Public Interest Litigation is a good thing when it is used to enforce the rights of the disadvantaged. But it has now been diluted to interfere with the power of the government to take decisions on a range of policy matters
Judicial activism is not an easy concept to define. It means different things to different persons. Critics denounce judicial decisions as activist when they do not agree with them. Activism, like beauty, is often in the eye of the beholder. In India, the opening up of access to courts to the poor, indigent and disadvantaged sections of the nation through Public Interest Litigation, popularly known by its acronym PIL, is unexceptionable judicial activism. From 1979, the judiciary led by the Supreme Court in India became relevant to the nation in a manner not contemplated by the makers of the Constitution and became an active participant in the dispenser of social justice.
It is a matter of concern that over the years this original, beneficial and unexceptionable character of the Court’s activism in PIL has been largely converted into a general supervisory jurisdiction to correct actions and policies of government, public bodies and authorities. This is a type of judicial activism unparalleled in any other judiciary.
For basic rights
PIL jurisdiction began haltingly with little idea of its potential when the Supreme Court, in 1979, entertained complaints by social activists drawing the attention of the Court to the conditions of certain sections of society or institutions which were deprived of their basic rights.
In 1979, Supreme Court advocate Kapila Hingorani drew the Court’s attention to a series of articles in a newspaper exposing the plight of Bihar undertrial prisoners, most of whom had served pretrial detention more than the period they could have been imprisoned if convicted. Sunil Batra, a prisoner, wrote a letter to Justice Krishna Iyer of the Supreme Court drawing his attention to torture by prison authorities and the miserable conditions of prisoners in jails. This was taken up as a petition and the Court passed orders for humane conditions in jails. In 1980, two professors of law wrote a letter to the editor of a newspaper describing the barbaric conditions of detention in the Agra Protective House for Women which was made the basis of a writ petition in the Supreme Court. The exploitation of workmen at construction sites in violation of labour laws was brought to the attention of the Supreme Court by a letter. The slave-like condition of bonded labourers in quarries was brought to the attention of the Court by a social activist organisation. A journalist moved the court against the evictions of pavement dwellers of Bombay. Several cases of this type followed.
In dealing with such cases, the Court evolved a new regime of rights of citizens and obligations of the State and devised new methods for its accountability. In 1982, Justice P.N. Bhagwati, correctly stated the purpose of PIL as it originated. He emphasised that PIL “a strategic arm of the legal aid movement which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation.”
No longer were the Court’s clientele drawn from landlords, businessmen, corporations and affluent persons. With PIL, the common man, the disadvantaged and marginalised sections of society had also easy access to the Court with the help of social activists.
This unique judicial activism was not found in other countries and leading judges abroad such as Lord Harry Woolf of the United Kingdom and Justice Michael Kirby of Australia, applauded it.
The new intervention
However, over the years, the social action dimension of PIL has been diluted and eclipsed by another type of “public cause litigation” in courts. In this type of litigation, the court’s intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the society but simply for correcting the actions or omissions of the executive or public officials or departments of government or public bodies. Examples of this type of intervention by the Court are innumerable. In the interest of preventing pollution, the Supreme Court ordered control over automobile emissions, air and noise and traffic pollution, gave orders for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, made compulsory the wearing of seat belts, ordered action plans to control and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at unmanned railway level crossings, prevent ragging of college freshmen, for collection and storage in blood banks, and for control of loudspeakers and banning of fire crackers.
In recent orders, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The Court has passed orders banning the pasting of black film on automobile windows. On its own, the Court has taken notice of Baba Ramdev being forcibly evicted from the Ramlila grounds by the Delhi Administration and censured it. The Court has ordered the exclusion of tourists in the core area of tiger reserves. All these managerial exercises by the Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.
In its most activist and controversial interpretation of the Constitution, the Supreme Court took away the constitutionally conferred power of the President of India to appoint judges after consultation with the Chief Justice, and appropriated this power in the Chief Justice of India and a collegium of four judges. In no Constitution in the world is the power to select and appoint judges conferred on the judges themselves.
The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have failed or neglected to investigate and prosecute ministers and officials of government. Cases of this type are the investigation and prosecution of ministers and officials believed to be involved in the Jain Hawala case, the fodder scam involving the former Chief Minister of Bihar, Lalu Prasad Yadav, the Taj Corridor case involving the former Chief Minister of Uttar Pradesh, Mayawati, and the recent prosecution of the Telecom Minister and officials in the 2G Telecom scam case by the Supreme Court.
The Supreme Court has made an order even in a military operation. In 1993, the Court issued orders on the conduct of military operations in Hazratbal, Kashmir where the military had as a matter of strategy restricted the food supplies to hostages. The Court ordered that the provision of food of 1,200 calorific value should be supplied to hostages. Commenting on this, an Army General wrote: “For the first time in history, a Court of Law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation.”
