The edifice of justice


In the new legal culture that exists in India, judicial discipline and respect for precedent seem to be dangerously on the wane.

“The British have given us a fine system of judiciary on a platter. No doubt, a little mortar is falling here; a little brick is coming out there. But don’t destroy it by trying to interfere with the edifice. You may repair it or add to it or alter it somewhat, without destroying the structure as a whole.”

Justice Harilal Kania, the first Chief Justice of India, to lawyers at the Secunderabad District Court in 1950 (P. Jaganmohan Reddy; The Judiciary I Served; page 42).

JUSTICE Jaganmohan Reddy was one of the finest judges of the Supreme Court, erudite, cultured, fiercely indepen-dent and disciplined. Few of the judges who came after him possessed all these qualities. There came a bunch of “progressives” who were as little familiar with Marx as with the law. They encouraged a breed of academics who paid court to them. A new legal culture grew, of which the rulings of the Lucknow Bench of the Allahabad High Court are a vivid illustration. It is no less conspicuous in the Supreme Court. Judicial discipline and respect for precedent are dangerously on the wane.

It is as preposterous to call the judicial system a foreign plant as it is to call the parliamentary system – indeed, the Constitution itself – a foreign plant. During the Emergency, The Times (London) of July 14, 1976, published a letter by Prof. W.H. Morris-Jones in devastating refutation of the jibe about India being “exhibit A of the Westminster model abroad”. He demonstrated convincingly that Indian democracy “had become a specifically Indian achievement”.



The same is true of India’s judicial structure. In India the writ of habeas corpus is over two centuries old. It was first issued by Chief Justice Sir Elijah Impey against Governor-General Warren Hastings ((1775) Morton’s Reports 206). In 1976, the Supreme Court of India ruled that the writ was not available to citizens of India during the Emergency. On April 1, 1829, Sir John Grant, Chief Justice of the Supreme Court of Bombay, declared that the court had ceased to function and would remain closed because the Governor, John Malcolm, did not comply with the writ of habeas corpus the court had issued. The Privy Council overruled him on a question of law on June 10, 1829. The court’s doors were reopened ( In Re: The Justices of the Supreme Court of Judicature; 1 Knapp’s Report, Privy Council; 12 English Reports, pages 222-243).

Those who fought for India’s freedom and the architects of India’s Constitution had drunk deep at the fount of British constitutional history. Chief Justice Harilal Kania’s remarks are extremely apposite – improve the edifice that was inherited but do not destroy it. During the Quit India movement, the High Courts and the Federal Court, presided over by Sir Maurice Gwyer, issued writs of habeas corpus for the release of those detained by the British rulers. The Privy Council, as consistently, overruled the Federal Court.

In one such case, Chief Justice S. Varadachariar and Sir Muhamad Zafrullah Khan ruled in favour of the citizen Benoarilal Sharma, while Justice G. Rowland ruled against him and poured ridicule on the judgment of Justice Sen of the Calcutta High Court.

Rowland received his just deserts at the hands of Justice Sen in another case involving the same point of law. His retort bears quotation in extenso: “I believe there is a sound rule that metaphors like strong drinks should never be mixed. Such mixtures lead only to confused thinking. I must confess that the mixture of Viceregal trains, dreams and boots is too potent for any assimilation. Is it my judgment that is solely responsible for making his Lordship feel once like an overheated locomotive with an inadequate safety valve drawing the Viceregal special train and then like innocent Alice, wondering at things she cannot understand? I may have thought it was, were it not for the fact that the other two learned judges, who were trained in the profession of law, reacted differently from Mr. Justice Rowland who, in the words used by Lord Justice Turner of the Judicial Committee in the Sivagunga Case, is ‘an unprofessional judge’ (9 M.I.A. 539, 601). Their Lordships the Chief Justice of India and Justice Sir Zafrullah Khan, after setting out in great detail the arguments on the points concluded: ‘The contentions put forward on behalf of the respondents in this part of the case found favour with Mr. Justice Sen in the court below and they undoubtedly raise substantial questions. In view, however, of the conclusions at which we have arrived on the main ground of attack against the validity of the Ordinance we do not consider it necessary to pronounce an opinion on these questions. Having introduced the technique of likening Judges whose opinions differ from his to characters in fiction, Mr. Justice Rowland will, I am sure, not take it amiss if I say that his manner of criticism of points of law which he does not appreciate make me wonder whether in him we have not a reincarnation of that well-known character in fiction – Bumble the beadle – who disliking an interpretation of the law explained: ‘The law is – an ass – an idiot.’ ( Oliver Twist, Chapter 41.)

