‘If judges show anger unnecessarily, people will feel we are just like ordinary people. We have to show our stature is above that.’
SHEKHAR GUPTA IN INDIAN EXPRESS
In this Walk the Talk on NDTV 24×7 with The Indian Express Editor-in-Chief Shekhar Gupta, former Chief Justice of India P N Bhagwati expresses regret over his habeas corpus judgment that upheld the right of the Indira Gandhi government to suspend all fundamental rights during the Emergency and explains why he wrote a letter of praise to Mrs Gandhi
My guest this week is one of Indian judiciary’s most important shining lights, Justice P N Bhagwati. It tells you about the creative energy in his mind that even now, when he is about to turn 90 very soon, he is working on two books, including his memoir. The judiciary is in news these days. The government complains about the Supreme Court’s obiter dicta, we also editorially complain about it. It seems somehow that the tension between the executive and the judiciary has become too much.
Well, that can’t be helped. Even in normal times there is bound to be some tension between the judiciary and the executive, particularly because the judiciary is entrusted with the task of enforcing the Constitution and it has got to enforce the fundamental rights of citizens and these fundamental rights sometimes come into conflict with what the government desires to do. But that is a conflict that can be resolved by the judiciary and whatever the judiciary decides as a matter of law and the Constitution should be accepted by the executive. Then there will be no tension.
But do you think that sometimes the executive doesn’t accept it?
Yes, in the last few years there have been occasions when the executive has not accepted decisions of the judiciary.
Sir, two recent judgments. I don’t know if you have followed them. The Salwa Judum judgment and the black money judgment in which the government felt, and many of us also felt, that the bench had exceeded the constitutional limits. In both cases there are appeals now for review.
Appeals are there, the Supreme Court will have to dispose of those appeals according to law. But very often, judges forget, lawyers also forget, that law is not an abstraction. Law is something which has been moulded and developed by the courts, by the judges. Law is ultimately what the judges make it, and therefore the judges must have a social perspective. They must be anxious to see that human rights become meaningful for the large masses of people in the country. They should not feel worried about the executive or I would say even about what people say. Their function should only be to enforce the basic human rights that are embodied in our Constitution.
In your own career as a judge, did you feel pressure from the executive and how did you deal with it?
No, I never felt any pressure from the executive. I delivered several judgments, many of them against the government, but not once did I feel that the executive felt offended. It’s possible that they didn’t like my judgments but they never showed any anger.
You were a judge when the executive was much powerful than it is now. Mrs Gandhi’s executive was very powerful.
But the judiciary of my time was equally powerful. Let me tell you that there was never a single occasion when the judiciary and my leadership felt thwarted by the executive or by Mrs Gandhi.
But look at the praise that you wrote for Mrs Gandhi. Most judges today would be embarrassed to write such a flowery prose about a prime minister.
I wrote about her because she fully deserved what I said. She had given this country a united India. Let us not forget the fact.
But somebody who rose to become Chief Justice of India, was it correct for you to write praise for her? It didn’t compromise you?
Publicly, no. But the CJI writing to the PM or the PM writing to the CJI privately was not wrong.
But today it would be out in the RTI and published.
It should not be published. It does a lot of harm.
So are you then saying that these correspondences should not be exposed to RTI?
It should not have been exposed to RTI. Basically what I wrote and what she wrote to me, I don’t remember now, was in the strictest confidence.
But does it pass the test of propriety for the Chief Justice of India to write praise in such flowery prose to the PM and expect it to be kept confidential?
No. I entirely agree with you it was wrong on my part.
You agree with that. But you got carried away? Why did you write that?
I was carried away by the result that was achieved.
…in the election?
Because I always believed that the welfare of the people was the ultimate goal, both of the judiciary and the executive, and anything which tends to further that goal or improve the condition of the people is something that deserves praise.
You did not write in anticipation of any benefits or rewards?
In my life, I have never anticipated anything. But I always believed that my duty is to serve my people. I was in the freedom struggle. I went to jail in 1942. I have always fought for the rights of the people and you look at my judgments.
You started the PILs. You used the postcard and treated it as PIL. Tell us the story of the postcard.
When I became a judge in the Supreme Court, I went round the country and when I visited various villages and towns, people gathered around me because they were interested in seeing a Supreme Court judge. I used to talk to them and I realised for the first time how important a judge’s function was. When people came, many of them were in tatters, many of them had sunken bellies. I realised that my justice was not reaching them. My justice, which I was administering, was meant for the few who could afford lawyers, litigation, court fee. That brought a change in my heart, my attitude. And then I started getting postcards, I started treating them as writ petitions. And ultimately I developed the whole theory of public interest litigations.
That’s your great positive contribution, but let me take you back to your regret and to the letter to Mrs Gandhi. When did you first feel that it was wrong to have written it?
Soon thereafter, I would say. I realised that I should not have treated that letter the way I did. Perhaps I exceeded my jurisdiction.
In the praise that you wrote for her?
No, not that the praise was ill informed but as a judge, as the chief justice, I shouldn’t have written it.
If you had written this, then you had wished it had not become public?
Definitely. It was not meant to be public.
What harm does it do if it becomes public, as it became public?
Well, perhaps to an extent people might feel that I’m pro-government. But very soon the impression that I am pro-government was dispelled.
But apart from that letter to Mrs Gandhi, one thing that rankles is your habeas corpus judgment, the ADM Jabalpur case, when you ruled with the majority of the judges to say the government could take away the right to life of a citizen.
Still looking back, legally we were right, the majority was right. But if I were sitting alone and I would have an opportunity to say it again, I would have taken a different view though that different view would not have been consistent with the words of the Constitution.
As you said earlier, law is not an abstraction. And law is what the judges make it out to be. Did you, as a judge, fail to make the right interpretation, or the right use of that law?
I’ve always admitted that. As a bold judge, as an imaginative judge, as a judge working for the people, I should not have taken that view.
Many of your critics say you cannot just express regret because that judgment did or could have done damage to the liberty of Indian citizens.
But I don’t see how could it have done damage because I think the amendment was made and in fact two years later or so, a similar case came before me and I took a different view. I said in the judgment that the view I had taken was wrong and I changed my view.
One judge disagreed and that was Justice H R Khanna. At that point did you think he was wrong?
At that point, perhaps I must have thought so.
Did you have any conversation with him on this?
No, he didn’t discuss with me. Soon after, he resigned because he was superseded.
That is the whole point. It becomes obvious to join the dots. All the judges who favoured the judgment, the judgment that Mrs Gandhi wanted, rose to become chief justices. The only one who did not was Justice Khanna.
But I became chief justice much, much later.
But the fact is that everyone on that bench, except Justice Khanna, rose to be CJI.
That’s because of seniority. Purely because of seniority. And Khanna should not have been superseded.
But Mrs Gandhi superseded him.
It was wrong on the part of Mrs Gandhi not to appoint Justice Khanna as CJI according to seniority.
What would you have told Justice Khanna if you had met him now?
I would have said it was very brave of you to give the dissenting judgment.
The ’70s saw the habeas corpus judgment and then you had the Kesavananda Bharati judgment that protected our freedom forever. It was the most important five years, I would say, in the evolution of India’s constitutional history. Do you think the period we are seeing now is a period comparable to that? There is the Jan Lokpal movement, there is a demand for a Judicial Accountability Bill. You were a party to setting up the collegium system and now the executive and Parliament are both going after it saying the system is not right. Judges are giving judgments that are setting up monitoring committees on everything.
If you are talking about appointment of judges, I have publicly said that appointment of judges should not be left entirely in the hands of the executive, nor should be left entirely in the hands of the CJI.
…which is the case now.
Now it is a collegium.
