Supreme Court takes Suo Moto Cognizance to Assess the Implementation of Rape Laws-Frames a series of Questions for States and Union Of India to Reply

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Taking suo motu cognizance on the assessment of the criminal justice system regarding sexual offences, the Supreme Court on Wednesday sought a reply and status report from all the states and High Courts on aspects such as investigation process, collection of evidence, recording of statement of victim and time frame for trial. Taking serious note of the rising number of rape cases in the country, the apex court underlined the need to collate information and status reports to ensure holistic implementation of the provisions of the rape law.The top court also appointed senior advocate Siddharth Luthra as amicus curiae for assistance in the matter.

Citing the delay in the verdict of the December 2012 gangrape case, the Supreme Court said: “The December 2012 rape case shocked nation’s conscience; delay in such matters created agitation, anxiety, and unrest in the minds of people.”

This comes two days after CJI SA Bobde appointed a committee of two Supreme Court Judges for ensuring speedy disposal of rape cases across the country. The Committee consists of Justices R Subhash Reddy and MR Shah. The CJI had constituted the panel in the exercise of his administrative powers for the purpose of monitoring of the cases through the High Courts to ensure their speedy disposal in a time-bound manner.

IN RE : ASSESSMENT OF THE CRIMINAL JUSTICE SYSTEM IN RESPONSE TO SEXUAL OFFENCES SMW (CRL.) No(s).04 OF 2019

  1. Post Nirbhaya incident, which shocked the conscience of the nation, many amendments were introduced in criminal law redefining the ambit of offences, providing for effective and speedy investigation and trial. Still, the statistics would reveal that desired results could not be achieved. As per the latest report of National Crime Records Bureau of Crime in India in the year 2017, total 32,559 cases of rape were registered in India.
  2. The delay in such matters has, in recent times, created agitation, anxiety and unrest in the minds of the people. The Nirbhaya case is not an isolated case where it has taken so long to reach finality. In fact, it is said that it has been one of the cases where agencies have acted swiftly taking into account the public outrage.
  3. We are, therefore, of the view that it is necessary to take stock of the implementation of provisions of criminal law, including the said amendments, relating to rape cases and other sexual offences. It is necessary to call for information with regard to status of affairs at ground level from various dutyholders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view to make criminal justice system responsive in the cases of this nature.
  4. The criminal law is set into motion by registration of the FIR. Section 154 of the Cr.P.C. provides about the information in cognizable cases and in effect registration of First Information Reports. The first Proviso to the sub-Section (1) of Section 154 inserted by the Amendment Act of 2013 and subsequently amended by the Amendment Act of 2018, provides for registration of First Information Report in cases of rape and sexual offences by a woman police officer or any woman officer. It is further provided that if the victim is temporarily or permanently mentally or physically disabled, the first information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such persons choice, in the presence of a special educator or an interpreter and the recording of such information may be videographed. It is also provided that the police officer shall get the statement of such person recorded by a Judicial Magistrate under Section 164, as soon as possible.
  5. As law laid down in the case of Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the police is dutybound to register the offence based upon the information given by the victim/informant in case of cognizable offence. In addition to this, the statements of the victim under Section 161 are required to be recorded by a woman police officer or any woman officer.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether all the Police Stations have a woman police officer or woman officer to record the information of the victim?

(2) In case, an information relating to offence of rape received at a Police Station, reveals that the place of commission of the offence is beyond its territorial jurisdiction, whether in such cases FIR without crime number are being recorded?

(3) whether provisions are available for recording of first information by a woman police officer or a woman officer at the residence of the victim or any other place of choice of such person in case the victim is temporarily or permanently mentally or physically disabled?

(4) whether all the District Police Units have the details of special educator or an interpreter in case of a mentally or physically disabled victim?

(5) whether the police department of states or union territories have issued any circulars to make provision of videography of the recording of statements and depository of the same?

(6) whether any state has published guidelines in the shape of Standard Operating Procedure (SOP) to be followed for responding after receipt of the information relating to case of rape and similar offences?

  1. By the Amendment Act of 2013, a new provision of Section 166A made the failure of a public servant to record any information of such offences, as prescribed, under sub-Section 1 of Section 154 of the Cr.P.C., a punishable offence, prescribing both rigorous imprisonment and fine for the guilty.

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether any case has been registered under the Section 166A of IPC against any public servant?

(2) whether there is any mechanism in place to complain about the non-recording of information by the officer giving cause to offence under Section 166A with any other institution/office, other than the concerned police station?

  1. Medical treatment and examination of the victim is a very important aspect not only for the immediate relief to the victim but also provides intrinsic evidences for the trial. Amendments in this regard have been inserted by the Amendment Acts of 2013 and 2018, whereby the newly introduced Section 357C of Cr.P.C. has sought to fix liability on medical institutions, both public or private to provide medical treatment free of cost to the victims of such offences as prescribed, together with a duty to inform the police of such incident. Failure to comply with the above provision has also been made an offence punishable under Section 166B of IPC.

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether any advisory or guidelines have been issued by the authorities to all the hospitals and medical centres in this regard?

(2) whether any case has been registered against any person under Section 166B of IPC?

  1. The manner in which the medical report of the victim is prepared is also a matter of concern. The Amendment Act of 2013 has inserted a new provision, i.e. Section 164A in this regard, which provides for the manner of medical examination as well as the guidelines for preparation of medical report. Other than the above information, many a times valuable information in consonance with the definition of rape as amended by the Act of 2013 are not supplied.
  2. Also, vide the Amendment Act of 2013, Section 53A was inserted in the Evidence Act, 1872. It provides that the evidence of character of the victim and of such person’s previous sexual experience with any persons shall not be relevant on the issue of such consent or the quality of consent. The effect of above provision is that previous sexual experience and in effect the habituation to sexual intercourse is now irrelevant for the purpose medical examination. Still, we come across the medical opinion such as “the victim is habitual of sexual intercourse” and the opinion suggesting possibility of consent on the basis of her previous sexual exposure.
  3. The Ministry of Health and Family Welfare, Government of India had prepared “Guidelines & Protocols: Medicolegal care for survivors/victims of sexual violence”.
  4. The Ministry of Women and Child Development has designed a Medical Kit for examination of the victim and the accused in cases of rape. The Union Government and the State Government have not provided this medical kit to all the Primary Health Centers or Community Health Centers. This Medico Forensic Kit is essential for collection of Medical/DNA evidence.
  5. Further, Per-Vaginum examination commonly referred to as ‘Two-finger test’ has been held to be of no consequence and violative of the dignity of woman. In the case of Lillu alias Rajesh and Anr. v. State of Haryana, (2013) 14 SCC 643 it was observed as follows:-

“In view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with genderbased violence. The State is under an  obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with his privacy. Thus, in view of the above, undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.”

