LAW RESOURCE INDIA

PRIME MINISTERS STATEMENT ON THE LOKPAL CAMPAIGN AND ANNA HAZARE ARREST

Posted in ACCOUNTABILITY, CONSTITUTION, CORRUPTION, FUNDAMENTAL RIGHTS, GOVERNANCE, JAN LOKPAL by NNLRJ INDIA on August 17, 2011
Manmohan Singh, current prime minister of India.

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Following is the text of the statement made by the Prime Minister, Dr. Manmohan Singh in the Lok Sabha today:

Hon’ble Speaker,

It is my painful duty to report to this House certain events that took place yesterday in New Delhi.

 Hon’ble Members are aware that after extensive consultations and discussions, including deliberations in a Joint Drafting Committee and a meeting of all political parties represented in Parliament, the Government has introduced a Bill in the Lok Sabha on the setting up of Lok Pal. The Bill has been referred to the Standing Committee concerned.

Notwithstanding the introduction of the Bill, Shri Anna Hazare and his supporters have persisted with their demand that the Jan Lok Pal Bill drafted by Shri Anna Hazare should be introduced in Parliament and that the Jan Lok Pal Bill should be the Bill that must be passed by Parliament. In support of this demand, Shri Anna Hazare had announced some time ago that he would undertake an indefinite fast beginning August 16, 2011.

On August 2, 2011, an application was made to Delhi Police by an organisation called India Against Corruption for permission to hold a month-long fast beginning August 16, 2011 at New Delhi. Delhi Police held discussions with the applicants in order to identify a suitable place and to formulate the conditions under which the permission could be granted for holding a fast at that place. Eventually, on August 13, 2011, Delhi Police informed the applicants that permission would be granted for the protest at Jai Prakash Narayan Park, near Ferozshah Kotla, subject to permission being granted by the land owning agency and subject to certain conditions.

 Delhi Police also informed the applicants that they would have to give an undertaking to abide by the conditions.

However, on August 15, 2011, the organisers refused to accept six of the conditions, including the condition that the protest fast would be limited to three days. Hence, Delhi Police informed the applicants that, since they had declined to accept some of the conditions and refused to give the undertaking to abide by all the conditions, permission would not be granted to hold the protest fast at Jai Prakash Narayan Park. Prohibitory orders under section 144 CrPC were also imposed on August 15, 2011 in and around Jai Prakash Narayan Park and some other areas.

On the evening of August 15, 2011, Shri Anna Hazare, through public statements, made it clear that he and his supporters would converge at Jai Prakash Narayan Park and defy the prohibitory orders under section 144 CrPC. Yesterday morning, Delhi Police reviewed the situation. Delhi Police came to the conclusion that it was clear that Shri Anna Hazare and his supporters would commit a cognizable offence and there was a likelihood of a breach of peace. Hence, Shri Anna Hazare and six others were arrested, as a preventive measure, under section 151/107 CrPC. They were taken to the Delhi Police Officers’ Mess at Alipur Road and, subsequently, produced before a Magistrate. Delhi Police did not seek the police remand of the arrested persons. The Magistrate offered to release the arrested persons on their personal bonds subject to the condition that they would undertake not to violate the prohibitory orders. However, Shri Anna Hazare and others refused to give such an undertaking or furnish personal bonds. Hence, the Magistrate remanded the arrested persons to 7 days’ judicial custody.

Meanwhile, during the course of yesterday, about 2,603 persons were detained in Delhi when they were proceeding to or were in areas where prohibitory orders under section 144 CrPC were in force. All of them were released later in the evening yesterday.

Late yesterday evening, Delhi Police received information that Shri Anna Hazare intended to move the Supreme Court challenging the orders of Delhi Police. Delhi Police also received information that the petition was likely to be mentioned before the Supreme Court on Wednesday, i.e. today, for urgent hearing. Since there were reasonable grounds to believe that Shri Anna Hazare had opted to seek legal remedies, Delhi Police did not apprehend any imminent breach of peace or imminent disturbance to tranquillity if the arrested persons were released. Hence, Delhi Police moved the Magistrate concerned to review his earlier order and the Magistrate was pleased to release Shri Anna Hazare and the other arrested persons at about 7 p.m. yesterday. The jail authorities informed Shri Anna Hazare and others that orders for their release had been received. However, Shri Anna Hazare and others (except one) declined to leave the jail premises unless the Government gave an undertaking that they would be permitted to hold their protest fast at Jai prakash Narayan Park without any condition.

Our Government acknowledges the right of citizens to hold peaceful protests. In fact, Delhi Police have allowed several such protests, but in each case appropriate conditions have always been imposed and the organisers were always required to give an undertaking to abide by all the conditions. Shri Anna Hazare and his supporters would have been allowed to hold their protest fast if they had accepted the conditions under which the permission was granted and had undertaken to abide by the conditions. Since they declined to do so, Delhi Police was obliged to refuse permission to hold the protest fast.

