Law Resoursce India New Delhi 04/11/2014
In view of the order dated 26 July 2012 in Criminal Appeal 135/2010 – Budhadev 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”.
He 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.
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.
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
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.”
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
- ‘Sensitivity must to defend human rights’ (indialawyers.wordpress.com)
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.
V. VENKATESAN IN THE FRONTLINE
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.
- Book on Kesavananda Bharati case to be released on Tuesday (indialawyers.wordpress.com)
- The inside story (thehindu.com)
- ‘If judges show anger unnecessarily, people will feel we are just like ordinary people. We have to show our stature is above that.’ (indialawyers.wordpress.com)
- The bench in the Lokpal (indialawyers.wordpress.com)
- 35 yrs later, a former Chief Justice of India pleads guilty (indialawyers.wordpress.com)
- House power to regulate judges’ ambit under legal experts’ lens (indialawyers.wordpress.com)
- National Law Day: Two Constitutional Scholars who upheld the values of our Constitution (indialawyers.wordpress.com)
- Justice Katju was part of the Bench that gave landmark judgments (indialawyers.wordpress.com)
DHANANJAY MAHAPATRA IN THE TIMES OF INDIA
Anna Hazare’s success reminded the political class about the magnetic effect a fast has on the common man, who suffers hunger on a daily basis and is hungry for good governance that could ensure some sort of social and economic equality in his poverty stricken and discrimination filled life.
Two politicians in Gujarat have gone on fast. If Narendra Modi is using the communal harmony-coated fast for a boisterous projection of US-certified development in the state to exorcise the ghost of post-Godhra riots, then Shankersinh Vaghela is fasting to scratch the still fresh wounds to widen the chasm between communities for electoral gains.
But no politician seems inclined to go on fast for the 40 crore Indians who even after 64 years of independence live below the poverty line. Recently, for the benefit of the Supreme Court, the Planning Commission said a person is below the poverty line if he is unable to buy food worth Rs 20 a day at a time when almost every essential commodity is out of his reach.
And if he did not live below the poverty line, that is if he is able to spend Rs 21 a day on himself and his family, then he would have to buy ration from the market as he would be disentitled to get it from PDS shops.
Faced with an absurd definition of poverty, fast has become a common man’s constant companion. Political inaction to streamline supply of subsidised foodgrain to the poor forced Supreme Court to intervene decisively. When Justices Dalveer Bhandari and Deepak Verma said “not a single person should die of starvation”, it would have sounded like a poll-eve political slogan had it not been accompanied by stern directions for distribution of additional grains in 150 poorest districts.
It is the faceless common man — farmer, cobbler, iron-smith, washerman, landless labourer, daily wager, painter, plumber, sewage worker, sweeper — who sustains the wheels of the economy, yet faces the brunt of the economic policies of the government.
Would politicians take turns to live for a few days in the households of the poor and try to understand the hunger, anger and anguish that is stripping the common man of the right to live with dignity? Have they tried to understand the root cause behind the suicide of over 1.40 lakh farmers who left behind tales of debt, poverty and sorrow? Is waiver of loans the answer?
Poverty and hunger have drawn the Supreme Court’s attention periodically. In People’s Union for Democratic Rights vs Union of India [1982 SCC (3) 235], it said utter, grinding poverty had broken the backs and sapped the moral fibre of a majority of the population. “They have no faith in the existing social and economic system. What civil and political rights are these poor and deprived sections of humanity going to enforce,” it had asked.
Three years later, in the case K C Vasantha Kumar vs Karnataka, the SC said, “Chronic poverty is the bane of Indian society. Market economy and money spinning culture has transformed the general behaviour of society towards its members. Bank balance, property holdings and money power determine the social status of the individual and guarantee the opportunities to rise to the top echelon. How the wealth is acquired has lost significance. Purity in means disappeared with Mahatma Gandhi and we have reached a stage where ends determine the means.”
