The Indian media display certain defects. These should ideally be addressed and corrected in a democratic manner. But if the media prove incorrigible, harsh measures may be called for. The time has come when some introspection by the Indian media is required. Many people, not only those in authority but even ordinary people, have started saying that the media have become irresponsible and wayward, and need to be reined in.
Only a couple of days back I read in the newspapers that the Union government has issued some regulations regarding licences for news channels, to which there was a lot of reaction. Under the Constitution of India, freedom of the media is part of the freedom of speech guaranteed by Article 19 (1) (a). However, no freedom can be absolute, and reasonable restrictions can be placed on it. One of the basic tasks of the media is to provide truthful and objective information to the people that will enable them to form rational opinions, which is a sine qua non in a democracy. But are the Indian media performing this role properly?
I may only mention certain defects in the functioning of the India media today.
One of the defects is that the media often twist facts. I would like to give an example.
One day, a leading English newspaper published on its front page a photograph of Justice Gyan Sudha Misra of the Supreme Court with the caption: “Supreme Court Judge says that her daughters are liabilities.” This was a distorted and fallacious item of news, published on the front page.
Supreme Court Judges have to disclose their assets and liabilities. Against the liabilities column, Justice Misra had written: “two daughters to be married.” Strictly speaking, it was not necessary to mention this because liabilities mean legal liabilities, for example, housing loan, car loan, and so on. Justice Misra’s intention was obviously to say that she would have to spend on her daughters’ future marriage. She has three daughters (no son), only one of whom has been married. Justice Misra never said, nor intended to say, that her daughters were liabilities. The news was false and defamatory, with the obvious intention of creating a sensation.
A second defect concerns the issue of paid news that has become prominent of late. In the 2009 elections, it was a scandal. How this vicious practice could be stopped needs to be discussed. Incidentally, in compliance with an order of the Chief Information Commissioner dated September 19, 2011, we have placed the 71-page report of the Committee consisting of Paranjoy Guha Thakurta and Sreenivas Reddy on our website, http://www.presscouncil.nic.in with the disclaimer that the Press Council had rejected this report at its meeting held on April 26, 2010.
Non-issues as real issues
A third defect is that the media often portray non-issues as real issues, while the real issues are sidelined. The real issues in India are economic, that is, the terrible economic conditions in which 80 per cent of our people are living, the poverty, unemployment, lack of housing and medical care and so on. Instead of addressing these real issues, the media often try to divert the attention of people to non-issues. Such as that the wife of a film actor has become pregnant, whether she will give birth to a single child or to twins, and so on. Are these the real issues facing the nation?
At a Lakme India Fashion Week event, there were 512 accredited journalists covering the event in which models were displaying cotton garments, while the men and women who grew that cotton were killing themselves at a distance of an hour’s flight from Nagpur, in the Vidharbha region. Nobody told that story, except one or two journalists, locally.
Is this a responsible way for the Indian media to function? Should the media turn a Nelson’s eye to the harsh economic realities facing over 75 per cent of our people, and concentrate on some ‘Potemkin villages‘ where all is glamour and show biz? Are not the Indian media behaving much like Queen Marie Antoinette, who said that if the people had no bread, they should eat cake?
No doubt, sometimes the media mention farmers’ suicides, the rise in the price of essential commodities, and so on, but such coverage is at most 5 per cent to 10 per cent of the total. The bulk of the coverage goes to showing the life of film stars, pop music, fashion parades, cricket and astrology.
Tendency to brand
Here is a fourth defect. Bomb blasts have taken place near the Delhi High Court, in Mumbai, Bangalore and so on. Within a few hours of such a bomb blast, many TV channels started showing news items that said that the Indian Mujahideen or the Jaish-e-Mohammed or the Harkatul-Jihad-e-Islam had sent e-mails or text messages claiming responsibility. The names of such alleged organisations will always be Muslim ones. Now, an e-mail can be sent by any mischievous person, but by showing this on TV channels and the next day in the newspapers, the tendency is to brand all Muslims as terrorists and bomb-throwers.
The truth is that 99 per cent of the people of all communities, whether Hindu, Muslim, Christian or Sikh, and of whatever caste or region, are good. But the manner in which such news is shown on TV screens and published in newspapers tends to create the impression that all Muslims are terrorists, and evil — which is totally false. The person who sends such e-mails or text messages obviously wants to create hatred between Hindus and Muslims, which is the old British divide-and-rule policy continuing even today. Should the media, wittingly or unwittingly, become part of this policy of divide-and-rule?
No doubt there are defects not only in the media but in other institutions also, for example, the judiciary, the bureaucracy, and so on.
There are two ways to remove these defects in the media. One is the democratic way, that is, through discussions, consultations and persuasion — which is the method I prefer. The other way is by using harsh measures against the media, for example, by imposing heavy fines on defaulters, stopping government advertisements to them, suspending their licences, and so on.
In a democracy we should first try the first method to rectify the defects through the democratic method. For this purpose, I have decided to have regular get-togethers with the media, including the electronic media, so that we can all introspect and ourselves find out ways and means to rectify the defects in the media, rather than this being done by some government authority or external agency.
I propose to have such get-togethers once every two or three months, at which we will discuss issues relating to the media and try to think of how we can improve the performance of the media so that it may win the respect and confidence of the people.
If the media prove incorrigible, harsh measures may be required. But in my opinion, that should be done only as a last resort and in extreme situations. Ordinarily, we should first try to resolve issues through discussion, consultation and self-regulation. That is the approach which should be first tried in a democracy. I, therefore, request the Union government to defer the implementation of its recent decision regarding news channel licences, so that we can ourselves discuss the issue thoroughly, and ourselves take corrective measures.
Till now the function of the Press Council was only adjudication. I intend to make the Press Council an instrument of mediation in addition, which is in my opinion the democratic approach. For this purpose, I need help, cooperation and advice from the media.
India is passing through a transitional period in its history, from a feudal agricultural society to a modern industrial society. This is a very painful and agonising period. The media must help society in going through this transitional period as quickly as possible, and by reducing the pain involved. This they can do by attacking feudal ideas, for example, casteism and communalism, and promoting modern scientific ideas.
(This is the edited text of a speech delivered by Justice (retired) Markandey Katju, the new Chairman of the Press Council of India, on October 10 at a get-together with mediapersons at his residence in New Delhi. The full text is available at www.thehindu.com)
Ministers involved in sports bodies oppose the Sports Development Bill. Sharad Pawar sees it as an attempt to bring the BCCI under the RTI.
THE organised wails and breast-beating of members of the Union Cabinet holding high offices in sports bodies, at the Cabinet meeting on August 30, reminds one of a similar spectacle enacted by Zamindars over half a century ago, when Bills for abolition of the Zamindari system were introduced in State legislatures. This time the tamasha was over the National Sports Development Bill, 2011, which Minister for Sports and Youth Affairs Ajay Maken tabled for discussion in the Cabinet.
The strongest opposition came from Agriculture Minister Sharad Pawar, who threatened to take up the matter with the United Progressive Alliance (UPA) chairperson Sonia Gandhi and ask her to discuss it in the UPA coordination committee: “[T]ell [ sic] her to allow me to follow my party’s decision during the voting on the Bill” ( The Times of India, August 31). The confidence with which he anticipated the decision of his party, the Nationalist Congress Party (NCP), says a lot for that party and for him.
