Justice Ranjan Gogoi delivers the third Ramnath Goenka Memorial Lecture — The Vision of Justice

PUBLISHED IN THE INDIAN EXPRESS

Full text of Justice Ranjan Gogoi’s speech at RNG Memorial Lecture:

I express my most heartfelt gratitude to The Express Group for extending this opportunity to me to deliver the lecture which has been organised in the memory of a man who was an institution in his own right: Ramnath Goenka ji.

While unlike some of you present here, I had not had the occasion to ever meet him, but, fortunately I have not been untouched by his proud legacy. Which gleams through that what he had founded as an answer to Gandhi ji’s call to start a swadeshi newspaper. Living in the realm of the Raj, it needed an iron-will and iron man and we found it in a young Ramnath ji. His legacy also gleams through the rich jurisprudence on the Freedom of the Press that he was instrumental in moulding, and which, by virtue of my Office, I work every day. It needed a committed and a cause-driven litigant – a rarity which it is nowadays – and we found it, yet again, in Ramnath ji. During the dark days of the Emergency, he stood as an unwavering gatekeeper of those fundamental liberties that we hold so dear today and that is his legacy too.

PART 1:

Today, after all these years, some remember him as the ‘Warrior of the Fourth Estate’ 1 , some remember him as a “dogged, unyielding adversary” 2 , some remember him as an “iconoclast”, some as a “magnificent rebel”. He was, at times unapologetic, at times uninhibited, at times even contradictory, but forever fierce, forever feisty, and forever fearless. His entire life trajectory from Darbhanga to Madras to Bombay; from the Constituent Assembly to the Newsroom to the Courtrooms, is a test case of its own kind that we, perhaps, need to use more often in our lives, in our institutions. Not too long back, I had read an interesting news article talking about the surprising surge – which is not so surprising, all things considered – in the sale of George Orwell’s 1984 in the United States. That piqued my interest in revisiting the classic. And, for some reason, I want to recollect a thought from it today. “Freedom is the freedom to say that two plus two make four. If that is granted, all else follows.”

Abhishek Manu Singhvi of the Congress party along with former finance minister P Chidambaram at the third Ramnath Goenka Memorial Lecture in New Delhi. (Express Photo by Abhinav Saha)

If I had to put it very simply, for me, this is what Ramnath ji stood for. The freedom to say that two plus two make four. And, that is how I remember him as. Someone who could call Spade a Spade. Someone who could speak truth to power. Even if it came at a cost. To be ready to break, but not bend could be called obstinacy by some, and determination by others. Is it a matter of perspective? I do not know. And, I cannot say for others but as far as I am concerned, I only feel that we need to ask ourselves some questions: Where is the Goenka in us; his ideals; his values? Is that extraordinary phenomena losing his relevance today, after all these years? Why I have chosen the topic for this discourse merits a context too. And, this is the context. These are some sore questions, but too significant to get lost in the everydayness. And, when it is so, what other better tribute can there be to a visionary who embodied in so many ways the spirit of our Constitution, than to spend a thought. To spend a thought over how far we have come to achieve the vision that he had seen as someone who helped free the country in one era, and helped it become a meaningful Democracy in another.

PART 2:

I will use a few minutes to put across my proposition as to what I intend to say when I talk about the “Vision of Justice”. I will borrow from the Chief Editor Shri. Raj Kamal Jha himself, because it offers a very fine perspective. Very powerfully and thoughtfully and rightly, he said of Ramnath ji in one his letters to me, that, “fierce independence” and “enduring sense of inquiry without fear or favour” were the two values that Ramnath ji believed formed the “bedrock of Justice”. It is absolutely incontestable that they do and, for convenience, let me call them the Bedrock Principles. But, if I were to look at it anatomically, while these do indeed form the bedrock of Justice, what is the Form/Body of the ideal called Justice which rests on this bedrock? The Bedrock Principles have been the talk of the town lately considering how the entire thinktank is so keenly focused on it. And I am not suggesting that it ought not to be. It ought to be done and it is being done. I cannot recall the last time, the Judicial wing of the State made so much news. On a lighter note, let us recall, Hamilton (the American Founding Father) who had suggested that the Judiciary was the least dangerous branch of the State’s three branches – and I will refer to him again during the course of my address – but, were he to be here today, I wonder if he would have felt the same way. More so, in the light of the IE Top 100 Most Powerful Indians which included several names from the judiciary. But, the fact of the matter is that if we have to take stock of how we have fared – and about seven decades later since we ventured into becoming a Constitutional Order, this appears to be an opportune time to do so – we might as well do it comprehensively. And, by comprehensively what I mean is that we must evaluate both the Bedrock Principles and the Form Principles because the Vision of Justice, the way I understand it, is a compound of both. Clearly, they are not unconnected. And over the course of next about half an hour, I will attempt to touch upon both. I will begin with the Form Principles, and bear with me, in order to drive home my point, I may have to get somewhat academic.

From (L-R): Hrishikesh Roy, Chief Justice, Kerala High Court, Deepak Gupta, Judge, Supreme Court, N V Ramanna, Judge, Supreme Court, Madan B Lokur, Judge, Supreme Court at the third Ramnath Goenka Memorial Lecture. (Express Photo by Abhinav Saha) 

You will agree, that in the backdrop of a bleeding mega partition, deeply entrenched inequities, perpetuating injustices, our Constitution ushered us into believing in a grand promise of transformation on a scale that was beyond reformatory. It was, in all its full glory, a revolution in all aspects of life – social, economic, political. In a way, it said, let bygones be and the new society that we would be, would be egalitarian. While preserving our pluralistic character, we would be democratic and united too. The State would be religion-neutral, the citizens equal and together. Coming to think of it, it was just as pretentious as it was unpretentious an idea. But be that as it may, public institutions (one of them being the Judiciary) were inherited, they were tweaked where need was felt, to give life to this prodigious architecture of Justice. And, here, I would like to clarify that by justice, I am not implying only the juridical connotation of the word which is the administration of justice by the courts of law – although it is just as imperative – but justice is something that is an overarching principle, an underlying fundamental, the spirit, an order so to say. Which is why I say “prodigious”.