Even when poverty still ruled society, the apex court in the year 2000 in Islamic Academy case said right to development was also part of human rights. “Economic prosperity or elimination of poverty is not the only goal to be achieved but along with it allow individuals to lead a life with dignity with a view to (make them) participate in the governmental process, so as to enable them to preserve their identity and culture,” it said.
Sadly, we are very far from eradicating poverty, which was the poll slogan of the Congress party in the 1970s. Politicians still do not understand that hunger and poverty afflict the soul of a person and drive him to do things which are strange to his social and moral DNA.
Fasting may have brought Hazare support for a campaign against corruption. But fasting surely will not get politicians the votes. What voters need is development in the true sense and this alone can ensure prosperity and help eradicate poverty.
VANDANA SHUKLA IN THE TRIBUNE CHANDIGARH
The rhetoric on remedies of rape moves in circles – from capital punishment for rape to financial compensation to the victims to out of court ‘settlements’ to getting the victim married with the culprit. The woman’s need for dignity of course takes the back seat.
Despite an uninterrupted discourse on the subject over the past several decades, governments and society are yet to evolve a cast-iron system to deal with the crime and the criminals.
From the year (1971) the National Crime Record Bureau (NCRB) began collecting data on rape cases, it has shown an eight-fold increase. In 2008 over 21 thousand complaints were recorded in the country with various agencies conceding that over 80 per cent of the cases never get reported. Incest has shown a 30 per cent increase— these are disturbing social trends, which need to be researched and addressed. This stands in marked contrast to the other serious and violent crimes like murder, robbery, dacoity, kidnapping and rioting.
The NCRB has also concluded that only one in 69 rape cases get reported and only 20 per cent of the reported cases result in convictions.
Cash compensation ?
Compensation for rape is not a new idea. Courts have ordered for compensation to be paid under provisions contained in the statutes. Several state governments too have found it convenient to pay sums depending upon the extent of the public outrage and media exposure. But this is the first time the Ministry of Women and Child Welfare has launched a country-wide scheme and has offered to reimburse the state governments the cost they incur in its implementation.
But compensation — call it restorative justice or whatever —is tricky.
It is instructive to recall the experience with Prevention of Atrocities Act 1989 ( for SC and ST). Tribal and dalit victims of rape, were required to produce a certificate of their tribal/dalit status for receiving a compensation of Rs 25,000.
Getting the certificate in itself became a profit making proposition for brokers. Poverty also induced many to file false cases, thus defeating the well-meaning provision, points out Pratiksha Baxi from JNU.
The law also appears to assume unfortunately that standards of dignity are different for a woman from a well- off family and for a dalit woman. So, a dalit woman’s compensation money for rape can be shared by the rapist under the Act.
The compensation is paid if the victim belongs to either a Scheduled Caste or a Scheduled Tribe and the rapist does not. The law does not specify what happens if the woman is from a Scheduled Tribe and the man is from a Scheduled Caste or vice versa. Even before the Act was passed in 1989, since 1978 in UP women from SC and ST were paid compensation of Rs 5000 for rape.
The website of the Department of Social Justice and Empowerment, Govt of Gujarat, lays down that for outraging the modesty of a woman under section 3(1) (11) the Government pays a compensation of Rs 50,000, but in case the accused marries the rape victim, the ‘assistance’ ( here it is not termed as compensation) of Rs 50,000 is disbursed in the joint names of the couple.
It does not require great imagination to understand how these laws end up as bait for attracting more abuse for women. The website does not offer any data on how many women actually received the compensation or assistance!
Compensation, obviously, can be paid only after the charge is established in court, which is a tall order in itself. Strangely, the scheme is sought to be justified by the need to help the victim financially so that she can fight it out in court. How this contradiction gets resolved , remains to be seen.
A study conducted by MARG in Uttar Pradesh throws up more questions.
Of the 33 registered victims or their family members the researchers spoke to, they found 13 victims were minors, 2 were six years old, one was between four and five years of age. One was 12 years old, others less than 14 years of age.
