Criminal Justice and PC Act

*The author is encouraged by Ms. Ishani Das to write on this topic.

If Humans were Gods and angels, no law would perhaps be necessary. But as sociologists like Prins and Durkhain put it “Criminality…is not transcendent but immanent”. Therefore to curtail, curb and control this inherent and inevitable criminality and to prevent devolution of society into a State of lawlessness, a system is placed in every States i.e. the Criminal Justice System to address the social evils. In India, the Indian Penal Code and Code of Criminal Procedure being cardinal to the justice administration provides for systematic arrangements and functioning of the police, the prosecution, the courts, the probation and other aspects.

Corruption is a pernicious plague, which undermines the rule of law and leads to human rights violations, distort markets, and erode living standards. Being a profound reason of economic underperformance, it injects inequality and injustice into the system and discourages foreign investments. At the international level, India is signatory to the UN Convention against Corruption. It has also signed the Extradition and Mutual Legal Assistance Treaties with a number of countries. At the domestic level, the IPC deals with the crime of bribery and corruption under chapter IX i.e. Offences by or relating to public servants.

A special law is enacted when a particular crime cannot be handled by a regular law and obviously, Corruption is crime serious enough to merit a special law. Hence, the Prevention of Corruption Act. The PC Act, 1947 is the first legislation to deal specifically with the problem of corruption in public life. Various amendments were made with the changing times and later on, all these laws were replaced by a more comprehensive legislation i.e. The PC Act, 1988. The Parliament deleted Section 161 to 165A from the IPC and incorporated those provisions under Section 7 to 16 of the PC Act.

In addition, the judiciary, through its judgments has substantiated and contributed to the Administrative Law jurisprudence in general and fortification of Criminal Justice System in particular, thus making Judge made law as one of the existing realities of Indian social life.

THE PREVENTION OF CORRUPTION ACT, 1988

The PC Act, 1988 was enacted to consolidate different anti-corruption legislations and to make them more effective. Apart from the offences punishable under the IPC, the PC Act has enumerated a number of offences, which can be broadly categorized as:

·         Bribery of Public Servants

·         Embezzlement and Misappropriation of Property by Public Servants

·         Abuse of Functions by Public Servants

·         Illicit Enrichment of Public Servants etc.

I will only raise some specific features of PC Act, which are pertinent to mention as they have a wide range of ramifications and which showcases the political commitment towards corruption free society.

Special Courts

Section 4(1) of the PC Act makes it mandatory that the offences will be tried by the Special Judges only. This helps in effective and efficient administration of justice. However, the Special Judge being a Court of Session (Section 5(3)), the two layer protection and right to appeal (i.e. in the lower courts) is denied to the accused. Similarly, Section 4(3) confers jurisdiction on the special judge to try offence, other than those specified in section 3 and triable by magistrate under the CrPC*.

Trial on day-to-day basis

Notwithstanding anything contained in the CrPC, as per Section 4(4) a special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis.

Freezing of Ill-gotten Properties during Trial

The Criminal Law (Amendment) Ordinance, 1944 deals with freezing, seizure and confiscation of properties, which are proceeds of crime. Section 5(6) empowers the Special Judge to exercise all the powers and functions under the said law during the trial.

Power of Pardon

Under Section 5(2), the special Judge may, with a view to obtaining the evidence of any person tender a pardon on condition of his making a full and true disclosure of the whole circumstances. Such pardon shall be deemed to have been tendered under section 307 of CrPC.

Other important features include the Prohibition of the grant of stay on trial, Denial of appeal in cases tried summarily (Section 6(2)), Enhancement of punishment etc. Despite this strong law, the Indian criminal justice system still faces many challenges. The problem of corruption in the private sector is increasing with the expansion of the private sector but there is no law to tackle those corruptions. Secondly, the condition of Previous Sanction results in delay. Notwithstanding anything provided under Section 197 of the CrPC, Section 19 of the PC Act requires prior permission of the authority before launching prosecution against him. This often delays the launching of prosecution. The sanctioning authority taking 16 months to grant sanction for Mr. A. Raja, is the glaring example of this. However, the extension of the Vineet Narain judgment beyond bureaucracy by the Hon’ble Supreme Court in its landmark Order on 31^st January 2012, once again endorsed that A Bad case makes a Good law. 

