LAW RESOURCE INDIA

Is justice blind?

Posted in UNCATEGORIZED by NNLRJ INDIA on October 6, 2010

R.K. RAGHAVAN

The execution of a woman by the State of Virginia shows that the U.S. too is as ruthless as some other countries in enforcing capital punishment.

The fundamental question is whether any life can be deemed of no value whatsoever, capable of being legitimately snuffed out.

– A reader’s comment in The Washington Post (September 27) on the execution of Teresa Lewis of Virginia

ONE is generally sceptical of governments, both on what they do and on what they omit to do. Take, for instance, the initial stand taken by the Indian government in the matter of foodgrains rotting in warehouses, a callousness to which the Supreme Court took umbrage in firm language, or the messing up of the preparations for the Commonwealth Games by a host of stakeholders, including the Delhi government.

This negative perception of state institutions extends sometimes to judicial orders also. But nothing beats the insanity of what happened in the United States a few weeks ago, when the Governor of Virginia and the U.S. Supreme Court refused to intervene to stay the execution, on September 23, of a 41-year-old woman accused of murdering her husband and stepson. It is painful that they shied away from taking a humane stand despite the authority and latitude they enjoy and the vociferous protests from death sentence-abolitionists. By all standards of civilisational progress, a death sentence is obnoxious in itself. It is even more so when the state takes the life of a woman.

Some fundamental statistics highlight how the execution of Teresa Lewis was unusual, if not unprecedented. Hers was the first execution of a woman in a century in Virginia, and the first for the whole country in five years. Also, of the nearly 1,200 persons awarded capital punishment in the country since 1976, when the U.S. Supreme Court restored the penalty, only 11 have been women. Against this backdrop, what has been reported from Virginia has rightly earned negative publicity for the whole U.S. criminal justice system. This should also invite world attention to the fact that when it comes to ruthlessness in enforcing capital punishment, the U.S. is in the same league as China, Iran, Saudi Arabia, Pakistan, Congo, Egypt and Iraq. Certainly, this is not the company the U.S. would like to keep.

The facts of the case are simple. Teresa Lewis was married for the second time to Julian (51), who had a 25-year-old stepson. It is not clear how well the marriage was working out. But it is believed that somewhere along the line, Teresa, who had a known learning disability, set her eyes on her husband’s estate and the insurance on his son’s life. In order to appropriate both, she entered into a criminal pact with two men of questionable background, Matthew Shallenberger and Rodney Fuller.

The exact terms of this partnership were in doubt, but the fact that Teresa had a liaison with Shallenberger added spice to the unholy alliance. On the night of October 30, 2002, Teresa left the door of her house unlocked to facilitate the entry of the two men and their shooting down of the father and son. During the police investigation, Teresa initially took the plea that the murders were the work of an intruder, but wilted subsequently under some tough questioning and admitted to her horrendous crime. This led to the arrest of her accomplices as well.

The trial was without a jury because under Virginia law when a defendant confesses to his or her crime, the judge can dispense with it. On Fuller’s confession and agreement to cooperate with the prosecution, he was awarded a life sentence. Taking the cue from this and considering the fact that the trial judge had never awarded a death sentence, Teresa also pleaded guilty, hoping to receive just a life imprisonment.

Much to her shock, however, the death penalty was imposed on her. Shallenberger, like Fuller, was also given only a life term. This caused many eyebrows to raise in the legal fraternity. It was a matter of surprise that while the actual perpetrators got only a life sentence, the person who only facilitated it was awarded capital punishment.

Justifying this differential, the trial judge said Teresa was the “head of the serpent”, and did not deserve any sympathy also because she did not do anything to assist her husband who was struggling for his life in her presence. He added that she was guilty of greed in ordering the “cold blooded, pitiless slaying of two men, horrible and inhumane”, something that “fits the definition of the outrageous or wantonly vile, horrible, act”.

The judge was also not impressed with the findings of a forensic psychiatrist who examined Teresa before she entered her guilty plea. The psychiatrist found her Full Scale IQ to be 72, which put her on the borderline. A score of 70 or less would have given her the benefit of mental incompetence to commit the said crime.

