LAW RESOURCE INDIA

Sex Workers Rehabilitation Case latest orders of the Honourable Supreme Court of India

Posted in SEXUAL OFFENCES, SUPREME COURT, TRAFFICKING by NNLRJ INDIA on September 16, 2011

This case was initially a criminal appeal, but later was converted into a Public Interest Litigation suo motu by our order dated 14th February, 2011. By that order we dismissed the criminal appeal of the appellant and upheld his conviction. However, we were of the opinion that the problems of sex workers required urgent attention by this Court. Hence, we proceeded thereafter to continue with the case as a Public Interest Litigation and passed several orders    thereon,     including      an       order   dated     19.07.2011 setting up a Panel with Mr. Pradip Ghosh, Senior Advocate, as its Chairman.

Today, the case has been listed again before us and a Third    Interim     Report   dated  12.09.2011 of     the   Panel appointed by our order dated 19.07.2011 has been filed before us by the Chairman of the Panel Mr. Pradip Ghosh, learned senior counsel.

From a perusal of the report submitted by the Panel report it appears that the Panel has been doing very good and sincere work in connection with the task which we have entrusted to it. The Panel has taken great pains and has held    regular   meetings   to     discuss      the    problem   of    sex workers. We have earlier pointed out in one of our orders that the problem of sex workers cannot be resolved in a very short time and will require long, patient effort. 

Our  initial aim was to create awareness in the public that sex workers are not bad girls, but they are in this profession      due    to    poverty. No   girl    would   ordinarily enjoy this kind of work, but she is compelled to do it for    sheer   survival.       Most     sex    workers   come   from    poor families,   they    are    subjected       to   ill    treatment   by    the owners of the brothels, they are often beaten, not givenproper food or medical treatment, and made to do this degrading work. Probably much of the money paid by their customers is taken away by others.

 We are happy to note that the Panel has set about its task in right earnest, and is considering ways and means to implement our ideas so that the sex workers can get some technical training through  which they can earn their livelihood and thus lead a life of dignity which is guaranteed by Article 21 of the Constitution of India

In the Third Interim Report the Panel has prayed for the following :-

(a)    An appropriate order directing the State Governments and the Local Authorities to issue Ration Cards to the sex workers treating them as persons in special category and relaxing the rigours of the Rules/requirements regarding the verification   of   their   address   and without mentioning their profession in the Card;

 (b) An appropriate order be made directing the Central Government and the Election Commission to issue Voter’s Identity Cards to the sex workers in relaxation of the rules/requirements in that behalf and without insisting on strict proof of their address/profession and without specifying their profession on the face of the Card;

(c.) An order be made directing the Central Government and the State Governments to ensure that the admission of the children of sex workers     in appropriate classes in the Government schools and Government sponsored schools and the schools run   by   the   Municipal   and  District   level authorities is not hampered in any way, because of their impaired social status.

(d) An appropriate order be made directing the Central Government to suitably alter and widen the UJWALA Scheme within a period of six months as directed by order dated 24.08.2011 (vide paragraph 26 of the said order) made in this matter.

(e) An order or direction be made to the effect hat the amount paid or to be paid by the Central Government, State Governments and the Union     Territories to the Secretary General of this Hon’ble   Court  as   directed   by  order   dated 24.08.2011, be deposited in the Bank Account of the Panel in the UCO Bank Supreme Court Compound Branch, in the name of “Panel Appointed by Supreme Court in Criminal Appeal No. 135/2011″      to be     operated jointly by the Chairman of the Panel Mr. Pradip Ghosh and Mr. Jayant Bhusan, a member of the Panel, in terms of the order dated     24.08.2011.

(f) Such appropriate orders as may be deemed fit  and proper be made, for compliance by the Central Government of the earlier order made by the     Hon’ble Court on 24.08.2011 with regard to office accommodation, secretarial staff assistance and furnishing     the     office    with    necessary infrastructure and to furnish report of compliance  in this Hon’ble Court within a period to be fixed by the Hon’ble Court.”

 We are of the opinion that the suggestions of the Panel are   good      suggestions. Sex   workers    face     great difficulty      in   getting       ration      cards,    voter’s     identity cards or in opening bank accounts, etc. We are of the opinion that the authorities should see to it that sex workers do not face these difficulties as they are also citizens of India and have the same fundamental rights as others.

We, therefore, recommend that the suggestions made by the Panel in its Third Interim Report (which has been quoted above) shall be seriously taken into consideration by the Central Government, the State Governments and other authorities      and      hence    all    efforts       shall   be   made    to implement these suggestions expeditiously. If there is any difficulty in implementing them, then on the next date we should be told about such difficulty.

Needless to    say,     without      a   proper     office      and infrastructure the Panel will not be able to discharge its duties properly. We, therefore, again request the Central Government and the State Government of Delhi to do the needful in this connection expeditiously.

 We are informed that in pursuance of our order dated 24.08.2011 the  Central Government has deposited a sum of Rs. 10 Lakh with the Secretary General of this Court. Some of the States/Union Territories have made payment as directed   by   us.   However,   some   of   the   States/Union Territories are yet to make payment. We direct that those States or Union Territories which have not yet made payment shall make payment within three weeks from today (except those which have no sex workers).

