J. Venkatesan IN THE HINDU
Notwithstanding controversies, it passed several important judgments
NEW DELHI: The year 2009 was eventful and memorable for the Supreme Court and Chief Justice of India K.G. Balakrishnan. The Court faced several controversies, the notable being the collegium’s decision to elevate Karnataka High Court Chief Justice P.D. Dinakaran as one of its judges.
This controversy was preceded by a clean chit to Punjab and Haryana High Court Judge Nirmal Yadav in the Rs. 15-lakh cash-at-door scam. After 13 months, she was transferred to the Uttarakhand High Court.
It all began with the Central Information Commission (CIC) directing the Court’s Central Public Information Officer (CPIO) to provide information about whether or not the judges had filed declaration of assets. On an appeal from the CPIO, a single judge of the Delhi High Court stayed the Commission’s order. However, in his final order, the judge held that the Chief Justice of India was a public authority under the Right to Information Act, which meant “asset declaration is covered by the RTI Act.”
A Division Bench of the High Court reserved verdict on an appeal against the single judge’s order.
Within a few days of the High Court reserving the verdict, the CIC passed another order directing the Supreme Court Registry to make public the records relating to the appointment of three Supreme Court judges, who superseded their seniors. It also asked the CJI to disclose the name of the Union Minister who allegedly spoke to Madras High Court judge S. Regupathi over an anticipatory bail case. Curiously, the CPIO filed an appeal in the Supreme Court itself and got a stay on the order.
The CJI and the judiciary faced criticism from various quarters about why judges should shy away from disclosing their assets, though in the absence of a law they were not bound to do so. However, the judges yielded to the public and media pressure, and the full court of the Supreme Court, by an August 26 resolution, decided to put details of the assets of judges on the Supreme Court website. Accordingly, 23 judges, including Justice B.N. Agrawal who retired, disclosed their assets.
Justice Dinakaran was one of the five judges recommended for elevation. This recommendation could not come through because of allegations of land-grabbing made against him by the Forum for Judicial Accountability. Justice Dinakaran is allegedly in possession of 440 acres at Kaverirajapuram in Tamil Nadu’s Tiruvallur district. Further probe by the Survey of India is awaited, even as impeachment proceedings were initiated by 75 Members of Parliament against Justice Dinakaran in respect of a series of charges.
Another controversy erupted a few days ago. The Law Ministry returned the file of Chief Justice of the Allahabad High Court C.K. Prasad after President Pratibha Patil raised a query whether seniority was overlooked in the elevation of Justice Prasad of the Patna High Court cadre, who is junior to Chief Justice of the Jharkhand High Court Gyan Sudha Misra.
The President also wanted to know why no woman judge was being appointed to the Supreme Court for more than three-and-half years. The matter is yet to be resolved.
Notwithstanding the controversies, the Supreme Court passed several important judgments in politics, religion, human rights, matrimony, ragging and public interest. It came to the rescue of BJP candidate from Pilhibit Varun Gandhi by quashing the detention order passed by the Mayawati government under the National Security Act. Despite opposition from the State, the court ordered his release on parole to enable him to file his nomination for the Lok Sabha elections, and he was set free at last.
The Court permitted the Tamil Nadu government to instruct the Special Public Prosecutor in Bangalore conducting the trial in the wealth case against AIADMK general secretary Jayalalithaa to withdraw the London Hotel case, which was heard along with the wealth case, for paucity of evidence.
In the Sethusamudram case, the court granted two months to the Centre to spell out its stand on the expert committee’s report on an alternative alignment to the Sethusamudram ship channel without cutting across the Adam’s Bridge or the Ramar Sethu. The Court was not impressed with the Centre’s submission that it would need another 18 months to conduct the Environment Impact Assessment (EIA) for the alternative alignment suggested by the Supreme Court when it reserved the verdict on July 30, 2008.
The Supreme Court held that it was empowered to grant divorce by mutual consent under Section 13 B of the Hindu Marriage Act even if the wife or husband withdrew such consent during the proceedings in the lower court and prior to the passing of the decree.
“Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders, and a decree for divorce is finally passed. It is only the Supreme Court, in exercise of its extraordinary powers under Article 142 of the Constitution that can pass orders to do complete justice to the parties.”
