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!

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.

Get tough with ‘killers on wheels’: Supreme Court

Supreme Court of India

Expresses concern at rising number of deaths in road accidents

Expressing serious concern over the rising number of deaths in road accidents, the Supreme Court on Thursday called for revisiting the sentencing policy to ensure harsh punishment for the ‘killers on wheels’.

Upholding the three-year jail sentence awarded by the Bombay High Court to Alister Anthony Pareira for causing the death of seven persons when his car ran into the pavement in Mumbai, a Bench of Justices R.M. Lodha and K.S. Khehar said the punishment must be in proportion to the crime.

Writing the judgment, Justice Lodha said, “The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal.”

Drunken driving

The Bench said: “The World Health Organisation, in the Global Status Report on Road Safety, has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau [NCRB], the total number of deaths due to road accidents in India every year is now over 1,35,000. The NCRB report also states drunken driving as a major factor for road accidents.”

It said the country had the dubious distinction of registering the highest number of deaths in road accidents. “It is high time lawmakers revisit the sentencing policy reflected in Section 304 A IPC [death due to negligence]. It is true that the appellant has paid compensation of Rs. 8,50,000 but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, the High Court had been quite considerate and lenient in awarding to the appellant a sentence of three years for an offence under Section 304 Part II IPC [death caused by driving] where seven persons were killed.”

According to the Bench, “the facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II IPC undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime. Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, the sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement.”

“Travesty of justice”

On the plea for letting the appellant off with the sentence already undergone i.e. two months in a case like this, the Bench said “in our view, it would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime.”

It said: “We are satisfied that the facts and circumstances of the case do not justify benefit of probation to the appellant for good conduct or for any reduction of sentence. The appeals are, accordingly, dismissed. The appellant’s bail bonds are cancelled. He shall forthwith surrender for undergoing the remaining sentence as awarded by the High Court in the judgment dated September 6, 2007.”

“When an Institution No Longer matters, we no longer matter.”

Supreme Court of India

Chief Justice of India Shri S H Kapadia- Speech on the ocassion of Law Day 2011

We have assembled today to celebrate the anniversary of a momentous event, the anniversary of the adoption of our Constitution, the day on which our founding fathers subscribed to this document by signing the same and thereby unfolding the philosophy – social, economic and political, for the governance of free India. We have every reason to be proud of and to celebrate that unique occasion. We take this opportunity to thank the founding fathers, for this document, who spent a good deal of their time and energy in giving shape to this suprema lex which was to guide the future destination of the country. We are ever grateful to them. The foremost reason why we are proud of our Constitution is that it promises governance through the Rule of Law. While in many countries which initially opted for a democratic form of Government the euphoria lasted for brief spells, we are of the view that in our country, notwithstanding its complexity, democracy has stabilized and democratic institutions have flourished. The survival of democracy in India has left many bewildered.

The socio-economic transformation – a welfare State and an egalitarian society as its objective – must also be through the process of law. It is true that such desired socio-economic transformation through process of law has been slow, however, the march has been steady. Today, rule-specific laws are being substituted by rights-specific laws (RTE, RTI, Food Security Bill). These socio-economic legislation requires a paradigm shift in the matter of interpretation of Article 14, Article 21 and Article 19(1)(g) of the Constitution. Courts have come from formal equality to egalitarian equality to the concept of Deprivation.

 Judicial independence is one of the essential elements of Rule of Law. Every civilized society has seen the need for an impartial and independent judiciary. The principle of Judicial Independence has acquired renewed significance, since the Constitution of India has conferred on the Judiciary the power of judicial review. However, keeping in mind the doctrine of Separation of Powers, Judiciary has to exercise considerable restraint to ensure that the surcharged democracy does not lead to a breakdown of the working of the Parliament and the Government. The Judiciary needs to work in the area demarcated by the Constitution. Awareness about rights has grown while correspondingly redressal from the Executive has been reduced. The Executive has its own compulsions – huge population, lack of resources, high inflation, global economic region etc. As a consequence litigation has multiplied. Despite commendable achievements in terms of disposal which I will presently demonstrate, the challenge is and should be for Zero Pendency in which direction a lot needs to be done.

Today, the crisis of confidence in human institutions has come to the forefront. The deficiency of every institution in tackling the growing and complicated social problems has become a common feature. It is a challenge for every institution. Every democratic institution needs to meet this challenge. The viability of judicial institutions depends upon their acceptability by the people. When the viability of the system gets into disrepute and ultimately the system becomes less and less useful to the community, the challenge lies in rejuvenating the system by restoring its credibility and people’s faith in it. Thus, the foremost challenge to the

Judiciary today is viability of the system. Citizens approach the Court only when there is confidence in the system and faith in the wisdom of the Judges. This is where the Public Trust doctrine comes in. The Institution stands on public trust.

 I am an optimist. I do not share the impression that judicial system has collapsed or is fast collapsing. I strongly believe and maintain that with all the drawbacks and limitations with shortage of resources and capacity, we still have a time-tested system. This is no justification to discard the system by giving it bad name. Judiciary has performed a commendable job, which is indicated by the Status Report. Before reading the statistical data, let me say that there is a need to highlight that all the stakeholders are accountable for maintaining and achieving standards of Court Excellence. The general tendency is to put the entire blame on the Judges.

The executive including the police and the Bar have an important role to play in expeditious disposal of cases. There is a backlog of cases, however, it is not as big as is sought to be projected. Please note that 74% of the cases are less than five years old. The focus: expeditious disposal of 26% of cases which are more than five years old i.e. “Five plus free” should be the initiative.

CONCLUSION :

B. R. Ambedkar delivering a speech to a rally ...

Image via Wikipedia

India is an aspirational democracy. It is the shared idea of India to emerge from Society which has individuals of diverse ideologies, cultures and religious denominations. We must, therefore, identify common strands that will bind us, as one nation and one people. Unless this is done we cannot build a modern and strong India. In the hierarchy of values, judicial integrity is above judicial independence. Judicial accountability needs to be balanced with judicial independence. I would request the Bar as well as eminent jurists to deliberate upon constitutional concepts such as Judicial Independence and Judicial Accountability. We, the Judges, do not mind a studied fair criticism. However, as an advice to the Bar please do not dismantle an Institution without showing how to build a better one. Please remember “When an Institution No Longer matters, we no longer matter.”

Will politicians understand hunger by experimenting with fast?

