The case that saved Indian democracy

SUPREME COURT OF INDIA
SUPREME COURT OF INDIA

ARVIND P DATAR IN THE HINDU

The judgment in Kesavananda Bharati v State of Kerala, whose 40th anniversary falls today, was crucial in upholding the supremacy of the Constitution and preventing authoritarian rule by a single party

Exactly forty years ago, on April 24, 1973, Chief Justice Sikri and 12 judges of the Supreme Court assembled to deliver the most important judgment in its history. The case of Kesavananda Bharati v State of Kerala had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23, 1973. The hard work and scholarship that had gone into the preparation of this case was breathtaking. Literally hundreds of cases had been cited and the then Attorney-General had made a comparative chart analysing the provisions of the Constitutions of 71 different countries!

Core question

All this effort was to answer just one main question: was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?

Article 368, on a plain reading, did not contain any limitation on the power of Parliament to amend any part of the Constitution. There was nothing that prevented Parliament from taking away a citizen’s right to freedom of speech or his religious freedom. But the repeated amendments made to the Constitution raised a doubt: was there any inherent or implied limitation on the amending power of Parliament?

The 703-page judgment revealed a sharply divided court and, by a wafer-thin majority of 7:6, it was held that Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of the Constitution.” This was the inherent and implied limitation on the amending power of Parliament. This basic structure doctrine, as future events showed, saved Indian democracy and Kesavananda Bharati will always occupy a hallowed place in our constitutional history.

Supreme Court v Indira Gandhi

It is supremely ironical that the basic structure theory was first introduced by Justice Mudholkar eight years earlier by referring to a 1963 decision of the Supreme Court of Pakistan. Chief Justice Cornelius — yes, Pakistan had a Christian Chief Justice and, later, a Hindu justice as well — had held that the President of Pakistan could not alter the “fundamental features” of their Constitution.

The Kesavananda Bharati case was the culmination of a serious conflict between the judiciary and the government, then headed by Mrs Indira Gandhi. In 1967, the Supreme Court took an extreme view, in the Golak Nath case, that Parliament could not amend or alter any fundamental right. Two years later, Indira Gandhi nationalised 14 major banks and the paltry compensation was made payable in bonds that matured after 10 years! This was struck down by the Supreme Court, although it upheld the right of Parliament to nationalise banks and other industries. A year later, in 1970, Mrs Gandhi abolished the Privy Purses. This was a constitutional betrayal of the solemn assurance given by Sardar Patel to all the erstwhile rulers. This was also struck down by the Supreme Court. Ironically, the abolition of the Privy Purses was challenged by the late Madhavrao Scindia, who later joined the Congress Party.

Smarting under three successive adverse rulings, which had all been argued by N.A. Palkhivala, Indira Gandhi was determined to cut the Supreme Court and the High Courts to size and she introduced a series of constitutional amendments that nullified the Golak Nath, Bank Nationalisation and Privy Purses judgments. In a nutshell, these amendments gave Parliament uncontrolled power to alter or even abolish any fundamental right.

These drastic amendments were challenged by Kesavananda Bharati, the head of a math in Kerala, and several coal, sugar and running companies. On the other side, was not only the Union of India but almost all the States which had also intervened. This case had serious political overtones with several heated exchanges between N.A. Palkhivala for the petitioners and H.M. Seervai and Niren De, who appeared for the State of Kerala and the Union of India respectively.

The infamous Emergency was declared in 1975 and, by then, eight new judges had been appointed to the Supreme Court. A shocking attempt was made by Chief Justice Ray to review the Kesavananda Bharati decision by constituting another Bench of 13 judges. In what is regarded as the finest advocacy that was heard in the Supreme Court, Palkhivala made an impassioned plea for not disturbing the earlier view. In a major embarrassment to Ray, it was revealed that no one had filed a review petition. How was this Bench then constituted? The other judges strongly opposed this impropriety and the 13-judge Bench was dissolved after two days of arguments. The tragic review was over but it did irreversible damage to the reputation of Chief Justice A.N. Ray.

