to victims. This perception was strengthened while the Committee examined the systems prevalent in other jurisdictions. The U. N. system also wanted member countries to guarantee rights of victims of crime through their respective legal systems. In the circumstances, the Committee resolved to give adequate importance to the idea of justice to victims of crime in the scheme of reform to be recommended. This chapter of the report is specifically addressed to rights of victims with a view to solicit their maximum support to criminal proceedings and to restore the confidence of people in Criminal Justice System.
Basically two types of rights are recognized in many jurisdictions particularly in continental countries in respect of victims of crime. They are, firstly, the victim’s right to participate in criminal proceedings (right to be impleaded, right to know, right to be heard and right to assist the court in the pursuit of truth) and secondly, the right to seek and receive compensation from the criminal court itself for injuries suffered as well as appropriate interim reliefs in the course of proceedings.
6.4 It is interesting to find that the European system assigned a very active role assigned to the victim or his representative in criminal proceedings. For example, in France, all those who suffer damage on account of the commission of an offence are entitled to become parties to the proceedings from the investigation stage itself. He can assist investigation on proper lines and move the court for appropriate directions when the investigation gets delayed or distorted for whatever reasons. His active participation during trial will be of great help in the search for truth without inconveniencing the prosecution. He may suggest questions to the court to be put to witnesses produced in court. He may conduct the proceedings if the public prosecutor does not show due diligence. He can supplement the evidence adduced by the prosecution and put forth his own arguments. He would be of help to the court in the matter of deciding the grant or cancellation of trial. He will adduce evidence in the matter of loss, pain and suffering to decide on his entitlement of interim reliefs and compensation by way of restitution. Wrongful attempts to withdraw or close the prosecution due to extraneous factors can be resisted if the court were to have the continued assistance of the victim. For all these reasons and more, it is clear that if the criminal proceedings have to be fair to both the parties and if the court were to be properly assisted in its search for truth, the law has to recognize the right of victim’s participation in investigation, prosecution and trial. If the victim is dead, or otherwise not available this right should vest in the next of kin. It should be possible even for Government Welfare bodies and voluntary organizations registered for welfare of victims of sexual offences, child victims, those in charge of the care of aged and handicapped persons to implead themselves as parties whenever the court finds it appropriate for a just disposal of the case.
6.5 The right of the victim should extend to prefer an appeal against any adverse order passed by the trial court. The appellate court should have the same powers to hear appeals against acquittal as it now has to entertain appeal against conviction. There is no credible and fair reason why appeals against acquittals should lie only to the High Court.
6.6 The right of representation by lawyer is a constitutional right of every accused and there is no reason why it should not be available to the victim as well. If the victim is an indigent person, the Legal Services Authority should be directed by the Court to provide a lawyer at State expense.
VICTIMS UNDER THE EXISTING CRIMINAL JUSTICE SYSTEM
6.7.1 Historically speaking, Criminal Justice System seems to exist to protect the power, the privilege and the values of the elite sections in society. The way crimes are defined and the system is administered demonstrate that there is an element of truth in the above perception even in modern times. However, over the years the dominant function of criminal justice is projected to be protecting all citizens from harm to either their person or property, the assumption being that it is the primary duty of a State under rule of law. The State does this by depriving individuals of the power to take law into their own hands and using its power to satisfy the sense of revenge through appropriate sanctions. The State (and society), it was argued, is itself the victim when a citizen commits a crime and thereby questions its norms and authority. In the process of this transformation of torts to crimes, the focus of attention of the system shifted from the real victim who suffered the injury (as a result of the failure of the State) to the offender and how he is dealt with by the State.
Criminal justice came to comprehend all about crime, the criminal, the way he is dealt with, the process of proving his guilt and the ultimate punishment given to him. The civil law was supposed to take care of the monetary and other losses suffered by the victim. Victims were marginalized and the State stood forth as the victim to prosecute and punish the accused.