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.

http://timesofindia.indiatimes.com/india/Will-politicians-understand-hunger-by-experimenting-with-fast/articleshow/10034539.cms

Rights & wrongs of vigilantism

Supreme Court of India

The Supreme Court’s judgment this month, which struck down the state’s authority to raise armed vigilante groups to counter Maoists, has prompted criticism. But did the apex court have any option?

Uttam Sengupta IN THE TRIBUNE

THE Supreme Court earlier this month declared as ‘unconstitutional’ the temporary recruitment and arming of tribal youth. The ruling was clearly unexpected and the Union Home Minister , while refraining from commenting on the decision, announced that he would have to discuss the issue with the Chief Ministers since it concerned not just Chhattisgarh but nine other states as well. According to reports in the media, both the Union Government and the Chhattisgarh government are preparing to file a petition for reviewing the decision.

The ruling has indeed put the government in a fix. After the apex court’s ruling, the entire force and structure of the SPOs has become illegal. The government would not only have to disband and disarm the SPOs in the shortest possible time, it would also have to stop paying them the token honorarium, ranging from Rs 1,500 to Rs 3,000 a month. Many of these SPOs, who have acted as the “eyes and ears” of the police in Maoist affected districts, may , in desperation, even cross over to the ‘enemy’ and share information and intelligence that they may have gathered as SPOs. Others may refuse to return the firearms given to them, supposedly to defend themselves.

A Superintendent of Police at Raipur was quoted as exclaiming in dismay, “ How do you tell them they cannot carry a weapon ? After all, they have been fighting the Maoists for long. They have been targets and could get killed anytime.” Both the Union Home Minister and the Chhattisgarh government acknowledged that the ruling had come as a major setback to anti-Maoist operations.

How special?

The dictionary defines ‘special’ as ‘uncommon’. And an ‘officer’ is of course a person who commands authority and holds an office. But in independent India, the SPOs, numbering over 70,000 this year and spread across nine states, are neither special or equal to policemen and nor are they officers, for reasons that will become clear later in this write-up.

The antiquated Indian Police Act ( IPA) of 1861 first provided for the appointment of SPOs. If there was an apprehension of rioting or any breach of peace and the regular police force was found to be inadequate to cope with the situation, any police inspector could apply to the court for permission to appoint a specified number of people as SPOs for a temporary period of time.

This allowed the colonial government to maintain a loyal band of ‘bonded’ people , it could fall back on in times of emergency. The provision was also used to reward police informers from the secret fund. The institution was apparently found to be convenient and has been in the statute books since then. Intervention by the Supreme Court of India actually prompted the Chhattisgarh government to enact its own Act, Chhattisgarh Police Act ( CPA) under which it went ahead to appoint 6,500 SPOs.

Those who have visited police camps in Maoist-affected states would have come across these SPOs. Young men or boys in their late teens, wearing ill-fitting uniforms, they generally appear even more scared than the visitors to their camps. They should have been far away from the war-zone, singing love songs and wooing soul-mates, raising families and pursuing their dreams. But here they are huddled like cattle in barracks with no space to stand or walk. The available space is generally occupied by folding cots and the ‘officers’ are forced to roll over cots to reach their own.

They are required to man the watch-towers and crouch in bunkers. They usually lead the security forces during Long Range Patrols, carefully watching out for landmines or sniper-fire. They do the night shifts and of course, as members of a disciplined, uniformed force, they are required to clean the barracks, toilets, fetch water, work in the kitchen as part of daily chores, acutely conscious that their lives can be cut short at any time. Officers indeed.

Criticism

Still the judgment has come in for considerable criticism. While Congress leaders have been understandably silent on the issue, BJP leaders have made no secret of their disappointment, describing the judgment as dangerous. The Supreme Court, it was insinuated, has gone a little overboard in striking down a seemingly reasonable and valid administrative arrangement. The ruling smacked of a political and ideological bias and would be an impediment to good governance, commented an editorial. It was a setback for anti-Maoist operations and would make it tougher for governments and police to enforce law and order in Maoist strongholds, it was eloquently argued.

Others frowned on the judgment that waxed eloquent on an “amoral political economy”, prevailing inequalities in society and the ‘corrupt social and state order’. The Supreme Court’s “lecture” reminding the state of its responsibility to ensure security to all citizens and prevent emergence of great disaffection also did not go down too well. The more charitable of the critics pointed out that the comments made by the Supreme Court were unnecessary and not really relevant. Others bitterly questioned whether it was the court’s business to quote from literature, philosophy and economic treatise and serve a sermon on morality.

The debate is not really central to the issue. The more relevant question is whether the apex court really had an option but to strike down the recruitment of SPOs ? The court has been deliberating on the case for nearly four years and quoted equally extensively from the affidavits filed by both the Union government and the state government in its judgment. For good reason, the critics have refrained from citing these passages from the judgment.

The Union government and the Chhatisgarh government, one also suspects, were far too confident and, therefore, casual about the case. The petition, after all, was filed way back in 2007 by “ Maoist sympathisers” and outsiders like Nandini Sundar and Ramchandra Guha. The apex court had passed a series of interim orders, had asked Chhattisgarh to vacate the schools occupied by security forces and directed the National Human Rights Commission to report on the ground situation. It had also ordered that the SPOs should be recruited strictly in accordance with the law and had refused to impose an interim ban on the recruitment. That possibly convinced both New Delhi and Raipur that the apex court was not inclined to strike at the edifice so painstakingly built by them.

The defence

The affidavit of the Chhattisgarh government claimed that there was an acute shortage of security personnel in the state. While the state required a minimum of 70 battalions to take on the Maoists, it had only 40 battalions at its disposal. Worse, 30 of them were central forces comprising “outsiders” who are neither familiar with the local terrain nor with the local dialects. That is why, it was claimed, it was necessary to recruit local, tribal youth as “guides” and “interpreters”.

The affidavit then argued that the tribal youth had actually volunteered to fight the Maoists. They had been victims of Maoist violence and hence they wanted to avenge the loss of lives and property their families had suffered.

The same affidavit then stated that the tribal youths were armed because they were soft targets and were vulnerable to attacks by Maoists. Arms were given to them in “self-defence”.

At some point, however, they seemed to discard the ‘self-defence’ explanation. It had become necessary to arm the tribal youth, stated one of the affidavits, because the Maoists had also raised local militias with intimate knowledge of the local terrain and the people. It was important, therefore, to raise a “force multiplier” with equally intimate knowledge of local dialects, terrain and customs.