“Mr. Justice Rowland’s judgment cannot of course have any authoritative value, it may have a persuasive value. I am however not persuaded. I shall therefore deal with the new Ordinance from the same standpoint as that which I look when examining the repealed Ordinance II of 1942 and even at the risk of again disturbing his Lordship’s composure. I shall try and avoid that attitude which Lord Atkin deprecates in the very case from which Mr. Justice Rowland sought to draw inspiration. I refer to the observations of Lord Atkin, which probably escaped the notice of Mr. Justice Rowland. They are as follows: ‘ I view with apprehension the attitude of Judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive’ ( Liversidge vs. Sir John Anderson 1942 A.C. 206, 244).” Both the fearlessness and the elegance of language would be hard to find today.

Judicial behaviour

Forty years ago, an American scholar, Prof. George H. Gadbois, Jr, wrote a well-researched essay on “Selection, Background Characteristics, and Voting Behaviour of Indian Supreme Court Judges, 1950-1959” (Glendon Schubert and Daniel J. Danelski (Eds); Comparative Judicial Behaviour, Oxford University Press, 1969; pages 221-256). It portrayed the judges of the court in its halcyon era. One cannot truthfully assert that the standards of today are as high.

For all the high-flown rhetoric of judges, the Supreme Court of India has consistently over the years come down on the side of the mighty state in every case concerning security legislation, be it the Terrorist and Disruptive Activities (Prevention) Act (TADA) or the Armed Forces Special Powers Act. The judges have been illiberal. Contrast this with the approach of Canada’s Supreme Court on such legislation or that of the House of Lords in Britain, which has become increasingly liberal.

Tom Bingham died on September 11. He served as Master of the Rolls, Lord Chief Justice and Senior Law Lord in the House of Lords. He was acclaimed as “the greatest English judge since the Second World War”. A centre for the study of rule of law, named after him, opens this month. The Guardian called him “a radical… leading a new English revolution”. The government was stunned when, in 2004, he ruled that nine foreigners held in prison on suspicion of terrorism and with no prospect of trial had been detained illegally. In 2005, he held that evidence obtained by torture was inadmissible. He applied the rule of law to world affairs and opined that the war on Iraq was illegal.

This book contains the sixth Sir David Williams Lecture, at the University of Cambridge in 2006, on the rule of law. It is amazing how much learning is compressed in so slim a volume. The style is lucid without any of the florid rhetoric that judges of our Supreme Court revel in. Judges who arrogantly usurp the function of Parliament and proclaim themselves “problem-solvers” and “law givers” should note these words: “What is true of Ministers and officials is, generally, true of judges. As was said by Lord Shaw of Dunfermline nearly a century ago, ‘To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand.’ Another senior judge more recently made a similar point: ‘And if it comes to the forensic crunch… it must be law, not discretion, which is in command.’ The job of judges is to apply the law, not to indulge their personal preferences. There are areas in which they are required to exercise a discretion, but such discretions are much more closely constrained than is always acknowledged.… The rule of law does not require that official or judicial decision-makers should be deprived of all discretion, but it does require that no discretion should be unconstrained so as to be potentially arbitrary. No discretion may be legally unfettered.” In 1733, Thomas Fuller said, “Be you never so high, the Law is above you.” This, Bingham holds, applies to judges no less than Ministers.