6.7.2 What happens to the right of the victim to get justice to the harm suffered? Well, he can be satisfied if the State successfully gets the criminal punished to death, a prison sentence or fine. How does he get justice if the State does not succeed in so doing? Can he ask the State to compensate him for the injury? In principle, that should be the logical consequence in such a situation; but the State which makes the law absolves itself of such liability. Not only the victim’s right to compensation was ignored except a token provision under the Criminal Procedure Code but also the right to participate as the dominant stakeholder in criminal proceedings was taken away from him. He has no right to lead evidence, he cannot challenge the evidence through cross-examination of witnesses nor can he advance arguments to influence decision-making.
6.7.3 What is the present role that victim is assigned under the existing criminal law? When a person who has been the victim of a cognizable offence gives information to the police regarding the same, the police is required to reduce the information into writing and read it over to the informant. The informant is required to sign it and get a copy of the FIR [section 154 (1) & (2) of Cr.P.C.]. If the police refuses to record the information, the victim – informant is allowed to send it in writing and by post to the S. P. concerned [Section 154 (3)]. If the police refuses to investigate the case for whatever reason, the police officer is required to notify the informant of that fact [Section 157 (2)].
6.7.4 Alternatively, victims are enabled by Section 190 of the Cr. P. C. to avoid going to the Police Station for redress and directly approach the Magistrate with his complaint.
6.7.5 Complainants say that they are treated indifferently by police and sometimes harassed when they go to them with their grievances. There are complaints that the police do not truthfully record the information but distort facts as found convenient to them. Cognizable cases are made non-cognizable and viceversa. Complainants are sometimes made the accused and investigations initiated accordingly. Though these are unauthorized by the law and are rare, yet whenever it happens the victim gets disillusioned and alienated from the system itself.
6.7.6 The investigation process is exclusively a police function and the victim has a role only if the police consider it necessary. There are administrative instructions given by police departments of certain States to give information on progress of investigation to the victim when asked for. Otherwise till police report (charge sheet) is filed under Section 173 Cr. P. C., the victim’s plight is pitiable. This is the time victims need assistance the most and the law is silent on it. After the police report is taken cognizance of by the Magistrate, if he decides to drop the proceedings, it is required of him to hear the victim-informant by issuing notice to him [1997 Cr. L. J. 4636 (S.C.)] The Court seems to have recognized a gap in the statutory provision and enjoined the court not to drop proceedings without giving an opportunity to the victim to ventilate his grievance.
6.7.7 Pending investigation and prosecution, there are several things that a victim-friendly Criminal Justice System needs to address on an urgent basis. For example, victims of rape and domestic violence etc. require trauma counseling, psychiatric and rehabilitative services apart from legal aid. The object is to avoid secondary victimization and provide hope in the justice system. At the police station level, with or without the assistance of voluntary organizations, victim support services need to be organised systematically if the system were to redeem its credibility in society.
6.7.8 The existing law only envisages the prosecutor appointed by the State to be the proper authority to plead on behalf of the victim. However, the Code does not completely prohibit a victim from participating in the prosecution. A counsel engaged by the victim may be given a limited role in the conduct of prosecution, that too only with the permission of the court. The counsel so engaged is to act under the directions of the public prosecutor. The only other privilege a victim might exercise is to submit again with the permission of the court, written arguments after the closure of evidence in the trial. This requires change on the lines proposed above.
6.7.9 In the granting and cancellation of bail, victims have substantial interests though not fully recognized by law. Section 439 (2) may allow a victim to move the Court for cancellation of bail; but the action thereon depends very much on the stand taken by the prosecution. Similarly prosecution can seek withdrawal at any time during trial without consulting the victim (Section 321 Cr. P. C.). Of course, the victim may proceed to prosecute the case as a private complainant; but he seems to have no right to challenge the prosecution decision at the trial stage itself. This is another change the Committee would recommend for justice to victims.
