NOT IN STEP
Krishnadas Rajagopal in The Indian Express
UNDER THE CJI KAPADIA THE SUPREME COURT HAS TAKEN A DIFFERENT LINE IN THREE DIFFERENT CASES
Three separate decisions, all taken in July 2010, by the present guard of judges at the Supreme Court under Chief Justice of India S H Kapadia seem to take a different line from the orders passed by former Chief Justice of India K G Balakrishnan.
Ashok Rai Case
The first case is that of Ashok Rai, a rape convict whose punishment was reduced by the Delhi High Court on February 9, 2009 from life sentence to five-and-a-half years in prison. The High Court reasoned that Rai must have “redeemed” himself because he cracked the civil services exams during his time behind bars. He had already spent five-and-a-half years in prison by that time, and was released immediately.
But the National Commission for Women (NCW) challenged the High Court’s rationale. The women’s panel said Rai had not even completed the minimum imprisonment for a man found guilty of rape.
On April 2, 2009, Justice Balakrishnan’s Bench agreed with the NCW and issued notices to the Delhi Police and Rai.
But on July 5, 2010, the hearing before Justice H S Bedi, to whom the case was transferred for further hearing, began with a shock for the NCW. The Bench asked the NCW to prove its “locus standi” to move court against Rai.
BSP Poll Symbol
The second instance dates back to February 22, 2010, when a Bench led by then CJI Balakrishnan gave the Election Commission three months to inquire into the alleged misuse of the BSP’s poll symbol of the elephant — whether statues of elephants built at public cost was a violation of the election code.
The order was based on a complaint by Advocate Ravi Kant on May 15, 2009 to “freeze the election symbol of ‘elephant’ allotted to BSP”.
On July 9, 2010, a Bench led by present CJI S H Kapadia also gave three months time to EC — but this time its instructions were to check if Kant’s complaint against the Mayawati government was legally sustainable or not.
The latest order comes after a beleaguered EC on July 2, 2010 complained to the Supreme Court that the UP government was playing truant. It said the inquiry ordered by the apex court was truly “handicapped by the defiant and uncooperative stance of Uttar Pradesh”.
But this time, Chief Justice Kapadia’s Bench asked the EC to first check if Ravi Kant’s complaint was “maintainable” before proceeding any further.
On the other hand, the court assured EC that once Kant’s allegations were found “maintainable” under law, no efforts would be spared to bring the UP government to line.
In the third case, NGO Good Governance Foundation challenged the allegiance to the ideal of socialism as a pre-condition for political parties for getting registered with EC. The NGO challenged the validity of both the 42nd Amendment and Section 29A(5) of the Representation of Peoples Act, 1951. The amendment had introduced the word “socialism” in the Preamble of the Constitution, whereas the legal provision required all political parties to swear allegiance to the principles of the socialism.
On January 8, 2008, former CJI Balakrishnan said he would hear the matter only if the NGO restricted its challenge to the 1951 Act and did not delve into the realm of the Constitution. Notices were issued to the government and the EC.
However, on July 12, 2010, the Bench led by CJI Kapadia allowed senior advocate Fali S Nariman, who was appearing for the NGO, to withdraw the case. Nariman chose to opt out after the bench said the issue was too “academic and hypothetical”. “This question is highly academic. Let us not go into it now,” the Chief Justice had said as he closed the two-year-old PIL.