Even proceedings of Legislatures are controlled by the Court. In the Jharkhand Legislative Assembly case, the Supreme Court ordered the Assembly to conduct a Motion of Confidence and ordered the Speaker to conduct proceedings according to a prescribed agenda and not to entertain any other business. Its proceedings were ordered to be recorded for reporting to the Court. These orders were made in spite of Article 212 of the Constitution which states that Courts are not to inquire into any proceedings of the legislature.
Matters of policy of government are subject to the Court’s scrutiny. Distribution of food-grains to persons below poverty line was monitored, which even made the Prime Minister remind the Court that it was interfering with the complex food distribution policies of government. In the 2G Licenses case, the Court held that all public resources and assets are a matter of public trust and they can only be disposed of in a transparent manner by a public auction to the highest bidder. This has led to the President making a Reference to the Court for the Court’s legal advice under Article 143 of the Constitution. In the same case, the Court set aside the expert opinion of the Telecom Regulatory Authority of India (TRAI) to sell 2G spectrum without auction to create greater teledensity in India.
The Court has for all practical purposes disregarded the separation of powers under the Constitution, and assumed a general supervisory function over other branches of governments. The temptation to rush to the Supreme Court and 21 High Courts for any grievance against a public authority has also deflected the primary responsibility of citizens themselves in a representative self government of making legislators and the executive responsible for their actions. The answer often given by the judiciary to this type of overreach is that it is compelled to take upon this task as the other branches of government have failed in their obligations. On this specious justification, the political branches of government may, by the same logic, take over the functions of the judiciary when it has failed, and there can be no doubt that there are many areas where the judiciary has failed to meet the expectations of the public by its inefficiency and areas of cases.
Justice Jackson of the U.S. has aptly said: “The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions of other branches of Government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching.” Unless the parameters of PIL are strictly formulated by the Supreme Court and strictly observed, PIL which is so necessary in India, is in danger of becoming diffuse, unprincipled, encroaching into the functions of other branches of government and ineffective by its indiscriminate use.
(The writer is a senior advocate of the Supreme Court and former Solicitor General of India. This article is an abridged version of a lecture he recently delivered at the sesquicentennial of the Bombay High Court.)
Rejecting the criticism of judicial activism, the Supreme Court has said the judiciary has stepped in to give directions only because of executive inaction what with laws enacted by Parliament and the State legislatures in the last 63 years for the poor not being implemented properly. A Bench of Justices G.S. Singhvi and A.K. Ganguly pointed out that laws enacted for achieving the goals set out in the Preamble to the Constitution had been extremely inadequate and tardy, and the benefit of welfare measures enshrined in those legislation had not reached millions of poor, downtrodden and disadvantaged sections, nor did efforts to bridge the gap between the haves and have-nots yield the desired result.
Writing the judgment in a case related to sewerage workers, Justice Singhvi said: “The most unfortunate part of the scenario is that whenever one of the three constituents of the state i.e. the judiciary issues directions for ensuring that the right to equality, life and liberty no longer remains illusory for those who suffer from the handicaps of poverty, illiteracy and ignorance, and directions are given for implementation of the laws enacted by the legislature for the benefit of the have-nots, a theoretical debate is started by raising the bogey of judicial activism or overreach.”
The Bench pointed out that the orders issued for the benefit of weaker sections were invariably challenged in the higher courts. In a large number of cases, the sole object of this exercise is to tire out those who genuinely espouse the cause of the weak and the poor. Justifying the directions issued by the Delhi High Court for protection of sewerage workers on a public interest litigation petition, the Bench said: “The superior courts will be failing in their constitutional duty if they decline to entertain petitions filed by genuine social groups, NGOs and social workers for espousing the cause of those who are deprived of the basic rights available to every human being, what to say of fundamental rights guaranteed under the Constitution.”
The Bench clarified that it deemed it necessary to erase the impression and misgivings among some people that the superior courts, by entertaining PIL petitions for espousing the cause of the poor who could not seek protection and vindication of their rights, exceeded the unwritten boundaries of their jurisdiction. The judges said it was the duty of the judiciary, like that of the political and executive constituents of the state, to protect the rights of every citizen and ensure that everyone lived with dignity.
Quoting the judiciary’s objectives as mentioned in the 1995 Beijing statement, the Bench said these would include ensuring that all persons were able to live securely under the rule of law; promoting within the proper limits of the judicial function the observance and attainment of human rights, and administering the law impartially among persons and between persons and the state.