The shrillest of the mourners was Farooq Abdullah. As has been pointed out earlier in this journal, citing authoritative dicta by constitutional authorities, Ministers who are affected personally by a proposed measure have absolutely no right to be present at the Cabinet meeting that is to discuss the measure. The vice is not cured one bit by “disclosure of interest”, quite apart from the fact that the interest was only too well known. (“A flawed waiver”, Frontline, May 6, 2011). Rule 255 of the Rules of Procedure of the Lok Sabha provides that if a member of a committee of Parliament has a “personal” or “direct interest” on a matter to be discussed, he shall, on the Speaker’s finding to that effect, “ cease to be member thereof forthwith”.
In 1937, Sir John Simon reiterated the rules on behalf of the Prime Minister:
“In the first place, it is plain that in no circumstances must a man who holds the position of a Minister ever allow himself to be in such a situation that his public duty will conflict with his private interests…. The second principle is that no man should allow himself to occupy any portion of the time which he is bound to devote to his public duties in a disregard of his public duties, and pursuing any private interest whatever, whether it is in playing golf or in the nature of business.
“The third principle is that inasmuch as the secrets of the government are specially in charge of Cabinet Ministers, no Minister, and particularly no Cabinet Minister, must in any circumstances put himself in a position where he is not able to be the complete guardian of those secrets in that there is any possibility of any private interests being served through a knowledge of those secrets” (324-C. Debates Ss., 1220).
What is the lure of power over sports bodies that drives politicians to seek that power while grasping simultaneously at state power? In this category fall also Praful Patel, Vilasrao Deshmukh, C.P. Joshi, Farooq Abdullah and Arun Jaitley.
Regardless of their protests, the Bill must be considered objectively. Control of sports bodies by politicians is offensive; more so is state Control. Involved are two distinct issues. One is the application of the Right to Information (RTI) Act, 2005, to the Board of Control for Cricket in India (BCCI). The other comprises regulatory measures over all national sports federations, including the BCCI. They are: a 70-year age bar and a 12-year tenure limit on office-bearers of the federations and the BCCI, a 25 per cent reservation of seats on their executive boards for sportsmen of the same game, anti-doping norms, provision for “recognition” of the federations (BCCI included) by the Government of India and the publication of audited accounts. Clause 6(1) of the Bill reads thus: “Every national sports federation shall, in collaboration with the Sports Authority of India (SAI) and with the approval of the Central Government, develop a long-term development plan for a period of four years.”
Heavy Industries Minister Praful Patel’s objection is valid: “If such a Bill is passed, bureaucrats like a Joint Secretary will be soon running the sports federation. What is their competence in sports administration? The Sports Ministry should rather address the issue of free and fair elections in sports bodies.”
The Sports Minister replies: “Section 6(1) Clause only relates to those federations which are funded by the government. After all, the Ministry has a right to see how its funds are utilised. But the provision is not applicable for bodies like the BCCI, which does not take grant-in-aid from the government” ( Indian Express, September 1).
For all the furore, there is considerable common ground between the rival viewpoints and, therefore, ample ground for compromise. Note these pronouncements. Sports Minister Ajay Maken said: “Whichever provision that sports federations find intrusive, we are willing to look into it. Our intention is not to control the national sports federations but to regulate them. We do not intend to be intrusive.”
Praful Patel said he did not have any issue with opening the BCCI to RTI scrutiny, adding that this was his personal view. Patel, who heads the All India Football Federation (AIFF), however, said he had objections to only specific provisions and not to the entire draft Bill per se. “Personally, I don’t have any issues with RTI [for BCCI]. But I do not agree with the clauses relating to age bar, tenure limitation and control of sporting bodies by the government.”
A provision of the draft Bill says: “Every national sports federation (this includes the BCCI) shall every year before December 21 publish on its website audited annual financial statements, comprehensive report of its activities and achievements.” What objection can any sports federation possibly have to such a provision? Sports federations, the BCCI included, select national teams for participation in matches abroad.
In the very nature of things, there has to be a certain liaison between the state and the federations. The BCCI is accepted internationally only because it is seen internationally to enjoy a measure of official backing and support. Without these its clout would dissipate. We have to steer between the Scylla of politicians’ corrupting control and the Charybdis of state control, which will cripple sports.
Some legislation is overdue. One must consider first the legal status of the BCCI and, relatedly, its behaviour. There are four rulings on its status. One is by the Delhi High Court. The other three are by the Supreme Court: (1) BCCI vs Netaji Cricket Club and Ors. (2005) 4 Supreme Court Case 741 decided by Justices N. Santosh Hegde and S.B. Sinha on January 10, 2005. Only a few days later, on February 2, 2005, they split; each pronouncing for the differing judges (3-2), a narrow majority, in (2) Zee.Telefilms Ltd & Anr vs Union India & Ors. (2005) 4 SCC 649, and, lastly, (3) A.C. Muthiah vs BCCI & Anr (2011) 6 SCC 617 decided on April 28, 2011, by Justices J.M. Panchal and Gyan Sudha Misra. They differed and referred the matter to the Chief Justice of India “for being assigned to an appropriate Bench”. Thus, despite the three cases, the issue of the BCCI’s status remains to be decided finally, one hopes by a larger Bench. The final result is unlikely to please the zamindars of the BCCI, judging by the reasoning of the eminent judges who ruled on the issue. It is best to quote their words at some length.
Part III of the Constitution, embodying the Fundamental Rights, applies only to “the state”, not to private individuals or associations. Article 12 defines what “the state” means in this context. It covers the Central and State governments and legislatures and “all local or other authorities within the territory of India or under the control of the Government of India”. The Supreme Court interpreted Article 12 to cover a host of bodies so that the citizen can enforce his fundamental rights against them. Is the BCCI a state so defined? The BCCI was formed in 1928, as an unregistered association of persons. It was registered in 1940 under the Societies Registration Act, 1860, a Central statute. It was later registered under the Tamil Nadu Societies Registration Act, 1975, which came into effect on April 22, 1978.
The first case ( BCCI vs Netaji Cricket Club) concerned elections for the post of the BCCI’s president. Netaji Club was a member of the Tamil Nadu Cricket Association (TNCA), which, in turn, was a member of the BCCI. The judgment was delivered by Justice S.B. Sinha of the two-judge Bench. Justice Santosh Hegde was party to it. It said:
“The Board is a society registered under the Tamil Nadu Societies Registration Act. It enjoys a monopoly status as regards regulation of the sport of cricket in terms of its Memorandum of Association and Articles of Association. It controls the sport of cricket and lays down the law therefor. It inter alia enjoys benefits by way of tax exemption and right to use stadia at nominal annual rent. It earns a huge revenue not only by selling tickets to viewers but also selling right to exhibit films live on TV and broadcasting the same. Ordinarily, its full members are the State associations except Association of Indian Universities, Railway Sports Control Board and Services Sports Control Board. As a member of ICC [International Cricket Council], it represents the country in the international fora. It exercises enormous public functions. It has the authority to select players, umpires and other officers. The Rules of the Board clearly demonstrate that without its recognition no competitive cricket can be hosted either within or outside the country. Its control over the sport of competitive cricket is deeply pervasive and complete.
“In law, there cannot be any dispute that having regard to the enormity of power exercised by it the Board is bound to follow the doctrine of ‘fairness’ and ‘good faith’ in all its activities. Having regard to the fact that it has to fulfil the hopes and aspirations of millions, it has a duty to act reasonably. It cannot act arbitrarily, whimsically or capriciously. As the Board controls the profession of cricket, its actions are required to be judged and viewed by higher standards.”
