Privacy right is no cover for unlawful act: counsel

THE HINDU

When there is a conflict between individual right on homosexuality and societal interest in morality, the latter will prevail, counsel Harshvir Pratap Sharma argued in the Supreme Court strongly opposing the Delhi High Court judgment de-criminalising homosexuality between two consenting adults.

Appearing for the former BJP MP, B.P. Singhal, Mr. Sharma told a Bench of Justices G.S. Singhvi and S.J. Mukhopadhaya that fundamental rights should not be read in isolation. They should be read along with the Directive Principles of State Policy. Every fundamental right was subject to public health, morality and decency.

Counsel faulted the High Court judgment, contending that consent for unlawful act was not consent in the eye of law and one could not claim the right to privacy for indulging in it. The court had dismissed petitions claiming right to gamble. “Tomorrow a pregnant woman might claim the right of abortion. Will the court allow it?”

Pointing out that India is a country of different religions and cultural identities, counsel said the Supreme Court, while deciding the question of legalising homosexuality between two consenting adults, should take this factor into consideration.

He said the Naz Foundation, petitioner before the High Court, claimed that it was working on a HIV/AIDS prevention programme. But when the Lucknow police raided one of its premises, several articles and videos were seized and it was found that the Foundation was carrying out perverted sexual practices in safe places on a collective scale.

Arguing that Mahatma Gandhi had considered homosexuality a vice and immoral, counsel said the word ‘unnatural’ would mean immoral, irrational and against public policy, and any unnatural act would be an offence. Pointing out that the court could interfere only if there was violation of one’s fundamental right, he said that in this case there was no complaint of violation. It was mere apprehension of violation and the court could not interfere unless and until the right was violated, he said.

Additional Solicitor-General Mohan Jain, appearing for the Health Ministry, in his written submissions, explained its concern for opposing the High Court judgment. “According to the National AIDS Control Organisation, the overall HIV prevalence among different population groups in 2008-09 shows that HIV is higher among the HRG [High Risk Groups], Injecting Drug Users [IDU] 9.19 %, Men who have Sex with Men [MSM] 7.3% and Female Sex Workers [FSW] 4.94 %, while HIV prevalence among the general population is estimated to be less than 0.5%. The estimated number of MSMs and Transgenders [TGs] at high risk in 2009 is 4.12 lakh. Through Targeted Intervention [TI] projects, 2.85 lakh (69%) MSMs and TGs have been covered under services. Since many MSMs are married and have sex with women, their female sexual partners are also consequently at risk for HIV/infection” Reluctance to reveal the same sex behaviour rendered risky sexual practices going unnoticed and unaddressed in MSMs.

The ASG said: “The fear of harassment by law enforcement agencies mostly leads to sex being hurried, particularly because these groups lack ‘safe place’ and they often utilise public places for their indulgence. They do not have the option to consider safer sex practices. The hidden nature of such groups hampers interventions under the National AIDS Control Programme, which is aimed at prevention of AIDS. This makes a large section of MSMs invisible and unreachable.” By creating a friendly environment, the people involved in risky behaviour would be encouraged to reveal information and this would help in providing them total access to the services of preventive efforts.

The ASG said: “HIV Sentinel Surveillance in India, implemented by the National AIDS Control Organisation, is the largest and one of the best systems in the world. The methodology adopted is globally accepted and in accordance with WHO/UNAIDS recommendations for HIV/AIDS surveillance. For this purpose, sentinel sites are set up at specific service delivery points or facilities such as ANC [Antenatal clinic], STI [Sexually Transmitted Infection] clinics and TI projects. TI projects are NGO-based projects that provide prevention services to high-risk groups [Female Sex Workers, MSMs and IDUs.] They are reached at several identified “hot spots” such as brothels, clubs, bus stops, railway stations, parks, theatres, etc, where the high-risk group individuals can be approached. Based on data from the NACP on population size and vulnerabilities of the risk groups, these sentinel sites are established at places where high HIV prevalence is expected and therefore, need to be closely monitored under the programme.”

http://www.thehindu.com/news/national/article2943631.ece

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When right to private defence is wrong

BY GEETA RAMASESHAN PUBLISHED IN  THE HINDU

A police claim of self-defence to justify encounter killings must be held to higher standards of proof as the force is armed and trained for combat.