PART 3:

Because, it was a confluence of very many philosophies – [1] the Aristotelian, for instance, which suggests that the very essence of the State is justice which according to the philosopher was a social virtue; good of others; equality and fairness. When we peruse the Preamble to the Constitution- our vision document – is it not that this ideology is enshrined in the words “Equality of status and opportunity”? [2] Or, the Utilitarian philosophy of John Stuart Mill whose view was that justice was the greatest good to the greatest numbers. In the Preamble, is this not enshrined in the principles of “Socialism”, and “Equality” yet again? [3] Or, the relatively more modern one: the Rawlsian perspective which is that justice as fairness is the most egalitarian and also the most plausible concept of liberalism. In the Preamble, is this not reflected in the words “Liberty of thought, expression, belief”. So, the Preamble, if you deconstruct it precept-wise, is the very embodiment of these ideas. Justice is not something that is a standalone precept but an amalgam of other ideals like “socialism”; “democracy”; “liberty”; “equality”; “fraternity”, to name a few. They are not isolated silos because their undying endeavour is to establish one discipline – of overall justice, of an inclusive society. And, this is exactly what I meant by the Form Principles of Justice as an ideal. As a composite unit called Justice, these had been intended to be achieved by the Legislature, the Executive and the Judiciary.

Justice is not something that is a standalone precept but an amalgam of other ideals like “socialism”; “democracy”; “liberty”; “equality”; “fraternity”, to name a few — Justice Gogoi in his address. (Express Photo by Tashi Tobgyal)

Now, it will make for an incredibly interesting and if I may add overwhelmingly contentious tale to tell as to how the Executive and the Legislature have performed on this front. But the scope of my discourse will be limited to the judiciary’s endeavour in this regard. A few months back, I had the occasion to deliver the Justice P.D. Desai Memorial Lecture, at Ahmedabad. And, there I had proposed that attaining Constitutional Idealism was not like chasing a rainbow and the Supreme Court, through its pronouncements, had been reflecting it. It would not be a display of the pessimism of the intellect today, if I were to say that while, indeed, attaining Constitutional Idealism (= Vision of Justice) is not like chasing a rainbow, but, it is so only in the courtrooms. Perhaps, because fields are where the rainbows are (“fields” being the operative word). The point being that the way nation is built and the way this grand Vision of Justice is attained in the confines of the courts through judicial pronouncements and the way they are built on the ground are two very disparate realities. Agreed, the aspirational aspect of the Constitution and the operational aspect of the Constitution will always be two different notions. The aspirational aspect is high idealism of a kind that is almost moralistic and preachy. The operational aspect has to do with the very strange realities of the ground, almost defeating. But then even if we may be slow to move to bridge the gap between the two, which itself is not an acceptable compromise either, but we must, at the least, not become retrograde.

Justice Ranjan Gogoi: The judgments beyond their bare letter, say that, societal morality is fickle and not that, but constitutional morality that ought to dictate terms. (Express Photo by Tashi Tobgyal)

Take for example the 2015’s ruling in Shreya Singhal v. Union of India 3 (2015). It is a celebrated judgment, where the Supreme Court held that the public’s right to know was directly affected by Section 66A. Interestingly, while doing so, the Court was certainly inspired by, amongst other rulings, Romesh Thappar v. State of Madras 4 (1950); Brij Bhushan v. State of Delhi 5 (1950); Bennett Coleman & Co. v. Union of India 6 (1973). If you would recall, these were perhaps some of the earliest pronouncements protecting an Independent Indian’s Speech and Expression and were delivered in the light of the rights of the Press, which verdicts themselves had endorsed that a democracy was a marketplace of ideas where the people had a right to know; that prior restraints were anathematic to a democracy and that the freedom of speech and of the press is the Ark of the Covenant of Democracy. Shreya Singhal took this legacy ahead as it improved upon the jurisprudence on the independence of the Press to attain and promote the Constitutional precept of plurality of thought, diversity of opinion and the ethos of democracy in the tech-age and in the context of online speech. The Vision of Justice was indeed attained in the courtroom. Not once, but multiple times. But has it translated into reality? Has the success of these sterling verdicts reached the ground? I will let the facts speak for themselves. On the ground, it is a descent into chaos. And it is worrisome on all counts when you sue the messenger or when you shoot the messenger, or when the messenger itself declines to deliver the message because of the fear psychosis. On the 19 th June, The Indian Express had published a very insightful article (selected from The Economist) titled as ‘How Democracy Dies”.

From (L-R): Acting Chief Justice of Delhi High Court Justice Gita Mittal, Former Law Minister Ashwani Kumar, CPI leader D Raja and jurist Soli Sorabjee at the third Ramnath Goenka Memorial Lecture. (Express Photo by Abhinav Saha)

It said, at one place, that, “…independent judges and noisy journalists are democracy’s first line of defence…Reports of the death of democracy are greatly exaggerated. But, the least bad system of government ever devised is in trouble. It needs defenders.” I agree but will only suggest a slight modification in today’s context – not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges. While Shreya Singhal was significant in its own right, NALSA v. Union of India 7 breathed new life into the Equality principle. The Court understood that our Founding Fathers’ vision about fundamental right against sex discrimination was to prevent differential treatment as a result of one’s not conforming to generalizations. The judgment made a momentous foray into the fountain-head of dynamism. And, I will get back to it but before I do that, I must touch upon a very fascinating judgment of 1986 vintage called Bijoe Emmanuel v. State of Kerala 8 . This was a case where three Jehovah’s Witnesses had refused to sing the National Anthem (as their tenets dictated so) when it was being sung in their school. They did stand up though. Nevertheless, they were expelled from the school. When the case found its way to the Supreme Court, while holding that the expulsion would be in violation of their Fundamental Right to ‘freedom of conscience’, the Court observed that “the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution.”