Constitutional rights saved

If the majority of the Supreme Court had held (as six judges indeed did) that Parliament could alter any part of the Constitution, India would most certainly have degenerated into a totalitarian State or had one-party rule. At any rate, the Constitution would have lost its supremacy. Even Seervai later admitted that the basic structure theory preserved Indian democracy. One has to only examine the amendments that were made during the Emergency. The 39th Amendment prohibited any challenge to the election of the President, Vice-President, Speaker and Prime Minister, irrespective of the electoral malpractice. This was a clear attempt to nullify the adverse Allahabad High Court ruling against Indira Gandhi. The 41st Amendment prohibited any case, civil or criminal, being filed against the President, Vice-President, Prime Minister or the Governors, not only during their term of office but forever. Thus, if a person was a governor for just one day, he acquired immunity from any legal proceedings for life. If Parliament were indeed supreme, these shocking amendments would have become part of the Constitution.

Thanks to Kesavananda Bharati, Palkhivala and the seven judges who were in the majority, India continues to be the world’s largest democracy. The souls of Nehru, Patel, Ambedkar and all the founding fathers of our Constitution can really rest in peace.

(Arvind P. Datar is a senior advocate of the Madras High Court.)

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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.

Warding Off The Eye

MEDIA VS SUPREME COURT
MEDIA VS SUPREME COURT
The judiciary and Parliament seem to think they could do with less coverage
 The Problem Of Too Much Attention
  1. A PIL in Feb alleged that CJI Kapadia had a conflict of interest in the Vodafone tax case. It was dismissed; a penalty was imposed.
  2. Advocate Harish Salve says he was misquoted in the Vodafone matter. Eligibility criterion spelt out for court reporters.
  3. In Mar, CJI says reports on the disproportionate assets of ex-CJI K.G. Balakrishnan are upsetting
  4. SC hurt by reports of a judge listing her daughters in ‘liabilities’
  5. Advocate Fali Nariman says a confidential exchange between his client Sahara and SEBI was leaked on TV. CJI directs parties to make submission in the matter.
  6. Court expresses concern over how the media reported on events surrounding the murder of Arushi Talwar and on her personal life

***

Over the last couple of days, two pillars of democracy have decided that the media must be kept on a leash. First, the Lok Sabha secretariat declared that the media would not be allowed in the vicinity of parliamentary standing and joint committee meetings. Reporters usually hang about for informal briefings from MP acquaintances—it’s the life-breath of in-depth coverage of Parliament. Media professionals wonder if the unprecedented order is timed to prevent reporting on the three defence chiefs’ appearance before a parliamentary committee, slated for April 20. Second, the Allahabad High Court prohibited the media from writing or reporting further on the sensational news of troop movements towards Delhi on Jan 16-17. The Union i&b ministry followed up with an advisory seeking strict adherence to the court order. The two restrictions come even as the Supreme Court is mulling guidelines for law reporters covering it.

So, is this the system recoiling at all those big news stories of scams and criminal investigations that have come out recently? Media professionals feel these ‘guidelines’ would end up stifling them. The bigger fear is that, when institutions like the Supreme Court and the Lok Sabha start writing rulebooks for the media, they might prompt others—say the bureaucracy and the police—to do so too. The cascading effect could shrink the space of reporting in the same proportion as RTI added to it.

It was in the backdrop of an information explosion triggered by television channels, where opinions were sought and decisions arrived at swiftly, that the Law Commission finalised its 2006 report, ‘Trial by Media’, framing guidelines for reporting on criminal proceedings in court. The report makes a case for not covering a trial till it is concluded. It is learnt the Centre is in active consultation with the states on the commission’s report.

As the five-judge constitution bench under the Chief Justice of India, S.H. Kapadia, engages in a threadbare discussion on the media with advocates of freedom of the press and others, it is perhaps time to ask, as indeed the court is doing, whether guidelines regulating the media are required at all. In fact, is there any reason to suppose that media coverage has led to miscarriage of justice. And have existing guidelines failed? Linked to both questions is the public’s right to know and be informed.

Already, there are quite a few guidelines to begin with. There’s the Press Council Act of 1979, though its powers could be debated. Presided over by a retired judge and with journalists and newspapers’ representatives on the board, the council has the power to censure, warn and admonish the press if it fails to adhere to the guidelines. Its present head, Justice Markandeya Katju, has called the Allahabad High Court’s gag order “not correct” and said that “the media has a fundamental right to make such a publication, as it did not endanger national security”.

Then, there’s the News Broadcasting Authority of India (NBA), a self-regulatory body of broadcasters with academics, eminent persons and a former CJI on its rolls. It has a detailed programme code, advocates voluntary adherence and imposes penalties. After the 28/11 attack on Mumbai, it had drawn up rules for reportage by the electronic media.