Zee Telefilms Ltd vs Union of India was decided by a Bench of five judges. It squarely concerned the issue whether the BCCI fell within the definition of “the state” in Article 12. The Bench split narrowly. Justice Santosh Hegde delivered the judgment for himself and Justices B. Singh and H.K. Sema, while Justice S.B. Sinha delivered the dissent on his own behalf and on behalf of Justice S.N. Variava.
Admittedly, the BCCI is neither controlled by the government nor does it receive financial assistance from it. The majority ruled that it was not an instrumentality of the state. The government’s plea that it enjoyed it “ de facto recognition” was rejected. But the majority qualified this:
“However, it is true that the Union of India has been exercising certain control over the activities of the Board in regard to organising cricket matches and travel of the Indian team abroad as also granting of permission to allow the foreign teams to come to India. But this control over the activities of the Board cannot be construed as an administrative control. At best this is purely regulatory in nature and the same according to this court in [the] Pradeep Kumar Biswas case is not a factor indicating a pervasive state control of the Board.
“Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or state functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or she is not a state. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32.” The gap between this view and the minority view is not wide.
Article 226 confers on High Courts power to issue “to any person or authority” and “any government” writs for the enforcement of the fundamental rights “and for any other purpose”. Article 32 empowers only the Supreme Court to issue writs for the enforcements of the fundamental rights. The majority very well knew that the Supreme Court has driven a coach-and-four through Article 32. It has issued writs for all manner of purposes. It would be unsafe for the BCCI to bank on the majority view with its explicit recognition that the BCCI does exercise “ public duties or state functions”. How then can it object to Central legislation?
Justice Sinha’s dissent focuses on this very point, the BCCI’s Achilles’ heel. He said: “Its actions of promoting the sport, making laws for cricket for the entire country, representing the country in international forums, appointing India’s representatives, and the all-pervasive control over players, managers and umpires are state actions.” He cited an English ruling that said: “The reason why a club is not subject to judicial review is not just because it is self-regulating. The panel wields enormous power. It has a giant’s strength. The fact that it is self-regulating, which means, presumably, that it is not subject to regulation by others, and in particular the Department of Trade and Industry, makes it not less but more appropriate that it should be subject to judicial review by the courts.”
Justice Sinha observed: “The Board [BCCI] while enjoying monopoly in cricket exercises enormous power, which is neither in doubt nor in dispute. Its action may disable a person from pursuing his vocation and in that process subject a citizen to hostile discrimination or impose an embargo which would make or mar a player’s career. The right to pursue an occupation or the right of equality are embedded in our Constitution, whereby citizens of India are granted much higher right as compared to the common law right in England. A body although self-regulating, if it performs a public duty by way of exercise of regulatory machinery a judicial review would lie against it. The question has since been considered from a slightly different angle, viz., when such action affects the human right of the person concerned holding that the same would be public function. If the action of the Board impinges upon the fundamental or other constitutional rights of a citizen or if the same is ultra vires or by reason thereof an injury or material prejudice is caused to its member or a person connected with cricket, judicial review would lie. Such functions on the part of the Board being public functions, any violation of or departure or deviation from abiding by the Rules and Regulations framed by it would be subject to judicial review. Time is not far off when having regard to globalisation and privatisation the rules of administrative law have to be extended to private bodies whose functions affect the fundamental rights of a citizen and who wield a great deal of influence in public life.” The logic is unanswerable.
Justice Sinha pointed out: “The traditional tests of a body controlled financially, functionally and administratively by the government as laid down in Pradeep Kumar Biswas would have application only when a body is created by the state itself for different purposes but incorporated under the Indian Companies Act or the Societies Registration Act. Those tests may not be applicable in a case where the body like the Board was established as a private body long time back. It was allowed by the state to represent the state or the country in international fora. It became a representative body of the international organisations as representing the country. The nature of function of such a body becomes such that having regard to the enormity thereof it acquires the status of monopoly for all practical purposes; regulates and controls the fundamental rights of a citizen as regards his right of speech or right of occupation, becomes representative of the country either overtly or covertly and has a final say in the matter of registration of players, umpires and others connected with a very popular sport. The organisers of competitive Test cricket between one association and another or representing different states or different organisations having the status of state are allowed to make laws on the subject, which is essentially a state function in terms of Entry 33 List II of the Seventh Schedule of the Constitution. In such a case, different tests have to be applied.”
The BCCI selects India’s Team, not the BCCI’s team. “As per ICC Rules and Guidelines for Classification of Official Cricket, the definition of a Test match in clause 1(a)(i) is as follows: ‘Any cricket match of not more than five days scheduled duration played between two teams selected by full members as representatives of their member countries and accorded the status of Test match by the Council.’ Indisputably, the Union of India had issued guidelines, which had been reviewed from time to time. The Ministry of Youth Affairs and Sports issued the revised guidelines and forwarded the same to the presidents/ Secretary General, Indian Olympic Association, and presidents/ hon. general secretaries of all recognised sports federations, incorporating therein the amended provisions. Cricket is included in annexure I within the category.”
Justice Sinha proceeded to analyse the government’s guidelines. “Annexure II appended to the guidelines provides for recognition of national sports federations, inter alia, by laying down the eligibility therefor and the necessity of filling of applications in that behalf. Clause 3, 12, reads as under: ‘There would be only one recognised federation for each discipline of sport, irrespective of the fact that the particular sport caters to youngsters, men, women or veterans.
‘However, this condition shall not apply to federations already recognised by the Department.’ Clause 5 provides for grant of recognition. Annexure III appended to the said guidelines provides for the procedure for suspension/withdrawal of recognition and consequences thereof. The guidelines also prescribe forms required to be used by the federations for different purposes.
“The Board for all intent and purport was a recognised body. Probably in that view of the matter, the Board did not think it necessary to apply for grant of such recognition by the Union of India, asking it for passing a formal order. However, the Board had all along been obtaining the requisite permission for sending an Indian team abroad or for inviting a foreign team to India in the prescribed form. …a number of documents have been annexed, which clearly go to show that from the very beginning the Board had been asking for the permission of the Ministry of Human Resource Development either to go abroad or to play or participate in other countries or for inviting the others to play in India. Such permission had been sought for in the form prescribed in terms of the said Regulations. The said documents leave no manner of doubt that the Board had asked for and the Union of India had granted de facto recognition.” So much for the objection to the government’s power of “recognition”.
“It is not disputed that the Union of India has not recognised any other national sports body for regulating the game of cricket in India. It is the categorical stand of the Union of India that only by such recognition granted by the Union of India is the team selected by the Board the Indian cricket team, which it could not do in the absence thereof. We cannot accept the submission of Mr Venugopal to the effect that even while playing abroad, the Board sends its own team. It is evident from the records, which fact has also been noticed by the Delhi High Court in its judgment in Rahul Mehra, that the Board fields its team as the Indian team and not as Board Eleven, which without having any authority from the Union of India it will not be able to do. The stand that the cricket team selected by the Board only represents it and not the country is incorrect. Having regard to the Rules of the ICC, its own Rules as also various documents placed before this court by the Union of India, the conduct of both the Board and the Union of India clearly goes to show that sub silentio both the parties had been acting on the premise that the Board is recognised as the only recognised national federation for the purpose of regulating the game of cricket in India.”