It went on to argue that there was nothing illegal about the recruitment of SPOs since it was being done under a legislation passed by the state legislature and also provided in the Indian Police Act.

The affidavit by the Union government endorsed the claim and asserted that the SPOs played a crucial role in maintaining law and order, which, it pointedly stated, was a state subject. The Union of India claimed to have a limited role to play in the recruitment of SPOs. It merely fixed the upper ceiling of SPOs in each state, primarily because it bore 80 per cent of the expenses incurred on the SPOs. Thereafter, it had only an advisory role. The recruitment, training and deployment were responsibilities of the respective state governments.

The questions

The Supreme Court wanted to know the qualifications required for recruitment as SPOs, the kind of training imparted to them, how and when were they discharged and what kind of protection has been offered to them by the state. It also asked what kind of control the state exercised over the SPOs and what could it do if the SPOs refused to be disarmed whenever ordered ?

The affidavit admitted that the SPOs were barely literate. Pointing out that the law was silent on minimum qualification for SPOs, it added that preference was given to those who have passed standard five in school. In other words, they would not be eligible even for appointment as police constables, which requires them to pass standard eight.

It admitted that no training is given to the SPOs till they completed at least one year in “service”. Then also it was at the discretion of the Superintendent of Police. Later, a fresh affidavit claimed that a training module had been drawn up for the SPOs and they were being schooled in “ Human Rights, the Indian Penal Code, the Criminal Procedure Code and Forensic Science etc.” among other classes.

The Chhattisgarh Police Act made it clear that the SPOs are to be recruited on a purely temporary basis and they can be terminated at any time without assigning any reason. But the same Act also makes it clear that the SPOs would ‘always’ be deemed to be on duty and they could not take up any other assignment.

There was no answer to the obvious question, namely what prevented the state government from recruiting local tribal youth as regular policemen and training them.

The two governments also missed the irony. While they had failed to educate the tribal youth, they saw nothing wrong in using them as “cannon fodder” in the fight against Maoists. The state, exclaimed the Supreme Court Bench, should have been distributing books to them, not guns. Also paradoxical is the claim to train “in two months” the barely literate youth in complex laws and forensic science.

The government was also clearly tempted to take shortcuts. While Chhattisgarh paid Rs 3,000 p.m. to the SPOs, several other states apparently paid much less. Raising a regular police force would have called for a much higher salary payment and a lot more investment on their perks, pension and training. The principle of “equal pay for equal work” does not seem to impress the government. But the affidavits insisted that the SPOs were subject to the “ same discipline and the same chain of command” as applicable to the regular police force.

Indeed, the Chhattisgarh Police Act specified that the SPOs would be responsible for preventing crime, preserving internal security, maintaining public order, enforcing the law, providing security, providing public property, detect offences and arresting offenders.

It comes as no surprise, therefore, that the Supreme Court would be horrified at the brazen bid of the state to raise armed, vigilante groups that operate under the veneer of state patronage. The illiterate or the barely literate tribal youth, sandwiched between the Maoists on the one hand and the police on the other, may have had no option but to accept the ‘generous’ offer of the state, howsoever unfair, uncertain, unequal and humiliating.

But can the state really get away by treating citizens in such a cavalier manner ? The shameful and embarrassing conduct of the state has been redeemed somewhat by the ruling of the Supreme Court. It remains to be seen if our elected governments redeem themselves.

Neither special nor officers

  • Number : 70,000
  • Spread over : 9 states
  • Recruitment : Temporary
  • Discharge : Any time without assigning any reason
  • Training : Nil or farcical
  • Protection : Uncertain
  • Discipline : Same as the police
  • Duties : Same as policemen
  • Salary : `1,500 to `3,000 p.m.

The rationale

  • The state cannot push illiterate, untrained youth to fight
    insurgency
  • It is the state’s duty to protect citizens. Civilians cannot be armed to defend themselves.
  • Armed vigilante groups can turn into a Frankenstein
  • Tribal youth have a right to education, liberty and choice
  • Equal work should be compensated with equal pay
  • The cycle of violence has not abated. So, the problem lies elsewhere.

 http://www.tribuneindia.com/2011/20110717/edit.htm#1

Talk of judicial overreach is bogey: Supreme Court

Supreme Court of India

THE HINDU

Rejecting the criticism of judicial activism, the Supreme Court has said the judiciary has stepped in to give directions only because of executive inaction what with laws enacted by Parliament and the State legislatures in the last 63 years for the poor not being implemented properly. A Bench of Justices G.S. Singhvi and A.K. Ganguly pointed out that laws enacted for achieving the goals set out in the Preamble to the Constitution had been extremely inadequate and tardy, and the benefit of welfare measures enshrined in those legislation had not reached millions of poor, downtrodden and disadvantaged sections, nor did efforts to bridge the gap between the haves and have-nots yield the desired result.

Writing the judgment in a case related to sewerage workers, Justice Singhvi said: “The most unfortunate part of the scenario is that whenever one of the three constituents of the state i.e. the judiciary issues directions for ensuring that the right to equality, life and liberty no longer remains illusory for those who suffer from the handicaps of poverty, illiteracy and ignorance, and directions are given for implementation of the laws enacted by the legislature for the benefit of the have-nots, a theoretical debate is started by raising the bogey of judicial activism or overreach.”

The Bench pointed out that the orders issued for the benefit of weaker sections were invariably challenged in the higher courts. In a large number of cases, the sole object of this exercise is to tire out those who genuinely espouse the cause of the weak and the poor. Justifying the directions issued by the Delhi High Court for protection of sewerage workers on a public interest litigation petition, the Bench said: “The superior courts will be failing in their constitutional duty if they decline to entertain petitions filed by genuine social groups, NGOs and social workers for espousing the cause of those who are deprived of the basic rights available to every human being, what to say of fundamental rights guaranteed under the Constitution.”

The Bench clarified that it deemed it necessary to erase the impression and misgivings among some people that the superior courts, by entertaining PIL petitions for espousing the cause of the poor who could not seek protection and vindication of their rights, exceeded the unwritten boundaries of their jurisdiction. The judges said it was the duty of the judiciary, like that of the political and executive constituents of the state, to protect the rights of every citizen and ensure that everyone lived with dignity.

