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Justice Bhagwati pleads guilty for ADM Jabalpur Case

Posted in CONSTITUTION, CRIME AGAINST WOMEN, JUDICIAL ACTIVISM, JUDICIARY, SUPREME COURT by NNLRJ INDIA on September 16, 2011

Supreme Court of India

PUBLISHED IN www.myLaw.net

JUSTICE FOR THE COMMON MAN

(Retd.) Justice Bhagwati said that the development of public interest litigation in India could be attributed to his role as a judge. When he was a judge, and even when he was Chief Justice of India, he travelled to the poor regions in Bihar, Orissa, and Uttar Pradesh and saw “stark naked poverty”.

“People came to me in large numbers out of a sense of admiration for me because already I had made a name for myself, and I could see that many of them were in tattered clothes, some of them with sunken bellies, they’d hardly had any food. I realised that my justice was not reaching them at all. My justice was confined to a few fortunate rich people who could come to the court and could afford the luxury of litigation. If you want to go to court, you have to go to a lawyer. You have to brief him and pay him, and then in the Supreme Court it means a lot of costs, which poor men cannot afford, and so they were deprived of justice. So I felt something must be done to bring justice to the doorstep of the common man. So I invented this doctrine of public interest litigation, and I held that where any right of a person is infringed or he has any legitimate grievance and is unable to go to court because of poverty or illiteracy or ignorance, then any public spirited individual or any N.G.O can file an action on his behalf to ask the court to intervene to see that the human rights of poor people are restored.”

Another problem that he faced was that NGOs did not have money to brief a lawyer and file a writ petition. “So I said, it is enough if they write a letter to the court. It is called epistolary jurisdiction – jurisdiction that is invoked by writing letters or epistles to the court. Letters started coming to me from NGOs and poor people. I actually had to set up a department in the Supreme Court to sort them out and whatever appeared to be genuine were placed before me and the court. They would be numbered and then I would issue notice to the other side – usually it was the government or a government officer. On the day fixed, I would take up the case and appoint a lawyer on behalf of the claimant.” Under Article 32 which was very wide in its terms, (Retd.) Justice Bhagwati had vast jurisdiction.

The doctrine of public interest litigation received acceptance overseas as well. When he went to South Africa, Justice Bhagwati was welcomed by Albie Sachs, a famous judge of the Constitutional Court, who publicly called him, “the father of public interest litigation.”

The former Chief Justice of India added that it was now for the lawyers to see public interest litigation prosper. “There are some judges who are against it.” These judges, he said, did not believe that a person without cause of action should be allowed to come to court. “I want the Bar, I want the public, I want the press to ensure that public interest litigation does not die out. He said that it was a mechanism that ensures the balance of power, and it keeps the government under check. He also denied that the judiciary had ever gone overboard with its activism. “In fact, in recent years, the judiciary has been much too reticent. Judiciary must keep only one thing in mind – that they are appointed to do justice, and justice to the common man, not only to those who can afford to go to court, but to the large millions of India. Let them not be obsessed by the British system of justice, which originated and exists under different circumstances. Ours is a poor country, where a large number of people are deprived of their basic human rights.

JUDICIAL CORRUPTION AND APPOINTMENTS

When asked about the process of appointment of judges, (Retd.) Justice P.N. Bhagwati was clear: he had seen the collegium system develop before his eyes, and did not approve of it. “I am against the collegiums system; the former system – where the Chief Justice of India and the Law Minister would consult senior colleagues such as the Attorney General (as I did in my tenure as Chief Justice) in order to see that they had made the right recommendation — was much better. If there is a collegium of five, bargaining will go on amongst them. That is why the quality is going down.” He was vociferous about going back to the old system, which would be most suited for selecting the best person for the judiciary.

The next question raised was one raising a lot of furore lately – relating to judicial accountability. How can judges be held accountable without impinging on the independence of the judiciary? Justice Bhagwati opined that it was a difficult question; the only definite was that the independence of the judges should not be encroached upon at all. “My view is that the Chief Justice should set up a small committee to look into this matter. Whenever the allegations of corruption occur, they must come straight to the Chief Justice alone. He, with his two senior most colleagues should look into the whole question… There must be a mechanism to check corruption, but it must be manned by an independent body, not the legislature or the executive.”

