LAW RESOURCE INDIA

Reporting guidelines: Supreme Court expands scope of deliberations

Posted in DOMESTIC VIOLENCE, MEDIA ETHICS, MEDIA ISSUES, MEDIA LAW by NNLRJ INDIA on April 7, 2012
SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

A petitioner has pleaded the Supreme Court to frame guidelines and norms for coverage of criminal cases pending investigation “so that the right of privacy and to live with dignity is not at the mercy of irresponsible press or media as has been done in the case of the recent Aarushi murder case”.

 NEW DELHI: The purview of the Supreme Court’s deliberations to frame guidelines for how media should report sub-judice matters, which arose from indignation over a news report on “leaked” privileged communication between the counsel of Sahara Real Estate Corporation and Sebi, has now been expanded to include related cases which had been pending in the apex court since 1999.

While hearing Sahara’s application, a five-judge bench headed by Chief Justice SH Kapadia had directed that “any party, who desires to make submissions in the matter, may do so by way of intervention”. This prompted several public spirited lawyers and organizations to intervene in the deliberations.

During the discussions, the court had appeared to narrow down the issue before it to a debate on the framing of guidelines for reporting of criminal trials to guard against violation of Article 21 guaranteeing right of an accused to reputation and dignity and to ensure that his trial does not get prejudiced, and the witness protection mechanism is not impacted.

However, on April 4, the court ordered inclusion of four more media guideline-related petitions, two of which were pending since 1999 and 2000, within the zone of consideration by permitting the parties involved to make submissions on “framing of guidelines for reporting of cases in media” when the matter is taken up for hearing on April 10. This at once broadened the scope of the exercise.

The issues raised in these four petitions include norms for news coverage in electronic media, norms and guidelines to minimize presentation of sexual abuse and violence on TV channels, contempt proceedings against journalists for publishing confessional statements of accused before police and making police liable for damages for tarnishing the reputation of an accused by releasing details of investigation into a case.

In Criminal Appeal No. 1255 of 1999 titled PUCL vs State of Maharashtra, the News Broadcasters Association had desired to intervene and assist the apex court on the issue of “what norms should govern news coverage by the electronic media”. On November 5, 2008, a bench headed by Justice Dalveer Bhandari had issued notices to all state and Union Territory governments.

The writ petition (civil) No. 387 of 2000 titled Common Cause vs Union of India last came up for hearing before the court in July 2009. The relief sought by the NGO was to “prescribe definite norms and guidelines for minimization of presentation of scenes of violence and sexual abuse in serials and programmes telecast by TV channels for avoidance of undesirable mental impact on the viewers, particularly children”.

In the transfer case 27 of 2011, NGO Anhad had sought initiation of contempt proceedings against two senior journalists for “publishing confessional statements of accused before police and thereby prejudicing or tending to prejudice the due course of judicial proceedings of those accused”.

Ban sought on cops leaking case information

Anhad had also sought a direction to the government to lay down guidelines “to be followed by both police and media regarding release of evidence or information and its publication against the accused claimed to be obtained by police during interrogation or investigation when the matter is sub-judice”.

The fourth petition included in the list was a writ petition filed by Dr Surat Singh in 2008 in the aftermath of media reporting of UP police’s version of the Aarushi murder case and the role of the accused. He had sought a complete ban on police leaking any information to media about pending investigations. He had also requested the court to make police officers personally liable for rushing to media and “making adverse comments or character assassination of an accused or his family members/friends or about the victim”.

Singh had sought framing of guidelines and norms for coverage of criminal cases pending investigation “so that the right of privacy and to live with dignity is not at the mercy of irresponsible press or media as has been done in the case of the recent Aarushi murder case”.

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HC dismiss PIL seeking stay of Rajoana’s execution

Posted in DEATH PENALTY by NNLRJ INDIA on March 22, 2012

HINDUSTAN TIMES

The public interest litigation seeking stay of the operation of judicial order for executing Balwant Singh Rajoana, a convict in assassination of ex-Punjab chief minister Beant Singh and 17 others, was dismissed by the Punjab and Haryana high court on Thursday on the ground that the petitioner had no ‘locus standi’(legal stand) to file the petition.

The division bench comprising justice Hemant Gupta and justice AN Jindal said that earlier Rajoana had already refused to put appearance before the high court in the murder reference and had also declined the assistance of a counsel to defend himself on  government expenses. “He(Rajoana) has not even filed an appeal before the Hon’ble Supreme Court. This court has no such jurisdiction to stay an order passed by the Co-ordinate Bench(one of the courts in high court) by way of an interim order in a public interest litigation,” held the bench. A division bench of the high court on October 12, 2010 had confirmed Rajoana’s death sentence but converted another co-accused Jagtar Singh Hawara’s death sentence to life imprisonment.

The petition filed by an NGO, Lawyers for Human Rights International had requested that till such time the petition filed by the CBI challenging the earlier high court orders in the Supreme Court attains finality, the execution of Rajoana’s death sentence should be stayed, as there is a possibility of setting aside the high court’s order confirming Rajoana’s death sentence. The petititioner also submitted that a co-convict in the case, Lakhwinder Singh has also filed an appeal in the Apex Court.

However, citing an Apex Court’s judgment in a case of 1992 ‘Simranjeet Singh Mann vs Union of India’, the division bench said that the public interest litigation was dismissed in this case which was filed by a president of a political party challenging the conviction and sentence awarded to two convicts. The Apex Court judgment reads, “In the present case, no fundamental right of the petitioner before us is violated; if at all the case sought to be made out is that the fundamental rights of the two convicts have been violated. The two convicts could, if so minded, have raised the contention in the earlier proceedings but a third party, a total stranger to the trial commenced against the two convicts, cannot be permitted to question the correctness of the conviction recorded against them. If that were permitted any and every person could challenge convictions recorded day in and day out by courts even if the persons convicted do not desire to do so and are inclined to acquiesce in the decision. …”

The division bench also cited two more Apex Court’s judgments, i.e. in ‘Karamjeet Singh Vs. Union of India(1992)’ and ‘Ashok Kumar Pandey Vs. State of West Bengal(2004)’challenging death sentence of one Dhananjay Chatterjee, reiterating smilar view while dismissing PILs.

Timeline:

August 31, 1995 : Ex-Punjab chief minister Beant Singh and 17 others assassinated by a human bomb Dilawar Singh outside Punjab and Haryana Civil Secretariat.

July 31, 2007 : Trial court awards death sentence to Hawara and Rajoana. Gurmeet Singh, Lakhwinder Singh and Shamsher Singh awarded life imprisonment and Nasib Singh sent to 10 years imprisonment.

October 12, 2010 : High Court confirms Rajoana’s death sentence, converts Hawara’s death sentence to life imprisonment.

March 5, 2012 : Additional sessions judge, Chandigarh orders Rajoana’s execution on March 31 at 9 am.

March 22, 2012 : HC dismisses PIL seeking stay on orders of Rajoana’s execution.

Govt must encourage democratic rights, not police power: Jaitley

Posted in CONSTITUTION, FUNDAMENTAL RIGHTS, HUMAN RIGHTS, JUSTICE, LIBERTY AND JUSTICE by NNLRJ INDIA on February 27, 2012

ARUN JAITELY IN THE PIONEER

The Supreme Court has pronounced a landmark judgement on the incident that took place on the midnight of June 4-5, 2011 at Ramlila Maidan, Delhi where Baba Ramdev and his supporters were carrying on a protest against corruption and prevalence of black money in India.

They were agitating against the reluctance of the Government to take key steps to eliminate the menace of corruption and black money.

Admittedly, the protest was peaceful. The essence of democracy is the right to have an alternative opinion and to agitate for its acceptance. The term Satyagraha, originated in a news-sheet Indian Opinion in South Africa in 1906. It was an adaptation by Gandhiji from one of competition entries in South Africa. Satyagraha went beyond the concept of ‘passive resistance’. The essence of Satyagraha was non-violence but aggression. Its force lay in truth and the ability to struggle for it. The satyagrahi invited to himself the adverse consequences of his action. He was willing to suffer the punishment as consequence of his struggle.

The Supreme Court in its judgement has upheld the right to peaceful protest as a Constitutional right. The Court has rightly observed – “Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitation are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national importance.

The Government has to respect, and in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions”.