The positive development of the anti-graft laws and the enforcement of PC Act have warned the corrupt that betrayal of the public trust will no longer be tolerated, thus strengthening the Indian Criminal Justice System. Though a richer scholarship than mine is requisite to address the topic intricately, however, in my limited understanding -the trial of 2G, CWG and the recent arrest of Babu Singh Kushwaha is the manifestation of our own efficacious Criminal Justice System. Whilst this positive move is viewed by the critics as not so positive, yet we may try to see things as objectively as we please. At the end, as Benjamin Cardozo put it, we can never see things with any eyes except our own.

Thank you!

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* For better understanding see: Essar Teleholdings Ltd. and Loop Telecom Ltd. v. The Registrar General, Delhi High Court & Ors. (Against the Administrative Order issued by the Delhi High Court on 15.03.2011 and the Notification dated 28.03.2011 issued by the Govt. of NCT of Delhi. Pending before the Hon’ble Supreme Court)

need 4 National Action !

Hello! My friends. After a long time, we are here again. Twitterattis’ and Facebookers’ silence should not be construed as ‘World-in-Silence’.

Condemning Midnight swoop at RamLila Maidan,  Mistreatment to Krittika Biswas, and Murder of J Dey,

Welcoming Supreme Court verdict on Salwa judum, and Mamata’s announcement on subsidized food,

Not entering into the discussion of Baba’s 11000 army, PM’s inclusion under Lokpal, Rift in UPA over VIP treatment, Azad’s comment on MSMs, and whom Bipasha is dating these days,

Praising Media’s role in Maran’s resignation, and unveiling Doping scandal,

Refusing to comment on Telengana crisis, Rahul’s padyatra, Release of Maria Susairaj, Pitt and Jolie’s decision to tie the knot, and Khan’s Delhi Belly,

Let me pay my tributes to Victims of Mumbai serial blast, Swami Nigamanand

and most importantly people killed in Forbesganj, Bihar (6 people killed); Noida, Uttar Pradesh (4); Dhanbad, Jharkhand(4); Jaitapur, Maharashtra (1); Kakkarapalli, Andhra Pradesh (2); Sompeta, Andhra Pradesh(3); Narayanpatna, Orissa(2); Mudigonda, Andhra Pradesh(8); Nandigram, West Bengal(11) and Kalinganagar, Orissa(13).

On June 2, Mayawati announced a new land acquisition policy under which its role in acquiring land for private developers would only be that of a ‘facilitator’. This is nothing but an attempt to woo farmers after getting them brutally beaten by the police in the backdrop of their agitations in Bhatta-Parsaul Village. To remind you, four persons, including two policemen, were killed in the clashes and firing in Bhatta-Parsaul on May 7. And here Maya was kind enough to say that in the affected villages where land has been acquired, the developer would have to construct a kisan bhawan as well as a model school.

The farmers have been agitating for higher compensation and demanding that only half of their lands should be acquired, while the rest should be handed back to the farmers after development. Their demand is 25% reservation in all schemes of Noida, Greater Noida and Yamuna Expressway. Moreover they are demanding that the authorities should give 120 square metre plots to landless farmers and a compensation of Rs. 5,00,000 for each acre of acquired land.

But the Chief Minister cleverly clarified her stand saying -areas where land has already been acquired and compensation distributed to farmers including Bhatta-Parsaul and Tappal will be out of the ambit of the policy(announced on June 2). This is not govt’s indifferent attitude for the first time. History of this country is evident of such attitude of every government, be it ruling or in waiting!


However the Supreme Court on July 06 ordered the return of the land to villagers and upheld an Allahabad High Court order quashing the UP notification to acquire 156 hectares of land for construction of residential apartments by private builders. The Bench of Justices G.S. Singhvi and A.K. Ganguly concluded that the entire exercise of acquisition was a colourable exercise. Justice Singhvi lambasted the GNIDA and opined “You will not understand the psyche of the farmer. For him, land is a mother, his means of livelihood and sustenance...” Also the day before, the court criticised States for taking advantage of the colonial land acquisition law to divest farmers of their farmland.

The court on June 27 warned the UP government against invoking the "urgency" clause for acquiring prime agricultural land, saying it would step in if this continued as it did not want "more Nandigrams" and observed "We will not keep our eyes closed." However the argument of Advocate P Narasimhan, appearing for the Shahberi land-owners is worth considering. He advocated for redefining public purpose clause in Land Acquisition Act. He said, “Public purpose is only when there is access for the entire public to the benefits arising out of the acquisition, and for this the public trust doctrine must be applied."

Here, we appreciate his line of argument.