ADM JABALPUR CASE – SUPREME COURTS DARKEST HOUR

“The instances of the Apex court‘s judgment violating the human rights of the citizens may be extremely rare, but it cannot be said that such a situation can never happen.” A Supreme Court bench comprising Justices Aftab Alam and A. K. Ganguly recently lamented thus, referring to the majority judgment in the infamous A.D.M. Jabalpur v. Shivkant Shukla case, popularly known as The Habeas Corpus case. Former Chief Justice of India, Hon’ble Mr. Prafullachandra Natwarlal Bhagwati, who was part of that tainted majority, concurs with Justice Alam and Justice Ganguly, only much later in time and context.

The discussion began with the role of political ideology in the bench; judges come from different backgrounds, for example, Justice Krishna Iyer had a clear background with the communist government. Recently, the Supreme Court has been very critical of the developmental attitude of the Central government. Justice Bhagwati was emphatic on the point: “The question of interpretation is the most important — how the court reads and interprets facts and relates it to the law requires a lot of skill, insight and vision. So your political ideology is bound to colour your judgment, you cannot avoid it. But it should not blind you to the words used by the Legislature.”

Asked to discuss the Supreme Court’s attitude during the Emergency — what some advocates refer to as the “dark days” — Justice Bhagwati held some regrets. “The Supreme Court’s attitude was far from satisfactory; it should have been more bold. It should have tried to uphold the rights of the people, but the Supreme Court failed; there is no doubt about it.”

Speaking about the ADM Jabalpur case specifically, Justice Bhagwati said that if not a disgrace, the case was something for which the Supreme Court should be ashamed. He did not absolve himself: “I was there — I plead guilty. I don’t know why I yielded to my colleagues. In the beginning, I was not in favour of the view that the majority took. But ultimately, I don’t know why, I was persuaded to agree with them. I still feel that the whole judgment was against my conscience. I have always been for freedom, freedom of speech and freedom of expression; I have always believed and always stood by these principles. It was an act of weakness on my part.”

Justice Bhagwati re-iterated that the Supreme Court’s willingness to expand the scope of Part III and Part IV of the Constitution came about because of its guilt for passing the ADM Jabalpur judgment. “I realised that I had made a big error and so I started developing Articles 14, 19, 21, 32, as no one else has done. I practically re-wrote these articles.”

He also recalled that Maneka Gandhi was a wonderful case; though he didn’t remember who argued the facts, but it gave him an opportunity to mould the law and develop it. “She had been deprived of her rights, and I upheld them. After the judgment was over, I met Manekaji at some function and I couldn’t help but remark, “I have made you immortal.” Everyone cites that judgment now. “

BHAGWATI ON HIS CAREER

“I started practice in February, 1948 February, and soon acquired a very large practice. There were some very good lawyers. I used to sit in the library of the Bombay High Court, and next to me a gentleman called Mr. J. C. Bhat, a very able lawyer, used to sit. There was Mr. Seervai, who has written a book on the Constitution, who was also an excellent lawyer.” He recounted it being a wonderful experience.

He was eventually elevated to the Bench. “In 1960, the Chief Justice of the new state of Gujarat, Justice S.T. Desai invited me to be a judge in the Gujarat High Court. I readily accepted, because I had always aspired to be a judge – as a judge you get an opportunity to mould the law and develop it. I was also the Chief Justice of the Gujarat High Court for six years. But my real opportunities came when I came to the Supreme Court in 1973.” Law, as per Justice Bhagwati, is like plasticine in the hands of a great judge, which he can mould as he likes, provided he has the vision and the requisite craftsmanship. “I started moulding and developing the law. Then came Articles 14, 19, 21, and 32, and I practically re-wrote Parts III and IV of the Constitution. I still remember, those days it was a thrilling experience. I would get up at five in the morning and start writing my judgments (I rarely dictated, I always wrote my judgments, because only then the best of you comes out).”