Now only the judiciary does it.
Collegium is alright but collegium should be run with some principles to guide it. The old system under which I worked was much better. The CJI made a recommendation after consulting some of the senior judges. Then the government, the law minister would discuss the matter with the CJI, and then we would make the appointment. Look at the earlier appointments, most of them were very good.
But right now, the problem is that there are so many vacancies in the courts. Allahabad High Court has 100 vacancies.
No vacancy in the High Court or the Supreme Court should be allowed to remain unfilled for a long time. Judges have assumed to themselves the power to make appointments, which is a wrong thing. In my opinion, the Constitution has been wrongly interpreted.
So it can’t just remain a fully in-house job?
No, it can’t. If you make the first five judges decide, then sometimes it is possible—I don’t want to make any allegations—that there may be give-and-take among the judges. You have my man, I will have your man. Therefore, I have always maintained and publicly said that appointments should be in the hands of CJI and the law minister.
Do you think the judiciary is under a bit of siege? One, it has resisted reform, it took such a public outcry for them to even declare their assets, RTI and now appointments. Then they are delving into areas of governance, setting up special investigating teams and monitoring them, asking the director of RAW to report to them on black money.
One feels sad that judiciary should come to this pass.
Why? If you could elaborate.
During my time, the judiciary enjoyed the highest respect.
Do you think that respect is threatened right now?
That respect has slightly gone down. There are a few judges who still enjoy that respect, I am told. But I can’t say about all judges today.
Why the judiciary is under pressure is because the Lokpal people are saying bring the judges under Lokpal, government is saying there should be a Judicial Accountability Bill.
I’m against bringing judges under the Lokpal because public pressure will mount unnecessarily. It will affect the independence of the judges. But judges should have their own separate body.
With some involvement of the executive or no involvement of the executive?
No involvement of the executive. Why don’t we have a retired chief justice of India, a sitting chief justice, one or two senior sitting judges, attorney general and one leading member of the Bar?
Did you ever discuss this with your very famous contemporary Shanti Bhushan?
I’ve met him occasionally, but have not discussed these issues with him. What is his view?
He wants the judiciary to be brought under the Lokpal.
No, it is dangerous to have the judiciary under the Lokpal.
Because the Lokpal ultimately is a person who is moved by public sentiment. I don’t want that. Let there be a separate Lokpal, if you like, for the judiciary. That is the best thing. I have already made this recommendation of mine in writing.
What is your advice to today’s judges?
Judges should retain their peace of mind because after all they have got to present an image that people will respect. If we show anger unnecessarily then people will feel that we are just like ordinary people. We have to show our stature is above that.
So do you object to obiter dicta?
No, but they should be well placed. Obiter dicta must be called for.
Do you remember any moment from the times of the bench when you used obiter dicta and well?
I must have sometimes, but I can’t recall now after this length of time.
I think one wonderful thing you have done is to keep yourself busy. Your thoughts are always valuable and now you are putting them down in a book. We will all wait for your books to come out.
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PUBLISHED IN www.myLaw.net
JUSTICE FOR THE COMMON MAN
(Retd.) Justice Bhagwati said that the development of public interest litigation in India could be attributed to his role as a judge. When he was a judge, and even when he was Chief Justice of India, he travelled to the poor regions in Bihar, Orissa, and Uttar Pradesh and saw “stark naked poverty”.
“People came to me in large numbers out of a sense of admiration for me because already I had made a name for myself, and I could see that many of them were in tattered clothes, some of them with sunken bellies, they’d hardly had any food. I realised that my justice was not reaching them at all. My justice was confined to a few fortunate rich people who could come to the court and could afford the luxury of litigation. If you want to go to court, you have to go to a lawyer. You have to brief him and pay him, and then in the Supreme Court it means a lot of costs, which poor men cannot afford, and so they were deprived of justice. So I felt something must be done to bring justice to the doorstep of the common man. So I invented this doctrine of public interest litigation, and I held that where any right of a person is infringed or he has any legitimate grievance and is unable to go to court because of poverty or illiteracy or ignorance, then any public spirited individual or any N.G.O can file an action on his behalf to ask the court to intervene to see that the human rights of poor people are restored.”
Another problem that he faced was that NGOs did not have money to brief a lawyer and file a writ petition. “So I said, it is enough if they write a letter to the court. It is called epistolary jurisdiction – jurisdiction that is invoked by writing letters or epistles to the court. Letters started coming to me from NGOs and poor people. I actually had to set up a department in the Supreme Court to sort them out and whatever appeared to be genuine were placed before me and the court. They would be numbered and then I would issue notice to the other side – usually it was the government or a government officer. On the day fixed, I would take up the case and appoint a lawyer on behalf of the claimant.” Under Article 32 which was very wide in its terms, (Retd.) Justice Bhagwati had vast jurisdiction.
The doctrine of public interest litigation received acceptance overseas as well. When he went to South Africa, Justice Bhagwati was welcomed by Albie Sachs, a famous judge of the Constitutional Court, who publicly called him, “the father of public interest litigation.”
The former Chief Justice of India added that it was now for the lawyers to see public interest litigation prosper. “There are some judges who are against it.” These judges, he said, did not believe that a person without cause of action should be allowed to come to court. “I want the Bar, I want the public, I want the press to ensure that public interest litigation does not die out. He said that it was a mechanism that ensures the balance of power, and it keeps the government under check. He also denied that the judiciary had ever gone overboard with its activism. “In fact, in recent years, the judiciary has been much too reticent. Judiciary must keep only one thing in mind – that they are appointed to do justice, and justice to the common man, not only to those who can afford to go to court, but to the large millions of India. Let them not be obsessed by the British system of justice, which originated and exists under different circumstances. Ours is a poor country, where a large number of people are deprived of their basic human rights.
JUDICIAL CORRUPTION AND APPOINTMENTS
When asked about the process of appointment of judges, (Retd.) Justice P.N. Bhagwati was clear: he had seen the collegium system develop before his eyes, and did not approve of it. “I am against the collegiums system; the former system – where the Chief Justice of India and the Law Minister would consult senior colleagues such as the Attorney General (as I did in my tenure as Chief Justice) in order to see that they had made the right recommendation — was much better. If there is a collegium of five, bargaining will go on amongst them. That is why the quality is going down.” He was vociferous about going back to the old system, which would be most suited for selecting the best person for the judiciary.
The next question raised was one raising a lot of furore lately – relating to judicial accountability. How can judges be held accountable without impinging on the independence of the judiciary? Justice Bhagwati opined that it was a difficult question; the only definite was that the independence of the judges should not be encroached upon at all. “My view is that the Chief Justice should set up a small committee to look into this matter. Whenever the allegations of corruption occur, they must come straight to the Chief Justice alone. He, with his two senior most colleagues should look into the whole question… There must be a mechanism to check corruption, but it must be manned by an independent body, not the legislature or the executive.”
ADM JABALPUR CASE – SUPREME COURTS DARKEST HOUR
“The instances of the Apex court‘s judgment violating the human rights of the citizens may be extremely rare, but it cannot be said that such a situation can never happen.” A Supreme Court bench comprising Justices Aftab Alam and A. K. Ganguly recently lamented thus, referring to the majority judgment in the infamous A.D.M. Jabalpur v. Shivkant Shukla case, popularly known as The Habeas Corpus case. Former Chief Justice of India, Hon’ble Mr. Prafullachandra Natwarlal Bhagwati, who was part of that tainted majority, concurs with Justice Alam and Justice Ganguly, only much later in time and context.
