Gopal Sankaranarayanan IN THE PRACTICAL LAWYER
Cite as: (2010) PL (Con) February 21
The inconsistency in the law laid down by the highest court of the land is a cause for concern.
It is assumed that where democracy breathes, and a secure judiciary functions, all law would be unambiguous and non-retrospective. The security of knowing that his due diligence in ascertaining the present position of law will hold him in good stead is what protects a litigant.
Consider the instance of the Uttar Pradesh State Electricity Board, which appealed to the Supreme Court aggrieved by the decision of the High Court to regularise its daily-wage employees1. The Board, buoyed by the recently delivered judgment of the Constitution Bench in Umadevi case2, must have presumed that its task was an easy one. Distancing itself from the five-Judge decision in Umadevi (3) 3, the smaller Bench in U.P. SEB1 chose to limit that ruling to certain facts situations alone, and dismissed the Board’s appeal.
When this position came to the attention of a subsequent three-Judge Bench4, there was no hesitation in doubting the judgment in U.P. SEB1, and directing that the same be treated as obiter. Lamenting the lack of judicial discipline, the Court said as follows: (Dayanand case4, SCC p. 57, paras 901)
90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.
91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.
In support of its judgment, the Bench also cited the observations of Justice Sinha in State of U.P. v. Jeet S. Bisht5 wherein he had taken strong exception to his Brother Judge criticising earlier orders by previous Benches of the Supreme Court concerning the constitution of consumer forums in the petitioner State. Justice Sinha had said: (SCC p. 623, para 100)
One Bench of this Court, it is trite, does not sit in appeal over the other Bench particularly when it is a coordinate Bench. It is equally inappropriate for us to express total disagreement in the same matter as also in similar matters with the directions and observations made by the larger Bench. Doctrine of judicial restraint, in my opinion, applies even in this realm. We should not forget other doctrines which are equally developed viz. judicial discipline and respect for the Brother Judges.
In Naveen Kohli v. Neelu Kohli6 a three-Judge Bench had considered at some length the various facets of “irretrievable breakdown” of marriage, and how it was not a ground for divorce finding mention in the Hindu Marriage Act. Yet, as the facts at hand showed attempts to harass the spouse by not agreeing to a divorce, the Court concluded that the marriage had indeed irretrievably broken down, and that divorce was to be allowed. When an identical situation presented itself in Vishnu Dutt Sharma7 it was observed that: (SCC p. 384, para 10)
11. Learned counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent.
Apart from being inaccurate in stating that the earlier cases did not consider the legal position (which they did), the Court in Vishnu Dutt Sharma7 ignored the basic principle of stare decisis, and rejected the plea for divorce due to “irretrievable breakdown” through a judgment that was clearly per incuriam.
Again, the recent judgment in University of Kerala v. Council of Principals’ of Colleges8 questions the Supreme Court’s earlier order directing implementation of the Lyngdoh Committee’s Report concerning student activities in campuses across the country. Despite the fact that the Committee’s suggestions had been implemented in many institutions across the country and brought some discipline to student politics, the present judgment brings any further such measures to a premature end by raising issues of “judicial legislation” and the scope of Articles 141 and 142 to a Constitution Bench. Once again, stare decisis was ignored.
It is important, if our constitutional democracy is to survive, that judicial discipline provides the underpinning to a consistent and true judicial system. One can only hope that with the litigant public in mind, stare decisis will prevail.
- U.P. SEB v. Pooran Chandra Pandey, (2007) 11 SCC 92 : (2008) 1 SCC (L&S) 736.
- State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753.
- Official Liquidator v. Dayanand, (2008) 10 SCC 1 : (2009) 1 SCC (L&S) 943.
- (2007) 6 SCC 586.
- (2006) 4 SCC 558.
- Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379.
- (2010) 1 SCC 353.
Tarunabh Khaitan IN THE HINDU
The Prevention of Torture Bill fails to meet the minimum standards laid down in international law and betrays a contemptuous attitude towards Indian citizens.