The Government wishes to stress that the issue before the nation is not whether a Lok Pal Bill is necessary or desirable. All of us in this House are agreed that a Lok Pal Bill must be passed as early as possible. The question is, who drafts the law and who makes the law? I submit that the time-honoured practice is that the Executive drafts a Bill and places it before Parliament and that Parliament debates and adopts the Bill with amendments if necessary. In the process of adoption of the Bill, there will be opportunities for Shri Anna Hazare and others to present their views to the Standing Committee to which this Bill has been referred by the Hon’ble Speaker. The Standing Committee as well as Parliament can modify the Bill if they so desire. However, I am not aware of any constitutional philosophy or principle that allows any one to question the sole prerogative of Parliament to make a law. In making a law on Lok Pal, the Government has faithfully adhered to the well-settled principles. As far as I am able to gather, Shri Anna Hazare questions these principles and claims a right to impose his Jan Lok Pal Bill upon Parliament.

I acknowledge that Shri Anna Hazare may be inspired by high ideals in his campaign to set up a strong and effective Lok Pal. However, the path that he has chosen to impose his draft of a Bill upon Parliament is totally misconceived and fraught with grave consequences for our Parliamentary democracy.

Our Government does not seek any confrontation with any section of the society. But when some sections of society deliberately challenge the authority of the Government and the prerogative of Parliament, it is the bounden duty of the Government to maintain peace and tranquillity. Delhi Police, as the authority charged with the responsibility, took the minimum steps necessary to maintain peace and tranquillity in the capital city. Inevitably, though unfortunately, it led to the arrest and subsequent release of Shri Anna Hazare and some of his supporters. I sincerely hope that the incidents of yesterday will not be repeated today or in the future.

I should also make it clear that the issue between the Government and Shri Anna Hazare is not one of different attitudes to fighting corruption. In my independence day address, I spoke at length about the need to deal effectively with corruption. I would like to assure the House that we are determined to provide a Government that is transparent, accountable and responsive at all times and determined to fight corruption. But as I said on 15 August at the Red Fort, there is no magic wand by which, in one stroke, we will get rid of menace the of corruption. We have to work simultaneously on several fronts. In my 15 August address, I have outlined some of the measures we intend to put in place to strengthen our fight against corruption. I invite all sections of this House to join hands with us to deal with the cancer of corruption.

 With respect to the events of yesterday, I will only say that a functional democracy must allow multiple voices to be heard. But differences of opinion must be resolved thorough dialogue and consensus. Those who believe that their voice and their voice alone represents the will of 1.2 billion people should reflect deeply on that position. They must allow the elected representatives of the people in Parliament to do the job that they were elected for.

India is an emerging economy. We are now emerging as one of the important players on the world stage. There are many forces that would not like to see India realize its true place in the Comity of Nations. We must not play into their hands. We must not create an environment in which our economic progress is hijacked by internal dissension. We must keep our mind focused on the need to push ahead with economic progress for the upliftment of the ‘aam aadmi’.

I appeal to all sections of this august House to ensure that the Government and its processes, and the Parliament and its processes function smoothly and effectively. There is no substitute for that. If some people do not agree with our policy, there will be a time when they will have an opportunity to present their points of view to the people of India.

I request all political parties to ensure that Parliament functions smoothly. There are very important legislative measures that are required to be passed. If we do not pass them, we will do great injustice to the people of India and in turn hurt the ‘aam aadmi’. We are willing to debate every issue in Parliament, and we have demonstrated that we are co-operating with the Opposition in every possible way to ensure that Parliament functions smoothly.

We as elected representatives of our people should do nothing to weaken our people’s faith in the capacity of our democracy, our institutions and our social ideals and values to overcome all difficulties. We should have faith that we can build a promising future for ourselves. Let us unite in that faith.”

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Anna Hazare, the Constitution and the Government

Posted in UNCATEGORIZED by NNLRJ INDIA on August 16, 2011
Though Gandhi never called himself a Hindu nat...

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V RAGHUNATHAN IN THE TIMES OF INDIA

I wrote in this blog on April 7, 2011 about Anna Hazare, saying, “Perhaps after Loknayak Jayaprakash Narayan‘s call for sampoorna kranti, … Anna’s fast may be the next most significant mass movement in modern India yet.” Soon thereafter, when the ruling Government seemed to respond to Anna sensibly and sensitively offering a joint dialogue with and say to the civil society for drafting a suitable Lokpal Bill, one thought it a sagacious gesture on the part of the UPA government and a victory for the maturity of our democracy.

Alas, that hasn’t been the case. Of late, with every single passing day, the ruling polity has come out looking increasingly petty, cussed and vindictive, targeting Anna with every gun that it has at its disposal. It has accused Anna Hazare and his Trust as being “seeped in corruption“.  It is questioning the funding of Anna’s website. It is digging up his ancient army records in the hope of finding something – anything – to chuck at him, hoping something may stick.  It is leaning on the weak spine of the Delhi Police to deny him a place to fast, placing uncalled for and unconstitutional limits of time and the size of crowd .  It is not that our politicians have usually stood so tall that we are surprised at how low they can stoop; but to accuse a simple and straight forward soul like Ana Hazare, who is the first major voice against corruption in independent India to stir the conscience of the nation, dwarfs even their pigmy standards.