Bingham illuminates the great landmarks since the Magna Carta (1215) with learning, right up to the Universal Declaration of Human Rights. He analyses the rich varied facets of the rule of law.

Censures on the U.S.

Bingham is unsparing in his censures on the United States’ systematic recourse to torture and on abuses like rendition of persons captured abroad in one country to stand trial in another. In 1993, the House of Lords held that courts should refuse to try a person brought to the United Kingdom in flagrant breach of international law.

“The United States has also authorised and carried out disappearances of alleged Al Qaeda members into secret prisons and conducted mass round-ups and secret arrests at home and abroad. It has claimed and exercised the right to detain without charge or trial anyone the President chooses to designate as an enemy combatant. The number of people rounded up and detained in Afghanistan, Iraq and other unidentified ‘black’ sites around the world is not known, but the Pentagon is said to have conceded that the United States has detained more than 80,000 people, of whom nearly 800 were held for a time at Guantanamo Bay. Some of these were as young as thirteen, and there were very few terrorists among them.”

Bingham is as severe on abuses in the U.K. “There has been gradual erosion of one of the most fundamental safeguards of personal liberty in this country: the limit on the time a person suspected of having committed a terrorist crime may be held in custody without being charged or released. In 1997 the period was four days. In 2000 it was raised to seven days, in 2003 to fourteen days, in 2006 to twenty-eight days. But this was not enough. In late 2005 the government sought to raise the limit to ninety days, although unable to point to a single case where a suspect had been held to the then current limit of fourteen days and released without charge for lack of evidence. This bid was roundly defeated in the House of Commons. Undeterred, the government attempted to increase the period to forty-two days, narrowly succeeding in the House of Commons and abandoning the attempt only after an overwhelming defeat in the House of Lords on 13 October 2008.”


JUSTICE HARILAL KANIA, the first Chief Justice of India, felicitating Governor-General C. Rajagopalachari in November 1947 as Prime Minister Jawaharlal Nehru watches.
JUSTICE HARILAL KANIA, the first Chief Justice of India, felicitating Governor-General C. Rajagopalachari in November 1947 as Prime Minister Jawaharlal Nehru watches.

In 2002, the Council of Europe delivered a sound warning. “The temptation for governments and parliaments in countries suffering from terrorist action is to fight fire with fire, setting aside the legal safeguards that exist in a democratic state. But let us be clear about this: while the State has the right to employ to the full its arsenal of legal weapons to repress and prevent terrorist activities, it may not use indicriminate measures which would only undermine the fundamental values they seek to protect.”

Like Bingham, Lord Woolf also held the offices of Master of the Rolls and Lord Chief Justice. The book is a collection of his lectures and papers. They cover a wide spectrum from the judiciary to penal reform, civil justice and the international legal systems. Following recent reforms under the Constitutional Reform Act 2005, the old Office of Lord Chancellor has been abolished from May 2007. The Lord Chancellor became the Head of a Ministry of Justice. Other changes to the Lord Chancellor’s role include his role in judicial appointments, which has become limited to saying ‘no’ to one candidate recommended by the independent Judicial Appointments Commission; there is a new system for dealing with complaints; the Lord Chief Justice is now Head of the Judiciary; and the Lord Chancellor is no longer a member of the House of Lords.

Many of the themes debated in our press are discussed in this volume incisively – the clash between the executive and the judiciary, the role of the media, judicial detachment, and so on.

The clamour for the blood of Afzal Guru, orchestrated by the Bharatiya Janata Party (BJP), makes these remarks particularly relevant: “The real test of the Human Rights Act arises when individuals or minorities attract the antagonism of the majority of the public; for example, when the tabloids are in full cry. Then, the courts must, without regard for their own interests, make the difficult decisions that ensure that those under attack have the benefit of the rule of law. At the heart of the Human Rights Act is the need to respect the dignity of every individual by ensuring he or she is not subject to discrimination.”