...demanding scrapping of L.A.Act
Photo Courtesy: The Hindu

Farmers, adivasis, dalits and working class people have sacrificed their life for development, while trying to defend their right over the natural resources. In 1998, during the tenure of Babugauda Patil, NAPM led siege to the Rural Development Ministry demanding primary right of Gram Sabha over the development planning and no forced displacement. Since then the issue has been raised at many levels which finally culminated in the 'National Development, Displacement and Rehabilitation' Bill approved by NAC I in 2006. Many organisations, alliances across the country have made their efforts to secure and protect land rights of the landless communities.

Once again after the Greater Noida incidents, an environment has been created whereby every political party is demanding passage of amendments to the existing Land Acquisition Act and UPA government proposed to do so in Monsoon Session. It is a welcome move that the new Rural Development Minister Sri Jairam Ramesh has accepted formulation of one comprehensive law and not two separate legislations. 

However, the people movements’ are demanding to:

·       1.  Repeal the Land Acquisition Act and Enact a comprehensive National Development, No Forced Displacement and Rehabilitation Bill instead of two separate legislations incorporating the progressive elements of the Standing Committee on Rural Development (2007-08) enunciating the principle of least displacement, just rehabilitation and a decentralized development planning based on Article 243 of the Constitution, PESA 1996 and Forest Rights Act, 2006 in consultation with affected communities, movement groups and farmers groups.

·         2. Put moratorium on all acquisitions until the process for a new comprehensive legislation is complete

·         3. Issue a White Paper on all the land acquisitions, displacement caused and rehabilitation completed since independence. The White Paper must also make public the extent of land utilized, unutilized and land acquired for public purpose but remains occupied by sick and non-functional industries and other infrastructure projects.

We here believe the demands to be genuine and reasonable so ask everyone to join hands to protect the agricultural land and secure land rights for the food security needs of the future generations. National Action Against Forced Displacement & Land Grab and For Community Control Over Natural Resources & Livelihood Rights is need of the hour.

..gallows await them

May 9 and May 13, 2011 and I was waiting if there comes another day in this month... But it didn’t.

The two-judge Bench of the Supreme Court comprising Justices Markandey Katju and Gyan Sudha Mishra reiterated in the both dates the common but unusual statement, “…gallows await them”.

Will not say today that they were threatening but yes! they were not in agreement with my teacher, who gives the example of pick pocketing to make us understand: Deterrence is not an effective principle in criminal law jurisprudence. When the Supreme Court has shown a declining tendency to impose death sentence, averring it should be granted in the rarest of rare case, this Bench's threat to impose the sentence is not only diverging but perplexing.

“The encounter philosophy is a criminal philosophy… Trigger-happy policemen who think they can kill people in the name of encounter and get away with it should know that the gallows await them.”

May 13, 2011

“All persons who are planning to perpetrate honour killings should know that the gallows await them.”

May 09, 2011

We will not deal today the matters of ‘fake encounter’ and go straight to ‘honour killing’. Here is a fact! There was the murder of Seema, a girl in 2006, who had left her husband and was living with an uncle. Her father, Bhagwan Das was annoyed with his daughter for having, in his opinion, an “incestuous relationship”. So, he strangulated her with an electric wire. The trial court convicted him, which was further upheld by the High Court. And now the Supreme Court upheld the conviction.

The Bench while upholding the life sentence of a man for killing his daughter as she had “dishonoured” the family held that honour killings came within the rarest of rare cases deserving the death penalty. The court termed it as barbaric, feudal practices which are a slur on our nation and death penalty is necessary as a deterrent for such outrageous, uncivilised behaviour.

Photo courtesy: www.honourkilling.in

It referred to Lata Singh vs State of UP and Anr and quoted that there is nothing honourable in honour killing or other atrocities and “honour killings” were nothing but “barbaric and brutal murders by bigoted persons with feudal minds”. The Bench also busted on the khap panchayats (caste councils) for encouraging honour killings or other atrocities in an institutionalised way.

The court didn’t pass a general comment but casted duties on the administrative officers. It was ordered that if any such incidents(honour killing) happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State government is directed to immediately suspend the District Magistrate/Collector and SSP/SPs [senior superintendents of police/superintendents of police] of the district as well as other officials concerned and charge-sheet them and proceed against them departmentally if they do not (1) prevent the incident if it has not already occurred but they have knowledge of it in advance, or (2) if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them.