The discussion began with the role of political ideology in the bench; judges come from different backgrounds, for example, Justice Krishna Iyer had a clear background with the communist government. Recently, the Supreme Court has been very critical of the developmental attitude of the Central government. Justice Bhagwati was emphatic on the point: “The question of interpretation is the most important — how the court reads and interprets facts and relates it to the law requires a lot of skill, insight and vision. So your political ideology is bound to colour your judgment, you cannot avoid it. But it should not blind you to the words used by the Legislature.”
Asked to discuss the Supreme Court’s attitude during the Emergency — what some advocates refer to as the “dark days” — Justice Bhagwati held some regrets. “The Supreme Court’s attitude was far from satisfactory; it should have been more bold. It should have tried to uphold the rights of the people, but the Supreme Court failed; there is no doubt about it.”
Speaking about the ADM Jabalpur case specifically, Justice Bhagwati said that if not a disgrace, the case was something for which the Supreme Court should be ashamed. He did not absolve himself: “I was there — I plead guilty. I don’t know why I yielded to my colleagues. In the beginning, I was not in favour of the view that the majority took. But ultimately, I don’t know why, I was persuaded to agree with them. I still feel that the whole judgment was against my conscience. I have always been for freedom, freedom of speech and freedom of expression; I have always believed and always stood by these principles. It was an act of weakness on my part.”
Justice Bhagwati re-iterated that the Supreme Court’s willingness to expand the scope of Part III and Part IV of the Constitution came about because of its guilt for passing the ADM Jabalpur judgment. “I realised that I had made a big error and so I started developing Articles 14, 19, 21, 32, as no one else has done. I practically re-wrote these articles.”
He also recalled that Maneka Gandhi was a wonderful case; though he didn’t remember who argued the facts, but it gave him an opportunity to mould the law and develop it. “She had been deprived of her rights, and I upheld them. After the judgment was over, I met Manekaji at some function and I couldn’t help but remark, “I have made you immortal.” Everyone cites that judgment now. “
BHAGWATI ON HIS CAREER
“I started practice in February, 1948 February, and soon acquired a very large practice. There were some very good lawyers. I used to sit in the library of the Bombay High Court, and next to me a gentleman called Mr. J. C. Bhat, a very able lawyer, used to sit. There was Mr. Seervai, who has written a book on the Constitution, who was also an excellent lawyer.” He recounted it being a wonderful experience.
He was eventually elevated to the Bench. “In 1960, the Chief Justice of the new state of Gujarat, Justice S.T. Desai invited me to be a judge in the Gujarat High Court. I readily accepted, because I had always aspired to be a judge – as a judge you get an opportunity to mould the law and develop it. I was also the Chief Justice of the Gujarat High Court for six years. But my real opportunities came when I came to the Supreme Court in 1973.” Law, as per Justice Bhagwati, is like plasticine in the hands of a great judge, which he can mould as he likes, provided he has the vision and the requisite craftsmanship. “I started moulding and developing the law. Then came Articles 14, 19, 21, and 32, and I practically re-wrote Parts III and IV of the Constitution. I still remember, those days it was a thrilling experience. I would get up at five in the morning and start writing my judgments (I rarely dictated, I always wrote my judgments, because only then the best of you comes out).”
Aju John then asked him about his time in the Supreme Court, and the advocates and his colleagues on the Bench. In terms of advocates, Justice Bhagwati particularly recalled two, the likes of which he doesn’t see anymore: “The Attorney General, Mr. Motilal Setalvad was an outstanding lawyer, as was Mr. C.K. Daphthary.” He was also full of praise for his brother judges, saying that some of them were very good. “Two eminent ones I remember were Justice Krishna Iyer and Justice Dhirubhai Desai (people don’t remember him but he did a lot for industrial law, he was very pro-labour). Justice Eradi from Kerala was also a good judge — these three I distinctly remember.”
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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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SALWA JUDUM CASE
Twice this week, the Supreme Court made references to neoliberalism and drew parallels between its cases and instances from literature and history. Excerpts:
The state of Chhattisgarh claims that it has a constitutional sanction to perpetrate, indefinitely, a regime of gross violation of human rights in a manner, and by adopting the same modes, as done by Maoist/Naxalite extremists. It also claims that it has the powers to arm, with guns, thousands of mostly illiterate or barely literate young men, who are appointed as temporary police officers, with little or no training, and even lesser clarity about the chain of command to control the activities of such a force…
As we heard the instant matters before us, we could not but help be reminded of the novella Heart of Darkness by Joseph Conrad, who perceived darkness at three levels: (i) the darkness of the forest, representing a struggle for life and the sublime; (ii) the darkness of colonial expansion for resources; and finally (iii) the darkness, represented by inhumanity and evil, to which individual human beings are capable of descending, when supreme and unaccounted force is vested, rationalised by a warped world view…
Conrad describes the grisly and the macabre states of mind and justifications advanced by men, who secure and wield force without reason, sans humanity, and any sense of balance. The main perpetrator, Kurtz, breathes his last with the words: “The horror! The horror!”
Through the course of these proceedings, as a hazy picture of events and circumstances in some districts of Chhattisgarh emerged, we could not but arrive at the conclusion that the respondents were seeking to put us on a course of constitutional actions whereby we would also have to exclaim, at the end of it all: “The horror, the horror.”
The problem cannot be the people of Chattisgarh, whose human rights are widely acknowledged to being violated by the Maoists/Naxalites on one side, and the state and some of its agents on the other. The problem rests in the amoral political economy that the state endorses, and the resultant revolutionary politics that it necessarily spawns.
The culture of unrestrained selfishness and greed spawned by modern neoliberal economic ideology, and the false promises of ever increasing spirals of consumption leading to economic growth that will lift everyone, under-gird this socially, politically and economically unsustainable set of circumstances in vast tracts of India, and Chattisgarh in particular. The justification often advanced by advocates of the neoliberal development paradigm… in India is that unless development occurs, via rapid and vst exploitation of natural resources, the country would not be able to either compete on the global scale, nor accumulate the wealth necessary to tackle endemic problems of poverty, illiteracy, hunger and squalor.
On the one hand the state subsidises the private sector, giving it tax break after tax break, while simultaneously citing lack of revenues as the primary reason for not fulfilling its obligations to the poor through social welfare measures. On the other hand, the state seeks to arm the youngsters amongst the poor with guns to combat the anger and unrest. Tax breaks for the rich, and guns for the youngsters amongst poor, so that they keep fighting amongst themselves, seems to be the new mantra…
Our constitution is most certainly not a “pact for national suicide.” In the least, its vision does enable us to recognise, and prevent, the emergence and the institutionalisation of a policing paradigm, the end point of which can only mean that the entire nation, in short order, might have to gasp: “The horror! The horror!”
It is clear to us that the lives of thousands of tribal youth appointed as SPOs are placed in grave danger by virtue of the fact that they are employed in counterinsurgency activities against the Maoists/Naxalites in Chhattisgarh. It is equally clear that in this policy, jointly devised by the Union and the states facing Maoist insurgency, as implemented in Chhattisgarh, the young tribals have literally become cannon fodder in the killing fields of Dantewada and other districts. The training that the state of Chhattisgarh claims it is providing those youngsters… is clearly insufficient.
Many of these tribal youngsters, on account of the violence perpetrated against them, or their kith and kin and others in the society in which they live, have already been dehumanised. To have feelings of deep rage, and hatred, and to suffer from the same is a continuation of the condition of dehumanisation.
It is clear that one of the primary motives in employing tribal youth as SPOs is to make up for the lack of adequate formal security forces. The situation has been created in large part by the socioeconomic policies followed by the state. The policy of privatisation has also meant that the state has incapacitated itself from devoting adequate financial resources in building the capacity to control the social unrest…
It is clear to us that these tribal youngsters are being given firearms on the ground that SPOs are treated “legally” as full-fledged members of the police force, and are expected to perform the duties, bear the liabilities, and be subject to the same disciplinary code… Yet, the Union of India and the state believe that all that they need to be paid is an “honorarium”.
