JUSTICE A P SHAH (Retd.) IN THE HINDU
The object of placing the power of judicial appointments in an independent body is to remove patronage from the system and ensure that judges are appointed only on the basis of their qualifications.
The present system of judicial appointments in the constitutional courts exemplifies the misalignment between the core values of judicial independence and accountability. The process by which a judge is appointed to the High Court or the Supreme Court has been described by Justice Ruma Pal, a former judge of the Supreme Court, as “one of the best kept secrets in this country.”
The text of the Constitution that provides for the appointment of the judges of the Supreme Court (Article 124) and the High Court (Article 217) is deceptively simple. They provide for the President to appoint them in “consultation” with other judges. Originally, the power to appoint judges vested ultimately in the executive. It is now with the Chief Justice and the senior judges of the court, i.e. the Collegium. It is unnecessary to trace the evolving jurisprudence of the Supreme Court regarding the issue of judicial appointments beyond this. Suffice it to say, that in the last of the famous trinity of the Judges Cases, the Supreme Court changed the character of “consultation” to “concurrence”. As Anil Divan pithily points out, the Judges Cases have not really broken the mystique behind the “Sacred Ritual” of appointments — they have only changed the circle of “High Priests.” Now, instead of the executive, primacy is given to the CJI and the Collegium of Judges. The way in which judges are appointed embodies a set of values about democracy. Choosing judges based on undisclosed criterion in largely unknown circumstances reflects an increasing democratic deficit.
The recent case of the impeachment motion of Soumitra Sen, former judge of the Calcutta High Court, once again highlighted the need to have a relook at the process of appointment. The unanimous voice of Parliament, while considering the impeachment motion of Sen, was that there was now a greater need for a National Judicial Commission than ever before. The legislators were, in fact, only echoing the view that has time and again been stressed upon by various legal luminaries and jurists.
The rationale for the establishment of a commission must be that it will guarantee the independence of the system from inappropriate politicisation, strengthen the quality of appointments, enhance the fairness of the selection process, promote diversity in the composition of the judiciary and therefore rebuild public confidence in the system. By placing the power of judicial appointments in an independent body, the object is to remove patronage from the system and ensure that the judges are appointed on the basis of their qualifications for the job rather than anything else.
It is here that we can learn from systems elsewhere which have managed to provide for a transparent process of appointment, while maintaining judicial independence. International consensus seems to favour appointments to the higher judiciary through an independent commission.
Form of the commission
A key question is whether the new body should be appointing (The Israel Judicial Commission is the only appointing Commission) or recommending commission. The former in which the commission takes over the full responsibility for making appointments, removes the danger of inappropriate influence by politicians but also weakens democratic accountability and lacks a potential check on abuse, corruption or incompetence on the part of the commission. These advantages and disadvantages are reversed under a recommending commission. Therefore, there is need to adopt a hybrid model where the Commission makes a recommendation, which should be ordinarily binding. The recommendation may be rejected only in cases where the candidate is disqualified or in cases where the procedure adopted by the Commission is legally flawed. The reasons for such rejection must also be recorded in each case.
The example of the U.K. may be taken where the Constitutional Reforms Act, 2005 has established a Judicial Appointments Commission (JAC) with one Chairperson and 14 other Commissioners, including five judicial members, one barrister, one solicitor, five lay members, one tribunal chairman and one lay judge. The Chairperson and 12 Commissioners are appointed through open competition, while the other three are selected by the Judge’s Council.
In South Africa, the establishment of the Judicial Service Commission (JSC) has attracted much attention for the way it has made the appointments process more independent. Its 23 members are drawn from the judiciary, the two branches of the legal profession, the national and regional legislatures, the executive, civil society and academia. The entire process of appointment is geared towards securing maximum transparency.
The nine-member Commission that selects judges for all levels of courts in Israel consists of the President of the Supreme Court, two other Supreme Court judges, the Minister of Justice (Attorney General), another Cabinet Minister, two members of the Legislature (one of whom has traditionally been selected from the opposite ranks) and two representatives of the Israeli Bar.
In India, it would be more prudent to follow the U.K. model where politicians are kept out of the Judicial Appointment Commission. The Judicial Commission should not be a very large body, containing not more than 7 or 9 members. The Commission should consist of representation from the Judiciary, the Bar, eminent members of civil society (who should be appointed by a high powered body, for example presided over by the Vice President, the Prime Minister, the Chief Justice of India, the Law Minister and the Leader of the Opposition).
An equally important feature of public accountability is institutional and procedural openness. The requirement of openness is particularly important in the judicial appointment process, because a recurring criticism of the old system was the high level of secrecy within which the selection process functioned. The extent to which the Commission operates transparent procedures is therefore a critical test of its legitimacy.
Transparency & openness
To give an example, the Commission in South Africa has made efforts to ensure that the process by which candidates are selected for interview is as open as possible. The statutory provisions provide that when a vacancy arises, the Commission must advertise the post and seek nomination from a wide variety of sources. The names of candidates short-listed for interview by a screening sub-committee are made public and the views of relevant institutions (among them, the Law Society of South Africa, the General Council of the Bar and the Department of Justice) on their suitability are canvassed by the Commission.
On the other hand, the system of public interviews was opposed by pointing towards the example of the United States Senate Judiciary Committee confirmation hearing as demonstrating the danger which public interviews posed since the same could degenerate into personalised attacks on the candidates, and such demonstrations, far from increasing legitimacy, would undermine public confidence. The system was further opposed by stating that leading members of the Bar would be discouraged from coming forward if the meetings were made public.
However, public interviews may not be a plausible model for a country like India and therefore should not be introduced here. We should follow the U.K. model and should publish the Annual Judicial report and the names of the selected candidates should be posted on the website.
Merit and diversity
There is no gainsaying that there is a need to preserve and of course, if possible, to improve the professional and personal quality of our judiciary and therefore, merit should be given great primacy. Yet, it is equally important to consider the importance of social diversification in public institutions and the need to include hitherto under-represented groups for a more holistic advancement of all sections of society. A wider range of social backgrounds should mean not just representation from the backward classes and the minorities but also women. This underlying policy aim is perfectly respectable, namely that the public may well have more confidence in its judges if they are more reflective of the make-up of the community at large.
Tackling this lack of diversity in the judiciary will require fresh approaches and a major re-engineering of the process of appointment. Diversity is likely to be achieved only if equal opportunities are placed at the heart of the judicial appointments process and are promoted through sustained and proactive initiatives. One such example comes from Ontario, where one of the first actions of the newly established Judicial Appointments Advisory Committee in 1990 was to ask the Attorney-General to write a personal letter to 1,200 senior women lawyers in the province asking them to apply for judicial office. This conscious and innovative attempt to expand the number of workmen in the recruitment pool produced such a marked increase in the number of applications from well qualified women that between 1990 and 1992, 41 per cent of the judges appointed by the Judicial Appointments Advisory Committee were women.
The outcome of the reforms would depend on the way in which the commission is set up and the model adopted. The detail of the commission must be thought through with great care. Issues such as the division of responsibility between the commission and the appointing Minister, composition of the membership and the process for selecting the commissioners themselves are key factors in determining the success of the new system.