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether the Medical Opinion in the cases relating to rape and similar offences is being given in compliance with the mandate of Section 164A of Cr.P.C.?

(2) whether the Medical Opinion in the cases relating to rape and similar offences is being given in tune with definition of rape under Section 375 of IPC as it stands today?

(3) whether the states have adopted the Guidelines & Protocols of The Ministry of Health and Family Welfare, Government of India or have they prepared their own Guidelines & Protocols?

(4) whether requisite Medico-forensic kit are available with all the hospitals/health centres run by the Government or by local authorities?

(5) whether the medical experts have done away with the Per-Vaginum examination commonly referred to as ‘Two-finger test’ and whether any directions have been issued by the states in this regard?

(6) whether medical experts have done away with the practice of giving opinion on the previous sexual experience of the victim or any directions have been issued by the states in this regard?

(7) whether lady medical practioners, if mandated, are available at all district and sub-divisional headquarters to draw up the medical examination report of the victim?

  1. Forensic examination and report play an important role during the investigation as well as trial for linking the culprit with the crime. With the advancement of the DNA science and its accuracy, the sampling for the purpose of Forensic examination and expeditious reports after due examination are vital to the just adjudication of the case. The sampling for the purpose of DNA test as well other forensic tests like forensic odontology is essential in cases relating to rape.
  2. In relation to the examination of the accused, Section 53A of Cr.P.C. provides for timely examination and guidance for preparation of medical report.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether there is any Standard Operating Procedure (SOP) or Protocol for taking samples for Forensic DNA, Forensic odontology and other forensics for Medical Practitioners?

(2) whether there are adequate number of equipped Forensic Laboratories at least one at every Division Level to conduct forensic DNA and Forensic odontology analysis regionally?

(3) subject to availability, whether Central Government has notified sufficient number of Government scientific expert other than already specified under Section 293 of Cr.P.C.?

  1. Section 173 (1A) Cr.P.C. provides that the investigation in relation to an offence under Section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376Db or 376 E of the Indian Penal Code (45 of 1860) shall be completed within two months from the date on which the information was recorded by the police officer in charge of the Police Station.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether police is completing the investigation and submitting the final report within a period of two months from the date of recording of information of the offence and if no, reasons for delay?

(2) whether sufficient number of women police officers are available to conduct investigation into the offences relating to rape and other sexual offences?

  1. Sub-Section (5A) of Section 164, Cr.P.C. provides for recording of statement of the victim by the Court. Other than recording of statements under Section 164, for the purpose of recording of statements during the trial, Section 119 of Evidence Act provides for assistance of an interpreter or a special educator in recording the statement of the witness unable to speak but capable to give evidence in any other manner. It further provides that such statement shall be video graphed.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether the police is taking the victim for recording of the statements as soon as the commission of the offence is brought to the notice of police?

(2) whether the Magistrate Courts or the trial courts have the availability of the interpreter or special educator in each Districts?

(3) whether the Magistrate Courts or the trial Courts have the facility of videography of the statements and depository of the same in the Courts?

  1. Section 26 clause (a)(iii) of Cr.P.C. provides for trial of such offences to be conducted by a Court presided over by a woman judge, as far as practicable. Further, Second proviso to sub-Section 327(2) of Cr.P.C. also mandates that in camera trial shall be conducted, as far as practicable, by a woman Judge or Magistrate. It must be noted that the insertion of the above proviso has a very important object and the rider of “as far as practicable” cannot be used to overcome the mandate in ordinary manner.
  2. The need for speedy trial of the cases relating to offence of rape has been emphasized again and again this Court. The proviso to sub-Section (1) of Section 309 mandates that the inquiry of trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge-sheet.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether trial of cases relating to rape are being conducted by Courts presided over by a woman?

(2) whether sufficient number of lady judges are available to preside over the Courts dealing with sexual offences and rape?

(3) whether all courts holding trial of cases relating to offence of rape have requisite infrastructure and are conducting in camera trial?

(4) whether the trial relating to cases of rape is being completed within a period of two months from the date of filing of charge-sheet, if not, the reasons for the delay?

 (5) whether sufficient number of special Courts have been established to deal exclusively with the cases of rape and other sexual offences?

  1. Under Section 230 of Cr.P.C., a trial program is generally prepared on the application of the prosecution. This Court in the case of State of Kerala v. Rasheed, AIR 2019 SC 721 has held as followings:-

“The following practice guidelines should be followed by trial courts in the conduct of a criminal trial, as far as possible:

  1. a detailed case-calendar must be prepared at the commencement of the trial after framing of charges;
  2. the case-calendar must specify the dates on which the examination-in-chief and cross-examination (if required) of witnesses is to be conducted;

iii. the case-calendar must keep in view the proposed order of production of witnesses by parties, expected time required for examination of witnesses, availability of witnesses at the relevant time, and convenience of both the prosecution as well as the defence, as far as possible;

  1. testimony of witnesses deposing on the same subject matter must be proximately scheduled;
  2. the request for deferral under Section 231(2) of the Cr.P.C. must be preferably made before the preparation of the case calendar;
  3. the grant for request of deferral must be premised on sufficient reasons justifying the deferral of cross-examination of each witness, or set of witnesses;

vii. while granting a request for deferral of cross-examination of any witness, the trial courts must specify a proximate date for the cross-examination of that witness, after the examination in- chief of such witness(es) as has been prayed for;

viii. the case-calendar, prepared in accordance with the above guidelines, must be followed strictly, unless departure from the same becomes absolutely necessary;

  1. in cases where trial courts have granted a request for deferral, necessary steps must be taken to safeguard witnesses from being subjected to undue influence, harassment or intimidation.”

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether case-calendar as envisaged in the Rasheed case is being prepared by the Trial Courts keeping in mind the time line of two months mandated by Section 309 of Cr.P.C.?

(2) whether the attendance of the witnesses is being ensured by the Prosecution to ensure the examination of witnesses on the fixed dates?

(3) whether any guidelines have been issued by Bar Councils or Associations urging the Advocates to assist the Court in completion of trial within the stipulated period?

(4) whether special exclusive permanent trial courts have been created in the state to deal with cases relating to rape and sexual assaults?

 (5) whether any High Court has constituted Special Bench for expeditious hearing of appeal in these cases?

  1. The protection of witness during the investigation and trial is essential in cases of this sensitive nature. Many a times the accused live in proximity of the victim. The possibility of tampering with evidence and pressurizing the witness affects fair trial.

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether any policy of victim/witness protection in the cases relating to rape is framed and implemented?

(2) whether police protection is being provided to the victim during investigation and trial of the offence?

(3) whether there are special waiting room in the Court premises for victim/witnesses of cases relating to offence rape?

(4) whether the trial Courts have taken appropriate measures to ensure that victim woman is not confronted by the accused during the trial as mandated by Section 273 Cr.P.C.?