Article 14 is violated because subjecting such youngsters to the same levels of dangers as members of the regular force, who have better educational backgrounds, receive better training, and possess a better capacity to benefit from training that is appropriate for the duties in counterinsurgency activities, would be to treat unequal as equals.
Article 21 is violated because youngsters with such low qualifications cannot be expected to understand the dangers they are likely to face, the skills to face such dangers, and the requirements of the necessary judgment while discharging such responsibilities.
We order that:
(i) The state of Chhattisgarh desist from using SPOs (against) Maoist/Naxalite activities;
(ii) The Union of India desist from using its funds in supporting recruitment of SPOs for counterinsurgency activities against Maoists/Naxalites groups;
(iii) The state make every effort to recall all firearms issued to SPOs;
(iv) The state make arrangements to protect those employed as SPOs previously;
(v) The state take measures to prevent the operation of any (such) group.
Initiatives for Protection and Welfare of Overseas Indian Workers Indian missions in the Emigration Check Required (ECR) countries, except Qatar have not reported any incidents of atrocities particularly targeting Indian workers. However, cases of complaints from Indian Workers related to fraudulent offers for overseas employment, contractual violations and cheating on the part of foreign employers/ recruiting agents are received in the Missions in ECR countries from time to time. Embassy of India, Qatar has reported that 20 complaints of human rights violations were received during the last two years. Whenever, a complaint is received, action is initiated by the Ministry for suspension or cancellation of the Registration Certificate of the Recruiting Agent. If required, he is also prosecuted through the State Police. Complaints filed against illegal agents are referred to the State Governments for filing criminal cases against them. Whenever there is a complaint against a foreign employer, proceedings for black listing such an employer are initiated. Indian missions also take up these issues with the foreign employers/local governments to protect the interest of the workers.
The Government has taken several initiatives for the protection and welfare of Overseas Indian Workers which include: -
(i) A Nation wide Awareness-cum-Publicity Campaign through media has been launched to educate the intending emigrants about legal emigration procedures, risks of illegal migration and precautions to be taken during emigration.
(ii) The Ministry has set up the Indian Community Welfare Fund (ICWF) in 42 Countries for providing onsite support and financial assistance to Indian workers in distress.
(iii) The Government has established an Overseas Workers Resource Centre (OWRC) which is a 24×7 hour telephone helpline which provides information to intending emigrants as well as emigrants on all aspects of emigration. Complaints can also be lodged through this helpline. (iv) India had signed Labour Agreements with Jordan and Qatar in 1980s to protect the interests of the Indian Workers. Memoranda of Understanding (MOU) were signed with United Arab Emirates (UAE) in December, 2006, with Kuwait in April, 2007, with Oman in November 2008, with Malaysia in January 2009, and with Bahrain in June 2009. An Additional Protocol to the existing Labour Agreement between India and Qatar was signed in November, 2007.
(V) Under these MOUs Joint Working Groups (JWGs) have been constituted that meet regularly in order to resolve bilateral labour issues including the cases of atrocities which come to notice from time to time. These MOUs enhance bilateral co-operation in management of migration and protection of labour welfare.
PKM (Release ID :67596)
- Indians free to seek jobs in Libya (topinews.com)
- Register with embassies, Ravi tells NRIs (thehindu.com)
- State governments to help regulate illegal migration (topinews.com)
- HRW condemns worker abuse in Mideast (seattletimes.nwsource.com)
- Mahatma Gandhi’s message still relevant: Vayalar Ravi (topinews.com)
- India, US sign MoU for cooperation on migration issues (topinews.com)
Human Rights Watch, an international NGO working for human rights, released a report on problems with the existing methods of forensic examination of rape victims on Monday. Authored by Aruna Kashyap, the report deals with “absolute ignorance of survivor rights by the Judiciary and the State.”
Former Chief Justice of Delhi High Court, Justice AP Shah, released the report. “As the report points out, the finger test method which continues to be used for examining rape victims is an archaic method. We need a system to sensitise judges and lawyers on a large scale,” he said.Based on 153 High Court judgments, the report cites judgments where the finger test has been cited as evidence of the victims’ compromised moral character.
“This is despite a Supreme Court order in the State of Uttar Pradesh Vs Pappu case where the apex court held that the victims’ sexual history had no bearing on a rape trial,” Justice Shah said. Eminent women’s rights activist and lawyer Flavia Agnes said the outdated forensic science syllabus is the root of problems in India. “Doctors continue to use the archaic finger test when WHO and gynecological organisations around the world have held that it is no proof of a woman’s virginity. When medical science has progressed to such astounding levels, the MCI does nothing to upgrade forensic science curricula. Students continue to read books which were written in the 1920s. The fact that a scientifically baseless test continues to be quoted and made the basis of High Court judgments is alarming,”she added.
Kashyap stressed on the need for a uniform standard to be set for examination of rape survivors. “Currently there is no set protocol which leaves room for ambiguities that compromise the survivors’ rights,” she said.
- The Dangerous Rise in Untested Rape Kits (marieclaire.com)
SIDDHARTH VARDARAJAN IN THE HINDU
Change the blanket ban on trials without official sanction to one where the government has the power to bar prosecution in individual cases provided it satisfies the courts that its reasons for doing so are valid.
The Armed Forces (Special Powers) Act has come in for widespread criticism in Jammu and Kashmir, Manipur and other parts of the northeast because of the human rights abuses that have come to be associated with its operation. So strong is the sentiment against AFSPA in Kashmir that in recent months Prime Minister Manmohan Singh, Union Home Minister P. Chidambaram and Jammu and Kashmir Chief Minister Omar Abdullah have all spoken of the need to re-examine the law. The Army, on the other hand, says this is unnecessary.
The Army Chief, General V.K. Singh, has gone so far as to say that the demand for the dilution of AFSPA is being made for “narrow political gains.” On his part, Lt. Gen. B.S. Jaswal, GOC-in-C, Northern Command, has compared the Act to scripture. “I would like to say that the provisions of AFSPA are very pious to me and I think to the entire Indian Army. We have religious books, there are certain guidelines which are given there, but all the members of the religion do not follow it, they break it also … does it imply that you remove the religious book …?”
On paper, AFSPA is a deceptively simple law. First passed in 1958, it comes into play when the government declares a particular part of the northeast (or Jammu and Kashmir under a parallel 1990 law) a “disturbed area.” Within that area, an officer of the armed forces has the power to “fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances.”
Even though activists have made this the focus of their criticism, giving soldiers the “right to kill” is not, in my opinion, AFSPA’s principal flaw. After all, if a ‘law and order‘ situation has arisen which compels the government to deploy the Army, soldiers have to be allowed to use deadly force. Even a private citizen has the right to kill someone in self-defence, though the final word on the legality of her or his action belongs to the courts. Similarly, a civilised society expects that the use of deadly force by the Army must at all times be lawful, necessary and proportionate. Here, the Act suffers from two infirmities: the requirement of prior sanction for prosecution contained in Section 6 often comes in the way when questions arise about the lawfulness of particular actions. Second, AFSPA does not distinguish between a peaceful gathering of five or more persons (even if held in contravention of Section 144 of the Criminal Procedure Code) and a violent mob. Firing upon the latter may sometimes be justified by necessity; shooting into a peaceful assembly would surely fail any test of reasonableness.