(Ajit Prakash Shah is the former Chief Justice of the High Courts of Delhi and Madras. )
Infestation, in’fes•ta’tion n. the state of being invaded or overrun by pests or parasites. Do people inhabit the lands and forests that they have been living in for thousands of years or do they infest them? The answer to this no-brainer of a question might well lie at the root of the problem being faced by the Jarawas in the Andaman Islands today. The video showing the Jarawa women dancing on the Andaman Trunk Road, apparently for food, is just the latest manifestation of a malaise that is so deep that one might well argue that there is no hope for the Jarawa.
In 1965, the Ministry of Rehabilitation, Government of India, published an important document related to the Andaman & Nicobar Islands: ‘The Report by the Inter Departmental Team on Accelerated Development Programme for A&N Islands.’ The contents of the report and their purpose were evident in the title itself — it laid out the roadmap for the development of these islands and set the stage for what was to happen over the decades that have followed.
This little known report of less than a 100 pages in size is remarkable for the insight it provides into the thinking and the mindset of the times. There is what one might call a shocker on every page of this document and here is a just a sampling:
Page 26: …The Jarawas have been uniformly hostile to all outsiders with the result that about half the Middle Andaman is treated as a Jarawa infested (emphasis added) area which is difficult for any outsider to venture… With the present road construction and the colonisation of the forest fringes, friction has become more frequent, and no month passes without a case of attack by the Jarawas.
Page 69: The completion of the Great Andaman Trunk Road would go a long way to help in the extraction of forest produces…
A nation that had just fought its way out of the ignominy of being a colony was well on the way to becoming a coloniser itself. And those that came in the way could only be pests or parasites infesting the forests that had valuable resources locked away from productive use.
It is also pertinent to note here that in 1957 itself, more than a 1000 sq. km of these “Jarawa infested” forests of South and Middle Andaman had already been declared protected as a Jarawa Tribal Reserve under the provisions of the Andaman and Nicobar Protection of Aboriginal Tribes Regulation (ANPATR) — 1956. The 1965 report was in complete violation, or was a result of complete ignorance of this legal protection to the Jarawa and the forests that they have inhabited for thousands of years.
The seeds that were sown then have bloomed into myriad noxious weeds today and if one knows this history, the latest video that has generated so much heat is not in the bit surprising. Much space in the media, both print and electronic, has been occupied in the last few days by a range of claims and counter claims — about the date of the video, about the police involvement in its making, the role of tour operators and about fixing blame and responsibility. A little known fact that lies at the root of the issue has been all but forgotten — the existence of the Andaman Trunk Road, where this infamous video was shot about three years ago. The Andaman Trunk Road that the 1965 report offered as a good way of extracting resources from the forests of the Jarawa had been ordered shut by a Supreme Court order of 2002.
It’s been a decade now and in what can only be called audacious defiance, the administration of this little Union Territory has wilfully violated orders of the highest court of the land. A series of administrators have come and gone but contempt for the Supreme Court remains.
Whenever asked about the order, the administration has tried to hide behind technicalities of interpreting the court order and arguing that the court had never ordered the road shut in the first place. They forget that in March 2003, a few months after the SC orders had been passed, they had themselves filed an affidavit with a plea to “permit the use/movement through the Andaman Trunk Road.” If it was not ordered shut, why the plea to keep it open? A few months later, in July 2003, the Supreme Court appointed Central Empowered Committee reiterated explicitly that the court orders include those for the closure of the ATR in those parts where it runs through the forests of the Jarawa Tribal Reserve. The A&N administration has clearly violated the court’s order both in letter and in spirit.
It is a spirit that was evocatively articulated by Dr. R.K. Bhattacharchaya, former Director of the Anthropological Survey of India, in a report he submitted to the Calcutta High Court in 2004. “The ATR”, he said, “is like a public thoroughfare through a private courtyard… In the whole of human history, we find that the dominant group for their own advantage has always won over the minorities, not always paying attention to the issue of ethics. Closure of the ATR would perhaps be the first gesture of goodwill on part of the dominant towards an acutely marginalized group almost on the verge of extinction”.
The video in all its perversity offers us another opportunity, when all others in the past have been brushed aside either due to ignorance, arrogance or then sheer apathy. It’s still not too late to make that ‘gesture of goodwill’ because otherwise there will be many more such videos down the years and much worse will follow. The lessons from history are very clear on this. And it will hardly be a consolation that a few people will be left saying we told you so.
(The writer is associated with Kalpavriksh, one of the three NGOs whose petition before the Supreme Court resulted in orders for the closure of the Andaman Trunk Road in 2002. He is also the author of Troubled Islands — Writings on the indigenous peoples and environment of the A&N Islands.)
- India orders crackdown on ‘human safaris’ in the Andaman Islands (guardian.co.uk)
- Andaman Islands tour operator faces arrest over ‘human safari’ (guardian.co.uk)
- Andaman Islands tribe threatened by lure of mass tourism (guardian.co.uk)
- Jarawa Tribal Women: Authorities Order ‘Human Safari’ Tour Operator’s Arrest [VIDEO] (ibtimes.com)
- Jarawa Tribe of Andaman & Pan – Indian Mentality (mevidur.wordpress.com)
DHANANJAY MAHAPATRA IN THE TIMES OF INDIA
NEW DELHI: The Supreme Court on Thursday said pendency of 3 crore cases could not be effectively dealt with unless the government created more courts and filled vacancies because annual disposal of cases by trial courts, high courts and the Supreme Court only matched the numbers filed every year, leaving the backlog untouched.
If a bench of Justices A K Ganguly and T S Thakur questioned additional solicitor general Harin Raval on the Centre‘s policy decisions on judicial reforms including speeding up of justice delivery, another bench of Justices A K Patnaik and Swatanter Kumar was critical of the UPA government’s decision to scrap fast-track courts.
The bench of Justices Ganguly and Thakur accepted Raval’s contention that it would be a mismatch if the government was asked to create more posts of judges when a large number of such posts was lying vacant.
But it wanted to know from the ASG whether any of the policy decisions intended to create more courts in view of a finding that the country would require 75,000 more trial judges in the next three decades.
It asked the Centre to refer to the Law Commission, which is doing a comprehensive study in this regard, to include in its terms of reference the need for increasing the number of courts and ways and means to deal with the vacancy problem.
On the other hand, amicus curiae and senior advocate P S Narasimha drew the attention of a bench of Justices Patnaik and Kumar to the scrapping of fast-track courts from March 31, 2011.
The bench said during the All India Conference of Chief Justices and Chief Ministers, there was unanimity that FTCs had played a constructive role in reducing arrears and should be continued.
It looked into the law ministry’s file relating to discontinuation of these courts and found that a decision had been taken to run morning and evening courts in place of fast-track courts. Narasimha said whenever there was an attempt to hinder speedy justice, constitutional courts had inherent power to take necessary corrective measures to ensure financial grants to sustain existing justice delivery system. The bench reserved verdict on the issue.
V. VENKATESAN IN THE FRONTLINE
TEHMTAN R. ANDHYARUJINA, a Senior Advocate in the Supreme Court of India, faced a lot of criticism from his colleagues, especially Soli J. Sorabjee, who was a junior to Nani Palkhivala during the hearing of the Kesavananda case, that his latest book, The Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy by Supreme Court and Parliament, was a wasted effort. The former Solicitor-General took the flak in his stride, saying, “The purpose of my book is only to give a historical account of how the basic structure doctrine came to be established in our constitutional law.” Excerpts from an interview he gave Frontline:
Your book suggests that the inviolability of the basic structure doctrine was a dubious view of the majority of the Kesavananda Bench. What should have been the ratio of that judgment?