Photo courtesy: newsleaks.in

The court tried hard to check the crime by making offices liable and deter people by repeating the word gallow. But India remained India and the false honour remained sacrosanct as before. What we are today impressing upon is the deterrent principle doesn’t work in reality. Despite the pronouncements of the Supreme Court, honour crimes didn’t end. Today, IBN Live reports the killing of Sharda Prasad Tiwari, and his wife Shobha Tiwari, in their Harsh Vihar residence in east Delhi by Sonu, whose sister was eloped with the elder son of the murdered couple. Few days back on May 14 there were news reports of two mothers in Baghpat district, western Uttar Pradesh, strangling their daughters who had dared to elope and marry men belonging to a different religion.

More than 1,000 young people in India have been done to death every year owing to 'Honour Killings'.

Yes! We may demand with the All India Democratic Women's Association (AIDWA) for a separate legislation to deal with, punish and prevent these crimes or the court may pass deterrent orders but the society will remain as it is, unless there is a change in mind set, change in attitude, change in behavior and change in outlook.

Violence is not our culture… Murder is not our custom… and let us understand it.

...the Judicial Rebuff

Mr. P. J. Thomas
Photo courtesy: The India Today

ONE Big blow and Indian government fainted!! PM has to accept his responsibility and LM has to admit failure of the system.
     “½ +1” will not always do… If you call this mathematical verbalism as democratic go then Democracy is not enough. “If there is majority rule, Rule of law is ensured.” If this is the belief, then E.M. Foster has to come once again to teach this Democracy -“I do not believe in Belief”. On September 03, 2010, Singhji and Chidambaramji might have overruled the opposition leader by a majority but Hon’ble Supreme Court in Centre for PIL & Anr. v. Union of India & Anr., overruled the Overruling, saying the High Powered Committee’s (HPC) selection of Mr. P. J. Thomas as Chief Vigilance Commissioner (CVC) under Section 4(1) of the Central Vigilance Commission Act, 2003 was “non-est in law”.

“Government is not accountable to the courts in respect of policy decisions. However, they are accountable for the legality of such decisions." While rendering a judgment, which is strictly confined to the legality of the recommendation, the court moved On with these lines… They differentiated ‘legality’ from ‘merit’, and ended up talking about the “larger perspective”, which CVC, DoPT and HPC failed to foresee.

     When No Law is infringed, under Sec 4 of the Act, it was hard for the court to reach a conclusion with regard to Thomas's appointment. The underlying abstraction in the minds of the judges, which can be piled up, is that they were not satisfied with the existing. Something was missing and the entire 73 page judgment was narration of that ‘something’.
….Appointment can’t be based on Bio Data.
...Institution is more important than an individual.
..Eligible persons should be without blemish whatsoever.
All these are valid and justified grounds. But somehow the court reached to the abstract conception of "Institutional Integrity", which is not a reasonable basis. In page 30 of the judgment, Justice Kapadia said,

“…in the present case the recommending authority (High Powered Committee) has gone by personal integrity of the officers empanelled and not by institutional integrity.”

However Section 4 of the Act says nothing about the institutional integrity. But in p. 32 of the judgment, the court categorically stated- the institutional integrity is the primary consideration which the HPC is required to consider while making recommendation and this vital aspect has not been taken into account in the present case. But I failed to understand what institutional integrity they are talking about? Every public office ought to be an office of integrity. It may be CVC, the Election Commission, the CAG or any other office. Is this integrity not appropriate for judiciary? The court should have defined what they meant by it. Do they mean, sacred? public trust? corrupt less? concerned? or what?

Appointments are always made on personal integrity. I agree between 2000 and 2004, the notings of DoPT dated 26th June, 2000, 18th January, 2001, 20th June, 2003, 24th February, 2004, 18th October, 2004 and 2nd November, 2004 have all observed that penalty proceedings may be initiated against Thomas. But at the same time, it cannot be ignored that the CVC vide its letter dated 25th June, 2007 informed the Ministry that:

“The case has been re-examined and Commission has observed that no case is made out against S/Shri P.J. Thomas…”

     It is rightly marked that no reasons are available as to why CVC had changed its earlier stand. But a presumption can’t be made as to Absence of reason means there is something fishy. So, the court should have gone to the extent of getting an answer to this question. Well! I agree when they say, if the selection adversely affects institutional competency and functioning then it shall be the duty of the HPC not to recommend such a candidate.

However the court rightly faulted the HPC for its failure to consider relevant materials. The key word in proviso to Section 4(1) is the word “recommendation”. While making the recommendation, the HPC performs a statutory duty. And the word ‘recommendation’ in the proviso stands for an "informed decision". Therefore the court is right when it looked into the matter as to whether relevant materials and vital aspects were taken into account or not. The observation that those notings were not considered in juxtaposition with the clearance of CVC granted is relevant as the decision to recommend has got to be an informed decision. If HPC, for any reason whatsoever, fails to look into the relevant materials then its decision would stand vitiated on the ground of official arbitrariness.