The “encounter” deaths of five persons suspected of having carried out two bank robberies in Chennai is reminiscent of the Batla house encounter. It has once again focused attention on the practice of extrajudicial killings in Tamil Nadu. Reports in The Hindu indicated that the police got a tip-off about where the perpetrators were, after the photograph of one suspect appeared in the media. As a follow-up, the official version goes, policemen visited the premises where the five men were and asked them to surrender. They in turn fired on the police, which resulted in the five being shot dead. Such a construction poses many uncomfortable questions.

How was the man in the photograph identified as one of the five men in the house? Again, why did the police not wait for the men to surrender? At the time of firing there was nothing to indicate that those killed were involved in the heist. They were purported to have been identified by eyewitnesses after they were killed.

The official claim that the police had to exercise their right of self-defence as they were shot at raises more questions than answers. It sweeps under the carpet disturbing aspects about the modus operandi of the police, in instances when they seem to conduct themselves more like vigilante groups rather than as protectors of the law.

In all cases of encounter deaths, the practice is to claim that the killings were done in self-defence. Under the penal code, the right of private defence is available to all, and no distinction is made between the police and layman. However the taking away of life can be done only under exceptional circumstances. The person seeking the right of private defence must have a reasonable apprehension that the person who is killed, would have killed him or her, or caused grievous hurt, could commit rape, kidnapping or abduction.

Private defence or murder

As a necessary corollary to such defence it is imperative that there is a registration of a First Information Report (FIR) considering such a death as murder or culpable homicide not amounting to murder. In order to claim a right of private defence to cause death, the person must show that there were circumstances giving to reasonable grounds for apprehension that death, or other acts described earlier would have resulted if the right was not exercised. Courts have held that if medical examination of the person reveals superficial or simple injuries, there can be no right to private defence. The violence used to defend oneself must not be unduly disproportionate to the injury that is sought to be averted and should not exceed its legitimate purpose.

But in order to prove that it was a legitimate exercise of the right, it is necessary to have an investigation with the burden of proof shifting to the person who claims this right. This right to private defence cannot be used to punish a suspect.

However FIRs, in most encounter cases, invariably state that on seeing the police the other party opened fire with a view to kill or threatened to kill. The issue of considering whether the death was a result of private defence or was one of murder is never factored in the FIR. Family members of the deceased or human rights activists who wish to reopen such cases find it an uphill task to get even a death certificate or post-mortem report and are thwarted at every stage, often facing threats to their life.

NHRC guidelines

In response to a complaint from the Andhra Pradesh Civil Liberties Committee (APCLC) relating to encounter killings of suspected members of the Peoples’ War Group (PWG), the National Human Rights Commission (NHRC) issued a series of guidelines that required all police stations to immediately record such deaths and hand over investigation to an independent agency such as the CID if the persons concerned were from the same police station. The NHRC guidelines also directed that in cases of specific complaints of fake encounters it was necessary to register and investigate the case by a special agency such as the CID. Family members of the deceased are required to be associated with the magisterial enquiry that must be conducted in encounter deaths and prompt disciplinary action must be taken against errant officers.

While these guidelines were issued in 2003, the commission now seems to be condoning such violence. Recently, the Chairperson expressed his view that extrajudicial executions could solve law and order issues and cited examples of “encounter” deaths of persons suspected of being members of the Mumbai underworld and Maoists.

The Madurai based human rights organisation, People’s Watch, has documented at least 23 such instances in the past four years in Tamil Nadu and filed a public interest litigation seeking the appointment of a retired High Court Judge to investigate “encounter deaths” in Tamil Nadu and to register a FIR in every such case. The writ is still pending.

A lay person faces a trial if claiming right to private defence if it results in death. But despite being trained in combat and armed with weapons, those who indulge in encounters do not even face an investigation. Hence, the test for “reasonable apprehension” of imminent danger cannot be the same for such persons and needs to be addressed with a categorical shift in burden of proof in cases of such custodial violence.