But in only four cases did the medical report confirm rape. Of the 13 minor victims, only one minor’s rape was confirmed. Two girls had the noting ‘no opinion’ and of the rest there was no medical record with the police. Yet, the compensation was ‘liberally’ sanctioned.
Although the police had no ‘medical examination report’ in their record, compensation was still sanctioned in as many as 28 cases, including nine in which there was no finding of rape. In one case the rapist and victim belonged to the same caste, hence the case was withdrawn!
The money, in case of minor victims, was received by the parents. Only two women spent Rs 2000 out of the received money to hire a lawyer.
Of the 13 minors, only four could attend school while most victims relocated to escape the stigma attached to rape. Their humiliation was compounded by the CM of U P, Mayawati , who had ordered the money to be delivered by the Director General of Police in person. He was also asked to take a helicopter and fly to various places for the purpose.
On the one hand rape cases are held in camera, on the other hand this display of ‘help’ discourages victims to report rape. The compensation, as and when paid, is often grabbed by the rest of the family, and makes the police indifferent and even more reluctant to pursue the cases. The attitude is, since the money has already been paid, why fuss over prosecution ?
In most countries, policies and laws are framed based on research based findings. But there are very few studies on the subject funded by the Government.
A few studies, mostly done by individuals who feel strongly about the issue, are however eye openers. Social activist Flavia Agnes’ study was based on observations drawn from her own legal practice and judgements involving rape cases; while Pratiksha Baxi’s ( Assistant Professor, Centre for Law and Governance, JNU, Delhi) study was based on what goes on inside the court rooms, where a 12- year- old is also asked sexually explicit questions a lawyer may hesitate putting to a 30- year-old.
Even after the much talked about Mathura case, which led to the amendment of Evidence Act in 1983, which allowed the woman’s word to be trusted for her non-consent, there has been no monitoring of judgements.
From 1860 to 2002, the colonial law based on the moral history of the woman was in application while looking at a rape victim, which meant that a woman’s sexual history would have a say on the writing of the verdict. Despite deletion of this clause, not much has changed in courtrooms.
A Google search for kanoon.com and rape cases will throw up several judgements, which are deeply patriarchal and explain why conviction rates are so abysmally low.
Doctors are surprised if the victim cooperates with them on examination (a victim is supposed to go stone-silent, weep and should have injury marks), policemen’s wives cannot complain of being raped by husbands ( because it is a husband’s right) and while the defence tries to prove that the victim is a consenting adult because anyone over 16 is thought to have given consent, judges worry about marital prospects of victims ( many rapists thus get lighter sentences when
they agree to marry their victims). Incest of course hardly ever gets reported because of the family’s insistence on silence.
Marry the rapist
Sakshi, an NGO, had released a study called ‘Gender and Judges’, in which it analysed the views of 119 judges from all over India, along with experiences of female lawyers, complainants and observations on court room trials.
Most judges found it impossible to believe that men could perpetrate the crime without any element of consent or provocation. ‘Judges were of the view that penetration of a woman is physically impossible without her ‘consent’ and that in any case women are ‘partially to blame for such abuse.’
Another ludicrous idea often encouraged by the judiciary is that of compromise. Whenever witnesses turn hostile, victims are advised to accept a compromise, which the court witnesses, but is unable and unwilling to act upon.
The court thus ‘restores’ her chastity in the public eye. Fortunately, the courts are prohibited from compounding a rape case. Being a non-compoundable offence, compromise in rape cases has been confined to the bargains between community elders, victims’ kin, local authorities and the police, with judges looking the other way for the most part.
Women are often subjugated by men in power. In the Ruchika Girhotra molestation case, the protector, an IG, Haryana Police, S P Rathore became the tormentor. After 19 years, 40 adjournments, and more than 400 hearings, the court finally pronounced him guilty under Section 354 and gave him six months imprisonment.