In a democracy of a billion people, it is understandable to have a billion different views on the issue of the Lokpal Bill versus Jan-Lokpal Bill.  It is understandable if some think PM should be kept out of the ambit of Lokpal. It is understandable if some think civil society (read Anna Hazare) should be more practical and more patient or yielding in their demand or protest.  It may also be understandable if some think that Anna Hazare’s Satyagraha is not to be compared to Bapu‘s Satyagraha, or even that inarticulate Anna himself is in no way comparable with the suave Mahatma. It is understandable too if some question the somewhat intemperate language deployed by Anna Hazare in his communication to our straight as sphinx-like Prime Minister.  It may be understandable too if a section of the society is apprehensive about the liberties Civil Society seems to be taking with our constitutional mechanism. For that matter, it may also be understandable if some seem to think Anna Hazare to be a greater danger to our Constitution for seeking “extra-constitutional” remedies to cure our sick society of utter, run-away and rampant corruption, than the malaise of corruption itself.  I even came across a very intelligent, articulate and genuinely sensitive young professional who was “entirely against corruption, but who disagreed with Anna Hazare’s methods”, even if he did not have an alternative to suggest.  In his view, one couldn’t be led into a Bush-like stance – “You are either with us (or Anna Hazare) or against us (or Anna Hazare)”. Well, in short, we can understand all these various views in a democracy, and then some.

While we understand all of the above, we must also understand the low-stoop of the senior Congress functionaries in the personal mud-slinging against Anna for what it is — the last-ditch defense of a political class running scared.  And let us not get it wrong. Let us not believe for a moment as if it is only the Congress politicians who are running scared. The reality is that the major opposition, the UPA politicos, have not comported themselves much better on the ground and in the parliament, beyond opportunistic lip service to Anna.  Thus, it may be equally naïve to believe that even a Jana-Lokpal Bill blessed by Anna, shall sail smoothly through the Parliament, as a simple Anna seems to do. But then, Anna does seem to believe that at least in that case the country would know which parties support or do not support the people’s bill, the knowledge of which could decide the fate of the parties at the next hustings.   I, for one, can understand that.

True, participation of “Civil Society” in a parliamentary process is hardly the standard constitutional process in our democracy. The constitutional process provides only for the Legislature, the Executive, and the Judiciary; it provides for no un-elected Civil Society to play a role.  But this is because the constitutional processes are ordinarily supposed to work. When constitutional processes work reasonably, for example, all citizens are genuinely equal before law, ministers and government servants are accountable to people, parliament functions and passes laws to govern the country rather than being in a perennial state of adjournment for one reason or the other, nor does it take over four decades to pass a law against corruption, justice is available to all and speedily, and 60% of the population does not remain bereft of food, education, health and justice due to large-scale corruption six decades after independence. None of these conditions has been made available under our constitutional processes.  The so-called 9% growth is despite these.

These are the reasons why the call of Anna Hazare has stirred the nation’s conscience. Never mind whether public support for Anna is 50%, 85%, 95% or 100%.  Even if Anna were in a minority of one, it stands to reason that given that our constitutional processes worked by the legislature, executive, and the judiciary have failed us in all these decades, the constitutional mechanism is perhaps already in a damaged condition in any case. Bringing in the “Civil Society” is unlikely to do any more damage to it.

Anna Hazare has offered the nation an opportunity which all the constitutional mechanism and its political ‘leadership’ did not give it since independence. If we are smart as a people, we shall seize the opportunity and lend our shoulders in whatever little way we can to him – not for his sake, but for our own.  But if we are not smart, we can continue to debate the issue to shreds while Anna Hazare acts tomorrow.

V Raghunathan is a former academic (professor of finance, IIM, Ahmedabad), a former banker (president, ING Vysya Bank) and currently a corporate CEO. He has also been a visiting professor at the University of Bocconi, Milan, Italy, since 1990. Some of his books include “Games Indians play” (Penguin), “Don’t Sprint the Marathon” (Harper Collins) and “The Corruption Conundrum and Other Paradoxes and Dilemmas” (Penguin). He is also a columnist of long standing, with over 450 papers and articles to his credit. He sits on numerous boards and lectures extensively in India and abroad. Collecting old and ancient padlocks is his hobby.

Police/SJPU – how they can choose to be an adversary or a friend of Children in Need of Care & Protection and Juvenile in Conflict with Law

Delhi Police Juvenile Unit

Delhi Police Juvenile Unit

SUMAN NALWA , ADDL DCP / SPUWC -DELHI POLICE

For any social and reformative legislation to be successful, it requires not just the good law but dedicated and motivated functionaries of the criminal justice system as well as the administrative wings of the govt in addition to responsive and responsible society. In the absence of these prerequisite, the law is but just a piece of paper and can never hope to make the impact it was intended to make.