In his capacity as chairperson of NBA, which is a party to the SC’s deliberations guidelines for the media, former CJI J.S. Verma says, “I feel that, as there are already guidelines drawn up by the channels themselves, the bench in my view could suggest modifications if it so wished. In fact, if the judiciary says compliance with existing guidelines is desirable, that itself will have the desired effect.” Verma—who is often openly critical of media reports—thinks peer pressure works better than imposed guidelines.

Other senior lawyers hold the view that the court has no power to make laws. Former SC judge Justice V.R. Krishna Iyer calls the SC’s attempt to regulate the media a case of judicial overreach. “It’s Parliament that has the right to legislate, not the court.”

Though the chief justice of India has repeatedly clarified that the aim is to regulate, not control, these recent exercises are seen as part of an overall process to control a media that is seen as increasingly critical and combative. The judiciary and the media, which appeared to be working in tandem at one point, now appear to have fallen out.

Does the public have a right to know about how justice is delivered? And if it does, how will that happen if reporters are not permitted to report? Such a move would also run against the open court proceedings our judiciary has adopted till now. There are many who suggest that instead of a broad arc of guidelines, what is required is a case-to-case examination. If an error takes place due to the media, there are adequate grievance redressal structures within the courts in the form of contempt and defamation laws. Moreover, journalists enjoys no special immunities or privileges by law.

Says Kumar Ketkar, editor of Divya Bhaskar, “I am quite critical of the media, but I feel the Supreme Court is overstepping its brief in wanting to frame guidelines for court reporting as the move creates an impression that the court alone is the upholder of integrity, sovereignty and the national interest. This is unfortunate. It would also appear that court and the media are in direct confrontation with each other.”

Adds Arnab Goswami, head of Time Now, “If everything now becomes a matter of litigation, there will be nothing to report on. What will we report on?”

ANURADHA RAMAN IN THE OUTLOOK

Justice Katju: A colourful judge with a social conscience

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT
JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

Two decades ago, the Supreme Court set exacting standards for judges. In All India Judges Association case, the SC had said in 1992, “The conduct of every judicial officer should be above reproach. He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamour, regardless of public praise, and indifferent to private, political or partisan influences.”

It added, “He should administer justice according to law, and deal with his appointment as public trust, he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for purpose of advancing his personal ambitions or increasing his popularity.”

It is difficult to test Supreme Court judges against the 1992 norms. Most maintain a discernable degree of discipline in demeanour, dealings and decisions while deciding cases.

But Justice Markandey Katju was different. During his five-and-a-half year stint as an SC judge, he was an enigma — lovable yet distasteful, respectful yet disdainful, courteous in one moment and rough in the next. In his court room, polite conversations could suddenly turn into a vicious diatribe.

How does one describe a personality like Justice Katju? Could his judgments and observations in the court give a clue? It is said judges speak through their judgments. But did he conform to this? Difficult to say.

Coming from the renowned Katju family of Allahabad, he was a first divisioner throughout his academic career. Probably that – getting first division in every examination he appeared in — was the only thing that was constant for him. Everything else was fluid and dynamic.

Justice Katju was a staunch advocate of judicial restraint. He was against public interest litigations which invited judiciary to foray into the domains of executive and legislature. But, he did not flinch in converting innocuous petitions into PILs and kept giving directions to the chief secretaries.

To the credit of the man, he seldom hid his feelings and always wanted to do something for society that would leave a lasting impression. If he did a thorough job before rejecting a mercy killing plea advanced on behalf of Aruna Shanbaug, who had been leading a vegetative life in a Mumbai hospital for last 38 years after a violent sexual assault, then his efforts towards rehabilitation of sex workers will be remembered fondly for a long time in the red light districts across India.

When many feared to dwell openly about incidents of corruption in higher judiciary, Justice Katju jolted the judicial community by boldly recording in a judgment “something is rotten in Allahabad High Court” and referred to sons and kin of sitting judges becoming multi-millionaires in a short span of time.

He gave the impression of being a stickler for rules and laws, but went against a constitution bench judgment to advocate revival of anticipatory bail provision in Uttar Pradesh.