Beijing statement

Quoting the judiciary’s objectives as mentioned in the 1995 Beijing statement, the Bench said these would include ensuring that all persons were able to live securely under the rule of law; promoting within the proper limits of the judicial function the observance and attainment of human rights, and administering the law impartially among persons and between persons and the state.

http://www.thehindu.com/todays-paper/tp-national/article2228591.ece

Release 5 million tonnes of foodgrains: Supreme Court

J. Venkatesan in THE HINDU

To prevent starvation deaths and malnutrition

‘In 150 poorest districts, malnutrition is very intense’

‘The position of foodgrains stocks is extremely good’


New Delhi: To ensure that no starvation death takes place and people are saved from malnutrition as far as possible, the Supreme Court on Saturday directed the Centre to release five million tonnes of foodgrains immediately for distribution in 150 most poverty-stricken districts or other poorer segments in the country.

Though it was a holiday for the court, a Bench of Justices Dalveer Bhandari and Deepak Verma held a special sitting and passed the order, considering the urgency and gravity of the matter. The Bench heard Gopal Subramaniam, Solicitor-General; Mohan Parasaran, Additional Solicitor-General; Colin Gonsalves, senior counsel for the petitioner (People’s Union for Civil Liberties), and other counsel for the respective parties and passed the order. The Bench said: “Admittedly, in the 150 poorest districts of India, the problem of malnutrition is very intense and is related to the inadequacy or lack of food in those areas.

The Union of India must provide adequate foodgrains for these 150 poorest districts, on a priority basis.

“A number of cases of malnutrition and starvation are reported from time to time. Subsidised food is really meant for this section of our society. Fortunately, the position of foodgrains stocks in our country is extremely good. Mr. Parasaran, ASG, submits that as on April 1, 2011 there are 44 million tonnes of stocks. Perhaps, never before have foodgrains stocks been so high. The bumper crop of this season will further improve the situation of existing stocks. Even after keeping adequate foodgrains for emergency or unforeseen circumstances, we would still have huge stocks in our godowns.”

Further, it said: “Millions of tonnes of foodgrains are lying in the open for years because of inadequate storage capacity. Admittedly, about 55,000 tonnes of foodgrains rotted in Punjab and Haryana. A very large chunk of foodgrains were destroyed in the recent Punjab fire because the foodgrains were lying in open. In this background, the 5 million tonnes of foodgrains which the Union of India has already undertaken to additionally allocate, must go to the most vulnerable sections of our society and the parties are in total agreement about this proposition.

“Looking to the enormity and gravity of the problem, as a one-time measure, it is absolutely imperative in the larger public interest to direct the Union of India to reserve another 5 million tonnes of foodgrains for distribution to the 150 poorest districts or the extremely poor and vulnerable sections of our society. This additional 5 million tonnes of foodgrains would be over and above 5 million tonnes which the Union of India has already undertaken to allocate.

“The estimated population of the country as of March, 2010 is 117.67 crores and according to the office of the Registrar-General, Census, the projected population of India as in 2011 is 119.3 crores (Planning Commission working Group on Population Stabilisation for the 11th Five Year Plan). We see no rationale in not distributing foodgrains according to the estimate of the Union of India. The food allocation should be based on every year’s population estimate as carried out by the Planning Commission or the Registrar-General, in the absence of any official census figure,” the Bench said.

http://www.hindu.com/2011/05/15/stories/2011051555310800.htm

Who has the last word?

Euthansia

Euthansia

PUBLISHED IN THE HINDU

The Supreme Court ruling on the Aruna Shanbaug case, allowing passive euthanasia, has been alternately welcomed and criticised by people across the country. Legal experts and medical activists share their thoughts on the implications of the landmark judgement.

For dignity in death

PADMA PRAKASH, medical activist and writer, feels that the Supreme Court has taken a narrow view of an issue that has medical, ethical and social ramifications.

The case of Aruna Shanbaug before the Supreme Court has brought the subject of euthanasia into public debate once again; but allowing for the first time, passive euthanasia in specific circumstances. The Court has ruled, pending legislation, that passive euthanasia is permissible, and brain-dead patients need not be kept alive by support systems or artificial feeding. However, 60-year-old Aruna Shanbaug, having spent 37 years in a hospital bed, who is neither in coma nor brain-dead, may not be allowed to die.

Hailed as groundbreaking, the judgement takes a disappointingly narrow view of an issue that has ramifications across the medical, ethical and social dimensions of society. Primarily engaged with the question of who was Aruna’s ‘next friend’ who may decide to withdraw her life support, the court favoured the hospital staff who have looked after her all these years and rejected the plea of the journalist Pinki Virani who had sought permission to withdraw Aruna’s life support. Since the hospital wanted to keep Aruna alive, the Court upheld its wishes. If later the hospital wishes to withdraw life support to Aruna, it must apply to the court. Extending this logic, the Court has allowed that caretakers of those incapable and lying in similar states to seek passive euthanasia on the patients’ behalf in specific cases following an application to the high courts.

Cost of care

Curiously, the judgement does not touch upon the cost of providing such care. Interestingly, in the Airedale case (1993) in England that went before the House of Lords — quoted at length in the Aruna ruling — a noted member pointed out, “The large resources of skill, labour and money now being devoted to Anthony Bland [the PVS patient whose life support was sought to be removed] might, in the opinion of many, be more fruitfully employed in improving the condition of other patients, who if treated may have useful, healthy and enjoyable lives for years to come.” Such a concern would be significantly more relevant in India, given that our overcrowded public hospitals have shrinking budgets.

In Belgium, for instance, where euthanasia was legalised in 2002, authorities have to ensure that poor patients do not ask to die only because they cannot afford treatment. In the Netherlands too, which was the first country to legislate on euthanasia, the premise is that the patient has received at all times adequate treatment and care including palliative care. Switzerland does not allow euthanasia, but it does permit physician-assisted suicide in certain conditions. In these countries, only about 35 per cent of such deaths occur in hospitals and end-of-life care is provided at home. Demographics too has weighed in — with an increasing number of people in the pension bracket, the state social welfare and health systems in many European countries are disinclined to support unnecessary prolongation of lives on life support leading to support for legalising euthanasia.

In Japan, where 80 per cent of deaths occur in hospitals, two local courts in separate cases had allowed voluntary euthanasia; but few have subsequently sought euthanasia. Some years ago Japan set up a “bioethics SWAT team” that is on call to help families/caretakers of patients on life support decide whether they may continue such care or withdraw it. The Northern Territories of Australia, where medicare or support is not easily available, passed a short-lived law allowing voluntary euthanasia, subsequently overturned. Singapore does not allow euthanasia, though there have been periodic demands, especially with the increasing technologisation of medicare. This is true in Turkey too, where availability of sophisticated technologies in medicine has revived the debate.