The right to peacefully protest subject to just restrictions is now an essential part of free speech and the right to assemble. Additionally, it is an affirmative obligation of the State to make that exercise of this right effective.

Recent experiences have shown that the political establishment encourages the use of police powers to render weak and otiose the exercise of such rights. Team Anna repeatedly had difficulties in being allotted a centrally-located place to organise its protest. Police powers were used to dictate that the size of protest must be miniscule and not large. When large open areas, such as the Ramlila Maidan and other centrally-located sites are available, recent experiences have shown that police discretion has been used to discourage people from using such sites for organising protests. The Supreme Court has taken note of some such practices.

A reading of the judgement of the Supreme Court confirms the fact that the protest by Baba Ramdev and his supporters was absolutely peaceful. The Supreme Court has observed that – “There was no disturbance or altercation whatsoever and the followers of Baba Ramdev were peacefully waiting in queues that stretched for over two kilometres. If the police wanted to limit the number to 5,000, it could have easily stopped the people at the gate itself.

However, no such attempt was made. The conduct of the police goes to indicate that the police action resulted from instructions from the Government and their current stand regarding the number of persons present is nothing but an after thought.”

The court, further referring to the conduct of the protesters, noticed that – “None of the stated conditions, admittedly, had been violated, and as such there was no cause for the police to withdraw the said permission…Even for the sake of arguments, it is assumed that there was a requirement for seeking permission from the police and the police had the authority to refuse such a permission and such authority was exercised in accordance with the law, then also this respondent and the public at large were entitled to a clear and sufficient notice before the police could use force to disperse the persons present at the site. Imposition of an order under Section 144 Cr PC was neither called for nor could have been passed in the facts and circumstances of the present case…

In fact the order was passed in a pre-planned manner and with the only object of not letting Baba Ramdev to continue his fast at the relevant date and time… The documents on record show that some of the police personnel certainly abused their authority and were unduly harsh and violent towards the people present at the Ramlila Maidan, whereas some others were, in fact, talking to the members of the gathering as well as had adopted a helpful attitude.”

What happened on the midnight of 4-5th June, 2011 at Ramlila Maidan becomes increasingly clear from the final directions of the Court. A peaceful protest was being organised by Baba Ramdev and his supporters as a part of their Constitutional guarantees when Section 144 was unlawfully imposed.  The protesters were peaceful. They had followed every condition imposed on them. The entry into the pandal was regulated by the police. Suddenly a decision was taken to evict the gathering.

The Supreme Court in this regard has observed – “The decision to forcibly evict people sleeping at Ramlila Maidan at the midnight of 4-5th June, 2011 whether taken by the police independently or on consultation with the Ministry of Home Affairs, is amiss and suffers from the element of arbitrariness and abuse of power to some extent. The restriction imposed on the Right to Freedom of Speech and Expression was unsupported by cogent reasons and material facts. It was an invasion of legal protections available to them even under the provisions of the CrPC.

Thus, the restriction was unreasonable and unwarrantedly executed. The action demonstrated the might of the State and was an assault on the very basic democratic values enshrined in our Constitution… From the facts and circumstances that emerge from the record before this Court, it is evident that it was not a case of emergency.”

The Court has further held that even if the Government decided to evict the people present, they were entitled to a reasonable notice. On the contrary, disproportionate force was used, water canons, lathi charge and tear gas shell injuring many people and leaving one dead.

These conclusions by the Supreme Court upheld the Constitutional guarantees that citizens are entitled to.  They go a long way in strengthening the Indian democracy and allowing space for peaceful dissent within our political system. The observations of the court and the law so declared will go a long way in safeguarding the right to protest, which makes dissent co-existent with democracy. The Court deserves full credit for this.

However, after this, the judgement takes a curious turn. It imposes an obligation on the protesters to obey every lawful order. Admittedly, neither the imposition of Section 144 in this case nor the withdrawal of permission or the manner of forcible eviction were lawful. Why should the protesters have accepted such an order? How then can the principle of ‘contributory negligence’ be imposed on a protester who was exercising his fundamental right to protest?

The concept of ‘contributory negligence’ is born out of a law of tort. It cannot be used to dilute the width and exercise of a Fundamental Right. ‘Contributory negligence’ is a defence where a person who is wronged could have acted in his own interest and taken due care and caution so that not to contribute to injury. It is a legal plea available as a defence in a Tort action. Its application to restrict the exercise of Fundamental Right is wholly unwarranted and legally untenable.

India attained its Independence through peaceful struggle. Passive resistance, civil disobedience and Satyagraha are well-known instruments of protest. They essentially involve peaceful and non-violent methodologies of protest. Satyagraha is an instrument where truth is used for assertion. A satyagrahi himself bears the punishment for violating the law and for disagreeing with an oppressive regime. To equate the right of a satyagrahi with contributory negligence undoes the advantage of an otherwise landmark law that this judgement has laid down. If a protester is within his Constitutional rights to organise a peaceful protest, he is equally within his rights not to accept an illegal order denying his right to protest. He runs the risk of being punished if the order is held to be lawful. But when a protester violates Section 144, he is always willing to suffer a punishment.

The law declared is understood to mean that every time his fundamental right to protest is intercepted by the State; he must immediately comply with the order or run the risk of being liable for contributory negligence. A citizen cannot be compelled to abdicate his Fundamental Rights merely because the State decides to restrict his right to protest.

The judgement of the Supreme Court lays down a landmark law inasmuch as it upholds the right to protest as a Fundamental Right of Speech and assemble.

However, it shakes the foundation of the Fundamental Right by laying down a highly doubtful proposition that once the right to protest is denied, the protester must meekly accept the denial or run the risk of a contributory negligence to the police oppression. This part of the judgement requires extensively debate and possible reconsideration.

Writer is Leader of Opposition in the Rajya Sabha

http://dailypioneer.com/nation/45862-govt-must-encourage-democratic-rights-not-police-power-jaitley-.html

Reasonable restriction to Right of free speech and expression

Posted in CONSTITUTION, DEMOCRACY, FUNDAMENTAL RIGHTS, GOVERNANCE by NNLRJ INDIA on February 24, 2012
The Indian Constitution preamble

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Re-Ramlila Maidan Incident Dt … vs Home Secretary And Ors. on 23 February, 2012 – SUO MOTU WRIT PETITION (CRL.) NO. 122 OF 2011

1. At the very outset, I would prefer to examine the principles of law that can render assistance in weighing the merit or otherwise of the contentious disputations asserted before the Court by the parties in the present suo moto petition. Besides restating the law governing Articles 19(1)(a) and 19(1)(b) of the Constitution of India and the parallel restrictions contemplated under Articles 19(2) and 19(3) respectively, I would also gauge the dimensions of legal provisions in relation to the exercise of jurisdiction by the empowered officer in passing an order under Section 144 of the Code of Criminal Procedure, 1973 (for short `Cr.P.C.’).

2. It appears justified here to mention the First Amendment to the United States (US) Constitution, a bellwether in the pursuit of expanding the horizon of civil liberties. This Amendment provides for the freedom of speech of press in the American Bill of Rights. This Amendment added new dimensions to this right to freedom and purportedly, without any limitations. The expressions used in wording the Amendment have a wide magnitude and are capable of liberal construction. It reads as under :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

3. The effect of use of these expressions, in particular, was that the freedom of speech of press was considered absolute and free from any restrictions whatsoever. Shortly thereafter, as a result of widening of the power of judicial review, the US Supreme Court preferred to test each case on the touchstone of the rule of `clear- and-present-danger’. However, application of this rule was unable to withstand the pace of development of law and, therefore, through its judicial pronouncements, the US Supreme Court applied the doctrine of `balancing of interests’. The cases relating to speech did not simply involve the rights of the offending speaker but typically they presented a clash of several rights or a conflict between individual rights and necessary functions of the Government. Justice Frankfurter often applied the above-mentioned Balancing Formula and concluded that “while the court has emphasized the importance of `free speech’, it has recognized that free speech is not in itself a touchstone. The Constitution is not unmindful of other important interests, such as public order, if free expression of ideas is not found to be the overbalancing considerations.