(Geeta Ramaseshan is an advocate at the Madras High Court. E-mail: geetaramaseshan@gmail.com)

http://www.thehindu.com/opinion/op-ed/article2943201.ece?homepage=true

Separate Investigation & Prosecution Cadre Proposed for Speedy Justice

Expeditious trial of cases has to be ensured by making necessary changes in procedure. States must create a separate investigation cadre. Separate prosecution cadre is also required. This was stated by the Union Home Minister Sh. P. Chidambaram at the Consultative Committee meeting of the Ministry of Home Affairs which discussed the topic: Investigation, Prosecution & Trial – the need for revamping. He informed members that Law Commission of India has been requested to give a report on the amendments required immediately. He said the Department- related Parliamentary Standing Committee on Home Affairs while examining the Code of Criminal Procedure (Amendment) Bill, 2010 in its 146th Report has recommended that there should be comprehensive review of the Criminal Justice System and introduction of composite draft legislation for revamping of the Criminal Justice System in the country. Accordingly, Ministry of Law & Justice have been requested to request the Law Commission of India to examine and give a comprehensive report covering all aspects of criminal law, so that comprehensive amendments could be made in the various laws viz. IPC, Cr.P.C., Evidence Act, etc. It was also suggested that the Law Commission of India may also, inter-alia, take into account the recommendations made by Malimath Committee & other Committee/Commission in this regard. The recommendations of the Law Commission of India in this regard are awaited.

While initiating the discussion, the Union Home Minister said, the investigation has moved to technology based evidence, new forensic tools are used by other countries. We also need to move towards it. He said the Committee on Reforms of the Criminal Justice System, constituted on 24.11.2000 under the Chairmanship of Justice V. Malimath, former Chief Justice of Karnataka and Kerala High Courts, considered measures for revamping the criminal justice system and gave recommendations on various aspects of the criminal justice system including investigation, prosecution and the trial procedure in its Report submitted in March, 2003. Since the Criminal Law and Criminal Procedure are on the Concurrent List of Seventh Schedule to the Constitution of India and the same are administered by the State Governments, any amendment to them requires consultation with the State Governments. In view of this, the report was forwarded to the State Governments and Union Territories Administrations to obtain their views/comments.

The Law Commission of India also reviewed the Code of Criminal Procedure, 1973 in its 154th Report. The 197th Report of the Law Commission of India examined the issues relating to appointment of Public Prosecutor. The view of the State Governments/Union Territory administration on recommendation of Law Commission have been sought. Some of the issues relating to investigation, prosecution and trial procedure highlighted in these reports are:

The Investigation Wing should be separated from the Law and Order Wing. A separate wing of the investigation with clear mandate and it is accountable only to Rule of Law is the needed. The Law Commission of India specifically discussed this issue threadbare in its 154th Report and categorically recommended for separating the investigating agency from the law and order police. Placement policy of investigating staff, inadequate training, Comprehensive use of Forensic Science from the inception and problems related to Medico Legal Services were highlighted.

Several measures have been suggested to improve the quality of investigation. Interrogation centres should be set up at district headquarters in each district where they do not exist and strengthened where they exist. A mechanism for coordination amongst investigators, forensic experts and prosecutors at the State at district level for effective investigations and prosecutions should be devised. A suitable provision be made to exclude the period during which the accused is not available for investigation on grounds of health etc. for computing the permissible period of police custody. Refusal to entertain complaints regarding commission of any offence should be made punishable. Stringent punishment for false registration of cases & false complaints.

Members highlighted that the common man suffers as the manner in which police investigation is conducted is of critical importance to the functioning of the criminal justice system. A prompt and quality investigation is the foundation of an effective criminal justice system. They also raised the issue of non-registration of cases by police in some cases. On this, Sh. P. Chidambaram informed Members that in Delhi all but sensitive FIRs are on website. The members also called for separate cadres for investigation work and prosecution.

