In India 100 is synonymous with the Police but the irony is that public in India dread this very word, Its very presence must inspire confidence but it is contrary,In 1950 Justice AN Mullah called police as the "biggest organized goonda(goon)Force,Call100 is journey to empower citizens against the abuse power and corruption of Police.Indian Policing System has the exceptional assured career progression scheme for the criminal elements in Khaki uniform & we need to overhaul it.

Wednesday, November 28, 2007

Woman stripped on street

Shame on Guwahati streets

Guwahati, Nov. 26: A young Adivasi woman ran down a Guwahati street naked, stripped by ethnic rioters, while leering city youths clicked away with their cellphone cameras.
As television today brought to Assam homes one more scene of Saturday’s street horror — when hundreds of tribals were attacked over a 3.5km stretch of the city — police arrested the woman’s three tormentors.
“The three had pounced on her like a pack of dogs and started stripping her. All her pleas fell on deaf ears till they had stripped her naked. Only then did they let her go,” said a police officer quoting eyewitnesses to the mob retaliation to a violent Adivasi students’ march.
The woman sprinted away from a large group of jeering men and ran on in panic till somebody threw her a piece of clothing.
The sight left homemaker Ananya Baruah dumbfounded on her second-floor balcony at Beltola, the epicentre from where the rioting spilled over several localities.
“She was running like mad. Some people were clicking pictures with their cellphones. It was one of the worst crimes any civilised society could have committed. I felt so helpless just watching. The girl disappeared into one of the by-lanes.”
The victim was probably a participant in the armed Adivasi procession in demand of Scheduled Tribe status that had turned violent and damaged private and public property, including cars.
As the police began dispersing the tribals, angry local mobs chased down the stragglers among them. Adivasi men, women and children were dragged across streets and mercilessly beaten up with the police refusing to intervene. The violence left some 300 injured and a 12-year-old boy dead.
The ethnic conflict claimed a second life this morning. Santosh Kumar, 17, was dragged out of a vehicle on a highway for “defying” an Adivasi-enforced bandh that was yet to begin, and hacked to death.
Chief minister Tarun Gogoi announced the arrests of the trio who had stripped the woman and offered the victim Rs 1 lakh in compensation. Prasenjit Chakravarty, Sandip Chakdar and Ratul Barman were nabbed on the basis of video footage and eyewitness accounts.
Ratul, a waiter at Mahalaxmi Hotel in Beltola, is barely 18. The main accused is Prasenjit, 28, owner of Dainty Fast Food restaurant in the same locality. Sandip, 20, owns a paan shop near the hotel where Ratul works.
The charges against them range from outraging a woman’s modesty to attempt to murder.
Gogoi announced a judicial probe into the violence by the All Adivasi Students’ Association of Assam as well as the mob backlash. The state government has announced a compensation of Rs 3 lakh for the families of the dead.