4. The `balancing of interests’ approach is basically derived from Roscoe Pound‘s theories of social engineering. Pound had insisted that his structure of public, social and individual interests are all, in fact, individual interests looked at from different points of view for the purpose of clarity. Therefore, in order to make the system work properly, it is essential that when interests are balanced, all claims must be translated into the same level and carefully labelled. Thus, a social interest may not be balanced against individual interest, but only against another social interest. The author points out that throughout the heyday of the clear-and-present-danger and preferred position doctrines, the language of balancing, weighing or accommodating interests was employed as an integral part of the libertarian position. [Freedom of Speech: The Supreme Court and Judicial Review, by Martin Shapiro, 1966]

5. Even in the United States there is a recurring debate in modern First Amendment Jurisprudence as to whether First Amendment rights are `absolute’ in the sense that the Government may not abridge them at all or whether the First Amendment requires the `balancing of competing interests’ in the sense that free speech values and the Government’s competing justification must be isolated and weighted in each case. Although the First Amendment to the American Constitution provides that Congress shall make no law abridging the freedom of speech, press or assembly, it has long been established that those freedoms themselves are dependent upon the power of the constitutional Government to survive. If it is to survive, it must have power to protect itself against unlawful conduct and under some circumstances against incitements to commit unlawful acts. Freedom of speech, thus, does not comprehend the right to speak on any subject at any time. In the case of Schenck v. United States [63 L ed 1173], the Court held :

The character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that have all the effect of force….the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

[Constitution of India, (2nd Edn.), Volume 1 by Dr. L.M. Singhvi]

6. In contradistinction to the above approach of the US Supreme Court, the Indian Constitution spells out the right to freedom of speech and expression under Article 19(1)(a). It also provides the right to assemble peacefully and without arms to every citizen of the country under Article 19(1)(b). However, these rights are not free from any restrictions and are not absolute in their terms and application. Articles 19(2) and 19(3), respectively, control the freedoms available to a citizen. Article 19(2) empowers the State to impose reasonable restrictions on exercise of the right to freedom of speech and expression in the interest of the factors stated in the said clause. Similarly, Article 19(3) enables the State to make any law imposing reasonable restrictions on the exercise of the right conferred, again in the interest of the factors stated therein.

7. In face of this constitutional mandate, the American doctrine adumbrated in Schenck’s case (supra) cannot be imported and applied. Under our Constitution, this right is not an absolute right but is subject to the above-noticed restrictions. Thus, the position under our Constitution is different.

 8. In `Constitutional Law of India’ by H.M. Seervai (Fourth Edn.), Vol.1, the author has noticed that the provisions of the two Constitutions as to freedom of speech and expression are essentially different. The difference being accentuated by the provisions of the Indian Constitution for preventive detention which have no counterpart in the US Constitution. Reasonable restriction contemplated under the Indian Constitution brings the matter in the domain of the court as the question of reasonableness is a question primarily for the Court to decide. {Babulal Parate v. State of Maharashtra [(1961) 3 SCR 423]}.

9. The fundamental right enshrined in the Constitution itself being made subject to reasonable restrictions, the laws so enacted to specify certain restrictions on the right to freedom of speech and expression have to be construed meaningfully and with the constitutional object in mind. For instance, the right to freedom of speech and expression is not violated by a law which requires that name of the printer and publisher and the place of printing and publication should be printed legibly on every book or paper.

10. Thus, there is a marked distinction in the language of law, its possible interpretation and application under the Indian and the US laws. It is significant to note that the freedom of speech is the bulwark of democratic Government. This freedom is essential for proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties, giving succour and protection to all other liberties. It has been truly said that it is the mother of all other liberties. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. It has been described as a ;basic human right ;a natural right; and the like. With the development of law in India, the right to freedom of speech and expression has taken within its ambit the right to receive information as well as the right of press.

11. In order to effectively consider the rival contentions raised and in the backdrop of the factual matrix, it will be of some concern for this Court to examine the constitutional scheme and the historical background of the relevant Articles relating to the right to freedom of speech and expression in India. The framers of our Constitution, in unambiguous terms, granted the right to freedom of speech and expression and the right to assemble peaceably and without arms. This gave to the citizens of this country a very valuable right, which is the essence of any democratic system. There could be no expression without these rights. Liberty of thought enables liberty of expression. Belief occupies a place higher than thought and expression. Belief of people rests on liberty of thought and expression. Placed as the three angles of a triangle, thought and expression would occupy the two corner angles on the baseline while belief would have to be placed at the upper angle. Attainment of the preambled liberties is eternally connected to the liberty of expression. (Ref. Preamble, The Spirit and Backbone of the Constitution of India, by Justice R.C. Lahoti). These valuable fundamental rights are subject to restrictions contemplated under Articles 19(2) and 19(3), respectively. Article 19(1) was subjected to just one amendment, by the Constitution (44th Amendment) Act, 1979, vide which Article 19(1)(f) was repealed. Since the Parliament felt the need of amending Article 19(2) of the Constitution, it was substituted by the Constitution (First Amendment) Act, 1951 with retrospective effect. Article 19(2) was subjected to another amendment and vide the Constitution (Sixteenth Amendment) Act, 1963, the expression "sovereignty and integrity of India was added. The pre-amendment Article had empowered the State to make laws imposing reasonable restrictions in exercise of the rights conferred under Article 19(1)(a) in the interest of the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement of an offence. To introduce a more definite dimension with regard to the sovereignty and integrity of India, this Amendment was made. It provided the right spectrum in relation to which the State could enact a law to place reasonable restrictions upon the freedom of speech and expression.

12. This shows that the State has a duty to protect itself against certain unlawful actions and, therefore, may enact laws which would ensure such protection. The right that springs from Article 19(1)(a) is not absolute and unchecked. There cannot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint. Had there been no restraint, the rights and freedoms may become synonymous with anarchy and disorder. {Ref.: State of West Bengal Vs. Subodh Gopal Bose [AIR 1954 SC 92]}.

13. I consider it appropriate to examine the term `liberty’, which is subject to reasonable restrictions, with reference to the other constitutional rights. Article 21 is the foundation of the constitutional scheme. It grants to every person the right to life and personal liberty. This Article prescribes a negative mandate that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The procedure established by law for deprivation of rights conferred by this Article must be fair, just and reasonable. The rules of justice and fair play require that State action should neither be unjust nor unfair, lest it attracts the vice of unreasonableness, thereby vitiating the law which prescribed that procedure and, consequently, the action taken thereunder.

14. Any action taken by a public authority which is entrusted with the statutory power has, therefore, to be tested by the application of two standards – first, the action must be within the scope of the authority conferred by law and, second, it must be reasonable. If any action, within the scope of the authority conferred by law is found to be unreasonable, it means that the procedure established under which that action is taken is itself unreasonable. The concept of `procedure established by law’ changed its character after the judgment of this Court in the case of Maneka Gandhi v. UOI [AIR 1978 SC 597], where this Court took the view as under : "The principle of reasonableness, which legally as well as philosophically is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be right and just and fair and not arbitrary fanciful or oppressive otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.This was also noted in the case of Madhav Hayawadanrao Hoskot v. State of Maharashtra (1978) 3 SCC 544 where this Court took the following view:

Procedure established by law are words of deep meaning for all lovers of liberty and judicial sentinels.

15. What emerges from the above principles, which has also been followed in a catena of judgments of this Court, is that the law itself has to be reasonable and furthermore, the action under that law has to be in accordance with the law so established. Non-observance of either of this can vitiate the action, but if the former is invalid, the latter cannot withstand.

16. Article 13 is a protective provision and an index of the importance and preference that the framers of the Constitution gave to Part III. In terms of Article 13(1), the laws in force before the commencement of the Constitution, in so far as they were inconsistent with the provisions of that Part were, to the extent of such inconsistency, void. It also fettered the right of the State in making laws. The State is not to make any law which takes away or abridges the rights conferred by this Part and if such law is made then to the extent of conflict, it would be void. In other words, except for the limitations stated in the Articles contained in Part III itself and Article 13(4) of the Constitution, this Article is the 13 reservoir of the fundamental protections available to any person/citizen.

17. While these are the guaranteed fundamental rights, Article 38, under the Directive Principles of State Policy contained in Part IV of the Constitution, places a constitutional obligation upon the State to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice – social, economic and political – shall inform all the institutions of the national life. Article 37 makes the Directive Principles of State Policy fundamental in governance of the country and provides that it shall be the duty of the State to apply these principles in making laws.