A case for judicial lockjaw

JUDICIAL LOCKJAW

JUDICIAL LOCKJAW

ARGHYA SENGUPTA IN THE HINDU

Judgments should speak for themselves; when judges justify them in public, they run the risk of sounding like politicians.

Justice Felix Frankfurter, one of America’s most eloquent Supreme Court judges, speaking at an American Law Institute function in 1948, aptly described the infirmity of being unable to speak about one’s judgments publicly, an attendant facet of being a Supreme Court judge, as “judicial lockjaw.” For watchers of the Indian higher judiciary, which has adhered to this principle since its inception, the last fortnight has brought forth a surprising development in this regard. Justice Asok Kumar Ganguly, an erudite judge of the Supreme Court of India, who retired recently, has, since leaving office, actively engaged with the media, first in print and then electronically. While a retired judge writing and speaking extra-judicially per se on matters of public importance is a fairly common and welcome phenomenon, his participation in a feisty debate in a leading newspaper on the merits of one of his own judgments, and then agreeing to take part in a television interview whose questions focused solely on two of his controversial judgments, is uncommon. As well as raising questions of individual propriety, it contains possible portents of the slowly changing nature of the Indian higher judiciary.

Justice Ganguly’s rejoinder

Three days after his retirement, Justice Ganguly issued a startling written rejoinder to the criticism by former Lok Sabha Speaker Somnath Chatterjee of the 2G judgment, which he had handed down a few days previously. Not only did he defend his judgment, first by assuring Mr. Chatterjee that “the judgment was not delivered either out of temptation or out of any desire to appropriate executive powers” but also positively asserted that “[t]he judgment was rendered in clear discharge of duty by the Court” (The Telegraph, 6 February, 2012). His statements, especially to the extent they clarify and defend his judgment, raise deep questions regarding the proper role of judges in post-retirement public life. This is especially so in Justice Ganguly’s case, as it was followed up with an interview to a private television channel where, despite steadfastly refusing to comment on the merits of the 2G judgment or the judgment relating to sanctions for prosecution per se, his statements on the subject had the effect of giving the interviewer and the viewing public sufficient sound bytes on how the judgments ought to be interpreted. To cite a single instance — in response to a question as to whether the timeline set by the Court for the government to consider sanction requests against public servants should apply to the Chief Justice of India when permission is sought for a FIR to be filed against a judge, though he refused to give a direct answer, he suggested that the recommendations made in the judgment “should apply across the board.” To any reasonable viewer, this statement would certainly come across as a clarification on what the recommendations made in the judgment ought to mean.

It is not the legality of Justice Ganguly’s engagement with the media that is in issue here. Like any other citizen, he has a right to speak, and is free to exercise that right in whichever manner he desires, provided it is within the bounds of constitutional permissibility. But when a retired judge speaks, not in his capacity as an ordinary citizen but wearing the hat of a judge who was party to a particular judgment, as Justice Ganguly obviously did, the primary question is one of propriety. That the judge, after rendering judgment, becomes functus officio and the judgment of the Court speaks through itself, is a long established principle in the Indian judicial system. The rationale for the principle is salutary: that the decision of the Court when it is cited as a precedent in subsequent cases as a binding principle of law, ought to be interpreted on its own terms and not on the basis of any extra-judicial clarifications that may be issued subsequently. Of course, any academic discussion and criticism following the judgment may be relevant, but never involving the judge concerned himself, as that may have an unwarranted overriding influence on future interpretations of the decision. At the same time, the principle does not prohibit judges from writing their memoirs, which are often filled with delightful accounts of the unseen dynamics of a judicial decision, or commenting on the consequences of a case after a period of time or on a matter of significant national importance. However, coming so close on the heels of the judgments being delivered, Justice Ganguly’s statements in the media can neither count as an academic commentary nor be justified by a passage of time having elapsed. Propriety thus demanded that he thought better than articulating his views publicly in this manner.