Secondly, an interesting point was made by the petitioner that the recommendation of the HPC has to be unanimous as the intention was to introduce bipartisanship and political neutrality. In Vineet Narain’s case the Court had observed that the Committee would decide by unanimity or consensus. It is no where stated that the Committee would decide by majority. Moreover, it was argued by Mr. Prashant Bhushan that if unanimity is ruled out then the very purpose of inducting the Leader of Opposition in the process of selection will stand defeated. But the court rejected the submission.

     The Court was right in saying- Conferment of such a power on one of the members would amount to ‘Judicial Legislation’. But I disagree when the court talked about conferment of a “veto right”, because there is provision of recording. A member is not absolved just by showing his hand or objecting, as he has to give reasons. How you found out that Mrs. Swaraj had objected? It was recorded. Ohh! The court itself in its direction also had made a point that member dissenting should give reasons. So, why ‘No’ to unanimity? Mind you, Public confidence will be enhanced.

     Anyway, the bench comprising CJI S H Kapadia, Justice K S Radhakrishnan and Swatanter Kumar laid down stringent guidelines for future appointments and quash the present appointment. This "Judicial Rebuff" can be said as a resurgent judicial activism under the leadership of CJI but somewhere or other, ‘Rule by Law’ have to bob up when ‘Rule of Law’ goes missing in political technicalities.

Whose WIN Was This After ALL??

When politicians were anticipating a breakdown and the world was waiting for a chance to laugh on India, Indians essayed that they have really moved on. Indians proved that they are mature enough to give a Constitution to themselves and a true peace loving people we are…

RSS chief Mohan Bhagwat said it is No one’s win or loss. I also thought that day; it is a good and balancing judgment. Balancing in the sense that: Court accepted the disputed land as Ramjanmabhumi but didn’t give the whole right to Hindus and divided it into three parts. Similarly, as a student of jurisprudence, I was taught in my class “Possession is the 9^th point of ownership”, but here Muslims were given the partial right. When my friend argued it to be pleasing judgment in front of that boy’s hostel of KLS, I was arguing it to be reconciliation. But today… though I am not in disagreement, not in agreement either…

After mid sem exam, when I was going through the unread magazines and papers of old dates, I came across an article of Saba Naqbi asking Was this the majesty of the law or the primacy of faith? It was argued that the basis for reaching the conclusion that the dispute land was Ramjanmabhoomi was just the belief of Hindus. ‘Surprise was my first reaction’, taking the words from Vinod Mehta’s mouth. All my calculations went wrong…
My question is CAN FAITH GIVE PROPERTY RIGHT to someone? If court says Yes. Its alright. But court should rethink before answering it affirmatively, as that will open the floodgate of litigations. It will be a stupid question, if I ask: Whether Hindus have ownership over Himalaya, River Ganga or all cows and trees for that matter and similarly Niyamgiri hill for tribals in Orissa? as faith is deciding factor, but the possibility of questions of this nature, coming tomorrow can't be ignored. 
Simply speaking, Judgment should not be given on someone’s belief or disbelief. Show me the evidence. Answering through evidence is not that easy...its like proving the existence of Ram. ...“Justice should not only be done but seen to be done” – I still remember my teacher Prof. V.D. Sebastian repeating it 998+1 times in administrative law classes.   

Technically speaking, 2/3^rd of the land is going to the Hindus, though it can be argued otherwise. On 30^th of Sep., I was shouting that verdict should not be based on law only, if it defeats the public sentiments... and social conditions should be taken into account, while observers expecting a judgment based on cold fact.

Today I believe, Muslim interest is not given due care. Though I vehemently disagree on the extremists’ dialogue that Indian state, police and judiciary can never deliver justice to minority, I salute my Muslim brothers of this country, who kept mum only saying: “This is not the end.”  Interestingly, they condemned the statement of Mulayam Singh… Look my country and my people they are great indeed. Hon’ble Dr. Singh is right in terming us as respectful. Vinod Mehta is right saying “Hindu v. Muslim” description is a gross fallacy. I would like to say Sadique Ahmed, verdict might have disappointed but you (Muslim as a community) have not disappointed civil society of this country. Not 3:30 but 4:10 of 30^th September, 2010 will be a memorable hour for India, when verdict came out from that iron gate of High Court. 
How far Peepli Live had any effect, I don’t know but Yes! Media proved to be a responsible media this time. Off course they were repeating to showcase they are restraining but nevertheless… Who Won? It hardly matters to me but it matters to many. I believe Muslims of my country won this case. Parties have gone to Supreme Court and I pray to Lord Ram and Allah, let that decision take more time, by which we will be more mature to accept even a judgment even if it is colored only with law…
I may develop a different opinion after going through the judgment, but i could not stop myself from being judgmental after reading Naqbi's article. Ya! about the article: it is more reflective than personal and the second last paragraph is more provoking indirectly than informative.

jUDGE: not a judge always..