Leaving this issue aside, however, it is important to recognise that AFSPA does not give an officer the unqualified right to fire upon and cause the death of any person in a Disturbed Area. At a minimum, that person should have been carrying weapons or explosives. The shooting of an unarmed individual, and the killing of a person in custody, are not acts that are permissible under AFSPA. Force is allowed in order to arrest a suspect but the fact that the Act authorises the use of “necessary” rather than “deadly” force in such a circumstance means the tests of necessity and proportionality must be met.
Over the years that AFSPA has been in operation, the Army has opened fire countless times and killed hundreds, if not thousands, of people. Whenever those killed have been armed insurgents or terrorists, there has been little or no public clamour against the Act. It is only when the armed forces violate the provisions of the law and indulge in the unlawful killing of persons — especially unarmed civilians — that voices get raised against AFSPA. The protests in Manipur in 2004 reached a crescendo because of the death in custody of Th. Manorama and scores of others like her. In Kashmir, sentiments against the Armed Forces Act got inflamed because of fake encounter incidents like Pathribal and Macchhil.
If today people are questioning General Jaswal’s “religious book,” it is not so much because of its provisions as because of the failure of its custodians to act when the law is flouted. The Lord’s Word threatens sinners with fire and brimstone, eternal damnation or the endless cycle of births and deaths. But AFSPA holds out no such horrors for the soldiers who violate its provisions. Section 6 says “no prosecution … shall be instituted, except with the previous sanction of the Central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.” This requirement confers de facto impunity on all transgressors. Thus the CBI may have indicted army officers for the murder of innocent civilians at Pathribal in 2000 but their trial cannot take place because the Central government refuses to give sanction. What is worse, the Minister concerned does not even have to give any reasons.
The ostensible logic behind this Section, a variant of which can be found in Section 197 of the CrPC and in many Indian laws, is to protect public servants from frivolous or vexatious law suits. But though it has not ruled on the ambit of AFSPA’s Section 6, the Supreme Court has often declared that the object of Section 197-type protection is not to set an official above the common law. “If he commits an offence not connected with his official duty he has no privilege.”
In the Pathribal case, the CBI took the view that abducting and killing unarmed civilians in cold blood could not be considered part of “official duty.” Not only did the MoD reject this logic, it moved the Supreme Court for quashing of the case on the ground that it has not granted sanction to prosecute. At no time has it been asked to furnish reasons for denying sanction.
A government which has faith in the actions of its officers and the robustness of its judicial system ought never to shy away from allowing the courts to step in when doubts arise. And yet, in case after case, legal proceedings get stymied by the denial of official sanction.
In a democracy, this requirement of previous sanction should have no place. But given the balance of political and institutional forces in India today, it is utopian to believe it can simply be done away with. What I am proposing, therefore, is a modest remedy. Let us not tamper with the government’s ability to protect officers from criminal proceedings. But instead of the default setting being ‘no prosecution without official sanction,’ let the blocking of a prosecution require official action.
Section 6 could thus be amended to read: “No prosecution … shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act where the Central government provides reasons in writing and the competent court upholds the legal validity of these reasons.”
Such a provision would prevent good officers from being prosecuted for killings which result from acts of good faith while allowing the bad apples to be prosecuted for their crimes. The government would still have the right to intervene on behalf of a soldier who has committed an illegal act. But this would require a Minister to take personal responsibility for a decision that would, after all, be tantamount to denying justice to the victim’s family. In the Pathribal case, for example, Defence Minister A.K. Antony would be compelled to inform the trial court of his reasons for opposing the prosecution of soldiers indicted by the CBI for murder. And the court would get to rule on whether Mr. Antony’s reasons were valid or not.
There is no reason why this inversion of the “previous sanction” provision cannot be replicated across the board in all Indian laws to cover situations where human rights abuses are alleged. Such a provision would not disturb the basic provisions of AFSPA. But it would bring that “religious book” in closer conformity with an even holier tome, the Constitution of India.
BY DIVYA VIKRAM
“Injustice anywhere is threat to justice everywhere.” - Martin Luther King, Jr.
The practice of torture has been widespread and predominant in India since time immemorial. Unchallenged and unopposed, it has become a ‘normal’ and ‘legitimate’ practice all over. In the name of investigating crimes, extracting confessions and punishing individuals by the law enforcement agencies, torture is inflicted not upon the accused, but also on bona fide petitioners, complainants or informants amounting to cruel, inhuman and degrading treatment, grossly derogatory to the dignity of the human person. Torture is also inflicted on the women and girls in the form of custodial rape, molestation and other forms of sexual harassment.
In this paper, the researcher aims at looking at the various international instruments as well as the role of Indian legislature and judiciary to prevent the evil of torture.
UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)
Article 5 of the UDHR, 1948 proclaims that “No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment.” Following the spirit of Universal Declaration, India proclaimed its faith in fundamental freedoms in the Indian Constitution which provides for life and dignity and honour as incorporated in the preamble and in the chapter on Fundamental Rights. The Constitution has entrusted the work of protecting fundamental freedoms to Indian Judiciary. Therefore, the judiciary has the prime obligation to be utmost careful and to resist even the slightest intrusion into its domain in safeguarding the human dignity which our founding fathers have so passionately granted to us.
Article 5 of UDHR incorporated the right to protection against torture and the same has been sought to be achieved through Declaration of Fifth United Nations Congress held in 1975. INTERNATIONAL COVENANT ON CIVIL AND POLITICIAL RIGHTS (ICCPR)
Article 7 of the ICCPR Covenant provides that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experiment.
The first sentence of Article 7 of ICCPR reproduces Article 5 of UDHR. Article 7 cannot be derogated from in any circumstances not even during public emergency. This section shows the concern of the international community to defend and preserve the physical and moral integrity of human beings. The purpose of this article is to protect the integrity and dignity of the individuals. It is the responsibility of the Human Rights Committee under Article 40(4) of ICCPR for implementation of these rights. The Human Rights Committee adopted in 1982, general comments on Article 7 of the Covenant, after examining reports submitted by State parties. Committee observed that even in situations of public emergency as envisaged in Article 4(1) of the Covenant, this provision is non- derogable. The Committee though it said that Article 7 has a wide scope of application, it refrained from defining or providing clear criteria for application of this section.
Particular forms of punishments and practices which have attracted the attention of Committee members have been “certain interrogation methods, the evidential use of illegally obtained information, virginity testing of immigrants, treatment of so-called ‘blanket people’ in Northern Ireland, stoning, flogging, whipping 30-40 years’ rigorous imprisonment, loss of nationality, and deprivation of civil and political rights for extended periods”.
The Human Rights Committee has expanded the meaning of torture by including corporal punishment including excessive chastisement as an educational or disciplinary method. Article 7 clearly protects not only persons arrested or imprisoned, but also pupils and patients in educational and medical institutions.
UNITED NATIONS INSTRUMENT DEALING WITH TORTURE
The process of legal codification against torture eventually culminated in The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment (CAT) (resolution 39/46), which was adopted by the UN General Assembly on Dec 10th, 1984.The objective of this Convention is to prevent acts of torture and other acts prohibited under this convention. Article 1 of the Convention defines “torture”.
Significant features of the Convention
The Covention requires state parties to take effective measures to prevent acts of torture in any territory under their jurisdiction. Article 2 of the Convention says that torture cannot be justified even during war or public emergency.
Article 3 of the Convention forbids State parties to expel, or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. The Convention also requires States to ensure that all acts of torture, attempts to commit torture or participation in torture are offence punishable under criminal law of their states (provided in Art 4 of the Convention). It also provides for prosecution or extradition of persons alleged to have committed acts of torture.