Aju John then asked him about his time in the Supreme Court, and the advocates and his colleagues on the Bench. In terms of advocates, Justice Bhagwati particularly recalled two, the likes of which he doesn’t see anymore: “The Attorney General, Mr. Motilal Setalvad was an outstanding lawyer, as was Mr. C.K. Daphthary.” He was also full of praise for his brother judges, saying that some of them were very good. “Two eminent ones I remember were Justice Krishna Iyer and Justice Dhirubhai Desai (people don’t remember him but he did a lot for industrial law, he was very pro-labour). Justice Eradi from Kerala was also a good judge — these three I distinctly remember.”

SOURCE :

http://mylaw.net/Article/The_darkest_hour_of_Indian_history/
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35 yrs later, a former Chief Justice of India pleads guilty

Hans Raj Khanna

Image via Wikipedia

INDIAN EXPRESS

Over 35 years after he signed off — with the majority on a five-judge bench of the Supreme Court — to rule that even the right to life could be abrogated, former Chief Justice of India P N Bhagwati today said he was sorry for that ruling.

“I was wrong. The majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would agree with what Justice (H R) Khanna did. I am sorry (for the judgment),” Bhagwati told The Indian Express today.

In the 1976 ADM Jabalpur vs Shivkant Shukla case, popularly known as the habeas corpus case, Justices Bhagwati, A N Ray, Y V Chandrachud and M H Beg agreed with the then Indira Gandhi government that even the right to life stood abrogated during the Emergency. The verdict constitutes one of the darkest chapters in the history of the court as it struck at the very heart of fundamental rights.

“I don’t know why I yielded to my colleagues,” said Bhagwati. “Initially, I was not in favour of the majority view. But ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that time, a young judge…I was handling this type of litigation for the first time. But it was an act of weakness on my part.”

Justice H R Khanna, incidentally, was the only judge on that bench who dissented with the majority view arguing that the Constitution didn’t permit the Right to Life and Liberty to be subject to any executive decree. This cost him the job of CJI.

He claimed that his later judgments dealing with fundamental rights did uphold the Constitution. Was it the lure of high office? “I can’t say this. It would not be right for me to say this,” he said.

Incidentally, during the Emergency, Bhagwati praised the Indira government but after the Janata Government came, he was critical of her. After Indira’s return, he sent her a gushing letter: “…I am sure that with your iron will and firm determination, uncanny insight and dynamic vision, great administrative capacity and vast experience, overwhelming love and affection of the people and above all, a heart which is identified with the misery of the poor and the weak, you will be able to steer the ship of the nation safely to its cherished goal.”

http://www.indianexpress.com/news/35-yrs-later-a-former-chief-justice-of-india-pleads-guilty/847392/0

 

Sex Workers Rehabilitation Case latest orders of the Honourable Supreme Court of India

Posted in SEXUAL OFFENCES, SUPREME COURT, TRAFFICKING by NNLRJ INDIA on September 16, 2011

This case was initially a criminal appeal, but later was converted into a Public Interest Litigation suo motu by our order dated 14th February, 2011. By that order we dismissed the criminal appeal of the appellant and upheld his conviction. However, we were of the opinion that the problems of sex workers required urgent attention by this Court. Hence, we proceeded thereafter to continue with the case as a Public Interest Litigation and passed several orders    thereon,     including      an       order   dated     19.07.2011 setting up a Panel with Mr. Pradip Ghosh, Senior Advocate, as its Chairman.

Today, the case has been listed again before us and a Third    Interim     Report   dated  12.09.2011 of     the   Panel appointed by our order dated 19.07.2011 has been filed before us by the Chairman of the Panel Mr. Pradip Ghosh, learned senior counsel.

From a perusal of the report submitted by the Panel report it appears that the Panel has been doing very good and sincere work in connection with the task which we have entrusted to it. The Panel has taken great pains and has held    regular   meetings   to     discuss      the    problem   of    sex workers. We have earlier pointed out in one of our orders that the problem of sex workers cannot be resolved in a very short time and will require long, patient effort. 