  1. Section 357A(2) Cr.P.C. provides for award of compensation to the victims. The District Legal Service Authority or the State Legal Service Authority are bound to decide as to the quantum of compensation to the victim on the recommendation of the Court. By the order of this Court in W.P. (C) 565/2012 titled Nipun Saxena v. Union of India, the National Legal Services Authority, New Delhi had prepared a Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes – 2018. This scheme has been circulated among all states for necessary actions. The Scheme comprehensively provides for the rehabilitation and compensation for the victims of Rape.
  2. As the victim goes through a mental trauma and requires immediate counselling, legal aid and medical, social and in some cases, economic rehabilitation.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether Courts are recommending the District Legal Service Authority or the State Legal Service Authority for compensation in appropriate cases?

(2) whether the amount of interim or final compensation is being provided to the victims in time bound manner?

(3) whether the above-mentioned Scheme of 2018 or suitably amended Scheme, has been implemented by the states for rehabilitation of victims of rape?

 (4) whether the SLSA or NLSA has formulated any scheme for social, medical and economic rehabilitation of the victim?

(5) whether any state has prepared a policy with regard to the counselling of the victim and medical, social and in some cases, economic rehabilitation of the victim?

(6) whether there are any counselling/rehabilitation centres in existence for the victims of rape?

  1. In the year 2013, a separate fund namely Nirbhaya Fund for projects of women safety to support initiatives by government and NGOs was created, and it is important to inform ourselves how far has the purpose of setting up the fund been achieved.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) Utilization of the Nirbhaya Fund by Central or State Government(s) for the purposes envisioned?

  1. Let the matter be registered as Suo Motu Writ Petition Criminal with the caption “Assessment of the Criminal Justice System in response to Sexual Offences”.
  2. In order to collate all the information and status and provide a holistic view of implementation of provisions of law and to suggest measures for making the criminal justice system more efficacious and responsive towards the offence of rape and other sexual offences, we request Shri Sidharth Luthra, Senior Advocate to assist the Court as Amicus Curiae in the matter.
  3. The learned Solicitor General is requested to extend all co-operation to the Amicus Curiae in this regard.
  4. The Secretary General, Supreme Court of India shall also extend co-operation in respect of calling for information and status reports from the Chief Secretary and the Director General of Police of all the States, the Registrar General of all the High Courts and other functionaries, as may be required.

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They Walk Among Us – 30 Million People Are Slaves, Half in India

PUBLISHED IN THE HUFFINGTON POST BY MONIQUE VILLA , CEO THOMSON REUTERS FOUNDATION

How many slaves work for you? Paradoxically — in 2013 — the question is still very relevant, and you might be surprised by the answer. Depending on where you live, what you buy, what your lifestyle is, you have almost certainly been touched by slavery. Almost nobody is clean.

Modern-day slavery takes many forms: human trafficking, forced and bonded labour, sexual exploitation, domestic servitude and forced marriage. Sadly, the list goes on. But the common denominator of all these crimes is the evil intention to strip human beings of their freedom, and then to use, control and exploit them.

There are currently 29.6 million slaves around the world, more than ever before in history, and roughly equivalent to the population of Australia and Denmark combined. Modern-day slavery is a fast-growing industry worth $32 billion a year, equal to the profit of McDonald’s and Walmart combined. And while back in 1809, the price of a slave — adjusted to today’s value — was $40,000, today it is only $90; that’s how little it costs, in the globalized economy, to buy a human being!

Slavery is a global issue. In some parts of the world people are still being born into hereditary slavery, in others people are trafficked from one state to another, have their passports taken away and are enslaved. Modern-day slaves walk among us. You might tip one during your stay at respectable hotels chains around the world, you might speak to them at your nail salon. They look like maids, regular workers, but they are slaves.

It’s a story of debt, fraud and coercion. In the majority of western countries, trafficking is tied to immigration. It’s estimated that every year between 14,500 and 17,500 people are trafficked into the United States. Some enter legally, with a visa and a job. But that job is subcontracted, hiding the harsh reality of abuse and exploitation behind the façade of a clean uniform. Once inside the country, those trafficked are forced to repay recruitment fees, the cost of their travel, accommodation bills. As a result, they end up working an incredible number of hours, seven days a week, without being paid, in the impossible attempt to repay a debt which will never be settled. That’s how many become slaves.

Modern-day slaves are found in unexpected places. In recent years, Washington, the capital of the free world, has been rocked by allegations of human trafficking by diplomats working at embassies and international institutions. In 2007, a young Tanzanian woman who had been brought to the United States by a diplomat as a domestic worker, made headlines when she sued her former employer and his wife for allegedly trafficking her and using her for forced labour. The woman, who spoke no English, was promised a job as a housekeeper with a fair wage, but instead was forced to work 16-hour days without pay. She had her passport taken away, was not allowed to leave the house on her own, and was denied medical treatment. The woman eventually won over $1 million in compensation but her former abusers returned to East Africa and never paid her. Diplomats are not immune to shame.

There are currently 880,000 people engaged in forced labour across the European Union. 58 percent are women, the majority victims of sexual exploitation — the most lucrative form of slavery. In the UK the number of slaves is believed to be 4,600. Victims are mostly trafficked from Africa, but also Asia and Eastern Europe. Most of them cross the border illegally, and once in the UK are forced mainly into sex work (62 percent) and domestic servitude (25 percent), but are also exploited though complex schemes involving welfare benefit fraud. In the UK, slaves work in restaurants, nail salons, door-to-door leafleting. A big role is played by the Vietnamese drug barons who, according to DrugScope, control two-thirds of Britain’s cannabis trade. They use nail salons as brothels and places to launder money raised from the sale of cannabis grown on suburban UK farms. Farms run by slaves.

The difficulty with slavery is that it is a crime not well understood, and often concealed under the justification of custom, ethnicity, even religion. In Mauritania 4 percent of the population is presently enslaved. Adults and their descendants are the full property of masters who can buy and sell them. They are born into slavery and are not allowed any possessions. They are the possession, predominantly, of the White Moors, one of the three ethnic groups of Mauritanian society. Enforcing anti-slavery laws here remains extremely challenging since only victims are allowed to file a complaint. Slaves are illiterate and do not know their rights. The government continues to deny the scale of the problem, and foreign journalists risk arrest for investigating the issue. This year only two cases of slavery have been reported so far.

India — with a population of over 1.2 billion — has more slaves than any other country in the world: 14.7 million. With extreme poverty culturally tolerated, the practice of caste and debt bondage is endemic. Sexual exploitation of women and children is also widespread, although India has ratified a number of key international treaties aimed at eradicating slavery. Enforcement of such laws remains sporadic and weak, and many NGOs on the ground have reported a lack of support for their efforts to free people from forced labour.