18. With the development of law, even certain matters covered under this Part relating to Directive Principles have been uplifted to the status of fundamental rights, for instance, the right to education. Though this right forms part of the Directive Principles of State Policy, compulsory and primary education has been treated as a part of Article 21 of the Constitution of India by the courts, which consequently led to the enactment of the Right of Children to Free and Compulsory Education Act, 2010.

 19. Article 51A deals with the fundamental duties of the citizens. It, inter alia, postulates that it shall be the duty of every citizen of India to abide by the Constitution, to promote harmony and the spirit of common brotherhood, to safeguard public property and to abjure violence.

20. Thus, a common thread runs through Parts III, IV and IVA of the Constitution of India. One Part enumerates the fundamental rights, the second declares the fundamental principles of governance and the third lays down the fundamental duties of the citizens. While interpreting any of these provisions, it shall always be advisable to examine the scope and impact of such interpretation on all the three constitutional aspects emerging from these parts. It is necessary to be clear about the meaning of the word "fundamental as used in the expression ;fundamental in the governance of the State to describe the directive principles which have not legally been made enforceable. Thus, the word "fundamental has been used in two different senses under our Constitution. The essential character of the fundamental rights is secured by limiting the legislative power and by providing that any transgression of the limitation would render the offending law pretendo void. The word fundamental in Article 37 also means basic or essential, but it is used in the normative sense of setting, before the State, goals which it should try to achieve. As already noticed, the significance of the fundamental principles stated in the directive principles has attained greater significance through judicial pronouncements.

21. As difficult as it is to anticipate the right to any freedom or liberty without any reasonable restriction, equally difficult it is to imagine the existence of a right not coupled with a duty. The duty may be a direct or indirect consequence of a fair assertion of the right. Part III of the Constitution of India although confers rights, still duties and restrictions are inherent thereunder. These rights are basic in nature and are recognized and guaranteed as natural rights, inherent in the status of a citizen of a free country, but are not absolute in nature and uncontrolled in operation. Each one of these rights is to be controlled, curtailed and regulated, to a certain extent, by laws made by the Parliament or the State Legislature. In spite of there being a general presumption in favour of the constitutionality of a legislation under challenge alleging violation of the right to freedom guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie case of such violation being made out, the onus shifts upon the State to show that the legislation comes within the permissible restrictions set out in clauses (2) to (6) of Article 19 and that the particular restriction is reasonable. It is for the State to place on record appropriate material justifying the restriction and its reasonability. Reasonability of restriction is a matter which squarely falls within the power of judicial review of the Courts. Such limitations, therefore, indicate two purposes; one that the freedom is not absolute and is subject to regulatory measures and the second that there is also a limitation on the power of the legislature to restrict these freedoms. The legislature has to exercise these powers within the ambit of Article 19(2) of the Constitution.

22. Further, there is a direct and not merely implied responsibility upon the Government to function openly and in public interest. The Right to Information itself emerges from the right to freedom of speech and expression. Unlike an individual, the State owns a multi-dimensional responsibility. It has to maintain and ensure security of the State as well as the social and public order. It has to give utmost regard to the right to freedom of speech and expression which a citizen or a group of citizens may assert. The State also has a duty to provide security and protection to the persons who wish to attend such assembly at the invitation of the person who is exercising his right to freedom of speech or otherwise. In the case of S. Rangarajan v. Jagjivan Ram [(1989) 2 SCC 574], this Court noticed as under : The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a power keg

23. Where the Court applies the test of `proximate and direct nexus with the expression’, the Court also has to keep in mind that the restriction should be founded on the principle of least invasiveness i.e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation. The Court would also take into consideration whether the anticipated event would or would not be intrinsically dangerous to public interest.

24. Now, I would examine the various tests that have been applied over the period of time to examine the validity and/or reasonability of the restrictions imposed upon the rights.

Upon the Rights Enshrined in the Constitution

 25. No person can be divested of his fundamental rights. They are incapable of being taken away or abridged. All that the State can do, by exercise of its legislative power, is to regulate these rights by imposition of reasonable restrictions on them. Upon an analysis of the law, the following tests emerge:-

a) The restriction can be imposed only by or under the authority of law. It cannot be imposed by exercise of executive power without any law to back it up.

b) Each restriction must be reasonable.

c) A restriction must be related to the purpose mentioned in Article 19(2).

 26. The questions before the Court, thus, are whether the restriction imposed was reasonable and whether the purported purpose of the same squarely fell within the relevant clauses discussed above. The legislative determination of what restriction to impose on a freedom is final and conclusive, as it is not open to judicial review. The judgments of this Court have been consistent in taking the view that it is difficult to define or explain the word "reasonable" with any precision. It will always be dependent on the facts of a given case with reference to the law which has been enacted to create a restriction on the right. It is neither possible nor advisable to state any abstract standard or general pattern of reasonableness as applicable uniformly to all cases. This Court in the case of State of Madras v. V.G. Row [AIR 1952 SC 196] held :- "It is important in this context to bear in mind that the test of reasonableness, whereever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness, can be laid down as applicable to all cases.

27. For adjudging the reasonableness of a restriction, factors such as the duration and extent of the restrictions, the circumstances under which and the manner in which that imposition has been authorized, the nature of the right infringed, the underlining purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, amongst others, enter into the judicial verdict. [See: ChintamanraoAnr. v. State of Madhya Pradesh (AIR 1951 SC 118)].

 28. The courts must bear a clear distinction in mind with regard to `restriction’ and `prohibition’. They are expressions which cannot be used inter-changeably as they have different connotations and consequences in law. Wherever a `prohibition’ is imposed, besides satisfying all the tests of a reasonable `restriction’, it must also satisfy the requirement that any lesser alternative would be inadequate. Furthermore, whether a restriction, in effect, amounts to a total prohibition or not, is a question of fact which has to be determined with regard to facts and circumstances of each case. This Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others [(2005) 8 SCC 534] held as under:- "75. Three propositions are well settled: (i) ‘restriction’ includes cases of ‘prohibition’; (ii) the standard for judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate; and (iii) whether a restriction in effect amounts to a total prohibition is a question of fact which shall have to be determined with regard to the facts and circumstances of each case, the ambit of the right and the effect of the restriction upon the exercise of that right…..

29. The obvious result of the above discussion is that a restriction imposed in any form has to be reasonable and to that extent, it must stand the scrutiny of judicial review. It cannot be arbitrary or excessive. It must possess a direct and proximate nexus with the object sought to be achieved. Whenever and wherever any restriction is imposed upon the right to freedom of speech and expression, it must be within the framework of the prescribed law, as subscribed by Article 19(2) of the Constitution.

 30. As already noticed, rights, restrictions and duties co-exist. As, on the one hand, it is necessary to maintain and preserve the freedom of speech and expression in a democracy, there, on the other, it is also necessary to place reins on this freedom for the maintenance of social order. The term `social order’ has a very wide ambit. It includes `law and order’, `public order’ as well as `the security of the State’. The security of the State is the core subject and public order as well as law and order follow the same. In the case of Romesh Thappar v. State of Madras [1950 SCR 594], this Court took the view that local breaches of public order were no grounds for restricting the freedom of speech guaranteed by the Constitution. This led to the Constitutional (First Amendment) Act, 1951 and consequently, this Court in the case of Dr. Ram Manohar Lohia v. State of Bihar [AIR 1966 SC 740] stated that an activity which affects `law and order’ may not necessarily affect `public order’ and an activity which might be prejudicial to `public order’ may not necessarily affect `security of the State’. Absence of `public order’ is an aggravated form of disturbance of public peace which affects the general current of public life. Any act which merely affects the security of others may not constitute a breach of `public order’.

31. The expression `in the interest of’ has given a wide amplitude to the permissible law which can be enacted to impose reasonable restrictions on the rights guaranteed by Article 19(1) of the Constitution.