Justice Katju often ridiculed counsel for not reading the petition and the questions of law involved in it. But he himself was found wanting when he ruled that “mere membership of a banned organisation” was no offence though the Unlawful Activities Prevention Act (UAPA) clearly provided that it was a punishable offence.

English may be the language of the court but it did not prevent Justice Katju from frequently lapsing into Hindi. On social issues, his judgments began with an Urdu couplet.

No advocate dared challenge his knowledge either in law or in Urdu. Justice Katju loved engaging lawyers in light banter, but threatened to dismiss the petition if the counsel proved equal to the task in a debate that spilled off the judicial ring.

There was seldom a dull day in his court room. His retirement brought an end to a colourful tenure of an enigmatic judge. When a senior advocate’s comment was sought on Justice Katju’s retirement, he said, “Thank God, India does not follow the US Supreme Court system.”

In US Supreme Court, a person is appointed judge for life. In India, Supreme Court judges retire on attaining the age of 65 years.

http://timesofindia.indiatimes.com/india/Justice-Katju-A-colourful-judge-with-a-social-conscience/articleshow/10120508.cms

Justice Katju was part of the Bench that gave landmark judgments

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT
JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

J VENKATESAN IN THE HINDU

Contribution of Supreme Court judge hailed on his retirement

Justice Markandey Katju retired on Monday as judge of the Supreme Court on his attaining the age of superannuation. He was given a farewell by members of the Bar and the Bench at a function organised by the Supreme Court Bar Association amid a standing ovation from lawyers.

Justice Katju was appointed Supreme Court judge in April 2006 and during his tenure spanning a little over 5 years, he has rendered several landmark judgments on various branches of law, in particular criminal jurisprudence, constitutional, and human rights issues. With his smiling face, he endeared himself to members of the Bar and the Bench. Justice Katju was a judge of the Allahabad High Court, the Chief Justice of the Madras and Delhi High Courts, before being elevated to the Supreme Court.

Chief Justice of India S.H. Kapadia paid encomiums to Justice Katju, saying he spoke his mind in no uncertain terms. “He is very outspoken and he stood for institutional integrity. Today we live in a world of hypocrisy and to speak the truth one needs courage.”

Attorney-General G.E. Vahanvati said, “there was never a dull moment in his court.” President of SCBA P.H. Pareikh described Justice Katju as one who always encouraged young lawyers. “When young lawyers sought ‘pass over’ for seniors, Justice Katju used to ask the juniors to argue themselves.”

Justice Katju said: “I do believe that a tribute coming from the Bar is the highest reward a judge can aspire for. As regards my performance as a judge, that is for others to decide. All I can say is that I always tried to do my duty sincerely and honestly. It was a great privilege for me to serve in this august institution. I am sure that this court will continue serving the country honourably in the role assigned to it by the Constitution.”

Justice Katju was part of the Bench that gave several landmark judgments. To cite a few, he was very harsh on honour killings. To stamp out the barbaric and feudal practice of ‘honour killings,’ he directed the trial/High Courts to award death sentence to the accused who perpetrated such offences. For criminal offences relating to dowry death or bride-burning cases, he awarded death sentences unmindful of the demand for abolition of death penalty, saying that as long as the provision remained in the statute, courts would have to award death sentence in the rarest of rare cases.

In another historic judgment, he allowed passive mercy killing of a patient in a permanent vegetative state (PVS) by withdrawing the life support system with the approval of a Medical Board and on the directions of the High Court concerned.He, however, did not accept the plea of Pinky Virani of Mumbai seeking permission to withdraw the life support extended to Aruna Ramachandra Shanbaug lying in a PVS at KEM hospital, Mumbai for 37 years. Though the court dismissed the petition filed by Pinky Virani on the ground that she did not have the locus standi and only the hospital could seek such a request, it allowed passive euthanasia (mercy killing) and laid down guidelines.

In an unusual step, Justice Katju went out of the way and appealed to the Pakistan government to consider granting remission of sentence to Gopal Dass, an Indian detained in the Lahore Central Jail for about 27 years, on humanitarian grounds and to release him. Acting on the appeal, the Pakistan government released him.

In a controversial judgment, Justice Katju said: “If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a ‘relationship in the nature of marriage’ for her to claim the benefit of live-in to get maintenance under the Protection of Women from Domestic Violence Act, 2005.” He rejected the plea for review of this judgment.

