The case that saved Indian democracy

SUPREME COURT OF INDIA

ARVIND P DATAR IN THE HINDU

The judgment in Kesavananda Bharati v State of Kerala, whose 40th anniversary falls today, was crucial in upholding the supremacy of the Constitution and preventing authoritarian rule by a single party

Exactly forty years ago, on April 24, 1973, Chief Justice Sikri and 12 judges of the Supreme Court assembled to deliver the most important judgment in its history. The case of Kesavananda Bharati v State of Kerala had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23, 1973. The hard work and scholarship that had gone into the preparation of this case was breathtaking. Literally hundreds of cases had been cited and the then Attorney-General had made a comparative chart analysing the provisions of the Constitutions of 71 different countries!

Core question

All this effort was to answer just one main question: was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?

Article 368, on a plain reading, did not contain any limitation on the power of Parliament to amend any part of the Constitution. There was nothing that prevented Parliament from taking away a citizen’s right to freedom of speech or his religious freedom. But the repeated amendments made to the Constitution raised a doubt: was there any inherent or implied limitation on the amending power of Parliament?

The 703-page judgment revealed a sharply divided court and, by a wafer-thin majority of 7:6, it was held that Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of the Constitution.” This was the inherent and implied limitation on the amending power of Parliament. This basic structure doctrine, as future events showed, saved Indian democracy and Kesavananda Bharati will always occupy a hallowed place in our constitutional history.

Supreme Court v Indira Gandhi

It is supremely ironical that the basic structure theory was first introduced by Justice Mudholkar eight years earlier by referring to a 1963 decision of the Supreme Court of Pakistan. Chief Justice Cornelius — yes, Pakistan had a Christian Chief Justice and, later, a Hindu justice as well — had held that the President of Pakistan could not alter the “fundamental features” of their Constitution.

The Kesavananda Bharati case was the culmination of a serious conflict between the judiciary and the government, then headed by Mrs Indira Gandhi. In 1967, the Supreme Court took an extreme view, in the Golak Nath case, that Parliament could not amend or alter any fundamental right. Two years later, Indira Gandhi nationalised 14 major banks and the paltry compensation was made payable in bonds that matured after 10 years! This was struck down by the Supreme Court, although it upheld the right of Parliament to nationalise banks and other industries. A year later, in 1970, Mrs Gandhi abolished the Privy Purses. This was a constitutional betrayal of the solemn assurance given by Sardar Patel to all the erstwhile rulers. This was also struck down by the Supreme Court. Ironically, the abolition of the Privy Purses was challenged by the late Madhavrao Scindia, who later joined the Congress Party.

Smarting under three successive adverse rulings, which had all been argued by N.A. Palkhivala, Indira Gandhi was determined to cut the Supreme Court and the High Courts to size and she introduced a series of constitutional amendments that nullified the Golak Nath, Bank Nationalisation and Privy Purses judgments. In a nutshell, these amendments gave Parliament uncontrolled power to alter or even abolish any fundamental right.

These drastic amendments were challenged by Kesavananda Bharati, the head of a math in Kerala, and several coal, sugar and running companies. On the other side, was not only the Union of India but almost all the States which had also intervened. This case had serious political overtones with several heated exchanges between N.A. Palkhivala for the petitioners and H.M. Seervai and Niren De, who appeared for the State of Kerala and the Union of India respectively.

The infamous Emergency was declared in 1975 and, by then, eight new judges had been appointed to the Supreme Court. A shocking attempt was made by Chief Justice Ray to review the Kesavananda Bharati decision by constituting another Bench of 13 judges. In what is regarded as the finest advocacy that was heard in the Supreme Court, Palkhivala made an impassioned plea for not disturbing the earlier view. In a major embarrassment to Ray, it was revealed that no one had filed a review petition. How was this Bench then constituted? The other judges strongly opposed this impropriety and the 13-judge Bench was dissolved after two days of arguments. The tragic review was over but it did irreversible damage to the reputation of Chief Justice A.N. Ray.

Constitutional rights saved

If the majority of the Supreme Court had held (as six judges indeed did) that Parliament could alter any part of the Constitution, India would most certainly have degenerated into a totalitarian State or had one-party rule. At any rate, the Constitution would have lost its supremacy. Even Seervai later admitted that the basic structure theory preserved Indian democracy. One has to only examine the amendments that were made during the Emergency. The 39th Amendment prohibited any challenge to the election of the President, Vice-President, Speaker and Prime Minister, irrespective of the electoral malpractice. This was a clear attempt to nullify the adverse Allahabad High Court ruling against Indira Gandhi. The 41st Amendment prohibited any case, civil or criminal, being filed against the President, Vice-President, Prime Minister or the Governors, not only during their term of office but forever. Thus, if a person was a governor for just one day, he acquired immunity from any legal proceedings for life. If Parliament were indeed supreme, these shocking amendments would have become part of the Constitution.

Thanks to Kesavananda Bharati, Palkhivala and the seven judges who were in the majority, India continues to be the world’s largest democracy. The souls of Nehru, Patel, Ambedkar and all the founding fathers of our Constitution can really rest in peace.

(Arvind P. Datar is a senior advocate of the Madras High Court.)