Former Chief Justice of India Rajendra Mal Lodha (Express Photo by Abhinav Saha)

The court also felt the need to add a thought. And, I feel compelled to quote it. It is the penultimate line of the verdict and it says – “our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it.” Recently. in Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu 9 , the Court held that even in the matters of religious beliefs, constitutional legitimacy cannot be foregone and following Justice B.K. Mukherjea in Shirur Mutt case (of 1954), went on to hold that it is not the State or the religious Indian but the Constitutional Court which decides on what constitutes essential practices of any particular religion.

Some of you could be wondering about how these judgments are even related. They are not. But, they are, at the same time. Dissimilarity is that the first one originates in a very intimate, private sphere of life and the other two originate in what everybody seems to want to have a say in – the matters of faith. But, it is the similarity that should be the take away. The judgments beyond their bare letter, say that, societal morality is fickle and not that, but constitutional morality that ought to dictate terms. As an Israeli judge Aharon Barak points out, it is not the transient spirits of time but the fundamental values that should be the guiding voice 10.

In a way, it said, let bygones be and the new society that we would be, would be egalitarian. While preserving our pluralistic character, we would be democratic and united too. (Express Photo by Tashi Tobgyal)

In his last address to the Constituent Assembly, Dr. Ambedkar had said that we must not only be a political democracy but a social democracy as the former cannot last unless lies at the base of it the former. And, social democracy, he defined, as a way of life which recognises liberty, equality, fraternity as one principle. I wouldn’t want to wade into knowing if we are a successful political democracy, but, I do, earnestly believe, that we are a social democracy, in all aspects. But again, largely jurisprudentially. And the disparity is there because the two Indias – both just as perceptible – are at conflict. There is an India that believes that it is the New Order and there is an India that lives below a ridiculously drawn Poverty Line on daily wages in night shelters with no access to education or healthcare, let alone access to the Courts of Law. The ambivalence is intriguing. And, this is exactly what I call as getting lost in translation. One India in the aforementioned perspective is the Vision and to know how far we have succeeded in attaining this Vision of Justice is really a matter of perception. But nevertheless, there is a graphic disparity right there and removing this disparity will be the mission for the Indian Judiciary in the times to come. And if I may add, for that to happen, it is going to require a “constitutional moment” of its own kind in the life of this institution, which I believe has been long overdue.

“I will only say that if it wishes to preserve its moral and institutional leverage, it must remain uncontaminated,” says Justice Gogoi. (Express Photo by Abhinav Saha)

The Constitutional history with reference to this institution as a whole (and, especially the Supreme Court) would show that its own role has constantly evolved in the light of the socio-political context. If 1970-1980 was the decade where it expounded the Basic Structure Doctrine, in 1980s, it constantly expanded the scope of Article 21 and by 1990s, it became somewhat of a “Good Governance Court” by innovatively interpreting Constitutional provisions to address the inadequacies consequent upon executive and legislative inactivity. In the first fifty years since our independence, the court has created a very sound jurisprudence which we continue to reap from. It is the inertia really that has kept us going till now. But the way things stand today, court processes are a trial even before the trial has begun. While I cannot say if it is a collective failure on our part but for a nation governed by the rule of law, is it not a matter of concern that to this extent at least, we are defying the idea of inclusiveness? Not a reform but a revolution is what it needs, to be able to meet the challenges on the ground and to keep this institution serviceable for a common man and relevant for the nation. For the effectiveness of the judgments to show, the justice dispensation system has to be made more result oriented i.e. to say, more focused on enforcement. I understand what Mr. Arun Shourie 11 suggests when he wonders if the judiciary is not being an “accessory to the resulting deterioration”, when it in its hopefulness and optimism, doesn’t go after its mandate till its implementation. I find it difficult to agree wholeheartedly. But I will certainly say that the judiciary must certainly be more pro-active, more on the front foot. This is what I would call as redefining its role as an institution in the matters of enforcement and efficacy of the spirit of its diktats, of course, subject to constitutional morality (= separation of powers) again. I will even go ahead to say that the institution, at all levels, needs to become more dynamic in the matters of interpretation of laws. And, this is what I mean to say by a constitutional moment of its own kind. However, it is going to be a tall order both at the micro level and the macro level because both come with their unique sets of challenges.

Executive Director of The Express Group Anant Goenka (left) presents a sketch to Justice Ranjan Gogoi at the third RNG Lecture in New Delhi on Thursday. (Express Photo by Neeraj Priyadarshi)

By micro level, what I mean is administration of justice on day-to-day basis. Here, the so-called “inefficiency” and “slow processes” have been historical challenges. I will put it very simply. The judiciary today is not a poor workman who blames his tools, but it is a workman with no tools. I am not going to saddle you with the figures that we keep consuming every day on pendency, arrears and judges’ strength but in the light of what a French author had once said, “Everything has been said already, but as no one listens, we must begin again.” 12 , I will only ask and request those at the helm to finally listen so that we must not have to begin again. In addition to that, I also feel that there is a pressing need to explore the endless limits of legal services mechanism. Legal awareness and legal empowerment of the marginalised in this vastly unequal society of ours, have to be a made an observable reality. Let me give you one instance which is glaring insofar as personal liberty is concerned. 67% of the prison population are undertrials, mostly belonging to the underprivileged classes and 47% of them are between the age of 18-30 years. Compare this with the U.K. where it is about 7% and the U.S. which is acknowledged to have a high rate of incarceration where the percentage is 22.7%. The period of about one year that a majority of the undertrials have been in custody would hardly redeem the situation. Will it be wrong to suggest that a fair share of our demographic dividend is being unjustifiably lodged in the jails and mostly for petty or less serious offences?