We further direct that the amount deposited with the Secretary General of this Court shall be transferred to the account of the Panel in the UCO Bank, Supreme Court Compound Branch in Savings A/C No. 02070210000939.

List this case on 15.11.2011 by which time another report shall be submitted by the Panel. We hope and trust that the recommendations made by the Panel will be implemented by then by the concerned authorities.

J   (MARKANDEY KATJU)

J (GYAN SUDHA MISRA)

CENSORSHIP AND THE STATE

Posted in CENSORSHIP LAW by NNLRJ INDIA on September 6, 2011

A.G. NOORANI IN THE FRONTLINE

The much-amended Cinematograph Act of 1952 needs a complete overhaul that takes film censorship out of the state’s purview.

THE entire system of film censorship in India is brazenly unconstitutional and a fraud on the Supreme Court. It is in utter disregard of the report of one of the most distinguished committees ever which toiled on film censorship 40 years ago. The structure erected by the outdated and much amended Cinematograph Act, 1952, is scandalous. It is designed to foster organised patronage. Politically, it establishes overwhelming state dominance to ensure the film industry’s dependence on Ministers and civil servants.

Like other Indians, members of the industry – actors, producers and distributors – wake up from their somnolence episodically, mostly when their own rights are affected. Those who protested over the cuts imposed on Prakash Jha‘s Aarakshan seemed to have no time for Ajay Sinha’s Khap, a movie on honour killings. It could not be screened in the one State that needed its message the most, Haryana. In her article, T.K. Rajalakshmi (“Reality show” , Frontline, August 26, 2011), remarked: “No one in the Mumbai film industry, save a few, bothered to back the beleaguered film director.” The police actively prevented the screening of the film.

On August 10, Amitabh Bachchan, who stars in Aarakshan, blogged: “If creative expression is to be curbed by institutes that wish to dictate their terms… above the conditions of… recognised constitutional formats… then we might as well accept that we live not in the sanctity of the tenets of democracy but a most unfortunate fascist conditioning.”

He must be congratulated on his belated discovery of a grim reality. A pity that it dawned on him only when his film was being brutalised. Our publicity-hungry civil liberty “activists” were conspicuous by their silence on the issue. The Athenian lawgiver Solon (640-558 B.C.), when asked how a people could preserve their liberties, said: “Those who are uninjured by an arbitrary act must be taught to feel as much indignation at it as those who are injured.” In India, such a consciousness is absent; protests are episodic. They subside and things go on as before. There is no national, non-political civil liberties organisation or movement.

Do not trust our politicians to fill the void. As a foreign correspondent once remarked, the Indian politician wakes up to deprivation of liberty only when the prison doors are shut behind him. Khaps provide musclemen during election. In Mumbai, two Ministers and a politician extracted from Prakash Jha his consent to cuts in order to gain some brownie points. One regrets the cuts; but one cannot condemn him. The system is frail, and crores of rupees are involved.

Cinematograph Act

It is time to reflect on the state of the law on film censorship. What are the travails that lie before the producer of a film as he seeks a certificate for its public exhibition, unrestricted or otherwise? The Act of 1952 establishes at the apex of the structure a Board of Film Certification comprising a chairman and not less than 12 and not more than 25 other members. It is to this board that any application for certification for public exhibition must be addressed. The chairman and members are appointed by the Central government. They do not enjoy security of tenure; no one in the entire edifice does. No qualifications are prescribed either.

New Delhi also appoints “at such regional centres as it thinks fit advisory panels” comprising such number of persons as it thinks fit. In this instance, “qualifications” are prescribed in a statement of the obvious. They must be “qualified in the opinion of the Central government to judge the effect of films on the public” (emphasis added, throughout). By this test, even literacy is not essential. Regional centres will have a powerful official, the regional officer, besides the chief executive officer of the board.

It is no reflection on the highly respected Chairperson now in office, Leela Samson, or on her immediate predecessor, Sharmila Tagore, to say that some of their predecessors, in the past, were appointed to give “jobs for the boys”. It is a notorious fact that the members of advisory panels are changed with every change of government in New Delhi. All are culpable in this – from Indira Gandhi and the Janata Party to the present.

Advisory panels are constituted under Section 5 of the Act. Its clause (3) says: “The Board may consult in such manner as may be prescribed any advisory panel in respect of any film for which an application for a certificate has been made.” The expression “as may be prescribed” is legalese for prescribed by rules made by the government. It is not the Act of 1952 passed by Parliament but the Cinematograph (Censorship) Rules, 1958, made by the government which set up two more powerful bodies – an examining committee (Rule 22) and a revising committee (Rule 24). Members of both are drawn from among members of the advisory panel. The examining committee plus “an examining officer” (a CEO or regional officer, or even the secretary to the chairman). It is the regional officer who appoints this committee when he receives the producer’s application for certification.