Judge’s role in public

Equally importantly, Justice Ganguly’s actions point to a larger question as to what the role of a judge should be in public life. Unlike politicians or film stars who are public figures by virtue of their closeness to the people, judges are public figures precisely because they manage to keep their distance from the people. It is this detachment which allows judges to be immune from the passions of popular sentiment and political machinations, thereby facilitating the independence of the judiciary as an institution. Any engagement with the media by a judge in a judicial capacity, whether while holding office or post-retirement, fundamentally erodes the extent of this institutional detachment. Especially if the engagement primarily focuses on decisions given by judges, it runs the risk of turning judges into quasi-politicians, clarifying and justifying their judgments by direct appeals to the public, rather than simply allowing the reasons contained in the judgment to perform this justificatory function.

Comparative analysis

Indeed a comparative analysis across countries shows the links which can be drawn between extra-judicial utterances and the political savvy of judges. In England, where courts are largely apolitical, extra-judicial utterances are rare. Judges, except the Law Lords, were for a long period, conventionally governed by the Kilmuir Principles, key amongst which is the view that “[s]o long as a Judge keeps silent his reputation for wisdom and impartiality remains unassailable.” Though the Principles themselves are no longer strictly applicable, the tradition of extra-judicial silence continues. On the contrary, across the Atlantic, in the United States of America, whose Supreme Court is an overtly political institution, notwithstanding Justice Frankfurter‘s wise advocacy of restraint, judges have a long history of writing and speaking extra-judicially on their own judgments and on the Court itself — Justice Stewart wrote a letter to the Editor of the Wall Street Journal defending his majority opinion in a racial discrimination case; Justice Goldberg publicly defended the Court and its stance on judicial review and states’ rights in the New York Times; in fact even Chief Justice Marshall, back in the 19th Century, defended his landmark judgment, authoritatively laying down the nature of American federalism in McCulloch v. Maryland, albeit writing under a cleverly disguised pseudonym in the Philadelphia Union.

Sign of transformation

As this comparative experience demonstrates, the judicial propensity to engage directly with the public is clearly a symptom of a Court whose judges are keenly conscious of the immense political significance their decisions have. In this backdrop, Justice Ganguly’s comments, unwarranted as they may have been, perhaps provide an early sign of the subtle transformation of the Supreme Court of India into an overtly political institution, owning up and reacting to the immense political ramifications of its actions. Equally, they raise deep questions regarding the interaction between judges and the media, arguably two of the most powerful pillars in Indian democracy today. This is a complex, multi-dimensional issue that cannot be dealt with here. However it would suffice to say that the obtuse language used by judicial decisions, their unclear consequences and the difficulties faced by sections of the media in understanding the subtleties of legalese, all suggest that like several courts worldwide such as the Supreme Court of the United Kingdom and the European Court of Human Rights, the Indian Supreme Court too should issue official media summaries of important decisions. Not only will this facilitate wide comprehensibility of key judgments, but it will also ensure that judicial decisions are not wantonly misinterpreted. Most importantly, it will mean that judges, whether in office or speaking in their judicial capacity immediately post-retirement, will have an additional reason to remain lockjawed, allowing their judgment together with its officially authorised summary to do the talking.

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

SOURCE LINK : http://www.thehindu.com/opinion/lead/article2935696.ece?homepage=true

A case for judicial lockjaw

Why such mismatch between public statements and responsibility?

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

Elections energize a common man to push a small button on a voting machine with a prayer that his vote goes to a responsible person who as the people’s representative in the assembly or Parliament will safeguard his interests and better his conditions. Since poll speeches are not on signed stamp paper, politicians often attempt to promise the moon to the electorate. In the process, many stray outside the Model Code of Conduct zealously enforced by the Election Commission to keep the polls an even contest between ruling party candidates and other hopefuls.

Prior to appointment of T N Seshan as chief election commissioner on December 12, 1990, the model code of conduct was violated by candidates with impunity. Seshan cracked the constitutional whip and succeeded in cajoling strict adherence to the model code of conduct by political parties and candidates.

Elections are meant to send responsible persons as people’s representatives. But often, elections stir the political and social atmosphere to the extent of making even the most sober among the politicians give statements in clear breach of the model code of conduct.