Global statistics show a common trend: slavery is a silent crime. Victims don’t come forward. Across the EU the number of convictions for human trafficking has dropped by 13 percent in the past few years; and the latest US Trafficking in Person Report shows that in 2012, only 7,705 prosecutions took place, despite the number of identified victims reaching 46,570.

There are many reasons for the small number of prosecutions. Victims often don’t see themselves as such, especially victims of sexual exploitation, who tend to develop a psychological dependence on their abuser. Victims of domestic slavery are often foreign nationals who live in conditions of house arrest, unable to speak the language of the country they are in. Then there’s fear, that fear resulting from total annihilation of self-esteem. Slavery is all about controlling people. Some of the things the traffickers make people do are all about humiliating them and trying to control them: you see human beings with the name of their owner tattooed on their body, reminding one of the Nazi period. It’s a lethal mix of abuse of power and corruption, and it thrives in poverty.

Each of us, not just law enforcement agents, has a role to play in the battle against human trafficking. Teachers, doctors, bus drivers, flight attendants, government officials of all ranks, everyone who uses hotels, restaurants, nail salons is potentially in contact with modern-day slaves, and has a moral responsibility to come forward. As consumers we have the duty to demand to know more about the origin of the products we buy. We must not turn a blind eye.

Businesses must demand real transparency from sub-contractors, assessing the real working conditions of those in remote supply chains. On the other hand, governments should take bolder action to make businesses accountable, fining the hiring firms for violations of national employment laws committed by their subcontractors. This is the innovative approach recently adopted by the State of California.

Governments must consider slavery as a crime, not an immigration issue. Victims must be reintegrated in society with the necessary economic and psychological support. Earlier this year, in the UK, three very young victims of human trafficking were prosecuted, convicted and jailed for the very crimes their traffickers forced them to commit. In the words of the barrister who fought, successfully, to have the sentence overturned, this was a ‘miscarriage of justice’. In the United States, a first victory has been won as victims of human trafficking now have the right to stay in the country while suing their perpetrators, using U.S. law.

Lawyers must work to ensure that all victims of human trafficking have access to free legal representation, compensation and restitution of a sum of money equivalent to their unpaid work. A groundbreaking approach has been taken by the Netherlands, where since 2011 Dutch authorities have eight months to collect the restitution money. If they fail, the government has committed itself to paying restitutions directly to all victims.

Governments must also end the culture of impunity for the traffickers and the offenders, whoever they are. Slavery should trump all diplomatic immunities, and should be fought on an international basis, helped by all parties who can contribute to successful prosecutions.

The financial industry must be vigilant. Earlier this year the Thomson Reuters Foundation and the Manhattan District Attorney Cyrus R. Vance Jr, launched an international financial working group against human trafficking. The group — which includes the biggest banks and financial institutions in the United States — has developed criteria to identify financial transactions that are linked to human trafficking and is working with law enforcement agencies to share and improve these processes.

The fight against human trafficking is one, which – as a civilization – we cannot afford to lose. Slavery should belong to the history books. Let’s all work together to put the business of human trafficking out of business.

Human trafficking is one of the themes at the forthcoming Trust Women Conference in London, Dec 3-4. Organised by the Thomson Reuters Foundation and the International New York Times, Trust Women is the conference dedicated to putting the rule of law behind women’s rights.

Follow Monique Villa on Twitter: www.twitter.com/TR_Foundation

Raising the bar for the legal profession

LEGAL PROFESSION
LEGAL PROFESSION

N R MADHAVA MENON IN THE HINDU

Continued self-education is indispensable to honing the skills of lawyers in emerging areas of practice and to their social relevance in a changing world

The Indian legal profession has grown over a short period of less than 50 years to become the world’s largest and most influential in the governance of the country. At the same time, it reflects the diversity of Indian society, its caste structure, inequalities and urbanised delivery of services depending upon the market forces. Being a private monopoly, the profession is organised like a pyramid in which the top 20 per cent command 80 per cent of paying work, the middle 30 per cent managing to survive by catering to the needs of the middle class and government litigation, while the bottom 50 per cent barely survive with legal aid cases and cases managed through undesirable and exploitative methods! Given the poor quality of legal education in the majority of the so-called law colleges (over a thousand of them working in small towns and panchayats without infrastructure and competent faculty), what happened with uncontrolled expansion was the overcrowding of ill-equipped lawyers in the bottom 50 per cent of the profession fighting for a piece of the cake. In the process, being too numerous, the middle and the bottom segments got elected to professional bodies which controlled the management of the entire profession. The so-called leaders of the profession who have abundant work, unlimited money, respect and influence did not bother to look into what was happening to the profession and allowed it to go its way — of inefficiency, strikes, boycotts and public ridicule. This is the tragedy of the Indian Bar today which had otherwise a noble tradition of being in the forefront of the freedom struggle and maintaining the rule of law and civil liberties even in difficult times.

Professional competence

In the midst of such drift and mediocrity, the world around including the legal environment changed and opportunities for legally trained persons grew phenomenally, thanks to globalisation, technological revolution and economic liberalisation. The emergence of the National Law School movement and the Five-Year Integrated LL.B. programme attracted talented students who stormed into the legal market making a dent, though small, in the monopoly of the top 20 per cent. It gave hope to the rest of the middle and bottom segments of the professional pyramid that by playing the game with some professional skills, they too could penetrate the higher ranks which were largely reserved for the kith and kin of successful lawyers and judges so far. This is the context in which continuing legal education (CLE) is to be appreciated for professional development and better delivery of legal services.

There is as yet no organised system of CLE in the country. In the 1970s and 1980s, when the Bar Council of India Trust organised few CLE programmes, there were enthusiastic responses from all segments of the profession. Advocates paid the cost, suspended their practice and joined the residential courses around areas like criminal advocacy, constitutional litigation, matrimonial adjudication, commercial law practice, etc. The idea of specialisation in legal practice was well received and professionalism in management of client services appreciated. The issue of professional ethics on which advocates had no training whatsoever came to be acknowledged. More importantly, the CLE programmes inculcated a sense of public service as the hallmark of the profession and advocates sought to expand the public-interest litigation jurisdiction of courts to enlarge access to justice for the common man. In short, even a casual attempt to offer CLE has ignited the imagination of a large number of advocates on the relevance and usefulness of continuing education to hone their skills in emerging areas of legal practice and maintain their role as social engineers in the process of development. Over the years, this awareness has spread among the younger members of the profession though, unfortunately, there was no one to offer the CLE programmes relevant to the changing demands of the legal market.

CLE is also a measure of the accountability of the profession. The days of the general practitioner have gone and specialists have entered the scene. The competence of the legal practitioner is critical for clients and any dilution in the quality of services rendered is bound to be counter productive. CLE is the major instrument of all professions to ensure minimum competence in the delivery of services. It enhances professionalism, accountability and public respect for the profession. In short, CLE is indispensable for maintaining professional competence and its social relevance.