On receipt of the opinions of its members, in writing, the chairman of the board can refer the matter to a revising committee, either of his own motion or on the request of the applicant. The revising committee consists of members of the board or of an advisory panel, other than those who served on the examining committee. They are appointed by the chairman. He can pack the revising committee with those who will not disagree with his disagreement with the examining committee. If the chairman disagrees with the decision of the revising committee as well, the board shall itself examine the film or refer it to another revising committee; in either case for a final decision.

Anyone aggrieved by an order of the board, arrived after these protracted proceedings, can move an Appellate Tribunal (Section 5 C and D). It comprises a chairman and not more than four other members, all appointed by the Central government. The chairman must be either a retired judge of the High Court or a person qualified to be a High Court judge – a party hack of 10 years’ practice as a lawyer qualifies as chairman. As for its members, all that is required of them is that, like members of advisory panels, they “must be qualified to judge the effect of films on the public”. Two things stand out in this system: (1) No qualifications are prescribed for anyone, from the chairman downwards; (2) Everyone, the chairman, members of the advisory panel, and even the judge who presides over what is supposed to be a judicial “Tribunal”, is a daily-wage earner. He or she holds office, in every single case, “during the pleasure of the Central government”.

There is a sleight of hand here. The Act empowers the government to make rules specifying the “terms and conditions of service”. It has abused this power to define the tenure of service and amass to itself the power to sack one and all. It is through this maze of arbitrary power that the hapless producer has to steer his film. His travails do not end even after he wins his case before the supposedly judicial tribunal.

Unregulated powers

The government wields vast “revisional powers” exercisable “at any stage” of the process, not only over the board but also over the tribunal (Section 6). Have you ever heard of the executive sitting in appeal over a judicial body? If the board receives a complaint in respect of a certified film, all that it can do is to refer it to its masters, the Central government. The board, it must be emphasised, is in law a quasi-judicial body. However, the scope of the state’s revisional powers is unregulated and undefined. No grounds are specified; no guidelines are indicated. The entire paraphernalia of the board, the advisory panel and the two committees can be reduced to naught by a mere fiat from New Delhi. The state’s clear objective underlying the Act of 1952 is to have a stranglehold over the film industry. No wonder Information and Broadcasting Ministers and Secretaries are sought after so ardently.

The Government of India can ask the chairman to “re-examine” a film – even one upheld by the tribunal – and to do so “in such manner and with such assistance as may be specified in the direction”. It could be the “assistance” of anybody. On receipt of the chairman’s opinion, thus arrived at, the government proceeds to “pass such orders” as it pleases (Section 6 and Rule 32). It can direct a certified film to be uncertified (Section 6 (2) and Rule 31) or suspend its exhibition “for such period as may be specified”. The entire edifice of film censorship collapses like a house of cards. It cannot be emphasised too strongly that State governments have absolutely no right or power to ban a film. Section 13 (1) of the Act clearly says, “The District Magistrate in respect of the district within his jurisdiction, may, if he is of opinion that any film which is being publicly exhibited is likely to cause a breach of the peace, by order, suspend the exhibition of the film and during such suspension the film shall be deemed to be an uncertified film in the State, part or district, as the case may be.”

Statutory discretion can be exercised only by the authority designated by the law to exercise it. The District Magistrate’s power is limited to his district and hinges on the likelihood of “breach of the peace”. State governments cannot lawfully order District Magistrates to ban films throughout the State. The District Magistrate’s order, moreover, is subject to confirmation by the Central government (Section 13 (2)).

Illiteracy is written into the law. Rule 41 (4) reads thus:

“(a) In cases where the examining committee, after examination of the film, considered that a scrutiny of the shooting script is necessary or the authenticity of the incidents depicted in a film of historical, mythological, biographical or legendary nature is to be verified, a provisional report to that effect shall be submitted by the regional officer to the chairman within a maximum of three working days after such examination.

“(b) A written communication shall be sent to the applicant within a maximum of three working days following the receipt of the chairman’s orders on the provisional report referred to in clause (a) and the applicant shall submit the script or the authentic sources on which the subject of his film is based within ten days from the date of receipt of such communication.

“(c) In cases where the members of the examining committee after the examination of the film submit to the chairman a provisional report indicating that expert opinion on subjects depicted in the film such as subjects relating to defence or foreign relations or any particular religion or law or medicine or any other subject, should be sought before the final report is submitted, the chairman may after taking into consideration the circumstances of the case specify a time limit for obtaining the expert opinion and for the submission of the final report of the examining committee thereafter.

“(d) In other cases, the script submitted by the applicant or the authentic sources furnished by him shall be scrutinised by the examining officer and the final report of the examining committee shall be forwarded by the examining officer to the chairman within ten days from the date of receipt of the script or the authentic sources, as the cast may be.” A script written by a litterateur is subject to such a scrutiny.

There is a fundamental objection to this bizarre provision. Evidently, its authors were ignorant of the very concept of an historical novel. Fiction based on history need not be historically correct. And who is to judge the accuracy of the historical narrative, the government’s hand-picked appointees? Expert opinion is as irrelevant as citation of sources. It is the richness of the imagination that matters, as does the style in the writing and in the depiction in the film.