Access to care

Overall, the determination of whether euthanasia must be permitted or legalised is dependent on availability of care, the status of that care, and the social and economic constraints in providing such care. In sum, the premise for even considering euthanasia is the availability and access to care. The Supreme Court in the Aruna case has chosen not to engage with these issues. Even in stipulating the review team that must examine and comment on every plea made to the high courts for passive euthanasia, there is an underlying assumption that social, financial or psychological state of the caretakers are not of import.

It is also assumed that all such cases will be in hospitals. That is of course not the case. Take the case of my domestic help and general factotum, who, for years looked after a paralysed husband, whose condition progressively deteriorated — through neglect — to a near vegetative state. Hospitals had turned him away because “there was nothing they could do”. She would strap him down on the charpoy while she worked in several houses throughout the day; and one day, the cot overturned, he was trapped underneath for hours and died in a hospital that finally admitted him. Such cases abound — increasingly in villages too where the young migrate to towns and there are no able caregivers.

There is growing evidence that access to healthcare is shrinking; a circumstance that will only mean a large number of those who ought to be in hospital under supervised care will be in homes with few resources for end-of-life care. And, clearly, outside the reach of the medical system. If denying end-of-life treatment and care were to be considered passive euthanasia, then as a country we have certainly been practising it for long. Whatever the future direction the issue takes, it must be obvious that without expanding access to healthcare and providing end-of-life and palliative funded care, legislating to allow euthanasia is something of a mockery.

Email: padma@esocialsciences.com)

Condemned to a painful life

PINKI VIRANI on what compelled her to be the “voice” of a woman in permanent vegetative status for 37 years…

On why she went to the Supreme Court with a passive euthanasia plea

I have known Aruna since 1982. The book, Aruna’s Story, was published on her 50th birthday following one year of research and interviews with relatives, hospital authorities of that time, finding court and police records, the shocking unearthing of the fact that the sodomiser was never arrested for rape — because not one doctor or nurse from the hospital came forward to file a case — and so he walked free after a mere seven years in prison. I also travelled to her village in Karnataka to spend time in her home, spoke with relatives in several cities and the man she was to marry. It became clear that she would never have wanted to “live” with such lack of dignity.  So I asked about physiotherapy and was told the nurses had it stopped, which is why her body had atrophied the way it had. I organised a complete medical check-up. This was prevented by hospital doctors just before the ambulance could pick up Aruna for her state-of-the-art analysis in a private hospital. By her 60th birthday it was clear that Aruna would never receive appropriate medical care in the form of drugs and pain-killing dosages. Aruna had been denied a life of dignity for 37 years; she needed – at the very least — dignity in her death. So I requested the Supreme Court to define “life with dignity” as enshrined under Article 21 of the Constitution of India. And slowly taper-out the feed put through her pipe; this would have been done as per international norms set for vegetative patients with the inclusion of calibrated pain-killers.

Reaction to the Supreme Court ruling

Because of Aruna Shanbaug — this tragic woman who has been denied the choice because of those who profess to ‘love’ her by touting her bedsore-less agony – no Indian hereinafter need suffer the way she does. The Supreme Court has permitted Passive Euthanasia; its carefully prescribed parameters can be read on its website where the judgement has been uploaded. Readers could also look to see if her tormentors have been recommended they approach the High Court should they “change their mind”. Aruna’s other gift through this same landmark judgement is that there could be a boost in organ donations, once again positively helping millions of Indians. The judgement provides clarity on the definition of brain-death. Healthy vital organs are wasted while arguments rage over the medico-legal definition of brain-death.

Aruna’s current condition

Incurable. 62 years old. Locked in a room. Felt no direct sunshine for over three and a half decades. A feeding pipe directly to stomach. Prone to diarrhoea, catheter not used.  Finger nails grow into palms.  As a patient in a permanently vegetative state, does not have favourite foods, music, people and does not smile in reaction to external influences. Largely brain-dead due to massive brain-stem injury. Cortically blind. Cannot speak. Or walk. A brittle skeleton which is catatonic or shrieking. In acute pain, no medicines given. This is what her care-givers have condemned Aruna Shanbaug to; a very slow, excruciatingly painful, death.

National Award-winner Pinki Virani, 52, is author of four best-sellers including Deaf Heaven which is currently among international contenders for this year’s prestigious Impac Dublin Literary Prize.

AS TOLD TO R. KRITHIKA)

Judicially crafted remedy

The verdict is a commendable one because for the first time we have guidelines and a procedure outlined for legitimate use of passive euthanasia, feels Supreme Court advocate GOPAL SANKARANARAYANAN.

On April 15, 1989, the scene of a routine football match at Sheffield between the clubs of Liverpool and Nottingham Forest led to one of the worst ever stadium tragedies in history. Due to ineffective police control, many more Liverpool fans entered the venue than could be accommodated, which led to a stampede and the subsequent deaths of 95 people, with as many as 767 others suffering injuries. One of those severely injured was 18-year-old Tony Bland, who suffered punctured lungs and crushed ribs, which cut off oxygen supply to the brain and rendered him a vegetable.

Bland’s own story would have been unremarkable, were it not for the fact that as he continued in what is known as a ‘Persistent Vegetative State’, being kept alive only by artificial nutrition and hydration with no reasonable hope of recovery, his family and doctors sought to withdraw all such support and allow him to die. Although the legal position till then had allowed such a withdrawal only in limited cases where infants were concerned, the legal sanction for the request on Bland’s behalf was finally accorded by the House of Lords in Airedale NHS Trust v. Bland, handed down in 1993. On March 3, 1993, after nine days without food and water, Tony Bland became the 96 th victim of the Hillsborough disaster.

Landmark judgment

Unprecedented as the approach of the English courts was, thanks to the ruling in Bland, in the years since then, close to 50 cases of such deaths have been sanctioned in the UK, where people in vegetative states have died with apparent dignity and little or no distress.

This judgment, and similar trends internationally have come to form the foundation of the Supreme Court’s ruling last week in the case of Aruna Shanbaug, an unfortunate nurse who was brutalised and raped by a sweeper 37 years ago in Bombay — an act where a dog chain around the victim’s neck cut off the oxygen supply and gave her the same vegetative state of Bland — and who till date has been under the care and support of the KEM Hospital where she had been employed. Journalist and author Pinki Virani preferred a petition on behalf of Shanbaug and sought the Court’s intervention to direct the Hospital to stop feeding the patient and allow her to die peacefully.