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After he took over as the 38th Chief Justice of India last year, Justice SH Kapadia said huge costs would be imposed on litigants filing frivolous public interest litigation (PIL) petitions. His statement was widely welcomed because instances of unscrupulous elements filing PILs to advance personal or pecuniary interest had witnessed an upward trend in recent years. And last year too, a bench of the apex court raised concern over the misuse of PILs. The same bench had also issued a set of guidelines, which it wanted all courts in the country to observe while entertaining PILs.
In a speech in September 2008, Prime Minister Manmohan Singh also expressed concern over the misuse of the PIL: “Many would argue that like in so many things in public life, in PILs too we may have gone too far. Perhaps a corrective was required and we have had some balance restored in recent times.”
Now, in what could result in the most effective tool against frivolous PILs, the Union Ministry of Law and Justice is giving final touches to a law to regulate the PIL. And helping the Ministry in its endeavour is none other than former Chief Justice of India P N Bhagwati, acknowledged as somebody who along with Justice V R Krishna Iyer pioneered the concept of PIL in the country.
“For last many years, there has been demand that there should be some checks and balances so as to ensure that only genuine PILs, which are filed with the public good in mind, are allowed while those aimed at either harassing some individual or corporate or protecting the interests of an individual or corporate should be checked at the very initial stage. Even the Supreme Court was constrained to issue guidelines to regulate the PILs. We have decided to try and take it forward and bring a legislation laying down guidelines for PILs,” Union Law Minister M Veerappa Moily said.
Sources in the Law Ministry told The Indian Express that Moily has already held meetings with Justice Bhagwati and some legal experts to seek their suggestions. Among other things, the Ministry is proposing to effectively discourage and curb the PILs filed for extraneous considerations. It also wants to make it an offence for anybody to file a PIL for extraneous and ulterior motives and empower the courts to discourage such PILs by imposing exemplary costs.
In its judgment, where it talked of the need to regulate the PIL, the SC bench had said that instead of “every individual judge devising his own procedure for dealing with the PIL, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives”.
Aware that there could be some who might question the need for such a law, Moily said he was ready to bring around all such persons by explaining to them the need to have such a law. “We are not making it illegal to file a PIL. But we only want to check frivolous and motivated PILs,” he said.
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M J ANTONY IN THE BUSINESS STANDARD
The SC finds that petitioners do not always come with clean hands
Most sane people prefer to stay away from the painfully slow and overcrowded courts. It is a misfortune to be dragged to a court, especially when one is an ordinary law-abiding citizen. The ancient Chinese swore at a foe, “let you be hauled to a court even if you’re innocent!”
However, there is a deviant species who attempt to gamble with law suits. They use the system to settle political scores or subdue business rivals. The Supreme Court spotted this class two years ago in the case Dalip Singh vs State of Uttar Pradesh and remarked: “In the last 40 years, a new breed of litigants has cropped up. The quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter in falsehood, misrepresentation and suppression of facts. Those who attempt to pollute the stream of justice or touch the pure fountain of justice with tainted hands are not entitled to any relief.”
The Supreme Court decided a few cases of this variety last week and even imprisoned one petitioner who lacked bona fides. One petition was moved by vocal politician Amar Singh. It was his constant whine that his political opponents in power are tapping his phones and his private conversations with friends in high places and celebrities were aired in the media. Therefore, he moved the Supreme Court invoking his fundamental right to privacy. But the court rejected his petition, calling it “an attempt to mislead the court on the basis of frivolous allegations and by suppression of material facts.”
Chastising those who move courts with such dubious motives, the judgment said: “This court wants to make it clear that an action at law is not a game of chess. A litigant who approaches the court must come with clean hands. He cannot prevaricate and take inconsistent positions.” Since the Amar Singh petition was vague, not conforming to the rules of procedure and riddled with inconsistencies, the court did not go into his main grievance — infringement of privacy.
The only positive outcome of the case was the court’s request to the government to “frame certain statutory guidelines to prevent interception of telephone conversation on unauthorised requests.” In this case, Reliance Infocom acted on a forged request from the police.
In another judgment, Kalyaneshwari vs Union of India, the court deprecated misuse of public interest litigation to wage business battles. A writ petition was filed in the Gujarat High Court seeking the closure of asbestos units, alleging that the material was harmful to humans. The high court dismissed it, stating that the petition was filed at the behest of rival industrial groups that wanted to push their products as substitute for asbestos. Undaunted, a similar petition was then moved in the Supreme Court. The plea was not only dismissed, but the person who mooted it was asked to pay cost of Rs 1 lakh and sit in the court for a whole day.
The judgment said: “The petition lacks bona fide and in fact was instituted at the behest of a rival industrial group, which was interested in banning of the activity of mining and manufacturing of asbestos. A definite attempt was made by it to secure a ban on these activities with the ultimate intention of increasing the demand of cast and ductile iron products as they are some of the suitable substitute for asbestos. Thus it was litigation initiated with ulterior motive of causing industrial imbalance and financial loss to the industry of asbestos through the process of court.”