Competence or quality is the product of knowledge, attitudes, values, skills and ability to apply them for professional tasks. Legal education in colleges hardly teaches anything more than knowledge and that too inadequately. Some skills are acquired in early days of practice through observation and participation. CLE alone can possibly give the rest to provide competence to a young lawyer for whom professional bodies at present have no alternatives to offer. In the past, a year-long apprenticeship and a bar examination hopefully provided some insight into abilities, values and attitudes. They have been abolished and the new entrants are left to their fate!

What makes a professional

What are the elements of professional attitude? It has to do with sensitivity to professional responsibility, due diligence in handling clients’ affairs, loyalty to the profession, orderliness in management of tasks and commitment to quality in all circumstances. These are not inherited but learnt and cultivated. Continued self-education is the attribute of a professional.

Values too are learnt and cultivated by professionals by deliberate application of mind. Competent legal practitioners who have won public esteem have a keen sense of personal and professional ethics. Competence and its continued maintenance is itself a professional value. Integrity and honesty always pay in a profession. Respect for the rule of law is another value which no professional can ignore at any time. Obligation to serve the cause of justice or fight injustice is an abiding value of a legal practitioner. CLE can make value education a central focus of its programmes and help new entrants to the profession be aware of the role of values for professional competence. It is in the sphere of upgradation of knowledge particularly in emerging areas of legal practice where CLE can help the most. Knowledge is not just an awareness of rules; it includes comprehension, application, analysis, synthesis and evaluation. Good law colleges attempt to teach through clinical methods, application of knowledge to solve problems through analysis, synthesis and evaluation. In India such colleges are few. There are very few teachers trained in clinical teaching methods. Therefore, there is a tremendous vacuum in professional training which is waiting to be addressed through CLE.

Finally, professional competence in the field of law is the outcome of skilled application of knowledge in which proper skills are decisive to the outcome. These include interviewing and counselling skills, negotiation and mediation skills, research and writing skills, communication and advocacy skills, drafting skills, fact gathering and articulation skills, time and stress management skills, etc. all of which can be acquired through supervised practice supported by guided theoretical learning. CLE is the best mechanism to learn skills particularly in the context of the explosion in knowledge and technology.

IBA-CLE Chair

For the first time in the history of legal education, the National Law School of India University, Bangalore, has established a Chair on Continuing Legal Education with support from the International Bar Association, the Ford Foundation and the Menon Institute of Legal Advocacy Training. A series of CLE programmes for lawyers and law teachers have been announced to help professional development and to enable law schools to set up CLE centres for institutionalising CLE at all levels of the system. While judges have their training academies in every State, the legal profession ended up with no provision for continuing education without which it is in danger of losing its competence to serve the complex demands of a developing society. This is what the Bangalore initiative on CLE is addressing though in a small way for the legal profession in India. Hopefully, in the next two or three years, a network of CLE institutions will come up around the country which will pave the way for enhancing the professional competence of advocates and thereby the quality of legal services in the country.

(Professor Menon was the Founder Director of the National Law Schools at Bangalore and Kolkata, and of the National Judicial Academy at Bhopal.)

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

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

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

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

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

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

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

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

Judicial propriety in an age of scandal

 

Judicial propriety in an age of scandal
Judicial propriety in an age of scandal

ARGHYA SENGUPTA IN THE HINDU

Why Justice Dalveer Bhandari‘s election to the International Court of Justice while serving as a judge of the Supreme Court of India is an unhealthy development

Justice Dalveer Bhandari, a judge of the Supreme Court of India, was elected a fortnight ago by the United Nations General Assembly and Security Council, to serve as a Member of the International Court of Justice (ICJ). He defeated the Filipino nominee, Justice Florentino Feliciano, by a handsome margin and now has a six-year first term at the World Court. Justice Bhandari is undoubtedly a fine judge with considerable expertise in international law. His legal acumen, keen intellect and a sense of justice, especially for the poor and homeless that shines through in his domestic judgments, are qualities that make him an ideal representative of India, itself a beacon of democracy and human rights in the developing world. That India has made a good choice is not in doubt; whether it could have made a better choice, as some have suggested, is contestable though ultimately a moot point. The key issue that arises in this context relates to the fact that Justice Bhandari’s nomination by the Government of India and eventual election to the ICJ took place while he continued to serve as a judge of the Supreme Court of India. This raises grave and disturbing issues regarding the independence of the judiciary in India and points to the lowered standards of propriety in the highest echelons of governance.

Judiciary & government

The independence of the judiciary is a significant legal principle in India, ever since it was held to be part of the basic structure of the Constitution. Since then it has been used on several occasions by the Supreme Court most notably to judicially lay down norms regarding the appointment of judges, transfer of judges between High Courts and administratively with regard to claiming exemption for the office of the Chief Justice of India from the purview of the Right to Information Act and formulating an internal code of conduct for appropriate judicial behaviour. The extensive (and sometimes unwarranted) usage of judicial independence as a legal principle has however blighted its primary status as a normative principle of good governance which promotes impartiality, a key facet of fair adjudication. The judiciary must not only be independent of the co-ordinate wings of government as well as the parties before the case, but must also be seen to be so. The slightest doubt in the public mind of excessive proximity between the judiciary and the government, which is the largest litigant before it, may lead to significant apprehensions of a lack of impartiality thereby questioning the legitimacy of the entire adjudicatory setup. As the Supreme Court of India itself likes repeating in its judgments, “Judges, like Caesar’s wife, must be above suspicion.”

It is this test of judicial independence as a normative principle that Justice Bhandari’s actions fail to satisfy. From available records, Justice Bhandari’s candidacy was accepted by the Ministry of External Affairs after a recommendation to this effect in January 2012 by the Indian Chapter of the Permanent Council of Arbitration, whose advice in this matter, the government has traditionally honoured. From that time, up to the election at the United Nations in April, Justice Bhandari continued as a serving Supreme Court judge, hearing cases (from the Supreme Court causelist record, he heard cases till the 9th of April) and being party to delivered judgments (the last recorded judgment thus far being delivered on the 27th of April, authored by Justice Dipak Misra, his brother Judge on the Bench).

Though his resignation is not a matter of public record yet (the website of the Supreme Court continues to show him as a serving judge at the time of writing of this piece), it is believed that it became effective only on his election to the ICJ. During the same time, as the Ministry of External Affairs’ response to a RTI petition on 8th February 2012 shows, the government was actively lobbying for his candidature in the United Nations, speaking on his behalf to various member states. Even if it is assumed that Justice Bhandari had little or no contact with the government in this process, the very fact that the government, a regular litigant in Justice Bhandari’s courtroom was actively espousing his cause outside it, is gravely problematic in terms of judicial independence conceptualised as a principle of good governance leading to impartiality.