Wednesday, November 21, 2007

Combating impunity in 'the place of impossible' 'National Project of Preventing Torture in India'
MyNews.in14 November 2007 Bihar is the most defamed state in India for killings, counter killings and the impunity enjoyed by the police. Nathnager, Bhagalpur incident of Police torture hit the Media headlines once again when the human rights committee of the Bihar Legislative council gave a clean chit to the cops involved in dragging of a petty thief behind their motorcycle; the entire country was shocked to witness it. Instead of uncovering the facts based on the human rights standards, the committee defined it for shielding the police. The most startling fact is that the committee released its report within two months and the cops were made innocent despite of evidence. That's why G.P. Dohre, the Ex-Director General of Police, Bihar calls the 'Bihar as a 'place of impossible'. Obviously it's a great challenge to combat impunity in Bihar, where the society as a large supports police torture and also denies human rights without a second thought. A Project supported by the European Union and the Friedrich Nuaman Stiftung entitled as the 'National Project on Preventing Torture in India' is being implemented in Bihar with the core aim to prevent police torture by combating impunity routinely practiced by the police in the state. Since the launching of the project in the state in July 2006, 260 cases of police torture involved custodial torture and death, fake encounters, torture of women; lathi charge, police firing and police acquiescence were monitored and under taken for the fact finding. Furthermore, 1200 people from the different sections of the society including professionals and the common men were trained in the various awareness programmes for combating torture. The legal interventions were done in 45 cases and 40 petitions were filed under the Right to Information Act 2005 for acquiring information regarding police torture cases and the implementation of various policies. The special focus was made in Nawada Taluk to make it as a model against the police torture and many marches were organized against the police torture in the state. The impacts of these efforts can be easily noticed in 85 police stations of four districts – Patna, Bhojpur, Nawada and Nalanda, where abuse, denial of FIR and torture were the everyday's phenomenon. The ratio of filing complaint has increased in these Police Stations. The Police also give a copy of FIR and post-mortem (in case of death) reports to the victims, which they were not ready to give without the permission of the Senior Officers earlier. The behaviour of the Police has also changed. Now they talk respectfully with the human rights activists in the police stations. As per the police record, the D.K. Basu Guidelines have been displayed on signboards in 21 police stations of Bhojpur district and 1 each in Nalanda and Nawada districts. Their respect for human rights has grown up and they are also cooperating in prevention of torture; previously they used to oppose by assuming the human rights group as their enemy. "It was a tough job to change the mindset of the Police at the beginning of the project as the ball was in their court therefore they were repeatedly questioning to the legitimacy of the People's Watch. The police headquarter had even declared the organization as an outfit group of the Naxalites. On the other hand, the people assumed it as one more profit making NGO on the queue, but the fog started disappearing after one year of hard work done for the project", says A S Prasad state director and former district & session. The Nawadaben fake encounter created huge impact in the state as the first time a human rights group raised the question against the killings of people in fake encounters in Bhojpur district, which media also reported consistently. As a result, the Police stopped killings of people in encounters in the district, which was obvious in 4 genuine encounters took place in the district after Nawadaben incident but no one was shot dead by the police. The Police caught the criminals alive and put them behind the bars. On the other hand the People also started questioning the impunity and inhuman treatment of the Police. 100 private complaints were filed in the court by the common men against the police in 2007 in Bhojpur district alone, where the police torture was rampant due to the gang war but the people were afraid of going against the police. The most incredible change was noticed in Umesh Kumar the IPS office and SP, Bhojpur who had badly reacted and questioned the legitimacy of human rights activists, monitoring the cases of Police torture, now he wants to go for the human rights studies for his survival. "If I have to survive as a Police Officer, I must have to study about the Human Rights", he said. Furthermore the force eviction was stopped in Nawada Model Taluk where 2000 people were estimated to become the victims of force eviction due to a fishery development project. A local resident 65 years old Ramdulari Devi had become unconscious after hearing the siren of eviction. The district authority withdrew the project after a three days strong people's movement initiated by the people's watch. The administration also re-settled 23 poor families who have been displaced in the process and 4 decimals of land were given to each family for the construction of houses. The reporting graph of media increased on the issue of Police torture in the districts. At the other end the NGOs of the districts has started conducting awareness programme on human rights issue and the human rights organizations became more proactive in the state. The impact is seen in the judiciary too. According to Ram Vinod Singh the Chief Judicial Magistrate of Biharsharif that the first time some one dared to file a case of custodial death in Biharsharif Court. The District Judge of Nalanda Radha krishna convinced by the team and assigned all the Judicial Magistrates of Nalanda district to ask police to produce the arrest memo while producing the accused in the court as per the D.K. Basu guidelines. The present administration of Bihar has shown the sign of change in the state, which would pave the way in prevention of torture in the state. Though it seems to be a tough job to change the mindset of the police and the people but the impunity practiced by the police can be change only through public awareness, monitoring and intervention on torture cases. The impunity practiced by the police should not be tolerated at any cost. © 2007

Tuesday, November 20, 2007

Farmer's Suicides & advice of chairman,commission for agricultural costs and prices