Death is entirely discriminatory

DEATH PENALTY

ANUP SURENDRANATH IN THE HINDU

A life term for Kodnani and the hangman’s noose for Kasab show the arbitrariness in the judicial administration of capital punishment

Judge Jyotsna Yagnik’s invocation of human dignity while not awarding the death penalty in the Naroda-Patiya massacre case and the Supreme Court’s expression of helplessness while confirming the death penalty of Ajmal Kasab — sentenced in the 26/11 terror attack — go to the heart of the constitutional unviability of the death penalty. We would struggle to make any meaningful distinction in the culpability we attach to these two crimes but our collective response, in terms of the punishment they must receive, has been qualitatively different. While it will be debated whether it was appropriate for a trial judge to invoke concerns of human dignity at the sentencing stage, judge Yagnik’s judgment has also inadvertently demonstrated the inherent unfairness of the death penalty. One can’t help wonder about Kasab’s fate if he had appeared before judge Yagnik rather than judge M.L. Tahiliani. And it is precisely that unpredictability and inconsistency in the judicial administration of the death penalty that is at the heart of the principled objections to the death penalty.

Different responses

There has been very little discussion on why principled arguments against the death penalty should not apply in Kasab’s case. Raju Ramachandran, the amicus in Kasab’s case, did a terrific job in attempting to get the Supreme Court to commute Kasab’s death sentence but there has been very little else. As a nation and a society we seem to have quietly accepted the death penalty for Kasab despite all the objections that have been raised about the death penalty in the past. Kasab’s case is a significant setback for the move towards complete abolition of the death penalty in India. It was, in many ways, the perfect case for the death penalty. A profoundly hurt and grieving society, the guilt of the accused established through damning photographs and videos, wounded nationalism and the possible involvement of state actors across the border all contributed towards making Kasab’s case a strong validation of the need for the death penalty. It is as though we are acknowledging that there will be moments in our life as a nation where we will need to satisfy our need for collective revenge. A need satisfied with the gloss of the rule of law.

On what basis, then, do we not demand the death penalty for those who masterminded and led the carnage in Naroda-Patiya? Maya Kodnani as an MLA was supposed to represent and protect the interests of those in her constituency and not lead a mob of genocidaires to torture, rape and kill many helpless Muslims. Despite that, our acceptability of the punishments handed down in the Kasab and the Naroda-Patiya cases has proceeded along very different lines. There will certainly be no sustained demand for the death penalty for Maya Kodnani and Babu Bajrangi but there is widespread satisfaction at the confirmation of death penalty for Kasab. That this qualitative difference in our perception of the two crimes has found reflection in the judicial administration of the death penalty is most unfortunate with the invocation of human dignity in one case and no meaningful engagement with it in another.

The issue is not whether the death penalty offends human dignity or not. As a polity, we have unfortunately decided that it does not. The primary issue is whether it is possible to develop a model of administering the death penalty that is consistent and non-arbitrary. Judge Yagnik chose not to impose the death penalty because of her commitment to the position that the human dignity of all convicts must be respected. Judge Tahiliani either does not subscribe to that view or believes that it is inappropriate for a trial judge to take such considerations into account. Either way, it exposes why the ‘rarest of the rare’ framework cannot work in a fair and consistent manner. It ultimately leaves significant scope for judicial discretion where all sorts of factors creep in, and has ensured that comparing the death penalty in India to a lottery would not be an exaggeration. An analysis of death penalty cases in India from 1950-2006 by Amnesty International confirms that administering the death penalty has been an arbitrary exercise. Essentially, it was observed that in many similar circumstances some convicts were awarded the death penalty and others were not.

In the pursuit of consistent application of the death penalty, is the solution then to completely remove judicial discretion? Should we develop a list of very specific crimes where the death penalty is automatically awarded? Before it was found to be unconstitutional, Section 303 of the Indian Penal Code provided that an individual who committed murder while serving a life sentence would be automatically sentenced to death. Emphasising the importance of individual sentencing, five judges of the Supreme Court in Mithu v. State of Punjab found the automatic sentencing to be arbitrary and unjust. The inability of the sentencing judges to take into consideration individual circumstances while deciding the sentence, the judges felt, would cause grave injustice to the accused.

Achieving a balance between judicial discretion and individualised sentencing has proved to be an impossible task. The Supreme Court has tried to address this by developing guidelines in cases like Bachan Singh and Santosh Bariyar without much success. A damning indictment of such attempts has been the recent appeal by 14 eminent judges to the President to commute the death sentence of 13 convicts.

It is stated in the appeal that the Supreme Court itself has admitted to the wrongful administration of the death penalty in these 13 cases and that it would be a grave miscarriage of justice to not commute their sentence. It is time for the Supreme Court to recognise that it is attempting the impossible by trying to achieve a consistent application of the death penalty while maintaining the discretion of judges.

This debate between consistent application of the death penalty and individualised sentencing was at its peak in the U.S. Supreme Court in the 1970s. In Furman v. Georgia (1972), the U.S. Supreme Court raised constitutional concerns about the discriminatory and arbitrary use of the death penalty. After the judgment in Furman, many States responded with new guidelines for imposing the death penalty, including some mandatory death penalty schemes. While the attempt of the States to provide guidelines was upheld, the mandatory death penalty schemes were struck down in Gregg v. Georgia in 1976. However, the U.S. experience with ‘guided discretion’ since then has been disastrous and has been documented in great detail by the Steiker Report (2009) commissioned by the American Law Institute (ALI).