The same stands true for our Juvenile Justice system as well. the object of juvenile justice system is prevention (ensuring that children do not come in conflict with the law), diversion (that children are kept away from formal criminal justice system and into community based and restorative processes to prevent repeat delinquency), protection ( of CICL from human rights violations and the children from exploitation and abuse). the mission being to not to simply punish the violators but to help the young violators of law to get back in the society on the right path. The focus being to look into the complexity of the life situation of the child and thus offering commensurate rehab program in the best interest of the child. Further, in case of CNCP, to reach out to them and ensure their proper care and rehabilitation. Thus ensuring aftercare and reintegration of all the children who have been left out, back into the society.

Considering these objectives, it was felt that the existing machinery was not in sync with the need of the children and that it requires a separate juvenile justice system which will cater to the specific needs of the children through a sensitive police, informal and flexible judiciary ready to intervene in the best interest of the child and institutions who are well equipped to design and implement the individual rehab and reintegration programs.

At the police level, a separate system of Juvenile Welfare Officers at the Police Station level, Special Juvenile Police Units at the District levels and State Nodal Unit at the state level were set up to upgrade the treatment meted out to the children at the hands of police to a more humane and sensitive approach. The Child Welfare Committees and Juvenile Justice Boards were also set up to look into the best interest of the child. However it has to be understood that the Juvenile Justice Act is a social legislation, aimed at changing the way our children get treated in the society and the system, and just putting the administrative structure alone is not enough to reach the goals set up by the JJ Legislation, it requires corresponding change in behavior as well as mindset at all levels to make a real impact in the life of a child.

From the police perspective, the JJ act lays down the groundwork of what police is expected to do or work in a given set of  circumstance relating to children who are in need of care and protection as well as those in conflict of law, that they are specially instructed and trained and have an aptitude to handle the children. The rules go further and extols the police agency to be proactive. the rules bring out the proactive approach by making SJPUs the watch dog for providing legal protection against all kinds of cruelty, abuse and exploitation of child or juvenile and to take serious cognizance of adult perpetrators of crimes against children in addition to other duties mentioned thereof.

 Role of police under the JJ Act

Police plays a substantial role in the juvenile justice system be it vis a vis the child in need of care and protection (CNCP) or the child in conflict with law (CICL). How it plays this role i.e., by taking the child along , in his best interest or considering him as any regular criminal or a victim depends on their level of sensitivity and commitment. In almost all the cases of CNCP as well as CICL, the police are usually the first point of contact with the child. This is indeed an important role as it means that the police officer, invariably the first contact point, now determines whether the child becomes the part of the juvenile justice system to begin with or not. And what kind of intervention the officer is going to make in the situation vis a vis the child often determines the future of this child.

The jj act and the modal rules lays specific duties for the police especially SJPUs vis a vis children such as to upgrade the police treatment of all juveniles and the children (Section 63), to coordinate and function as a watch dog for providing legal protection against all kinds of cruelty, abuse and exploitation of child or juvenile (rule 84(5)), to take serious cognizance of adult perpetrators of crimes against children and to see to it that they are without delay apprehended and booked under the appropriate provisions of the law (rule 84(6)), identifying CICL and CNCP in association with civil society(rule 84(7)) to name the few.

Child in Need of Care and Prptection: The specific role of police in how to address the situation when a child victim comes within their jurisdiction, is laid down in CrPC as well as JJ Act. This is more the procedural part which at best is but a skeletal and has to be augmented by the right attitude and inclination to do whatever is required in the best interest of the child. The police however, has historically and from the nature if its work profile is more inclined towards law and order and has more of crime criminal orientation. The change from crime and criminal orientation to victim orientation needs loads of efforts, interest and dedication in addition to a sensitized and dedicated police force. Whether it’s a case of physical, emotional or sexual abuse of the child, whether the child has been exploited for his work, whether the child is a street child with nowhere to go, a beggar, whether this child who is in need of care and protection of the law comes within the purview of law requires a sensitive citizen who is ready to intervene as well as a sensitive police force which is duty bound to take such children within its cudgels so that the JJ system becomes operational . These children invariably cannot stand up for themselves and need all the support possible to access to the services available to them under the law. The children being children are afraid of the formal system be it the police which goes to rescue them or the judicial system and the children homes where they are taken. At that point a soft and sensitive approach wherein the child can trust and find a friend and a guide in police will definitely mean a new life for the child and give him courage to break out of the shackles and rise towards a better destiny in addition to helping the police to nail the culprits.

There have been instances where in the children were so afraid of police with stories as well as image of police brutality that it often took lot of time to allay their fears and establish a congenial rapport with them, remove that hostility and build a confidence that police is acting in their best interest.

Child in Conflict with Law

First of all it has to be realized that any interaction with a juvenile delinquent is an opportunity to prevent him from committing the crime again. This missed opportunity often leads to juveniles downslide into involvement in repeated, serious and often violent crimes.

The jj act gives lot of discretion to police while dealing with children. The very concept of giving the discretion is so that the police person can act responsibly in the best interest of the child. As stated earlier, the police at the first point of contact with CICL and decides whether the child will be a part of criminal justice system at all or not. Thus the most important decisions in law enforcement are made by the police officers. At this point of contact is required the most balanced and appropriate response.