Extracting the ratio from the 11 judgments should have been the task of either the 13-judge Bench or a subsequent Bench. It is difficult to say what would have been the ratio on a proper judicial exercise. Had that exercise been done, there may not have been a majority holding that there is a limitation of the basic structure of the Constitution in amending the Constitution. There was no majority for any implied limitation on the amending power as Justice [H.R.] Khanna had rejected the implied limitations on the Constitution. What would have been extracted as the ratio of the Kesavananda case by a later Bench is a matter of speculation. This difficult exercise was purposely avoided by Chief Justice [S.M.] Sikri when he created the so-called View by the Majority note and passed it around for signatures of the judges on April 24, 1973.
In the concluding chapter, you concede that the basic structure doctrine is so deeply enshrined in our constitutional law that it would not be shaken even by the knowledge of the process by which it came to be formulated. What then is the purpose of the book, if it is not to make readers question that long-held belief?
It is correct that the basic structure theory has become an axiom of our constitutional law and one cannot imagine any Bench of the Supreme Court annulling that theory. It is also true that for whatever reason and method the majority view was arrived at, the axiom of unamendability of the basic structure of the Constitution has had a salutary check and control on the amending power. The purpose of my book is only to give a historical account of how the basic structure doctrine came to be established in our constitutional law. After this case, Parliament and the government gained by different approaches on its social and economic policies, which the court did not interfere with merely because some fundamental right was perceived to be violated. In that sense, the judgment served a useful purpose to society.
Can you explain how the then government sought to appoint judges before the hearing of the case?
After the Golaknath case, the government took a predominant role in the appointment process. By and large the new government nominees, though men of eminence and distinction, decided in favour of the unlimited power of Parliament except Justice A.K. Mukherjea. After Golaknath, the initiative came from the government. Justice Sikri was initially reluctant to appoint Justices [M.H.] Beg and [S.N.] Dwivedi. The government prevailed upon him. He selected Justice Khanna. The government accepted it. The relations between Justice Sikri and Indira Gandhi were also strained.
Justice Sikri had to choose 13 out of the then total strength of 15 judges to hear the Kesavananda case [the earlier relevant case, Golaknath, was decided by 11 judges and the Kesavananda Bench had to be bigger than that]. There were just two remaining judges who did not have a long tenure: Justice [V.] Alagirisamy and Justice Inder Dev Dua. But their tenure could have been extended in the form of ad hoc judges [and could have been chosen to be part of the Kesavananda Bench to replace Justices Sikri and J.M. Shelat]. The general practice is when your view is being reviewed, propriety requires that you recuse yourself from the Bench. But nobody raised objections [against Justices Sikri and Shelat being on the Kesavananda Bench because they were earlier part of the majority judges on the Golaknath Bench].
You mention that there was a move to exclude Justice Beg, a pro-government judge, from the Bench after 66 days of hearing on his hospitalisation. Who was behind this move?
It is unfortunate that a strong attempt was made by the petitioners and the CJI [Chief Justice of India] to exclude him on his third and last illness. His exclusion would not have changed the number of the majority, as the majority would have still prevailed with 7:5 instead of 7:6. In a case with such political overtones, the [likely] exclusion of Justice Beg at the last moment created tensions. It was felt that if the case was adjourned for the return of Justice Beg, the case would have prolonged beyond the retirement of CJI Sikri and the whole effort of the 13-judge Bench would have come to naught. Therefore, the petitioners and the CJI wanted to drop Justice Beg from the Bench and proceed as if there were 12 judges. The illness of Justice Beg at the crucial moment was interpreted as some sort of a game plan of the government to put an end to the case. The petitioners believed that it was a move to favour the government. As a result, Justice Beg was retained on the Bench, with Palkhivala being asked to give written submissions. It was a serious illness, but the question was whether his illness would go beyond the tenure of Justice Sikri.
The Attorney-General had threatened to walk out if Justice Beg was dropped. [Justice H.M.] Seervai supported him. Without one judge on the Bench, the legitimacy of the judgment would have come into question. Palkhivala, therefore, submitted to the government’s wish, and agreed to close his oral arguments on the 66th day.
By signing the View by the Majority note, did the neutral judges not apply their minds? You suggest that some of them reluctantly signed it because of constraints of time as Justice Sikri was due to retire.
The only judge who said that he signed the View by the Majority note to accommodate Sikri was Justice Y.V. Chandrachud. The rest of the judges, except Mukherjea, were by and large committed to the view of Parliament not having the amending power to change the basic structure. It would not have made any difference to the ultimate result, as at least five of the judges were clearly in favour of limiting Parliament’s amending power, and, one judge, Justice Khanna, was in favour of limiting its powers only on the grounds of basic structure. The absence of judicial conference does not invalidate the judgment. The view by the majority cannot be considered invalid because of the absence of a judges’ conference [preceding it], but it had become dubious because it was a hurriedly prepared paper passed on for signatures just before the judgment was delivered.
You have also claimed that the then government was in possession of some of the draft judgments before they were delivered. What was the basis of this claim?
The government decided on the supersession of judges even before the judgment was delivered in open court. Kuldip Nayar, in his book, says that Chief Justice Sikri queried Justice Beg. Justice Dwivedi said [after his appointment] that he was going to the Supreme Court to reverse Golaknath. Justice Beg was the nominee of Indira Gandhi. The government had advance notice of the views of the judges. Justice Mukherjea, Justice P. Jagannatha Reddy, Justice Chandrachud and Justice Khanna did not give the impression of being one way or the other. They appeared to be uncommitted. So, they would tilt the balance. Justice Reddy, on his own, came to more or less the same conclusion as the Sikri-led judges.
Justice Mukherjea wrote a joint judgment with Justice Hegde. Justice Khanna took a midway position. Justice Chandrachud was perceived by the petitioners to be in favour of limiting the amending power by some of his statements in the court, and the fact that he had been invited by Justice Sikri to the only judicial conference of like-minded judges. Therefore, his writing a judgment in favour of Parliament was a great surprise. This gave rise to the rumour that he had been influenced by the then Law Minister H.R. Gokhale and retired Chief Justice Gajendragadkar [a family friend of Chandrachud]. Justice Chandrachud later said that he was entitled to change his views. He denied that he was influenced by Gokhale and Justice Gajendragadkar.
Why did Chief Justice A.N. Ray dissolve the 13-judge Bench to review the Kesavananda judgment within two days of its constitution in 1976? You have speculated on the reasons, like his isolation on the Bench, Palkhivala’s letter to the Prime Minister on the eve of the hearing protesting against the move, and so on. Can you elaborate?
I think the 13-judge Bench was constituted by Justice A.N. Ray to review the Kesavananda case without any judicial order and there was no indication why the case was required to be reviewed. This was the strongest reason advanced by Palkhivala. On this point, neither Chief Justice Ray nor Attorney-General Niran De was able to give a convincing answer. And from the observations of other judges, this question was a worrying one. Therefore, in my view, Ray could not carry the majority with him to review the Kesavananda case, and on the third day, he felt compelled to dissolve the Bench without any reason.
How would you interpret Justice Ray’s legacy?
Chief Justice Ray’s acceptance of the CJI post is often misunderstood. It was not he who manoeuvred it but the government. After knowing the views of the judges who were going to decide against Parliament, the government decided that the next CJI should not be a judge from among those judges. It is now known that the government even asked Justice K.K. Mathew whether he would accept the position of the CJI. But he declined. Chief Justice Ray himself was reluctant to be the CJI in such a controversial way, but he was told that if he did not accept the position, the government was determined to go down the line and appoint any other judge who would consent to be the CJI. Therefore, Justice Ray accepted the position with reluctance.