The court declared that it was its duty in such circumstances to punish the petitioners exercising its power under the Contempt of Courts Act. The court must “ensure that such unscrupulous and undesirable public interest litigation be not instituted in courts of law so as to waste the valuable time of the courts as well as preserve the faith of the public in the justice delivery system.”
This variety of cases is not entirely new. They come with apparently laudable motives, but if the veil is removed they expose the real intentions. In the case, Subhash Kumar vs State of Bihar (1991), the complaint was that effluents released from the Tata Iron and Steel Company’s washeries were not only contaminating the Bokaro river but also ruining agricultural land. Later the court found that the petitioner was an influential businessman who was buying the slurry from the company for several years. His private interest was hurt when the company refused to provide him more slurry. Hence his public interest litigation. Such instances have occurred despite the stringent reaction of the courts at all levels and guidelines set by the apex court in some judgments.
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INDIAN EXPRESS / KRISHNADAS RAJAGOPAL
Clean credentials and a transparent motive or objective is the least a public interest litigant is expected to have, said the Supreme Court on Thursday, laying down its benchmark for entertaining PILs. In a strongly-worded judgment, the apex court formalised its disapproval of how “masked phantoms”, acting from behind, settle private scores by using the PIL mechanism. The court specifically referred to “frivolous” litigants as busybodies who should know that the Supreme Court does not any longer “encourage” their reckless allegations via PILs.
This judgment is the first time the Supreme Court has said in a written verdict as to what it expects from PIL litigants ever since Chief Justice of India S H Kapadi’s tenure saw the court take a consistent zero-tolerance stand against frivolous PILs. “Huge cost will be imposed for filing frivolous PILs,” Chief Justice Kapadia had announced hours after he assumed office as top judge on May 12, 2009. Following this, the exodus of PILs has considerably shrunk, though “genuine” ones are duly entertained.
“By now it ought to be plain and obvious that this Court does not approve of an approach that would encourage petitions filed for achieving oblique motives on the basis of wild and reckless allegations made by individuals, ie, busybodies,” a Bench of Justices B Sudershan Reddy and SS Nijjar observed in their March 29 judgment released on Thursday.
The Bench overruled an Andhra Pradesh High Court decision of April 2010 in which it set aside the services of a retired IPS officer on special duty with the Tirumala Tirupathi temple.
The High Court’s decision was on a public interest petition filed by one S Mangati Gopal Reddy, who alleged in court that the IPS officer, P Seshadri, was involved in the loss of “300 gold dollars” from the temple and should not continue in office.The Supreme Court, surprisingly, found that the High Court had decided against Seshadri with very little information about Reddy himself, except that he is an “agriculturist” by profession and a “staunch devotee of Lord Venkateshwara (the temple deity) since childhood”.
“The parameters within which PILs can be entertained have been laid down. The credentials, the motive and the objective of the petitioner have to be apparently and patently aboveboard. Otherwise the petition is liable to be dismissed at the threshold,” the judgment stated. Reasoning as to why it continues to skeptical about a large number of PILs, the Bench speaks for the Supreme Court when it says that “judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking”.
“This Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind,” it said.
MANOJ MITTA IN THE TIMES OF INDIA
NEW DELHI: The unseating of central vigilance commissioner PJ Thomas is the latest breakthrough made by the Supreme Court in the course of a resurgent judicial activism under the leadership of Chief Justice SH Kapadia. The ouster of Thomas, who was earlier telecom secretary, comes close on the heels of resignation of his minister A Raja, again on the Supreme Court’s prodding through a public interest litigation (PIL) related to the 2G scam.
The vigorous manner in which the SC has pursued a range of PIL cases in recent months has marked a new phase and a sharp contrast to the earlier phase when KG Balakrishnan was the chief justice. Many government leaders consider the court now a thorn in their flesh, while to the common man, the judiciary is once again seen as a source of hope — the sole institution that has the gumption to stand up to the high and mighty.
Legal experts say under Kapadia the court’s credibility has been restored after the damage it had suffered during the three-year tenure of Balakrishnan, whose kin are now under the scanner for amassing wealth disproportionate to their known sources of income. The renewed efforts to hold the influential to account have helped the institution put behind the unsavory controversies of the earlier regime — such as the reluctance to disclose the assets of judges and the abortive move to elevate a judge allegedly with disproportionate assets.
The display of such extraordinary commitment to probity in public life was, in fact, consistent with a statement made by Kapadia at the time of his appointment as CJI in May 2010. “I come from a poor family. I started my career as a Class IV employee and the only asset I possess is integrity.”