First, it was law minister Salman Khurshid who made a poll promise of carving out quota for Muslims in jobs. Within a week of him being chastised by the EC, fellow Congressman Beni Prasad Verma repeated the mistake and dared EC to take action. Why did Khurshid, who knows law better than most, commit such a folly? And despite his clear indictment, why would his colleague follow suit?

If these two incidents were not enough, another minister Sriprakash Jaiswal goofed up by declaring that if a Congress government was formed in Uttar Pradesh after the elections, there would be President’s rule.

Threat to impose central rule in a state in the midst of a multi-phase election process is a serious breach of model code of conduct capable of influencing people to cast votes in a particular way.

Whatever be the motive behind these statements, a particular dumbness appears to infect politicians during elections when they refuse to learn from mistakes. They forget that democracy flourishes only in a democratic atmosphere and under democratic conditions.

The same cannot be true of Press Council of India chairperson Justice Markandey Katju, a retired judge of the Supreme Court. It was least expected of Justice Katju, who has tremendous knowledge of law and apex court judgments, to threaten a state government with dismissal.

Looking into certain incidents of violence against journalists in Maharashtra and the state government persistently ignoring PCI’s notices, Justice Katju recently issued a showcause notice accompanied with a threat that if this time the state failed to respond, he would recommend to President to “dismiss the state government” under Article 356(1) of the Constitution.

The Congress-NCP government must be laughing as Justice Katju’s threat is more hilarious than legal. Those who have read the apex court’s landmark judgments on Article 356 in S R Bommai case, Kihoto Holohon case, State of Rajasthan case and the latest one in Rameshwar Prasad case would be scratching their heads in bewilderment. For, the Constitution vests the governor of the state concerned and none else with the power to recommend dismissal of a state government.

The streak of irresponsibility found in persons holding high offices had made the Supreme Court to say, “It is incumbent on each occupant of every high office to be constantly aware of the power in the high office he holds that is meant to be exercised in public interest and only for public good, and that it is not meant to be used for any personal benefit or merely to elevate the personal status of the current holder of that office.” [Rameshwar Prasad vs Union of India, 2006 (2) SCC 1].

For similar reasons, Seshan, despite transforming the Election Commission from a constitutional “lamb” to a “roaring tiger” ready to bite rogue politicians, too faced the apex court’s flak when he imagined himself to be the sole dictatorial protector of elections, which is the heart of democracy.

In T N Seshan vs Uuion of India [1995 (4) SCC 611], the SC had said, “His (Seshan’s) public utterances at times were so abrasive that this court had to caution him to exercise restraint on more occasions than one… This gave the impression that he was keen to project his own image. That he has very often been in newspapers and magazines and on television cannot be denied… The CEC has been seen in a commercial on television and in newspaper advertisement… The CEC is, it would appear, totally oblivious to sense of decorum and discretion that his high office requires even if the cause was laudable.”

We sincerely hope politicians and holders of high offices will take a look at the 1995 judgment and bring sobriety into their public utterances.

http://timesofindia.indiatimes.com/india/Why-such-mismatch-between-public-statements-and-responsibility/articleshow/12048723.cms

Govt must encourage democratic rights, not police power: Jaitley

ARUN JAITELY IN THE PIONEER

The Supreme Court has pronounced a landmark judgement on the incident that took place on the midnight of June 4-5, 2011 at Ramlila Maidan, Delhi where Baba Ramdev and his supporters were carrying on a protest against corruption and prevalence of black money in India.

They were agitating against the reluctance of the Government to take key steps to eliminate the menace of corruption and black money.

Admittedly, the protest was peaceful. The essence of democracy is the right to have an alternative opinion and to agitate for its acceptance. The term Satyagraha, originated in a news-sheet Indian Opinion in South Africa in 1906. It was an adaptation by Gandhiji from one of competition entries in South Africa. Satyagraha went beyond the concept of ‘passive resistance’. The essence of Satyagraha was non-violence but aggression. Its force lay in truth and the ability to struggle for it. The satyagrahi invited to himself the adverse consequences of his action. He was willing to suffer the punishment as consequence of his struggle.