The Centre can go so far as to impose “President’s Rule” on the board, making its chairman the Governor. Section 7B reads thus: “The Central government may, by general or special order, direct that any power, authority or jurisdiction exercisable by the board under this Act shall in relation to the certification of films under this part and subject to such conditions, if any, as may be specified in the order, be exercisable also by the chairman or any other member of the board, and anything done or action taken by the chairman or other member specified in the order shall be deemed to be a thing done or action taken by the board.”

But then, the Supreme Court itself has laboured under a completely wrong notion of what a historical novel is about. In 1990, Bhagwan S. Gidwani’s historical novel The Sword of Tipu Sultan inspired a producer to make a TV serial. Huge protests followed. Doordarshan’s decision explicitly to disavow any claim to historical accuracy or authenticity was one thing. What was saddening was the lapse on the part of the Supreme Court. Doordarshan’s formulation was made worse by the court sanctioning the words: (it) “has nothing to do with either the life or rule of Tipu Sultan”. This is manifestly incorrect and makes a mockery of the very concept of historical fiction; it is fiction inspired by history.

Disposing of a special leave petition seeking a ban on the airing of the serial, the Supreme Court directed in February 1991 that the following announcement be made along with the telecast of each episode: “No claim is made for the accuracy or authenticity of any episode being depicted in the serial. This serial is a fiction and has nothing to do either with the life or rule of Tipu Sultan. The serial is a dramatised presentation of Bhagwan Gidwani’s novel.” This is utterly wrong on the part of any court of law. The Supreme Court has since acted like a mediator asking writers to make cuts in works of solid historical research instead of taking a firm stand on their fundamental right to freedom of speech and expression.

The G.D. Khosla report

The stranglehold of the government and sheer arbitrariness, writ large over the Cinematograph Act, 1952, were strongly criticised in the report of the Enquiry Committee on Film Censorship headed by G.D. Khosla, a former Chief Justice of the High Court of Punjab. It was appointed on March 28, 1968, and submitted its report on July 26, 1969. It won praise from the Supreme Court. Its analyses expose very many provisions of the Cinematograph Act, 1952, the Cinematograph (Censorship) Rules, 1983 ( in supersession of the Rules of 1958), and the archaic censorship guidelines, framed by the Government of India 20 years ago on December 6, 1991, to be unconstitutional.

Fundamentally, the Khosla report envisaged an “ independent and autonomous Board of Film Censors”. The present board is neither. It urged repeatedly (pages 56, 59, 99 and 100) that the censorship code be drawn up by the board itself and not by the government. The present code is a diktat by the government, which also acts as the supreme authority for its enforcement. Few committees had a more distinguished membership. Among its members were R.K. Narayan, K.A. Abbas, Romesh Thapar, Umashankar Joshi, Tara Sapre, and the chairman of the board of censors. Nargis was unable to participate in the proceedings and her substitute, Balraj Sahni, too, did not participate “owing to his heavy professional commitments”. Among the witnesses who appeared before the body were Satyajit Ray, E. Alkazi, Pahari Sanyal, Sohrab Modi, V. Shantaram, Prithviraj Kapoor, Hrishikesh Mukherjee, and some leading distributors and film critics.

The report became a bestseller. Attention was focussed on one highly popular recommendation to the neglect of much else: “No court of law will hold that a kiss by itself, irrespective of the circumstances in which it takes place or the individuals between whom it is exchanged, is indecent or immoral. In the same way, nudity of the human form may or may not be indecent. If there is, for instance, a brief shot of a woman undressing and entering a bathing pool, as in the film The Visit, no suspicion of indecency or immorality attaches to the shot which is relevant to the story. On the other hand, there are many scenes of cabaret performances or striptease sequences in Indian as well as foreign film which are obviously introduced in order to titillate the senses and thus make the film commercially saleable. Many of these scenes would be declared obscene even by the most liberal-minded judges.”

The report stressed the point that the fundamental right to freedom of speech and expression (Article 19 (1) (a) of the Constitution) is subject to three conditions – (1) “reasonable” restrictions, (2) imposed by law, and (3) only on grounds specified in Article 19 (2).

It is not unmindful of the need to balance freedom of expression with the interests of society, which naturally depend on the social outlook at any given period. That outlook has become illiberal in many respects: “We have of late become so inured to these restrictions that we cannot even imagine a society in which complete freedom of expression with regard to matters concerning sex was accepted as correct and essential…. We like to salve our needlessly guilty conscience by ascribing a religious significance to these sculptures (at Konark and Khajuraho) but few people are deceived by this mock spiritual argument. The plain fact of the matter is that in those days it was not considered offensive or objectionable to talk, write, paint or chisel images representing sex, sexual relations and even sexual perversities.”

Equally relevant are the report’s censures on the mechanism of film censorship that still prevails save for the introduction of a tribunal. Its verdict, however, can be set at naught by the Ministry of Information and Broadcasting: “No detailed qualifications have been prescribed, under the Rules, for the appointment either of the members of the board or for the personnel of the panels, but it is expected that these persons are possessed of sufficient educational and cultural competence to deal with the matter entrusted to their charge. The chairman holds a statutory appointment. He is appointed without any consultation with the Union Public Service Commission. No specific qualifications for the post have been prescribed.”