Your mentor H.M. Seervai changed his view after the Emergency that the doctrine of basic structure was required for Indian democracy as without it many of the abuses of power during the Emergency could not have been reversed legally. Do you similarly support the doctrine now, even while legally questioning its birth?
In the Kesavananda case, it was argued that the amending power could be abused. It was not an unknown fact. But that could never be the reason for cutting down any power. Seervai changed his view for personal reasons. Today, after 38 years, one can say that as a matter of political argument a check on the amending power is always to be welcomed. In other countries, the amending power is not subjected to such judicial constraints, except in Bangladesh. Any power is capable of being abused and the fact of the abuse is never a ground for limiting the governing power.
The difficulty in ascertaining the basic structure is that it is a highly nebulous and subjective standard. It gives a vital power to the judiciary, which was never contemplated by the Constitution makers. It is true that Parliamentary and executive misuse is something that requires judicial correction and which is done in the normal course. But the amending power is a unique power, which cannot be compared with the ordinary legislative or executive power. The amending power is a quasi-political power and its validity may not be within the domain of the executive, which is a view taken in most jurisdictions of the world, including, Malaysia, Sri Lanka, Pakistan and South Africa. It is a unique power to create the Constitution. Judges are bound by the Constitution.
All constitutional cases, in a sense, are political. In the Kesavananda case the external political forces operated for over 66 days, and in that sense it was not a normal, constitutional case deciding political issues.
- Book on Kesavananda Bharati case to be released on Tuesday (indialawyers.wordpress.com)
- The inside story (thehindu.com)
- ‘If judges show anger unnecessarily, people will feel we are just like ordinary people. We have to show our stature is above that.’ (indialawyers.wordpress.com)
- The bench in the Lokpal (indialawyers.wordpress.com)
- 35 yrs later, a former Chief Justice of India pleads guilty (indialawyers.wordpress.com)
- House power to regulate judges’ ambit under legal experts’ lens (indialawyers.wordpress.com)
- National Law Day: Two Constitutional Scholars who upheld the values of our Constitution (indialawyers.wordpress.com)
- Justice Katju was part of the Bench that gave landmark judgments (indialawyers.wordpress.com)
RAJEEV DHAWAN IN THE INDIA TODAY
This has been the year of protest. The Middle East and North African (MENA) countries captured an upsurgence of people. The elections in MENA threw up Islamic successes to remind us that democracy is a barometer not a result. In India, the movement against corruption attracted lakhs, forced the government’s hand on the Lokpal Bill, pressurised a pre-emptive resolution from Parliament on August 28, 2011, and survived strong arm tactics against Anna Hazare and Baba Ramdev and smear campaigns against others.
The year has ended with Anna giving up another fast. The UPA outsmarted itself by promising reservations to women, SC, ST, OBC and minorities and Lokayuktas in the states. This khichree proved to be its undoing. It produced an awkward majority in the Lok Sabha and a chaotic carry over to the next year in the Rajya Sabha. The Bill produced an unwieldy Lokpal, testing boiling water with the patently unconstitutional provisions on minority representation and forcing Lokayuktas on the states.
The constitutional challenge is whether popular democracy, elite populism or rabble rousing will destabilise institution based parliamentary democracy? The right to strong protest can never be denied. In December 2011, the Bombay High Court was wholly wrong to say that parallel protest could not take place when Parliament was in session. This is 19th century stuff. Equally the maidan fee should be minimal for non-commercial protest by the poor and well-off alike. To lose the right to aggressive protest is to lose democracy. But, blackmailing democratic institutions into submission and denying discourse is to join the chaos of South and South-East Asia. In rigidly ousting alternative discourse, Anna went overboard.
Anti-corruption cases reached the Supreme Court. The Black Money case set up a powerful monitoring committee of Justices Jeevan Reddy and M. B. Shah to oversee the investigation. The government’s attempt to recall the decision led to a divided court. Ambiguity lives on. The 2G case led to dramatic arrests of the high and mighty. Raja lost his ministership. Many, including Kanimozhi, were held in jail for inordinate, unjustified months until the Supreme Court realised that its own norm was “bail not jail”. While the government protested that the so called loss to the exchequer by the scam was to keep ‘teleprices’ low, the case requires examining the Swan Bid, the first-come-first-get system and other machinations. In the Supreme Court cash- for- votes case, Amar Singh was in the soup – but others escaped the net. Foreign companies were upset when India’s tax authorities commenced investigation against the Vodafone-Hutch deal as a scam. The judgment is awaited.
Santosh Hegde, Karnataka’s Lokayukta who nearly tearfully resigned in July 2010, exposed the CM’s mining lobby to show what an ombudsman can do. But the Karnataka High Court ruled out the Lokayukta’s choice of prosecutor to strengthen demands for an independent investigation, inquiry and prosecution wing for the Lokpal. Rahul Gandhi had proposed a constitutional amendment to incorporate the Lokpal which was produced in record time by law minister Salman Khurshid to be inevitably defeated in the Lok Sabha. Supreme Court proceedings resulting in removing P. J. Thomas as CVC exposed selection procedures for important appointments being far from foolproof or immune from political patronage.
Attempts to impeach high court judges failed. P. D. Dinakaran simply resigned – taking the high ground that the procedure was all wrong. Soumitra Sen got an adverse result from the Rajya Sabha but resigned before he had to face the Lok Sabha. Meanwhile, the government’s Judicial Accountability Bill 2010 has transited through the parliamentary standing committee and was re-tabled by Khurshid on December 21. Judicial corruption exists abundantly. So do increasing levels of judicial incompetence – requiring legislation for proper judicial selection. Over 2011-12. Chief Justice Kapadia will be responsible for replacing 10 judges of the Supreme Court. Retiring judges rush through one year long backlogs of judgments, which suffer from lack of memory and bad note- taking. Judges are over-worked. But judicial standards are falling. Institutions with bad renewal of good people sell their future short.
The Supreme Court’s direct continuing control over forest and environment has gone on for 15 years and must stop. It has helped the green cover and stopped some slaughter mining. But it must give up this magnum control in favour of what Chief Justice Kapadia calls a proper regulatory authority.
Even though the Supreme Court has not been equitable on rehabilitation and resettlement (R& R) in the Omkareshwar dam case (2011), over the years the court has taken a lead on equitable land acquisition. This year it was through Justice Singhvi, in the UP and other cases. The government took a historic decision to draft the Land Acquisition and Relief and Rehabilitation Bill 2011 (LA and RR) which is a step forward, but full of flaws relating to tribal areas, R& R deficiencies, facilitative acquisition for the private sector and too many exclusions. Chairman of the standing committee, Sumitra Mahajan, has rightly taken the view not to rush through the Bill. The new Mines and Minerals Bill, approved by the standing committee in 2008, underwent changes by the Cabinet on September 30, 2011. Compensation to ‘tribals’ etc will be limited, without the proposed 26 per cent share in the mines to make them exploited labour.