‘Tinkering with the machinery’

The ALI’s model framework for the administration of death penalty developed in 1962 provided the basis for the death penalty statutes that the U.S. Supreme Court found acceptable in Gregg. However, after the Steiker Report came to the conclusion that the death penalty continued to be administered in an arbitrary manner, the ALI deleted the death penalty provisions from its Model Penal Code in December 2009 with no proposal to introduce another framework. Justice Harry Blackmun’s judicial view on the death penalty while on the Supreme Court holds an important lesson for India’s judges in the Supreme Court. Appointed by President Nixon, he started out upholding the constitutionality of the death penalty including mandatory death sentences in the 1970s. Until a few months before his retirement in August 1994, Justice Blackmun was a supporter of the death penalty by upholding many attempts to achieve its non-arbitrary application. But in Callins v. Collins in February 1994, Justice Blackmun concluded that efforts of the U.S. Supreme Court over two decades since Furman to ensure fair and non-arbitrary application of the death penalty had proved to be futile. Finding the death penalty to be ‘fraught with arbitrariness, discrimination, caprice, and mistake’, Justice Blackmun revoked his support for the death penalty by declaring that he would no longer ‘tinker with the machinery of death’. The Indian Supreme Court must recognise the impossibility of what it is trying to achieve.

(Anup Surendranath is an Assistant Professor of Law at the National Law University, Delhi, and a doctoral candidate at the Faculty of Law, University of Oxford.)

Judicial appointments & disappointments

JUSTICE V K KRISHNA IYER IN THE HINDU

A commission to select judges will be an improvement on the collegium only if its members are of the highest standing

The Constitution of India operates in happy harmony with the instrumentalities of the executive and the legislature. But to be truly great, the judiciary exercising democratic power must enjoy independence of a high order. But independence could become dangerous and undemocratic unless there is a constitutional discipline with rules of good conduct and accountability: without these, the robes may prove arrogant.

It is in this context that Chief Justice S.H. Kapadia’s observations, at an event at the Supreme Court of India on Independence Day, underlining the need for the government to balance judicial accountability with judicial independence, have to be reconciled with what Law Minister Salman Khurshid observed about judicial propriety. It is this reconciliation of the trinity of instrumentality in their functionalism that does justice to the Constitution. A great and grand chapter on judicial sublime behaviour to forbid the “robes” becoming unruly or rude and to remain ever sober is obligatory.

The Constitution has three instrumentalities — executive, legislative and judicative. The implementation of the state’s laws and policies is the responsibility of the executive. The Cabinet headed by the Prime Minister at the Centre and the Cabinet led by the Chief Minister in the States, are its principal agencies. The rule of law governs the administration.

Parliament consisting of two Houses and legislatures at the State level make law. When the executive and the legislature do anything that is arbitrary, or contrary to the constitutional provisions, the judiciary has the power to correct them by issuing directions under Article 143. The Constitution lays down the fundamental rights, and if the States do not safeguard them, any citizen can approach the Supreme Court for the issue of a writ to defend his or her fundamental rights.

Thus, among the three instrumentalities, the judiciary has pre-eminence. But the judiciary itself has to act according to the Constitution and work within the framework of the Constitution.

Felix Frankfurter pointed out thus: “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”

Ultimate authority

Judges are the ultimate authority in the interpretation of the Constitution, and so must be learned in the law and in the cultural wealth of the world. They play a vital role in the working of the Constitution and the laws. But how judges are appointed is a matter of concern. Simply put, the President appoints them, but in this the President only carries out the Cabinet’s decisions.

The Preamble to the Constitution lays down as the fundamentals of the paramount law that India shall be a socialist, secular democratic republic which shall enforce justice — social, economic and political — and ensure liberty of thought, expression, belief, faith and worship, equality of status and of opportunity, and promote among them fraternity, ensuring the individual’s dignity and the nation’s unity and integrity.

Need for clarity

But who will select the judges, and ascertain their qualifications and class character? Unless there is a clear statement of the principles of selection, the required character and conduct of judges in a democracy may fail since they will often belong to a class of the proprietariat, and the proletariat will have no voice in the governance: the proprietariat will remain the ruling class.

Winston Churchill made this position clear with respect to Britain thus: “The courts hold justly a high, and I think, unequalled pre-eminence in the respect of the world in criminal cases, and in civil cases between man and man, no doubt, they deserve and command the respect and admiration of all classes of the community, but where class issues are involved, it is impossible to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our population have been led to the opinion that they are, unconsciously, no doubt, biased.”

We in India have under the Constitution the same weaknesses pointed out by Churchill, with the result that socialism and social justice remain a promise on paper. Then came a new creation called collegiums. The concept was brought in by a narrow majority of one in a 5-4 decision of the Supreme Court for the selection of judges. It was binding on the executive, the decisions of which in turn were bound to be implemented by the President.

Thus, today we have a curious creation with no backing under the Constitution, except a ruling of the Supreme Court, and that too based on a very thin majority in a single ruling. Today, the collegium on its own makes the selection. There is no structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails.

In a minimal sense, the selection of judges of the highest court is done in an unprincipled manner, without investigation or study of the class character by the members of the collegium. There has been criticism of the judges so selected, but the collegium is not answerable to anyone.

In these circumstances, the Union Law Minister has stated that the government proposes to change the collegium system and substitute it with a commission. But, how should the commission be constituted? To whom will it be answerable? What are the guiding principles to be followed by the Commission? These issues remain to be publicly discussed. A constitutional amendment, with a special chapter of the judiciary, is needed. Such an amendment can come about only through parliamentary action.

Surely a commission to select judges for the Supreme Court has to be of high standing. It must be of the highest order, of a status equal to that of the Prime Minister or a Supreme Court judge. The commission’s chairman should be the Chief Justice of India.