Most important defect

Note these censures: “The present board of censors is not an independent body. Its decisions are liable to be set aside by an order of government.… Here we may reiterate the most important defect, namely, the lack of responsibility which the present system entails. For work of such importance it is necessary that persons who are entrusted with it should feel a full sense of responsibility. The rigidity of a code drawn up by a superior power, the inhibition and lack of flexibility resulting from such rigidity, the constant fear of interference and a residual consolation that mistakes will be rectified by a higher authority are features which not only destroy the efficiency of the board but arouse almost universal condemnation of its decisions. It is important, therefore, that state censorship should be exercised not by a department of the state, whose decisions are subject to revision, appeal or interference by the government, but by an independent body which has been given sufficient authority and a sufficient sense of responsibility to deal with the matter finally and irrevocably.”

The word “irrevocably” clearly implies finality to the board’s verdict subject, of course, to the court’s powers. The Information and Broadcasting Ministry then ceases to exercise “revisional” or other overriding powers as it does now. No room for doubt whatever is left when the report discussed the second alternative: “Perhaps the most important advantage of an independent board is that it makes for consistency and uniformity of the censorship policy, because it is immune from changing political influencers and the caprices of the Secretary or Minister in charge of the relevant portfolio.” The report recommended the details of such a set-up.

The Khosla report had no use for the advisory panels of assorted groups of people who comprise the examining and revising committees of today: “We are firmly of the view that the present system of entrusting the preview of films to a panel of honorary examiners, consisting of persons who have little sense of responsibility and who have been appointed in the exercise of governmental patronage, should be completely done away with. It is the censors themselves who must see all films, evaluate them and assume full responsibility for certifying or rejecting them. After giving the matter our most anxious thought, we feel that a Central board of 20 members drawn from various regions and familiar with regional languages will be able to discharge this work competently and expeditiously.”

This also does away with the chairman of the board, an office in the bounty of the Information and Broadcasting Ministry. The report suggested that the chairman of the board should have the status and ranking of a High Court judge and all the members of the board should be full-time, paid members. This single, quasi-judicial body will be fully responsible for drawing up the censorship code and applying it.

The government-ordained guidelines, as at present, must be scrapped: “These guidelines must be drawn up by the censors themselves so that a measure of flexibility is assured and the censors have ample discretion in dealing with each picture as it comes up for certification. It is important not to have a code drawn up by the government under its rule-making authority, for such a code assumes the rigidity of a legal enactment, and does not permit the exercise of discretion, it does not take into account the change in ideology, moral standards and norms of conduct, such as greater freedom in social intercourse between members of both sexes, the gradual erosion of the joint family citadel, the introduction of divorce laws, the changing attitude towards untouchability, the rights of land and factory workers, the status of women, etc. Finally, a rigid code of the type in force now does not encourage the evaluation of a film as one integrated piece which must be assessed and judged as a whole and not as a collection of distinct and separable parts.” The guidelines now in force were framed by the government and richly deserve these censures.

Abbas’ petition

In 1969, K.A. Abbas, one of the members of the Khosla Committee, moved the Supreme Court in view of the cuts imposed on his film A Tale of Four Cities. He challenged censorship of films itself or, in the alternative, the Act and the Rule, as being violative of the fundamental right to freedom of speech and expression. One of the grounds was that there was no appeal to a court or to an independent tribunal. The government conceded that and promised that it “would set on foot legislation” for that and other reforms besides. Without it the Act was void. It was saved from being declared void only by the government’s assurance.

The court delivered its judgment on September 24, 1970. A tribunal was set up only in 1983. On the censorship code, the court tartly remarked: “Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.” The court noted a vital omission in the guidelines and said it should be repaired by positive “directions to emphasise the importance of art to a value judgment by the censors”.

The government’s promise to the Supreme Court to usher in legislation was sought to be fulfilled in 1973. The amending Act was to come in force on July 1, 1975. The Emergency, proclaimed on June 25, 1975, prompted the cancellation of the notification. The Janata Party government did not bring the Act into force either. All it did was revise the guidelines on January 7, 1978. Its I&B Minister, L.K. Advani, said in Madras (now Chennai) on May 6, 1978, that it was considering the establishment of a tribunal. He criticised the practice of the government setting aside the censor board’s decisions. In 1981, the amendments of 1973 were repealed and a new set of amendments was made to the Cinematograph Act, 1952. Some more followed in 1984. It is this regime, with the Rules of 1983 and the guidelines of 1991, that is in force today.

Clearly, the law is a fraud on the Supreme Court. The promise to set up an independent tribunal has been violated. Section 96 of the Criminal Procedure Code provides for a Bench of three High Court judges to consider the validity of an order banning a book. The least that can be done in film censorship is to establish a truly independent tribunal. Since the Khosla report, a pattern of obligatory consultation on appointments to high offices has been established by laws in respect of the chairmen of the Press Council of India, the National Human Rights Commission, and the Prasar Bharati Board. No such consultation is enjoined in the Cinematograph Act.