The implementation of the Convention is monitored by a “Committee against Torture”, consisting of 10 experts, elected by the States parties to the Convention and serving in their personal capacity. State parties to the Convention are required to report regularly to the Committee on measures they have taken to give effect to the provisions of the Convention. The Committee considers such reports, makes general comments and inform the other state parties and General Assembly of its activity. The Committee also allows for individual complaints under Art 22, provided state has made declaration accepting the treaty bodies’ competence to accept complaints and local remedies have been exhausted.
India has signed the Convention against torture but not ratified it. Also India has made reservations against Art20 & Art22 of the Convention.
The UN General Assembly adopted Optional Protocol to CAT in December 2002. This optional protocol has created a sub committee and allows in-country inspections of places of detention to be undertaken in collaboration with national institutions.
Article 3 European Convention which deals with torture says, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. This provision cannot be derogable under Article 15(2).
“Torture”- The European Commission has defined ‘torture’ to mean, inhuman treatment having a purpose such as obtain information or confession, or infliction of punishment and it is generally an aggravated form of inhuman treatment. By “inhuman treatment”, Committee said it is a deliberate treatment which causes severe suffering- mental or physical, which in the particular situation is unjustified.
“Degrading Treatment”- The Commission considered degrading treatment as: ‘treatment or punishment of an individual is degrading if it grossly humiliates him before others or drives him to act against his will or conscience.’ This definition was followed and expanded later by the Commission in East African Asians v. Uniked Kingdom (4430/70, E.,H.R.R 76) where it said that degrading treatment was a conduct of certain level of severity which lowers victim in rank, position, reputation or character whether in his own or eyes of others. These definitions have been explained by the Court in Tyrer case, in which Court observed that the first element of serious humiliation was whether the conduct was degrading. In Campbell and Cosans, the Court observed that a threat directed to an exceptionally insensitive person may have no significant effect on him but nevertheless be incontrovertibly degrading; and conversely an exceptionally sensitive person might be deeply affected by a threat that could be described as degrading only by ordinary and unusual meaning of the word.
INDIA’s RESPONSE TO TORTURE
Article 7 of the ICCPR is reflected in Article 21 of the Indian Constitution which is a non- derogable right. Article 21 was a derogable right until the 44th Amendment to the Constitution, 1978. It includes right against torture and assault by State or other functionaries. This right is even available to foreign citizens, under-trials, prisoners and detenues in custody. In recent times there is an increasing concern of the international community about the practice of torture of prisoners and detenues. Torture is a well established tool used by the Indian Police for investigation.
In tune with international human rights instruments against torture, the Constitution also emphasizes respect and honour of human dignity and fundamental rights. Torture has not been defined in the Constitution or in other penal laws. Article 21 of Constitutional only provides “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Life or personal liberty has been held to include the right to live with human dignity and includes within its ambit a personal guarantee against torture or to cruel, inhuman or degrading treatment or punishment, can move to the higher courts for judicial remedies under Article 32 & 226 for deprivation of Fundamental Rights. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed about the grounds of such arrest and cannot be denied to consult and defend himself by legal practitioner of his choice. A22 directs that person arrested and detained in custody shall be produced before nearest Magistrate within 24 hrs of such arrest. Article 20(3) provides that accused shall not be compelled to witness against himself as this would amount to self incrimination.
In early eighties were investigative journalism which exposed the practice of torture. The other was public interest litigation, based on press reports. The process of accountability was strengthened with the enactment of Protection of Human Rights Act, 1993. Sec 3 of the Act set up National Human Rights Commission.
- Sec 330 & 331 of Indian Penal Code, which provides for punishment for injury inflicted for extorting confession. The former in case of simple hurt and the latter for greivuos hurt. Crime of custodial torture against prisoners can be brought under Sec 302, 304, 304A and 306 too.
- Sec54 Criminal Procedure Code, 1973 confers upon arrested person the right to have himself medically examined.
- A confession made to police officer is not admissible in evidence under Sec 25 and 26 of Indian Evidence Act, 1872.
- Sec 162 of C.P.C also provides that no statement of a witness recorded by police officer can be used for any purpose other than for contradicting his statement before the court.
- Sec 24 of Indian Evidence Act also provides that when admissible, confession must be made voluntarily. If its made under inducement, threat or promise, it is inadmissible in criminal proceedings;
- Additional safeguard is provided under Sec 164 CrPC, it is for magistrate to ensure that a confession or statement being made by accused person is voluntary.
India has signed but not ratified the UN Convention against Torture (CAT). There has been a continuous effort of the National Human Rights Commission (NHRC) to pursue the Government of India to ratify the Convention against Torture so that a new domestic legislation thereafter can be brought into place. But the effort has gone till date without success. However, absence of a specific law, the Supreme Court of India has condemned torture through various judgments which have contributed to create a national jurisprudence in cases of combating torture.
The practice of torture by police and other law enforcing officers is a matter of deep concern, therefore it is the sacred duty of the state to protect these fundamental human rights of these citizens. The problem of police torture and violence is of universal nature. The concern regarding the problem was one of the reasons leading to provisions against torture and inhuman and degrading treatment and punishments in the Magna Carta and Constitutions of U.S.A and other countries of the world. Though there is no separate and specific protection in the Indian Constitution against torture, the combined effect of rights against self incrimination and of life and liberty is too evident.
In Nandini Satpati v. P.L Dani (AIR 1978 SC 1025), the Court held that not only physical threats or violence but psychological torture, atmospheric pressure, environmental coercion, tiring interrogation by police are violation of law.
The clear case of prohibition against torture was delivered by the Court in Sunil Batra v. Delhi Administration (1978 (4) SCC 494). The Supreme Court did not find itself handicapped by absence of specific provisions against torture in the Constitution and gathered support from Article 14 & 19 in holding against the permissibility of torture vis-à-vis persons suspected and accused of crime.
In Raghbir Singhv. State of Haryana (1980 ( 3) SCC 70), where the violence employed by the police to extract a confession resulted in death of a person suspected of theft, the court observed that the lives and liberty of citizens are at peril when the guardians of law stab human rights to death. Vulnerability of human rights assumes a traumatic, torturesome poignancy, the violent violence is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome offences against them. The court awarded life sentence to the police officer responsible for the death of the suspect in police lock up.
Khatri v. State of Bihar (AIR 1981 SC 928)/ Bhagalpur Blinding case, was an example of cruel and inhuman treatment to the prisoners which are insolating the spirit of Constitution and human value as well as Article 21. Supreme Court in this case tackled the blinding of under-trial prisoners by the police by piercing their eyeballs with needle and pouring acid in them. This case shows the pattern of torture, the sanction of torture by state and local judicial authorities, the routine concealment of torture.
Formidable problem in an alleged case of police torture is to establish the guilt of the perpetrators of violence. The wrongdoers may either be able to escape conviction due to lack of required degree of proof or maybe found guilty of lesser offence than the one warranted by the actual facts. This is primarily due to the situation that the warranted by the actual facts. This is primarily due to the situation that the offenders are the comrades and colleagues of the prosecutors and the complete lack of neutral witness. State of U.P v. Ram Sagar Yadav (1985 (1) SCC 552 ), is a case indicative of extreme limits to which police violence and highhandedness may extend. The victim made a compliant against a policeman who demanded bribe from him. He was arrested for his ‘audacity’ and shortly afterwards while in custody was found in a serious condition with 19 injuries on his body eventually causing his death. The Supreme Court while affirming the punishment of 7years rigorous punishment for culpable homicide not amounting to murder under Sec 304, expressed his regret that the trial judge did not find policeman guilty of murder as indicated by the facts.