In case of Anjana Mishra, it was the Advocate General of Orissa, Indrajit Roy, who attempted to rape her when she went to seek his help for getting custody of her children in 1998. Since she dared to report the case, she was gang-raped by three men, to teach her a ‘lesson.’ Roy was given anticipatory bail but was never arrested due to his political clout. Under public pressure when he finally resigned, his junior was made AG, putting Anjana in her place.
It is reminiscent of Bhanwri Devi’s case, a Sathin volunteer in Rajasthan, when she tried to stop a child marriage in 1992, she was gang raped by five men, including Ramkaran Gujjar, whose daughter’s marriage she had tried to stop. The male doctor at the primary health centre refused to conduct medical examination and at a Jaipur hospital the doctor certified only her age. Subjected to sustained humiliation, she was asked by the policemen to leave her lehenga as an evidence of rape. Bhanwri’s case inspired Visakha case, which brought about legislation against sexual exploitation of women at work place but Bhanwri could not get justice in a caste -ridden system.
Society must change first
I enacted the role of a rape victim in three films; Bawandar, Pitah and Laal Salaam. So, I can claim to have some idea of what a woman goes through in a situation like gang- rape. While shooting the gang-rape scene for Bawandar, I saw some members of the crew nudging each other with suppressed and suggestive giggles, and I screamed. It was something I never do. But I felt violated. This was just an enactment, after all. I could immediately empathise with what an actual victim has to go through.
It is sad the way we treat this kind of abuse of women—with total disregard for the feelings of a woman. The society has to change—this is not something outside us, they come from within us. We need to shame the perpetrators, we need to talk more and more—in the open about these issues because, as we know, a rapist gets caught usually after a number of successful or unsuccessful attempts. What makes the rapist so daring is the silence of the women.
As far as monetary compensation is concerned, it finds justification in offering help to the victim to fight her case legally, which is often long-drawn. Otherwise it becomes like the flesh-trade. One must understand that the person is scarred for the rest of her life, simply because we have shrouded a crime under such weight of shame for so long that we do not want to deal with it.
What’s wrong if state takes responsibility?
There was a time when, after the Bhawnri Devi case, women’s groups demanded compensation, because Bhawnri was raped in the course of carrying out her duties as a government functionary, albeit an informal one (she was paid not as an employee but as a volunteer, something that enables the govt. to pay less than the minimum wage); therefore she was entitled to compensation. She was eventually given compensation but she did not use it, it created more problems for her— the community started saying rape was an excuse for taking money… so there is that element also. But if the state takes responsibility, then that can’t be altogether a bad thing
Over 35 years after he signed off — with the majority on a five-judge bench of the Supreme Court — to rule that even the right to life could be abrogated, former Chief Justice of India P N Bhagwati today said he was sorry for that ruling.
“I was wrong. The majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would agree with what Justice (H R) Khanna did. I am sorry (for the judgment),” Bhagwati told The Indian Express today.
In the 1976 ADM Jabalpur vs Shivkant Shukla case, popularly known as the habeas corpus case, Justices Bhagwati, A N Ray, Y V Chandrachud and M H Beg agreed with the then Indira Gandhi government that even the right to life stood abrogated during the Emergency. The verdict constitutes one of the darkest chapters in the history of the court as it struck at the very heart of fundamental rights.
“I don’t know why I yielded to my colleagues,” said Bhagwati. “Initially, I was not in favour of the majority view. But ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that time, a young judge…I was handling this type of litigation for the first time. But it was an act of weakness on my part.”
Justice H R Khanna, incidentally, was the only judge on that bench who dissented with the majority view arguing that the Constitution didn’t permit the Right to Life and Liberty to be subject to any executive decree. This cost him the job of CJI.
He claimed that his later judgments dealing with fundamental rights did uphold the Constitution. Was it the lure of high office? “I can’t say this. It would not be right for me to say this,” he said.
Incidentally, during the Emergency, Bhagwati praised the Indira government but after the Janata Government came, he was critical of her. After Indira’s return, he sent her a gushing letter: “…I am sure that with your iron will and firm determination, uncanny insight and dynamic vision, great administrative capacity and vast experience, overwhelming love and affection of the people and above all, a heart which is identified with the misery of the poor and the weak, you will be able to steer the ship of the nation safely to its cherished goal.”