Under the JJ Act there are three categories of juvenile offenders, firstly those involved in petty offences where in the police officer has been given the discretion to sort the matter at the PS itself without resorting to any procedural requirements. The second category is of juveniles involved in non serious offences i.e. those entailing punishment of less than 7 years under the IPC. In this category the police officer can apprehend the juvenile only when it is in his best interest and then also can state that the child be treated as CNCP rather than the one in conflict with law. In serious offences wherein the punishment is more than 7 years, the police officer again has discretion on how he wants to treat the child.  Thus the discretion comes with a responsibility to see to it that the police child encounter results in a positive intervention.

What is required to fulfill the objectives of JJ Act is sensitive, proactive and dedicated policing wherein the theory can be converted into practice because on the police interaction lies the outcome of a situation as well as the future of the child. Now the question that arises is how to make the force proactive? what are the kind of officers who are becoming JWOs? what is there orientation and interest? what are the perks and resources available with the commensurate challenges in handling  juveniles?

Till these questions are dealt with, we have to make do with getting the job done through administrative directions and strict supervision. Thus we need to develop code of conduct for police personal in the lines of SOPs while dealing with children in different situations. Next step is involving the society at large. We need to rope in NGOs, other public spirited individuals, RWAs and other institutions like state legal service authorities which not only help the police agencies but also act as checks through their feedback mechanisms.

In Delhi Police, the SJPUs were created in each and every district. To bring about attitudinal and behavioral changes, training and sensitization programs were conducted for police officers at two level i.e., the police station level for all the functionaries at all level who are working in the field and at State level for all the JWOs of the Police stations. The idea was to have a sensitized police force at all levels including the field staff that invariably were the first point of contact with the child. The unique part of the police station sensitization programs is that it is being done by the NGOs working in the field of child rights. The NGOs resource persons visit the police stations regularly and interact with the police staff at all levels thus bringing in an outsiders perspective on how Delhi police is responding to children issues.

In addition to this we have an excellent networking with governmental as well as nongovernmental organizations working on child rights. It is a kind of symbiotic relationship wherein both are working for a common goal in an atmosphere of trust, support and mutual respect.  The end result is that NGOs and other organizations now work hand in hand with police in the best interest of the child.

 

PROBLEMS FACED BY POLICE in performing their duties vis a vis children

One of the major problem faced is that there is still no separate exclusive JWO or SJPU in the distt. Role conflict and lack of time as well as lack of logistic support affect the expectations from the police as the time and patience required to deal with the child is seldom there. Some of the other problems faced are

  1. the need for specialized training for appropriate handling of children
  2. the role conflict experienced by the police officer in solving a crime and helping the child.
  3. low community participation in addressing juvenile delinquency.
  4. poor police image and perception makes it difficult to establish a rapport with the child and to work within the community with mutual trust and goals.
  5. police has very little intervention or say when it comes to the orders for release or incarcerations  given by the JJBs. police rarely has any role in the after release processes that too when rules state that juvenile delinquency prevention is also one of the role of the JWO. Infect some of the orders of JJB have criticized the police officer from visiting the juvenile offender.
  6. the important point is that the positive efforts of the police do not get reflected in their output as it is measured more on crime and law and order data thus the stakes or value additions for taking on this additional work is not there in our tangible goal oriented organization as well as society.

Need of the hour is to deal with juvenile delinquency and cncp in a holistic manner, addressing at risk families so that preventive strategy can be put in place. At present there are not enough institutions and programs to help the delinquents to re-integrate in society and lead the life without crime. At times the trust that they can indeed successfully do so is also missing. Recently prayas has taken up this initiative and have started a program “yuva connect” in this regard.

Police actions have to be accompanied by actions from other institutions. Police has a limited role and cannot make any promises vis a vis resources, professional counseling and reintegration and on its own has nothing much to offer. What is required is a holistic interdepartmental approach in dealing with the delinquent and preventing them in future. In the absence of any concrete and effective rehab program and liberal courts and the fact that the repeat offenders are ever increasing, forming gangs, becoming hardened and getting involved in heinous crimes, there is chronic frustration in the police and thus the whole JJ system appears to be more symbolic than actually addressing the issue of juvenile delinquency.

Also we need to inculcate responsibility in the juvenile for his acts and omissions, the intervention of JWO should be encouraged to ensure that juveniles do not return to crime. The community service should be encouraged for reparation of their wrongs and last but not the least there is a need to develop competencies to develop the delinquents as productive citizens.

http://dpjju.com/index.php?option=com_content&view=article&id=374:p&catid=25:the-project

Paper delivered by Ms. Suman Nalwa, Addl.DCP/SPUW&C, Nanak Pura, New Delhi to National Seminar on Access to Justice-What it means to a child on 9th & 10th July, 2011 at Hall No. 6, Vigyan Bhawan, New Delhi

Mature justice

Posted in CRIME AGAINST WOMEN, CRIMINAL JUSTICE SYSTEM, DEATH PENALTY by NNLRJ INDIA on October 21, 2010

R K RAGHAVAN IN THE FRONTLINE

Three recent judgments delivered by courts at different levels in cases that were in the media glare stood out for their judicial sagacity.