The Court draws distinctions between active and passive euthanasia (killing and letting die) and recommends that the latter be permitted in certain circumstances. However, of equal importance is the question of who would decide whether life support ought to be withdrawn in a particular case. It is this question that gained prominence, with the Court declaring that it was the hospital staff that had been the family for Shanbaug and not Virani. As the hospital staff clearly wanted Shanbaug to live, the request by Virani for passive euthanasia was rejected.

While the attempt to commit suicide continues to be an offence on the statute book (one of those rare instances where the mere attempt alone can be penalised, but not it’s successful execution), and its validity has been upheld by the Supreme Court in 1996, the present judgment suggests that as the provision has become anachronistic, it is time for Parliament to consider deleting it.

Guidelines and safeguards

In conclusion, the Bench also issued guidelines for the purpose of processing applications for passive euthanasia, expressing its concern that without such safeguards, many unscrupulous elements may take wrongful advantage of the legal position. As a result, all such applications may be made to the High Courts, and three-member Committees of doctors would render their opinions on the cases, which would be considered along with the wishes of the families and near relatives before a decision is taken.

The decision of the Court is a far-reaching and commendable one, and it has been many years coming. It clarifies the limits of Section 306 of the Penal Code which criminalises the abetment of suicide and poses a penal threat to doctors who wish to withdraw life support to patients like Shanbaug. The rationale for this is the fact that in letting a patient die, there is no attempt to terminate his or her natural course of life (as would be the case with active euthanasia), but only removing the facility by which the natural course of life is being artificially extended. In the months to come, may be other families who no longer harbour the hope of meaningful life returning to their dear ones would avail of this judicially crafted remedy. It is interesting to note that this piece of judicial craftsmanship comes from the pen of Justice Markandeya Katju, who is one of the more strident critics of judicial activism.

But as always, as a grim reminder of the limits of the law, and the limitless machinations of the living world, there is one fact: In March 1997, eight years after he was also rendered vegetative by the events at Hillsborough, Andrew Devine became aware of his surroundings and started communicating with his family. After the judgment in Bland’s case, Devine’s solicitor had said, “Mr. and Mrs. Devine sympathise with the Blands but their attitude is not the same. They hope that one day Andrew may recover some of his faculties.”

Who decides?

Why was the customary ‘Best Interests’ test, where the court should be guided by the interests of the patient alone and not of others, ignored in the case of Aruna Shanbaug, asks JAYNA KOTHARI.

Aruna Shanbaug has changed the course of the right to die debate in India. While the Supreme Court rightly rejected the petition seeking permission to remove Aruna’s feeding tube, it went a step ahead permitting passive euthanasia for persons in a permanent vegetative state if it is in their best interests and laid down guidelines for it.

Who decides what is in the patient’s best interests when she is in a permanent vegetative state? Justice Katju held that it was in the Court’s power as ‘Parens Patriae’ to decide what is in the best interests of the patient.

The common law doctrine of ‘Parens Patriae’ has been generally applied in situations where the State must make decisions to protect the interests of persons who are unable to decide for themselves such as minors and persons who are mentally incompetent. Two tests for deciding the ‘Parens Patriae’ jurisdiction on behalf of mentally incompetent persons have been evolved — the ‘Best Interests’ test and the ‘Substituted Judgment’ test. The ‘Substituted Judgment’ test requires the court to step into the shoes of a mentally incompetent person and attempt to make the decision, which the person would have made if she was competent.

Interests of the patient

The Supreme Court in the Suchita Srivastava judgment, where the right to continue the pregnancy of a woman with mental retardation was decided, relied on the ‘Parens Patriae’ doctrine encompassing both these standards. In this case, the substituted judgment test was not required as the woman clearly wished to continue her pregnancy. It held that in deciding the ‘Best Interests’ test, the Court should be guided by the interests of the patient alone and not of others, including guardians. In this manner, the Court protected the patient’s autonomy and refused the termination of her pregnancy.

In Aruna’s case, surprisingly, the Court completely ignored this ‘Substituted Judgment’ standard, upheld by a three-judge bench in the Suchita case. It only relied on the Airedale judgment of the House of Lords where the substituted judgment standard was not used and permitted passive euthanasia on a low standard of ‘best interests’ which should be decided by taking the wishes of parents and relatives in mind.

Denial of rights

Such a ruling denies all recognition of the right to autonomy and self-determination of a person although she may be incompetent to consent. Debates on legal capacity of mentally incompetent persons have moved to protection of their legal capacity and not its usurpation under the criteria of ‘best interests’. In the Nancy Cruzan case, the US Supreme Court held that individuals incompetent to consent retained a right to refuse treatment, but that such a right could be exercised by a surrogate decision maker only when there was clear evidence that the incompetent person would have exercised it. Only when such evidence was lacking could the court still invoke this right in certain circumstances under the “best interest” standards.

The Aruna Shanbaug judgment leaves the door open for passive euthanasia by relatives of persons who are severely disabled, sick and the elderly, with no requirement to see if the patient herself would have consented to it. Are we ready for this?

(The author is a lawyer and researcher practising in the Karnataka High Court.)

A celebration of life?

Most of the concerns about the abuse of the law are relevant only if involuntary euthanasia is legalised and not when it is voluntary, says DR. NAGRAJ G. HUILGOL.

There seems to be considerable confusion about euthanasia with the lay people as well as doctors. It was evident while listening to debates on various TV channels in India.

Euthanasia could be voluntary, non-voluntary, involuntary and passive. Patient seeks to die when euthanasia is voluntary; non-voluntary is when a relative seeks euthanasia with appropriate power of attorney. Involuntary euthanasia is an act of intervention without consent or request by the patient or patient’s relatives with a power of attorney. Voluntary euthanasia is the least controversial. Voluntary euthanasia is expression of autonomy of an individual over his or her own body. It is an answer to the clichéd question, ‘whose life is it anyway?’.

Necessary conditions

There are certain prerequisites to be fulfilled before a request for euthanasia can be made. The conditions are: a patient must voluntarily on his/her own initiative, express the desire to die than suffer. The patient’s judgment must not be altered or influenced by illness, medication, social or economic circumstances or depression. The diseases must be terminal, incurable and causing unrelenting suffering. It has to be ensured that the request was done due to lack of adequate resources. Euthanasia should never be linked with organ donation and harvesting for transplants. A set of doctors who are independent of primary care of the patient need to certify that patient is suffering from terminal and incurable illness. An independent psychiatrist should certify that the person is not undergoing severe depression. There should be adequate time for the person to reverse the decision to seek euthanasia after deciding on the same. All these guidelines have ensured that the fear of a slippery slope is far from real.