Our  initial aim was to create awareness in the public that sex workers are not bad girls, but they are in this profession      due    to    poverty. No   girl    would   ordinarily enjoy this kind of work, but she is compelled to do it for    sheer   survival.       Most     sex    workers   come   from    poor families,   they    are    subjected       to   ill    treatment   by    the owners of the brothels, they are often beaten, not givenproper food or medical treatment, and made to do this degrading work. Probably much of the money paid by their customers is taken away by others.

 We are happy to note that the Panel has set about its task in right earnest, and is considering ways and means to implement our ideas so that the sex workers can get some technical training through  which they can earn their livelihood and thus lead a life of dignity which is guaranteed by Article 21 of the Constitution of India

In the Third Interim Report the Panel has prayed for the following :-

(a)    An appropriate order directing the State Governments and the Local Authorities to issue Ration Cards to the sex workers treating them as persons in special category and relaxing the rigours of the Rules/requirements regarding the verification   of   their   address   and without mentioning their profession in the Card;

 (b) An appropriate order be made directing the Central Government and the Election Commission to issue Voter’s Identity Cards to the sex workers in relaxation of the rules/requirements in that behalf and without insisting on strict proof of their address/profession and without specifying their profession on the face of the Card;

(c.) An order be made directing the Central Government and the State Governments to ensure that the admission of the children of sex workers     in appropriate classes in the Government schools and Government sponsored schools and the schools run   by   the   Municipal   and  District   level authorities is not hampered in any way, because of their impaired social status.

(d) An appropriate order be made directing the Central Government to suitably alter and widen the UJWALA Scheme within a period of six months as directed by order dated 24.08.2011 (vide paragraph 26 of the said order) made in this matter.

(e) An order or direction be made to the effect hat the amount paid or to be paid by the Central Government, State Governments and the Union     Territories to the Secretary General of this Hon’ble   Court  as   directed   by  order   dated 24.08.2011, be deposited in the Bank Account of the Panel in the UCO Bank Supreme Court Compound Branch, in the name of “Panel Appointed by Supreme Court in Criminal Appeal No. 135/2011”      to be     operated jointly by the Chairman of the Panel Mr. Pradip Ghosh and Mr. Jayant Bhusan, a member of the Panel, in terms of the order dated     24.08.2011.

(f) Such appropriate orders as may be deemed fit  and proper be made, for compliance by the Central Government of the earlier order made by the     Hon’ble Court on 24.08.2011 with regard to office accommodation, secretarial staff assistance and furnishing     the     office    with    necessary infrastructure and to furnish report of compliance  in this Hon’ble Court within a period to be fixed by the Hon’ble Court.”

 We are of the opinion that the suggestions of the Panel are   good      suggestions. Sex   workers    face     great difficulty      in   getting       ration      cards,    voter’s     identity cards or in opening bank accounts, etc. We are of the opinion that the authorities should see to it that sex workers do not face these difficulties as they are also citizens of India and have the same fundamental rights as others.

We, therefore, recommend that the suggestions made by the Panel in its Third Interim Report (which has been quoted above) shall be seriously taken into consideration by the Central Government, the State Governments and other authorities      and      hence    all    efforts       shall   be   made    to implement these suggestions expeditiously. If there is any difficulty in implementing them, then on the next date we should be told about such difficulty.

Needless to    say,     without      a   proper     office      and infrastructure the Panel will not be able to discharge its duties properly. We, therefore, again request the Central Government and the State Government of Delhi to do the needful in this connection expeditiously.

 We are informed that in pursuance of our order dated 24.08.2011 the  Central Government has deposited a sum of Rs. 10 Lakh with the Secretary General of this Court. Some of the States/Union Territories have made payment as directed   by   us.   However,   some   of   the   States/Union Territories are yet to make payment. We direct that those States or Union Territories which have not yet made payment shall make payment within three weeks from today (except those which have no sex workers).

We further direct that the amount deposited with the Secretary General of this Court shall be transferred to the account of the Panel in the UCO Bank, Supreme Court Compound Branch in Savings A/C No. 02070210000939.

List this case on 15.11.2011 by which time another report shall be submitted by the Panel. We hope and trust that the recommendations made by the Panel will be implemented by then by the concerned authorities.

J   (MARKANDEY KATJU)

J (GYAN SUDHA MISRA)

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