The Supreme Court in its judgement has upheld the right to peaceful protest as a Constitutional right. The Court has rightly observed – “Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitation are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national importance.

The Government has to respect, and in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions”.

The right to peacefully protest subject to just restrictions is now an essential part of free speech and the right to assemble. Additionally, it is an affirmative obligation of the State to make that exercise of this right effective.

Recent experiences have shown that the political establishment encourages the use of police powers to render weak and otiose the exercise of such rights. Team Anna repeatedly had difficulties in being allotted a centrally-located place to organise its protest. Police powers were used to dictate that the size of protest must be miniscule and not large. When large open areas, such as the Ramlila Maidan and other centrally-located sites are available, recent experiences have shown that police discretion has been used to discourage people from using such sites for organising protests. The Supreme Court has taken note of some such practices.

A reading of the judgement of the Supreme Court confirms the fact that the protest by Baba Ramdev and his supporters was absolutely peaceful. The Supreme Court has observed that – “There was no disturbance or altercation whatsoever and the followers of Baba Ramdev were peacefully waiting in queues that stretched for over two kilometres. If the police wanted to limit the number to 5,000, it could have easily stopped the people at the gate itself.

However, no such attempt was made. The conduct of the police goes to indicate that the police action resulted from instructions from the Government and their current stand regarding the number of persons present is nothing but an after thought.”

The court, further referring to the conduct of the protesters, noticed that – “None of the stated conditions, admittedly, had been violated, and as such there was no cause for the police to withdraw the said permission…Even for the sake of arguments, it is assumed that there was a requirement for seeking permission from the police and the police had the authority to refuse such a permission and such authority was exercised in accordance with the law, then also this respondent and the public at large were entitled to a clear and sufficient notice before the police could use force to disperse the persons present at the site. Imposition of an order under Section 144 Cr PC was neither called for nor could have been passed in the facts and circumstances of the present case…

In fact the order was passed in a pre-planned manner and with the only object of not letting Baba Ramdev to continue his fast at the relevant date and time… The documents on record show that some of the police personnel certainly abused their authority and were unduly harsh and violent towards the people present at the Ramlila Maidan, whereas some others were, in fact, talking to the members of the gathering as well as had adopted a helpful attitude.”

What happened on the midnight of 4-5th June, 2011 at Ramlila Maidan becomes increasingly clear from the final directions of the Court. A peaceful protest was being organised by Baba Ramdev and his supporters as a part of their Constitutional guarantees when Section 144 was unlawfully imposed.  The protesters were peaceful. They had followed every condition imposed on them. The entry into the pandal was regulated by the police. Suddenly a decision was taken to evict the gathering.

The Supreme Court in this regard has observed – “The decision to forcibly evict people sleeping at Ramlila Maidan at the midnight of 4-5th June, 2011 whether taken by the police independently or on consultation with the Ministry of Home Affairs, is amiss and suffers from the element of arbitrariness and abuse of power to some extent. The restriction imposed on the Right to Freedom of Speech and Expression was unsupported by cogent reasons and material facts. It was an invasion of legal protections available to them even under the provisions of the CrPC.

Thus, the restriction was unreasonable and unwarrantedly executed. The action demonstrated the might of the State and was an assault on the very basic democratic values enshrined in our Constitution… From the facts and circumstances that emerge from the record before this Court, it is evident that it was not a case of emergency.”

The Court has further held that even if the Government decided to evict the people present, they were entitled to a reasonable notice. On the contrary, disproportionate force was used, water canons, lathi charge and tear gas shell injuring many people and leaving one dead.

These conclusions by the Supreme Court upheld the Constitutional guarantees that citizens are entitled to.  They go a long way in strengthening the Indian democracy and allowing space for peaceful dissent within our political system. The observations of the court and the law so declared will go a long way in safeguarding the right to protest, which makes dissent co-existent with democracy. The Court deserves full credit for this.