In Warangal college, some candidates taking LLM exams were caught, who were not delinquent college students, but senior judges of the Andhra Pradesh High Court. They took the first-year LLM exam because if they passed, they would have been eligible for promotions and increments. And media got a chance 2 dance upon. Lawyers started shouting... Court ka ghusa aab nikalenge..

"The judiciary is the final recourse for common people to get justice - and if the judges indulge in this kind of malpractice, how can you trust the judgment of the courts?'' asks Ravi Kumar of the Warangal Bar Association.

I don't support cheating but I find any rationality in this argument either. It is immaterial, whether they were judges or anyone else. In a examination hall, a person writing paper is just a examinee/candidate. When a judge is giving justice he is acting under a different capacity.. Can any sensible person here say that none of our present judges have ever cheated in exams, even in Std. VI or VII or LLB?? If u say, they have never cheated, after appointment as judge, i don't see any difference...

Dear friends of law, Be aware, if you cheat in your exam, your judgments will not be binding!!!

@others: don't obey but be ready for punishment under contempt of court…

SLPs

When I was going through the Hindu daily, I came across a head line in p. 8 i.e. “Article 136 only a discretionary remedy, says Supreme Court.” Immediately I asked Ashis- what is Art. 136? Before he answer (after 150+ footage), Puneet, immediately said SLP... As a poor student of Constitutional law, I had to think for a while …Okkkk Art. 136 is SLP but what is SLP???

The 1^st paragraph of the article reads and I quote

“The Supreme Court, while deciding to examine the scope of Article 136 of the Constitution, said it was like Article 226 (writ jurisdiction of High Courts) was a discretionary remedy and the Supreme Court was not bound to interfere even if there was an error of law or fact in the order under challenge.”

After taking heavy lunch, ae baat kuch hazam nahin hua... I read this line again but failed to understand. After going through it nearly 4 to 8 times, i... it might be a printing error. But it was also highlighted in the article. So, it took no time to realize that it is not error in printing but in my understanding… Moreover the judges in the bench were no other than Justice Markandey Katju and Justice R.M. Lodha. But the question is: who will interfere, if there is an error? Moreover it is a general principle of administrative law that Court must interfere… But perhaps judges know more law than what I am taught by Prof. Sebastian…

The reasoning was, it has become a practice of filing SLPs against all kinds of orders of the High Court or other authorities. The Bench said, “The power is permitted to be invoked not in a routine fashion but in very exceptional circumstances as [and] when a question of law of general public importance arises or a decision sought to be impugned before the Supreme Court shocks the conscience. The Supreme Court would not under Article 136 constitute itself into a tribunal or court just settling disputes and reduces itself to a mere court of error.”

As I understood, Hon’ble Supreme Court is not a cinema hall or a mall, so that people will go whenever they get leisure to disturb the Judges and for recreation. What the bench was trying to say by using the words “routine fashion,” i failed to understand. Are they meant to say the same plaintiff or complainant going to SC routinely??? People go only against the judgment, decree, determination, sentence or order… So, ask your High Courts or tribunal to satisfy them from the very beginning. Again, what is an “exceptional circumstance” is? My case is exceptional and extraordinary for me and same as the case of Katju J. for him… Will I not go to SC because a case might come, which may be exceptional… from my case..I don’t know what shocks the “conscience” of Supreme Court!! And what “general public importance” is!!! Let the SC say what shocks it …and what "general public importance" is? If Section 10(3)(c) of the Passport Act, which mentions "in the interest of the general public", which compelled Bhagwati J. to say Oh! My God,,, is a wide and arbitrary term, is this “general public importance” in this judgment, not that wider… 

The judges further said: “After all, the Supreme Court has limited time at its disposal and it cannot be expected to hear every kind of dispute.” I have a right to justice and here judges are showing me their Tour de l’Ile, Vacheron Constantin watches!! Who is telling them to take such a long summer break and holidays.. holydays..