After the rejection of her mercy plea by the Virginia Governor, who went by the decision of the trial court and other reviewing courts in the State, Teresa’s lawyers went in appeal to the Supreme Court. In doing so, they cited the results of two separate IQ tests Teresa took after her sentencing by the trial court. These were conducted by her own expert and one working for the State. She obtained ratings of 73 and 70 respectively. A score below 70 would have enabled her to be regarded as mentally retarded. Also cited were Teresa’s contrition and her exemplary behaviour in prison.

The defence further referred to a letter Shallenberger wrote to a fellow prisoner, in which he referred to how susceptible Teresa was to his manipulation in conspiring to plan the murders. (The letter could not, however, be produced by the defence lawyers before the Supreme Court because Shallenberger committed suicide while in prison.) None of these arguments influenced the Supreme Court, which upheld the conviction and death sentence. Interestingly, of the three women judges in the court, two dissented and desired a halt to the execution.

The execution of Teresa Lewis has generated a huge controversy. One of the first to jump into the fray was Iranian President Mahmoud Ahmadinejad, who accused the U.S. of practising double standards. His reference was to the U.S. criticism, earlier this year, of the sentencing to death by stoning of Sakineh Mohammadi Ashtiani by an Iranian court, which, fortunately, is yet to be carried out.

Also joining the chorus of protest was the famous crime novelist John Grisham, according to whom the criminal law and procedure in Virginia reeked of inconsistencies that contributed to the unfairness to Teresa. Writing for The Washington Post (September 12) pleading for clemency for Teresa, he said:

“There have been other cases with similar facts – a wife and her lover scheme to kill her husband for his money or for life insurance proceeds. But there is no precedent for the wife being sentenced to death.”

I cannot agree more with Grisham that Teresa deserved to live, although that could be inside prison. I am more concerned about the very barbarity of capital punishment and totally in sync with what The Times, London, said (September 25) on Teresa’s execution: “…it is never justifiable to execute a citizen with the authority of the State. There is inadequate evidence that capital punishment acts as a deterrent. It is an irreversible act that ignores the risk of a miscarriage of justice. No room is allowed for repentance or correction. And by sanctioning such an act, society diminishes itself.”

The Times’ arguments are the same advanced ad nauseam all over the world by persons who want to make a difference to the world they live in. This is why I would again ask the readers, as I have done a number of times before and in various forums, to ponder the inequity of capital punishment and build strong public opinion that will eventually persuade policymakers to remove the penalty from the statute books.

Fortunately, the courts in India are extremely judicious and selective in the matter, and there are just a few executions every year. But this is no reason why we should persist with this cruelty that does not square with what the Father of the Nation stood for: compassion and charity. Bereft of these components, a criminal justice system is both lame and blind.

Open to scrutiny

Posted in CORRUPTION, GOVERNANCE, RTI by NNLRJ INDIA on October 6, 2010
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V. VENKATESAN  IN FRONTLINE

A landmark ruling by the Central Information Commission raises hopes that government functioning will become more transparent.

ON August 30, a three-member Bench of the Central Information Commission (CIC), New Delhi, gave a ruling that has the potential to bring under public scrutiny crucial aspects of the functioning of the Central and State governments that have remained hidden from the public glare all these years. The Bench, comprising Chief Information Commissioner Wajahat Habibullah and Information Commissioners Satyananda Mishra and Deepak Sandhu, did this disposing of a complaint from Venkatesh Nayak of the Commonwealth Human Rights Initiative, New Delhi, against the Department of Personnel and Training (DoPT), Government of India.

The CIC held that exemption under Section 8(1) (i) of the Right to Information Act (RTI) would not apply to deliberations leading to the formulation of a policy framework until such time as the draft was submitted to the Cabinet Secretariat, with all its necessary attachments for submission to the Cabinet. Thus when a Cabinet note is finally approved for submission to the Cabinet through the Cabinet Secretariat, Section 8(1) (i) will apply. Once approved by the Cabinet, it will also qualify for exemption under Section 8(1) (c). The CIC also recommended that the Cabinet Secretariat consider amending its circular issued in 2002 to allow for public consultation in an appropriate form.