THE CAMPAIGN FOR CHANGES IN LAW FOR PROTECTION OF VICTIMS GOT A HUGE WIN WHEN CENTRAL GOVERNMENT DECIDED TO NOTIFY THE CrPC AMMENDMENTS WHICH RECEIVED THE PRESEDENTIAL SIGNATURE LAST YEAR IN JANUARY 2008. THIS THE CENTRAL GOVERNMENT WAS FORCED TO DO DUE TO THE SERIOUS LAPSES IN RUCHIKA CASE. THE MEDIA NEED TO BE LAUDED AND PREAISED FOR RAISING THESE LAPSES AND CREATING A NATIONAL CAMPAIGN. THE SHAKTI VAHINI TEAM ALONG WITH NATIONAL NETWORK OF LAWYERS FOR RIGHTS AND JUSTICE, NOIDA LOK MANCH, ACTIVIST FOR GOOD GOVERNANCE AND MEMBERS OF THE NATIONAL MEDIA COALITION WERE ONE OF THE FIRST GROUPS TO HIT THE STREET AND SUPPORT THE JUSTICE FOR RUCHIKA CAMPAIGN. A REPRESENTATION WAS SUBMITTED TO SHRI VEERAPPA MOILY UNION LAW MINISTER.
AS ACTIVIST FIGHTING FOR CHANGES IN LAW FOR PROTECTION OF VICTIMS THIS HAS BEEN A LONG STANDING DEMAND AND THE GOVT BY ACCEPTING THESE AND BY NOTIFYING THE AMENDMENTS HAVE LAID DOWN THE ROAD FOR VICTIM CENTRIC JURISPRUDENCE IN WHICH THE CAUSE OF VICTIMS WILL BE IMPORTANT INGREDIENT .
THE NEXT FIGHT FOR WE ACTIVISTS AND CAMPAIGNERS WILL BE TO GET THE COMPENSATION PART OF THIS AMMENDMENT IMPLEMENTED IN SPIRIT . ONCE PROVIDING COMPENSATION BECOMES A STATE LIABILITY THERE IS NO DOUBT THAT STATE WILL TAKE STRONG STEPS TO REDUCE SUCH CRIMES.
THIS WIN SHOULD BE DEDICATED TO THE THOUSANDS OF VICTIMS WHO HAVE SILENTLY SUFFERED DUE TO THE LAPSES IN THE LAW.
THE IMPORTANT PROVISIONS WHICH HAVE BEEN NOTIFIED ARE :
Definition of a Victim:
In section 2 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the principal Act), after clause (w), the following clause shall be inserted, namely:—‘(wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;’
Victim Can engage Advocate to support and help the Prosecution
In section 24 of the principal Act, in sub-section (8), the following proviso shall be inserted, namely:— “Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.”
Statement of the Victim to be done in a safe place or a place of her choice and by a women police officer
In section 157 of the principal Act, in sub-section (1), after the proviso, the following proviso shall be inserted, namely:—
“Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.’’.
Use of Audio Video for Statements
In section 161 of the principal Act, in sub-section (3), the following provisos shall be inserted, namely:—
‘‘Provided that statement made under this sub-section may also be recorded by audiovideo electronic means.’’.
Use of Audio Video for Confession/Statement
In section 164 of the principal Act, in sub-section (1), for the proviso, the
following provisos shall be substituted, namely:—
“Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:
Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.”
Investigations of Child Sex Abuse to be done in time bound
In section 173 of the principal Act,—
(a) after sub-section (1), the following sub-section shall be inserted, namely:—
“(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.”;
b) in sub-section (2), after clause (g), the following clause shall be inserted, namely:—
“(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code.”.
Witness Can Be Done By Using Electronic Means
In section 275 of the principal Act, in sub-section (1), the following proviso shall be inserted, namely:—
“Provided that evidence of a witness under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence.”.
In Camera Trials and identity protection
In section 327 of the principle Act,—
(a) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:—
“Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.”;
(b) in sub-section (3), the following proviso shall be inserted, namely:—
“Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.”.
After section 357 of the principal Act, the following section shall be inserted, namely:—
(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under sub-section
(4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”
Right to appeal for the Victim against the verdict of the Trial Court
In section 372 of the principal Act, the following proviso shall be inserted, namely:—
“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”.