Both these judges had an excellent academic background. More, they were products of a legal culture which grew over a thousand years. As Chief Justice Harilal Kania observed, India acquired it “on a platter”.

Britain’s legal culture

There is no better compilation of the historic texts which record the development of Britain’s legal and political culture than the volume of documents compiled by Peter Kellner. Its subtitle tells it all: “1,000 years in Pursuit of British Liberty”. It begins with 930 and ends with Paul Dacre’s speech to the Society of Editors in 2008, in which he remarked: “The Freedom of the Press is far too important to be left to the somewhat desiccated values of a single judge.” Each document is carefully sourced. All the majestic utterances in history are to be found here. It is indispensable to lawyers, students of history and politics.

“The habeas corpus is the single advantage which our government has over that of other countries,” Dr Johnson told Boswell in 1760. In 1777, Charles James Fox described habeas corpus as “the great palladium of the liberties of the subject” and deplored the “insolence and temerity” of those “who could thus dare to snatch it from the people”.

India is the only democracy in the world whose Constitution itself sanctions preventive detention and thus curbs the great writ.Prof. Paul D. Halliday’s book is a history of the writ, which yields interesting conclusions. He examined nearly 5,000 surviving writs to get to the heart of the Great Writ of Liberty. It is a history of the writ from the 15th to the 18th century so that the book will change the way people understand the development of the writ and democracy. Halliday examines the imperial experience – legislative action of the 18th and 19th centuries, how it undermined the writ’s utility and the negative impact apparent in the empire in the 19th and 20th centuries.

“My intention has been to offer a history of habeas corpus that is better grounded empirically and broader conceptually than the one still routinely invoked in courtrooms and public debate. The final chapters explore aspects of the nineteenth and twentieth centuries, but I make no attempt to draw lines out of the past to arrive on one moment or set of issues, nor do I want to suggest where the writ might or must go from here. Rather than seeing law’s past moving with a logic that requires it to resolve on a particular point, the book concludes by highlighting the paradoxical ways that the writ does and does not work – the many human values that law does and does not realise in operation.”

He has delved into the archives of the court of King’s Bench, England’s greatest common law court and the court to which most prisoners went for habeas corpus.Supporting the entire book is information gained from a quadrennial survey of habeas use from 1500 to 1800, made possible by examining the records of King’s Bench. This is a work of history not law. But it explains the law. Even our long Constitution rests on conventions. Neil Parpworth’s book provides a comprehensive guide to the conventions of the parliamentary system to the growing administrative law and the law on civil liberties. It is remarkably up to date. The law is stated as on February 1, 2010.


Mature justice


Three recent judgments delivered by courts at different levels in cases that were in the media glare stood out for their judicial sagacity.

THE recent trend of judicial pronouncements being assailed at the slightest provocation should be of concern to those who look upon the judiciary as the last institution of hope to buttress a crumbling system of governance. (The news of the Karnataka “thamasha” convinces me more than ever that the judiciary is our only hope against chaos.) The unfortunate situation is serious if one reckons the grave charges levelled even against personalities as high as a few former Chief Justices of India. I do not for a moment suggest that all judicial orders need to be accepted without demur or that every court decision is well reasoned and beyond reproach.

Undoubtedly, some of them are poorly written and argued, demanding circumspection and analysis. Also, the availability of a process of appeal to the highest court of the land should be a source of great comfort for those who are cynical of the quality of the lower judiciary. What I am pleading for is only a rational discussion of judgments without the sway of emotions or narrow sectarian or political proclivities. I am speaking in the context of at least three cases that were decided recently by different courts: the Supreme Court, a High Court and a trial court of sessions. These have been discussed and criticised in the media by a spectrum of public figures and experts.

Many of the commentators who were active in this connection are the best in the country, although a few carried a bias arising from their well-known political and other predilections. One must remember that such debates have a profound influence on the people’s perceptions of an institution such as the judiciary. This is why commentators need to be careful and responsible when they air their views on court judgments, even if this means they risk sounding all too trite. Whether those who commented on the three judgments – the Ayodhya, Priyadarshini Mattoo and Pratibha Murthy cases – rose to the exacting standards that I set here is doubtful.