In D.K Basu v. State of West Bengal (AIR 1997 SC 610), the Court laid down 11 guidelines (procedural measures) to be followed while, during and after arrest of person till he is in the custody of police. This case came up before the Court through a petition under art 32 of the Constitution by an NGO. The Executive Chairman of this NGO had written to Chief Justice of India drawing his attention to news items published in a newspaper, regarding deaths in police lock up and in jail in the State of West Bengal. Here the Court observed that Custodial Torture is a naked violation of human dignity and degrading which destroys individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded the Civilization takes a step backward.
However mere formulation of guidelines and safeguards would not be sufficient, therefore Supreme Court in D.K Basu case warned that:
Failure to comply with the requirements mentioned shall apart from rendering the concerned official liable for departmental action liable to be punished for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
In Joginder Kumar v. State of U.P (1994 (4) SCC 260), Joginder Kumar was called to the police station in connection with a case. Thereafter, his whereabouts became unknown to his family members. His family members filed a writ of habeas corpus before the Supreme Court, pursuant to which he was produced before the court.
Alarming increase in cases of torture, assault and death in police custody and non availability to punish the culprits in such cases have been an vexed problem as the investigation into such matters have been by the custodians themselves. It is therefore, of utmost necessity that an objective and independent enquiry should be made. Keeping it in view, the Supreme Court in Secretary, Hailakandi Bar Association v. State of Assam (1995) Supp (3) SCC 736, directed the CBI to register and investigate the instant case of custodial death. Again in Supreme Court in Ajab Singh v. State of UP (2000) 3 SCC 521, where the police examination of a custodial death was a concocted story, directing the CBI to register the case and conduct an investigation into the circumstances of custodial death. It also directed the CBI to complete investigation expeditiously and file a copy of the investigation report in the court.
The UN Convention against Torture provides for redress and compensation to the tortured victim. Article 14 of the convention categorically emphasizes that every State party to the Convention must ensure that the tortured victim is provided fair & adequate compensation and rehabilitation. If death results in the event of torture, the family is to be provided with compensation. In Nelabati Behara v. State of Orissa (1993 (2) SCC 746); the principle of state liability and the need for state to make reparations for such liability was recognized. It was highlighted that court under Art 32 and 226 of the Constitution has wide amplitude to provide any remedy under Public Law for any contravention of Fundamental Rights.
Alarming increase in custodial torture, assault and death has invited the attention of the judiciary to ensure that public bodies or official do not act unlawfully and perform their public duties properly, especially, when fundamental rights of citizens are involved. The judiciary has given enough directions to safeguard fundamental rights and freedoms of citizens including accused. The judicial dictates have served a useful public purpose to expose and stop the use of third degree methods by police on persons in their custody.
It is for the implementing and supervising authority to ensure that these guidelines are strictly complied with. Parliament should seriously consider the recommendation made by 113th Law Commission Report and as suggested, amend the Indian Evidence Act so as to transfer the onus of proof of innocence on the police in cases where evidence shows that an arrestee suffered an injury during police custody. This provisions is likely to instill some fear in the minds of police officials who tend to take law in their own hands.
NHRC’s guidelines and Instructions on Torture
The NHRC, soon after its establishment, identified custodial deaths and rapes as a priority area of concern and issued instructions to all states and union territories to report any instance of custodial rape or death within 24hrs of its occurrence. It also asked for reporting judicial as well as custodial deaths. NHRC later held that all postmortem examinations done in respect of deaths in police custody and in jails should be video taped and sent to the commission along with postmortem report.
The Indian Government has finally initiated steps to have a law to check torture by making it a punishable offence. While the signatories to the UN Convention were only obliged to amend prevailing laws to make torture a punishable offence, the Indian Government has decided to go the full hog and bring in a new law providing for stricter punishment for those involved in incidents of torture.
The Prevention of Torture Bill, 2008, drafted by government includes torture by Government servants, including police officials, within the ambit of punishable offences. Under the proposed law, public servants and others responsible for causing grievous hurt or danger to life, limb or health of any person would be liable for being punished for torture. Incidentally, the draft legislation also makes inflicting mental torture a punishable offence. Public servants torturing anybody for the purpose of extracting information or extra-judicial confession from any accused would be punished under the proposed law.
Torturing anybody on the ground of his race, religion, place of birth, residence, language, caste and community would also be a punishable offence. Government of India would mandatorily made to submit regular reports to the UN on measures it has taken to implement the convention. The convention also says that that if extradition treaty has been signed by member countries, then an persons accused of torture would have to be extradited. The Bill provides for setting up of independent panels to deal with complaints of torture (at the central level as well as the state level). All complaints in torture matters would automatically be forwarded to these panels.
The maximum punishment prescribed for torture is 10 years, which, government officials say, is among the highest in the world. India signed the Convention in October 1997, but has not ratified the same despite repeated calls by human rights organisations and NGOs. Ratification is necessary for appropriate changes to be made in the prevailing laws. Once ratified and a new law is in place, it would enable institutions and authorities to be committed and be accountable to tackle instances of widespread torture, especially in police custody.
The writer is a Fourth Year student at the NATIONAL UNIVERSITY OF JURIDICAL SCIENCES , Kolkata
Justice V.R. Krishna Iyer
|The court verdict shows that India is still in a Victorian imperial-feudal era, distances away from the socialist dream.|
The political parties that were in power during these years are guilty of culpable neglect
One extraordinary feature of the outcome is that the highest officer who was involved in Union Carbide, Warren Anderson, is nowhere in the picture
The mass slaughter that occurred in Bhopal on December 2, 1984 was the consequence of an American multinational corporation dealing with Indian lives in a cavalier manner. Some 20,000 people were “gasassinated.” Yet, after 26 years of trial, the culprits get two years of rigorous imprisonment as punishment. Such a thing can happen only in bedlam Bharat.
The President of the United States and the white world, and the Prime Minister of brown India, shout themselves hoarse against terrorism by the Taliban and the Maoist-naxalites. However, when it came to carnage caused by an American company in a backward region of India, it took all of 26 years to get a court judgment.
India is but a dollar colony, and so the “gasassination” has been treated as a minor crime. This is Macaulay’s justice of Victorian vintage still ruling India. Our Parliament and the Executive are less concerned with the lives of ‘We, the People of India’; their deprivation is of little consequence. The judiciary is another paradigm of insouciance and it is often indifferent to its fundamental duty of issuing a swift verdict. Parliament is too busy making noises to be able to make laws to defend citizens’ lives. The investigative-judicial delay that has occurred is unpardonable for a crime of this kind.
Indian courts will do justice — if proper judges are appointed and fair procedures are made, if sensitive and sensible laws are enacted and the Executive has the needed independence, alacrity and integrity.
Meanwhile, this socialist democracy continues to be a cause for despair for the common people. This contradiction must end. We have enough human resources to redeem the pledge of the Father of the Nation whose ambition was to wipe every tear from every eye. This trust of Indian sovereignty was ludicrously violated in Bhopal.
Every poor man in hungry despair resisting the British Empire was once called a Congressman. When the Congressman came to power after freedom, every hungry militant was called a Communist. When the Communists came to power in some States and still kept many people starving, these poor men were called naxalites.
Does India have a future? Yes, provided the glorious Constitution and the marvellous cultural tradition, sharing the vision of both Karl Marx and Mahatma Gandhi, are realised. Have we such a sensitive perception? Have the instrumentalities under the Constitution a noble mission and a passion? Have the judges such an ambition? The Bhopal decision shows that India is still in a Victorian imperial-feudal era, distances away from the socialist dream.