Under Section 8(1) (c), the governments are exempted from giving information, the disclosure of which would cause a breach of privilege of Parliament or the State legislature. Under Section 8(1) (i), there is no obligation to give any citizen Cabinet papers, including records of deliberations of the Council of Ministers and Secretaries and other officers. This section has a proviso which says that the decisions of the Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken and the matter is complete. Another proviso says that those matters that come under the exemptions specified in this section shall not be disclosed.

In March, Nayak requested the DoPT to place the draft Public Interest Disclosure and Protection of Informers (PIDPI – as the whistle-blower Bill was then called) Bill on its website. When the DoPT did not respond, he complained to the CIC against its failure to disclose proactively the contents of the Bill as required under the RTI Act. When the CIC heard his complaint on August 3, the Bill was already a part of the Cabinet note submitted to the Cabinet Secretariat by the Department. The Department took the stand that it would place the Bill on the website after the Cabinet decision and its introduction in Parliament, and until that time the government could not be said to have any policy in this matter that would warrant public disclosure.

The CIC rejected Nayak’s complaint on August 3, as under the RTI Act the government is not bound to disclose information relating to Cabinet papers. But it constituted a three-member Bench to decide the question whether the government could refuse to disclose proactively draft Bills. This Bench heard the case on August 20 and gave its decision on August 30.

The process of legislation involves a number of steps, including consultation with the public. Although Members of Parliament act as lawmakers and have the legitimacy to enact laws through Parliament, their ability to influence the law-making exercise is greatly limited in practice. It is the governments that prepare and introduce Bills in Parliament and State legislatures which eventually get enacted. Members, in their individual capacity, can introduce private members’ Bills, but these usually do not see the light of day in the absence of government support.

Government Bills are often rushed through with members spending less and less time discussing them because of time and other constraints. Bills are referred to standing committees for detailed examination and report, but the media are barred from reporting the proceedings of these committees, with the result that the cloak of secrecy over these Bills is ensured right from the drafting stage to their eventual enactment. No doubt, Bills are in the public domain after they are introduced in Parliament or State legislatures and the public is free to discuss them. But this phase cannot be construed as offering space for public consultation, as public opinion cannot hope to influence the government to make the required changes in the Bills once they are introduced in Parliament or the State legislatures.

The degree of public consultation over the draft Bills prepared by the government, therefore, is indicative of the government’s preparedness to democratise the law-making exercise. On this, the attitudes of the governments at the Centre and in the States have not been consistent. The Central government, for instance, permits certain draft Bills to be placed in the public domain to invite suggestions and comments. But certain departments of the government do not believe in this transparency. They take shelter under Sections 8(1) (c) and 8(1) (i) of the RTI.

Proactive disclosure

Nayak’s complaint against the DoPT has to be understood in the context of his similar complaint against the Delhi government, which Information Commissioner Shailesh Gandhi had disposed of on July 7. In this complaint, Nayak had sought proactive disclosure, under Section 4 (1) (c) of the RTI Act, of the contents of the draft Delhi Police (Amendment) Bill, 2010, prepared by the Government of the National Capital Territory of Delhi. When the government ignored his plea, he filed a complaint with the CIC. Following the complaint, the Delhi government placed the Bill on its website, and invited comments from the public.

In his decision, Shailesh Gandhi said: “The citizens individually are the sovereigns of the democracy and they delegate their powers in the legislature. The RTI Act has recognised this and Section 4(1) (c) is meant to ensure that the citizens would be kept informed about proposals for significant legislative and policy changes.” The CIC directed the Chief Secretary of the Delhi government to develop a credible mechanism in all departments for proactive and timely disclosure of draft legislation/policies and amendments thereto or to existing laws/policies in the public domain, during the process of their formulation and before their finalisation.

The government introduced the whistle-blower Bill on August 26, while the Cabinet approved it on August 9. It claimed before the CIC that the Cabinet note annexing the draft Bill had been approved for submission to the Cabinet on August 2. This means that the government ought to have placed the draft Bill on the DoPT’s website anytime before August 2, inviting comments from the public, as the draft Bill was being formulated.