But as regards the idea of PILs, Kapadia seems to have had a rethink while in office. For, on his very first day as CJI, Kapadia, far from extolling the virtues of PIL cases, struck a note of warning by declaring that those filing frivolous PILs would be charged huge penalties. He also said the procedures for PILs would be tightened.
But as it has turned out, for PILs with merit, there hasn’t been a more sympathetic court than the one headed by Kapadia. The petition against Balakrishnan, for instance, was entertained despite Kapadia’s own acknowledgement that there were deficiencies in it. He made several administrative reforms to ensure that PILs received due attention. Among other things, he broke from the past practice of the CJI’s bench monopolising PIL cases. Kapadia shared major PIL cases with other benches, including one headed by a judge who is 11th in the order of seniority, Justice G S Singhvi. It is the bench consisting of Singhvi and Justice A K Ganguly that has been relentlessly pushing the CBI to probe all the culprits in the 2G scam, from among politicians, bureaucrats and industrialists.
Since the Radia tapes were connected with the 2G scam, Kapadia’s administration ensured that Ratan Tata‘s petition raising concerns of privacy and other such related matters were all placed before the already charged-up Singhvi bench. In much the same spirit of optimizing judicial resources, Kapadia transferred to Singhvi’s bench a long-pending petition of Amar Singh because of the phone tapping link. It is not just the freshly-filed PIL cases that have been taken up aggressively. The Kapadia bench, for instance, revived the police reforms case which had seen little action during the Balakrishnan years. In a bid to implement the radical verdict delivered five years ago by the then CJI Y K Sabharwal, the current bench for the first time fixed a time frame for states to report compliance of the reforms aimed at reducing political abuse of the police forces.
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Ravi Kant , Advocate Supreme Court of India
In the recent times in Haryana Punjab and Western Uttar Pradesh there has been a spate of such killings and the trend is continuously on the increase. Increasingly the trend is being reported from across the country That this trend is continuously on the rise and the adverse publicity being given to the issue in the media has created a sense of fear among the youth, individuals and couples who may be intending to get married. In many cases the pressure is so much that the Couples tend to commit suicide. Due to this severe human rights violations and violation of fundamental rights are happening. In many cases it culminates in the killings of couples.
Honour and Society in relation to women
According to the former UN Special Rapporteur on violence against women: “Honour is generally seen as residing in the bodies of women. Frameworks of ‘honour’, and its corollary ‘shame’, operate to control, direct and regulate women’s sexuality and freedom of movement by male members of the family. Women who fall in love, engage in extramarital relationships, seek a divorce, choose their own husbands are seen to transgress the boundaries of ‘appropriate’ (that is, socially sanctioned) sexual behaviour. ‘Regulation’ of such behaviour may in extreme cases involve horrific direct violence – including ‘honour’ killing…In these contexts, the rights of women (and girls) to control their own lives, to liberty and freedom of expression, association, movement and bodily integrity mean very little.” (Radhika Coomaraswamy)
Women are forced to consider every aspect of their life from the perspective of their ‘honour’ as a quality which is felt to reflect both the entirety of their social worth and the reputations of the male members of their family. Male reputation is dependent upon female ‘honour’. Female ‘honour’ is passive in nature centring on qualities such as subordinacy, modesty and endurance, whereas male ‘honour’ is active and dynamic, centring on qualities such as self-assertion, dominance and social status. (Bourdieu 2001)
Once female honour is ‘lost’ through any act which is considered ‘dishonouring’ in her society, there is no way it can be regained. Other members of her family may face pressure to take violent action which will restore their position in society. Male and family ‘honour’ is restored through violence, coercion or killing.
In some cases, an ‘honour’ killing may be a formal collective decision, made by family members, who not only decide whether a girl or woman’s behaviour merits death, but may also plan how the murder will be committed and who will carry it out. Where this has occurred, the chances of the family ‘forgiving’ the insult to their ‘honour’ are slight, and a potential victim may need protection in perpetuity, particularly where the family can call upon an extended network of relatives, friends and associates to assist them.
Other ‘honour’ killings are less structured, but still carry the same collective pressure and the same motivation to police women’s behaviour, to demonstrate their commitment to patriarchal society, and to have a deterrent effect on other girls and women who may also be chafing against the restrictions which dominate their lives. In all cases, the control of women is paramount, who from puberty are judged to be hazardous to male society and so subject to restrictions in movement, dress and behaviour. ‘Honour’ killings result from a culture of ‘honour’ oppression and represent the only the most overt and brutal method of controlling and subordinating women within male-dominated ‘honour and shame’ societies.