In the process of selection, an investigation into the character, class bias, communal leanings and any other imputations that members of the public may make, may have to be investigated. This has to be done not by the police, which function under the government, but by an independent secret investigation agency functioning under the commission’s control. These and other views expressed by outstanding critics may have to be considered.

The commission has to be totally independent and its ideology should be broadly in accord with the values of the Constitution. It should naturally uphold the sovereignty of the Constitution beyond pressures from political parties and powerful corporations, and be prepared to act without fear or favour, affection or ill-will. It should act independently — such should be its composition and operation. The commission should be immune to legal proceedings, civil and criminal. It should be removed only by a high tribunal consisting of the Chief Justice of India and the Chief Justice of all the High Courts sitting together and deciding on any charges publicly made. We, the people of India, should have a free expression in the commission’s process.

(V.R. Krishna Iyer, eminent jurist, is a former Judge of the Supreme Court of India)

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Parts of hostile witness’s evidence can be used: Supreme Court

NEW DELHI: Judges should not treat as totally erased the evidence tendered by a witness whom the prosecution terms as hostile during a trial, the Supreme Court has said. “It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him,” the apex court bench of Justice B.S. Chauhan and Justice Dipak Misra said Monday.

“The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof,” Justice Chauhan said.

The judges said that “the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence”.  The court said this while upholding the Allahabad High Court’s verdict by which it reversed the acquittal of Ramesh Harijan in a case of rape and causing the death of a minor child in Uttar Pradesh in 1996.

The high court by its March 23, 2007 order reversed the acquittal decision of an additional district and session judge in Basti district Feb 2, 1999. The apex court said “even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate the grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end”.

“The maxim falsus in uno, falsus in omnibus (false in one, false in all) has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop,” the court said. The judgment said “it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well”.

Referring to the evidence tendered by three hostile witnesses in Harijan’s case, the apex court said: “Undoubtedly, there may be some exaggeration in the evidence of the prosecution witnesses… however, it is the duty of the court to unravel the truth under all circumstances.”

“A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense”, the apex court said, upholding the high court’s verdict setting aside the acquittal of Harijan by the trial court. In Harijan’s case, the five-year-old victim was first buried by her family under the belief that she died of paralysis. But her body was later exhumed and sexual assault and death due to shock was confirmed in a medical test.

Judicial propriety in an age of scandal

 

Judicial propriety in an age of scandal

ARGHYA SENGUPTA IN THE HINDU

Why Justice Dalveer Bhandari‘s election to the International Court of Justice while serving as a judge of the Supreme Court of India is an unhealthy development

Justice Dalveer Bhandari, a judge of the Supreme Court of India, was elected a fortnight ago by the United Nations General Assembly and Security Council, to serve as a Member of the International Court of Justice (ICJ). He defeated the Filipino nominee, Justice Florentino Feliciano, by a handsome margin and now has a six-year first term at the World Court. Justice Bhandari is undoubtedly a fine judge with considerable expertise in international law. His legal acumen, keen intellect and a sense of justice, especially for the poor and homeless that shines through in his domestic judgments, are qualities that make him an ideal representative of India, itself a beacon of democracy and human rights in the developing world. That India has made a good choice is not in doubt; whether it could have made a better choice, as some have suggested, is contestable though ultimately a moot point. The key issue that arises in this context relates to the fact that Justice Bhandari’s nomination by the Government of India and eventual election to the ICJ took place while he continued to serve as a judge of the Supreme Court of India. This raises grave and disturbing issues regarding the independence of the judiciary in India and points to the lowered standards of propriety in the highest echelons of governance.

Judiciary & government

The independence of the judiciary is a significant legal principle in India, ever since it was held to be part of the basic structure of the Constitution. Since then it has been used on several occasions by the Supreme Court most notably to judicially lay down norms regarding the appointment of judges, transfer of judges between High Courts and administratively with regard to claiming exemption for the office of the Chief Justice of India from the purview of the Right to Information Act and formulating an internal code of conduct for appropriate judicial behaviour. The extensive (and sometimes unwarranted) usage of judicial independence as a legal principle has however blighted its primary status as a normative principle of good governance which promotes impartiality, a key facet of fair adjudication. The judiciary must not only be independent of the co-ordinate wings of government as well as the parties before the case, but must also be seen to be so. The slightest doubt in the public mind of excessive proximity between the judiciary and the government, which is the largest litigant before it, may lead to significant apprehensions of a lack of impartiality thereby questioning the legitimacy of the entire adjudicatory setup. As the Supreme Court of India itself likes repeating in its judgments, “Judges, like Caesar’s wife, must be above suspicion.”

It is this test of judicial independence as a normative principle that Justice Bhandari’s actions fail to satisfy. From available records, Justice Bhandari’s candidacy was accepted by the Ministry of External Affairs after a recommendation to this effect in January 2012 by the Indian Chapter of the Permanent Council of Arbitration, whose advice in this matter, the government has traditionally honoured. From that time, up to the election at the United Nations in April, Justice Bhandari continued as a serving Supreme Court judge, hearing cases (from the Supreme Court causelist record, he heard cases till the 9th of April) and being party to delivered judgments (the last recorded judgment thus far being delivered on the 27th of April, authored by Justice Dipak Misra, his brother Judge on the Bench).

Though his resignation is not a matter of public record yet (the website of the Supreme Court continues to show him as a serving judge at the time of writing of this piece), it is believed that it became effective only on his election to the ICJ. During the same time, as the Ministry of External Affairs’ response to a RTI petition on 8th February 2012 shows, the government was actively lobbying for his candidature in the United Nations, speaking on his behalf to various member states. Even if it is assumed that Justice Bhandari had little or no contact with the government in this process, the very fact that the government, a regular litigant in Justice Bhandari’s courtroom was actively espousing his cause outside it, is gravely problematic in terms of judicial independence conceptualised as a principle of good governance leading to impartiality.