Legitimate concerns?

There are many concerns besides the abuse of the law — the famous slippery slope. The experience of Dutch and Oregon law have dispelled this fear. There is no evidence of abuse of the provision so far. Some other concerns are the abuse of the provision to reduce healthcare cost, the law acting as a dampener to evolve better therapeutic options and eliminate the less privileged or those who lie on the fringes of society. Most of the concerns are relevant if involuntary euthanasia is legalised and not when it is voluntary. Death is only a pregnant pause in the symphony of life. Good death, in fact, is a celebration of life.

The writer is Chief Radiation Oncologist, Dr. Balabhai Nanavati Hospital, Mumbai.)

Uniting bond

At the hospital where she has spent more than 42 years of her life, Aruna Shanbaug is much more than just another patient, says VINAYA DESHPANDE.

Aruna Shanbaug, now 60, has been a part of King Edward Memorial (KEM) Hospital, Mumbai, for more than 42 years now — first as a nursing student, then as a nursing staff and then a patient who, while lying in permanent vegetative state for more than 37 years, has bound generations of hospital staff.

“Aruna is the bond that unites us. She means a lot to KEM hospital,” KEM Dean Dr. Sanjay Oak is said to have told the Supreme Court during the hearing.

Most of Aruna’s colleagues and friends have retired now. But the memory of November 27, 1973 has not yet faded in their minds.

Work ethic

Before that fateful day, she was a budding professional who wanted to scale new heights. Aruna could not withstand tardy and shoddy work. Her colleagues still tell tales of her impeccable work standards. That was the reason she reprimanded Sohanlal Valmiki, a ward boy at the canine experiment department of the hospital, whom she suspected of stealing the meat that used to be ordered for the dogs. It was the grudge and the ill-will of this man which was to permanently alter Aruna’s life.

“I still remember the day it happened. After the sister-in-charge informed us, matron Beliman and I rushed to the basement. The moment she saw matron Beliman, tears started rolling down her eyes. She was conscious, she wanted to say something. Her lips were moving, but she could not speak up,” says Pramila Khushe, a nurse at the hospital then and Aruna’s senior.

Aruna was strangulated by a dog chain and sodomised by Sohanlal in the basement of the hospital where she had gone to change after her duty. The brutal attack severely damaged her brain. “I remember the day this incident happened, there were many food poisoning cases in the paediatric ward. Children were lined up for treatment. Aruna volunteered to stay longer that day to help. Such was her integrity towards work. She was very committed,” Ms. Khushe says.

“She was a good girl, a good student and a good nurse. She was a disciplinarian. That may also be the reason why she had to face the kind of misery she did,” Durga Mehta, the then matron of the KEM Hospital and a teacher to Aruna, says.

After the incident, a fleet of doctors and neurosurgeons tried to pull her out of the vegetative state. The attack had cut the oxygen supply to her brain and left her cortically blind. She also suffered brainstem contusion injury and cervical cord injury.

“The one who put her through all this pain, went off with a light punishment. But she is still suffering unbearably for his sins,” Ms. Khushe said. Sohanlal was booked for robbery and attempted murder, but not for “unnatural sexual offence”. The hospital authorities probably did not want to register such a case against Sohanlal because they wanted to protect Aruna from the social ostracism considering her impending marriage. He served a sentence of seven years after which he was let off.

“Her parents had already passed away. She had a brother, but he himself was old then. For four-five years after the incident, her niece used to come regularly and feed her. Then probably she got married and never returned,” Ms. Khushe says.

Dedicated

But the man in Aruna’s life stood strong by her for quite a few years in the hope that she would recover some day. He religiously continued giving her physiotherapy. “We used to feel touched every time we saw him come and sit next to her. He used to give her physiotherapy treatment. He served her when she was so helpless! We felt deep appreciation for him,” Ms. Khushe remembers, even as she fought to hold her tears back.

“He was very dedicated towards her. But after a few years, the doctors in the hospital convinced him to move on with his life,” Ms. Mehta says. Since then, it has been the entire KEM staff including the medical, administrative, nursing and para-medical staff, which has been taking care of Aruna. She is introduced to every new staffer as a family member.

The Mumbai corporation tried to shift her to another hospital twice since 1973, but the nurses protested the decision, making authorities revert. For years, the corporation has spent for her treatment and the KEM hospital has stood by this Ward 4 patient.

“She is like a sister to me. I know her since the time I joined this hospital as a student. We are her family and we want her to live. No one else has the right to decide for her. The verdict is the victory of humanity,” Sister-in-charge Vibhawari Winge says, celebrating the Supreme Court verdict.

Across the spectrum

Passive euthanasia was practiced by the ancients, a prime example being Bhishmacharya choosing the time of his death. Ayurveda says that if the treatment cannot provide a person a quality-life then it is better to give no treatment other than palliative measures. Death is not something to be feared. It should neither be accelerated nor delayed but must be treated as a natural process. Thus it would be considered acceptable to remove life support in the case of a terminally ill person with the consent of all involved.

Death is simply the soul giving up an old body and moving on. There is a saying in India, It does not matter how your life has been throughout but the last thought is very important. Hence dignity of death is a very treasured aspect of Hindu life.

Sri Sri Ravi Shankar, spiritual guru, and Founder, Art of Living.

Passive euthanasia is justified. The quality of life is more important than quantity. If a person can think for himself/herself and wants to go, he/she should be allowed to go using passive euthanasia.

Dignity in death is when a person dies while being surrounded by people he/she loves and who love him/her.

N.S. Hema, Founder, The Association of People with Disability and wheelchair-user for 70 years.

Passive euthanasia is a process by which you withdraw supports like general care and feeding so the patient gradually dies due to dehydration. We are trying to induce western standards into the Indian scenario. Euthanasia in our country can be disastrous as we simply do not have the infrastructure to prevent the misuse. The definition of dignity in death is that there is a process in which we expect the patient to die without much pain.

Dr.Devi Shetty, cardiac surgeon.

I don’t agree with euthanasia––passive or active. Everybody has a right to live. No one should be allowed to kill himself/herself or give permission for another person to die. Suffering is not an excuse to take away God-given life. Dignity in death is surrendering to God’s will, being patient and going when He takes you away.