Gender roles are patriarchal
Wives and daughters are expected to be subordinate, even servile, to their fathers and husbands, and even their own sons. Women’s role in life is ancillary: as a dutiful daughter, an obedient wife and a self-sacrificing mother. Women are not expected to show autonomy, but to work without complaint for their families or for their husbands, and to bear children for her husband’s family, especially sons. Elders dominate younger members of the family who have little ability to determine their own lives. Young woman are disempowered both as women, and through their youth. A woman’s ‘honour’ is directly linked to her conformity to these traditional and very restrictive roles. Any perceived rebellion against these circumscriptions may be construed as a loss of ‘honour.’ The ideology of ‘honour’ is one which directly results from patriarchal gender roles, wherein conformity to these roles is demanded and a source of status and acceptance within the community; and where deviance is censured. For males, ‘honour’ is gained through exerting dominance and control over females and younger males, and lost through weakness and failure to control; it can be restored through violent and coercive acts. For females, ‘honour’ is preserved through subordinacy, obedience, chastity, endurance and virginity, and it may be lost through any autonomous acts, particularly those relating to sexuality, and cannot be restored.
‘Honour’ in this sense is often a social quality: it revolves around the public perception of the individuals more than their actual behaviour. Causing a scandal or gossip within the community is often the most significant aspect of an offense against ‘honour’. Ultimately, it is those with power within the family and the community (men and older women who have proved their internalization of the ‘honour’ code through the policing of younger women) who decide what acts are ‘honourable’ or ‘dishonourable.’ Some actions which are strongly linked with ‘honour’-based violence are:
- Pre-marital pregnancy
- Having unapproved relationships
- Refusing an arranged marriage
- Asking for divorce
- Leaving the family or marital home without permission
- Causing scandal or gossip in the community
- Falling victim to rape
Many of these relate either to loss of reputation as a virtuous and marriageable woman through autonomous behaviour such as having unapproved relationships or falling victim to rape, (which is often blamed upon the victim). Others relate more to a woman’s actions that jeopardize marriage agreements brokered between or within families, such as refusing arranged marriages or seeking divorce.
Cultures where ‘honour’ violence is practiced will also tend to find other forms of violence against women socially acceptable. Domestic violence and violence against children may also be widespread and characterized as rightful ‘chastisement’, of which ‘honour’-based violence forms a specific subcategory.
Honour Killings and Khap Panchayats
The cases of honour killings have been reported from across the country. The problem in the recent times have been increasingly reported from Haryana and Western Uttar Pradesh. In these region the Khap Panchayats have been in the forefront and have been issuing illegal fatwas. Most of the khap panchayat diktats are against couples who are not from the same gotra. In fact, not more than one case of honour killing has been of a couple within the same gotra. By creating the false impression that all marriages of choice between young couples are incestuous, what the khaps are actually opposing is the right to choose a marriage partner. Even after the judgment in Manoj and Babli Case by a Karnal Court in which five people were awarded the death penalty the diktats of such Khap Panchayats have increased and have become more and more organized. The killings are increasingly being reported and being glorified by such community groups. The Khaps are defiant and unrepentant . They just refuse to acknowledge the Rule of Law.
There is clearly a long way to go before the rule of law can be enforced across India in the teeth of deep-rooted social oppression and prejudice and ideas that have come down generations. It will take time before constitutional and legal equality and democracy can translate into genuine social democracy on the ground.
The Judiciary and Honour Killings
In July 2006, the Supreme Court of India termed the practice an act of barbarism. It ordered the police across the country to take stern action against those resorting to violence against young men and women of marriageable age who opted for inter-caste and inter-religions marriages. In the case of Lata Singh Vs State of Uttar Pradesh and others ( 2006 (5) SCC 475 ) the apex court directed : “Since several such instances are coming to our knowledge of harassment, threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or interreligious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law. We sometimes hear of ‘honour’ killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism”.
On June 23, 2008 Justice K.S. Ahluwalia of the Punjab and Haryana High Court made a revealing observation while simultaneously hearing 10 cases pertaining to marriages between young couples aged 18 – 21: “The High Court is flooded with petitions where … judges of this Court have to answer for the right of life and liberty to married couples. The State is a mute spectator. When shall the State awake from its slumber [and] for how long can Courts provide solace and balm by disposing of such cases?”
On June 22 , 2010 the Supreme Court issued notice to the Central Government and nine states in the face of rising Honour Killings across the country on the Public Interest Litigation filed by Shakti Vahini. The court wants to know what steps are being taken to curb such violence.