THE recent trend of judicial pronouncements being assailed at the slightest provocation should be of concern to those who look upon the judiciary as the last institution of hope to buttress a crumbling system of governance. (The news of the Karnataka “thamasha” convinces me more than ever that the judiciary is our only hope against chaos.) The unfortunate situation is serious if one reckons the grave charges levelled even against personalities as high as a few former Chief Justices of India. I do not for a moment suggest that all judicial orders need to be accepted without demur or that every court decision is well reasoned and beyond reproach.

Undoubtedly, some of them are poorly written and argued, demanding circumspection and analysis. Also, the availability of a process of appeal to the highest court of the land should be a source of great comfort for those who are cynical of the quality of the lower judiciary. What I am pleading for is only a rational discussion of judgments without the sway of emotions or narrow sectarian or political proclivities. I am speaking in the context of at least three cases that were decided recently by different courts: the Supreme Court, a High Court and a trial court of sessions. These have been discussed and criticised in the media by a spectrum of public figures and experts.

Many of the commentators who were active in this connection are the best in the country, although a few carried a bias arising from their well-known political and other predilections. One must remember that such debates have a profound influence on the people’s perceptions of an institution such as the judiciary. This is why commentators need to be careful and responsible when they air their views on court judgments, even if this means they risk sounding all too trite. Whether those who commented on the three judgments – the Ayodhya, Priyadarshini Mattoo and Pratibha Murthy cases – rose to the exacting standards that I set here is doubtful.

The most contentious of the three cases is certainly the one relating to legal rights over the land on which the Babri Masjid once stood, until it was unjustifiably and crudely demolished on December 6, 1992. The judgment, in what is distinctly a civil case, given by a three-member Bench of the Allahabad High Court, decreed a three-way division of the disputed land among the three litigants. While this has been found acceptable to some sections of the population in Ayodhya and elsewhere, others believe that the ruling went beyond the questions posed to the Bench and that some of its statements, especially with regard to the place of birth of Rama, were based more on traditional faith carried over to the present, than on facts established by documents. One jurist went to the extent of criticising the ruling as the product of an attempt at mediation in “panchayati” style. This I thought was uncharitable. Fortunately, no one who was unhappy with the judgment has until now cast aspersions of bias on any of the three judges. This is great testimony to the quality of our higher judiciary.

I am no expert on Ayodhya, which is an extremely complicated tangle. I am, however, persuaded by the fact that feelings on the issue are surcharged, and any decisive ruling in favour of one of the parties would have definitely excited emotions so badly that the Court order could have led to a major inter-religious conflagration. This is what possibly agitated the minds of the judges when they gave a compromise formula. In my view, this was judicial sagacity of the highest order that deserves to be commended rather than denounced.

Even the strictest possible analysis of the verdict shows that it was not exactly extra-legal, but one that accommodated rival points of view to the extent possible. It is the role of the judiciary to ensure that in such sensitive social issues the mean path is adhered to so that equilibrium in the community is maintained. The fact that the judgment did not lead to a disturbance of peace is itself proof that it was the best compromise possible. The judiciary in a plural society needs to rise above differences of religion and caste, and the Allahabad High Court judgment did succeed in achieving this difficult objective.

The Mattoo case dealt with the brutal rape and murder, in January 1996, of Priyadarshani Mattoo, a Delhi law student, by one of her seniors, Santosh Singh. This was a crime of the most abominable variety. It was initially handled by the Delhi Police and later transferred to the Central Bureau of Investigation once it became known that the father of the accused was a senior Delhi Police officer. The CBI laid the charge sheet after sustained inquiries. The trial court was convinced that Santosh Singh was the culprit. It, however, acquitted him on the basis of certain inconsistencies in the forensic evidence let in – such as chain of custody of samples picked up at the scene.

The CBI escalated the matter to the Delhi High Court, which accepted the prosecution story in toto and sentenced Santosh Singh to death. The latter appealed to the Supreme Court. Delivering the judgment recently, the two-member Bench held the accused guilty but commuted his sentence to one of life. The judges cited the youth of the accused and the fact that he got married after acquittal by the trial court and became a father as reasons why he deserved compassion. This has naturally not gone down well with the victim’s family and their lawyers. They strongly believe that the mercy shown to Santosh Singh was misplaced and that the Supreme Court had erred in ignoring the feelings of the victim’s father, who had carried on a relentless campaign to avenge the cruelty.