Read this: “A body which carries on the monopolistic function of selecting a team to represent the nation and whose core function is to promote a sport that has become a symbol of national identity and the medium of expression of national pride, must be held to be carrying out governmental functions. A highly arbitrary or capricious action on the part of such a powerful body would attract the wrath of Article 14 of the Constitution. The Board itself acted as a representative of the Government of India before the international community. It makes representations to the effect that it was entitled to select a team which represents the nation as a cricket-playing country, and, thus, the same would, without anything more, make its action a state action. For the said purpose, actual control of the Board or issuing any direction in that behalf by the Government of India is not of much significance, but the question as to whether the government, considering the facts and circumstances, should control the actions of the Board as long as it purports to select a team to represent India would be a matter of great significance.
“The guidelines issued by the Union of India clearly demonstrate its concern with the fall in standard of Indian teams in sports in important international sports events. It would not be correct to draw a comparison between an event of international sport as significant as cricket with beauty pageants and other such events as the test necessary to be evolved in this behalf is the qualitative test and not the quantitative test. The quality and character of a sport recognised as a measure of education and nation-building (as a facet of human resource development) cannot be confused with an event that may be a form of entertainment. Cricket, as noticed hereinbefore, has a special place in the hearts of citizens of India.
“The monopoly status of the Board is undisputed. The monopoly enjoyed by the Board need not be a statutory one so as to conform to the tests contained in Clause (6) of Article 19 of the Constitution. It can be a de facto monopoly which has overtly or covertly received the blessings of the Union of India. The de facto monopoly of the Board is manifest as it, as a member of ICC (even if it is technically possible to float any other association), can send an Indian team abroad or invite a foreign team to India. In the absence of recognition from the ICC, it would not be possible for any other body, including the Union of India, to represent India in the international cricket events featuring competitive cricket….
“The Board which represents a nation with or without a statutory flavour has duties to perform towards the players, coaches, umpires, administrators and other team officials. They have a duty to create safe rules for the sport, if by reason thereof a physical injury to the player is to be avoided and to keep safety aspect under ongoing review. A body may be autonomous but with autonomy comes responsibility. Sport is a ‘good thing’ wherefor a societal end is to be provided. Sport must receive encouragement from the state and the general public or at least not be discouraged. Health, sociability and play are considered to be important values to be recognised in a human.
“Having regard to the nature of activities, viz., the Board represents a sovereign country while selecting and fielding a team for the country with another sovereign country, promoting and aiming at good relations with the said country as also peace and prosperity for the people, even at the domestic level the citizens of the said country may be held to be entitled to the right to invoke the writ jurisdiction of this court even if hereby no personal fundamental right is directly infringed.
“With the opening up of the economy and globalisation, more and more governmental functions are being performed and showed to be performed by private bodies. When the functions of a body are identifiable with the state functions, they would be state actors only in relation thereto… What is necessary is to find out as to whether by reason of its nature of activities, the functions of the Board are public functions. It regulates and controls the field of cricket to the exclusion of others; its activities impinge upon the fundamental rights of the players and other persons as also the rights, hopes and aspirations of the cricket-loving public. The right to see the game of cricket live or on television also forms an important facet of the Board. A body which makes a law for sports in India (which otherwise is the function of the state), conferring upon itself not only enormous powers but also final say in disciplinary matters and, thus, being responsible for making or marring a citizen’s sports career, would be an authority which answers the description of ‘other authorities’.”
The third case arose out of a suit filed by A.C Muthiah, a former president of the BCCI, against the BCCI. It had invited Indian Cements Ltd., based at Chennai and represented by its managing director N. Srinivasan (respondent 2), to participate in the auction conducted by the Indian Premier League (IPL). Srinivasan was also the hon. treasurer of the BCCI and president of the TNCA. He was awarded the franchised IPL rights for ownership of Chennai Super Kings team by the BCCI. Muthiah alleged conflict of interest and filed a suit in the Madras High Court for various reliefs. Srinivasan participated in the Annual General Meeting of the BCCI held in Mumbai on September 27, 2008, since the court had not granted a temporary injunction. More, he was also elected secretary of the BCCI. On the same day, Clause 6.2.4 of the Regulations for Players, Team Officials, Managers, etc., was amended with immediate effect to cover the plea of conflict of interest. It now read: “No administrator shall have directly or indirectly any commercial interest in the matches or events conducted by [the] BCCI excluding events like IPL or Champion League Twenty 20” (emphasis added, throughout).
Muthiah sued again to have the amendment declared void as being made mala fide. The matter eventually reached the Supreme Court. Justice Panchal not only held that the BCCI was not “the state” but opined in the teeth of the record that the Netaji Club case was “no longer good law” in view of the ruling in the Zee Telefilms case. There was nothing to prevent the Bench in the latter case from saying so. It had not. Indeed, Santosh Hegde’s remarks quoted above came very close to Justice Sinha’s.
Justice Gyan Sudha Misra disagreed with Justice Panchal completely, observing: “Just after a few days of filling of the suit by the plaintiff-appellant herein Shri Muthiah, wherein he sought to enforce the policy in Clause 6.2.4 against the second respondent Shri N. Srinivasan, BCCI met on 27-9-2008 and introduced an amendment to Clause 6.2.4 carving out an exception therein, which reads as follows: ‘No administrator shall have directly or indirectly any commercial interest in any of the events of BCCI excluding IPL, Champions League and Twenty 20.’ Thus, by one stroke of an amendment, which was introduced with racing speed, without any deliberation by BCCI, and without notice of 21 days to the members on this agenda, which was required under the Regulation, the most commercial event of BCCI, namely, IPL, Champions League and Twenty 20 matches, were excluded from Clause 6.2.4, diluting the entire effect of Clause 6.2.4, reducing this salutary clause into a dead letter.”
Two observations by Justice Misra deserve particular attention. “I also find sufficient force and substance in the contention of the learned counsel for the appellant that as BCCI discharges important public functions such as the selection of Indian Team and the control on the players and has to discharge important public functions, it cannot be expected to act arbitrarily, whimsically and capriciously so as to hold that the two suits are not maintainable at the instance of the appellant, who, although admittedly is the past president of BCCI and hence an administrator, had no locus standi to file even a civil suit and seek order of injunction for suspending the effect of amendment on the plea that as he was not a member of the subcommittee he was not competent to challenge the amendment introduced in the BCCI Regulations.”
The judge added. “It is essential to highlight that the BCCI Regulation itself acknowledges this position when it lays down in Clause 6.2.4 that ‘no administrator shall have direct or indirect commercial interest in any events of BCCI’, but dilutes its effect by amending it and making IPL, Champions League and Twenty 20 matches as an exception which is the most lucrative and revenue generating event. If the administrator is clearly barred as per the Regulations from having any commercial interest in the events of BCCI, it is beyond my comprehension as to how only one class of matches, which was IPL, Twenty 20 and Champions League, could be treated as an exception by allowing an office-bearer to participate in the bid but preventing him from other matches including Test matches.”
More to the main point: “It would be difficult to overlook that multiple loyalties can create commercial interest with the activities of BCCI, thus resulting in conflict of interest since the financial or personal interest of the Board would clearly be inconsistent with the commercial and personal interest of the administrator of the Board. In addition, the rule of equity and fairness provides that no one who stands in a position of trust towards another can in matters affected by that position, advance his own interests, for example, by trading and making a profit at that other’s expense as the rule of legal prudence mandates that once a fiduciary is shown to be in breach of his duty of loyalty, he must disgorge any benefit gained even though he might have acted honestly and in his principal’s best interest. In the instant matter, when BCCI held auction for owning IPL team and an administrator, respondent 2, participated in the bid, variety of real and/or perceived conflict of interest cannot be ruled out. These included access to insider information, possible undue influence on the decision-makers who held the auction, and the like.” The BCCI was clearly guilty of gauche manoeuvre. This is not the conduct of one as pure as driven snow. The BCCI’s status and its conduct cry for legislation. The former’s uncertainty must be removed. Excesses like the latter must be curbed. The Jagmohan Dalmiya and Lalit Modi power struggles in the BCCI tell their own tale.