The judiciary, with whatever little it has had at its hand, has been a proud guardian of the great Constitutional vision. (Express Photo by Neeraj Priyadarshi)

At the macro level, the judiciary as an institution is being seen as a course corrector, a leveller, a democratiser of sorts. And, since it is too well known that this country is on the cusp of an evolution, naturally it will have implications for this institution just as much. I would like you to recall that I had mentioned about Hamilton in the beginning of the discourse. While contemplating the U.S. Constitution 13 , he had said that the judiciary is the weakest of three branches because it neither has force of the Executive nor the will of the Legislature, but only judgment. This, and which I agree with absolutely, he said, was the “simple view of the matter”. The complex view is this. And which he was wise enough to warn about over two centuries ago. He had said that while the civil liberties will have nothing to fear from the judiciary alone, they will have everything to fear from the union of the judiciary with either of the other two branches.

Punjab and Haryana High Court Judge Justice Surya Kant (Express Photo by Abhinav Saha)

I would like to believe, this is why, Ramnath ji had also said that “fierce independence” is indeed the bedrock of justice. But I would like to add that “independence” must always be responsible with due regard to established Constitutional values. This institution is the last bastion of hope and the one that the citizenry believes firmly, will give justice to them, come what may. And it has. The judiciary, with whatever little it has had at its hand, has been a proud guardian of the great Constitutional vision. It fills me with immense pride to see that as an institution, the judiciary has been endowed with great societal trust. This very fact gives it its credibility and this very credibility gives it its legitimacy. It is a very enviable spot for an institution. I will only say that if it wishes to preserve its moral and institutional leverage, it must remain uncontaminated. And, independent. And, fierce. And, at all times. A chain is only as strong as its weakest link. So is an institution. And if introspection is where we have to begin, we might as well begin there. Perhaps, we can hope and endeavour that in the future, it is not our finality, but really our infallibility that should define us. It is my imagination of an ideal world and I am aware of what Carl Jung had said of it. He had had said that, “Every form of addiction is bad, no matter whether the narcotic be alcohol, morphine or idealism.” I don’t know how true his view holds on other counts, but as far as idealism is concerned, I would say, it should be pursued like an axiom. Thank you very much.

Jai Hind!

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India is Lacking in the Amount of Sexual and Violent Crime Cases that Utilize DNA to Link the Accused to the Crime Scene

CA more aggressive DNA approach at crime scene, in the lab and in the court, will increase conviction rates and make India safer for women

New Delhi, Delhi, India

Crime in India is seen to be on an upsurge, especially rape and sexual assault cases where the conviction rate has fallen from 49% to as low as 29% in the last 3 years (between 2012 and 2015) in Delhi alone, and over 1,37,458 rape cases still stand pending for trial across India[1]. The lack of scientific methods in investigations is hampering justice delivery and the need for DNA casework expansion in India is now increasingly critical and urgent to build conviction in such cases.

“India is simply not collecting enough DNA at violent and sexual crime scenes,” said Tim Schellberg, President, Gordon Thomas Honeywell Governmental Affairs (GTH-GA), a legal and policy expert of forensic DNA. “DNA is the world’s greatest crime fighting tool. Consequently, DNA should be aggressively collected, tested and compared to the accused. DNA testing is happening in India, but not nearly enough,” added Schellberg.

GTH-GA estimates that the United Kingdom completes DNA testing on over 60,000 crime scenes annually. India is over 13 times larger in population that the United Kingdom, yet GTH-GA estimates that India’s crime labs collectively complete DNA testing on less than 7,500 cases annually. This is a very low number.

Furthermore, when DNA is collected, it often goes into large backlogs due to India’s lack of DNA testing infrastructure. The pendency of the backlogs for sample testing in the FSL at Rohini is 5661 and for the one at Chanakyapuri are 458[2. GTH estimates that most of the backlog cases mentioned is likely DNA.

As per the statistics available on the website of Directorate of Forensic Science, Himachal Pradesh[3], the pendency of DNA cases has gone up. In January 2017, the pendency of cases was 605 and in June 2017 was 674, whereas, the average collection of DNA cases is around 30 per month and average disposal of 15 cases a month. This shows almost 50 per cent increase in pendency at FSL per month.

As per the NCRB data, more than 34,651 rapes were registered in 2015. On the contrary, the annual report of the Centre for DNA Fingerprinting and Diagnostics (CDFD)[4] available for the latest year 2015-16 shows that they have received 99 DNA cases specifically for rape from different states.
B
Senior Advocate, Delhi High Court, Vivek Sood agrees that not enough DNA is being utilized in rape cases. “In Delhi, the numbers of rape cases have tripled over the last five years, registering an increase of 277% from 572 in 2011 to 2,155 in 2016. In these cases, I rarely see DNA evidence presented by the prosecutors during trial. This is because DNA is not properly collected at crime scenes on a routine basis, and when it is collected, it is stuck in long backlogs in our underfunded crime laboratories. As a result, there is an over reliance on verbal statements provided by witness/witnesses in the court that can result in wrongly convicting the innocent. We must have more DNA testing to ensure a swift and just result for both the victims and the accused.”

Collection, transportation and storage of DNA forensic evidence are the key factors in rape investigations, which unless well-preserved and transported to FSL result in weak prosecutions and low conviction rate. India currently has approximately 30 FSLs with varied capacity to examine DNA Samples. To strengthen the criminal justice system, it is therefore critical to invest in the much required infrastructure and upgrading the FSLs for DNA – Collect, Test and Compare.

The availability of DNA when at trial to link the accused to the crime is seen throughout the world as the best way to increase charging and conviction of criminal offenders. One study from Denver, Colorado (United States) shows that when DNA is available the prosecutions, ‘charging rate’ was 8 times higher than cases that did not have DNA casework that matched a known suspect. While this data shows prosecution ‘charging’ and not conviction, the point is made showing how the system likes it when DNA is present. A charge rate that is 8 times higher when DNA is present is a big number and obviously will lead to a higher conviction!

EIndia can be a far safer place for women if DNA was collected and tested at all violent and sex crime scenes where the criminal offender leaves DNA. This is a must for all law enforcement authorities, and courts and prosecutors to ensure that the DNA be tested quickly and be used in courts to expedite the judicial process.