Unless torture is inflicted for the purpose of extracting some information, the proposed law will refuse to take notice
A court can entertain a complaint under the proposed law only if it is made within six months of the date of the offence
The right against torture, quite uniquely, admits to no exceptions whatsoever under international and comparative law. In practice, however, it remains one of the most frequently violated rights. The Minister of State for Home recently introduced the Prevention of Torture Bill in Lok Sabha, in order “to provide punishment for torture inflicted by public servants”. The main intention behind the Bill is to enable India to ratify the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. With 146 ratifications in place, India’s continued failure to do so is a source of deep embarrassment and raises doubts over her claims to be a liberal democracy. Indeed, the chief motivation behind the Bill is to polish India’s international image rather than to protect her citizens from torture.
Clause 3 of the Bill defines “torture” as an intentional act which causes “grievous hurt” or “danger to life, limb or health”. Grievous hurt is defined under Section 320 of the Indian Penal Code to include extremely serious injuries such as permanent loss of eye or ear, emasculation, bone fractures, or hurt which causes severe and debilitating pain for twenty days or more. In other words, a very high threshold has been set for an act to qualify as “torture”.
Even the “danger to (mental or physical) health” provision is not very helpful. The term “danger” implies a certain level of seriousness, while mental and physical “health” has frequently been interpreted by courts in civil cases to only include medically recognised illnesses. Given the general rule that criminal laws are interpreted strictly, courts are likely to err on the side of the accused and demand a high threshold for “danger to health”. The “danger to health” standard must also be contrasted with the definition of “hurt” in the Indian Penal Code, which simply includes “bodily pain”. Similarly, Article 1(1) of the U.N. Convention defines “torture” as the intentional infliction of “severe pain or suffering, whether physical or mental”.
Most reasonable people would agree with the Convention that torture must be understood primarily in terms of the pain that it inflicts, rather than any long-term impact. But, the Bill is likely to be interpreted so that acts that cause severe pain without causing any lasting damage to a person’s health may not amount to torture. Thus, many cases of water-boarding, sexual assault, deprivation of food, water or sleep, whipping, rubbing chillies on sensitive body parts and other such barbaric acts readily condemned by most reasonable people may not amount to “torture” under the proposed Bill. As if this definitional ambiguity was not bad enough, the Bill is cynically silent on “other cruel, inhuman or degrading treatment or punishment”, whose prohibition is an essential requirement under the U.N. Convention.
To make matters worse, Clause 4 of the Bill lays down that even if an act qualifies as “torture”, it will be punishable only if it was committed “for the purpose of extorting … any confession or any information which may lead to the detection of an offence…; and on the ground of [a person's] religion, race, place of birth, residence, language, caste or community or any other ground…”. So, if a police officer breaks a few bones in order to intimidate a person, to extort money, to “teach her a lesson”, or for no reason whatsoever, he cannot be punished under this bizarre Bill. Unless torture is inflicted for the purpose of extracting some information, the proposed law will refuse to take notice.
But even if this was indeed the case, there is yet another condition to satisfy — the victim must, in addition, show that the torture was based on some form of discrimination. It is true that many people are routinely tortured in India merely for being Dalit, Muslim, tribal or hijra. But the correct response is the formula in the U.N. Convention, which prohibits torture “for any reason based on discrimination of any kind” as an independent, rather than an additional, ingredient of torture. Thus, the Bill only punishes those acts of torture which result in a very serious injury, were motivated by a desire to extract a confession or information, and were discriminatory. Nothing less would suffice.
The next hurdle in this obstacle race is Clause 5, which requires that a court can entertain a complaint only if it is made within six months of the date of the offence. Victims of torture tend to be vulnerable people, who often need a lot of time to overcome the physical and psychological trauma, find support, organise resources and gather courage to make the complaint. As a general rule, criminal laws tend to prescribe no time limits whatsoever, let alone one as short as six months.
Finally, Clause 6 prohibits a court from taking cognisance of a complaint without the ever-elusive prior sanction to prosecute from the government. The Bill might as well be headed “Impunity for Torturers Bill”, for it is not meant to bring any torturer to book. It is designed to save our government from criticism in the international community and preserve the facade of a rights-respecting liberal democracy. In reality, it fails to meet the minimum standards laid down in international law and betrays a contemptuous attitude towards Indian citizens. Rudyard Kipling said that the colonial government gave its subjects:
A time to squabble in court …
Jails — and Police to fight,
Justice — at length of days,
And Right — and Might in the Right.
This may well be true of democratic India.
(The writer is a Fellow in Law, Christ Church, Oxford.)
THE LINK OF THE ARTICLE IN THE HINDU : http://www.hindu.com/2010/05/19/stories/2010051957251300.htm