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

PUBLISHED IN THE INDIAN EXPRESS

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

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

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

PART 1:

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

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

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

PART 2:

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

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

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

PART 3:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jai Hind!

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Leaving a light, Justice Krishna Iyer passes away

KRISHNA_IYER_4127e

Eminent jurist and former Supreme Court judge, Justice V. R. Krishna Iyer, passed away at a private hospital in Kochi around 3.30 p.m. on Thursday. He died due to renal and cardiac failure, hospital sources said. He was hospitalised for a fortnight.

Justice Iyer, known for his forthright views, turned 100 recently. He was sworn in as the judge of the Supreme Court on July 17, 1973 and retired at the age of 65 on November14, 1980.Born to a leading criminal lawyer V.V. Rama Ayyar in 1915 in Thalassery, Justice Iyer had his education at the Basel Mission School, Thalassery, Victoria College, Palakkad, Annamalai University and Madras Law College. After starting legal practice in 1937 under his father in the Thalassery courts, he used to appear for workers and peasants in several agrarian struggle-related cases in his early years of practice.

He became a member of the Madras Legislative Assembly in 1952. He held portfolios such as law, justice, home, irrigation, power, prisons, social welfare and inland navigation in the first Communist government in Kerala headed by E.M.S. Namboodiripad that came to power in 1957. He was instrumental in passing several pieces of people-oriented legislations during his tenure as minister in the Communist government.

He resumed his legal practice in August 1959 and threw himself into the legal profession after he lost the 1965 Assembly election. He was appointed a judge of the Kerala High Court on July 2, 1968. He was elevated as Judge of the Supreme Court on July 17, 1973, and retired on November, 14, 1980. He served as a Member of the Law Commission from 1971 to 1973.

His landmark judgments include the Shamser Singh case which interpreted the powers of the Cabinet vis-à-vis the President, Maneka Gandhi case which gave a new dimension to Article 21, Ratlam Municipality case, and Muthamma’s case. He had pushed for reformative theory, in contrast to deterrence theory in the criminal justice system. He also received brickbats for granting conditional stay on the Allahabad High Court verdict declaring former Prime Minister Indira Gandhi’s election to the Lok Sabha void.

In 2002, Justice Iyer was part of the citizen’s panel that inquired into the Gujarat riots along with retired justice P.B. Sawant and others. He was conferred with Padma Vibhushan in the 1999. He had unsuccessfully contested to the post of President against Congress nominee late R. Venkitaraman in 1987. He also headed the Kerala Law Reform Commission in 2009. He has to his credit around 70 books, mostly on law, and four travelogues. Wandering in Many Worlds is his autobiography. He has also authored a book in Tamil, Neethimandramum Samanvya Manithanum.

He has been actively involved in social and political life after his retirement, almost till a few weeks when ill-health and advancing age took their toll on him. His 100th birthday was celebrated in Kochi last month and a number of programmes were organised by members of the legal fraternity, citizenry and his friends and well-wishers to felicitate him. Justice Iyer’s wife predeceased him. He is survived by two sons.

The body of Justice Iyer will be taken to the Rajiv Gandhi Indoor Stadium, Kadavanthra, on Friday, where members of the general public will be able to pay homage to the departed jurist, said M.G.Rajamanikyam, Ernakulam district collector. The funeral will take place at Ravipuram crematorium at 6 p.m. on Friday, he said.

http://www.thehindu.com/news/national/justice-krishna-iyer-passes-away/article6661758.ece

How a corrupt judge continued in Madras high court

Image (65)PUBLISHED IN THE TIMES OF INDIA

This expose is by Justice Markandey Katju, who was chief justice of Madras high court before becoming a Supreme Court judge. He is now chairman of the Press Council of India.

There was an additional judge of the Madras high court against whom there were several allegations of corruption. He had been directly appointed as a district judge in Tamil Nadu, and during his career as district judge there were as many as eight adverse entries against him recorded by various portfolio judges of the Madras high court. But one acting chief justice of Madras high court by a single stroke of his pen deleted all those adverse entries, and consequently he became an additional judge of the high court, and he was in that post when I came as chief justice of Madras high court in November 2004.