 GTH-GA works globally on DNA

Gordon Thomas Honeywell Governmental Affairs is globally recognised public affairs consultancy firm that has expertise with forensic DNA database policy, legislative, and law. For nearly twenty years, consultants at GTH-GA have consulted in over 50 countries and states on legislation and policies to establish or expand criminal offender DNA databases. GTH-GA collaborates closely with governmental officials, crime labs, police and the DNA industry. GTH-GA operates the DNAResource.com website that has been used as the world’s primary source for DNA database policy and legislative information since 2000.

Supreme Court has already Clarified that it will not Encourage Prostitution

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

Law Resoursce India New Delhi 04/11/2014

In view of the order dated 26 July 2012 in Criminal Appeal 135/2010Budhadev Karmaskar vs State of West Bengal & Ors the present debate and controversy stirred up by the NCW Chairperson Lalita Kumarmanglam on Legalization of sex trade is a contempt of Supreme Court Orders. The National Commission of Women has been a party to the case and are aware of the Bench clarification dated 26 July 2012.

Speaking to the Times Of India she said that “I will only speak about the issue after the national consultation on November 8,” . “It is my personal and professional view that sex work should be legalized but the commission must make an informed decision and I am open to listening to all views. I will be using a lot of time next week to hold informal consultations on the issue, talking to all advocacy groups and others to understand what their apprehensions are.”

On October 28, Kumaramangalam told a daily that legalization will bring down trafficking of women and lower the incidence of HIV and other sexually-transmitted diseases. She also said she intends to put forth the proposal at the November 8 meet of the SC appointed Panel.

Bharti Dey of Durbar Mahila which supports the Legalisation Debate has stated “Police very often get paid to let off traffickers. Regulation will decriminalize the trade,” says Dey, whose organization currently runs self-regulation units and has sent at least eight traffickers to jail. She also points out that many of those entering the profession are extremely poor, have few options and know what they are getting into. “But they make it to our communities through traffickers and middlemen. Legalizing will remove these middlemen,” she says.

Supreme Court Lawyer and President of Shakti Vahini Ravi Kant while opposing the statement of the NCW Chairperson statement stated “Prostitution is Organised Crime and Violation of Fundamental Rights. Trafficking and sexual slavery is worst form of Human Rights Violation. No women joins this inhuman trade out of choice. More then 95% of the women have been trafficked and forced into the sex trade”.

rtr26efdHe further elaborated that ” Immoral Traffic Prevention Act 1956 criminalises the organised crime of Prostitution. Organised Prostitution creates a demand for young girls for the brothels which is met by trafficking of minor girls from across the Country.Giving Prostituion a legal status will be giving boost to demand of young minor girls who will be trafficked. In countries where such legalization has happened it has led to exploitation of women and girls and also commodification of women bodies.

He added that there here is no doubt that women who have been caught in the sex trade  need access to all Government facilities and schemes and efforts must be made to see that they join the mainstream and are properly rehabilitated. Also those who indulge in this organised crime of human trafficking which leads to kidnapping of young girls from across the country need to be properly punished.

On the role of the Governmental agencies he lamented “The sad part is that inspite of various recommendations from the Supreme Court in various cases no geniune efforts have been made by any Government to see that this social malice which results from Organised Crime be eradicated”.

Kant further stated “The statement of the National Commission for Women Chairperson for legalising prostitution is deplorable. It is time that the Government of India ammends the Immoral Traffic Prevention Act and brings in harsher punishments to the people who are involved in this organised crime”.

The Supreme Court in its order dated 26 July 2012  has clarified that its endeavor to provide right to life and access to governmental schemes should not be construed as an encouragement to prostitution. The clarification had come from a bench of Justices Altamas Kabir and Gyan Sudha Mishra after additional solicitor general P P Malhotra had drawn the court’s attention to its July 19 order in which it had sought suggestions from the SC-constituted panel on creating “conditions conducive for sex workers who wish to continue working as sex workers with dignity”.

Malhotra had said there was a danger of the order being construed as an incentive to indulge in an activity that had been termed as an offence under the Immoral Traffic Prevention Act, 1956.

POLICE BUSTING AN INTERNATIONAL RACKET

POLICE BUSTING AN INTERNATIONAL TRAFFICKING RACKET

The Judges on the bench passed had passed separate orders, but both meant to clarify that the panel would recommend steps to create “conditions conducive for sex workers to live with dignity as per provisions of the Constitution Article 21”. 

Justice Kabir added a precautionary clarification — “The above modification should not be construed to mean any attempt made to encourage prostitution.”

Hearing the Petition  Justice Mishra had clarified, “I prefer to add…sex workers have a right to live with dignity but the collective endeavour must be on part of the sex workers to give up the trade in case they are given alternate platform.”

The Detailed Order of the Bench  Dated 26 /07/2012 is as follows :

1. CRLMP.NO.12415 of 2012, has been filed on behalf of the Union of India, for modification of the order passed by this Court on 19th July, 2011, referring certain issues to the Committee which had been constituted by the said order itself.

2. The first modification sought by the Union of India is for deletion of the Durbar Mahila Samanwaya Samiti, from the panel. The second modification sought is with regard to the third term of reference, which reads as follows:-

(3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.

3. Appearing in support of the application, the learned ASG, Mr. P.P. Malhotra, submitted that the Samiti in question had been actively advocating the revocation of the Immoral Traffic(Prevention) Act, 1956, and had also been advocating the recognition of sex trade being continued by sex workers. The learned ASG submitted that the continuance of such Samiti in the panel is giving a wrong impression to the public that the Union of India was also inclined to think on similar lines. The learned ASG submitted that this wrong impression should be removed by excluding the Samiti from the panel.

4. As far as the second issue is concerned, the learned ASG submitted that wording of such reference could be suitably modified so as not to give an impression that the Union of India was in favour of encouraging the sex workers, in contravention of the provisions of the aforesaid Act.

5. We have heard Mr. Pradip Ghosh, learned senior advocate and Chairman of the Committee, as also learned senior advocate, Mr. Jayant Bhushan, who is also a member of the Committee and its co- Chairman and Mr. Grover, learned senior advocate, on the issue.