It may sound contrived when I say that my heart goes out to the Mattoos, who could not have suffered a greater tragedy in their lives. I do not think we can find anybody, barring the close relatives of the accused, who demonstrates an iota of sympathy for Santosh Singh. Except some of us who stand for the abolition of capital punishment, none would have disagreed with the Supreme Court if it had confirmed the death sentence. This was because the crime was barbaric and had been established firmly despite the fact that there was no eyewitness. The point is that courts cannot take a one-sided view of a crime, even when it has been proved beyond doubt. Justice laced with sympathy is a time-honoured concept that has been accepted widely by civilised society over centuries. The Supreme Court here did not say that it disbelieved the prosecution, nor did it seek a higher standard of proof, even though Santosh Singh was held guilty mainly on circumstantial evidence. The court’s position was only on the point of compassion to the accused because he had a very young child. Also, his youth offered hope of penitence and reform.

People like us, not directly affected by the tragedy, are undoubtedly impressed by the Supreme Court’s remarkable stand, which required tremendous courage to take because of the likelihood of adverse criticism from the victim’s family and friends and the media. Undeniably, some of us are at variance with the Mattoos, who lost a lovely daughter who had a promising career before her. The conflict between rival stands – those who are touched by the judicial compassion and those looking to avenge the barbaric killing – will never be resolved. This is the tragedy of many cases brought before criminal justice agencies, and we have necessarily to live with such a paradox.

The case of the rape and murder of a business process outsourcing (BPO) employee, Pratibha Murthy, in Bangalore by a taxi driver, Shivakumar, in 2005 is only slightly different from the Mattoo case. Unlike in the latter case, the accused was a total stranger to the victim. The case was tried by a so-called fast track court and the judgment delivered only on October 8, 2010. Few doubted the guilt of the accused, and his conviction was rightly welcomed by all. The controversy is over the quantum of punishment.

The trial judge’s award of a life in jail (until death) has been criticised as lenient, because of the fear that life sentence opens up the possibility of the convict’s release at the end of 14 years, the period prescribed by the Criminal Procedure Code for such a sentence. I am not sure whether the judge’s stipulation that the convict be held in prison until he dies is sanctioned by law.

It is possible that the State may go on appeal, under pressure from the victim’s family and the weight of public opinion. In any case, the quantum of punishment imposed on the taxi driver is debatable. There is no final resolution of this. However, is it not time to take a fresh look at what “rarest of rare cases” would mean in the context of rising violent crime, especially when the victim is both raped and murdered?

In sum, the three judgments display a certain maturity of the justice system in the country, despite all the criticism against its susceptibility to political pressure and the poor quality of the lower judiciary. There is the further dismay that the judiciary, except in rare cases, does not attract the best of talent. Finally, there are the wide differences between the executive and the judiciary over the manner in which appointments should be made to the High Courts and the Supreme Court.

The three judgments offer the hope that these shortcomings in the system will not inhibit judges from being innovative, compassionate and bold in cases that attract media attention. This is why any overhauling of the system in response to charges of politicisation and downright lack of integrity against individual judges needs to be done after due deliberation. I believe this represents the consensus among the common people in the country.


Sting is legal

Posted in HUMAN RIGHTS by NNLRJ INDIA on October 21, 2010

V.VENKATESAN in New Delhi  – FRONTLINE

The Delhi High Court exonerates two journalists accused of bribing in the cash-for-questions scam.

BY holding that a sting operation by any citizen is a legitimate exercise, Justice Shiv Narayan Dhingra of the Delhi High Court resolved, on September 24, a key dilemma of journalists intending to use sting as a means of exposing corruption. Justice Dhingra, in his order, quashed the charge sheet and the summons against two journalists, Aniruddha Bahal and Suhasini Raj, who had conducted a sting operation in 2005 against Members of Parliament (MPs) in order to expose their corrupt ways. The Delhi Police, instead of prosecuting the corrupt MPs, charged Bahal and Suhasini Raj under the Prevention of Corruption Act (PCA), for seeking to bribe the MPs.

A sting operation, by implication, involves a bargain to commit an offence by a public servant in exchange for monetary or other benefits so that the person who carries out the sting will be able to capture the offence on his or her camera by subterfuge. This raised the issue of invasion of the privacy of the official being exposed, but it was mostly justified in terms of the larger public interest involved if the public servant being exposed was predisposed to corruption, and if the sting operator had the larger public interest in mind. But the legal question of whether the sting operator might be guilty of abetment to the offence committed by the public servant remained to be resolved.

In 2005, Bahal and Suhasini Raj conducted a sting operation to expose the practice, among some MPs, of taking money for asking questions in Parliament. This practice, Justice Dhingra said, had been known to the public for quite some time but had not been brought to the notice of the public at large with credible proof. Bahal and Suhasini Raj took upon themselves the responsibility of exposing such MPs with documentary proof. Television channels broadcast footage of this sting operation on December 12, 2005, which showed how some MPs accepted money for asking questions.

Following this, the then Lok Sabha Speaker, Somnath Chatterjee, constituted a committee to inquire into the allegations of the conduct of those members of Lok Sabha who were shown to have received money. The Rajya Sabha also constituted such a committee to inquire into the conduct of a Rajya Sabha member. However, it took one and a half years for the Delhi Police to register cases of corruption against these MPs. Ironically, the police made the two journalists who conducted the sting operation the prime accused in the case. Not only did the police register first information reports (FIR) against them, but the trial court took cognisance of the case against them and issued summons against them as accused on July 6, 2009.