First the definition of “public authority” in Section 2 (h) of the Right to Information Act, 2005 must be widened to include “any body which receives aid and assistance from the government whether by user of government-owned land for services, of a government agency”. To put the matter beyond doubt, the BCCI can be mentioned explicitly in this amendment – or in the proposed Bill.
Some genius in the Sports Ministry prepared an 81-page note for the Cabinet claiming that Parliament can legislate by invoking entries 10 and 13 of the Union List ( DNA, August 31). This is utterly false. These entries relate, respectively, to “foreign affairs” and “participation in international” fora. “Sports” is a State subject exclusively under Entry 33 of the State List. Equally wrong would it be to invoke Entry 25 in the Concurrent List on “education”, stretching it to cover sports despite its explicit mention in the State List. However Entry 63 of the Union List empowers Parliament to legislate in respect of any “institution declared by Parliament by law to be an institution of national importance”. The BCCI fits the Bill even more than the Indian Council of World Affairs for which it was invoked.
Even in the U.S., the haven of private enterprise, its Supreme Court propounded the doctrine that when “one devotes his property to a use in the public interest which the public has an interest, he, in effect, grants to the public an interest in that use and must submit to be controlled by the public for the common good” ( Munn vs Illinois 94 U.S. 113, 126 (1877). This is the doctrine of private utility affected by public interest. Legislative competence is beyond challenge. It is only right that the power should be exercised in a conciliatory spirit. There is and can be no issue as to the RTI. On the other points – age bar, tenure, etc. – the government must engage in quiet and earnest talks with the BCCI, other sports bodies, sportsmen of note and, indeed, the public at large.
The Times of India of September 7 carried this report by K. Shrinivas Rao:
“BCCI secretary N. Srinivasan has admitted before Parliament’s standing committee on finance that the Indian board needed to own up for financial irregularities in the Indian Premier League. Srinivasan said the BCCI could not cleaim exoneration simply by claiming that suspendd IPL chairman Lalit Modi was running the show. The BCCI had previously put the onus on Modi when it came to explaining lapses in expenditure during the first three editions of the IPL…. Maintaining that other senior officials had no idea of wrongdoings since Modi was given a free hand. The change in the BCCI’s stance is revealed in a recent report of the standing committee.”
N. Srinivasan is quoted in direct quotes: “I know we can’t plead before you that we did not know all this was happening. Your question would be, were you not vigilant? I am sorry, sir, there is no defence for me.”
In the face of all this, it would be a betrayal of the public interest to leave this rogue elephant at large.
The directions of the Supreme Court of India on evolving proper schemes for sex workers across the country were highlighted in a report by our Legal Correspondent published in The Hindu of August 3, 2011. In its order of August 2, the Bench of Justices Markandey Katju and Gyan Sudha Misra commended the panel it had constituted, which is headed by senior counsel Pradip Ghosh, for going about the task assigned to it “in right earnest.” Noting that it would take time to rehabilitate sex workers in India, the court observed that “it is ultimately the people of the country, particularly the young people, who by their idealism and patriotism can solve the massive problems of sex workers.” The court particularly appealed to the youth of the country to “offer their services in a manner which the panel may require so that the sex workers can be uplifted from their present degraded condition.”
The draft has been approved and is expected to be released shortly for comments
There must be a bar on assembly for discussing young persons marrying as per their choice
Village elders have no right to interfere with the life and liberty of such couples
NEW DELHI: To tackle the menace of ‘honour killings‘ in some parts of the country and deal with illegal orders from by ‘khap panchayats,’ the Law Commission has proposed legislation to prosecute persons or a group involved in such endangering conduct and activities.
The proposed legislation, ‘The Endangerment of Life and Liberty (Protection, Prosecution and other measures) Act, 2011,’ drafted by Law Commission Member and senior advocate R. Venkataramani, has been discussed and approved by the Commission, which is headed by Justice P. Venkatarama Reddi. It is expected to be released shortly for comments.
The Commission has turned down the demand for introducing a clause in Section 300 of the Indian Penal Code (murder) to bring ‘honour killings’ under the ambit of this Section. It says: “There is no need to introduce a provision in Section 300 in order to bring the so-called honour killings within the ambit of this provision. The addition of such a clause may create confusion and interpretational difficulties. The existing provisions in the IPC are adequate to take care of the situations leading to overt acts of killing or causing bodily or other acts to the targeted person who allegedly undermined the honour of the caste or community.”
The idea behind the provisions in the draft legislation is that there must be a threshold bar on congregation or assembly for discussing and condemning the conduct of young persons above the age of majority in marrying as per their choice even if they belong to the same ‘gotra’ (which is not prohibited) or they belong to different castes or communities. ‘Panchayatdars’ or village elders have no right to interfere with the life and liberty of such young couples and they cannot create a situation in which such couples are placed in a hostile environment in the village/locality concerned.
Under the proposed law, “the act of endangerment of life and liberty shall mean and include any manner of acts of threat, encouragement, commending, exhorting and creating an environment whereby loss of life and liberty is imminent or threatened and shall include (a) enforcement of measures such as social boycott, deprivation of the means of livelihood, denial of facilities and services which are otherwise generally available to the people of the locality concerned and (b) directly or indirectly compelling the persons concerned to leave or abandon their homestead in the locality.”
“Further, it shall be unlawful for any group of persons to gather, assemble or congregate with the … intention to deliberate, declare on, or condemn any marriage or relationship such as marriage between two persons of majority age in the locality concerned on the basis that such conduct or relationship has dishonoured the caste or community or religion of all or some of the persons forming part of the assembly or the family or the people of the locality concerned.”
It shall be presumed that any person or persons found to be part of the unlawful caste assembly did so with the intention to act in endangerment of life or liberty. Such an assembly shall be treated as an unlawful assembly and those present in it shall be punished with imprisonment for a period of not less than three years and extending up to five years and a fine of Rs.30,000.
The draft legislation says: “Any person or persons instrumental in gathering of such an assembly or who takes an active part in the execution of the assembly shall also be subjected to civil sanctions,” viz., they will not be eligible to contest any election to any local authority and will be treated as a disqualified candidate.
Three pronouncements made on three consecutive days this month by the Supreme Court of India have brought relief to different groups of economically and socially deprived people. The beneficiaries include children sold out by poor parents to work in circuses as child labour; young men and women determined to get married crossing caste barriers and harassed for that very reason by ‘khap panchayats’; and the hungry poor across the country denied their right to food, even as thousands of tonnes of food grains rot in government godowns.
Interestingly, the media, by and large, have been playing a proactive role in bringing the issues on to the public agenda. Daily newspapers and magazines have published several articles about hundreds of children, mostly girls, who were brought to India from neighbouring countries, especially Nepal and Bangladesh, to work in circus companies that have proliferated across the country. The living conditions were inhuman, resembling slavery. Thanks to some dedicated NGOs working in India and Nepal, the Indian media have exposed the trafficking in girls, who end up being exploited and sexually abused by circus owners and their men. This is the pathetic life of girls bought for paltry sums of money from poor parents not only from adjacent countries but also from Indian States such as Uttar Pradesh and Bihar. This is the price these hapless children and their families pay to keep our children laughing. BBC News and international news agencies have also reported on the girls’ sufferings, while performing high-risk high-wire programmes.