A fantastic Planning Commission (PC) affidavit to the Supreme Court in September 2011 on food entitlements fixed the ` 25 per person per day in rural areas which “ensures the adequacy of actual private expenditureâ on food, education and health”. An embarrassed government backtracked on October 3, 2011 – clarifying that the PC’s view will not be the bases of price fixation or distribution. It seems odd that after so many years we do not know how to identify beneficiaries. The Supreme Court heard the challenges to the Right to Education Act; and judgment is awaited on whether unaided private and minority institutions can be forced to admit poor students in the neighbourhood.
The Act was flawed. Attorney General Vahanvati has promised amendments. Some are being filtered through Parliament. Socio-economic rights are inadequate. With cold wave deaths and people dying in hospitals, India has a lot to think on socio-economic fronts. Meanwhile, Mullaperiyar signifies that our water disputes are not being solved. Water-man Rajendra Singh persuaded ex-Justice Jeevan Reddy to have a meeting to address pollution and conservation of water through social action because legal action failed. The Supreme Court’s Uphaar decision lowering the damages to victims is all wrong – confusing unjust enrichment and principles of ordinary and exemplary damages.
India’s dichotomous approach to poverty, development and growth emerged at the global environment meet in Durban. The “North” countries want to cap India’s growth because the BRIC countries are economic competitors. When will India put forward a convincing case that with more than 50 per cent of a vulnerable population (larger than most nations) she is still in the process of development? Although India was the benign ‘deal breaker’ to send the Kyoto protocol into another phase, negotiating global multilateral treaties has not been India’s strong point.
The Supreme Court declared the State guerilla Salwa Judum (including children) unconstitutional. The right to display cinema has been thwarted by state governments and public reactions as in the case of Dam 999 about Mullaperiyar. Free speech remains threatened by civil society intolerance. On July 19, 2011, metropolitan magistrate Arul Verma gave a remarkable judgment on the rights of refugees not to be deported without adequate due process.
By contrast, Judge Mukesh Kumar of the Rohini Court, responded to a petition by Mufti Qasmi (formerly of Darul-ul-Uloom of Deoband) by issuing notices to websites to clean ‘offensive’ material from their sites. This is in line with Kapil Sibal’s statements and those of the chairman of the Press Council. But what can be considered “offensive”? And can this censorship be done without authority of law? The tumult of 2011 offers uncertainty to 2012.
- The writer is a Supreme Court lawyer
- The saga of the Lokpal Bill (indialawyers.wordpress.com)
- The Great Lokpal Conspiracy Theory (indialawyers.wordpress.com)
- 2011- Year of criticism, from the bench and against it (indialawyers.wordpress.com)
- The bench in the Lokpal (indialawyers.wordpress.com)
- Need for a more considered debate on lokpal (indialawyers.wordpress.com)
- In action-packed 2011, Supreme Court cleared over 79,000 cases (indialawyers.wordpress.com)
- Lokpal and Lokayuktas Bill 2011 Introduced in Lok Sabha (indialawyers.wordpress.com)
- Shortcomings and malignant provisions (indialawyers.wordpress.com)
- For a reasoned debate (indialawyers.wordpress.com)
KRISHNADAS RAJAGOPAL IN THE INDIAN EXPRESS
New DelhiJudicial activism was the key in many Supreme Court observations and judgments during 2011.
CVC THOMAS: A three-judge bench led by CJI SH Kapadia declared “non est” — or nonexistent — the majority recommendation of a high-powered committee for P J Thomas as Central Vigilance Commissioner. The court ruled that the Prime Minister and the Home Minister’s recommendation amounted to “official arbitrariness”, coming in spite of the dissent of the third committee member (the Leader of the Opposition) and without considering the relevant material.
LEADERS vs JUDGES: Rajya Sabha members went on TV to criticise the “growing” cases of corruption among judges and raised a pitch for a Judges Accountability Bill. The CJI responded that an honest judge need not worry about such a bill, and shot back at the parliamentarians for putting all judges in the same category of “corrupt” judges. He went on to issue an open challenge to the lawmakers that if “you” want to dismantle the institution of judiciary, first show how to build a better alternative.
JUDICIAL ACTIVISM: Two back-to-back rulings in July by an SC bench led by Justice Sudershan Reddy were widely criticised as instances of judicial overreach and activism. First, it set up a Special Investigation Team to investigate and bring home back black money abroad. The decision was challenged by the government; a second Bench then reached a split decision. In the other judgment, Justice Reddy ordered the Chhattisgarh government to disband vigilante groups (Salwa Judum) fighting against Naxals, criticising the “new mantra from the mandarins of security and high economic policy of the state — tax breaks for the rich and guns for the youngsters amongst the poor”. The order was later modified. When the controversy was raging, a Bench led by Justice G S Singhvi criticised “some lawyers, journalists and men in public life” for accusing the judiciary of over-reach when it entertains public interest litigations espousing the cause of the poor and downtrodden. “So far, the courts have been used only for the purpose of vindicating the rights of the wealthy and the affluent,” the bench said.
2G BAIL: In February, the Supreme Court had exhorted the CBI, “You must catch them all.” Then in November, it criticised a tendency shown by lower courts to deny bail to any of the persons arrested. “Right to bail is not to be denied merely because of the sentiments of the community against the accused,” Justice H L Dattu wrote in his judgment. Five executives of Unitech, Swan Telecom and Reliance ADAG later got bail.
BHOPAL GAS LEAK: On May 12, the Supreme Court threw out the CBI’s curative petition against a 1996 judgment that described the tragedy as an act of negligence and not culpable homicide on the part of Union Carbide staffers. The court refused to take the blame for fact the eight accused had “walked away” with a two-year jail term from the Bhopal chief judicial magistrate’s court, after a 26-year trial.
AMAR SINGH: The Supreme Court’s displeasure at the CBI’s “shoddy” probe in the cash-for-vote case led to the former Samajwadi Party leader’s arrest. And when he decided to remove the Congress’s name from the list of those he accused of tapping his calls, the SC suspected his actual motives. The court further lifted a five-year-old ban on publication of the tapes of those conversations.
Post-GODHRA: The Supreme Court pulled out of monitoring the Ehsaan Jafri case in which Gujarat Chief Minister Narendra Modi and 63 other high functionaries were accused of several offences. It ordered the SIT to present its report before the Gujarat magistrate concerned. It was the only case involving the riots that named Modi directly.
AYODHYA: The Supreme Court re-kindled the 60-year-old dispute when it stayed an Allahabad High Court judgment, calling it a “leap of faith”. The Supreme Court said it found it “strange and surprising” that the High Court had taken it upon itself to “partition” the site.
GRAHAM STAINES: The Supreme Court invited criticism when it confirmed the life sentence awarded to Dara Singh, who burnt alive the Australian missionary and his two sons in 1999. The court cited the reason that the intent was only to teach a lesson to the father about religious conversion. The court later suo motu deleted this portion from the judgment.
NITHARI: A bench led by Justice Markandeya Katju made a decisive comment when it observed that Surendra Koli “appears to be a serial killer”. The court went on to confirm the death penalty awarded to Koli.
EUTHANASIA: The SC for the first time allowed passive euthanasia “under exceptional conditions” and set down guidelines for it. The decision came in the case of nurse Aruna Shanbaug.
ENDOSULFAN: The SC banned the production and sale of endosulfan, a cheap but controversial agrochemical used by farmers, noting that the life of one child is more precious than all the financial losses that industry will incur.
BELLARY: The Supreme Court suspended mining in this district, saying miners’ “greed” has overshot the court’s efforts to balance environmental concerns and development.