The most contentious of the three cases is certainly the one relating to legal rights over the land on which the Babri Masjid once stood, until it was unjustifiably and crudely demolished on December 6, 1992. The judgment, in what is distinctly a civil case, given by a three-member Bench of the Allahabad High Court, decreed a three-way division of the disputed land among the three litigants. While this has been found acceptable to some sections of the population in Ayodhya and elsewhere, others believe that the ruling went beyond the questions posed to the Bench and that some of its statements, especially with regard to the place of birth of Rama, were based more on traditional faith carried over to the present, than on facts established by documents. One jurist went to the extent of criticising the ruling as the product of an attempt at mediation in “panchayati” style. This I thought was uncharitable. Fortunately, no one who was unhappy with the judgment has until now cast aspersions of bias on any of the three judges. This is great testimony to the quality of our higher judiciary.

I am no expert on Ayodhya, which is an extremely complicated tangle. I am, however, persuaded by the fact that feelings on the issue are surcharged, and any decisive ruling in favour of one of the parties would have definitely excited emotions so badly that the Court order could have led to a major inter-religious conflagration. This is what possibly agitated the minds of the judges when they gave a compromise formula. In my view, this was judicial sagacity of the highest order that deserves to be commended rather than denounced.

Even the strictest possible analysis of the verdict shows that it was not exactly extra-legal, but one that accommodated rival points of view to the extent possible. It is the role of the judiciary to ensure that in such sensitive social issues the mean path is adhered to so that equilibrium in the community is maintained. The fact that the judgment did not lead to a disturbance of peace is itself proof that it was the best compromise possible. The judiciary in a plural society needs to rise above differences of religion and caste, and the Allahabad High Court judgment did succeed in achieving this difficult objective.

The Mattoo case dealt with the brutal rape and murder, in January 1996, of Priyadarshani Mattoo, a Delhi law student, by one of her seniors, Santosh Singh. This was a crime of the most abominable variety. It was initially handled by the Delhi Police and later transferred to the Central Bureau of Investigation once it became known that the father of the accused was a senior Delhi Police officer. The CBI laid the charge sheet after sustained inquiries. The trial court was convinced that Santosh Singh was the culprit. It, however, acquitted him on the basis of certain inconsistencies in the forensic evidence let in – such as chain of custody of samples picked up at the scene.

The CBI escalated the matter to the Delhi High Court, which accepted the prosecution story in toto and sentenced Santosh Singh to death. The latter appealed to the Supreme Court. Delivering the judgment recently, the two-member Bench held the accused guilty but commuted his sentence to one of life. The judges cited the youth of the accused and the fact that he got married after acquittal by the trial court and became a father as reasons why he deserved compassion. This has naturally not gone down well with the victim’s family and their lawyers. They strongly believe that the mercy shown to Santosh Singh was misplaced and that the Supreme Court had erred in ignoring the feelings of the victim’s father, who had carried on a relentless campaign to avenge the cruelty.

It may sound contrived when I say that my heart goes out to the Mattoos, who could not have suffered a greater tragedy in their lives. I do not think we can find anybody, barring the close relatives of the accused, who demonstrates an iota of sympathy for Santosh Singh. Except some of us who stand for the abolition of capital punishment, none would have disagreed with the Supreme Court if it had confirmed the death sentence. This was because the crime was barbaric and had been established firmly despite the fact that there was no eyewitness. The point is that courts cannot take a one-sided view of a crime, even when it has been proved beyond doubt. Justice laced with sympathy is a time-honoured concept that has been accepted widely by civilised society over centuries. The Supreme Court here did not say that it disbelieved the prosecution, nor did it seek a higher standard of proof, even though Santosh Singh was held guilty mainly on circumstantial evidence. The court’s position was only on the point of compassion to the accused because he had a very young child. Also, his youth offered hope of penitence and reform.