6. It has been submitted by Mr. Ghosh that at the meetings of the Committee, the members of the Samiti had contributed a great deal towards the understanding of the problems of the sex workers and it was not as if the said Samiti was encouraging sex trade, but were providing valuable inputs into the problems being faced by people engaged in the trade. Mr. Ghosh, Mr. Grover, and Mr. Bhushan, in one voice urged that the presence of the Samiti in the Committee was necessary even to function as a sounding board in respect of the problems that are faced by this marginalised and unfortunate section of society.

7. We agree with the submissions made by Mr. Ghosh, Mr. Grover and Mr. Bhushan, learned senior counsel, and are not, therefore, inclined to delete the Samiti from the Committee, as prayed for by the Union of India, and such prayer is rejected.

8. As to the second issue, it will not in any way make any difference to the terms of reference, if the wording of the third term of reference, is modified to the following effect:-

“Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution.”

9. The above modification, should not, however, be construed to mean that by this order, any attempt is being made to encourage prostitution in any way.

10. CRLMP.NO.12415 of 2012, is, therefore, disposed of in term of the aforesaid order.

11. Let this matter now be listed for consideration of the Sixth and Seventh Interim Reports, filed by the Committee, on 22nd August, 2012, at 3.00 p.m.

12. Let this Bench be reconstituted on the said date and time for the aforesaid purpose.

.………………J. (ALTAMAS KABIR) NEW DELHI; JULY 26, 2012.

ORDER

1. While concurring with the views of my learned brother Justice Altamas Kabir, I prefer to add in regard to the second issue that this Court should not be misunderstood to encourage the practice of flesh trade or advocate the recognition of sex trade merely because it has raised the issue to emphasize the rehabilitation aspect of the sex workers, for which this Court had taken the initiative right at the threshold. I consider this essential in order to allay any apprehension which prompted the Union of India to move this application for modification, by highlighting that the sex workers although have a right to live with dignity as the society is aware that they are forced to continue with this trade under compulsions since they have no alternative source of livelihood, collective endeavour should be there on the part of the Court and all concerned who have joined this cause as also the sex workers themselves to give up this heinous profession of flesh trade by providing the destitute and physically abused women an alternative forum for employment and resettlement in order to be able to rehabilitate themselves. I, therefore, wish to reiterate by way of abundant caution that this Court should not be perceived to advocate the recognition of sex trade or promote the cause of prostitution in any form and manner even when it had stated earlier in its terms of reference regarding conditions conducive for sex workers who wish to continue working as sex workers with dignity.

2. Thus, when we modify the earlier term of reference and state regarding conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution, the same may not be interpreted or construed so as to create an impression or draw inference that this Court in any way is encouraging the sex workers to continue with their profession of flesh trade by providing facilities to them when it is merely making an effort to advocate the cause of offering an alternative source of employment to those sex workers who are keen for rehabilitation. When we say conditions conducive for sex workers to live with dignity, we unambiguously wish to convey that while the sex workers may be provided alternative source of employment for their rehabilitation to live life with dignity, it will have to be understood in the right perspective as we cannot direct the Union of India or the State Authorities to provide facilities to those sex workers who wish to promote their profession of sex trade for earning their livelihood, except of course the basic amenities for a dignified life, as this was certainly not the intention of this Court even when the term of reference was framed earlier.

3. We, therefore, wish to be understood that we confine ourselves to the efforts for rehabilitation of sex workers which should not be construed as facilitating, providing them assistance or creating conducive conditions to carry on flesh trade for expanding their business in any manner as it cannot be denied that the profession of sex trade is a slur on the dignity of women. Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution be therefore understood in its correct perspective as indicated above.

J (GYAN SUDHA MISRA) New Delhi, July 26, 2012
———————–

We are not encouraging sex workers, SC clarifies

JUSTICE REVIEW

JUSTICE REVIEW

NATIONAL LEGAL RESEARCH DESK

The Supreme Court today modified one of its order on welfare and rehabilitation of sex workers on the Centre’s submissions that the last year’s order gave an impression that it seeks to legalise prostitution. Allaying the Centre’s fears that it was giving its seal of approval to prostitution, a special bench of justices Altamas Kabir and Gyan Sudha Misra modified its earlier order, saying “the modification shall not be construed that by this order any encouragement is being given to prostitution.”

Modifying its earlier order, the bench clarified that it would only examine the “conditions conducive for sex workers to work with dignity in accordance with provisions of Article 21 of the Constitution.”

It added it was keen that sex workers should be given opportunity to avail rehabilitation measures of the government and other agencies for them. While adjudicating a petition for rehabilitation of former sex workers, the apex court had on July 19, 2011 framed three terms of reference. Appointing a broad-based panel to look into the matter, the apex court by its July 2011 order had formulated three questions related to prevention of trafficking, rehabilitation of sex workers who wish to leave the sex work and “conditions conducive for sex workers who wish to continue working as sex workers with dignity.”

On the Centre’s submission that the third term gave an impression that prostitution has been sought to be legalised, the apex court modified it to read as “conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution.

“The above modification shall not be construed that by this order any encouragement is being given to prostitution,” the bench added. Justice Sudha also observed, “While we do not wish to encourage sex trade we would emphasise rehabilitation of sex workers for which we had taken the issue. “We wish to add although the sex workers have right to live with dignity. There has to be collective endeavours by courts and sex workers to give up flesh trade in case they are given alternative platform on employment.”

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

National Legal Research Desk on Violence Against Women and Children

Supreme Court of India

NATIONAL LEGAL RESEARCH DESK

The Constitution of India provides for special treatment of women, guarantees equality and prohibits discrimination. The government of India has been strengthening various laws focused on women and children. This has been more visible since the Beijing CEDAW Conference. The recent years have been witness to some landmark interpretations and directives related to Violence against Women.  Despite the constitutional mandate of equal legal status for men and women, the same is yet to be realized. The dejure laws have not been translated into defacto situation for various reasons such as illiteracy, social practices, prejudices, cultural norms based on patriarchal values, poor representation of women in policy-making, poverty, regional disparity in development, lack of access and opportunity to information and resources, etc. The ground situation more or less remains the same.