The Cinematograph Act, 1952, needs a drastic overhaul now, over half a century since its enactment. It is clumsy and ill-structured. The Rules set up bodies which should be set up by the parent Act itself. The Khosla report, approved by the Supreme Court, and the court’s ruling must be implemented. The board as it is now constituted, the bogus advisory panel and its examining and revising committees and tribunal must be scrapped. An independent board of qualified persons must itself censor films in accordance with guidelines framed by the board itself after full consultations with writers, the film industry and the public. Appeals should lie to the High Court. The state should be shorn of its revisional powers. The procedure in force today is cumbrous, dilatory and unconstitutional.

It is open to the film industry to set up a small group from among its members to draft a model statute for public debate. The present state of film censorship is obscene.

http://www.frontline.in/stories/20110923281909100.htm

Counsel cannot be allowed to succeed in snatching an order in his favour by advancing threat, says Judge

Posted in CONTEMPT OF COURT, JUDICIARY, LAWYERS by NNLRJ INDIA on December 8, 2010
A statue of the legendary king Manuneedhi Chol...

Image via Wikipedia

LETTER PUBLISHED IN THE HINDU

CHENNAI: This is the letter dated July 2, 2009 written by R. Regupathi, the then Judge of the Madras High Court, to the Chief Justice of the Madras High Court containing the relevant part where there is a specific reference to R.K. Chandramohan.

“On 12.06.2009, at about 2 p.m. during Lunch Recess, while I was in the Chamber, High Court, Madras, my Office Assistant, Mr. Mujibur Ali, informed me that Mr. Chandramohan, Chairman, Bar Council of Tamil Nadu, is waiting and seeking for an appointment to meet me and, immediately, I allowed him to come in. To start with, he discussed about the general subject on Advocates and so proceeding, he said that two persons, who are father and son/accused in a criminal case, are family friends of a Union Minister by name Raja, and that the petition filed by them for anticipatory bail must be considered favourably. Simultaneously, he handed over his mobile phone by saying that the Union Minister is on the line to have a talk with me. Right away, I discouraged such conduct of Mr. Chandramohan and told him that the case would be disposed of in accordance with law, if listed before me.

“Subsequently, on 29.06.2009, second anticipatory bail petition came to be filed for the same accused and on behalf of Mr. Chandramohan (counsel on record for the petitioners/accused), who was present in the court, Mr. Masood, Advocate, argued by stating that some new points need to be submitted and, for such purpose, the Case Diary must be summoned. Adverting to the counter filed by the prosecution and referring to the view I had already taken during the previous occasion and pointing out that there was no change of circumstance to positively consider the case of the petitioners, it was conveyed that there was no valid reason or ground to grant the prayer in the 2 {+n} {+d} petition. It was also observed that the counsel may argue the case in detail, however, this time orders would be passed on merits and they would not be allowed to withdraw the petition.

“Again, the counsel insisted that the case diary must be called for and the case be heard in detail with reference to the materials collected during the course of investigation. I have impressed upon the representing counsel by explicating that a like direction could be given to the prosecution only in the event of the Judge satisfying that such course is inevitable and absolutely necessary in a given situation and that, on mere demands and as a matter of routine, such exercise cannot be undertaken. At that time, Mr. Chandramohan stood up and made a similar demand and when I emphatically declined to accede to his adamant demand, he vociferously remarked that the court is always taking sides with the prosecution and not accepting the submissions made by the counsel for the accused while giving importance to the Prosecutor.

“On such pointless remark, I said that the counsel engaged to argue on his behalf has made his submission and he is not supposed to pass such slanderous and derogatory remarks; for, all these days, the court has been passing orders after hearing the parties and assessing the cases on their own merits and in accordance with law. In spite of that, Mr. Chandramohan insisted that the Case Diary must be summoned and the matter be adjourned to some other day. Since Mr. Chandramohan highly raised his voice and his approach towards the court was quarrelsome, I told him that a person like him, an advocate holding position as Chairman of a State Bar Council, should not behave in such a fashion. Still the learned Advocate was outburst and uncontrollable, and I observed that a counsel, who made an attempt to exert influence on the court by using the name of a Cabinet Minister, cannot be allowed to succeed in snatching an order in his favour by advancing threat. Due to such odd experience, I had to direct the Registry to place the papers before Your Lordship for obtaining orders to post the case before some other learned Judge.

“The case concerned was taken up at the end in the afternoon and inside the court hall, there were about 4 to 5 Advocates present and no one from the Press was there. That being so, the oral observations actually made came to be translated by the Print and Electronic Media with their own interpretations and ideas …….

“I have written this letter/report to apprise Your Lordship the actual state of affairs Involved.”

http://www.hindu.com/2010/12/08/stories/2010120857401400.htm

Court orders suspension of Chairman of Tamil Nadu Bar Council

Posted in CONTEMPT OF COURT, JUDICIARY, JUSTICE, LAWYERS by NNLRJ INDIA on December 8, 2010
High Court Madras

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JUDGE THREAT CASE

K.T. Sangameswaran IN THE HINDU

CHENNAI: The Madras High Court on Tuesday ordered the suspension of the membership of R.K. Chandramohan and consequently his Chairmanship of the Bar Council of Tamil Nadu and Pondicherry (BCT) forthwith for an alleged attempt to influence a High Court Judge using the name of the then Union Minister A. Raja in a matter relating to an anticipatory bail plea.