That judge had the solid support of a very important political leader of Tamil Nadu. I was told that this was because while a district judge he had granted bail to that political leader.

Since I was getting many reports about his corruption, I requested the Chief Justice of India, Justice RC Lahoti, to get a secret IB inquiry made about him. A few weeks thereafter, while I was in Chennai, I received a call from the secretary of the CJI saying that Justice Lahoti wanted to talk to me. The CJI then came on the line and said that what I had complained about had been found true. Evidently the IB had found enough material about the judge’s corruption.

New Picture (2)Since the two-year term as additional judge of that person was coming to an end, I assumed he would be discontinued as a judge of the high court in view of the IB report. However, what actually happened was that he got another one year’s appointment as an additional judge, though six other additional judges who had been appointed with him were confirmed and made permanent judges of the high court.

I later learned how this happened. The Supreme Court collegium consists of five most senior judges for recommending names for appointment as a Supreme Court judge, and three most senior judges for dealing with high courts.

The three most senior judges in the Supreme Court at that time were the Chief Justice of India, Justice Lahoti, Justice YK Sabharwal, and Justice Ruma Pal. This Supreme Court collegium recommended that in view of the adverse IB report the judge should be discontinued as a high court judge after his two-year term was over, and this recommendation was sent to the central government.

The UPA government was at the Centre at that time. Congress was no doubt the largest party in this alliance, but it did not have a majority in Lok Sabha, and was dependent on the support of its allies. One such ally was the party in Tamil Nadu which was backing this corrupt judge. On coming to know of the recommendation of the three-judge Supreme Court collegium they strongly objected to it.

New Picture (1)The information I got was that Prime Minister Manmohan Singh was at that time leaving for New York to attend the UN general assembly session. At the Delhi airport, he was told by ministers of the Tamil Nadu party that by the time he returned from New York his government would have fallen as their party would withdraw support to the UPA (for not continuing that additional judge).

On hearing this, Singh panicked, but he was told by a senior Congress minister not to worry, and that he would manage everything. That minister then went to Justice Lahoti and told him there would be a crisis if that additional judge was discontinued. On hearing this, Justice Lahoti sent a letter to the government of India to give another term of one year as additional judge to that corrupt judge, (I wonder whether he consulted his two Supreme Court collegium members ), and it was in these circumstances this corrupt judge was given another one-year term as additional judge (while his six batch mates as additional judges were confirmed as permanent Judges).

The additional judge was later given another term as additional judge by the new CJI Justice Sabharwal, and then confirmed as a permanent judge by the next CJI Justice KG Balakrishnan, but transferred to another high court.

I have related all this to show how the system actually works, whatever it is in theory. In fact, in view of the adverse IB report the judge should not even have been allowed to continue as additional judge.

 

Vodafone completes trinity of infamous SC orders: Ex-CJI Verma

Supreme Court of India

MANISH CHIBBER IN THE INDIAN EXPRESS

Former chief justice of India J S Verma has termed the Supreme Court’s judgment in the Vodafone tax case as one of its three judgments “which are best forgotten or allowed to pass”.

Verma had first criticised the judgment on Saturday when he spoke at the launch of the book My Experience with the office of Additional Solicitor General of India by former ASG Bishwajit Bhattacharyya. On Thursday, speaking to The Indian Express at his Noida home, the jurist spelt out why he felt the Vodafone judgment delivered on January 20 by a bench headed by then CJI S H Kapadia deserved to be clubbed with the controversial judgments of the apex court in the habeas corpus case during the Emergency — often referred to as the lowest point in the history of Indian judiciary — and the JMM bribery case.