 32. There has to be a balance and proportionality between the right and restriction on the one hand, and the right and duty, on the other. It will create an imbalance, if undue or disproportionate emphasis is placed upon the right of a citizen without considering the significance of the duty. The true source of right is duty. When the courts are called upon to examine the reasonableness of a legislative restriction on exercise of a freedom, the fundamental duties enunciated under Article 51A are of relevant consideration. Article 51A requires an individual to abide by the law, to safeguard public property and to abjure violence. It also requires the individual to uphold and protect the sovereignty, unity and integrity of the country. All these duties are not insignificant. Part IV of the Constitution relates to the Directive Principles of the State Policy. Article 38 was introduced in the Constitution as an obligation upon the State to maintain social order for promotion of welfare of the people. By the Constitution (Forty-Second Amendment) Act, 1976, Article 51A was added to comprehensively state the fundamental duties of the citizens to compliment the obligations of the State. Thus, all these duties are of constitutional significance. It is obvious that the Parliament realized the need for inserting the fundamental duties as a part of the Indian Constitution and required every citizen of India to adhere to those duties. Thus, it will be difficult for any Court to exclude from its consideration any of the above-mentioned Articles of the Constitution while examining the validity or otherwise of any restriction relating to the right to freedom of speech and expression available to a citizen under Article 19(1)(a) of the Constitution. The restriction placed on a fundamental right would have to be examined with reference to the concept of fundamental duties and non-interference with liberty of others. Therefore, a restriction on the right to assemble and raise protest has also to be examined on similar parameters and values. In other words, when you assert your right, you must respect the freedom of others. Besides imposition of a restriction by the State, the non-interference with liberties of others is an essential condition for assertion of the right to freedom of speech and expression. In the case of Dr. D.C. Saxena v. Hon’ble the Chief Justice of India [(1996) 5 SCC 216], this Court held:

If maintenance of democracy is the foundation for free speech, society equally is entitled to regulate freedom of speech or expression by democratic action. The reason is obvious, viz., that society accepts free speech and expression and also puts limits on the right of the majority. Interest of the people involved in the acts of expression should be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression. The State has legitimate interest, therefore, to regulate the freedom of speech and expression which liberty represents the limits of the duty of restraint on speech or expression not to utter defamatory or libellous speech or expression. There is a correlative duty not to interfere with the liberty of others. Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others’ right to person or reputation. Therefore, freedom of speech and expression is tolerated so long as it is not malicious or libellous, so that all attempts to foster and ensure orderly and peaceful public discussion or public good should result from free speech in the market-place. If such speech or expression was untrue and so reckless as to its truth, the speaker or the author does not get protection of the constitutional right.

33. Every right has a corresponding duty. Part III of the Constitution of India although confers rights and duties, restrictions are inherent thereunder. Reasonable regulations have been found to be contained in the provisions of Part III of the Constitution of India, apart from clauses (2) to (4) and (6) of Article 19 of the Constitution {See Union of India v. Naveen Jindal and Anr. [(2004) 2 SCC 510]}.

34. As I have already discussed, the restriction must be provided by law in a manner somewhat distinct to the term `due process of law’ as contained in Article 21 of the Constitution. If the orders passed by the Executive are backed by a valid and effective law, the restriction imposed thereby is likely to withstand the test of reasonableness, which requires it to be free of arbitrariness, to have a direct nexus to the object and to be proportionate to the right restricted as well as the requirement of the society, for example, an order passed under Section 144 Cr.P.C. This order is passed on the strength of a valid law enacted by the Parliament. The order is passed by an executive authority declaring that at a given place or area, more than five persons cannot assemble and hold a public meeting. There is a complete channel provided for examining the correctness or otherwise of such an order passed under Section 144 Cr.P.C. and, therefore, it has been held by this Court in a catena of decisions that such order falls within the framework of reasonable restriction.

35. The distinction between `public order’ and `law and order’ is a fine one, but nevertheless clear. A restriction imposed with `law and order’ in mind would be least intruding into the guaranteed freedom while `public order’ may qualify for a greater degree of restriction since public order is a matter of even greater social concern. Out of all expressions used in this regard, as discussed in the earlier part of this judgment, `security of the state’ is the paramount and the State can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of `public order’ and `law and order’. However stringent may these restrictions be, they must stand the test of `reasonability’. The State would have to satisfy the Court that the imposition of such restrictions is not only in the interest of the security of the State but is also within the framework of Articles 19(2) and 19(3) of the Constitution.

36. It is keeping this distinction in mind, the Legislature, under Section 144 Cr.P.C., has empowered the District Magistrate, Sub- Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf, to direct any person to abstain from doing a certain act or to take action as directed, where sufficient ground for proceeding under this Section exists and immediate prevention and/or speedy remedy is desirable. By virtue of Section 144A Cr.P.C., which itself was introduced by Act 25 of 2005, the District Magistrate has been empowered to pass an order prohibiting, in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organizing or holding of any mass drill or mass training with arms in any public place, where it is necessary for him to do so for the preservation of public peace, public safety or maintenance of the public order. Section 144 Cr.P.C, therefore, empowers an executive authority, backed by these provisions, to impose reasonable restrictions vis-`-vis the fundamental rights. The provisions of Section 144 Cr.P.C. provide for a complete mechanism to be followed by the Magistrate concerned and also specify the limitation of time till when such an order may remain in force. It also prescribes the circumstances that are required to be taken into consideration by the said authority while passing an order under Section 144 Cr.P.C.

37. In Babu Lal Parate (supra) where this Court was concerned with the contention raised on behalf of the union of workers that the order passed in anticipation by the Magistrate under Section 144 Cr.P.C. was an encroachment on their rights under Articles 19(1)(a) and 19(1)(b), it was held that the provisions of the Section, which commit the power in this regard to a Magistrate belonging to any of the classes referred to therein cannot be regarded as unreasonable. While examining the law in force in the United States, the Court further held that an anticipatory action of the kind permissible under Section 144 Cr.P.C. is not impermissible within the ambit of clauses (2) and (3) of Article 19. Public order has to be maintained at all times, particularly prior to any event and, therefore, it is competent for the legislature to pass a law permitting the appropriate authority to take anticipatory action or to place anticipatory restrictions upon particular kind of acts in an emergency for the purpose of maintaining public order.

38. In the case of Madhu Limaye v. Sub Divisional Magistrate and Ors. [AIR 1971 SC 2481], a Constitution Bench of this Court took the following view:

 The procedure to be followed is next stated. Under Sub-section (2) if time does not permit or the order cannot be served, it can be made ex parte. Under Sub-section (3) the order may be directed to a particular individual or to the public generally when frequenting or visiting a particular place. Under sub-section (4) the Magistrate may either suo motu or on an application by an aggrieved person, rescind or alter the order whether his own or by a Magistrate subordinate to him or made by his predecessor in Office. Under Sub-section (5) where the magistrate is moved by a person aggrieved he must hear him so that he may show cause against the order and if the Magistrate rejects wholly or in part the application, he must record his reasons in writing. This sub-section is mandatory. An order by the Magistrate does not remain in force after two months from the making thereof but the State Government may, however, extend the period by a notification in the Gazette but, only in cases of danger to human life, health or safety or where there is a likelihood of a riot or an affray. But the second portion of the sub-section was declared violative of Article 19 in State of Bihar v. K.K. Misra [1969] S.C.R. 337. It may be pointed out here that disobedience of an order lawfully promulgated is made an offence by Section 188 of the Indian Penal Code, if such disobedience causes obstruction, annoyance or injury to persons lawfully employed. It is punishable with simple imprisonment for one month or fine of Rs. 200 or both.

25. The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. There is no general proposition that an order under Section 144, Criminal Procedure Code cannot be passed without taking evidence : see Mst. Jagrupa Kumari v. Chotay Narain Singh (1936) 37 Cri.L.J. 95 (Pat) which in our opinion is correct in laying down this proposition. These fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public tranquility, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have no doubt to be abated and prevented. We are, however, not concerned with this part of the section and the validity of this part need not be decided here. In so far as the other parts of the section are concerned the key-note of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualises as permissible in the interest of public order, or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order.

 26. The criticism, however, is that the section suffers from over broadness and the words of the section are wide enough to give an absolute power which may be exercised in an unjustifiable case and then there would be no remedy except to ask the Magistrate to cancel the order which he may not do. Revision against his determination to the High Court may prove illusory because before the High Court can intervene the mischief will be done. Therefore, it is submitted that an inquiry should precede the making of the order. In other words, the burden should not be placed upon the person affected to clear his position. Further the order may be so general as to affect not only a particular party but persons who are innocent, as for example when there is an order banning meetings, processions, playing of music etc.

27. The effect of the order being in the interest of public order and the interests of the general public, occasions may arise when it is not possible to distinguish between those whose conduct must be controlled and those whose conduct is clear. As was pointed out in Babulal Parate case where two rival trade unions clashed and it was difficult to say whether a person belonged to one of the unions or to the general public, an order restricting the activities of the general public in the particular area was justified.