Honour Killings – Violation of Rights
Honour Killings are homicide and murder which are serious crimes under the Indian Penal Code. It also violates Articles 14, 15 (1) & (3) 19, 21 and 39(f) of the Constitution of India. It is against the various International Commitment the Government of India has made in the “United Nations Convention on the Elimination of all forms of Discrimination against Women” (CEDAW) of which India is a signatory and has also ratified the convention. It is also against the spirit of Universal Declaration of Human Rights and International Covenant on Civil and Political Rights.
Honour Killings The Proposed Legislation
The Central Government has made its view clear that it is coming out with a new legislation. Under the proposed law, members of the khap panchayats or the victim(s)’ families, if their action results in the death of the person or persons who they feel went against the tradition or wishes of the khap, will be punishable with the sentence of death or life imprisonment. In such cases, the entire panchayat will be held responsible. More importantly, the proposed law puts the burden of proof on the accused, thereby making them responsible to prove their innocence in the event of death taking place due to their actions.
Among other things, the draft bill intends to add a clause to Section 300 of the IPC. Section 300 deals with the crime of murder, the maximum punishment for which is death and/or a fine. It also wants to amend the Indian Evidence Act and the Special Marriages Act, 1954, which would do away with the provision for the mandatory 30 days notice period for marriages intended to be solemnized under this Act. The new bill is also expected to bring in a definition of such honour killings so that it will be treated as special crime and will ensure clarity for the law enforcement agencies.
The writer is President of Shakti Vahini and National Network of Lawyers for Rights and Justice.
BY SANJEEV AWASTHI
Mangalore: An Air India Express Boeing 737-800 aircraft arriving from Dubai with 167 on board 2010 tragically crashed at Mangalore International Airport at 6.30 am today (22 May 2010). It is reported that the plane overshot the runway while landing and fell over a cliff resulting in this disastrous crash. Very few are known to have survived this horrific crash.This was no accident, but the direct result of deliberate failure of officials at the highest level in the Director General of Civil Aviation, Airports Authority of India, Ministry of Civil Aviation and the Government of Karnataka for allowing this 2nd runway to be built in criminal negligence of applicable norms and standards. Such a strong charge is being made as the likelihood of this kind of a crash (the worst case scenario) was predicted. A series of Public Interest Litigations were fought by the Manglore based Environment Support Group (ESG) to stop the construction of this 2nd runway in Mangalore airport on grounds that the design simply did not conform to the most basic national and international standards of airport design. The PILs also highlighted that the airport does not conform with the most minimum safeguards for emergency situations – particularly during landings and takeoffs, and could not have emergency approach roads within a kilometre on all sides of the airport as required.
It is truly sad that because of the failure of key decision makers at the highest levels so many innocent lives have been lost. It is quite possible that many lives were lost as emergency rescue teams could not access the crash site due to the difficult terrain (a valley) for over a hour after the incident, even though it was proximal to the site.
Vimana Nildana Vistharana Virodhi Samithi (Local Communities Alliance Against Airport Expansion), Bajpe and Environment Support Group had repeatedly highlighted the high risk expansion of the Mangalore airport during the late 1990s. The expansion was proposed to enable flight movements of wide bodied aircrafts, such as Airbus A 320. Authorities were repeatedly informed that the proposal did not at all conform with the standards prescribed for runway design as laid down by the Director General of Civil Aviation, National Building Code of India and Ministry of Civil Aviation. Further, considering that the airport was proposed for international flights, a case was also made that the 2ndrunway could not conform with International Civil Aviation Authority standards due to terrain limitations.
No one in authority cared to listen to our fervent pleas. This even when we demonstrated through a variety of representations that that the site chosen for expansion at Bajpe was surrounded by deep valleys on three sides of the runway and did not provide for emergency landing areas as required.
This neglect forced ESG to move the High Court of Karnataka in a PIL in 1997 (Arthur Pereira and ors. vs. Union of India and ors., WP No. 37681/1997). A key concern raised was that the 2nd runway in Mangalore could not meet the standards required in dealing with an emergency, particularly during landings and takeoffs – a time when air crashes are most likely to happen.
The Airports Authority of India filed an affidavit in Court dismissing all our concerns and stated this, amongst other things:
“It is submitted that as regards the apprehensions of the petitioner that the Length and width of the runway is insufficient for a plane making an emergency landing, the same is without any basis. It is respectfully submitted that all the requirements as per the ICAO recommendation will be met and that there has been no infringement of any of the recommendation and limitation therein.”
On the basis of this affidavit, Hon’ble Chief Justice Mr. Y. Bhaskar Rao and the Hon’ble Mr. Justice A. M. Farooq (as their Lordships then were) dismissed this PIL.