- To check motivated PILs, Govt works on law (indialawyers.wordpress.com)
- Objection, your honour (indialawyers.wordpress.com)
- The Collegium Controversy (indialawyers.wordpress.com)
- Justices delayed: SC down, Judge vacancies pile up (indialawyers.wordpress.com)
- Wrong people sometimes elevated to higher judiciary: Ex-CJI Verma (indialawyers.wordpress.com)
- Judges must be beyond all suspicion (indialawyers.wordpress.com)
- ‘Parliament is the ultimate judge of what law should be, SC the ultimate judge of what law means. That has to be maintained’ (indialawyers.wordpress.com)
- Keep PM, higher judiciary out of Lokpal: ex-CJI (indialawyers.wordpress.com)
V VENKATESAN IN THE FRONTLINE
THE case Nandini Sundar vs State of Chhattisgarh arose out of a writ petition (civil) filed in 2007 in the Supreme Court by Nandini Sundar, a Professor of sociology at the Delhi School of Economics; Ramachandra Guha, a historian; and E.A.S. Sarma, former Secretary to Government of India and former Commissioner, Tribal Welfare, Government of Andhra Pradesh. The petitioners had alleged that the State of Chhattisgarh was actively encouraging a group called Salwa Judum, a civil vigilante structure, to counter Maoist insurgency, and that had resulted in violation of human rights.
The State government created Salwa Judum in June 2005, projecting it as a spontaneous people’s movement to take care of the law and order situation in the naxalite-prone Dantewada district. It comprised about 6,500 Special Police Officers (SPOs), or Koya commanders, appointed by the State government. The force was substantially financed by the Central government. Its members started out with meetings in and around Kutru village of Dantewada district under the aegis of the Jan Jagran Abhiyan. The Jan Jagran Abhiyan was subsequently renamed Salwa Judum.
In May 2006, Nandini Sundar, Guha and Sarma undertook a fact-finding mission to Chhattisgarh as part of the Independent Citizens’ Initiative and heard complaints against the activities of Salwa Judum. They then approached the National Human Rights Commission (NHRC), the Prime Minister, the Union Home Minister, and the National Commission for Scheduled Tribes, among others, and alerted them about the human rights violations by Salwa Judum. Failing to elicit an effective response from them, the civil rights activists approached the Supreme Court with a writ petition.
The Salwa Judum case was one of those rare cases heard by the Supreme Court; it was heard for 26 days spread over five years. Eleven judges, belonging to different Benches comprising two or three judges, heard the matter at different times. When Justice B. Sudarshan Reddy and Justice Surinder Singh Nijjar delivered the judgment in the case on July 5, they did so after hearing the case for 16 days during 2010-11.
According to Nandini Sundar, all the judges who heard the case were sympathetic towards the concerns raised in the petition. The hearings in the case could have concluded much earlier had the Chhattisgarh government not sought frequent and unnecessary adjournments.
The Reddy-Nijjar Bench held that the formation of Salwa Judum on a temporary basis was an abdication of the state of its constitutional responsibility to provide appropriate security to citizens by having an appropriately trained professional police force, of sufficient numbers and with proper equipment on a permanent basis. The Bench also held that the Salwa Judum policy violated both Articles 14 (equality before law) and 21 (protection of life and personal liberty) of those employed as SPOs as well as of the citizens living in those areas. Therefore, the Bench ordered the State government to disarm the SPOs, desist from using them to counter Maoist activities, and protect their lives.
The Bench also directed the State government to prevent the operation of Salwa Judum or any other such group that seeks to take the law into its own hands or violates the human rights of any person. The Bench held that the appointment of SPOs to perform any of the duties of regular police officers was unconstitutional.