6.7.10 Victims have a right to testify as prosecution witness. However, victims often fall prey to intimidation and harassment by offenders which tend to dissuade them from testifying freely and truthfully. Though it is the duty of the State to prevent such things, the situation according to available evidence is disturbing. There is no victim protection law as such and police is not in a position to protect every victim. Such conduct, of course, is prohibited under the IPC (Section 504 IPC).
6.7.11 The situation is alarming in respect of victim witnesses who belong to vulnerable sections of society. The adversarial trial built around cross- examination of witnesses often result in adding insult to injury against which even the Court may not be of much help. In several offences the experience may be a nightmare to victims acknowledging this predicament, Government has adopted recently an amendment preventing character assassination during trial of sexual offences.
6.7.12 There is need for an officer equivalent to Probation Officer to take care of victim interests in investigation and trial. He may be called Victim Support Service Co-ordinator who may work closely with the police and Courts to monitor, co-ordinate and ensure delivery of justice during the pendency of the case.
6.7.13 Compounding is a process through which the offender and the victim come to an agreement to put an end to the tension arising out of the criminal action. Offences which are compoundable and the persons by whom they could be compounded are indicated in Section 320 of the Cr. P. C. The Section specifies two lists of offences : one, compoundable without the permission of the Court, and the other, relatively more grave offences, which are compoundable with the permission of the Court. Sometimes the requirement of permission of the Court before compounding is got over by making the complainant and other prosecution witnesses retract their statements given to police and to depose favourably to the accused. The Committee is in favour of giving a role to the victim in the negotiation leading to settlement of criminal cases either through courts, Lok Adalats or Plea-bargaining
By Rana Ajit, IANS
New Delhi : Whether it was Justice Markandey Katju’s obey-your-wife remark or Chief Justice K.G. Balakrishnan’s polluters-must-pay ruling, the Supreme Court continued to hog the limelight in 2009. Topping them was the repeated order that stopped the statue installation spree of Uttar Pradesh Chief Minister Mayawati.
Justice B.N. Agrawal had to even threaten the state chief secretary with contempt of court proceedings to have his order obeyed. Another bench headed by Chief Justice K.G. Balakrishnan later suspended Mayawati’s bid to create another statue gallery for herself and her mentor Kanshi Ram on the outskirts of Delhi in the state’s showpiece town Noida.
In yet another significant ruling, the apex court tried to stop the mushrooming of religious structures by encroaching upon public land. On July 31, a bench of Justice Dalveer Bhandari and Justice Mukundkam Sharma ordered the central and all state governments to ensure that no new place of worship is built illegally on public land anywhere.
Justice Katju had been in the news earlier too, on April 28, when he asked the central government to form a panel of scientists to “take up research on a war footing” to tackle the country’s water problem.
On Nov 11, the same judge issued an order to ascertain the apex court’s legislative and executive powers. Expressing reservation over an earlier apex court order framing guidelines for the conduct of students union elections in colleges and universities across the country, the bench referred the crucial issue for examination by a constitution bench.
The year also saw the apex court ordering a record compensation for a victim of medical negligence on May 14, when Hyderabad-based Nizam Medical Institute was asked to pay Rs.10 million to Bangalore-based Infosys engineer Prashanth S. Dhananka, who had been paralysed from the waist down after a botched up surgery.
Chief Justice Balakrishnan imposed a steep Rs.556 million fine on industrialists engaged in dyeing and bleaching work at Hirpur in Tamil Nadu for polluting the Noyyal river virtually beyond redemption.
The country’s top court was also in the news when a group of defendants threw footwear at a judge. Justice Altmas Kabir held that convicting summarily and punishing instantly an obvious contemnor was just and fair, while jailing four women officials of a Mumbai-based music school for throwing footwear March 20 this year at erstwhile Justice Arijit Pasayat in the courtroom.
The year also saw the apex court devising the concept of life-long jail term to meet the need of a punishment milder than the death penalty but harsher than the normal 14-year term.