Even though alternative sites existed, the authorities proceeded obstinately to expand the airport yielding to pressures from business, real estate and hotel lobbies who benefited immensely from an airport at Bajpe. Politicians keen to make the expansion a part of their legacy overlooked all concerns raised. Even at the existing Bajpe alternative sites existed to expand the airport, that conformed with most safety norms, but this site was not pursued as it would affect large landholders and influential people. Consequently, nothing whatsoever was done to respond to the concerns ESG raised about the risks involved in the 2nd runway.
On 8th March 2004, ESG wrote to Dr. Naseem Zaidi, Chairman (Addl. Charge) & Joint Secretary, Airport Authority of India, Ministry of Civil Aviation, Government of India, reminding him of the need to comply with the Supreme Court direction. In particular ESG highlighted that “such action would jeopardize passenger safety, put local communities to risk, needlessly dislocate people by acquiring land on a location that in no way could comply with the said provisions and thereby contributed to gross wastage of public money and resources.” ESG did not get any response.
Six years later today we are mourning the unfortunate death of so many people who should have been alive. We are clear that this is no accident, but a direct result of the series of deliberate failures of officials and key decision makers at the highest levels of all authorities connected with the decision to allow the 2nd runway to be constructed and commissioned. Of course all sorts of explanations will be on offer, but none of that can bring lost lives back or cure the tragedy that has wrongly befallen so many families.
India today is frenetically building airports all over, and for all sorts of flaky reasons. Such is the political, bureaucratic and corporate pressure to build and expand airports that anyone questing the rationale is quickly dubbed as a “busybody”, “useless interloper”, “promoted by vested interest” and raising “frivolous” concerns.
ESG demands the Union Minister of Civil Aviation to orders an impartial Commission of Enquiry into the causative factors of this crash, especially investigating the absolute lack of conformance with basic runway design standards and emergency approach measures.
Pioneer News Service | New Delhi
In a judgement that will come as major relief to corrupt politicians and babus, the Supreme Court has held that courts cannot order probe into corruption allegations but simply monitor investigation in the ongoing cases. The judgement passed by a Bench headed by Chief Justice KG Balakrishnan came on a PIL filed against Sikkim CM Pawan Chamling, who was accused of amassing disproportionate assets. In the past, the Supreme Court had ordered several probes in corruption cases involving public servants. The latest being the decision to order a CBI probe against Samajwadi Party chief Mulayam Singh and his family members on a PIL filed by one Vishwanath Chaturvedi.
Dismissing the PIL filed by a local politician Kunga Nima Lepcha, the Bench said, “This court cannot sit in judgement over whether investigations should be launched against politicians for alleged acts of corruption.”
Giving reasons for not yielding to the petitioner’s demand to order a probe into the evidence collected against Chamling, the Bench, also comprising Justices P Sathasivam and JM Panchal, said, “The Supreme Court of India functions as a Constitutional Court as well as the highest appellate court in the country. If the Supreme Court gives direction for prosecution, it would cause serious prejudice to the accused, as the direction of this court may have far-reaching persuasive effect on the court which may ultimately try the accused.”
The judgement threatens to have far-reaching consequences. On one hand, where it whittles down the power of courts under public interest litigation (PIL); on the other hand, it insulates corrupt babus and politicians from the purview of PILs.
The judges noted, “The onus of launching an investigation into such matters is clearly on the investigating agencies such as the State Police, Central Bureau of Investigation (CBI) or the Central Vigilance Commission (CVC) among others. It is not proper for this court to give directions for initiating such an investigation under its writ jurisdiction.”
“While we can appreciate the general claim that the efforts to uncover the alleged acts of corruption may be obstructed by entrenched interests,” the Bench added, “It is only on the exhaustion of ordinary remedies that perhaps a proceeding can be brought before a writ court.”
In the past, it was interference by the Supreme Court that led to cases being filed against corrupt politicians.
Making a distinction in matters where the court could interfere under writ jurisdiction, Chief Justice Balakrishnana, writing the decision for the Bench, said, “In the past, writ jurisdiction has been used to monitor the progress of ongoing investigations or to transfer ongoing investigations from one investigating agency to another. Such directions have been given when a specific violation of Fundamental Rights is shown, which could be the consequence of apathy or partiality on part of investigating agencies among other reasons.”
In all these circumstances, the court held, “The writ court can only play a corrective role to ensure that the integrity of the investigation is not compromised.” But on the aspect of ordering an investigation, it maintained, “That function clearly lies in the domain of the executive and it is up to the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation.”
Being the protectors of civil liberties of the citizens, the Supreme Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
On the question whether High Courts can order CBI enquiry , the Supreme Court ( STATE OF WEST BENGAL & ORS. VERSUS THE COMMITTEE FOR ROTECTION OF DEMOCRATIC RIGHTS, WEST BENGAL & ORS. Civil Appeal No 6249 of 2001) concluded the following :
(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of “the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review”.
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.
(v) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.
45.In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
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