Unheeded lessons from the past

It is not however the case that Justice Bhandari’s failure to resign as a judge of the Supreme Court prior to the government making him its official nominee for election to the ICJ is an isolated incident of judicial independence being imperilled at the altar of individual ambition. Justice Subba Rao’s acceptance of his candidature for President of India by the opposition parties when he was Chief Justice of India is the most egregious example of the independence of the judiciary being threatened by a single individual. Equally pertinently in the present context, the election of the last Indian to serve on the ICJ, the then Chief Justice of India, R.S. Pathak (who incidentally relinquished office as Chief Justice only subsequent to his election to the ICJ), was marred by strong claims that Justice Pathak’s appointment was part of a quid pro quo involving Union Carbide Corporation, the Government of India and the Supreme Court with the Pathak Court endorsing a deeply flawed settlement in the aftermath of the Bhopal gas tragedy. It is disappointing that Justice Bhandari as an upright individual and a learned judge failed to pay adequate heed to these lessons of history and relinquish his judicial office before accepting a nomination by the Government of India.

What is equally disappointing is the lack of public outcry regarding this issue. When Justice Subba Rao accepted the candidature for President made to him by the opposition parties while still in office, a man no less than Motilal Setalvad, India’s first Attorney General, issued a statement to the press strongly condemning the Chief Justice’s decision, saying that “he has set at naught traditions which have governed the judiciary in our country for over a century.” Justice Pathak’s nomination to the ICJ was the subject of several scathing indictments, including by former Supreme Court judge, Justice Krishna Iyer who wrote of “the beholdenness of the candidate [Pathak] to the litigant government for getting the great office for him.” As far as Justice Bhandari’s nomination is concerned, except a public interest petition challenging it as a violation of judicial independence, there has been a seemingly all-pervading public silence. Even the petition itself, though well-intentioned, was misguided, seeking redress from the Supreme Court in a matter which was characterised by impropriety rather than illegality of a type a judicial order could rectify. Justifiably, the Court refused to entertain it.

Importance of propriety

In an age of multi-billion rupee scandals, endemic corruption and food shortages caused by governmental apathy and inaction, the impropriety of a judge failing to resign at an appropriate time may intuitively seem trivial. But as with most questions of impropriety, though its effects may not be immediately apparent, they are the portents of an insidious decline in the standards and values that define institutions.

For the Supreme Court of India, judicial independence has been the cornerstone of its functioning from the time of its inception. Despite a few challenging periods, the Court, the Bar and the conscientious members of the political classes have always striven to fiercely guard the independence of the judiciary from any potential threats. The Bhandari episode is however a bellwether of a possibly developing relationship of cosiness between government and the judiciary, accompanied by a general public indifference, bordering on acquiescence, of such a relationship.

The government’s decision to nominate a sitting judge before whom it continued to appear as a litigant, Justice Bhandari’s decision to not resign when the government was lobbying for him, and most crucially public acceptance of such an unholy nexus are warning signs that ought to be heeded. While the return of an Indian to the World Court after an absence of two decades rightfully gives cause for celebration, it provides an equally significant opportunity for introspection, that the cherished principle of judicial independence, responsible in the first place for the high esteem in which the Indian judiciary and its judges are held on the world stage, does not itself fall into desuetude in the process.

(Arghya Sengupta is a Stipendiary Lecturer in Administrative Law at the University of Oxford and the founder of the think-tank, The Pre-Legislative Briefing Service.)

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Media cannot reject regulation

Media cannot reject regulation

JUSTICE MARKANDEY KATJU IN THE HINDU

If red lines can be drawn for the legal and medical professions, why should it be any different for profit-making newspapers and TV channels?

I have not read the Private Member’s Bill on media regulation that Meenakshi Natarajan was scheduled to move in Parliament last week so I am not in a position to comment upon it, but I am certainly of the opinion that the media (both print and electronic) needs to be regulated. Since my ideas on this issue have generated some controversy they need to be clarified.

I want regulation of the media, not control. The difference between the two is that in control there is no freedom, in regulation there is freedom but subject to reasonable restrictions in the public interest. The media has become very powerful in India and can strongly impact people’s lives. Hence it must be regulated in the public interest.

The media people keep harping on Article 19 (1) (a) of the Indian Constitution which guarantees the freedom of speech and expression. But they deliberately overlook or underplay Article 19 (2) which says that the above right is subject to reasonable restrictions in the interest of sovereignty and integrity of India, State security, public order, decency, morality or in relation to defamation or incitement to an offence.

Not absolute

Thus, while there should be freedom for the media and not control over it, this freedom must be exercised in a manner not to adversely affect the security of the state, public order, morality, etc. No right can be absolute, every right is subject to reasonable restrictions in the public interest. The reason for this is that human beings are social creatures. No one can live in isolation, everyone has to live in society. And so an individual should not exercise her freedom in a manner so as to harm others or society, otherwise she will find it difficult to survive.