Justice Katju, who had granted bail to Binayak Sen, arrested on sedition charges, while dealing with an ULFA case held that mere membership of a banned organisation would not make a person criminal under the TADA unless he resorted to violence or incited people to violence or created public disorder by violence or incitement to violence.

In a strong indictment of a judge of the Allahabad High Court for passing orders for extraneous considerations, Justice Katju asked the Chief Justice of the High Court to take appropriate action against the judge and against certain other judges facing complaints.

He said: “Something is rotten in the Allahabad High Court, as this case illustrates.” Recently, he passed orders for rehabilitation of sex workers and asked the Centre and the States to formulate schemes to provide them employment.

http://www.thehindu.com/news/national/article2468372.ece

Justices delayed: SC down, Judge vacancies pile up

INDIAN EXPRESS

At a time when the collegium system of appointment of Judges is under attack, the Supreme Court — with over 50,000 cases pending before it — will soon be working at less than 75 per cent of its total sanctioned strength of Judges. By October 15, seven Judges of the apex court will retire, the largest number of retirements in a single year since Independence.

And that’s just the position in the country’s highest court. The biggest court in India, Allahabad High Court, has been functioning with just 62 of its total 160 approved strength of Judges, as reported by The Indian Express (nine more will join tomorrow). The Gujarat HC, with a sanctioned strength of 42, has 18 vacancies; while Punjab and Haryana HC has just 43 Judges, against a sanctioned strength of 68.

In all, data compiled by the government shows, of the total 895 posts of Judges sanctioned in the 21 HCs in the country, only 610 are currently filled — a gap of 285. This year, in fact, saw the highest number of posts falling vacant in HCs in a calendar year since 1990. However, only 41 new appointments have been made so far in 2011.

The subordinate judiciary is not much better placed. Data collected by the Supreme Court says that as of December 31, 2010, out of the sanctioned strength of 17,151 posts in states and Union Territories, 3,170 were vacant, with Bihar (389 vacancies), Gujarat (361), Uttar Pradesh (294) and Maharashtra (234) leading the list.

Even though the Supreme Court collegium headed by Chief Justice of India S H Kapadia has recommended three names — two HC Chief Justices and one Judge of Bombay HC — even if they are able to take oath by October 15, the number of vacancies in the apex court will still be six out of 31.

“Even though at every meeting of chief ministers and Chief Justices, the judiciary is requested to recommended names for elevation to the Bench at least three months before an anticipated vacancy, it is never done. Today, except for the Himachal Pradesh High Court, there is no court that is working at full strength. Though the sanctioned strength of the Jammu and Kashmir HC is 14, the court is functioning with just seven judges. In most cases, the HC collegium has not met even once in the last one year to recommend names,” said a senior government functionary. Sikkim, the country’s smallest court with a sanctioned strength of three judges, has just one judge, who was designated Acting Chief Justice after the resignation of Justice P D Dinakaran last month.

The other HCs with a significant number of vacancies are Andhra Pradesh (16), Bombay (14), Calcutta (14), Rajasthan (13) and Chhattisgarh (12). The highest number of appointments made in a single year was 110 in 2006 when Justice Y K Sabharwal was the CJI and H R Bhardwaj the Union law minister.

State biggest land grabber, says Supreme Court

NEW DELHI: The Supreme Court on Tuesday slammed the authorities for taking advantage of the “colonial law” on land acquisition to divest farmers of their prime agricultural land benefitting the rich and paying “pittiance” to common men. The apex court said a “sinister campaign” has been launched by various state governments to take adavantage of the law against the poor people for taking away the land and giving it to builders where multiplexes, malls, posh residential complexes are developed which are beyond the reach of common men.

“Do you think judges live in fools’ paradise”? snapped a bench of Justices GS Singhvi and AK Ganguly when senior advocate PP Rao responded to a question that the residential complexes were being developed for the “needy”. “You are building hotels, malls, commercial complexes, townships where common men have no access. Does it come under the perception of public purpose for which the land have been acquired?”

The bench questioned the change by Uttar Pradesh government in land use in Greater Noida and said “this is not the plan for which the land is acquired. How different notifications came out for changing the use of land”. The sharp remarks were made by the bench during the hearing on petitions filed by Greater Noida Industrial Development Authority and real estate developers and builders, including Supertech and Amrapali, challenging the Allahabad high court order which had quashed the notifications for land acquisition in Greater Noida adjoining the national capital.