“At the book launch, I said I agreed with the analysis of Bishwajit Bhattacharyya as to why the judgment was incorrect on merits. But, I have some other reasons why I don’t think this judgment to be correct or appropriate in law,” Verma said. “The first reason is that, in my understanding, the three-judge judgment in Vodafone bypasses a five-judge constitution bench judgment in the McDowell matter in 1985. The McDowell judgment in substance said that in this context what you have to see is the substance of the transaction to determine the tax liability and not merely the form of the transaction. But, as far as I understand the Vodafone judgment, the court has said the opposite. They (judges) have gone by the form and not the substance. According to me that is not the correct position,” he said.

The Supreme Court, in its landmark judgment in the McDowell case, had said that behind every tax law there was “as much moral sanction as behind any other welfare legislation” and that “it is neither fair nor desirable to expect the legislature to intervene and take care of every device and scheme to avoid taxation”.

Asked about the other reasons why he was not convinced with the Vodafone judgment, Verma said, “The moral foundation is as much available to tax laws as it is to welfare legislation. It is therefore necessary that while interpreting taxation laws you have to bear that fact in mind. Also, see the implication. While the law permits legitimate avoidance of tax by tax planning, illegitimate tax avoidance by adopting a subterfuge is not permissible. This should be shunned by the courts. This is something that has been settled by most cases. McDowell settled this and is the law of the land.”

He, however, clarified that he was not suggesting that the courts couldn’t take a view different from settled law. “But, the different view can’t be treated as law if it is taken by a three-judge bench. The bench should have referred it to a larger bench. I don’t think the CJI-led bench could have bypassed or distinguished from McDowell,” Verma added.

“However, there is a much bigger reason. Judges need to be committed to constitutional philosophy and not the philosophy of the ruling party. The constitutional philosophy in this case as laid out in Articles 38 and 39. The effect of benefiting a corporate is to cast a higher tax burden on the common man and when you uphold an illegal tax avoidance, then you cast a higher tax burden on the honest tax payer. According to me the Vodafone judgment has all these implications,” the former chief justice said.

“That is why, unfortunately and sadly, Vodafone completes the trinity of infamous judgments of the SC, which, the sooner they are forgotten or overcome, the better it would be.”

Parts of hostile witness’s evidence can be used: Supreme Court

NEW DELHI: Judges should not treat as totally erased the evidence tendered by a witness whom the prosecution terms as hostile during a trial, the Supreme Court has said. “It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him,” the apex court bench of Justice B.S. Chauhan and Justice Dipak Misra said Monday.

“The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof,” Justice Chauhan said.

The judges said that “the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence”.  The court said this while upholding the Allahabad High Court’s verdict by which it reversed the acquittal of Ramesh Harijan in a case of rape and causing the death of a minor child in Uttar Pradesh in 1996.

The high court by its March 23, 2007 order reversed the acquittal decision of an additional district and session judge in Basti district Feb 2, 1999. The apex court said “even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate the grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end”.

“The maxim falsus in uno, falsus in omnibus (false in one, false in all) has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop,” the court said. The judgment said “it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well”.

Referring to the evidence tendered by three hostile witnesses in Harijan’s case, the apex court said: “Undoubtedly, there may be some exaggeration in the evidence of the prosecution witnesses… however, it is the duty of the court to unravel the truth under all circumstances.”

“A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense”, the apex court said, upholding the high court’s verdict setting aside the acquittal of Harijan by the trial court. In Harijan’s case, the five-year-old victim was first buried by her family under the belief that she died of paralysis. But her body was later exhumed and sexual assault and death due to shock was confirmed in a medical test.

Gigantic challenge

V VENKATESAN IN THE FRONTLINE

Ranjit Kumar, the amicus curiae in the interlinking of rivers case, is a senior advocate in the Supreme Court and has been practising for nearly 32 years. He has been the amicus curiae in about 14 matters before the Supreme Court, including the ones on the cleaning of the Yamuna and the sealing of illegal commercial establishments in Delhi. In this interview to Frontline, he tries to clarify many of the concerns voiced by experts about the Supreme Court’s judgment in the interlinking of rivers case.

Critics of the judgment have pointed out that none of the 30 projects being planned has been approved or sanctioned and that none of them is ready for implementation. The delay has been attributed to the divergence of perspectives on the project between the National Democratic Alliance government and the United Progressive Alliance government which succeeded it.