Media people often talk of self-regulation. But media houses are owned by businessmen who want profit. There is nothing wrong in making profits, but this must be coupled with social responsibilities. Media owners cannot say that they should be allowed to make profits even if the rest of society suffers. Such an attitude is self-destructive, and it is the media owners who will suffer in the long run if they do not correct themselves now. The way much of the media has been behaving is often irresponsible, reckless and callous. Yellow journalism, cheap sensationalism, highlighting frivolous issues (like lives of film stars and cricketers) and superstitions and damaging people and reputations, while neglecting or underplaying serious socio-economic issues like massive poverty, unemployment, malnourishment, farmers’ suicides, health care, education, dowry deaths, female foeticide, etc., are hallmarks of much of the media today. Astrology, cricket (the opium of the Indian masses), babas befooling the public, etc., are a common sight on Television channels.

Paid ‘news’ is the order of the day in some newspapers and channels where you have to pay to be in the news. One senior political leader told me things are so bad that politicians in some places pay money to journalists who attend their press conferences, and sometimes even to those who do not, to ensure favourable coverage. One TV channel owner told me that the latest Baba (who is dominating the scene nowadays) pays a huge amount for showing his meetings on TV. Madhu Kishwar, a very senior journalist herself, said on Rajya Sabha TV that many journalists are bribable and manipulable.

The media claims self-regulation. But by what logic? How can the News Broadcasters Association or the Broadcast Editors Association regulate TV channels driven by profit motive and high TRP ratings? Almost every section of society is regulated. Lawyers are a free profession, but their profession is regulated inasmuch as their licence can be suspended or cancelled by the Bar Council for professional misconduct. Similarly the licences of doctors, chartered accountants, etc., can be suspended/cancelled by their regulatory bodies. Judges of the Supreme Court or the High Court can be impeached by Parliament for misconduct. But the media claims that no action should be taken against it for violating journalistic ethics. Why? In a democracy everyone has to be accountable, but the media claims it should be accountable only to itself …The NBA and BEA claim self-regulation. Let me ask them: how many licences of TV channels have you suspended or cancelled till now? So far as we know, only one channel was awarded a fine, at which it withdrew from the body, and then was asked to come back. How many other punishments have you imposed? Let us have some details, instead of keeping everything secret. Let the meetings of the NBA and BEA be televised so as to ensure transparency and accountability (which Justice Verma has been advocating vociferously for the judiciary).

Let me quote from an article by Abhishek Upadhyaya, Editor, Special Projects, Dainik Bhaskar:

“It appears that the BEA was founded to collectively use intimidatory tactics in favour of a select few players after NBA failed to do so. The NBA is so weak, so feeble in its exercise of power that it can’t confront intimidation by its own members. The India TV case is an example of this. The NBA, in the past, had given notice to India TV for deceptively recreating a US-based policy analyst’s interview. It slapped a penalty of Rs 1 lakh on the channel which then walked out of the Association.

“The group of broadcasters found themselves completely helpless, couldn’t take any action and finally surrendered meekly before the channel. The offending channel issued a statement saying that its return has come after “fundamental issues raised by the channel against the disregard to NBA’s rules and guidelines were appreciated by the association’s directors…” The head of India TV, Rajat Sharma, then proceeded to join the board of NBA, and the channel’s managing editor, Vinod Kapri, returned to the Authority in the eminent editors’ panel!

“This was the turning point in the so-called self-regulation mechanism of electronic media. It became clear that all concerned had made an unwritten, oral understanding not to raise a finger on their own brethren in future. BEA was the next step in this direction, formed on 22 August, 2009 with a few electronic media editors in the driving seat. Since its inception this body has been irrationally screaming in the interest of a select few. The editors of this body announced some tender sops from time to time to publicise its good image and thwart any regulatory attempt in advance”.

Self-regulation

If the broadcast media claims self-regulation, then on the same logic everyone should be allowed self-regulation. Why then have laws at all, why have a law against theft, rape or murder? Why not abolish the Indian Penal Code and ask everyone to practise self-regulation? The very fact that there are laws proves that self-regulation is not sufficient, there must also be some external regulation and fear of punishment.

I may clarify here that I am not in favour of regulation of the media by the government but by an independent statutory authority like the Press Council of India. The Chairman of this body is not selected by the government but by a three-member selection committee consisting of (1) The Chairman of the Rajya Sabha (who is the Vice-President of India) (2) The Speaker of the Lok Sabha and (3) One representative of the Press Council.

The Press Council has 28 members, of which 20 are from the Press, five members of Parliament, and 3 from other bodies (The Bar Council of India, UGC and Sahitya Academy). The decisions of the Press Council are taken by a majority vote. Therefore, I am not a dictator who can ride roughshod on the views of others. Several of my proposals were rejected by the majority, and I respected their verdict. If the electronic media also comes under the Press Council (which can be renamed the Media Council), representatives of the electronic media will also be on this body, which will be totally democratic. Why then are the electronic media people so furiously and fiercely opposing my proposal? Obviously because they want a free ride in India without any kind of regulation and freedom to do what they will. I would welcome a healthy debate on this issue.

(The author is chairman of the Press Council of India.)

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Haryana paid top lawyer’s clerk Rs 1L for one ‘appearance’

CHANDIGARH: The Haryana government will have to pay as much as Rs 64 lakh to two of country’s top legal eagles – Rohinton F Nariman and G E Vahanvati – for “conferences and just nine appearances” in the Supreme Court in a span of three weeks in an important case relating to defection of five Haryana Janhit Congress (HJC) MLAs. The government, which has been billed up to a maximum of Rs 1.65 lakh for one appearance by the clerk of one of the top lawyers, has a battery of over 200 law officers, headed by an advocate

The Bhupinder Singh Hooda government in Haryana hired these top lawyers after it was faced with the prospect of being reduced to a minority in the assembly, following a Punjab and Haryana high court verdict in December last year, detaching the five MLAs from the assembly. The MLAs had joined Congress after defecting from HJC, led by Bhajan Lal’s son and Hisar MP Kuldeep Bishnoi. While Rohinton, son of eminent jurist Fali S Nariman, is the solicitor general of India, Vahanvati is the attorney general of India. The bill is likely to rise with other legal eagles, like former solicitor general Gopal Subramanium and senior advocates Rajiv Atma Ram and Mohan Jain, yet to send their details for appearing in the high court.