26/11: The final hearing on Ajmal Kasab’s appeal against the death penalty will start on January 31. The Supreme Court has suspended the death sentence, saying it would like to hear the plea at length as “due process of law” has to be followed.
AFSPA: The CBI has sought a clarification on the extent of immunity enjoyed by Army personnel under this Act and other laws for fake encounter killings. The agency wants the lifting of an SC stay on the trial in a J&K court relating to the killing of seven youths by the Army.
VODAFONE: A judgment is awaited on the Vodafone tax case, in which the company argues it is not liable to pay capital gains tax because the deal to buy Hutchison’s India operations was done overseas.
N-LIABILITY: A PIL on nuclear liability and safety of plants will be heard. The petition wants an independent safety regulator set up.
END OF TERM: CJI S H Kapadia retires in September.
- In action-packed 2011, Supreme Court cleared over 79,000 cases (indialawyers.wordpress.com)
- In action-packed 2011, Supreme Court cleared over 79,000 cases (thehindu.com)
- The Collegium Controversy (indialawyers.wordpress.com)
- The Great Lokpal Conspiracy Theory (indialawyers.wordpress.com)
- The bench in the Lokpal (indialawyers.wordpress.com)
- Are judges under media pressure in high profile cases- while deciding on Bail? (indialawyers.wordpress.com)
- ‘If judges show anger unnecessarily, people will feel we are just like ordinary people. We have to show our stature is above that.’ (indialawyers.wordpress.com)
J VENKATESAN IN THE HINDU
Chief Justice has a plan for expeditious disposal of pending cases
The year 2011 saw the highest number of cases disposed of in recent years, with more than 79,000 cases cleared under the leadership of Chief Justice of India S.H. Kapadia. In his Law Day address, Justice Kapadia rejected the allegation made in certain quarters about the huge pendency of cases and said: “There is a backlog of cases. However, it is not as big as is sought to be projected.” Seventy-four per cent of the cases were less than five years old, he said. He has worked out a plan for expeditious disposal of the pending cases.
Pointing to the increase in institution of cases over the years, Justice Kapadia said: “Citizens approach the court only when there is confidence in the system and faith in the wisdom of the judges. The institution stands on public trust. The judiciary has performed a commendable job.”
In 2011, eight judges retired and five judges were appointed. Five vacancies still remain to be filled. The Supreme Court faced a stiff challenge — protecting the environment from further degradation vis-à-vis protecting the employment of thousands of workers in various mines in Bellary and other districts of Karnataka.
Holding that the right to life under Article 21 of the Constitution would include a pollution-free environment, the court ordered the suspension of all mining operations and transport of minerals in Bellary and other districts. But it allowed export of the existing stocks. “We are satisfied that, on account of over-exploitation, considerable damage has been done to the environment. We are taking a holistic view of the matter. We have suspended these operations keeping in mind the precautionary principle, which is the essence of Article 21 of the Constitution.”
The court also ordered a CBI probe into the illegal mining in the border areas of Andhra Pradesh and Karnataka, covering the alleged illegal mining activities of the former Karnataka Minister, G. Janardhana Reddy, at Obulapuram in Andhra Pradesh.
Coming to the rescue of air passengers, the court said that if there was a delay in the departure of a flight with passengers on board for more than three hours for lack of clearance from the Air Traffic Control (due to fog or for other operational reasons), the passengers should be permitted to get back to the airport lounge, and the airlines should provide them with food and water.
Making it clear to the outside world that India followed the rule of law even in the case of a foreign national, the Supreme Court stayed the execution of Ajmal Kasab, a Pakistani national awarded the death penalty in the 26/11 terror attacks case.
The court stayed the release on bail of Pune-based racehorse owner Hasan Ali, detained under the Prevention of Money Laundering Act and other laws. It came down heavily on the Centre for its lacklustre response to tackling the menace of black money. In the Salwa Judum case, it declared illegal the employment of youth to counter Maoists.
Following widespread criticism of the collegium system of appointment of judges to the higher judiciary, the Supreme Court decided to have a larger Bench consider 10 questions relating to the review of the 1993 and 1998 judgments giving primacy to the judiciary on appointment of judges.
While agreeing to consider the legality of the nuclear bill, the court made it clear that it would not go into the policy aspects relating to the safety of all nuclear plants in the country as it was the domain of Parliament.
The court directed the Special Investigation Team, headed by the former CBI Director, R.K. Raghavan, to submit its final report, under Section 173 (2) of the Cr.PC to the trial court, on the further investigation it had done on the complaint of Zakia Jeffrey against Gujarat Chief Minister Narendra Modi and 61 others for their alleged role in the 2002 communal riots.
The court did not allow the opening of Kallara (locker) B at the Sree Padmanabha Swamy temple in Thiruvananthapuram, though it ordered full protection to the temple and documentation of the artefacts found in the other five chambers.
Justice P.D. Dinakaran’s attempts to quash the inquiry against him by the committee set up under the Judges (Inquiry) Act backfired, with the court having rejected all the petitions. He ultimately resigned, forcing the committee to wind up the proceedings. Justice Soumitra Sen of the Calcutta High Court, who faced removal proceedings, resigned even before the Rajya Sabha took up the motion after the Lok Sabha passed it. The court dismissed a public interest litigation petition filed on his behalf, questioning the removal procedure.
By quashing the Uttar Pradesh government’s order suspending the screening of the Hindi film Aarakshan for two months, the Supreme Court once again underlined the importance of freedom of speech and expression.
The court also came to the rescue to thousands of students writing competitive examinations by making it clear that students could seek a photo copy of the answer sheets of an examination conducted by any agency under the Right to Information Act.
The Supreme Court stayed the Allahabad High Court’s verdict dividing the disputed site of the Ramajanmaboomi at Ayodhya into three parts and apportioning them among the parties to the dispute.
In a setback to the Jayalalithaa government’s decision to defer the implementation of the Uniform System of School Education (Samacheer Kalvi), the Supreme Court directed the Tamil Nadu government to implement it for Classes 2 to 5 and 7 to 10. The Court, however, declined to interfere with a Madras High Court judgment upholding the abolition of the Common Entrance Test for admission to professional courses in Tamil Nadu, giving relief to lakhs of students in the State.
Observing that the right to life is of paramount consideration, the Supreme Court banned the manufacture, sale and use of Endosulfan. But it allowed the existing stocks and formulations.
The court dismissed as “fallacious” the curative petitions filed by the CBI to recall the 1996 judgment dropping the charge of culpable homicide not amounting to murder against the former Chairman of Union Carbide India, Keshub Mahindra, and other accused in the 1984 Bhopal gas leak case.
The court extended its jurisdiction beyond the Indian border by making an emotional appeal to the Pakistan government to release an Indian prisoner languishing in a Pakistani jail for more than 26 years after he inadvertently crossed the border. Interestingly, the Pakistan government accepted the appeal and freed the prisoner.
The court allowed passive mercy killing of a patient in a permanent vegetative state by withdrawing the life support system with the approval of a medical board and on the directions of the High Court concerned. It, however, did not accept the plea of Pinky Virani of Mumbai for permission to withdraw the life support extended to Aruna Ramachandra Shanbaug, who has been in a permanent vegetative state at KEM Hospital in Mumbai for 37years.
In a setback to Times Now television channel, the Supreme Court declined to interfere with an interim order of the Bombay High Court, directing Times Global Broadcasting Co. Limited to deposit Rs. 20 crore in cash and Rs. 80 crore as bank guarantee in the court in a defamation suit filed by the former Supreme Court judge, P.B. Sawant, claiming Rs.100 crore in damages.