At farmers' meet, agricultural panel chief shoots from hip
H ANDS folded, tears wetting his cheeks, Saroop Singh, a 52 year-old farmer, begged for deliverance. "Save me or I will be forced to commit suicide." The farmer spoke not just for himself but for the 60-odd farmers gathered to meet Dr T Haque, chairman of Commission for Agricultural Costs and Prices (CACP), at the office of the District Chief Agriculture Officer here on Sunday evening.
"The price we get for our crop is too little to sustain us," Saroop went on, telling Haque about his three-and-a-half acres and a loan of Rs 1.5 lakh that he had been unable to re pay for the last three years.
"Another difficult year and I will have no option but to commit suicide," he sat down, only to spring up again to add: "I am glad I took this loan from a bank, had it been from an arhtiya I would have been dead by now."
Haque, with a frowning look, snapped: "Don't commit suicide, no one will bother.
Pick up the gun, or protest in any manner you know." There was complete silence in the room as he went on: "The Vidharbha experiment has failed, we have had more farmer suicides after the PM relief package than before it."
Haque told the farmers how the price they sought and the price that economists and universities recommended was hundreds of rupees apart.
"No one seems to be hearing your voice."
As the CACP chairman gave the gathering a patient hearing, looking moved at times and angry at others, the farmers vent their angst against the government, the banks, the nature... everyone.
Gurbaksh Singh, a farmer from Tugal village, groused about the humiliation meted out to them by bank officials.
"The banks take advantage of the fact that many of us are illiterate. They send us to the patwari who demands his cut.
We end up mortgaging our entire land for a paltry Rs 2 lakh."
Raghuvir Singh from Saharanmajra village wanted farmers to be treated on par with industry. "The subsidies given to industrialists should be extended to us. After all, can the people do without food? There is not a single farmer in this room who is not under debt and if the government doesn't heed our SOS, farmer suicides will become common place in Punjab."
The way out, they told Haque, was fair pricing. As Satnam Singh put it: "Give us Rs 1,400 per quintal for wheat and Rs 1,200 per quintal for rice. Ensure fertilisers on time, give us good seed, and we will be fine."
Haque reiterated his call for protest. "Suicides will not move the government, protests will. Farmer unrest is a national reality that will worsen over the years."

Tuesday, November 13, 2007

corrupt indian systems-inequality is the rule of law

In 2001, the celebrated Indian advocate Kamini Jaiswal (who was a lawyer for the famous ‘Bandit Queen’ Phoolan Devi) attempted to mount, pro bono, a case against Sai Baba on behalf of a former Sai Baba devotee, Hari Sampath.
Jaiswal’s reason for applying for the case to be pled in the Supreme Court of India in New Delhi was precisely for the reason that Andhra Pradesh, Sai Baba’s state, is chockful of Sai Baba police and judges. Therefore, Judges Paitnaik’s and Lahoti’s repeated statements (see link below): “Go the Andhra Pradesh court”, and refusals to give reason for their adverse decision is reprehensible. I have shown the transcripted remarks to a Judge who has also been a top government legal advisor in a major Commonwealth country, who was appalled, as other lawyers and laity alike have been.
Sampath, a software engineer from Chennai may be no bandit like Ms Jaiswal’s client the late Phoolan Devi, although many Sai Baba devotees would perhaps deem him so. He was, he relates, a former member of Sai Baba’s Security and Intelligence wing. He co-led, with the late Glen Meloy (USA), the first major international former devotee effort that brought Sai Baba to critical attention in major media such as India Today, The Times of London,, The Daily Telegraph, Denmark’s National broadcaster DR and various media in Europe and beyond.
Case Derailed
Two other prominent Indian advocates Prashant Kumar and Gaurav Agarwal appeared along with Kamini Jaiswal. However, they were entirely thwarted by judges in the New Delhi Supreme Court - the Sai Baba-partial Judges Lahoti and Patnaik. There is a document which reveals instantly to any alert and unbiased reader what a ‘kangaroo court’ theirs was. This document’s provenance we can prove to competent and principled enquirers. A legal professional has transcripted the case, and part of this may be viewed HERE.
By the way, our offer of proper provenance checking facilities is likewise the case with a wide range of facts that we often have to state in places like the Internet without evidentiary detail - alas, so cautiously and abstractly! But we are - and have been all along - happy to dislose such matters to reputed, bona fide journalists or other investigators, e.g., scholars, law enforcement, government.
Why Not Plead Against Sai Baba in Andhra Pradesh?
For an example how a Sai Baba devotee Judge in Sai Baba’s state of Andhra Pradesh can pervert the course of justice see HERE. Here are brief details.
B. Premanand, of TV “Guru Buster’s” fame, and fellow Indian Rationalists, among other gutsy actions, tried but failed to expose Sathya Sai Baba in court. He too has reported physical attacks, and has told a number of us that his own son was murdered - the only material stolen being extremely compromising to Sathya Sai Baba. Sri Premanand has formed a Committee for Scientific Investigation into Claims of the Paranormal (CSICP). He mounted a court action in Sathya Sai Baba’s state of Andhra Pradesh, in which the High Court Judge Y.V.Anjaneyulu, a prominent Sai Baba devotee, ruled that the law requiring a license to produce gold does not apply to Sathya Sai Baba, who, he determined, materializes his gold from a divine realm. This 1986 case, which B. Premanand brought in the Andhra Pradesh High Court, exposed a close Sai Baba devotee judge’s violation of India’s secular legal system. Judge Anjaneyulu pronounced:
“An article or ornament materialized from air in a split second by the use of spiritual powers or otherwise cannot be said to be made, manufactured, prepared or processed within the meaning of section 11 of the Gold Control Act.”
Having lived long in India, I know well that many thinking Indians feel disgusted that their otherwise great country is still awash, from top to bottom with irrationality and corrupt practice that includes the malfeasance of Judges such as Anjaneyalu, Lahoti and Patnaik. If she makes it as a superpower, will there be an insufficient number of ethical ’freedom fighters’ to prevent her from her existing as a moral and spiritual dwarf?!