Unheeded lessons from the past

It is not however the case that Justice Bhandari’s failure to resign as a judge of the Supreme Court prior to the government making him its official nominee for election to the ICJ is an isolated incident of judicial independence being imperilled at the altar of individual ambition. Justice Subba Rao’s acceptance of his candidature for President of India by the opposition parties when he was Chief Justice of India is the most egregious example of the independence of the judiciary being threatened by a single individual. Equally pertinently in the present context, the election of the last Indian to serve on the ICJ, the then Chief Justice of India, R.S. Pathak (who incidentally relinquished office as Chief Justice only subsequent to his election to the ICJ), was marred by strong claims that Justice Pathak’s appointment was part of a quid pro quo involving Union Carbide Corporation, the Government of India and the Supreme Court with the Pathak Court endorsing a deeply flawed settlement in the aftermath of the Bhopal gas tragedy. It is disappointing that Justice Bhandari as an upright individual and a learned judge failed to pay adequate heed to these lessons of history and relinquish his judicial office before accepting a nomination by the Government of India.

What is equally disappointing is the lack of public outcry regarding this issue. When Justice Subba Rao accepted the candidature for President made to him by the opposition parties while still in office, a man no less than Motilal Setalvad, India’s first Attorney General, issued a statement to the press strongly condemning the Chief Justice’s decision, saying that “he has set at naught traditions which have governed the judiciary in our country for over a century.” Justice Pathak’s nomination to the ICJ was the subject of several scathing indictments, including by former Supreme Court judge, Justice Krishna Iyer who wrote of “the beholdenness of the candidate [Pathak] to the litigant government for getting the great office for him.” As far as Justice Bhandari’s nomination is concerned, except a public interest petition challenging it as a violation of judicial independence, there has been a seemingly all-pervading public silence. Even the petition itself, though well-intentioned, was misguided, seeking redress from the Supreme Court in a matter which was characterised by impropriety rather than illegality of a type a judicial order could rectify. Justifiably, the Court refused to entertain it.

Importance of propriety

In an age of multi-billion rupee scandals, endemic corruption and food shortages caused by governmental apathy and inaction, the impropriety of a judge failing to resign at an appropriate time may intuitively seem trivial. But as with most questions of impropriety, though its effects may not be immediately apparent, they are the portents of an insidious decline in the standards and values that define institutions.

For the Supreme Court of India, judicial independence has been the cornerstone of its functioning from the time of its inception. Despite a few challenging periods, the Court, the Bar and the conscientious members of the political classes have always striven to fiercely guard the independence of the judiciary from any potential threats. The Bhandari episode is however a bellwether of a possibly developing relationship of cosiness between government and the judiciary, accompanied by a general public indifference, bordering on acquiescence, of such a relationship.

The government’s decision to nominate a sitting judge before whom it continued to appear as a litigant, Justice Bhandari’s decision to not resign when the government was lobbying for him, and most crucially public acceptance of such an unholy nexus are warning signs that ought to be heeded. While the return of an Indian to the World Court after an absence of two decades rightfully gives cause for celebration, it provides an equally significant opportunity for introspection, that the cherished principle of judicial independence, responsible in the first place for the high esteem in which the Indian judiciary and its judges are held on the world stage, does not itself fall into desuetude in the process.

(Arghya Sengupta is a Stipendiary Lecturer in Administrative Law at the University of Oxford and the founder of the think-tank, The Pre-Legislative Briefing Service.)

Media cannot reject regulation

Media cannot reject regulation
Media cannot reject regulation

JUSTICE MARKANDEY KATJU IN THE HINDU

If red lines can be drawn for the legal and medical professions, why should it be any different for profit-making newspapers and TV channels?

I have not read the Private Member’s Bill on media regulation that Meenakshi Natarajan was scheduled to move in Parliament last week so I am not in a position to comment upon it, but I am certainly of the opinion that the media (both print and electronic) needs to be regulated. Since my ideas on this issue have generated some controversy they need to be clarified.

I want regulation of the media, not control. The difference between the two is that in control there is no freedom, in regulation there is freedom but subject to reasonable restrictions in the public interest. The media has become very powerful in India and can strongly impact people’s lives. Hence it must be regulated in the public interest.

The media people keep harping on Article 19 (1) (a) of the Indian Constitution which guarantees the freedom of speech and expression. But they deliberately overlook or underplay Article 19 (2) which says that the above right is subject to reasonable restrictions in the interest of sovereignty and integrity of India, State security, public order, decency, morality or in relation to defamation or incitement to an offence.

Not absolute

Thus, while there should be freedom for the media and not control over it, this freedom must be exercised in a manner not to adversely affect the security of the state, public order, morality, etc. No right can be absolute, every right is subject to reasonable restrictions in the public interest. The reason for this is that human beings are social creatures. No one can live in isolation, everyone has to live in society. And so an individual should not exercise her freedom in a manner so as to harm others or society, otherwise she will find it difficult to survive.

Media people often talk of self-regulation. But media houses are owned by businessmen who want profit. There is nothing wrong in making profits, but this must be coupled with social responsibilities. Media owners cannot say that they should be allowed to make profits even if the rest of society suffers. Such an attitude is self-destructive, and it is the media owners who will suffer in the long run if they do not correct themselves now. The way much of the media has been behaving is often irresponsible, reckless and callous. Yellow journalism, cheap sensationalism, highlighting frivolous issues (like lives of film stars and cricketers) and superstitions and damaging people and reputations, while neglecting or underplaying serious socio-economic issues like massive poverty, unemployment, malnourishment, farmers’ suicides, health care, education, dowry deaths, female foeticide, etc., are hallmarks of much of the media today. Astrology, cricket (the opium of the Indian masses), babas befooling the public, etc., are a common sight on Television channels.

Paid ‘news’ is the order of the day in some newspapers and channels where you have to pay to be in the news. One senior political leader told me things are so bad that politicians in some places pay money to journalists who attend their press conferences, and sometimes even to those who do not, to ensure favourable coverage. One TV channel owner told me that the latest Baba (who is dominating the scene nowadays) pays a huge amount for showing his meetings on TV. Madhu Kishwar, a very senior journalist herself, said on Rajya Sabha TV that many journalists are bribable and manipulable.

The media claims self-regulation. But by what logic? How can the News Broadcasters Association or the Broadcast Editors Association regulate TV channels driven by profit motive and high TRP ratings? Almost every section of society is regulated. Lawyers are a free profession, but their profession is regulated inasmuch as their licence can be suspended or cancelled by the Bar Council for professional misconduct. Similarly the licences of doctors, chartered accountants, etc., can be suspended/cancelled by their regulatory bodies. Judges of the Supreme Court or the High Court can be impeached by Parliament for misconduct. But the media claims that no action should be taken against it for violating journalistic ethics. Why? In a democracy everyone has to be accountable, but the media claims it should be accountable only to itself …The NBA and BEA claim self-regulation. Let me ask them: how many licences of TV channels have you suspended or cancelled till now? So far as we know, only one channel was awarded a fine, at which it withdrew from the body, and then was asked to come back. How many other punishments have you imposed? Let us have some details, instead of keeping everything secret. Let the meetings of the NBA and BEA be televised so as to ensure transparency and accountability (which Justice Verma has been advocating vociferously for the judiciary).