Justice B.N. Agrawal came with the concept to meet “the end of justice” in the case of a diabolical murder committed by a so-called god man Swamy Shraddananda.
The year subsequently saw the apex court catching up with the global trend of decades-long jailing for murders most foul in several cases.
On Oct 9, it jailed for the rest of his life 28-year-old Sebastian alias Chevithiyan from Kerala, for stealing a two-year-old girl from her sleeping mother’s side and bludgeoning her to death after raping her.
In keeping with this new principle, another bench on Aug 27 imposed a 35-year-long jail term on a West Bengal youth, Haru Ghosh, for murdering a 30-year-old woman and her 12-year-old son in May 2005.
(Rana Ajit can be contacted at firstname.lastname@example.org)
NEWS IN THE INDIA EXPRESS DECEMBER 28,2009
Questioning the moral authority of the Chief Justice of India in the backdrop of the Justice Dinakaran controversy, a pro-active Karnataka High Court judge says the top-most judge is more like a “serpent” without fangs who can only hiss but not bite.
In one of the strongest attacks ever on the head of the country’s judiciary, Justice D V Shylendra Kumar, who raised eyebrows in taking the lead on the issue of assets disclosure by judges, fired a salvo again at the efficacy of the “moral authority” of the top judiciary in ensuring that erring judges fall in place.“The concept that the Chief Justice of India, being the head of judiciary in the country, and therefore, can exercise his moral authority to ensure that erring judges fall in place and behave themselves, is a misnomer and misconception,” he said.
Justice Kumar made these remarks in an article on “Judicial Accountability” published in the souvenir of the Karnataka State Advocates Conference, which was held in Hubli on Sunday. The article has also been posted on his blog.“The mere moral authority of the Chief Justice of India is of no value or significance, unless it can have some binding effect, which is not provided under the Constitution,” Justice Kumar wrote.
“The Chief Justice of India, in so far as the relative position for such purpose is concerned, is more like a serpent without fangs, who can only hiss, but not bite, which will be an open secret in no time and the serpent will not be feared by anyone, however menacing it may look, however loud it may hiss! Unfortunately, that is the reality.”
“I say so, for the reason that an errant judge is a person who has breached the moral code of conduct, is a brazen person on whom no moral authority binds, nor does he respect moral authority and, therefore, the so-called moral authority of the Chief Justice of India as the figure-head of the judicial family, has virtually no effect on such errant judges,” Justice Kumar said. He also doubted the effectiveness of the impeachment proceedings in the present system against judges of the superior courts.
Referring to the impeachment motion moved against Karnataka Chief Justice P D Dinakaran in the Rajya Sabha, Justice Kumar is of the view that for the present there is no other mechanism to discipline an errant judge of a superior court.He said, “If the past experience is any indication, the impeachment procedure does not work in reality and practice, more so in the present political system in the country with fragmented political parties and views.”
Justice Kumar, who has been critical of Justice Dinakaran continuing to discharge administrative functions after staying away from the Bench, said, “Judicial accountability is a phrase, which sounds incongruous and can convey conflicting messages. The phrase has assumed importance in the wake of the improper, irregular and incorrect manner of functioning of judicial officers even amongst the judges in the superior courts,” he noted in an apparent reference to the land-grabbing charges being faced by Justice Dinakaran.
BY VINAY SITAPATI IN INDIAN EXPRESS DECEMBER 28 2009
As this decade ends and predictions fly on the “big event” of the next one, here’s a question you’re unlikely to read elsewhere. What will the next decade’s Shah Bano be? The reference being to the 1985 Supreme Court decision to apply criminal law to provide maintenance to a divorced Muslim woman, even at the cost of reinterpreting Shariah. The court judgment (a) weighed into a political hot potato; (b) becoming a rallying point for upholders and critics of “secularism”, and c) had clear political consequences, even if it wasn’t a landmark legal precedent. To reframe the question in American-lingo: what will our next “Roe v. Wade” be?