India: Bad marks, yet Ist division
Times of India
Swaminathan S Anklesaria Aiyar
4 November 2007
Even as Mukesh Ambani is reported (probably inaccurately) to have become the richest man in the world, the World Hunger Index of IFPRI has ranked India 94th out of 118 countries, just above Ethiopia and worse than any country in the subcontinent save Bangladesh. The contrast between rich and poor is stark. India's social record has long been bad. It ranks a lowly 126th in the Human Development Index of the UN. World Bank data show that India has among the highest rates of child malnutrition and maternal mortality in the world. Predictably, the left says that India's neo-liberal economic policies fatten the rich and neglect the hungry. But that is comically wrong. India fares very poorly in global indices of economic liberalisation, no less than of human development. It is not the case that India is world class in economic reforms but poor in social reform. Rather, India gets terrible scores on pretty well everything. Leftists claim that India's neo-liberal policies have lifted almost all controls. Really? How could our esteemed netas and babus extract bribes ad nauseum if there were no controls and permits? The Corruption Perception Index of Transparency International ranks India a lowly 72nd, below many African countries. A survey of the Centre for Media Studies shows that 80% of all Indians pay petty bribes totaling a whopping $4.8 billion for services they are entitled to. A quarter of the bribes are for admission into supposedly free schools and hospitals. So if the poor are deprived, blame not the Ambanis or Narayana Murthys but the neta-babu raj, which remains intact and venal as ever despite some limited liberalisation. Is bribery just a small wart on a healthy liberalised system? Hardly. India ranks only 104th in the Index of Economic Freedom, published annually by the Heritage Foundation and Wall Street Journal. In economic freedom, no less than in corruption or hunger, India ranks well behind several African countries. The Index of Economic Freedom rates India as mostly unfree. India ranks below the world average on six out of 10 criteria. It gets overall marks of 56%. Its marks are much worse in regard to corruption (29%). It gets only 30% marks for financial freedom — government banks still dominate 70% of banking, stringent licensing prevents new Indian and foreign players from entering this sector, and two-fifths of bank loans have to be given to sectors decreed by the government. India gets 40% marks for investment freedom — foreign investment is still restricted or banned in a number of sectors, capital controls limit rupee convertibility, and NRIs and foreigners face several restrictions on investing in India. The World Bank's annual series on Doing Business ranks countries on the ease of doing business. In the latest report, India ranks just 120th out of 180 countries. It is the worst in South Asia: better are Maldives (60th), Pakistan (76th), Bangladesh (107th) and even Maoist-hit Nepal (111st). China (83rd) is better than India but worse than Pakistan, highlighting the fact that red tape still inhibits some of the most fast-growing economies. Among the various doing business indicators, India is virtually at the bottom in enforcement of contracts (177th). This means, in effect, that contracts are pretty meaningless, the rule of law does not prevail, and property rights are insecure. Almost as bad is India's performance in demanding payment of multiple taxes (165th out of 180 countries). On the ease of hiring and firing workers, it ranks 85th, which is poor but actually much better than India's scores on some other criteria. It seems that businessmen can find ways round inflexible labour laws. India scores badly in ease of opening a business (111th) and even worse in closing a business (137th). India fares badly on several policy and governance indicators. Its fiscal deficit remains over 6% of GDP, which is a crisis level in most countries historically. Subsidies are still 14% of GDP, of which half are non-merit subsidies without redeeming social virtues. The quality of public services is pathetic. Legal delays make a mockery of justice. Legislatures and cabinets are full of criminals. And Maoist violence affects 157 of our 600 districts. Despite scoring so poorly on economic, social and governance indicators, India nevertheless boasts record 9% economic growth. It boasts some social successes too. Life expectancy has increased from 31 years at independence to 64 in 2005, a huge jump. NSSO surveys show that people saying they don't get enough to eat for part or all of the year have fallen from around 15% of the population in 1983 to 5.5% in rural and 1.9% in urban areas in 1994-94, and to just 2.6% in rural and 0.6% in urban areas in 2004-05. IFPRI may rank Indians as very hungry, but Indians themselves say that hunger has largely ended. Not all international indicators are as off-target as IFPRIs. Many seem accurate. This deepens the mystery of how India is succeeding despite horrible flaws in dozens of areas. It is like a student who gets poor marks in most papers, yet ends up with a first division.