Nandini Sundar was also an unusual case in that the court undertook to examine the issues of evidence very much like a trial court and yet did not compromise on the standards to be adopted while evaluating evidentiary issues. The court found its task easy to carry out primarily because most of the allegations made in the petition stood proven in terms of admissions by the State and Central governments and their corroboration by a number of independent fact-finding reports.
The state sponsorship of Salwa Judum was clear and could not be denied. The petitioners showed to the court that Salwa Judum activists, accompanied by security forces and the district police, went into villages, burnt houses, looted grain, livestock and money, and even raped women and killed individuals. Reports by Human Rights Watch, the National Commission for Protection of Child Rights, and the NHRC corroborated these allegations. In addition to this, the petitioners had annexed testimonies by victims. A documentary film produced by Channel 4 of Britain was included as Annexure F-3 in the evidence provided by the NHRC.
Forcible evacuation of villagers into Salwa Judum camps, which the State government euphemistically referred to as relief camps, was proved. Such villagers were made to abandon their fields and prevented from returning to their homes.
Chhattisgarh Chief Minister Raman Singh denied that minors were appointed as SPOs. However, the petitioners proved that minors were appointed as SPOs by producing their photographs and also the police memorials to SPOs Sujeet Kumar Mandavi and Manglu Ram showing that they were 17 and 18 years old respectively when they were killed in a naxalite attack on the Rani Bodli outpost.
A picture of mass violation of fundamental constitutional rights emerged from the testimonies of residents of 110 villages, given at an open rally organised by the Adivasi Mahasabha in June 2007 in Cherla in Khammam district of Andhra Pradesh. The translations of these testimonies (with originals in Gondi and Hindi) were given to the court as annexures to the writ petition. The lists of people killed or raped, and the number of houses burnt were also annexed to the petition. Independent reports corroborated these testimonies.
In the first two years of Salwa Judum (2005-07), the number of people forcibly removed from 644 naxalite-affected villages to Salwa Judum camps was 47,238. There were 20 such camps. These data, taken from an official memorandum of the State government, were annexed to the petition.
Considering the facts of the recruitment of SPOs, the court expressed its dismay at the violation of law. It found that the State government recruited the SPOs first under Section 17 of the Indian Police Act, 1861 (IPA), and later under Sections 9(1) or 9(2) of the Chhattisgarh Police Act, 2007 (CPA). Section 9(1) or 9(2) of the CPA does not specify the conditions under which the Superintendent of Police may appoint “any person” as an SPO.
The court felt that that would be a grant of discretion without any indicia or specification of limits, on the number of SPOs who could be appointed, their qualifications, their training or their duties. Conferment of such unguided and unchannelised power, by itself, would clearly be in the teeth of Article 14, it said. In contrast, Section 17 of the IPA sets forth the circumstances under which such appointments could be made and the conditions to be fulfilled. The court, therefore, held the appointment of SPOs to perform any of the duties of regular police officers other than those specified in Sections 23(1)(a)(h) and 23(1)(a)(i) of the CPA (dealing with disasters and movement of people and vehicles) unconstitutional.
It was also dissatisfied with the State government’s New Regulatory Procedures governing the recruitment of SPOs, which made it clear that the SPOs were to be used for counter-insurgency activities. The court agreed with the petitioners that the lives of thousands of tribal youth appointed as SPOs were placed in grave danger because they were employed in counter-insurgency activities.
The State government cynically claimed in its affidavit that 173 of the SPOs “sacrificed their lives” in this bloody battle, thus proving the petitioner’s contention, the court observed. It also noted that the SPOs suffered a higher rate of deaths, as opposed to what the formal security forces suffered, and this only implied that the SPOs were involved in front-line battles or that they were placed in much more dangerous circumstances without adequate safety of numbers and strength that formal security forces would possess.