Bahal and Suhasini Raj challenged this order of the trial court in the High Court by arguing that they conducted the sting operation to expose corruption and not to commit any crime. The police, instead of calling them as witnesses, made them the accused with the sole aim of killing the case, they contended. During the hearing, Justice Dhingra gave an opportunity to the police and the Central government to use the services of the two journalists as witnesses and seek their discharge from the case. But the government refused to do so.

Justice Dhingra posed the question to be decided in the petitions filed by Bahal and Suhasini Raj as follows: “Whether a citizen of this country has a right to conduct such sting operation to expose corruption by using agents provocateurs and to bring to the knowledge of the common man corruption at high strata of society?” He reasoned that such a right flowed from certain fundamental duties of citizens listed under Article 51A (b) of the Constitution. This Article provides that it is the duty of every citizen to cherish and follow the noble ideals that inspired the national struggle for freedom.

To Justice Dhingra, one of the noble ideals of our freedom struggle was to have an independent and corruption-free India, and it is imperative to remove corruption in order to fulfil another fundamental duty enshrined in the Constitution – to protect the sovereignty, unity, and integrity of the country.

Justice Dhingra then explained how the duty to expose corruption is linked with every other duty under Article 51A – be it the duty to defend the country, or to develop a spirit of inquiry and reforms, or to strive towards excellence in all spheres. Taking judicial note of the fact that there is widespread corruption, Justice Dhingra posited that it is the fundamental right of citizens to have a clean, incorruptible judiciary, legislature, executive and other organs of government and in order to achieve this right, every citizen has a corresponding duty to expose the corruption, if possible, with proof. This, he suggested, would make people reject corrupt representatives at the hustings and also compel the state to take action against them.

Stating that journalists carrying out a sting operation cannot be considered as accomplices in the commission of the crime, Justice Dhingra rejected the contention of the police that in order to become witnesses, the journalists who carried out the operation should have reported the matter to the Central Bureau of Investigation (CBI).

Justice Dhingra remarked: “I need not emphasise that in cases of complaints against persons in power how the CBI and the police act …. I have no doubt in my mind that if the information would have been given by the petitioners to the police or the CBI, the respective MPs would have been given information by the police beforehand and would have been cautioned about the entire operation.”

Justice Dhingra also rejected the contention that Bahal and Suhasini Raj had offered bribes to the MPs and thereby committed an offence under the PCA. He held as follows: “In order to expose corruption at higher level and to show to what extent the state managers are corrupt, acting as agents provocateurs does not amount to committing a crime. The intention of the person involved is to be seen and the intention in this case is clear from the fact that the petitioners, after conducting this operation, did not ask police to register a case against the MPs involved but gave information to people at large as to what was happening.”

Justice Dhingra indicted the conduct of the police in not registering an FIR soon after the telecast of the sting. “The police seem to have acted again as ‘his master’s voice’ of the persons in power when it registered an FIR only against the middlemen and the petitioners and one or two other persons, sparing a large number of MPs whose names were figured out in the tapes,” he wrote in his order.

One remarkable feature of Justice Dhingra’s judgment is that he equated journalists with other citizens with a duty to expose corruption. Thus any other citizen could have carried out the sting and still be entitled to the protection of the law. He considered that the duties prescribed by the Constitution for the citizens permitted them to act as agents provocateurs to bring out, expose and uproot corruption.

Justice Dhingra felt that Bahal and Suhasini Raj not only aired on television channels the tapes relating to the sting operation, but also deposed truthfully before the two committees of Parliament. The two committees did not doubt the genuineness of the tapes or the intention of the petitioners, Justice Dhingra said. “Under these circumstances, charging the petitioners with the offence under the PCA would amount to travesty of justice and shall discourage the people of this country from performing their duties enjoined upon them by the Constitution as well as Criminal Procedure Code,” Justice Dhingra held.

Justice Dhingra’s order is in contrast to the manner in which the Supreme Court treated journalists involved in another sting operation in 2004. In this case, a television reporter had obtained bailable warrants from an Ahmedabad court against four prominent persons including the then President A.P.J. Abdul Kalam and the then Chief Justice of India Justice Y.K. Sabharwal. The objective of the sting operation was to expose the malpractices in the judicial administration in the subordinate courts in Ahmedabad.

The Supreme Court quashed the warrants as illegal and went on to examine whether the sting operation was legal. During the hearing of the case, Vijay Shekhar vs Union of India, the then Chief Justice of India, K.G. Balakrishnan, insisted on an “unconditional apology” from the reporter. Observers wonder whether Justice Dhingra’s landmark order could influence the outcome of this case, which remains inconclusive.

Meanwhile, Bahal has filed a caveat in the Supreme Court lest the Delhi Police seek to appeal against the verdict. If the Delhi Police, and the Central government under which it functions, decide to appeal against it, it will only confirm their contempt for a citizen’s duty to expose corruption.

http://www.flonnet.com/stories/20101105272204700.htm

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