28. …A general order may be necessary when the number of persons is so large that distinction between them and the general public cannot be made without the risks mentioned in the section. A general order is thus justified but if the action is too general the order may be questioned by appropriate remedies for which there is ample provision in the law. In the case of Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr. [(1973) 1 SCC 227], again a Constitution Bench of this Court, while dealing with a situation where a person seeking permission to hold a public meeting was denied the same on the ground that under another similar permission, certain elements had indulged in rioting and caused mischief to private and public properties, held Rule 7 framed under the Bombay Police Act, 1951 as being arbitrary and observed as under :.It is not surprising that the Constitution makers conferred a fundamental right on all citizens ‘to assemble peaceably and without arms’. While prior to the coming into force of the Constitution the right to assemble could have been abridged or taken away by law, now that cannot be done except by imposing reasonable restrictions within Article 19(3). But it is urged that the right to assemble does not mean that that right can be exercised at any and every place. This Court held in Railway Board v. Narinjan Singh (1969) 3 SCR 548; 554 : (1969)1 SCC 502 that there is no fundamental right for any one to hold meetings in government premises. It was observed: `The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please’.

 40. Section 144 Cr.P.C. is intended to serve public purpose and protect public order. This power vested in the executive is to be invoked after the satisfaction of the authority that there is need for immediate prevention or that speedy remedy is desirable and directions as contemplated are necessary to protect the interest of others or to prevent danger to human life, health or safety or disturbance of public tranquility or a riot or an affray. These features must co-exist at a given point of time in order to enable the authority concerned to pass appropriate orders. The expression `law and order’ is a comprehensive expression which may include not merely `public order’ but also matters such as `public peace’, `public tranquility’ and `orderliness’ in a locality or a local area and perhaps some other matters of public concern too. `Public order’ is something distinct from order or orderliness in a local area. Public order, if disturbed, must lead to public disorder whereas every breach of peace may not always lead to public disorder. This concept came to be illustratively explained in the judgment of this Court in the case of Dr. Ram Manohar Lohia (supra) wherein it was held that when two drunkards quarrel and fight, there is `disorder’ but not `public disorder’. They can be dealt with under the powers to maintain `law and order’ but cannot be detained on the ground that they were disturbing `public order’. However, where the two persons fighting were of rival communities and one of them tried to raise communal passions, the problem is still one of `law and order’ but it raises the apprehension of public disorder. The main distinction is that where it affects the community or public at large, it will be an issue relatable to `public order’. Section 144 Cr.P.C. empowers passing of such order in the interest of public order equitable to public safety and tranquility. The provisions of Section 144 Cr.P.C. empowering the authorities to pass orders to tend to or to prevent the disturbances of public tranquility is not ultra vires the Constitution.

 41. In the case of State of Karnataka v. Dr. Praveen Bhai Thogadia, [(2004) 4 SCC 684], this Court, while observing that each person, whatever be his religion, must get the assurance from the State that he has the protection of law freely to profess, practice and propagate his religion and the freedom of conscience, held more emphatically that the courts should not normally interfere with matters relating to law and order which is primarily the domain of the concerned administrative authorities. They are by and large the best to assess and handle the situation depending upon the peculiar needs and necessities within their special knowledge.

42. The scope of Section 144 Cr.P.C. enumerates the principles and declares the situations where exercise of rights recognized by law, by one or few, may conflict with other rights of the public or tend to endanger the public peace, tranquility and/or harmony. The orders passed under Section 144 Cr.P.C. are attempted to serve larger public interest and purpose. As already noticed, under the provisions of the Cr.P.C. complete procedural mechanism is provided for examining the need and merits of an order passed under Section 144 Cr.P.C. If one reads the provisions of Section 144 Cr.P.C. along with other constitutional provisions and the judicial pronouncements of this Court, it can undisputedly be stated that Section 144 Cr.P.C. is a power to be exercised by the specified authority to prevent disturbance of public order, tranquility and harmony by taking immediate steps and when desirable, to take such preventive measures. Further, when there exists freedom of rights which are subject to reasonable restrictions, there are contemporaneous duties cast upon the citizens too. The duty to maintain law and order lies on the concerned authority and, thus, there is nothing unreasonable in making it the initial judge of the emergency. All this is coupled with a fundamental duty upon the citizens to obey such lawful orders as well as to extend their full cooperation in maintaining public order and tranquility.

43. The concept of orderly conduct leads to a balance for assertion of a right to freedom. In the case of Feiner v. New York (1951) 340 U.S. 315, the Supreme Court of the United States of America dealt with the matter where a person had been convicted for an offence of disorderly conduct for making derogatory remarks concerning various persons including the President, political dignitaries and other local political officials during his speech, despite warning by the Police officers to stop the said speech. The Court, noticing the condition of the crowd as well as the refusal by the petitioner to obey the Police requests, found that the conduct of the convict was in violation of public peace and order and the authority did not exceed the bounds of proper state Police action, held as under: It is one thing to say that the Police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of arguments or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace. Nor in this case can we condemn the considered judgment of three New York courts approving the means which the Police, faced with a crisis, used in the exercise of their power and duty to preserve peace and order. The findings of the state courts as to the existing situation and the imminence of greater disorder couples with petitioner’s deliberate defiance of the Police officers convince us that we should not reverse this conviction in the name of free speech.

44. Another important precept of exercise of power in terms of Section 144 Cr.P.C. is that the right to hold meetings in public places is subject to control of the appropriate authority regarding the time and place of the meeting. Orders, temporary in nature, can be passed to prohibit the meeting or to prevent an imminent breach of peace. Such orders constitute reasonable restriction upon the freedom of speech and expression. This view has been followed consistently by this Court. To put it with greater clarity, it can be stated that the content is not the only concern of the controlling authority but the time and place of the meeting is also well within its jurisdiction. If the authority anticipates an imminent threat to public order or public tranquility, it would be free to pass desirable directions within the parameters of reasonable restrictions on the freedom of an individual. However, it must be borne in mind that the provisions of Section 144 Cr.P.C. are attracted only in emergent situations. The emergent power is to be exercised for the purposes of maintaining public order. It was stated by this Court in Romesh Thapar (supra) that the Constitution requires a line to be drawn in the field of public order and tranquility, marking off, may be roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of peace of a purely local significance, treating for this purpose differences in degree as if they were different in kind. The significance of factors such as security of State and maintenance of public order is demonstrated by the mere fact that the framers of the Constitution provided these as distinct topics of legislation in Entry III of the Concurrent List of Seventh Schedule to the Constitution.

45. Moreover, an order under Section 144 Cr.P.C. being an order which has a direct consequence of placing a restriction on the right to freedom of speech and expression and right to assemble peaceably, should be an order in writing and based upon material facts of the case. This would be the requirement of law for more than one reason. Firstly, it is an order placing a restriction upon the fundamental rights of a citizen and, thus, may adversely affect the interests of the parties, and secondly, under the provisions of the Cr.P.C., such an order is revisable and is subject to judicial review. Therefore, it will be appropriate that it must be an order in writing, referring to the facts and stating the reasons for imposition of such restriction. In the case of Dr. Praveen Bhai Thogadia (supra), this Court took the view that the Court, while dealing with such orders, does not act like an appellate authority over the decision of the official concerned. It would interfere only where the order is patently illegal and without jurisdiction or with ulterior motive and on extraneous consideration of political victimization by those in power. Normally, interference should be the exception and not the rule.

46. A bare reading of Section 144 Cr.P.C. shows that : (1) It is an executive power vested in the officer so empowered; (2) There must exist sufficient ground for proceeding; (3) Immediate prevention or speedy remedy is desirable; and (4) An order, in writing, should be passed stating the material facts and be served the same upon the concerned person.

47. These are the basic requirements for passing an order under Section 144 Cr.P.C. Such an order can be passed against an individual or persons residing in a particular place or area or even against the public in general. Such an order can remain in force, not in excess of two months. The Government has the power to revoke such an order and wherever any person moves the Government for revoking such an order, the State Government is empowered to pass an appropriate order, after hearing the person in accordance with Sub-section (3) of Section 144 Cr.P.C. Out of the aforestated requirements, the requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance. In this context, the perception of the officer recording the desired/contemplated satisfaction has to be reasonable, least invasive and bona fide. The restraint has to be reasonable and further must be minimal. Such restraint should not be allowed to exceed the constraints of the particular situation either in nature or in duration. The most onerous duty that is cast upon the empowered officer by the legislature is that the perception of threat to public peace and tranquility should be real and not quandary, imaginary or a mere likely possibility. This Court in the case of Babulal Parate (supra) had clearly stated the following view : "the language of Section 144 is somewhat different. The test laid down in the Section is not merely `likelihood’ or `tendency’. The section says that the magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc. The power conferred by the section is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger.