The Bench noted the concern expressed by K.K. Venugopal in a lecture pointing out that an alarming state of affairs “has developed in this court because this court has gradually converted itself into a mere Court of Appeal which has sought to correct every error which it finds in the judgments of the High Courts of the country as well as the vast number of tribunals…” Mr. Venugopal, the Bench said, “has pointed out that in the year 1997 there were only 19,000 pending cases in this court, but now, there are over 55,000 pending cases and in a few years' time the pendency will cross one lakh cases. In 2009, almost 70,000 cases were filed in this court, of which an overwhelming number were SLPs under Article 136. At present, all these cases have to be heard orally, whereas the U.S. Supreme Court hears only about 100 to 120 cases every year and the Canadian Supreme Court hears only 60 cases per year.” If Mr. Venugopal finds even 10 times more number of cases, what is my wrong? Will I not go to the court of law? Ask me to defend myself, my liberty and property of my own.. Certainly, I am not going to disturb the judges again…I promise...
A Bench warned: “If SLPs are entertained against all and sundry orders passed by any court or tribunal, then this court after some time will collapse under its own burden.” If judges fear of collapse and accept their failure to provide justice, who is stopping K. G. Balakrishnan C.J. to constitute benches of SC in different parts of the country, as advised by Justice K. Iyer? Is integrity of SC more important than unsatisfied citizen?, who is denied appeal because Constitution provides for one SUPREME Court only!! And judges don’t like to say that they are serving in an “ordinary appellate court”...

The Bench, therefore, wanted the issue to be settled by a Constitution Bench. Hope the Constitution Bench will give a negative expression to this type of reasoning… Yes! Some broad guidelines need to be laid down but it should be remembered that SC is not only a court of law but a court of justice… Agreed! Article 136 is discretionary but if there is a error of law, SC have to interfere... this discretion is not unfettered... In the words of Mansfield, "Discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful but legal and regular."
Judges should not forget, as the book "Off the bench" annunciate-- "judiciary being a fiduciary, its power, as a democratic instrument, must be tested, tuned and transformed to redeem its tryst with the people of delivery justice, law being the means and the Constitution setting the operational parameters..." They should also remember a single judgement, is more powerful than Indian Army, Air Force and Naval conjointly... 

a State where outsiders decide internal matters

After celebrating 61^st Republic Day, the govt. of India is yet to understand that we are a "Sovereign nation” and a Ninth standard student can say- Sovereign means internally supreme and externally independent. The executives are still not sure that they have to take the policy decision themselves and not the EU members!

 

A 10 member delegation from the EU is scheduled to visit the Kandhamal district on 2nd February, 2010. They will stay in Orissa up to 5th Feb. They will visit Kandhamal district to observe the present situation and will discuss with the Chief Secretary and Home Secretary before the visit. They will also discuss with Ark Bishop Rafel Chinath and others. Spanish embassy Ramon Moreno had proposed to visit the district on 27^th Jan. But they could not able to visit because the government of Orissa was not ready for that. But after the interference of the centre the state has agreed. Last year due to election the centre was not prepared. But now the government has allowed the diplomats to visit the communally fragile district. Besides meeting the people; the diplomats would hold discussions with the district administration..... As if the country’s situations are their responsibility.

Can one recall, an incident, where the Govt. of India had intervened in any of the internal matters of any other country? No, there is no such incident because India very knows that if it intervenes, a slap and a kick is ready for it. Indian government has not even dared to talk strongly with Australia, where its people are attacked.

There is no business of the OUTSIDERS in the internal matter of this country. The visit of European Union delegation would only spark off fresh tension. So, the proposed visit of the EU delegation should be cancelled by the government and withdraw the permission granted for the purpose immediately. TOI reports “The European Union’s trip assumes importance considering that French President Nicolas Sarkozy, in his capacity as President of European Union then, had forced a ‘national shame’ response in October, 2008, from Prime Minister Manmohan Singh over the Kandhmal violence.” Similarly they will after visit bring out certain policy which will command our national life. I can’t understand, who the hell is this European Union? My Public International Law teacher taught me that UN is responsible for the maintenance of peace and security under Article 1 of UNC. But from which Charter, from which convention and from which date, now EU is entrusted this responsibility. If it is... then we damn care about it.