Let me quote from an article by Abhishek Upadhyaya, Editor, Special Projects, Dainik Bhaskar:

“It appears that the BEA was founded to collectively use intimidatory tactics in favour of a select few players after NBA failed to do so. The NBA is so weak, so feeble in its exercise of power that it can’t confront intimidation by its own members. The India TV case is an example of this. The NBA, in the past, had given notice to India TV for deceptively recreating a US-based policy analyst’s interview. It slapped a penalty of Rs 1 lakh on the channel which then walked out of the Association.

“The group of broadcasters found themselves completely helpless, couldn’t take any action and finally surrendered meekly before the channel. The offending channel issued a statement saying that its return has come after “fundamental issues raised by the channel against the disregard to NBA’s rules and guidelines were appreciated by the association’s directors…” The head of India TV, Rajat Sharma, then proceeded to join the board of NBA, and the channel’s managing editor, Vinod Kapri, returned to the Authority in the eminent editors’ panel!

“This was the turning point in the so-called self-regulation mechanism of electronic media. It became clear that all concerned had made an unwritten, oral understanding not to raise a finger on their own brethren in future. BEA was the next step in this direction, formed on 22 August, 2009 with a few electronic media editors in the driving seat. Since its inception this body has been irrationally screaming in the interest of a select few. The editors of this body announced some tender sops from time to time to publicise its good image and thwart any regulatory attempt in advance”.

Self-regulation

If the broadcast media claims self-regulation, then on the same logic everyone should be allowed self-regulation. Why then have laws at all, why have a law against theft, rape or murder? Why not abolish the Indian Penal Code and ask everyone to practise self-regulation? The very fact that there are laws proves that self-regulation is not sufficient, there must also be some external regulation and fear of punishment.

I may clarify here that I am not in favour of regulation of the media by the government but by an independent statutory authority like the Press Council of India. The Chairman of this body is not selected by the government but by a three-member selection committee consisting of (1) The Chairman of the Rajya Sabha (who is the Vice-President of India) (2) The Speaker of the Lok Sabha and (3) One representative of the Press Council.

The Press Council has 28 members, of which 20 are from the Press, five members of Parliament, and 3 from other bodies (The Bar Council of India, UGC and Sahitya Academy). The decisions of the Press Council are taken by a majority vote. Therefore, I am not a dictator who can ride roughshod on the views of others. Several of my proposals were rejected by the majority, and I respected their verdict. If the electronic media also comes under the Press Council (which can be renamed the Media Council), representatives of the electronic media will also be on this body, which will be totally democratic. Why then are the electronic media people so furiously and fiercely opposing my proposal? Obviously because they want a free ride in India without any kind of regulation and freedom to do what they will. I would welcome a healthy debate on this issue.

(The author is chairman of the Press Council of India.)

Haryana paid top lawyer’s clerk Rs 1L for one ‘appearance’

CHANDIGARH: The Haryana government will have to pay as much as Rs 64 lakh to two of country’s top legal eagles – Rohinton F Nariman and G E Vahanvati – for “conferences and just nine appearances” in the Supreme Court in a span of three weeks in an important case relating to defection of five Haryana Janhit Congress (HJC) MLAs. The government, which has been billed up to a maximum of Rs 1.65 lakh for one appearance by the clerk of one of the top lawyers, has a battery of over 200 law officers, headed by an advocate

The Bhupinder Singh Hooda government in Haryana hired these top lawyers after it was faced with the prospect of being reduced to a minority in the assembly, following a Punjab and Haryana high court verdict in December last year, detaching the five MLAs from the assembly. The MLAs had joined Congress after defecting from HJC, led by Bhajan Lal’s son and Hisar MP Kuldeep Bishnoi. While Rohinton, son of eminent jurist Fali S Nariman, is the solicitor general of India, Vahanvati is the attorney general of India. The bill is likely to rise with other legal eagles, like former solicitor general Gopal Subramanium and senior advocates Rajiv Atma Ram and Mohan Jain, yet to send their details for appearing in the high court.

Information received through the RTI Act by TOI has revealed that the highest billed amount has touched Rs 7 lakh for a single appearance, while the highest amount to be paid to their clerks has touched Rs 1.65 lakh for one appearance along with the lawyers. The lawyers were hired to defend the Haryana Speaker.

Factoids

Fee of SC advocate Rohinton F Nariman

February 22, 2012 | Rs 5.50 lakh
February 23, 2012 | Rs 5.50 lakh
February 28, 2012 | Rs 5.50 lakh
February 29, 2012 | Rs 5.50 lakh
March 13, 2012 | Rs 5.50 lakh
March 14, 2012 | Rs 5.50 lakh
March 15, 2012 | Rs 5.50 lakh
March 18, 2012 | Rs 5.50 lakh
Service tax | Rs 4.53 lakh
Total | Rs 48.53 lakh

Fee of Nariman’s clerk Narayan Verma
February 23, 2012 | Rs 1.10 lakh
February 29, 2012 | Rs 1.10 lakh
March 15, 2012 | Rs 1.65 lakh
March 18, 2012 | Rs 55,000
Total | Rs 4.40 lakh

Fee of SC advocate G E Vahanvati

January 4, 2012 | Rs 10 lakh (for conference and appearance)
Total | 10 lakh

Fee for Vahanvati’s clerk
January 4, 2012 | Rs 1 lakh (for conference and appearance)

Gross total | Rs 64 lakh

Harish Salve explains SC powers on contempt

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

NEW DELHI: If a person is found guilty of committing contempt of Supreme Court, will the apex court’s constitutional power to punish him be circumscribed by the Contempt of Court Act (CCA) provisions?

Senior advocate Harish Salve, appearing in the application filed by Vodafone complaining about misreporting during the hearing of its case, said CCA only provided the guiding principles and would in no way limit the apex court’s power on quantum of punishment, which in appropriate cases could exceed what is provided in the statute. The response came to a query from a five-judge bench comprising Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, Ranjana P Desai and J S Khehar whether Article 129 of the Constitution, which provides that “the Supreme Court shall be a court of record and shall have all powers of such a court including the power to punish for contempt of itself”, meant it was bridled by the CCA.