48. The above-stated view of the Constitution Bench is the unaltered state of law in our country. However, it needs to be specifically mentioned that the `apprehension of danger’ is again what can inevitably be gathered only from the circumstances of a given case.

49. Once an order under Section 144 Cr.P.C. is passed, it is expected of all concerned to implement the said order unless it has been rescinded or modified by a forum of competent jurisdiction. Its enforcement has legal consequences. One of such consequences would be the dispersement of an unlawful assembly and, if necessitated, by using permissible force. An assembly which might have lawfully assembled would be termed as an `unlawful assembly’ upon the passing and implementation of such a preventive order. The empowered officer is also vested with adequate powers to direct the dispersement of such assembly. In this direction, he may even take the assistance of concerned officers and armed forces for the purposes of dispersing such an assembly. Furthermore, the said officer has even been vested with the powers of arresting and confining the persons and, if necessary, punishing them in accordance with law in terms of Section 129 Cr.P.C. An order under Section 144 Cr.P.C. would have an application to an `actual’ unlawful assembly as well as a `potential’ unlawful assembly. This is precisely the scope of application and enforcement of an order passed under Section 144 Cr.P.C.

Decision on Sec 377 could affect other sexual offences in IPC: SC

Posted in SEXUAL OFFENCES by NNLRJ INDIA on February 23, 2012

TIMES OF INDIA

NEW DELHI: The Supreme Court on Wednesday said its final decision on the correctness of the Delhi High Court judgment — which decriminalized Section 377 of Indian Penal Code covering a sexual act in private between consenting adults — could have far reaching impact on several sexual offences listed in the penal laws.

A bench of Justices G S Singhvi and S J Mukhopadhaya requested the counsel for parties to keep in mind the evolving social ethos as the key words in the HC judgment — “consenting adults committing a sexual act in private” – could have a bearing on several other sexual offences enumerated in the IPC.

“Though the focus of our judgment would remain on Section 377, but keep in mind that it could have bearing on provisions relating to other sexual offences. Obscenity could be one such provision,” the bench told senior advocate Amarendra Saran, who was arguing against the HC verdict on behalf of Delhi Commission for Protection of Child Rights (DCPCR).

The court was possibly hinting at offences like adultery and obscenity in public, mostly misused by police to harass couples in parks.

Section 497 defines adultery. According to it – “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

In this case, the consent of the woman is immaterial and the consenting sexual act still would constitute an offence if the consent of her husband was not taken.

Saran said NGOs had challenged the legality of Section 377 before the HC on the ground that it targeted homosexuals as a class and hence violated the LGBT (lesbian, gay, bisexual, transgender) group’s right to equality guaranteed under Article 14, right to privacy under Article 21 and the constitutional guarantee under Article 15 prohibiting discrimination on the basis of sexual orientation of such persons.

He argued that right to privacy did not confer right on consenting adults to commit an act in private which was illegal. “In other words, right to privacy does not confer immunity to crimes committed by consenting adults in private. Hence, the reasoning of the HC that Section 377 is violative of right to privacy is clearly erroneous,” Saran said.

He said Section 377 did not suffer from class bias. “It applies uniformly to any man or woman if such person indulged in carnal intercourse which is against the order of nature,” he said and cited a 1990 Supreme Court judgment to back his argument that all “non penile-vaginal” intercourse would fall within the meaning of “carnal intercourse against the order of nature”, which has been classified as an offence under Section 377.

The DCPCR counsel said “there was a vast cultural difference in the Indian society and other societies of the world” and faulted the Delhi HC judgment for basing its reasoning on foreign court rulings.

Citizens Right to Grievance Redress Bill, 2011

Posted in ACCOUNTABILITY, ANNA HAZARE CAMPAIGN, CORRUPTION, COURTS, DEMOCRACY, FUNDAMENTAL RIGHTS, GOVERNANCE by NNLRJ INDIA on November 2, 2011
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Department of Administrative Reforms and Public Grievances has prepared a Draft Bill called “Citizens Right to Grievance Redress Bill, 2011”. This is a comprehensive rights based bill for the citizens of the country, providing statutory backing for getting timely services and goods specified in citizens charters of public authorities from Gram Panchayat, Block, District, State up to Central Level. Any violation of the citizens charter will be dealt as a grievance and institutional mechanism has been provided for time-bound grievance redressal and malafide action on the part of responsible officers will lead to penalty / disciplinary action.

Key recommendations in the Draft Bill are:

  1. There will be a Citizens Charter, and a protocol will be put in place.
  2. Bill can be enacted as a central legislation under the concurrent list Item 8 (actionable wrongs) and can cover:
  3. Central Schemes and Central Government Departments
  4. Provide a Platform to States to make this a Grievance Redressal Mechanism for State Schemes and Departments
  5. Bill will incorporate the institution of Information and Facilitation Centre in all public authorities to ensure that Citizens can be facilitated and grievances are systematically recorded and tracked using telephone, sms, web etc.
  6. First level Redress should be within concerned department as proposed. This should be done through a Grievance Redress Officer in each department
  7. The second level redress/ appeal will be at the level of Head of the Department of the public authority.
  8. State Grievance Commissions should be set up as second level appellate authorities.

These documents are placed in the public domain for inviting comments and suggestions which can be forwarded at the following email address by 23.11.2011:

 pk.jha@nic.in

satish@arpg.nic.in

THE DRAFT OVERVIEW AND THE BILL

Citizens Right to Grievance Redress Bill, 2011

Overview Draft bill – Citizens Right to Grievance Redress Bill, 2011

No need for corroboration and conviction can be imposed on the sole statement of the victim – Supreme Court

Posted in SEXUAL OFFENCES, SUPREME COURT, VICTIMS by NNLRJ INDIA on October 26, 2011

The Supreme Court has ruled that in rape cases there is no need for corroboration and conviction can be imposed on the sole statement of the victim. A bench of justices P Sathasivam and B S Chauhan said that the victims testimony cannot be looked at with suspicion. Supreme court adeed that it is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The Prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Hence, the victims evidence need not be tested with the same amount of suspicion as that of an accomplice. The bench dismissed an appeal filed by Mohd Imran Khan and Jamal Ahmed challenging their conviction for rape of a minor girl about 22 years ago. The defence had argued the victim’s statement cannot be relied upon as she had eloped with the accused.

In 2009, the court had ruled the same when awarding rigorous life imprisonment to convict Raju, a resident of east Delhi for raping his five-year-old neighbour. The apex court had ruled that the evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent, is even more reliable. Evidence Act does not says that victims evidence cannot be accepted unless it is corroborated in material particulars. The court had also ruled that a victim is undoubtedly a competent witness under Section 118. However, courts also say that if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

Errors in Age Verification

The medical report and the deposition of the Radiologist cannot predict the exact date of birth, rather it gives an idea with a long margin of 1 to 2 years on either side.

In Jaya Mala v. Home Secretary, Government of J & K & Ors., AIR 1982 SC 1297, this Court held:

However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.

(See also: Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh & Anr., (2009) 6 SCC 681; and State of Uttar Pradesh v. Chhotey Lal, (2011) 2 SCC 550)

Judgement Text:

EVIDENCE OF PROSECUTRIX:

It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as  that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called `Evidence Act’), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim.

The rapist degrades the  very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658; State of U.P. v. Pappu @Yunus & Anr. AIR 2005 SC 1248; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191). Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.

The Trial Court came to the conclusion that there was no reason to disbelieve the prosecutrix, as no self-respecting girl would level a false charge of rape against anyone by staking her own honour. The evidence of rape stood fully corroborated by the medical evidence. The MLC of the prosecutrix Ext.PW2/A was duly supported by Dr. Reeta Rastogi (PW.2). This view of the Trial Court stands fortified by the judgment of this Court in State of Punjab v. Gurmit Singh & Ors. AIR 1996 SC 1393, wherein this Court observed that the courts must, while  evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her.