I don’t want to get into the political realm of the matter. What had already been achieved was that the peninsular and the Himalayan links had been identified. There are 14 Himalayan links and 16 peninsular links. That apart, most of the rivers are inter-State rivers. After the drawing up of the pre-feasibility reports, which itself took time, there was a bar chart presented by the government as to how much time it would take. The government had given milestone timetables under which the implementation of the project would be completed by December 31, 2016.

The steps required were first, the feasibility study, then funding proposals, then the concurrence of the Chief Ministers of the States and then the completion of the detailed project reports (DPRs). And even in 2002, while the matter was going on in the court, the government informed that feasibility studies in respect of six river links had already been completed. So, I would not like to say that none of the projects is lying in limbo. The Standing Committee of Parliament for Water Resources, which has been noticed in paragraph 24 of the judgment, had asked why the project was at a nascent stage. The committee had strongly recommended going ahead with the project. That was why I sought the court’s intervention. Undoubtedly, the ILR [interlinking of rivers] programme is a gigantic challenge, and a momentous one before the Union government.

The report of the National Council for Applied Economic Research (NCAER) appears to be the only basis for the judgment. Does this report adequately assess the gains from ILR for drought prevention and flood control?

The Union of India in all its affidavits filed in the Supreme Court always supported the programme and the NWDA [the National Water Development Agency] continued to function under the aegis of the Secretary, Water Resources. Feasibility reports and DPRs were made, or have been made in the cases of some. Therefore, to say that the NCAER 2008 report is the only basis for the judgment is not correct. The court has definitely lifted from the report’s conclusions dealing with the economic aspect and social impact and the benefits arising from the project.

The two basic premises that determined the admission of PIL in this case were that the ILR would lead to drought proofing and flood control and that there was consensus among the States. These two premises have subsequently become vulnerable.

I do not agree that they are vulnerable. Because nobody can deny that there is flooding every year and droughts every year. How much money does the Prime Minister’s Relief Fund have to expend to mitigate the devastation caused by floods and droughts? For the last 60 years, can we say that the premises of flooding and drought are vulnerable?

Critics point out that courts cannot lay down the manner in which the right to water should be ensured.

It is not the right to water which is being ensured. What is being ensured is the beneficial aspects of having 40 million hectares irrigated. And when you can have waterways systems, the yearly misery of droughts and floods can be got rid of. Chapter 2 of the NCAER report amply bears this out. It explains the benefits of river valley projects, namely, the Indira Gandhi Canal project, the Tennessee Valley project, the Colorado River Canal system and the Three Gorges dam.

The relationship between the right to water and the ILR project has been described as tenuous.

The judgment itself doesn’t say that there is a link between the right to water and the project. The court is only saying that the project is in the national interest. In paragraphs 50, 52, and 63, the court says that these are matters of national interest and national problems should be viewed with greater objectivity, rationality and spirit of service to the nation.

Does the ILR project adequately address the concerns on biodiversity and impact on the environment?

That is why environmentalists are in the task force. They have a big say in the matter. I have attended a few meetings of the task force. Most of the objections pertain to rehabilitation programmes for those being displaced. Therefore, the aspect which relates to rehabilitation will be a part of the project itself as we have seen in other places such as Tehri, and Narmada dam. I don’t agree that the project ignores the concerns on the environment and biodiversity. Even if environmentalists say so, they have to give reasons, and the court will look into the reasons. If it is successful all over the world, and specifically in China, Brazil and Pakistan, then surely it cannot be said that it will not be successful here.

Some of the projects may involve international agreements, especially between India and Bangladesh. Has the judgment taken this into account?

There are issues with Nepal and Bangladesh, which will be sorted out. This will be part of the implementation process. Whatever will be required will be done.

Has the court considered the need for clearances under the Environment Protection and Forest Conservation Acts and the National Rehabilitation Policy, and from the Planning Commission and the Cabinet?