People like us, not directly affected by the tragedy, are undoubtedly impressed by the Supreme Court’s remarkable stand, which required tremendous courage to take because of the likelihood of adverse criticism from the victim’s family and friends and the media. Undeniably, some of us are at variance with the Mattoos, who lost a lovely daughter who had a promising career before her. The conflict between rival stands – those who are touched by the judicial compassion and those looking to avenge the barbaric killing – will never be resolved. This is the tragedy of many cases brought before criminal justice agencies, and we have necessarily to live with such a paradox.

The case of the rape and murder of a business process outsourcing (BPO) employee, Pratibha Murthy, in Bangalore by a taxi driver, Shivakumar, in 2005 is only slightly different from the Mattoo case. Unlike in the latter case, the accused was a total stranger to the victim. The case was tried by a so-called fast track court and the judgment delivered only on October 8, 2010. Few doubted the guilt of the accused, and his conviction was rightly welcomed by all. The controversy is over the quantum of punishment.

The trial judge’s award of a life in jail (until death) has been criticised as lenient, because of the fear that life sentence opens up the possibility of the convict’s release at the end of 14 years, the period prescribed by the Criminal Procedure Code for such a sentence. I am not sure whether the judge’s stipulation that the convict be held in prison until he dies is sanctioned by law.

It is possible that the State may go on appeal, under pressure from the victim’s family and the weight of public opinion. In any case, the quantum of punishment imposed on the taxi driver is debatable. There is no final resolution of this. However, is it not time to take a fresh look at what “rarest of rare cases” would mean in the context of rising violent crime, especially when the victim is both raped and murdered?

In sum, the three judgments display a certain maturity of the justice system in the country, despite all the criticism against its susceptibility to political pressure and the poor quality of the lower judiciary. There is the further dismay that the judiciary, except in rare cases, does not attract the best of talent. Finally, there are the wide differences between the executive and the judiciary over the manner in which appointments should be made to the High Courts and the Supreme Court.

The three judgments offer the hope that these shortcomings in the system will not inhibit judges from being innovative, compassionate and bold in cases that attract media attention. This is why any overhauling of the system in response to charges of politicisation and downright lack of integrity against individual judges needs to be done after due deliberation. I believe this represents the consensus among the common people in the country.

Sting is legal


The Delhi High Court exonerates two journalists accused of bribing in the cash-for-questions scam.

BY holding that a sting operation by any citizen is a legitimate exercise, Justice Shiv Narayan Dhingra of the Delhi High Court resolved, on September 24, a key dilemma of journalists intending to use sting as a means of exposing corruption. Justice Dhingra, in his order, quashed the charge sheet and the summons against two journalists, Aniruddha Bahal and Suhasini Raj, who had conducted a sting operation in 2005 against Members of Parliament (MPs) in order to expose their corrupt ways. The Delhi Police, instead of prosecuting the corrupt MPs, charged Bahal and Suhasini Raj under the Prevention of Corruption Act (PCA), for seeking to bribe the MPs.

A sting operation, by implication, involves a bargain to commit an offence by a public servant in exchange for monetary or other benefits so that the person who carries out the sting will be able to capture the offence on his or her camera by subterfuge. This raised the issue of invasion of the privacy of the official being exposed, but it was mostly justified in terms of the larger public interest involved if the public servant being exposed was predisposed to corruption, and if the sting operator had the larger public interest in mind. But the legal question of whether the sting operator might be guilty of abetment to the offence committed by the public servant remained to be resolved.

In 2005, Bahal and Suhasini Raj conducted a sting operation to expose the practice, among some MPs, of taking money for asking questions in Parliament. This practice, Justice Dhingra said, had been known to the public for quite some time but had not been brought to the notice of the public at large with credible proof. Bahal and Suhasini Raj took upon themselves the responsibility of exposing such MPs with documentary proof. Television channels broadcast footage of this sting operation on December 12, 2005, which showed how some MPs accepted money for asking questions.