Similarly, in Wahid Khan v. State of Madhya Pradesh, (2010) 2 SCC 9, it has been observed as under:

It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked at by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracised by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward-looking as the western countries are.

Much reliance has been placed by learned counsel for the appellants on the judgment of this Court in Javed Masood & Anr. v. State of Rajasthan, (2010) 3 SCC 538, wherein it had been held that in case the prosecution witness makes a statement and is not declared hostile, he is supposed to speak the truth and his statement is to be believed.

It is in view of this fact in the instant case that Puran Singh, I.O. (PW.15) has deposed in the court that the birth certificate of the prosecutrix did not relate to the prosecutrix. I did not verify about the birth certificate from the NDMC. I do not remember if at the time of bail application I had submitted that the birth certificate is genuine but does not relate to prosecutrix.

Thus, the question does arise as to what extent the court is under an obligation to accept the statement of Puran Singh, I.O. (PW.15) particularly in view of the birth certificate available on the record. In view of our finding in respect of the date of birth we are of the view that Puran Singh, I.O. (PW.15) unfortunately made an attempt to help the accused/appellants, though in the examination-in- chief the witness has deposed that the Birth Certificate providing the date of birth as 2.9.1974 was genuine.

Be that as it may, by now Puran Singh (PW.15) might have retired as the incident itself occurred 22 years ago. Therefore, we do not want to say anything further in respect of his conduct.

In State of Karnataka v. K. Yarappa Reddy, AIR 2000 SC 185, this Court while dealing with a similar issue held:It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently  of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer’s suspicious role in the case.

The investigation into a criminal offence must be free from all objectionable features or infirmities which may legitimately lead to a grievance to either of the parties that the investigation was unfair or had been carried out with an ulterior motive which had an adverse impact on the case of either of the parties. Investigating Officer is supposed to investigate an offence avoiding any kind of mischief or harassment to either of the party. He has to be fair and conscious so as to rule out any possibility of bias or impartial conduct so that any kind of suspicion to his conduct may be dispelled and the ethical conduct is absolutely essential for investigative professionalism. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth. (Vide: Jamuna Chaudhary & Ors. v. State of Bihar, AIR 1974 SC 1822; State of Bihar & Anr. etc. etc. v. P.P. Sharma & Anr., AIR 1991 SC 1 1260; and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 254)

Shri Amrendra Sharan, learned senior counsel has placed reliance on the judgment of this Court in Baldev Singh & Ors. v. State of Punjab, AIR 2011 SC 1231, wherein the convicts of gang rape had been sentenced to 10 years RI and a fine of Rs.1000/- each had been imposed and served about more than 3 years imprisonment and incident had been very old, this Court in the facts and circumstances of the case reduced the sentence as undergone, directing the appellants therein to pay a sum of Rs.50,000/- of fine to be paid to the victim and prayed for some relief.

The High Court after taking into consideration all the circumstances including that the incident took place in 1989; the appeal before it was pending for more than 10 years; the prosecutrix had willingly accompanied the appellants to Meerut and stayed with them in the hotel; and she was more than 15 years of age when she eloped with the appellants and the appellants were young boys, reduced the sentence to 5 years which was less than the minimum prescribed sentence for the offence. As the High Court itself has awarded the sentence less than the minimum sentence prescribed for the offence recording special reasons, we do not think it to be a fit   case to reduce the sentence further in a proved case of rape of a minor. The appeals lack merit and are, accordingly, dismissed.

Juvenile officer at every police station must: court

Posted in ACCESS TO JUSTICE, CHILD RIGHTS, CRIMINAL JUSTICE SYSTEM, JUVENILE JUSTICE by NNLRJ INDIA on October 23, 2011

J VENKATESAN IN THE HINDU

“He shall take care of safety, food and basic amenities of the child”

The Supreme Court has directed the Director-Generals of Police of all the States and Union Territories to ensure that at least one police officer in every police station is designated as Juvenile/ Child Welfare officer to deal with the children in conflict with law. In its interim order, a Bench of Justices R.V. Raveendran (since retired) and A.K. Patnaik said: “The Home departments and the DGPs of States/UTs will further ensure that Special Juvenile Police unit, comprising all police officers designated as Juvenile or Child Welfare Officer, is created in every district and city to coordinate and upgrade the police treatment to juveniles and the children as provided in Section 63 (2) of the Juvenile Justice [Care and Protection of Children] Act, 2000.”

According to the Juvenile Justice (Care and Protection Children) Rules 2007, as soon as a juvenile is apprehended, the designated juvenile/child welfare officer of the nearest police station shall be asked to take charge of the matter. The officer shall produce the child before the Juvenile Justice Board (JJB) within 24 hours.

He shall intimate the parent or guardian, collect his socio-economic background and report the matter to the JJB.

Except in grave offences like rape, murder or one committed jointly with an adult, the case against a juvenile or child shall not be registered as an FIR and no charge sheet shall be filed, except making an entry in the general diary of the police station. The officer shall be responsible for the safety, food and basic amenities of the offender. Since the Act and the Rules framed were not being followed, the Supreme Court had been monitoring the implementation of the Act on the writ petition filed by Sampurna Behura and passed orders to the States/UTs from time to time. The court has already passed several orders for constitution of JJBs under Section 4 of the Act and Child Welfare Committees under Section 29 of the Act and most of the States and UTs have taken steps to constitute them.

Monitoring to continue

The Bench in its recent order made it clear that it would continue to monitor implementation of the provisions of the Act and asked the District Legal Service Authorities to provide the required training to the officers. It directed the matter to be listed in the first week of January, when the State governments and the UTs would file an affidavit outlining steps taken by them pursuant to this order.

http://www.thehindu.com/news/national/article2562888.ece

‘Are public servants cut above public?’

Posted in CORRUPTION, GOVERNANCE by NNLRJ INDIA on September 24, 2011

ABRAHAM THOMAS IN THE PIONEER

Sixty years after India became a Republic, the Supreme Court posed a question on Friday on whether public servants should be entitled to red beacons, a stream of security personnel and a fleet of cars as a matter of right.Wondering what the term “public servant” actually meant, a Bench of Justices GS Singhvi and SJ Mukhopadhyay gave liberty to convert a matter challenging grant of Z-plus security to a Congress MLA from Uttar Pradesh into a PIL to examine whether there should be norms or guidelines governing grant of security to VIPs and citizens in general, to prevent it being misused.

The case before the court was an appeal filed by one Abhay Singh through advocate CD Singh challenging grant of high security to one Pramod Tewari, MLA from Pratapgarh. The security was provided to him in 1985 for inviting wrath of the Sikh militants over an objectionable statement made by him. The Centre placed him in its prime security zone without reviewing the threat perception for decades together. Close to 50 security personnel were posted with him along with a fleet of cars, each attached with beacon light, causing inconvenience and terror among local residents.

Senior advocate Harish Salve, who questioned the entitlement of Tewari to secure Z-plus security, forced the Court to think on the larger issue involved. Since India became a Republic in January 1950, “any symbol of authority or superiority conferred by the Government or allowed by the government would fall foul of such a principle of egalitarianism.” Moreover, Article 18 abolished all titles and granting security as a matter of entitlement to public servants vitiated the very concept of the term defined under Article 309, Salve added. Conscious of the abuse of the security apparatus, the bench said, “This is a very serious issue. We will convert it into a PIL.”

What caught the imagination of the court was Salve’s insistence to remove such symbols that made public servants a crest above common man. Giving a historical context to the issue under debate, Salve maintained that public servants during British rule were foreign citizens who owed allegiance to the Crown and thus were awarded these symbols.

But it ceased after India gave itself a Constitution. Unfortunately, he remarked, “It is now a common practice amongst those who hold public office or are connected with political parties and organisations to seek security.” The Bench agreed, “public servants are actually servants of the public,” giving permission to Salve to file a fresh petition stressing this point.

The matter would be heard on October 14.

http://dailypioneer.com/nation/8611-are-public-servants-cut-above-public.html

Justice Katju was part of the Bench that gave landmark judgments

Posted in JUDICIAL ACTIVISM, JUDICIARY, JUSTICE by NNLRJ INDIA on September 20, 2011
JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

J VENKATESAN IN THE HINDU

Contribution of Supreme Court judge hailed on his retirement

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

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

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

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

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

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

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

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

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

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

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

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

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

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