Such predictions are speculative. Your guess is as good as mine. But one way to bring validity to such whim is to map past winners and formulate trends. So, first, the biggest political court judgments of the past three decades.
The Supreme Court’s iconic intervention in the 2000s was on the Gujarat riots. In response to allegations of state complicity into the 2002 riots, the Supreme Court created a special team to investigate crimes, transferred cases out of Gujarat, and closely monitored justice delivery. Its unambiguous message: that Narendra Modi, “a modern day Nero”, was being watched. Vying for second place is the 2009 Delhi High Court judgment decriminalising homosexuality. Though the case is technically not yet a Supreme Court one and the political impact has been peripheral, the judgment has the potential to alter the lives of an estimated 23 lakh gay Indians.
The winner of the 1990s, without question, is the 1993 Indira Sawhney case, popularly known as “Mandal I”. While backward class reservations have been implemented in some Indian states since Independence, Prime Minister V.P. Singh’s executive order reserving seats for Other Backward Classes (OBCs) in Central government jobs created a hailstorm. The Supreme Court’s approval of OBC reservations, while limiting all reservations to 50 per cent and excluding rich OBCs from quota benefits (“creamy layer exclusion”), has set the political paradigm for caste-based reservations since. The S.R. Bommai judgment on limiting the misuse of article 356 was arguably more legally-engaging, but it lacked the street demonstrations that Mandal I provoked. On the other hand, “Mandir” (Ayodhya) was probably a hotter political issue in the 1990s, but it lacked the court intervention to beat Mandal I to the top of the ’90s list.
The 1980s of course was Shah Bano; a classic case of a Supreme Court taking sides in a culture war. Following protests from the Muslim clergy, the Prime Minister Rajiv Gandhi backpedaled with a law to annul the Supreme Court verdict.
The repercussions have continued since — his attempt to “balance” constituencies by opening the Babri Masjid for Hindu prayer set the tone for its eventual destruction.
Now to the future. What will the next decade’s defining political judgment be?
Several options are possible. For one, the Supreme Court is currently hearing cases that reevaluate our medical-ethics, such as on surrogacy. These issues redefine how we perceive ourselves, question “who are we”. But whichever way the court turns, mass protests and political opportunisms are unlikely to result. There are then, the caste questions: either reservations in the private sector or a mandatory caste census. But these might not come up before court, and if they do, the court might well rely on the Mandal I paradigm. There is also Ayodhya. If the courts finally pronounce on the property “title” of the Babri Masjid/Ram Janma Bhoomi land in the next ten years, there will surely be political repercussions. But is there enough life in the Ayodhya embers? If the damp reaction to the Liberhan Commission Report is any indication, the answer seems no.
More likely is the possibility that the courts will pronounce on the complex triangle that tribal rights-mining-Naxalism is. These unresolved legal issues are spilling over to the socio-political arena. The absence of effective mining regulation corrupts the politics of the tribal belt across Eastern India, not to mention Karnataka. The question of tribal rights also has important repercussions on Naxalism. If the court were to pronounce on this question in some way (it’s difficult to predict the exact jurisprudence), the case may well have a lasting impact on Indian polity.
My own hope though, is for a different kind of defining judgment.
The last couple of years have seen the higher judiciary questioned in unprecedented ways. In the spot light is the opaque judge selection system (the Supreme Court self-selects), archaic exit system (impeachment is so hard, it hasn’t ever been successful) and scary contempt provisions (truth is not a defence). Given the murmurs within the judiciary and public questioning without, our apex court’s defining judgment in the coming decade might well be on itself. It might introspect, acquiesce to a more transparent selection system, and agree to the outside scrutiny of judges. Simultaneously, its energies might turn elsewhere: to its administrative responsibilities to clear a backlog of over 30 million cases throughout the judicial system (though, to be fair, the Supreme Court itself has a backlog of only around 50,000 cases).
There is some irony in the world’s most powerful court presiding over such a lengthy backlog. Perhaps the Supreme Court’s defining action in the coming decade won’t be a landmark case that redefines politics. It will be to redefine its power and reduce its backlog. Now isn’t that some prediction to make?