The court noted that the SPOs had become cannon fodder in the killing fields of Dantewada and other districts of the State and that the training they received was clearly insufficient. It was shocked that the SPOs, with little or no education, were expected to learn the requisite range of analytical skills and legal concepts and familiarise themselves with other sophisticated aspects of knowledge within a span of two months. Although the State government claimed that it had preferred candidates who had passed the fifth standard for recruitment as SPOs, it implied that some, or many, who had been recruited might not have passed the grade. As the SPOs had such limited schooling, the court found the State government’s claim that they had learnt legal subjects in 42 hours astounding.
While the State government stated that the SPOs were provided firearms only for self-defence, the court felt that they were being placed in volatile situations in which the distinction between self-defence and unwarranted firing might be very thin. It would require a high level of discretionary judgment, which the young SPOs were incapable of exercising, the court said.
In Paragraph 49, the court referred to the State government’s admission that many of the youth who were willing to be recruited as SPOs were motivated by the fact that they or their families had been victims of naxalite violence or wanted to defend their hearth and home from naxalite attacks.
From this the court inferred that those recruited as SPOs might be actuated by feelings of revenge. Such feelings, it opined, would hinder the development of a cool and dispassionate analysis of Maoist actions and could even result in the SPOs branding non-Maoists as Maoists or Maoist sympathisers and causing more people to take up arms against the state.
The court also deplored the Central government’s argument that its role was limited to approving the total number of SPOs and the extent of reimbursement of the “honorarium” paid to them and that it had nothing to do with issuing directions as to how the SPOs were to be recruited, trained and deployed.
It reminded the Central government that the Constitution cast a positive obligation on the Centre to undertake all such necessary steps to protect the fundamental rights of all citizens and, in some cases, even of non-citizens. The court noted with concern that it was the financial assistance extended by the Union that had enabled the State government to appoint barely literate tribal youth as SPOs and give them firearms.
The SPOs were paid an honorarium of Rs.3,000 a month, which the Union reimbursed. The court found it clearly unconscionable that the Central government did not find it necessary to evaluate the capabilities of these SPOs and had abdicated its responsibilities. When the Central government expressed its readiness to issue advisories to the State government requiring the latter to recruit SPOs after careful screening and improve the standards of training, it did not at all inspire the confidence of the court that the Centre would take all necessary steps to mitigate a vile social situation that it had, willy-nilly, played an important role in creating.
Many analysts have expressed surprise that the Reddy-Nijjar Bench devoted 22 paragraphs of its judgment to a discussion of ideological issues, which largely appear irrelevant in deciding the issue before the court. These paragraphs indict the neoliberal development paradigm and the resultant privatisation and globalisation in clear terms. This paradigm, expressed succinctly in Paragraph 10, says that unless development occurs, via rapid and vast exploitation of natural resources, the country will not be able to either compete on the global scale or accumulate the wealth necessary to tackle the endemic and seemingly intractable problems of poverty, illiteracy, hunger and squalor.
The court says, on the basis of historical evidence, that a development paradigm depending largely on the plunder and loot of natural resources more often than not leads to the failure of the state and that on its way to such a fate, millions will be condemned to lives of great misery and hopelessness.
Those who are unable to understand the link between these early paragraphs of the judgment with the petition before the court must read Paragraph 53. The Bench says in this paragraph that it is abundantly clear from the affidavits of the State and Central governments that one of the primary motives behind employing tribal youth as SPOs is to make up for the lack of adequate formal security forces on the ground. The court said the situation had been created in large part by the socio-economic policies followed by the state. It reasoned:
“The policy of privatisation has also meant that the State has incapacitated itself, actually and ideologically, from devoting adequate financial resources in building the capacity to control the social unrest that has been unleashed. To use those tribal youngsters as SPOs to participate in counter-insurgency actions… clearly indicates that issues of finance have overridden other considerations such as effectiveness of such SPOs and of constitutional values.”
The Bench observed that involving these ill-equipped and barely literate youngsters in counter-insurgency activities revealed a disrespect for their lives and dignity, thus violating Article 21. Also, the temporary nature of the employment of the SPOs would endanger their lives further by subjecting them to dangers from the Maoists after they were disengaged from duty, the court said.