In its 78-page common order on two public interest litigation petitions, a Division Bench comprising Justices F.M. Ibrahim Kalifulla and M.M. Sundresh said that apart from attempting to influence the Judge R. Regupathi (since retired), Mr. Chandramohan was stated to have behaved, in the words of the Judge, in a very unruly manner in the open court.

The Bench said the petitioner should file a formal complaint, along with the High Court order, to the BCT within two weeks. He should file a complaint copy with the Bar Council of India (BCI) simultaneously. Mr. Chandramohan should not be permitted by the State Bar Council to function as chairman pending disposal of the disciplinary action by the BCI.

In a petition, the petitioner, Elephant G. Rajendran, sought a writ against Mr. Chandramohan directing him to explain under what authority he held the office as Chairman of BCT. In the other petition, he sought a direction to the BCI to initiate appropriate action against the BCT Chairman.

The petitioner submitted that an anticipatory bail application filed by a medical practitioner came up before Justice Regupathi on June 29 last year and Mr. Chandramohan appeared on behalf of the accused. During the hearing, the Judge stated that “a Union Minister had called me to exert influence in favour of accused and to release the petitioner/accused on anticipatory bail. You yourself know everything.”

The petitioner contended that Mr. Chandramohan’s conduct in casting aspersions against the Judge was gross contempt and interfered with the administration of justice. He had used the name of a Union Minister for achieving an illegal action. Therefore, he should be disqualified from the post.

Following a direction from the Judge, the High Court Registry produced a letter dated July 2, 2009, written by the Judge to the Chief Justice of Madras High Court in which he had stated that on June 12, 2009 while he was in his chamber, Mr. Chandramohan met him and said that two persons who were family friends of the Union Minister had filed the petition for anticipatory bail in a criminal case and it must be considered favourably. He also handed over his mobile phone saying that the Union Minister was on the line to talk to the Judge.

Right away, the Judge said, he discouraged such conduct and told Mr. Chandramohan that the case would be disposed of in accordance with law. On June 29, in the open court the advocate vociferously remarked that the court was always taking sides with the prosecution and not accepting the submission made by the counsel for the accused in the case while giving importance to the prosecutor. Later, the Judge directed the Registry to place the papers before the Chief Justice for posting the case before some other Judge.

In its order, the Bench said there was no reason to doubt the veracity of the Judge’s statement in the absence of allegations of ill will or mala fides against the Judge. The conduct of the BCI Chairman in having maintained silence in his counter affidavit went to show to a very large extent that in effect he admitted the allegations. He neither repented nor displayed any conduct of remorse. If really such an incident had not taken place, the first person to have refuted the Judge’ s statement should have been Mr. Chandramohan.

The Bench observed that the Judge’s reaction was much more courteous than was expected. What had been alleged against Mr. Chandramohan by the Judge did call for stringent action at that point of time itself by handing him over to the appropriate authorities. Unfortunately, Mr. Chandramohan instead of realising the Judge’s magnanimous attitude displayed a much more disastrous attitude by behaving in an unruly manner in the court hall when the Judge had no other option except to reveal in the open court the monstrous and unpardonable behaviour of the advocate.

It said the magnitude of the behaviour of Mr. Chandramohan “was unprecedented and the same had to be dealt with an iron hand to ensure that such a behaviour was not even dreamt to be attempted by any other unscrupulous element under the garb of wearing the glorious robes of an advocate.”

Having regard to the order passed and directions issued, the Bench said it was not now inclined to take any proceedings for contempt.

http://www.hindu.com/2010/12/08/stories/2010120857391400.htm

SC SHOCKED AT TREATMENT TO EX SOLDIERS : ORDERS ARMED FORCES GRIEVANCES REDRESSAL COMMISSION TO BE SET UP

Posted in ACCESS TO JUSTICE, FUNDAMENTAL RIGHTS, HUMAN RIGHTS, JUSTICE by NNLRJ INDIA on November 16, 2010

 

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

A bench of Justice Markandey Katju and Justice Gyan Sudha Misra  has ordered the formation of Armed Forces Grievances Redressal Commission. The Bench ordered this in the case of Pushpa Vanti vs Union of India & others in which a a widow Pushpa Vanti, whose husband was an army major who had fought in three wars (in 1948, 1962 and 1965) and was decorated with fourteen medals. However, the petitioner is getting only Rs.80/- per month as pension, in these days when a kilogram of arhar dal costs that amount. She had prayed for fixation of her correct pension and arrears.