These are all in the implementation process. Reports have to be filed. The court will consider the grounds cited by these agencies if they conclude that the project is not feasible and will dwell on it. I can file a contempt, if nothing is happening, for default or for non-compliance of the directions by the Supreme Court as mentioned in Paragraph 64 (XVI) of the judgment.

Did the UPA government make its stand clear to the court on the ILR project despite its reservations?

The government has at no stage expressed any reservation about the project. A few States may have. The Centre has never taken the stand that it is not feasible. It went along, filed status reports about what has been happening and how the matter has progressed. It did not say that it is not feasible or that we should not do it. If the government were to come to such a conclusion that it is not feasible, then it will make a somersault of its earlier position. Nobody can deny the benefits accruing from these projects.

How do you react to the criticism that the ILR can lead to fresh inter-State river disputes and that it may not solve the existing ones?

I have informed the court that in view of the provisions of the River Boards Act, 1956, enacted by Parliament, there is a declaration under Section 2 that the Central government should take under its control the regulation of inter-State rivers and river valleys. Section 13 provides for optimum utilisation of water resources and for promotion and operation of schemes of flood control. Section 15 empowers preparation of schemes to develop inter-State river or river valleys. And this has been noted in Paragraph 58 of the judgment. Therefore, if there is an existence of regulatory framework by the declaration of Parliament, there need not be any inter-State river dispute. The tribunal is not necessary. The Central government can exercise that power. The Central government never applied its mind to this Act when disputes arose and tribunals were set up. When I brought this to the notice of the court, the judges found a way to deal with the matter.

It is pointed out that the Supreme Court has failed to consider the diversity of views on the reasons for India’s water crisis and that the ILR may not be the best possible answer.

This judgment does not deal with water crisis. This judgment deals with the benefits arising from interlinking and the malice or misery that is prevailing on account of droughts and floods. This judgment does not deal with the water crisis to the extent of drinking water. But it deals with an aspect that if interlinking takes place, how many million hectares of land will be irrigated.

V VENKATESAN IN THE FRONTLINE

No more leniency to govts in delayed appeals: SC

Supreme Court of India

TIMES OF INDIA

NEW DELHI: For long, government and its departments have been getting away lightly in the judiciary as courts have been lenient in viewing the delay in filing of appeals by them. But, the Supreme Court on Friday put an end to it and decided to treat government with the same yardstick used for other litigants when it comes to filing of appeals after the statutory deadline. Dismissing an appeal filed by the chief of the Post Master General against Living Media India Ltd; after 427 days of the statutory period of limitation, a bench of Justices P Sathasivam and J Chelameswar said the apex court was no more willing to buy the stock response of government departments – delay was due to red-tape and pendency of file on a bureaucrat’s desk for long.

“The law of limitation undoubtedly binds everybody including the government,” the bench said refusing to accept the contention that delays in filing of appeals by government departments are due to impersonal machinery and inherited bureaucratic methodology of making multiple notes. “Why the delay is to be condoned mechanically merely because government or wing of the government is a party before us?” the bench asked.

“It is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona-fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape,” said Justice Sathasivam, who wrote the judgment.

This could hit governments hard as they are the biggest litigant before the judiciary accounting for about 40% of total cases pending in various courts either as petitioner or respondent. The sheer volume of work and lack of enough equipped manpower often leave the decision of whether to file an appeal in a limbo till higher-ups take a view of it. Besides, the decision to reduce government litigation has not trickled down.

Justice Sathasivam said: “The government departments are under a special obligation to ensure that they perform their duties with due diligence and commitment. Condoning of delay is an exception and should not be used as an anticipated benefit for government departments.”

He said the law must weigh every litigant on the same scale and “should not be swirled for the benefit of few”. On the case at hand, the court slammed the postal department, saying “From day one the department or the persons concerned have not evinced diligence in prosecuting the matter to this court by taking appropriate steps”.

http://timesofindia.indiatimes.com/india/No-more-leniency-to-govts-in-delayed-appeals-SC/articleshow/12039556.cms