One extraordinary feature of the outcome is that the highest officer who was involved in Union Carbide, Warren Anderson, is nowhere in the picture. This is but mockery of justice. If the chief criminal is beyond the party array, the millions who are the victims are being mocked by the trial of lesser offenders. In exempting the powerful from criminal jurisdiction, the law has become lame. Is an American criminal immune to investigation by an Indian court order? Such discrimination makes justice risible.
Over the 26 years it took, what was the Supreme Court, with so many judges who have original jurisdiction to try cases when fundamental rights are violated, doing? The Government of India did not move the court for an early trial? Now the Law Minister says he is not happy with this two years’ rigorous imprisonment that has been granted. During these 26 years, no amendment to Sections 300 to 304 of the Indian Penal Code was moved or enacted, or severe punishment written into the Penal Code. This by itself constitutes dereliction of duty on the part of Parliament and the Executive. The political parties that were in power during these years are also guilty of culpable neglect: they slept over the noxious infliction on Indian humanity.
Fair compensation has not been paid to the victims. A huge hospital financed by Union Carbide was built in Bhopal. But it is not for the poor but the rich. It is over the bodies of the poor that the hospital building was built, and still the have-nots have no access to it. The Supreme Court, seemingly lost in issues relating to its own allowances and perks, did not call up the case from the trial court and decide it at once.
Warren Anderson is a closed chapter for the U.S. The most powerful nuclear nation has its bizarre sense of justice which should give courage for the Indian plural masses to resist dollar colonialism. Americans are above our rule of law. Brown India must be satisfied by White Justice where MNC bosses are indicted.
Washington swears by the Universal Declaration of Human Rights. But it uses a nuclear treaty to leverage things to its own advantage. India has no guts to call this bluff. We have MNCs with cosmic jurisdiction. Anderson is an American, so is Union Carbide. Its ukase is just on Asian fuel in earth. Indian justice is for municipalities and panchayats, not beyond.
Abhinav Chandrachud IN THE HINDU
Two recent judgments of the Supreme Court of India highlight a paradigm shift in its approach to original constitutional norms.
Two decisions announced by the Supreme Court of India in May strikingly indicated that the American doctrine of “due process” has firmly become a part of Indian constitutional law, despite the Constitution-framers’ contrary intentions. In the first of the two cases, decided on May 5, Selvi v. Karnataka, the court considered the constitutionality of the investigative narco-analysis technique, holding it permissible only when the subject consents to its use. In the second case, decided on May 11, Union of India v. R. Gandhi, a Constitution Bench unanimously held that certain provisions of the Company (Second Amendment) Act, 2002, establishing the National Company Law Tribunal and Appellate Tribunal, suffered from unconstitutional “defects.”
These decisions have been analysed and re-analysed for their immediate policy implications. However, the philosophy underlying these decisions, namely, constitutional “due process,” highlights the paradigm shift in the court’s approach to original constitutional norms, and deserves analysis.
The American doctrine of “due process” had been rejected by the framers of the Indian Constitution at the time of its enactment. The fifth and fourteenth amendments to the American Constitution provide that life, liberty and property cannot be deprived without “due process of law.” This seemingly innocuous phrase, borrowed, oddly, from per legem terre in the Magna Carta, acquired a nuanced meaning in the American constitutional context, consequent to years of judicial exposition.
Over time, the phrase acquired “substantive” and “procedural” meanings, each of which enhanced the powers of the judiciary. For example, in exercise of powers conferred by the “due process” clause of the Constitution, American courts would create “new” or unenumerated rights. Most notably, these were the rights to abortion, marriage, homosexuality, the use of contraceptives, child-rearing, and so on. The “due process” clause mandated harmonious constitutional interpretation, and enabled American courts to apply federal constitutional standards against the States on principles of “fairness” or “ordered liberty.” Interestingly, in the Magna Carta the phrase “due process of law” was meant to curb the powers of the royal judiciary in favour of the feudal baronage, quite contrary to the spirit of judicial activism that is now attributed to the clause.
One of the leading members of the committee constituted to draft the Indian Constitution, B.N. Rau, travelled to the United States, where he met Justice Felix Frankfurter, a Judge on the Supreme Court. At the time, Justice Frankfurter was involved in a judicial tussle with Justice Black over the meaning of the phrase “due process of law.” Justice Black hoped that it would be interpreted to strictly incorporate rights traditionally available against the federal government, and made available against the States. By contrast, Justice Frankfurter advocated a less stringent approach, arguing that the due process clause merely required the courts to apply the principles of “fairness” or “ordered liberty” against the States. Justice Frankfurter advised B.N. Rau to avoid the due process clause in the Indian Constitution because it imposed an “undue burden” on the judiciary. Consequently, in 1949, the phrase “due process of law” was dropped from the text of what was to become Article 21 of the Indian Constitution, despite what appeared to be strong support for the clause on the sub-committee on fundamental rights.
However, despite the express textual choices of the framers of India’s Constitution, the “due process” clause found a backdoor entry into Indian constitutional analysis in the late 1970s through the right to equality, which has ever since become a conduit for activist constitutional interpretation. In Justice P.N. Bhagwati’s classic opinion in the Maneka Gandhi case, it was held that the Constitution mandates “fair” procedure when rights are deprived. Although the court would repeatedly hold in subsequent cases that the American standard of “due process” did not apply to the Indian Constitution, in reality the court would apply nothing less than due process standards to administrative and legislative authorities in its emphasis on “fair, just and reasonable” procedure.
The two latest decisions of the Supreme Court are striking for their express rejection of the framers’ textual value choices. While previous Supreme Court opinions would at least theoretically reject American “due process,” in the narco-analysis case Chief Justice K.G. Balakrishnan held that “substantive due process” is now a “guarantee” under the Constitution. This declaration is a remarkable rejection of the framers’ decision to delete the due process clause. In its narco-analysis opinion, the court upheld a right to mental privacy, recognising an “unenumerated” right as American courts would in exercise of the due process clause.
The right to privacy has been around in Indian constitutional law for decades, and the court’s opinion in Selvi merely adds to the existing body of law on constitutional privacy. However, in expressly articulating the “guarantee” of due process, the court has on one of only a few occasions in its history recognised that India follows the due process doctrine, expressly rejecting the framers’ intentions.
In R. Gandhi, decided on May 11, the court held that certain provisions of the law regarding the appointment and qualifications of the members of the National Company Law Tribunal, suffered from unconstitutional defects. However, the Indian Constitution does not strictly or textually permit courts to strike down a piece of legislation merely because its provisions are “unfair” or “arbitrary,” in the absence of a violation of one of its enumerated provisions. To overcome this difficulty, the court in this case held that principles such as “independence of the judiciary” are part of the “essence” of the right to equality, and consequently must be enforced. Formerly, principles such as “independence of the judiciary,” “rule of law” and “separation of powers” would usually be applied using the basic structure theory only to constitutional amendments. In its R. Gandhi opinion, the court has remarkably applied loose constitutional principles rooted in its understanding of “fairness” or constitutional “basic structure” to ordinary law, much in the same way as Justice Frankfurter would have done in the American due process cases.
The theory of “original intent,” whose most vociferous proponent, Justice Antonin Scalia, now sits on the American Supreme Court, demands that courts interpret constitutional provisions according to the intention of the framers of the Constitution. In Indian constitutional law, the theory was followed strictly by the court until after its decision in the habeas corpus case, where the Supreme Court followed the framers’ intentions and permitted civil liberties to be suspended during the Emergency. The illegitimacy of the court’s opinion in the habeas corpus case subsequently offered a sufficient moral basis for the rejection of the theory of original intent. The Supreme Court’s latest opinions strike a lethal blow to the theory of original intent, and firmly recognise that constitutional “due process” is here to stay.
(The writer, a graduate of the Harvard Law School, is an associate attorney with a law firm in the United States.)