After hearing Salve’s view, the CJI said though the bench had not taken any final view, it was of the opinion that provisions of a statute could not limit the Constitution-vested powers of the apex court. In the midst of long deliberation on the necessity of framing media reporting guidelines to protect right of an accused to reputation and dignity as well as preserve sanctity of fair trial, the bench asked for Salve’s view on restricting press freedom derived from right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution and whether it could only be done through parameters specified under Article 19(2).

The senior advocate said, “The Supreme Court need not deal with the restrictions specified under Article 19(2) because it is only engaged in an exercise to define the contours of press freedom in reporting pending investigation or trial of a case and balancing it with the right of the accused to dignity and reputation.”

Salve said these days it was common to find TV channels standing outside a house being raided by investigating agencies and telecasting minute by minute details of the search operation. “This surely besmirches someone’s reputation. What happens if the agency does not find any incriminating material or does not press any charge at the end of the investigations? Can he not move the constitutional courts seeking relief on the ground that such reporting was destroying his reputation,” he asked.

“The media should be beyond government regulations except acceptable censorship. But to argue that media is beyond all regulation is the limit,” he said. Salve also objected to media using unnecessary hyperboles to describe intense questioning by a bench in serious issues.

He said, “Judges ask sharp questions to get the best out of lawyers. There is no pulling up, tearing into or lambasting involved in the oral argument-based judicial scrutiny system in India. There is a talk of restraining judges from making comments on institutions. If anyone has to exercise restraint, it is the reporters who cover the courts, not the judges nor the lawyers who must not be inhibited in any manner from free and frank exchange of views.”

Counsel Nitya Ramakrishnan said the investigating agencies had been regularly leaking information to media to prejudice an accused branding him as a terrorist though ultimately he might get acquitted in a trial. Appearing for Rajasthan government, counsel Manish Singhvi said a state producing clear and cogent evidence of consistent media misreporting could seek temporary deferment of publication for a limited period.

“However, the order for postponement of publication must be direct, proximate with investigation and must be least intrusive to the freedom of press/electronic media. Thus, the press has a right to report even criminal sub-judice matters as long as they do not impair or destroy fair investigation,” he said. Singhvi said subordinate courts had sovereign power to dispense justice and hence, they had inherent powers to pass appropriate orders to secure the ends of justice.

Warding Off The Eye

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

***

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

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

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

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

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

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

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

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

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

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

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

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

ANURADHA RAMAN IN THE OUTLOOK

Supreme but not infallible

Supreme Court of India

NIKHIL KANEKAL IN THE MINT

Constitutional battles are usually delicious if you’re a geeky spectator of parliamentarians, policy wonks and jurists. It’s not fun to be one of the embattled sides in an unfair fight.

Journalists like to believe…that all constitutional rights depend on the right to know and the right to know depends on a free press”—Benjamin C. Bradlee, editor of The Washington Post, 2 June 1974. Constitutional battles are usually delicious if you’re a geeky spectator of parliamentarians, policy wonks and jurists. It’s not fun to be one of the embattled sides in an unfair fight.

The battle is unfair because the media is being forced to fight against the judiciary on the latter’s turf. A constitutional bench of five judges in the Supreme Court of India has set out to create a framework for the press to report on the judiciary and its proceedings. The press, unlike Parliament or the executive, has no further remedy once it gets tied down by the Supreme Court. Through Indian constitutional history, the court has been the custodian of free speech and, indirectly, of an uncurtailed and robust press. As it stands, the protector is threatening to limit our rights. Given that the court’s verdict is bound to affect the way people like me carry out our trade, I’m not pleased about the scenario in the least, especially since so much that needs to be said on our behalf is not even coming before the bench.

Yes, journalists are being represented in the case—Rajeev Dhavan has argued for the Editors’ Guild of India and the Forum for Media Professionals, Anil Divan represented The Hindu and Prashant Bhushan argued for Siddharth Varadarajan, editor of The Hindu. Other bodies such as the self-regulatory body for 46 television channels, News Broadcasters Association, the Indian Newspapers Society and the Press Council of India are being heard by the court.

I don’t blame the judges for not understanding the nuances involving journalistic craft. They are judges, not journalists. If it were so easy to understand how reporters, editors and newsrooms worked, there would be no such confrontation between the two sides. And the same is true of the media—few people in newsrooms really understand how the judiciary works.

The language of both the professions also causes mutual tension. To a journalist sitting on a newsdesk, the words “suit” and “petition” are interchangeable, and a headline writer is more likely to use the former because it fits in a smaller space. To lawyers and judges, the gulf between a judge’s quote in a news story suffixed with “said the judge” and “observed the court” is massive. The former might well be an order or directive, while the latter could merely form part of the debate between the bar and the bench. After all, judges must throw searching questions at lawyers in order to properly excavate the points of dispute. The line of questioning, while it is a good indication, doesn’t necessarily mean that the court will eventually rule in that direction.

If you read multiple newspaper reports of the same court case and compare them, they might seem like accounts from different hearings. This is because daily hearings go on for hours, more so in appellate courts. A journalist will have only a few hundred words, or a few minutes of airtime, to tell a story. Obviously the newsiest details must make it to the top—the inverted pyramid rule. And this is not usually the most crucial legal argument being propounded in a case.

Eventually, lawyers think court reporters have done a bad job. The challenge is to succinctly summarize the proceedings. Different newspapers and television channels have varying styles of presenting news.

To most journalists, especially those who don’t normally report court-related news, when a lawyer opens his mouth, all that comes out is legalese.

To be sure, the judges may decide after the hearings are completed not to do anything that may be seen to be muzzling press freedom. The Supreme Court has also clarified that the ongoing constitutional bench hearings dealing with media coverage of sub judice cases will be restricted to questions of law related only to this aspect.

But we must ask the questions since it is germane to the arguments before the court: Is the Supreme Court’s constitutional bench the right forum to resolve bad journalism that emanates from our courts? Do the judges and lawyers appearing before them have the necessary expertise to deal with the myriad issues at hand, especially if they are not of a litigious nature? Does the court have the power to tell the media how it might report judicial proceedings?

What’s happening isn’t new. There have been similar breakdowns between the courts and the press elsewhere.

In March 1975, the top jurists, lawyers, editors, reporters, government officials and other stakeholders in the US came together in what has come to be known as the Washington Conference. Both sides “tested the high ground of principle against the erosive force of real world legal and journalistic practice, agreed to disagree, sometimes even agreed, and learned more about each other than was previously known,” reads a brief preview to the discussions at the conference. Jurists and journalists sat together and while mutually devising solutions, respected each other’s domain.

In 2009, a committee of judges and journalists in the UK decided how reportage would be conducted in the criminal courts.

Dhavan has already submitted to the Indian Supreme Court that a similar joint committee of members from the press and the judiciary would be the best way out of the woods we now find ourselves in. After all, there is no defending bad journalism.

Respond to this column at nikhil.k@livemint.com

NIKHIL KANEKAL IN THE MINT