SOURCE AND LINK TO THE ARTICLE AS PUBLISHED IN HINDU : http://www.thehindu.com/news/national/article2764197.ece
The Lokpal and Lokayuktas Bill, 2011 was introduced along with a Constitutional (116th Amendment) Bill during the winter session of the 15th Lok Sabha on December 22, 2011. Here are the full texts of the Bills along with the errata in PDF format.
SUPREME COURT IN Sanjay Chandra vs Cbi on 23 November, 2011
Let us first deal with a minor issue canvassed by Mr. Raval, learned ASG. It is submitted that this Court has refused to entertain the Special Leave Petition filed by one of the co-accused [Sharad Kumar Vs. CBI (supra)] and, therefore, there is no reason or change in the circumstance to take a different view in the case of the appellants who are also charge- sheeted for the same offence. We are not impressed by this argument. In the aforesaid petition, the petitioner was before this Court before framing of charges by the Trial Court. Now the charges are framed and the trial has commenced. We cannot compare the earlier and the present proceedings and conclude that there are no changed circumstances and reject these petitions.
The appellants are facing trial in respect of the offences under Sections 420-B, 468, 471 and 109 of Indian Penal Code and Section 13(2) read 2 with 13(i)(d) of Prevention of Corruption Act, 1988. Bail has been refused first by the Special Judge, CBI, New Delhi and subsequently, by the High Court. Both the courts have listed the factors, on which they think, are relevant for refusing the Bail applications filed by the applicants as seriousness of the charge; the nature of the evidence in support of the charge; the likely sentence to be imposed upon conviction; the possibility of interference with witnesses; the objection of the prosecuting authorities; possibility of absconding from justice.
In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.
In the instant case, as we have already noticed that the pointing finger of accusation against the appellants is `the seriousness of the charge’. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather recalibration of the scales of justice. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual.
This Court, in Kalyan Chandra Sarkar Vs. Rajesh Ranjan- (2005) 2 SCC 42, observed that under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of non- bailable offences are entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so.
This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined:
The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.
It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren once every fortnight (17) In the case of Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240, V.R. Krishna Iyer, J., sitting as Chamber Judge, enunciated the principles of bail thus: What, then, is judicial discretion in this bail context? In the elegant words of Benjamin Cardozo:
The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains Even so it is useful to notice the tart terms of Lord Camden that the discretion of a Judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable Perhaps, this is an overly simplistic statement and we must remember the constitutional focus in Articles 21 and 19 before following diffuse observations and practices in the English system. Even in England there is a growing awareness that the working of the bail system requires a second look from the point of view of correct legal criteria and sound principles, as has been pointed out by Dr Bottomley. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle. J. indicated, when the crime charged (of which a conviction has been sustained) is of the highest magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. Lord Campbell, C.J. concurred in this approach in that case and Coleridge J. set down the order of priorities as follows:
I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial …. It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important: the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted. In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death
It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record – particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habitual, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant is therefore not an exercise in irrelevance.
Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court’s verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding — if that be so — of innocence has been recorded by one Court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio- geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal. In Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118, this Court took the view:. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub- section (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.
Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out
In Babu Singh v. State of U.P., (1978) 1 SCC 579, this Court opined: The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit Court I had to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right. …
Thus the legal principle and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record–particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.
The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice–to the individual involved and society affected.
We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, community roots of the applicant are stressed and, after the Vera Foundation’s Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.
Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court’s verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding — if that be so — of innocence has been recorded by one Court. It may be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, it enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal
In Moti Ram v. State of M.P., (1978) 4 SCC 47, this Court, while discussing pre-trial detention, held: The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.
The concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281, thus: Bail remains an undefined term in CrPC. Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression bail denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb bailer; which means to give or to deliver, although another view is that its derivation is from the Latin term baiul are, meaning to bear a burden;. Bail is a conditional liberty. Stroud’s Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states: when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have authority to bail him, which sureties are bound for him to the King’s use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed–that is to say, set at liberty until the day appointed for his appearance Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.
Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. (See A.K. Gopalan v. State of Madras)
The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt.
More recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, this Court observed that just as liberty is precious to an individual, so is the society’s interest in maintenance of peace, law and order. Both are equally important This Court further observed : Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused [See Babba v. State of Maharashtra, (2005) 11 SCC 569, Vivek Kumar v. State of U.P., (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC 383].
The principles, which the Court must consider while granting or declining bail, have been culled out by this Court in the case of Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280, thus: The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt
In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, this Court held as under: "18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.)]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail Kalyan Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535-36, para 11) The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas
While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary) Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on two grounds :- The primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State exchequer ; the secondary ground is that the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused.
The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. This Court in Gurcharan Singh and Ors. Vs. State AIR 1978 SC 179 observed that two paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.
When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet. This Court, in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784, has stated: In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken’s novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille
In `Bihar Fodder Scam’, this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pre-trial prisoners would not serve any purpose.
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JUSTICE MARKANDEY KATJU IN THE TIMES OF INDIA
What is our national aim? To my mind, our national aim must be to make India a highly prosperous country for its citizens, and for that it is necessary to have a high degree of industrialization.
Even setting up and running a single primary school requires a lot of money, e.g. for buying land, erecting the school building and providing for the recurrent expenditure for salaries of teachers, staff, etc. We have to set up in our country not just one primary school, but hundreds of thousands of primary schools, tens of thousands of high schools and colleges and engineering colleges, technical institutes, medical colleges, scientific research centres, hospitals, libraries etc.
Where is the money for all these to come from? Money does not fall from the sky. It can only come from a highly developed industry, and it is industrialization alone which can generate the wealth we need for the welfare of our people. Today India is a poor country. Nobody respects the poor. It is for this reason that we do not have much respect in the world community (whatever we may think of ourselves). One proof of this is that we are not given a permanent seat in the U.N. Security Council, although we have a population of 1200 million, whereas Britain and France with populations of 60 million each have permanent seats.
It is industrialization alone which can abolish poverty and unemployment, which are the main causes of crime and terrorism, and get us respect in the world community. Also, when there is rapid industrialization, which should be our national target, millions of jobs will be created which will solve the problem of unemployment. For industrialization, development of science is absolutely necessary, and for that freedom is also absolutely necessary, freedom to think, freedom to write, freedom to discuss with others, freedom to explain, freedom to criticize and freedom to dissent.
The growth of science requires certain supportive values, particularly liberty. This is because the thought process cannot develop without freedom. The values of a scientific community viz., pluralism, tolerance, individual freedom and free flow of information are very similar to the values of a democratic society (see ‘Science and the Making of the Modern World’ by John Marks).
A democratic society permits freedom of speech and expression, freedom to practice one’s own religion, which is based on tolerance, and freedom to dissent and criticize. These are precisely the values of a scientific community. In other words, in scientific matters authoritarianism and dogmatism are wholly out of place. Scientists must be largely left free to govern themselves, and have large amount of freedom which is necessary for innovation and creativity. Hence, democracy and liberty go hand in hand with the growth of science because both are based on tolerance, individual freedom and free flow of ideas. In democracy, as in a scientific community, there is freedom to speak, freedom to discuss, freedom to criticize and freedom to dissent.
“Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed”
Similarly, Justice William O. Douglas in Terminiello vs. Chicago 337 US 1 (1949) observed: “….[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest… There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups”.