Most of the laws come with various institutional machinery, partnership between various stakeholders and active role of NGOs.  These institutions need to be in existence in order for the law to be effective. Also the policies and programmes made at the top takes a long time to percolate to the bottom and there is an urgent need of sharing information and resoursces.

 The awareness on laws and access to justice remains dismal. At the district and the state level sensitivity on women rights among judicial officers, administration and the police is very low. This leads to a situation where the implementation of the law becomes difficult.  Recently India has increased its budgetary support for the implementation of various laws on violence against women and it becomes increasingly more important for the organization like Shakti Vahini to work on governance specially related to women and children issuesThe National Legal Research Desk (NLRD) has been instituted to strengthen the implementation of the laws related to Women and Children in India. NLRD focuses on documenting the recent changes in the law, collect and compile the Recent Landmark Judgments of the Supreme Courts of India & the High Courts and ensure wide scale dissemination of the same through the government and the non government machinery. The NLRD will work with Law Enforcement Agencies, Police Academies, Judicial Agencies, Government Agencies, Statutory Agencies, NGOs, Civil Society and Mass Media on promoting Access to Justice for Women and Children. The NLRD website is a knowledge Hub for compilation of all Laws, Judgements and Resource materials on Violence against Women and Children in India. In the first phase (2012) it will focus on the laws related to Human Trafficking, Domestic Violence, Juvenile Justice, Rape Laws, PCPNDT Act , Honour Crimes and Victim Compensation.

NATIONAL LEGAL RESEARCH DESK

‘Amending power is unique’

T.R. ANDHYARUJINA: "In the Kesavananda case external political forces operated for over 66 days."

T.R. ANDHYARUJINA: "In the Kesavananda case external political forces operated for over 66 days."

V. VENKATESAN IN THE FRONTLINE

 Interview with T.R. Andhyarujina, Senior Advocate in the Supreme Court.

TEHMTAN R. ANDHYARUJINA, a Senior Advocate in the Supreme Court of India, faced a lot of criticism from his colleagues, especially Soli J. Sorabjee, who was a junior to Nani Palkhivala during the hearing of the Kesavananda case, that his latest book, The Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy by Supreme Court and Parliament, was a wasted effort. The former Solicitor-General took the flak in his stride, saying, “The purpose of my book is only to give a historical account of how the basic structure doctrine came to be established in our constitutional law.” Excerpts from an interview he gave Frontline:

Your book suggests that the inviolability of the basic structure doctrine was a dubious view of the majority of the Kesavananda Bench. What should have been the ratio of that judgment?

Extracting the ratio from the 11 judgments should have been the task of either the 13-judge Bench or a subsequent Bench. It is difficult to say what would have been the ratio on a proper judicial exercise. Had that exercise been done, there may not have been a majority holding that there is a limitation of the basic structure of the Constitution in amending the Constitution. There was no majority for any implied limitation on the amending power as Justice [H.R.] Khanna had rejected the implied limitations on the Constitution. What would have been extracted as the ratio of the Kesavananda case by a later Bench is a matter of speculation. This difficult exercise was purposely avoided by Chief Justice [S.M.] Sikri when he created the so-called View by the Majority note and passed it around for signatures of the judges on April 24, 1973.

In the concluding chapter, you concede that the basic structure doctrine is so deeply enshrined in our constitutional law that it would not be shaken even by the knowledge of the process by which it came to be formulated. What then is the purpose of the book, if it is not to make readers question that long-held belief?

It is correct that the basic structure theory has become an axiom of our constitutional law and one cannot imagine any Bench of the Supreme Court annulling that theory. It is also true that for whatever reason and method the majority view was arrived at, the axiom of unamendability of the basic structure of the Constitution has had a salutary check and control on the amending power. The purpose of my book is only to give a historical account of how the basic structure doctrine came to be established in our constitutional law. After this case, Parliament and the government gained by different approaches on its social and economic policies, which the court did not interfere with merely because some fundamental right was perceived to be violated. In that sense, the judgment served a useful purpose to society.

Can you explain how the then government sought to appoint judges before the hearing of the case?

After the Golaknath case, the government took a predominant role in the appointment process. By and large the new government nominees, though men of eminence and distinction, decided in favour of the unlimited power of Parliament except Justice A.K. Mukherjea. After Golaknath, the initiative came from the government. Justice Sikri was initially reluctant to appoint Justices [M.H.] Beg and [S.N.] Dwivedi. The government prevailed upon him. He selected Justice Khanna. The government accepted it. The relations between Justice Sikri and Indira Gandhi were also strained.

Justice Sikri had to choose 13 out of the then total strength of 15 judges to hear the Kesavananda case [the earlier relevant case, Golaknath, was decided by 11 judges and the Kesavananda Bench had to be bigger than that]. There were just two remaining judges who did not have a long tenure: Justice [V.] Alagirisamy and Justice Inder Dev Dua. But their tenure could have been extended in the form of ad hoc judges [and could have been chosen to be part of the Kesavananda Bench to replace Justices Sikri and J.M. Shelat]. The general practice is when your view is being reviewed, propriety requires that you recuse yourself from the Bench. But nobody raised objections [against Justices Sikri and Shelat being on the Kesavananda Bench because they were earlier part of the majority judges on the Golaknath Bench].

You mention that there was a move to exclude Justice Beg, a pro-government judge, from the Bench after 66 days of hearing on his hospitalisation. Who was behind this move?