However, after this, the judgement takes a curious turn. It imposes an obligation on the protesters to obey every lawful order. Admittedly, neither the imposition of Section 144 in this case nor the withdrawal of permission or the manner of forcible eviction were lawful. Why should the protesters have accepted such an order? How then can the principle of ‘contributory negligence’ be imposed on a protester who was exercising his fundamental right to protest?

The concept of ‘contributory negligence’ is born out of a law of tort. It cannot be used to dilute the width and exercise of a Fundamental Right. ‘Contributory negligence’ is a defence where a person who is wronged could have acted in his own interest and taken due care and caution so that not to contribute to injury. It is a legal plea available as a defence in a Tort action. Its application to restrict the exercise of Fundamental Right is wholly unwarranted and legally untenable.

India attained its Independence through peaceful struggle. Passive resistance, civil disobedience and Satyagraha are well-known instruments of protest. They essentially involve peaceful and non-violent methodologies of protest. Satyagraha is an instrument where truth is used for assertion. A satyagrahi himself bears the punishment for violating the law and for disagreeing with an oppressive regime. To equate the right of a satyagrahi with contributory negligence undoes the advantage of an otherwise landmark law that this judgement has laid down. If a protester is within his Constitutional rights to organise a peaceful protest, he is equally within his rights not to accept an illegal order denying his right to protest. He runs the risk of being punished if the order is held to be lawful. But when a protester violates Section 144, he is always willing to suffer a punishment.

The law declared is understood to mean that every time his fundamental right to protest is intercepted by the State; he must immediately comply with the order or run the risk of being liable for contributory negligence. A citizen cannot be compelled to abdicate his Fundamental Rights merely because the State decides to restrict his right to protest.

The judgement of the Supreme Court lays down a landmark law inasmuch as it upholds the right to protest as a Fundamental Right of Speech and assemble.

However, it shakes the foundation of the Fundamental Right by laying down a highly doubtful proposition that once the right to protest is denied, the protester must meekly accept the denial or run the risk of a contributory negligence to the police oppression. This part of the judgement requires extensively debate and possible reconsideration.

Writer is Leader of Opposition in the Rajya Sabha

http://dailypioneer.com/nation/45862-govt-must-encourage-democratic-rights-not-police-power-jaitley-.html

‘Sensitivity must to defend human rights’

UNE: Future lawyers need to equip themselves with knowledge and information if they want to deal with complaints relating to human rights violations, said Supreme Court justice Balbir Singh Chauhan on Saturday. He was speaking on the “Role of judiciary in protection of human Rights” at the Justice Y V Chandrachud lecture series 2012. The function, attended by judicial officers and lawyers, was organised by the Pune Bar Association (PBA) at the Ashoka hall of the district and sessions court.Justice Chauhan, the chief guest for the event, emphasised the need to introduce more courses on human rights violations, as such events have become rampant in the country.

Describing the incident of Baba Ramdev‘s rally at Ramlila Maidan last year as a clear case of human rights violations, the SC judge advised lawyers to have a sensitive approach while dealing in human rights violations cases. He also criticised the police for abusing its authority by inflicting injuries on a sleeping crowd in the garb of invoking Section 144 of the Criminal Procedure Code.

Citing the case of film actress Khushboo, who had to face 28 litigations by lawyers, and remained in prison for six weeks, because she had given an interview on live-in relationship, the judge said there was no law to initiate prosecution in such cases as none of the lawyers were defamed.

Among the others who spoke at the function include Justice Abhay Thipsay of the Bombay High Court, principal district and sessions judge Anant Badar, Harshad Nimbalkar, member of Bar Council of Maharashtra and Goa, PBA president Dhananjay Taur and others.

Later, attending the Justice P N Bhagwati International Moot Court competition at the New Law College, Justice Chauhan traced the history of legal education in India and commented on the quality of legal education and applauded the high professional quality existing today in law colleges across India. He also spoke on natural justice as well as human rights being the most essential components for dignified humanity.

Total 26 teams from national law schools and six foreign teams from the UK, the US and Europe have participated in the competition. The guests were introduced by Mukund Sarda, dean and principal of the college.