Following this, the then Lok Sabha Speaker, Somnath Chatterjee, constituted a committee to inquire into the allegations of the conduct of those members of Lok Sabha who were shown to have received money. The Rajya Sabha also constituted such a committee to inquire into the conduct of a Rajya Sabha member. However, it took one and a half years for the Delhi Police to register cases of corruption against these MPs. Ironically, the police made the two journalists who conducted the sting operation the prime accused in the case. Not only did the police register first information reports (FIR) against them, but the trial court took cognisance of the case against them and issued summons against them as accused on July 6, 2009.

Bahal and Suhasini Raj challenged this order of the trial court in the High Court by arguing that they conducted the sting operation to expose corruption and not to commit any crime. The police, instead of calling them as witnesses, made them the accused with the sole aim of killing the case, they contended. During the hearing, Justice Dhingra gave an opportunity to the police and the Central government to use the services of the two journalists as witnesses and seek their discharge from the case. But the government refused to do so.

Justice Dhingra posed the question to be decided in the petitions filed by Bahal and Suhasini Raj as follows: “Whether a citizen of this country has a right to conduct such sting operation to expose corruption by using agents provocateurs and to bring to the knowledge of the common man corruption at high strata of society?” He reasoned that such a right flowed from certain fundamental duties of citizens listed under Article 51A (b) of the Constitution. This Article provides that it is the duty of every citizen to cherish and follow the noble ideals that inspired the national struggle for freedom.

To Justice Dhingra, one of the noble ideals of our freedom struggle was to have an independent and corruption-free India, and it is imperative to remove corruption in order to fulfil another fundamental duty enshrined in the Constitution – to protect the sovereignty, unity, and integrity of the country.

Justice Dhingra then explained how the duty to expose corruption is linked with every other duty under Article 51A – be it the duty to defend the country, or to develop a spirit of inquiry and reforms, or to strive towards excellence in all spheres. Taking judicial note of the fact that there is widespread corruption, Justice Dhingra posited that it is the fundamental right of citizens to have a clean, incorruptible judiciary, legislature, executive and other organs of government and in order to achieve this right, every citizen has a corresponding duty to expose the corruption, if possible, with proof. This, he suggested, would make people reject corrupt representatives at the hustings and also compel the state to take action against them.

Stating that journalists carrying out a sting operation cannot be considered as accomplices in the commission of the crime, Justice Dhingra rejected the contention of the police that in order to become witnesses, the journalists who carried out the operation should have reported the matter to the Central Bureau of Investigation (CBI).

Justice Dhingra remarked: “I need not emphasise that in cases of complaints against persons in power how the CBI and the police act …. I have no doubt in my mind that if the information would have been given by the petitioners to the police or the CBI, the respective MPs would have been given information by the police beforehand and would have been cautioned about the entire operation.”

Justice Dhingra also rejected the contention that Bahal and Suhasini Raj had offered bribes to the MPs and thereby committed an offence under the PCA. He held as follows: “In order to expose corruption at higher level and to show to what extent the state managers are corrupt, acting as agents provocateurs does not amount to committing a crime. The intention of the person involved is to be seen and the intention in this case is clear from the fact that the petitioners, after conducting this operation, did not ask police to register a case against the MPs involved but gave information to people at large as to what was happening.”

Justice Dhingra indicted the conduct of the police in not registering an FIR soon after the telecast of the sting. “The police seem to have acted again as ‘his master’s voice’ of the persons in power when it registered an FIR only against the middlemen and the petitioners and one or two other persons, sparing a large number of MPs whose names were figured out in the tapes,” he wrote in his order.

One remarkable feature of Justice Dhingra’s judgment is that he equated journalists with other citizens with a duty to expose corruption. Thus any other citizen could have carried out the sting and still be entitled to the protection of the law. He considered that the duties prescribed by the Constitution for the citizens permitted them to act as agents provocateurs to bring out, expose and uproot corruption.