Y.G. Krishnamurty (100 years), Advocate, Andhra Pradesh High Court, with a record 75 years of being a practising lawyer.

http://www.thehindu.com/arts/magazine/article1553065.ece

Emergency, judiciary , polity

Hans Raj Khanna

Image via Wikipedia

Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms which we all cherish and which occupy prime position among the higher values of life. It is” therefore not surprising that those who have an abiding faith ill the rule of law and sanctity of personal liberty do not easily reconcile themselves with a law under which persons can be detained for long periods without trial. The proper forum for bringing to book those alleged to be guilty of the infraction of law and commission of crime, according to them, is the court of law where the correctness of the allegations can be gone into in the light of the evidence adduced at the trial. The vesting of power of detention without trial in the executive, the assert, has the effect of making the same authority both the prosecutor as well as the judge and is bound to result in arbitrariness.

JUSTICE HANS RAJ KHANNA IN HIS DISSENTING JUDGEMENT IN THE ADM JABALPUR CASE 1976

 

Belated admission of grievous wrong by Inder Malhotra IN THE TRIBUNE

RATHER belatedly the media has discovered that in a “recent judgment” a two-member bench of the Supreme Court has declared that the apex court’s 1976 judgment upholding the suspension of fundamental rights for the duration of the Emergency (June 1975-March 1977) was “erroneous”. This admission ought to have come much, much earlier, but let that pass. Incidentally, Justice Aftab Ahmed and Justice Ashok Kumar Ganguly made their welcome pronouncement while reviewing and partially reversing an earlier verdict.

On May 5, 2009, the court had confirmed the death sentence passed on a man convicted of murdering four members of a family in 1992. Commuting this sentence to life imprisonment, Justice Ganguly, who wrote the unanimous judgment, argued that the instances of “this court’s judgment violating the human rights of the citizens may be extremely rare but it cannot be said that such a situation can never happen.” In this context he added: “We can remind ourselves of the majority decision of the Constitution bench of this court (in the Emergency case) … There is no doubt that the majority judgment violated the fundamental rights of a large number of people in this country”.

Understandably, the two Justices have expressed themselves with judicial restraint. But the story of the Supreme Court’s conduct during the Emergency is chilling. Like the other institutions expected to underpin democracy, the highest judiciary also caved in. The five-member Constitution bench’s decision, by a majority four to one, to uphold the virtual elimination of fundamental rights for the duration was nothing short of horrendous.

Chief Justice A. N. Ray had presided over the bench. His elevation was highly controversial because to appoint him as CJI, Prime Minister Indira Gandhi had superseded three of his senior colleagues amidst countrywide protests. This had happened in 1973 immediately after the apex court’s epoch-making judgment — by a majority of seven to six — ruling that Parliament could amend any part of the Constitution but could not alter its “basic structure”. Interestingly, this judgment was a tangled skein of conflicting opinions. So much so that the seven judges who prevailed in relation to an issue were not exactly the same that upheld or rejected another contention. Broadly, the picture was that six judges, headed by the then chief justice, S. M. Sikri, and including the three that were later superseded, were against the government’s contention while the remaining six, of whom Ray was the most senior, were wholly for the government. Justice H. R. Khanna provided the balance, agreeing with the first set on some points and with the second on others.

Justice Khanna was still on the bench when three years later the apex court heard arguments on the legality of the suspension of fundamental rights under the Emergency proclamation. From the word go it was clear that all the judges except Khanna were inclined to uphold the government’s view. At one stage, the dissenting judge asked Attorney-General Niren Dey, whether there was a remedy if a policeman told a citizen that he was going to be shot for no rhyme or reason. Dey replied: “My conscience revolts, My Lords, but under the law there is no remedy.” There was eerie silence in the court’s chamber.

It is also noteworthy that when the time came for CJI Ray to retire, Justice Khanna was the most senior of the possible successors. Needless to add that he was passed over and Justice M. H. Beg, a clone of Ray, appointed CJI. Justice Khanna resigned, of course. The crowning irony is that his dissenting judgment of 1973 is today the law of the land. For, the 44th Constitution amendment has made sure that any future declaration of the Emergency cannot interfere with fundamental rights to life and liberty under Articles 20 and 21.

By a curious coincidence, the Emergency is in the news again for another reason that is essentially trivial. To celebrate its 125th anniversary, the AICC published a volume on the Indian National Congress’s contribution to the making of the Indian nation. A mild criticism of Sanjay Gandhi about the “authoritarian” way in which he enforced such policies as family planning and slum clearance almost instantly touched off a cacophony that often made no sense. Senior BJP leader and former Deputy Prime Minister L. K. Advani has now given a totally different twist to the discussion. Since copies of the AICC publication are not yet available, one has to take Mr. Advani’s word that it has devoted only two paragraphs to the Emergency. His grouse is that the second paragraph on the subject is “a ridiculous attempt to make Sanjay Gandhi a scapegoat” for all the misdeeds such as “mass arrests, suspension of fundamental rights, etc”, that the country had to suffer. For these he lays the blame squarely on Indira Gandhi.

This is not all. Mr Advani compares the Emergency era in India to the Nazi rule in Germany. This surely is ridiculous, to borrow the expression from him. Ugly though the Emergency undoubtedly was, during it Delhi wasn’t like Berlin under Hitler, Moscow under Stalin, Beijing under Mao or Islamabad under Zia.

Two factors seem to have affected the BJP leader’s judgment. First, the Congress general secretary Digvijaya Singh’s overblown rhetoric against the Sangh Parivar describing RSS leaders as “Nazis”; and, secondly, that while the Gandhi dynasty controls the Congress and rules the country, there are at least two Gandhis in the BJP ranks, too.

Tragically, we Indians are disinterested in history, and when in need of interpreting history we tend to do so in a partisan or palpably esoteric manner. Any dispassionate person can discern that over the last 35 years the perspective on the Emergency has undergone a major change, regardless of the fact that more than half the Indians were born after that hammer-blow. They know little about the Emergency and care even less. Remarkably, an ever-increasing proportion of even those who used to hold Indira Gandhi alone responsible for what went wrong now accept that if she sinned, politically speaking, she was also being sinned against. Some are doubtless implacably hostile to her. However, premier sociologist Andre Beitelle, eminent historian Bipan Chandra and prominent scholar Ramchandra Guha are agreed that the Emergency was “scripted jointly by Indira and J.P.”, as Jayaprakash Narayan was popularly known. According to Professor Beteille, the “anarchy” that J.P. promoted and the “abuse of power” by Indira and her younger son, Sanjay, were “but two sides of the same coin”.

ADM JABALPUR CASE