Shocked at the apathy of the retired soldiers and their families the bench observed that there is widespread discontent among the serving and former members of the armed forces (by which we mean the Army, Navy and Air Force) and their widows and family members regarding their service conditions e.g. pay scales, allowances, anomalies regarding pensions, inadequate pension (particularly to those disabled while in service), widows benefits, promotion matters (including promotion policy and process) etc.. They have a feeling that the bureaucrats do not care for them and do not properly address their grievances. As a result, thousands of ex- armed forces personnel have returned their medals, and some have even burnt their artificial limbs.

These grievances include the grievances relating to pay, allowances, one rank one pension, other pension matters, suitable benefits to be granted to war veterans, war widows, promotion matters, rehabilitation of soldiers who are discharged at a young age, etc.

Our courts of law are flooded with cases relating to members, both serving and retired, of the armed forces e.g. cases relating to pension, promotion, etc and the obvious reason is that the armed forces personnel have a feeling that their grievances are not being properly addressed.

Our ex-soldiers have not only been demanding but are agitating to get their legitimate dues. They were compelled to resort to public protests and even return their War-medals and burn their artificial limbs, as was done by Capt.C.S. Sidhu whose right arm was amputated while serving at the front but was getting a pittance as pension (see judgment of this Court in Union of India & Anr. vs. C.S. Sidhu in Civil Appeal No.4474 of 2005 dated 31st March, 2010).This, in our opinion, is not good for the nation.

The armed forces personnel should have a feeling that their grievances are heard by an independent body. Even if some of their demands are not accepted, they will have a feeling that they were given a proper hearing.

The court while expressing its anger on the apathy of the soldiers gave a clarion call to the government by quoting  a statement made by Chanakya to the emperor Chandra Gupt Maurya :

“Pataliputra rests each night in peaceful comfort, O King, secure in the belief that the distant borders of Magadha are inviolate and the interiors are safe and secure, thanks only to the Mauryan Army standing vigil with naked swords and eyes peeled for action, day and night, in weather fair and foul, all eight praharas (i.e. round the clock), quite unmindful of personal discomfort and hardship, all through the year, year after year. To this man, O Rajadhiraja, you owe a debt: please, therefore, see to it, suo motu, that the soldier continuously gets his dues in every form and respect, be they his needs or his wants, for he is not likely to ask for them himself. The day the soldier has to demand his dues will be a sad day for Magadha; for then, on that day, you will have lost all moral sanction to be king!”

The bench directed the Central Government to set up within two months from today a Commission which shall be called the Armed Forces Grievances Redressal Commission.

This Commission will look into any grievances (sent to them in writing or by e-mail) by serving or former members of the armed forces (i.e. Army, Navy and Air Force) or their widows or family members and make suitable recommendations expeditiously to the Central Government in this connection.

The Commission will also frame and recommend to the Central Government a scheme for proper rehabilitation of discharged soldiers. At present the position is that a soldier is ordinarily recruited at the age of about 18 years, and if he does not rise above the rank of Jawan he is discharged after 15 years of service. If he is promoted, his tenure is extended on each promotion.

 

Thus, if he reaches the rank of Havildar but no further he will retire after 22 years of service, i.e. at the age of 40. Thus a soldier is retired when he is in the prime of life. During his service he spends only about 2 months per year with his family. There is no doubt a Resettlement Directorate in the Army Headquarters, but we are informed that it is not a very effective body. If a soldier is discharged between the age of 35-45 how will he support his family ? At that age he is likely to have a wife and children. Hence he should be given alternative employment so that he can support his family. The Commission will go into this matter also in detail and suggest appropriate schemes for rehabilitation of ex-armed forces personnel who are retired at a relatively young age.

The aforesaid Commission shall consist of the following members :

1.    A retired Judge of the Supreme Court of India as the Chairman of the Commission.The first Chairman shall be Hon’ble Mr. Justice Kuldip Singh, former Judge, Supreme Court.

2.    A former Chief Justice of the High Court as the Vice Chairman of the Commission. The Vice Chairman will officiate as the Chairman in absence of the Chairman. The first Vice Chairman shall be Hon’ble Mr. Justice S.S. Sodhi, retired Chief Justice of the Allahabad High Court.

3.    A retired Chief of Army staff as a Member of the Commission.

The term of the first Commission will be for two years from the date of its constitution but it will be renewable at the option of the Central Government. The subsequent Commission members (after the two year term of the first Commission has expired) shall be appointed by the Central Government.

The Bench made it clear that this Commission is different from the Armed Forces Tribunal in the following ways :

1. The Commission is only a recommendatory body and not an adjudicatory body. Hence it is open to the Central Government to accept or not to accept its recommendations, though of course since such recommendations will be coming from a high powered body the Central Government must give due weight to the same.

2. Whereas the Armed Forces Tribunal can only decide cases in accordance with the rules, the Commission can recommend even change of the rules where it feels that the same are defective or inadequate. In other words, the Commission is not confined to following the relevant rules relating to service conditions, pension, etc. but it can recommend change of the same where it feels that the same are defective or inadequate.

The Court directed all authorities in India, Civil or Military (including the Secretary, Defence, Union of India, and the Chiefs of the Army, Navy and Air Staffs) to extend all cooperation to the Commission to enable it to discharge its functions effectively.The notification constituting the Commission as provided above will be issued by the Central government forthwith.

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