Justice Dhingra felt that Bahal and Suhasini Raj not only aired on television channels the tapes relating to the sting operation, but also deposed truthfully before the two committees of Parliament. The two committees did not doubt the genuineness of the tapes or the intention of the petitioners, Justice Dhingra said. “Under these circumstances, charging the petitioners with the offence under the PCA would amount to travesty of justice and shall discourage the people of this country from performing their duties enjoined upon them by the Constitution as well as Criminal Procedure Code,” Justice Dhingra held.

Justice Dhingra’s order is in contrast to the manner in which the Supreme Court treated journalists involved in another sting operation in 2004. In this case, a television reporter had obtained bailable warrants from an Ahmedabad court against four prominent persons including the then President A.P.J. Abdul Kalam and the then Chief Justice of India Justice Y.K. Sabharwal. The objective of the sting operation was to expose the malpractices in the judicial administration in the subordinate courts in Ahmedabad.

The Supreme Court quashed the warrants as illegal and went on to examine whether the sting operation was legal. During the hearing of the case, Vijay Shekhar vs Union of India, the then Chief Justice of India, K.G. Balakrishnan, insisted on an “unconditional apology” from the reporter. Observers wonder whether Justice Dhingra’s landmark order could influence the outcome of this case, which remains inconclusive.

Meanwhile, Bahal has filed a caveat in the Supreme Court lest the Delhi Police seek to appeal against the verdict. If the Delhi Police, and the Central government under which it functions, decide to appeal against it, it will only confirm their contempt for a citizen’s duty to expose corruption.

Enemy property Act amended

NEW DELHI: The Union Cabinet has approved amendments to the Enemy Property Act that will allow ‘enemy property’ returned to its owner or lawful heir prior to July 2, 2010, by the court to remain with him/her. This will pave the way for implementation of a Supreme Court order directing custodian of Raja of Mahmoodabad to return his multi-crore properties across UP and Uttaranchal to his legal heir Raja Mohammad Amir Khan. The lawful heir must be an Indian citizen by birth, a condition fulfilled by Raja Mohammad Amir Khan. Properties left behind by persons who acquired Pakistani citizens were taken over by government custodian, after 1965, and labelled as enemy property. The Cabinet meeting saw home minister P Chidambaram and minority affairs minister Salman Khurshid sparring over the proposed law. Mr Chidambaram has been insisting on the supremacy of the executive to decide on the issue. It is learnt that the home minister raised his reservations over Mr Khurshid’s activism in the matter. It took the prime minister’s intervention to bring a truce. According to a PIB release on the Cabinet decision, if the enemy property was divested from the custodian before July 2, 2010, it shall stand transferred to and vest or continue to vest in the custodian. “If, however, the enemy property was divested from the custodian by a valid order made under Section 18 prior to July 2, 2010, or where the property had been returned to the owner or his lawful heir by an order of the court; and if the lawful heir is a citizen of India by birth, such enemy property will continue to remain with such person,” the release added. Importantly, the new bill, which will have retrospective effect, proposes to take away the powers of the courts to issue directions to the custodian to restore enemy properties to the owner or their legal heirs. “The enemy property shall continue to vest in the custodian till it is divested by the central government…to the owner or his lawful heir…No court shall order divestment from the custodian or direct the central government to divest enemy property,” said the amendments approved by the Cabinet on Wednesday. The proposed amendments indicate reluctance on part of the government to block the restoration of Raja of Mahmudabad’s sprawling properties across Lucknow, Sitapur, Barabanki, Lakhimpur Kheri and Nainital. The government, worried that the apex court’s 2005 order restoring Pakistani citizens whose properties in India were taken over by the Custodian after 1965, brought in an ordinance of July 2, 2010, nullifying the court order. Raja of Mahmoodabad’s properties to his legal heir would encourage similar lawsuits by Pakistani citizens whose properties in India were taken over by the custodian after 1965, brought in an ordinance of July 2, 2010, nullifying the court order.