Information received through the RTI Act by TOI has revealed that the highest billed amount has touched Rs 7 lakh for a single appearance, while the highest amount to be paid to their clerks has touched Rs 1.65 lakh for one appearance along with the lawyers. The lawyers were hired to defend the Haryana Speaker.

Factoids

Fee of SC advocate Rohinton F Nariman

February 22, 2012 | Rs 5.50 lakh
February 23, 2012 | Rs 5.50 lakh
February 28, 2012 | Rs 5.50 lakh
February 29, 2012 | Rs 5.50 lakh
March 13, 2012 | Rs 5.50 lakh
March 14, 2012 | Rs 5.50 lakh
March 15, 2012 | Rs 5.50 lakh
March 18, 2012 | Rs 5.50 lakh
Service tax | Rs 4.53 lakh
Total | Rs 48.53 lakh
–
Fee of Nariman’s clerk Narayan Verma
February 23, 2012 | Rs 1.10 lakh
February 29, 2012 | Rs 1.10 lakh
March 15, 2012 | Rs 1.65 lakh
March 18, 2012 | Rs 55,000
Total | Rs 4.40 lakh

Fee of SC advocate G E Vahanvati

January 4, 2012 | Rs 10 lakh (for conference and appearance)
Total | 10 lakh
--
Fee for Vahanvati’s clerk
January 4, 2012 | Rs 1 lakh (for conference and appearance)
–
Gross total | Rs 64 lakh

Harish Salve explains SC powers on contempt

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

NEW DELHI: If a person is found guilty of committing contempt of Supreme Court, will the apex court’s constitutional power to punish him be circumscribed by the Contempt of Court Act (CCA) provisions?

Senior advocate Harish Salve, appearing in the application filed by Vodafone complaining about misreporting during the hearing of its case, said CCA only provided the guiding principles and would in no way limit the apex court’s power on quantum of punishment, which in appropriate cases could exceed what is provided in the statute. The response came to a query from a five-judge bench comprising Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, Ranjana P Desai and J S Khehar whether Article 129 of the Constitution, which provides that “the Supreme Court shall be a court of record and shall have all powers of such a court including the power to punish for contempt of itself”, meant it was bridled by the CCA.

After hearing Salve’s view, the CJI said though the bench had not taken any final view, it was of the opinion that provisions of a statute could not limit the Constitution-vested powers of the apex court. In the midst of long deliberation on the necessity of framing media reporting guidelines to protect right of an accused to reputation and dignity as well as preserve sanctity of fair trial, the bench asked for Salve’s view on restricting press freedom derived from right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution and whether it could only be done through parameters specified under Article 19(2).

The senior advocate said, “The Supreme Court need not deal with the restrictions specified under Article 19(2) because it is only engaged in an exercise to define the contours of press freedom in reporting pending investigation or trial of a case and balancing it with the right of the accused to dignity and reputation.”

Salve said these days it was common to find TV channels standing outside a house being raided by investigating agencies and telecasting minute by minute details of the search operation. “This surely besmirches someone’s reputation. What happens if the agency does not find any incriminating material or does not press any charge at the end of the investigations? Can he not move the constitutional courts seeking relief on the ground that such reporting was destroying his reputation,” he asked.

“The media should be beyond government regulations except acceptable censorship. But to argue that media is beyond all regulation is the limit,” he said. Salve also objected to media using unnecessary hyperboles to describe intense questioning by a bench in serious issues.

He said, “Judges ask sharp questions to get the best out of lawyers. There is no pulling up, tearing into or lambasting involved in the oral argument-based judicial scrutiny system in India. There is a talk of restraining judges from making comments on institutions. If anyone has to exercise restraint, it is the reporters who cover the courts, not the judges nor the lawyers who must not be inhibited in any manner from free and frank exchange of views.”

Counsel Nitya Ramakrishnan said the investigating agencies had been regularly leaking information to media to prejudice an accused branding him as a terrorist though ultimately he might get acquitted in a trial. Appearing for Rajasthan government, counsel Manish Singhvi said a state producing clear and cogent evidence of consistent media misreporting could seek temporary deferment of publication for a limited period.

“However, the order for postponement of publication must be direct, proximate with investigation and must be least intrusive to the freedom of press/electronic media. Thus, the press has a right to report even criminal sub-judice matters as long as they do not impair or destroy fair investigation,” he said. Singhvi said subordinate courts had sovereign power to dispense justice and hence, they had inherent powers to pass appropriate orders to secure the ends of justice.

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Don’t lay guidelines, outline contours of press freedom: Salve

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

NEW DELHI: Former solicitor general Harish Salve on Wednesday said the Supreme Court should make the media aware of the boundaries within which it must operate while reporting court proceedings and suggested that the constitutional court must bring clarity to the contours of press freedom to prevent breach of a citizen’s right to fair trial and right to life with dignity, guaranteed under Article 21.