Although the CIC’s decision does not go into it, opinions differ on whether the governments can legitimately refuse to share the contents of a draft Bill, submitted for Cabinet’s approval, until it is introduced in Parliament or in a State legislature. A draft Bill could only be an annexure to a Cabinet note. If the same Bill is already in the public domain by virtue of the requirements of proactive disclosure, the same cannot be withdrawn once it forms part of the Cabinet note. Both Nayak and Satyananda Mishra had agreed during the August 20 hearing that parliamentary privileges – which have not been codified so far – could not be the grounds for denying information about a draft Bill, but Habibullah felt parliamentary privilege would be violated if the government shared the contents of a Bill that had been approved by the Cabinet but was yet to be introduced in Parliament. This perhaps explains why the August 30 decision is silent on the question of parliamentary privilege being the grounds for not disclosing Bills approved by the Cabinet.

Nayak is optimistic. He said: “We await the government’s reaction to these decisions at the systemic level. We hope the Central government will not appeal against these decisions in the Delhi High Court as no public interest is negatived by the disclosure of draft Bills. The DoPT must issue office memoranda instructing all Ministries to create mechanisms for public consultation on draft Bills before they are finalised for introduction in Parliament.

The RTI users and activists in the States could use these decisions to get their State Information Commissions to rule in favour of the disclosure of draft legislation before it is tabled in the legislature or draft rules before they are gazetted. Democracies, despite being largely representative in form, cannot shy away from public consultation.”

http://www.frontline.in/fl2721/stories/20101022272108200.htm

Delays in filing appeals: Court notice to all Chief Secretaries

Posted in UNCATEGORIZED by NNLRJ INDIA on October 6, 2010

J. Venkatesanin The HINDU

“This racket has been going on for a long time,” says Supreme Court


“Appeals are filed after a long time to get them dismissed on the ground of delay” It is high time this malpractice is severely rooted out, says Bench


New Delhi: Taking a serious view of the inordinate delay in filing appeals by the officials, sometimes in connivance with the parties concerned, the Supreme Court has issued notice to the Chief Secretaries of all the States/Union Territories with a view to evolving a mechanism to curb the delay.

A Bench of Justices Markandey Katju and T.S. Thakur in an interim order said: “It appears that cases are coming up before this court and probably before the High Courts also, where appeals or writ petitions are filed after inordinate delay and an explanation is sought to be given in the application for condonation of delay in such cases filed by the government or the State authorities that the file was moved from one desk to another or the approval was sought from the higher authority which took considerable time.”

The Bench said: “We feel that the beneficiary of the judgment may be hand-in-glove with the officials in the government department who deal with the files, and files are suppressed for a long period, and then the appeal before the High Court or Supreme Court is filed after a long delay to get the appeal dismissed on the ground of delay. Huge amounts of public money or public property may be involved and the government will be the loser on the technical point of limitation in such cases.”

Expressing concern, the Bench said: “This racket has been going on for a long time not only before the Supreme Court but also before the High Courts. Now the time has come that this racket is ended and the officials responsible given severe punishment.”

“Regular feature”

The Bench which was dealing with an appeal filed by the State of Jharkhand said: “This practice is often adopted by officials of various State governments and has become a regular feature. The explanation usually given for the delay is the red tape in government offices. It is high time that this malpractice is severely rooted out and an effectual mechanism adopted all over the country so that such delays do not occur in future.”

The Bench directed that notice be issued to the Chief Secretaries of all States so that effective action might be taken in this regard. The Chief Secretary of Jharkhand was directed to explain what action had been taken against the officials concerned for causing the delay in filing the present appeal. The Bench listed the matter for further hearing on November 8 and asked Solicitor-General Gopal Subramaniam to render assistance in this matter.

Source : http://www.hindu.com/2010/10/06/stories/2010100659960600.htm

Cabinet nod for judicial accountability bill

Posted in JUDICIAL REFORMS, JUDICIARY by NNLRJ INDIA on October 6, 2010

The Union Cabinet today approved ‘The Judicial Standards and Accountability Bill, 2010” and its introduction in the Parliament.