BY VIR SANGHVI IN HINDUSTAN TIMES
Such is the reality of today’s India that there is never a shortage of cases that leave us moved and indignant. But every now and then, there is a case that also makes us thoughtful. The Ruchika case is one such instance. In case you haven’t been following the details of the case, here’s what happened.
Ruchika was a happy, school-going 14-year-old with a passion for tennis. As often as she could, she would practise at the state tennis association’s courts. At that time, a police officer called S.P.S. Rathore was president of the Haryana Lawn Tennis Association. In August, 1990, Rathore called Ruchika to his office and molested her. Ruchika was traumatised, told family friends and eventually her father found out. Nine days later, on August 21, 1990, she recorded a statement before the then DG of Haryana, R.R. Singh. That should have been enough to finish off Rathore’s career. Instead, it finished off Ruchika — and eventually, nearly finished off her family.
Rathore contacted Ruchika’s father and said that if she did not withdraw the complaint, he would destroy the family. He proved as good as his word. When the complaint was not withdrawn, he sent policemen to Ruchika’s house to threaten the family. They would be thrown out of the house and arrested, they were told. Then, goondas began turning up at night and throwing stones at the house. During the day, they would scream filthy abuse at Ruchika. The family could not complain because the goondas appeared to have police protection. Next, false cases of auto-theft were registered against Ashu, Ruchika’s brother. When the family still did not buckle under, Ruchika was thrown out of one of Chandigarh’s top schools where she had studied since she was a child — and where Rathore’s daughter was also a student. She had to give up tennis, her great passion. She began to live like a prisoner in her house.
Then, the police arrested Ashu and began torturing him. He was beaten up again and again, often in the presence of Rathore who threatened him even as his policemen tortured the boy. In October, 1993, Ashu was picked up by the police and according to his own statement, was handcuffed and paraded around the neighbourhood. “The police officers were abusing my sister and father. I was like an animal in a cage…my father begged the police to be afraid of God and not to inflict this torture on me.” Ashu was beaten up again in jail. He was denied food and water. When eventually, he was released on December 23, 1993, he had another shock waiting for him. Unable to live this way, Ruchika had committed suicide.
The false cases against Ashu were thrown out by the courts. But the family’s torture did not end there. When Ruchika’s father tried to get justice for his dead daughter, he was threatened again and driven out of his home. He went underground to avoid a vengeful Rathore and spent several years in Himachal. But thanks to his courage and the bravery of his friend Anand Prakash, and his daughter Aradhana, the case of molestation against Rathore remained alive.
A few days ago, nearly two decades after the incident had occurred, a court finally held Rathore guilty. He was sentenced to a mere six months in jail and walked out of the courtroom smirking. Anybody who saw Ruchika’s father on TV will sympathise with the grief and helplessness of a good man who has lost nearly everything. And I can entirely understand why so many people feel the urge to pick up a gun and see that vigilante justice is done at once, given that the system has failed. (Though, of course, this would be wrong, etc. etc.) But it’s not enough to be angry. We need to focus on the lessons of this sad and tragic tale.
First of all, why did Rathore get away with the molestation in 1990 when Ruchika filed a complaint before the then DGP, R.R. Singh? It was because he was close to Haryana politicians. R.R. Singh now says that political pressure ensured that no action was taken. The then Home Secretary also says that he was unable to move against Rathore because of political pressure.
Ruchika’s father says that the politician in question was O.P. Chautala. Of course Chautala denies this and his supporters blame other politicians. But nobody denies that Ruchika died because politicians protected Rathore. What does this say about our system? It has become a knee-jerk reaction for the middle class to blame politicians for everything. But the truth is that politicians can only function if officials help them. The real problem is not that politicians are venal but that members of the educated middle class — IAS and IPS officers — either help them in return for protection and advancement (as Rathore clearly did) or refuse to speak out when injustice is committed. It is all very well for various Haryana officials to now blame politicians. But where were they when Ashu was being tortured? Where were they when Ruchika was driven to suicide?