Two decades ago, the hundreds of circus companies were in deep trouble owing to a gradual decline in public patronage. They sought State help to keep them going and save their performers and the emaciated animals that trek with them from camp to camp. The emergence of a large middle class with real purchasing power restored the economic health of the circuses, which have become one of the favourite entertainers for middle class children.
A rights-based judgment
In a rights-based judgment delivered on April 18, the Supreme Court banned the employment of children in circus companies. The court directed the Central government to take immediate steps to rescue the suffering circus workers and arrange for their rehabilitation. Passing orders on a petition filed by the Bachpan Bachao Andolan, an organisation working for children, a Division Bench comprising Justice Dalveer Bhandari and Justice A.K. Patnaik directed the central government to issue suitable notifications prohibiting employment of children in circuses within two months, in order to implement the fundamental right of children under Article 21-A of the Constitution, which guarantees the right to “free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.” The Bench asked the government to raid all circuses and liberate children and check violation of their fundamental rights.
Another Supreme Court judgment delivered on April 19 was highly critical of the caste system and declared ‘khap panchayats” illegal. They were instrumental, the court observed, in encouraging honour killings and indulged in other atrocities against boys and girls married or tried to marry from outside their castes. The Bench, comprising Justice Markandey Katju and Justice Gyan Sudha Misra, wanted the government to ruthlessly stamp out the barbaric practice. A significant aspect of the judgment was that it directed the administrative and police officials to take strong steps to prevent such atrocious acts as honour killing. The court also asked for departmental action against officials who failed on this score.
It may be recalled that when States such as Haryana and Rajasthan reported a series of honour killings a few months ago, the media went all out against the spread of the crimes and the failure of the State police and administration to arrest it. When the Central government floated the idea of a ban on khaps, even Chief Ministers and ex-Minister sought to scuttle the move.
No less important is the serious concern expressed by Justices Dalveer Bhandari and Deepak Verma over the increasing number of starvation deaths in the country. They were hearing petitions relating to the streamlining of the public distribution system (PDS). The Supreme Court has once again questioned the approach of the Central government to the eradication of malnutrition and its failure to arrest starvation deaths in some areas. Justice Bhandari also questioned the Planning Commission‘s estimate that 36 per cent of the population was below the poverty line, which was inconsistent with the claim of several States, including Congress-ruled States, that the percentage was much larger. The judge wondered how the Planning Commission could fix a per capita daily income of Rs. 20 for urban areas and a per capita daily income of Rs. 11 for rural areas to determine BPL status. He also wanted the Deputy Chairman of the Planning Commission to file a detailed affidavit within a week “because the entire case rests on your figures.”
Progressive voices, including economists, scientists, and social activists, have been articulating in the media the demand for a universal PDS. When the National Advisory Committee was about to endorse it, the government ruled it out once again. At a time the Supreme Court has stepped up the pressure for a pro-people solution, a well-informed and decisive media push will certainly help.
Casteism is one of the main causes holding up the country’s progress
Calling a person by caste name, if used with intent to insult, is an offence under SC/ST Act
Society regarding a section of its own countrymen as inferior is simply unacceptable
New Delhi: While deprecating the caste system in the country, the Supreme Court has declared illegal ‘khap panchayats’ which often decree or encourage honour killings or other institutionalised atrocities against boys and girls of different castes and religions who wish to get married or have married.
“This is wholly illegal and has to be ruthlessly stamped out. There is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of the personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment. Only this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal,” a Bench of Justices Markandey Katju and Gyan Sudha Misra said on Tuesday.
The Bench upheld the sentence of two-year imprisonment, including six months’ imprisonment under the SC/ST (Prevention of Atrocities) Act, 1989, awarded by a trial court to Arumugam Servai, who called a member of a Scheduled Caste community by his caste name, ‘Pallan‘. It dismissed his appeal against a Madras High Court judgment.
Writing the judgment, Justice Katju said: “The word ‘Pallan’ no doubt denotes a specific caste, but it is also a word used in a derogatory sense to insult someone. Even calling a person ‘Pallan,’ if used with intent to insult a member of the Scheduled Caste, is, in our opinion an offence under the SC/ST PoA Act.”
Jefferson’s ringing words
The court quoted Thomas Jefferson in the American Declaration of Independence, 1776 saying “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator by certain inalienable rights that among these are life, liberty, and the pursuit of happiness.”
The Bench said: “Over two centuries have passed since Thomas Jefferson wrote those memorable words, which are still ringing in history, but a large section of Indian society still regards a section of its own countrymen as inferior. This mental attitude is simply unacceptable in the modern age, and it is one of the main causes holding up the country’s progress.”
The Bench also expressed its anguish over the two-tumbler system prevalent in many parts of Tamil Nadu. “This system is that in many tea shops and restaurants there are separate tumblers for serving tea or other drinks to Scheduled Caste persons and non-Scheduled Caste persons. In our opinion, this is highly objectionable, and is an offence under the SC/ST Act, and hence those practising it must be criminally proceeded against and given harsh punishment if found guilty. All administrative and police officers will be accountable and departmentally proceeded against if, despite having knowledge of any such practice in the area under their jurisdiction, they do not launch criminal proceedings against the culprits.”
Condemning honour killings and khap panchayats, the Bench directed the administrative and police officials to take strong measures to prevent such atrocious acts. “If any such incidents happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State government concerned is directed to immediately suspend the District Magistrate/Collector and the SSP/SPs of the district as well as other officials concerned and chargesheet them and proceed against them departmentally if they do not prevent the incident if it has not already occurred but they have knowledge of it in advance, or if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them, as, in our opinion, they will be deemed directly or indirectly accountable in this connection.”
The Bench directed that a copy of this judgment be sent to all Chief Secretaries, Home Secretaries and Directors-General of Police in all States and Union Territories, and circulated to all officers up to the level of District Magistrates and SSP/SP for strict compliance. A copy would also be sent to the Registrars-General/Registrars of all High Courts who would circulate it to all judges.
A Bench of Justices Markandeya Katju and Gyan Sudha Mishra in an order deplored the growing tendency among bar associations across the country to pass resolutions against appearing for certain accused persons for some reason or the other.
“Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the statute and professional ethics.
The bench passed the order while quashing the counter criminal cases filed by policemen and lawyers of Coimbatore during an agitation in 2007.
In this case the Madras High Court had on the basis of the recommendations made by Justice(retd) K P Sivasubramaniam, Commission of Inquiry, ordered a compensation of Rs 50,000 to advocate A S Mohammed Rafi who was allegedly assaulted by policemen during a clash with them.
At that time both the lawyers and women police constables involved in the fracas lodged counter criminal cases. The Bar Association of Coimbatore had also passed a resolution that no member of the Coimbatore Bar will defend the accused policemen in the criminal case against them.
Rafi who was not satisfied with the quantum of compensation moved the apex court for a higher compensation.The apex court while enhancing the compensation to Rs 1.50 lakh as advised by amicus curiae and senior counsel Altaf Ahmed, however, minced no words in expressing displeasure at the manner in which the bar associations have been frequently passing resolutions asking advocates not to appear for certain persons.
We would like to comment upon a matter of great legal and constitutional importance which has caused us deep distress in this case. It appears that the Bar Association of Coimbatore passed a resolution that no member of the Coimbatore Bar will defend the accused policemen in the criminal case against them in this case.
Several Bar Association all over India, whether High Court Bar Associations or District Court Bar Associations have passed resolutions that they will not defend a particular person or persons in a particular criminal case. Sometimes there are clashes between policemen and lawyers, and the Bar Association passes a resolution that no one will defend the policemen in the criminal case in court. Similarly, sometimes the Bar Association passes a resolution that they will not defend a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case.