The Bill provides a mechanism for enquiring into complaints against the Judges of the Supreme Court and the High Courts, lays down judicial standards and requires the Judges of the Supreme Court and the High Courts to declare their assets and liabilities. The Bill seeks to replace the Judges (Inquiry) Act, 1968 while retaining its basic features. The enactment of the Bill will address the growing concerns regarding the need to ensure greater accountability of the higher judiciary by bringing in more transparency and would further strengthen the credibility and independence of the judiciary.

Background :

At present there is no legal provision for dealing with complaints filed by the public against the Judges of the Supreme Court and the High Courts. Also, the judiciary has adopted resolutions for declaration of assets by Judges and “Restatement of values of Judicial Life’. However, there is no law that requires the Judges of the Supreme Court and the High Courts to declare their assets and liabilities and also there is no statutory sanction for judicial standards.

http://pib.nic.in/release/release.asp?relid=66187

Cabinet nod for judicial accountability bill

Posted in CORRUPTION, JUDICIAL REFORMS, JUDICIARY by NNLRJ INDIA on October 6, 2010

P.Sunderarajan & J.Venkatesan In The Hindu

Public can lodge complaints against judges with a national oversight committee


The bill will mandate judges to declare assets and liabilities . Oversight committee to be headed by a retired Chief Justice of India


NEW DELHI: The Union Cabinet on Tuesday approved a bill providing for a mechanism to deal with complaints against judges of the High Courts and the Supreme Court. The Judicial Standards and Accountability Bill sets judicial standards and makes judges accountable for their lapses. It will also mandate the judges of the High Courts and the Supreme Court to declare their assets and liabilities, including those of their spouses and dependents.

The bill to replace the Judges Inquiry Act retains its basic features, contemplates setting up of a national oversight committee with which the public can lodge complaints against erring judges, including the Chief Justice of India and the Chief Justices of the High Courts. At present, there is no legal mechanism for dealing with complaints against judges, who are governed by ‘Restatement of Values of Judicial Life,’ adopted by the judiciary as a code of conduct without any statutory sanction.

The five-member committee will be headed by a retired Chief Justice of India, appointed by the President, and have a serving Judge of the Supreme Court and a serving High Court Judge, both nominated by the Chief Justice of India; the Attorney-General; and an eminent person nominated by the President. This marks a change from the earlier proposal, in which the committee was to be headed by the Vice-President and to have the Chief Justice of India, a High Court judge and two distinguished jurists not involved in regular practice of law.

On receiving a complaint, the committee will forward it to a system of scrutiny panels. In the case of a complaint against a Supreme Court Judge, the scrutiny panel will consist of a former Chief Justice of India and two sitting Supreme Court judges, and in the case of a complaint against a High Court judge, the panel will have a former Chief Justice of the High Court and two of its sitting judges. The members of the Supreme Court panel will be nominated by the Chief Justice of India, and that of the High Court panels by the Chief Justice of the High Court concerned.

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

The scrutiny panels will have the powers of a civil court. For instance, they can call for witnesses and evidences. They will be required to give their report within three months to the oversight committee. In the case of a complaint against a Chief Justice, the oversight committee itself will conduct the scrutiny. On receiving the report from the scrutiny panels, the oversight committee will set up a committee to further investigate the case. Like the scrutiny panels, the investigation committee will have the powers of a civil court; it will have the power to frame definite charges. If the charges are not proved, the investigation committee can dismiss the case. Otherwise, it will give a report to the oversight committee, which can issue an advisory or warning if the charges are not too serious. If the charges are serious, the committee can request the judge concerned to resign. If the judge does not do so, the oversight committee will forward the case to the President with an advisory for his removal.

In such an event, copies of all relevant documents will be laid in Parliament and an impeachment motion moved. In the Lok Sabha, not less than 100 members will be required to move the motion, and in the Rajya Sabha not less than 50 members will be needed. Official sources said that besides declaring their assets, judges would be required to file an annual return of assets and liabilities. All the details would be put up on the websites of the Supreme Court and the High Courts. The bill will also require the judges not to have close association with any member of the Bar, especially those who practise in the same court.

http://www.hindu.com/2010/10/06/stories/2010100664441200.htm

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