It is unfortunate that a strong attempt was made by the petitioners and the CJI [Chief Justice of India] to exclude him on his third and last illness. His exclusion would not have changed the number of the majority, as the majority would have still prevailed with 7:5 instead of 7:6. In a case with such political overtones, the [likely] exclusion of Justice Beg at the last moment created tensions. It was felt that if the case was adjourned for the return of Justice Beg, the case would have prolonged beyond the retirement of CJI Sikri and the whole effort of the 13-judge Bench would have come to naught. Therefore, the petitioners and the CJI wanted to drop Justice Beg from the Bench and proceed as if there were 12 judges. The illness of Justice Beg at the crucial moment was interpreted as some sort of a game plan of the government to put an end to the case. The petitioners believed that it was a move to favour the government. As a result, Justice Beg was retained on the Bench, with Palkhivala being asked to give written submissions. It was a serious illness, but the question was whether his illness would go beyond the tenure of Justice Sikri.

The Attorney-General had threatened to walk out if Justice Beg was dropped. [Justice H.M.] Seervai supported him. Without one judge on the Bench, the legitimacy of the judgment would have come into question. Palkhivala, therefore, submitted to the government’s wish, and agreed to close his oral arguments on the 66th day.

By signing the View by the Majority note, did the neutral judges not apply their minds? You suggest that some of them reluctantly signed it because of constraints of time as Justice Sikri was due to retire.

The only judge who said that he signed the View by the Majority note to accommodate Sikri was Justice Y.V. Chandrachud. The rest of the judges, except Mukherjea, were by and large committed to the view of Parliament not having the amending power to change the basic structure. It would not have made any difference to the ultimate result, as at least five of the judges were clearly in favour of limiting Parliament’s amending power, and, one judge, Justice Khanna, was in favour of limiting its powers only on the grounds of basic structure. The absence of judicial conference does not invalidate the judgment. The view by the majority cannot be considered invalid because of the absence of a judges’ conference [preceding it], but it had become dubious because it was a hurriedly prepared paper passed on for signatures just before the judgment was delivered.

You have also claimed that the then government was in possession of some of the draft judgments before they were delivered. What was the basis of this claim?

The government decided on the supersession of judges even before the judgment was delivered in open court. Kuldip Nayar, in his book, says that Chief Justice Sikri queried Justice Beg. Justice Dwivedi said [after his appointment] that he was going to the Supreme Court to reverse Golaknath. Justice Beg was the nominee of Indira Gandhi. The government had advance notice of the views of the judges. Justice Mukherjea, Justice P. Jagannatha Reddy, Justice Chandrachud and Justice Khanna did not give the impression of being one way or the other. They appeared to be uncommitted. So, they would tilt the balance. Justice Reddy, on his own, came to more or less the same conclusion as the Sikri-led judges.

Justice Mukherjea wrote a joint judgment with Justice Hegde. Justice Khanna took a midway position. Justice Chandrachud was perceived by the petitioners to be in favour of limiting the amending power by some of his statements in the court, and the fact that he had been invited by Justice Sikri to the only judicial conference of like-minded judges. Therefore, his writing a judgment in favour of Parliament was a great surprise. This gave rise to the rumour that he had been influenced by the then Law Minister H.R. Gokhale and retired Chief Justice Gajendragadkar [a family friend of Chandrachud]. Justice Chandrachud later said that he was entitled to change his views. He denied that he was influenced by Gokhale and Justice Gajendragadkar.

Why did Chief Justice A.N. Ray dissolve the 13-judge Bench to review the Kesavananda judgment within two days of its constitution in 1976? You have speculated on the reasons, like his isolation on the Bench, Palkhivala’s letter to the Prime Minister on the eve of the hearing protesting against the move, and so on. Can you elaborate?

I think the 13-judge Bench was constituted by Justice A.N. Ray to review the Kesavananda case without any judicial order and there was no indication why the case was required to be reviewed. This was the strongest reason advanced by Palkhivala. On this point, neither Chief Justice Ray nor Attorney-General Niran De was able to give a convincing answer. And from the observations of other judges, this question was a worrying one. Therefore, in my view, Ray could not carry the majority with him to review the Kesavananda case, and on the third day, he felt compelled to dissolve the Bench without any reason.

How would you interpret Justice Ray’s legacy?

Chief Justice Ray’s acceptance of the CJI post is often misunderstood. It was not he who manoeuvred it but the government. After knowing the views of the judges who were going to decide against Parliament, the government decided that the next CJI should not be a judge from among those judges. It is now known that the government even asked Justice K.K. Mathew whether he would accept the position of the CJI. But he declined. Chief Justice Ray himself was reluctant to be the CJI in such a controversial way, but he was told that if he did not accept the position, the government was determined to go down the line and appoint any other judge who would consent to be the CJI. Therefore, Justice Ray accepted the position with reluctance.

Your mentor H.M. Seervai changed his view after the Emergency that the doctrine of basic structure was required for Indian democracy as without it many of the abuses of power during the Emergency could not have been reversed legally. Do you similarly support the doctrine now, even while legally questioning its birth?

In the Kesavananda case, it was argued that the amending power could be abused. It was not an unknown fact. But that could never be the reason for cutting down any power. Seervai changed his view for personal reasons. Today, after 38 years, one can say that as a matter of political argument a check on the amending power is always to be welcomed. In other countries, the amending power is not subjected to such judicial constraints, except in Bangladesh. Any power is capable of being abused and the fact of the abuse is never a ground for limiting the governing power.

The difficulty in ascertaining the basic structure is that it is a highly nebulous and subjective standard. It gives a vital power to the judiciary, which was never contemplated by the Constitution makers. It is true that Parliamentary and executive misuse is something that requires judicial correction and which is done in the normal course. But the amending power is a unique power, which cannot be compared with the ordinary legislative or executive power. The amending power is a quasi-political power and its validity may not be within the domain of the executive, which is a view taken in most jurisdictions of the world, including, Malaysia, Sri Lanka, Pakistan and South Africa. It is a unique power to create the Constitution. Judges are bound by the Constitution.

All constitutional cases, in a sense, are political. In the Kesavananda case the external political forces operated for over 66 days, and in that sense it was not a normal, constitutional case deciding political issues.

http://www.frontlineonnet.com/stories/20120127290107400.htm