Secondly, why is the judicial system so slow and infirm? Even if we accept that the police were unwilling to file charges or take action, the case did eventually go to court. Even then, it took till 2009 for Ruchika’s father to achieve any kind of justice — however inadequate — for his daughter. If the legal system had moved faster, Ruchika’s father would not have been forced to go underground and his family would not have been destroyed.
Lawyers will tell you that everybody knows what needs to be done to fix the judicial system: more courts, more judges etc. But no government does it. No electorate demands it. It never becomes an issue. And millions are denied justice in India every day. Thirdly, the reason we are so angry about the Ruchika case is because we can see her father on TV and hear his story. But let’s not forget that each year there are thousands of Ruchikas. India’s policemen, officials and politicians mistreat, torture, molest, rob and rape poor people all the time. Because the victims are not middle-class, we never get to hear of these cases. Look at it logically. If Rathore could destroy a respectable, middle-class family, how do you suppose he would treat a poor, helpless family? And do you really believe that Ruchika was the first girl he molested? How many other cases have gone unreported because the parents did not have the guts or the resources to fight for justice?
So, let’s punish Rathore.
But let’s not stop there. Let’s find the cops who tortured Ashu. They knew what they were doing. They should be, first, thrown out of service and then should face legal proceedings. If cops feel that there is no accountability — which, frankly, there isn’t — they will continue to harass and torture citizens. It is time the present Chief Minister of Haryana took a stand to make up for the sins of his fellow politicians. And as for us, in the middle class and media, I am sure our pressure will yield results. But we need to go beyond our class and our interests.
Millions of Indians face injustice that is even worse. It is our duty to fight for them, as well.
Call for Papers – CONSILIENCE – ANNUAL CONFERENCE ORGANISED BY THE LAW AND TECHNOLOGY COMMITTEE OF THE STUDENT BAR ASSOCIATION- NATIONAL LAW SCHOOL BANGALORE
Consilience is an annual conference organised by the Law and Technology Committee of the Student Bar Association, at the National Law School of India University, Bangalore, India. It is devoted to the field of technology law and has sought to inspire academic debates and tackle contentious issues of contemporary relevance. Past editions of the conference have brought together luminaries like Mr. Montek Singh Ahluwalia (Deputy Chairman, Planning Commission), Mr. R. Ramraj (MD and CEO, Sify Technologies Ltd.,), Mr. Richard Stallman (Founder – GNU Project), Hon’ble Justice Yatindra Singh (Allahabad High Court, India), Mr. Rahul Matthan (Partner, Trilegal ) and have discussed issues relating to “Legal Aspects of Business Process Outsourcing”, “Biotechnology and the Law” and “Free and Open Source Software”.
This year, the Law and Technology Committee in association with the Centre for Internet and Society would be organizing Consilience-2010 with the topic for discussion as “Internet Intermediary Liability in India”. This year’s edition of Consilience seeks to not only bring leading academicians to debate upon the topic of contention but also looks to increase and encourage student participation.
In this regard, we invite abstracts related to the topic tracks of discussion as enumerated in the concept note. The abstracts must be roughly 500 words and should clearly identify the issue they are dealing with, and the argument that they seek to put forward and should strictly conform to the guidelines below. The abstracts must be footnoted and the conference follows a very strict policy on plagiarism and runs all submissions through plagiarism detection software. Selected abstracts will be notified on January 25th and the authors are required to submit a final paper by March 5th. Authors are required to note that the organizers reserve the right to reject the final paper even after acceptance of the abstract if it is felt that the final paper is unsuitable to be presented, being off topic, too different from the abstract, containing plagiarized material, of low quality or any other such reason. Only submissions made through our webstie will be accepted.
Pls Visit : http://www.consilience.in
Start here to submit a paper to this conference.