In our opinion, such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.
We may give some historical examples in this connection.
When the great revolutionary writer Thomas Paine was jailed and tried for treason in England in 1792 for writing his famous pamphlet ‘The Rights of Man’ in defence of the French Revolution the great advocate Thomas Erskine (1750-1823) was briefed to defend him. Erskine was at that time the Attorney General for the Prince of Wales and he was warned that if he accepts the brief, he would be dismissed from office. Undeterred, Erskine accepted the brief and was dismissed from office.
However, his immortal words in this connection stand out as a shining light even today : “From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay he assumes it before the hour of the judgment; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principles of English law make all assumptions, and which commands the very Judge to be his Counsel”
Indian lawyers have followed this great tradition. The revolutionaries in Bengal during British rule were defended by our lawyers, the Indian communists were defended in the Meerut conspiracy case, Razakars of Hyderabad were defended by our lawyers, Sheikh Abdulah and his co-accused were defended by them, and so were some of the alleged assassins of Mahatma Gandhi and Indira Gandhi. In recent times, Dr. Binayak Sen has been defended. No Indian lawyer of repute has ever shirked responsibility on the ground that it will make him unpopular or that it is personally dangerous for him to do so. It was in this great tradition that the eminent Bombay High Court lawyer Bhulabhai Desai defended the accused in the I.N.A.trials in the Red Fort at Delhi (November 1945 – May 1946).
However, disturbing news is coming now from several parts of the country where bar associations are refusing to defend certain accused persons.
The Sixth Amendment to the US Constitution states “In all criminal prosecutions the accused shall enjoy the right …….to have the assistance of counsel for his defence”.
In Powell vs. Alabama 287 US 45 1932 the facts were that nine illiterate young black men, aged 13 to 21, were charged with the rape of two white girls on a freight train passing through Tennessee and Alabama. Their trial was held in Scottsboro, Alabama, where community hostility to blacks was intense. The trial judge appointed all members of the local bar to serve as defense counsel. When the trial began, no attorney from the local bar appeared to represent the defendants. The judge, on the morning of the trial, appointed a local lawyer who undertook the task with reluctance. The defendants were convicted. They challenged their convictions, arguing that they were effectively denied aid of counsel because they did not have the opportunity to consult with their lawyer and prepare a defense. The U.S. Supreme Court agreed. Writing for the court, Mr. Justice George Sutherland explained :
“It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a8 fair opportunity to secure counsel of his own choice. Not only was that not done here, but such designation of counsel as was attempted was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid…..”
“What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense”.
In this connection we may also refer to the legendry American lawyer Clarence Darrow (1857-1930) who was strongly of the view that every accused, no matter how wicked, loathsome, vile or repulsive he may be regarded by society has the right to be defended in court. Most lawyers in America refused to accept the briefs of such apparently wicked and loathsome persons, e.g. brutal killers, terrorists, etc. But Clarence Darrow would accept their briefs and defend them, because hewas firmly of the view that every persons has the right to be defended in court, and correspondingly it was the duty of the lawyer to defend. His defences in various trials of such vicious, repulsive and loathsome persons became historical, and made him known in America as the ‘Attorney for the Damned’, (because he took up the cases of persons who were regarded so vile, depraved and despicable by society that they had already been condemned by public opinion) and he became a legend in America (see his biography ‘Attorney for the Damned’).
In Re Anastaplo, 366 US 82 (1961), Mr. Justice Hugo Black of the US Supreme Court in his dissenting judgment praised Darrow and said :
“Men like Lord Erskine, James Otis, Clarence Darrow, and a multitude of others have dared to speak in defense of causes and clients without regard to personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.”
At the Nuremberg trials, the Nazi war criminals responsible for killing millions of people were yet defended by lawyers.
We may also refer to the fictional American lawyer Atticus Finch in Harper Lee’s famous novel ‘To Kill a Mocking Bird’. In this novel Atticus Finch courageously defended a black man who was falsely charged in the State of Alabama for raping a white woman, which was a capital offence in that State. Despite the threats of violence to him and his family by the racist white population in town, and despite social ostracism by the predominant while community, Atticus Finch bravely defended that black man (though he was ultimately convicted and hanged because the jury was racist and biased), since he believed that everyone has a right to be defended. This novel inspired many young Americans to take up law as a profession in America.
The following words of Atticus Finch will ring throughout in history :
“Courage is not a man with a gun in his hand. It is knowing you are licked before you begin, but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.”
In our own country, Article 22(1) of the Constitution states :
“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for which arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”.
Chapter II of the Rules framed by the Bar Council of India states about ‘Standards of Professional Conduct and Etiquette’, as follows
“An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practice at a fee consistent with his standing at the Bar and the nature of the case.Special circumstances may justify his refusal to accept a particular brief”.
Professional ethics requires that a lawyer cannot refuse a rief,provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in1 passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. Is against all norms of the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. We declare that all such resolutions of Bar Associations in India are null and void and the right minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer to defend no matter what the consequences, and a lawyer who refuses to do so is not following the message of the Gita.
The Registry of this Court will circulate copies of this judgment/order to all High Court Bar Associations and State Bar Councils in India. The High Court Bar Associations are requested to circulate the judgment/order to all the District Court Bar Associations in their States/Union territories.
THE Supreme Court of India’s observation that “something is rotten” in the Allahabad High Court and Chief Justice of India Justice S.H. Kapadia’s speech during a National Law Day function (both on November 26) that good judges can be appointed within the current system in the next two years when he is the CJI are laudable. A deeper analysis of the two statements can reveal significant pointers to the state of judiciary in India today.
Over the years, the Allahabad High Court has provided several judges of the Supreme Court, including Justice Markandey Katju who, along with Justice Gyan Sudha Misra, had criticised the state of affairs in the Allahabad High Court. One cannot but admire their concern. If “a lot of complaints are coming against certain Judges of the Allahabad High Court relating to their integrity”, is the integrity of these judges likely to improve if they are posted to another High Court?
Judicial technical legalities aside, to a layperson it is extremely unlikely. The results of such actions have been known in the past when there were protests from the Sikkim High Court and the Guwahati High Court when attempts were made to transfer judges with suspect integrity to these High Courts.“Transfer is no punishment” is an oft-used explanation in the civil services whenever someone protests against a transfer, and that should be the same in the judiciary. Similarly, transfer is no cure for a suspect integrity.
It is understandable that given the complexity of the impeachment process, the options for dealing with recalcitrant judges are limited and that is why transfer is suggested as one of the so-called solutions or “strong measures”, but it actually is begging the question.The quest for an answer takes us to the CJI’s statement about proving that good judges can be appointed “within the current system”. Several inferences can be made from the statement, though admittedly not possibly intended by Justice Kapadia.
The fact that the “current system”needs to be proven implies that there are concerns about it. That it will be proved that “good judges can be appointed” is an indirect acceptance that bad, or at least not good, judges have been appointed. The concerns are obviously proved by the Allahabad High Court Bench.
Secondly, Justice Kapadia has promised that good judges can be appointed within the current system “in the next two years” when (he is) the CJI. The first inference implies that the current system is person-dependant. The basic rationale for putting systems in place is to make them free of individual idiosyncrasies but it is also accepted that systems are as good as the people who use them. Granville Austin aptly said, “(C)onstitutions, however ‘living’, are inert. They do not work, they are worked.” But there is a difference, however subtle, between constitutions and institutional systems. The main expectation from the latter is that they will work independent of human follies and weaknesses. If the current appointment system for higher judiciary is susceptible to human frailties, then there is ample justification to try a new system.