The Bench also found proof for the violation of Article 14 in that the SPOs were expected to perform all the duties of police officers and were subjected to all the liabilities and disciplinary codes as members of the regular police force, and their lives were placed on the line, plausibly to a greater extent than the members of the regular security forces, and yet they were paid only an “honorarium”.
The Communist Party of India (Maoist) has welcomed the judgment, reassuring the SPOs that the Maoists do not see them as their enemies. The Maoists have promised to take the responsibility of rehabilitating the SPOs and ensuring livelihoods for them if they returned to the villages and severed all ties with the government. According to the People’s Union for Democratic Rights, the CPI (Maoist)’s statement allays the fear that there may be retaliatory violence against the erstwhile SPOs.
The State government has decided to seek a review of the judgment, but the judgment makes it clear that it is the State and Central governments that need to review their approach to the Maoist threat. A number of civil society movements have urged the State government to give priority to instilling confidence among the affected communities by investigating all instances of alleged criminal activities by Salwa Judum, filing of first information reports and ensuring diligent prosecution of all SPOs charged with various offences, apart from rehabilitating the victims, as directed by the Supreme Court.
J VENKATESAN IN THE HINDU
The limits of power exercised by the Supreme Court when it chases injustice are the sky itself, a Bench of the apex court has said.
“It is plenary power exercisable outside the purview of ordinary law to meet the demand of justice. Article 136 of the Constitution is a special jurisdiction. It is residuary power. It is extraordinary in its amplitude. The limits of Supreme Court when it chases injustice are the sky itself,” said the Bench of Justice J. M. Panchal and Justice H. L. Gokhale.
“The appellate power vested in the Supreme Court under Article 136 of the Constitution is not to be confused with the ordinary appellate power exercised by appellate Courts and appellate Tribunals under specific statutes. The powers under Article 136 can be exercised by the Supreme Court in favour of a party even suo motu when the Court is satisfied that compelling grounds for its exercise exist,” it said.
Writing the judgment, Justice Panchal said: “Where there is manifest injustice, a duty is enjoined upon this Court to exercise its suo motu power by setting right the illegality in the judgment of the High Court as it is well-settled that illegality should not be allowed to be perpetuated and failure by this Court to interfere with the same would amount to allow illegality to be perpetuated.”
Rejecting the contention that the Supreme Court should not do anything which was not prayed for or challenged, the Bench said: “When an apparent irregularity is found by this Court in an order passed by the High Court, the Supreme Court cannot ignore substantive rights of a litigant while dealing with the cause pending before it. There is no reason why the relief cannot be and should not be appropriately moulded while disposing of an appeal arising by grant of special leave under Article 136 of the Constitution.”
The Bench was of the view that the power under Article 136 “is meant to supplement the existing legal framework. It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law.”
In the instant case, the appellant, A. Subash Babu, a police officer in Andhra Pradesh, was alleged to have entered into a second marriage by suppressing the fact of his first marriage which was in subsistence. Aggrieved, the second wife filed a complaint for offences of bigamy, suppression, cheating, dowry and cruelty. The Andhra Pradesh High Court quashed the charges of dowry and cruelty, holding that the second marriage was void but allowed other charges to remain. The present appeal was directed against this judgment.
Dismissing the appeal, the Supreme Court held that the woman with whom the second marriage was contracted by suppressing the fact of former marriage would be entitled to maintain complaint against her husband under Sections 494 and 495 of the Indian Penal Code. Further without any appeal against quashing of charges under Section 498 A, the Bench said it could order reopening it to render justice.
Height of perversity
“A bare reading of the complaint together with statutory provisions makes it abundantly clear that the appellant having a wife living, married the second wife by concealing from her the fact of former marriage and, therefore, her complaint against the appellant for commission of offence punishable under Section 494 and 495 IPC is maintainable and cannot be quashed on this ground. To hold that a woman with whom second marriage is performed is not entitled to maintain a complaint under Section 494 IPC though she suffers legal injuries would be height of perversity,” said the Bench.
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