In our own country, in ancient times the method of Shastrarthas had been developed. These were debates in which the thinkers of those times had full freedom to speak and to criticize their opponents in the opponent’s presence, and also in the presence of a large assembly of people. There are hundreds of references to such Shastrarthas in our epics and other literature. It was this freedom to freely discuss and criticize in ancient India which resulted in tremendous growth of knowledge even in such ancient times, including not only in philosophy, grammar law, etc. but also scientific knowledge, e.g. mathematics, astronomy, medicines, etc. The names of Aryabhatt, Brahmagupta, Bhaskar, Sushrut and Charak are known to all. With the aid of science we had built mighty civilizations e.g. the Indus Valley Civilization when people in Europe were living in forests.
In this connection, we may also mention about modern European history. England was the first country in the world to industrialize and modernize. This economic process was accompanied with the political struggle for liberty and democracy in the 17th and 18th centuries, which was particularly a struggle between the King and Parliament. As we all know, Parliament won, and this laid the foundation of freedom and civil liberties in England, which was necessary to create the atmosphere which science requires to prosper.
Similarly, in France, before the French Revolution of 1789, the thinkers of the Enlightenment — Rousseau, Voltaire, Diderot, Holbach, etc. who attacked feudalism and religious dogmatism paved the way for the Revolution of 1789 which destroyed feudalism, and led to scientific progress. On the other hand, in Italy, Spain and some other countries the Inquisition stifled free thinking and thereby scientific growth. All scientific ideas which were not consistent with the Bible were regarded as crimes e.g. the theory of Copernicus which stated that the earth moved around the sun and not the sun around the earth. As a result, these countries were left far behind England and France, and remained in the feudal dark ages for centuries.
The struggle to establish the scientific outlook was not an easy one. Scientific ideas initially were condemned because they were regarded as opposed to religious dogma. Voltaire and Rousseau had to fly for their lives to other countries. The Church persecuted the greatest scientists with blind cruelty, burning them at the stake (e.g. Bruno), torturing them (e.g. Galileo), and forbidding or destroying their works. As recently as in 1925 the teaching of Darwin’s theory of evolution was forbidden in the state of Tennessee in U.S.A., and a teacher John Scopes was tried in the famous ‘Monkey Trial’ for teaching that theory. For centuries the Church in Europe played an extremely reactionary role and fought pitilessly against the scientific conception of the world, and against the democratic movements. In India, if we are to progress and rise as a world power, we have to spread the scientific outlook to every nook and corner in our country, and destroy superstitions, e.g. the belief in astrology and palmistry, and the feudal ideas of casteism and communalism.
Science is that knowledge by which we can understand nature (and human society) and use this knowledge for our benefit. For doing so, the scientists rely on reason, observation and experiment. This obviously cannot be done on the dictates of anyone (though the government can certainly create the atmosphere where these can flourish). Science and democratic values go hand in hand.
In science, there is no final word, unlike in religion. Science questions everything and does not take anything for granted. Obviously, this approach is not permitted in an undemocratic society, e.g. feudal society (which is governed by religion) or fascist society (in which there is a dictator). Thus, Hitler, with his Nazi racial philosophy, caused an enormous setback to science in Germany by persecuting Jewish scientists and banning their works (e.g. Einstein).
Indeed, in India, after the Constitution was adopted in 1950, there was an atmosphere of liberal freedom in view of the fundamental rights guaranteed by the Constitution e.g. the right to free speech (Article 19), liberty (Article 21), equality (Articles 14 to 17), religious freedom (Article 25), etc. This helped growth of science and technology in our country, because it created an atmosphere of freedom where people including the scientists, could freely discuss and dissent. If we compare our country with the neighbouring countries, there were no such freedoms in those countries and hence those countries lagged far behind in economic growth.
Apart from the above, the advanced sections of society who want to take the country forward, and have the knowledge to do so, must have a lot of freedom to discuss, debate and criticize each other. They are the pioneers and are often entering into a new field, much of which is unknown. Hence, they must have freedom to think, discuss and criticize.
As pointed out by John Stuart Mill in his celebrated essay ‘On Liberty’, all progress, advancement of knowledge and progressive change and improvement of old ways of thinking, and the consequent old behaviour-patterns, habits, customs and traditions can come about only from free individual dissents and dissentions, innovations, etc. which are at first usually resisted by inert or conservative people (who are usually the vast majority), and by a free competition between the old and new ideas. As pointed out by Mill, in any society ordinarily the majority shares old thoughts and traditions, and there is a strong tendency to insist on conformity and collective unity or solidarity, to repress dissents and innovations, and to tolerate only what the majority agree with. This inevitably works to prevent any progress and to thwart the creative impulses of the more creative and original minds. Extensive freedom to dissent and innovate, in all spheres of life, activity, culture and thought in all directions, including expressing ideas initially thought strange and often disliked by the conservative tradition-bound majority are indispensable for progress. The intellectually advanced and creative individuals are often in the minority, and are regarded as non-conforming eccentrics and deviants, and there is often a tendency to suppress them. This is why liberal democracy, i.e. majority rule but qualified and limited by firm protection of minorities, and individual rights and liberties, even as against the governing majority, is essential for progress. The majority often consists of mediocre persons who wish to continue in the old ways of thinking and practices. Hence the liberties and rights have to be guaranteed to the often powerless tiny minorities and lone individuals so that scientific progress can take place.
As Justice Oliver Wendell Holmes of the U.S. Supreme Court in his dissenting judgment in Abrams vs. United States, (1919) observed : “…The best test of truth is the power of the thought to get itself accepted in the competition of the market…”
The importance of the judiciary in India in this connection must also be highlighted in this country. In this connection reference may be made to two decisions of the Supreme Court delivered by me viz., Govt of A.P. and others vs. P. Laxmi Devi [2008 (4) SCC 720, JT 2008 (2) 639 and Deepak Bajaj vs. State of Maharashtra and others [JT 2008 (11) SC 609]. In these cases, I emphasized the importance of liberty for progress, and have observed that the judiciary must act as guardians of the liberties of the people, protecting them against executive, or even legislative arbitrariness or despotism. I have also in my judgments spoken out against honour killing, fake encounters, dowry deaths, etc. India needs democracy and scientific knowledge, and that means patiently spreading scientific ideas amongst the vast masses, raising their cultural level and involving them actively in the task of nation building.
To my mind, harsh and draconian laws will curb liberty, and that will not only violate the right to liberty granted by Article 21 of the Constitution, but will also lead to great evils e.g. increase in corruption in the police and other law enforcing agencies, which will have much more opportunities to extort money from the citizens, apart from impeding scientific and economic growth, which is vital for our country.
I have gone into some detail on this subject because I wished to clarify that I am a strong votary for liberty and have been misunderstood. However, liberty cannot be equated with licence to do anything one wishes. Should one be given the liberty to spread superstitions, to fan caste/or communal hatred, or put over emphasis on film stars, pop music, fashion parades and cricket in a poor country like ours? I think not. All freedoms are coupled with responsibilities, and no freedom is absolute. It is for this reason that I believe that while ordinarily issues relating to the media should be resolved by the democratic method of discussion and dialogue, in rare and exceptional cases (which may not be more than 5 per cent) harsh measures may be required, but that too not by the government but by any independent statutory authority e.g. the Lokpal.
(Justice Markandey Katju is the Chairman of Press Council of India)
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