This leaves one important issue of higher judicial appointments unattended and that is the source of these appointments. On November 26, the Bar Council of India had decided to postpone the proposed All India Bar Examination from December 5 to March 5, 2011. While this, by itself, may be a relatively innocuous action, it does point to the state of affairs of the profession of law which suffers from many infirmities starting with education for LL.B., registration of lawyers, and practices followed by lawyers in courts and outside. The actions of various regulatory authorities, the Bar Councils, and various Bar Associations are not always above board. And it may not be out of place to say that something is rotten with the country’s legal profession. Clearly, it is the Bar that is the major source of recruitment to the higher judiciary. Therefore, reforming the system of appointment to higher judiciary should begin with the reform of the profession of law.
A drastic overhaul of the judiciary has become imperative in view of the increasing cases of corruption involving High Court judges. The Judicial Standards and Accountability Bill tabled in the Lok Sabha is welcome, but the process of impeachment should be expedited.
V. Eshwar Anand IN THE TRIBUNE
Corruption is eating into the vitals of our polity. No institution is free of this menace. The Supreme Court’s observations on the rot in the Allahabad High Court are disturbing. A Bench consisting of Justice Markandey Katju and Justice Gyan Sudha Misra said on November 26 that most judges of this High Court are corrupt and collude with advocates.
With a strength of 160 judges, the Allahabad High Court has a rich history. Remember the historic judgement of Justice Jagmohanlal Sinha on June 12, 1975 when he quashed Indira Gandhi’s election to the Lok Sabha from Rae Bareli? He declared her guilty of electoral corruption and disqualified her from contesting elections for six years. His bold judgement shook the country and led to the imposition of Emergency 13 days later.
There is also the Rs 23-crore Ghaziabad PF scam in which a Supreme Court judge (since retired), seven Allahabad High Court judges, 12 judges of the subordinate courts and six retired High Court judges are allegedly involved. The key accused, Ashutosh Asthana, died in jail mysteriously in October, 2009. He had provided vital documents to the CBI that established connivance of these judges. Recently, the Supreme Court rejected the CBI’s plea for shifting this case to New Delhi.
Corrupt judges in the higher judiciary can be removed only by impeachment. However, this method is cumbersome. The problem is not just a question of devising proposals for removal. The Judges (Inquiry) Act, 1968, prefaces impeachment by judicial inquiry. In Supreme Court Judge Justice V. Ramaswamy’s case, the inquiry indicted him but the impeachment motion fell through in Parliament in 1992.
The need for an institutional mechanism to deal with cases of misconduct against a High Court judge as also the question of interim arrangements on whether the judge be assigned work pending investigation has long been felt. A beleaguered judge continuing in office smacks of grave impropriety. Remember how Karnataka High Court Chief Justice P.D. Dinakaran continued to attend court, took decisions on the administrative side and even delayed his departure for Gangtok?
The government should fast-track all cases of moral turpitude, corruption and nepotism. The process of impeachment of a judge should be speeded up with a time limit for obtaining the President’s sanction and impeaching him/her.
The Centre’s decision to set up a National Judicial Oversight Committee (NJOC) to look into complaints against Supreme Court and High Court judges and impose “minor penalties” or recommend their removal is welcome. This has been provided for in the Judicial Standards and Accountability Bill 2010 tabled in the Lok Sabha on December 1. Significantly, the Bill is aimed at replacing the Judges (Inquiry) Act, 1968. The NJOC will consist of a former Chief Justice of India, a Supreme Court judge, the High Court Chief Justice, an eminent person to be nominated by the President and the Attorney-General of India (ex-officio).
The NJOC will send every complaint to a scrutiny panel which, in turn, will examine it and report back to it within three months. Based on its recommendation, the NJOC will get the complaint examined by an investigating panel. Both the scrutiny and investigating panels can summon people and ask for public records. They will also have the power of search and seizure.
It is debatable whether the executive should be given the power to retire judges. This power should remain in the hands of the judiciary itself to maintain the independence of the judiciary which is the cornerstone of the Constitution. Indeed, any amendment of the constitutional provision of impeachment will have to pass the test of judicial scrutiny. Otherwise, the Supreme Court will quash it as null and void for violating the basic structure of the Constitution.
Justice Katju and Justice Misra have directed the Chief Justice of the Allahabad High Court to stem the rot. But can a Chief Justice alone help improve things without the force of law? They also referred to the syndrome of “uncle judges”. The Union Law Ministry admits that this menace has spread to many High Courts, including those in Chandigarh, Shimla and Jaipur. In its 230th Report (2009), the Law Commission has recommended that in order to eliminate the practice of “uncle judges”, the judges, whose kith and kin are practicing in a High Court, should not be posted in the same High Court. Union Law Minister M. Veerappa Moily should help check this menace.
There is a need to change the method of selection of judges. The collegium system has failed to attract persons of impeccable integrity. The country deserves a more credible, transparent and broad-based institutional mechanism for selecting judges. As the UK Supreme Court had done early this year, our apex court, too, should advertise vacancies in the Supreme Court and High Courts in the newspapers.
The Allahabad High Court has decided to move an application before the Supreme Court seeking expunction of the remarks made by a bench of the apex court against it. Sources said that judges of the Allahabad High Court, who met on November 26, expressed their anger over the Supreme Court’s critical observations against its functioning and decided to approach the apex court.
A meeting of the governing council of the Bar Association has been called today and if it passes a resolution, a review application would be moved before the Supreme Court, the general secretary of the High Court Bar Association said. While hearing an appeal against a stay order passed by the Allahabad High Court last week, an apex court bench comprising justices Markandey Katju and Gyan Sudha Mishra said, “Something is rotten in the State of Denmark, said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court.”
The bench also asked the chief justice of the high court to take some strong measures, including recommending “transfers of the incorrigibles”. It had made the observation in a 12-page order, while making the insinuation that several judges of the high court suffer from ‘uncle judge’ syndrome, which refers to judges passing favourable orders for parties represented by lawyers known to them.
The bench had made the remarks while scrapping a single-judge bench order of the Allahabad High Court which had asked a Bahraich-based Waqf Board to temporarily allot a portion of its land in May-June this year to the proprietors of a circus for its show during an annual fair. “The faith of the common man in the country is shaken to the core by such shocking and outrageous orders,” said justices Katju and Mishra had said.
“We are sorry to say but a lot of complaints are coming against certain judges of the Allahabad High Court relating to their integrity,” said the bench, without disclosing the contents of complaints. Referring to the rampant ‘uncle judge’ syndrome allegedly plaguing the high court, the apex court bench had said, “Some judges have their kith and kin practicing in the same court. “And within a few years of starting practice, the sons or relations of the judge become multi-millionaires, have huge bank balances, luxurious cars, huge houses and are enjoying a luxurious life. This is a far cry from the days when the sons and other relatives of judges could derive no benefit from their relationship and had to struggle at the bar like any other lawyer,” the bench added.
Ravi Kiran Jain, senior advocate, Allahabad High Court, said the judges of the high court should file a contempt petition. “There is no reason to escape such a notice …the only remedy made availabe to the High Court to correct this damage which has already been done is to issue a notice of contempt to the judges (of Supreme Court). By a moving a review petition to get remarks expunged is not a remedy. The damage has already been done and can be rectified only and only by issuing a show cause notice,” Jain said