Why EU is interested in Kandhmal? Are those affected in Kandhmal not Indian? EU has indicted India on several occasions for human rights violations. Soon after violence broke out in Kandhamal, the European Commission, EU’s executive wing, called it a “massacre of minorities.” But I have a question to ask, how many delegations have visited Mumbai after 26/11? The people died were not less, there. There was also violation of Human Rights…. as far as I know. We don't believe in majority and minority concept. All are equal before the law and equal protection of laws, is available to all. Even after that if you say---minority, I must tell the minorities protection in India, is excellent than any other country or even the member countries of EU.

..not a law student but as a media person

H.M. Seervai Memorial lecture

(He got Padma Bivushan Award in the year 1983)

Organized by KIIT Law School and me, a law student inside the audi. An attempt to report as a media person. The chief Justice of Orissa High Court Justice Dr. B S Chohan was the chief guest. He emphasized on the duty of the citizen. He has also said that the Hindu jurisprudence mainly emphasize on the duty. In the case of Chandravan the court said it is fallacy to think there is only right and no duty in our constitution. At last he said that Part IV of the constitution is not empty and high sounding words but ideals.

Justice S. B. Sinha, the judge of the Supreme Court of India, was the Speaker. He said a thing can be differently interpreted. For e.g. Orissa is a rich state or Orissa is a poor state. It can be said as Orissa is a rich state of poors. He said that in the A.K.Gopalan’s case, it was said about Art. 21. The SC said it should be read with Art. 14, 19, the Preamble, Part III and IV.

According to him the legislature and the executive is not working while the judiciary is over acting. So, he raised the question of separation of powers. He said a case should be considered to its merit. At the same time he gave the example of SEZ and said India should take decision according to the doctrine, which she follow: the market doctrine, the justice doctrine or the social doctrine. So, what was the law in the 17th century is not the law now. He criticized Globalization and said the Sovereignty will be demolished and the territory will be Pepsi/Cola land.

Justice Lokur the judge in Delhi High Court conducted our class and gave us the following information. There are 30 lakhs cases pending in the High Court. Similarly the number is 50000 in the Supreme Court. Moreover the total figure in the country is about 3 crores. In1999, the Parliament said that, alternative dispute solving mechanism should be used for the resettlement of the conflict. Prior to that there was the Arbitration Act. Section 19 of the Act says about the establishment of the Lok Adalat. So, in July 2002 section 9 was added in the CPC.

According to Lokur J. mediation is the best way for the resettlement of the dispute. Mediation is the mechanism when the dispute of the both the party is solved by the neutral third party. In this process there is no judge as such unlike in the court of law. But that neutral party has to just facilitate in settling the disputes. For example in the court of law, there are two parties and there was the fight for the compensation for the infringement of the rights. But here there is the settlement. Both the party has to agree the truth and finally there was the judgement. If one of the party does not agrees to disclose the truth or gives the false statement, which the other party could not able to agree upon then the full mechanism becomes hopeless. Here the mediator has to expressly state that his is the neutral person. But there is no such provision in case of the court of law because it is implied. There is also the provision of Cocus, in which one party will go out and the other party will disclose all, which he wants to say the mediator personally such as anything related to matrimonial life or any personal or family matter. So, there are 4 steps as a whole viz. Introduction, Joint session, Private session and the Joint session for the exploration of the possibilities. There may be more than one private session as dependent upon the case. There is also the role of the the lawyer in this regard like to see the legal aspects of a case because the parties are often confused about their own case. Due to ignorance they could not able to know what has gone wrong but simply thinks something has gone wrong. Negotiation is the second job of the lawyer to look into.

There are many advantages of this mechanism. They are as follows:

Once the matter is solved there is no appeal because it is solved taking the interests of both. So, it is the final one. But in case of the court of law, the court have to give judgment in favour of one. So, there is further appeal. And at the last the SC has to also give judgment in favour of one of the party.

Secondly, it is the speediest way of solving a case. The matter can be solved even in 2 hous and max to max it is one month. But in the court, if the rule of CPC is strictly followed, then also it is not less than 8 months.

Thirdly it is cheaper. Here you may not employ a lawyer and the run to home to court is saved.

After that the question arise how a mediator is selected?

There are two ways of selecting a mediator. The first one is the Court integrated mediation, where the mediator are already involved in the court and the judge gives him the case if he thinks that it can be saved through mediation.

The second process is by training. There is a programme of 40 hours of training. The institute summons application and the students are selected in the basis of patient, attitude of cooperation and the ability to look the same thing in different perspective. Theoretically a person not from the law background can also go for it.

Lokur J. has also given the example of the lawyering of M. Gandhi, how he solved the matter. His client got the compensation and the other party also becomes happy because he gave it in installment.