He agreed with most lawyers in telling a five-judge bench of Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, R P Desai and J S Khehar that it was not for the apex court to frame guidelines but disagreed with other senior advocates who had said that the court could have a case-to-case approach in scrutinizing media reports for transgression of right to life related sub-rights of an accused or a private citizen.

“The Supreme Court is not Press Council of India to tell the media what should not have been written. Media too cannot decide what should be the spread and extent of its right to report conferred on it to meet the people’s right to know. So, the Supreme Court is the only organ under the Constitution which can bring clarity by declaring the contours of right to free speech and expression under Article 19(1)(a) by balancing it against the crucial right to life,” Salve said.

“What the Supreme Court declares as the limits under Article 19(1)(a) will be abided by the responsible media, most of whom are very responsible. That is the surest way to safeguard citizen’s right to life which encompasses their right to privacy and right to live with dignity in a society,” said Salve, who appeared in an application moved by Vodafone months ago complaining about misreporting.

The senior advocate said continuous commentary on the merits of a case while it was being argued and targeting of individuals by media had a chilling effect on judges and lawyers, inhibiting free and frank discussion in a court room. “After all, judges and lawyers are human beings. The court should clarify if such reporting puts in peril such discussion during court proceedings,” he said.

Salve said government’s affidavits could be reported by the press even before it came up for court scrutiny. But if scurrilous allegations were made in any affidavit branding people as terrorists, murderers or money launderers, then the media has to wait till the court scrutinizes the contents of the affidavit in an open court hearing, he said.

The bench asked, “In our country the ground reality is that suit for damages or defamation is not an efficacious remedy against such errant reporting as it would take 20 years for conclusion of such proceedings. Will a high court or the Supreme Court be accused of violating Article 19(1)(a) if it entertained a petition from a person aggrieved by scurrilous allegations reported in the media and passed a temporary restraint order?”

Salve said constitutional courts would be well within their limits to entertain and pass appropriate orders on a writ petition from a private citizen complaining that his/her reputation was being destroyed by scurrilous allegations repeatedly reported by TV channels or print media.

If Salve cited Nupur Talwar case to point at spurious effects of brazen media coverage on a person and his right to fair trial, former law minister Ram Jethmalani cited the Jessica Lal murder case proceedings in Delhi High Court to highlight miscarriage of justice because of sustained media campaign.

Before concluding his arguments, Jethmalani said the courts have power to order repeat publication of material that hurt the right of the accused to fair trial or interference in the administration of justice. “Guidelines on media reporting will not solve the problem. On the contrary, it may create additional problems. The solution lies in enforcing Contempt of Court Act. Send one or two persons to jail under the contempt law and that will bring sanity in reporting,” Jethmalani said.

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

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Judiciary can’t regulate press freedom: Jethmalani

Ram Jethmalani (born September 10, 1923) is an Indian politician and a famous and controversial criminal lawyer. (Photo credit: Wikipedia)

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

NEW DELHI: Former law minister, MP and senior advocate Ram Jethmalani on Tuesday told the Supreme Court that it would be unconstitutional to curtail or regulate press freedom through judicially evolved guidelines because Parliament alone was competent to undertake this exercise through legislative route.

Appearing for a media association before a five-judge constitution bench comprising Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, Ranjana P Desai and J S Khehar, the octogenarian lawyer suggested that the best method to evolve guidelines for reporting subjudice matters without infringing the rights of the accused was to seek consensus through meetings between judges, lawyers and leaders of the media.

“The guideline evolved through this process could be recommended to Parliament for appropriate legislative action. I can assure you that Parliament would act on such a recommendation,” he said.

Though the bench had doubts about the efficacy of normative guidelines in protecting fair trial because of excessive reporting intruding into the domain of judges in certain cases, it said, “If we have to recommend, we will do so. There is no problem at all. But the limited question is what should the court do when a person approaches it complaining against media’s blatant breach of his right to presumption of innocence till pronounced guilty? Would the court be breaching Article 19 if it protects the right of the accused by ordering deferment of reporting for a short period.”

Jethmalani was unrelenting. He said, “A pre-publication ban is ultra vires. A guideline to this effect is unconstitutional. Even if the Supreme Court has some legislative power, when the issue involves Article 19, restrictions must come from a statute made by Parliament.”

However, he agreed that if a constitutional court was convinced that a newspaper report compromised the right of an accused and jeopardized fair trial or administration of justice, it could surely put a ban on subsequent publication of the matter.

Jethmalani said the malady of misreporting or biased reporting could be controlled if the judges shed their populist approach and sent a couple of errant journalists to jail under contempt of court law.

“Contempt of court law is not invoked as much as it should be to invoke the fear of god in journalists. The court will not have to worry about media guidelines if contempt jurisdiction is invoked and sent a message that press cannot get away with contemptuous reports,” he said.

Appearing for the Statesman newspaper, counsel Madhavi Goradia Divan argued against court-framed media guidelines saying mere reporting of trial proceedings would not vilify anyone as the public was aware of the cardinal principle ‘presumption of innocence till pronounced guilty’.

On the flip side, she said well-intentioned guidelines could be taken out of context and attempts would be made to achieve something which was completely different from what the court was intending to do. “The trial courts are well aware of the powers conferred on them to control reporting of proceedings in a criminal case,” she said.

The bench clarified, “Our effort is not to punish but to prevent. This exercise is an awareness process for everyone. We want to put in guidelines to avoid certain situations by deferring reporting for a limited period of time. We are not going into reporting of other wings of government but of a limited restraint on reporting as far as court proceedings are concerned.” The arguments will continue on Wednesday.