This article was published in the Times of India on 04 November 2007. Please read the original article here.

Reform the bureaucracy

Reform the Bureaucracy
The Times of India
Sanjeev Sabhlok
30 July 2007
We face an inexplicable dichotomy in India between the performance of our public and private sector. While Indian business performance is often second to none, the results of India’s public sector are poor beyond description. Delivering simple things like water, electricity, roads and education are well beyond our capacity. This is unacceptable and an explanation is in order. The blame for our poor public sector performance can be laid on the way our bureaucracy is structured and on its incentives structure. I base this conclusion not solely on academic comparisons, but also on the learning acquired by working for 18 years in the IAS and for seven years in the bureaucracy in Victoria state in Australia. Performance of senior Australian bureaucrats was significantly better than anything one had experienced in India. No IAS officer knows more in the relevant subject area, can think as well and as strategically, or lead a team of professionals better, than his Australian counterpart. Australia also constantly benchmarks against the world’s best. Being just a little better than Bihar is not considered sufficient. A new bureaucracy can, however, emerge in India if certain principles are followed: abolition of tenure at senior levels; open market recruitment for each position; contestability of policy advice to political leaders; market competitiveness of remuneration and extensive delegation of responsibility. It is true that merit is taken into account at the entry point of the IAS. But merit is not a one-off measure. Shouldn’t a secretary to the government be a person with a proven track record? Shouldn’t the person be an expert on his subject or a great motivator? What has writing a good essay in an examination at age 21 to do with being a good bureaucrat? Second, we do not reward our officers for performance and integrity. The legal protections provided to IAS officers are such that even when caught taking bribes, they cannot be punished, let alone demoted for non-performance. Errant officers increasingly become indolent, arrogant and incompetent, and yet, advance without resistance into the position of secretary. While Indian taxpayers support this ineffective bureaucracy, thinking perhaps that there is no alternative, advanced countries have used the findings of agency and public choice theory to design systems that reward expertise, leadership and ruthlessly punish bad performance. In doing so, they have transformed their public servants into dynamic agents of change and excellence. We need to begin the desperately needed change by making a fundamental shift in accountability, ensuring that the bureaucracy becomes merely one of the many potential service providers to ministers. This can be done by ministers contractually appointing specialists who are committed to delivering their party’s policy platform as their advisers. No file would then go to a minister without these advisers having had a look. Ministers would then appoint their secretary through an open (preferably global) market competition — in the first instance, on a two-year ‘hire-and-fire’ performance-based contract — paying a salary comparable with what senior MNC executives get in India. Secretaries would similarly appoint their joint secretaries. Each of the newly appointed secretaries would then implement a two-year strategic process to restructure the bureaucracy into departments such as defence, justice, external affairs, public finance, physical infrastructure, social infrastructure, commerce, social capital and community, and sustainability. This would involve significant training and redundancy planning. A public administration Act could under-pin the restructured bureaucracy. Positions requiring significant judgment and leadership skills would be brought under a three-year performance-based contract. By no means will this reform be a panacea for India’s chronic misgovernance. Our political and electoral systems need funda-mental reforms too. But we must begin somewhere, and changing our bureaucratic leadership will make a big difference.

This article was published in the Times of India on July 30, 2007. Please read the original article here.

Contemp of court

Contempt of court and the truth
The Hindu
Anil Divan
29 October 2007
In 2002, there were adverse comments widely reported in the print media in Karnataka regarding the private behaviour of some sitting judges of the High Court. The High Court suo motu commenced contempt proceedings against several publications for scandalising the Court and lowering its authority. The matter reached the Supreme Court and an agonised Chief Justice Khare while criticising the media for not disclosing their sources stated that “I will reward the media if they come out with the truth”… “I personally believe that truth should be a defence in a contempt case.”

Broadly, criminal contempt means either scandalising the Court or prejudicing a fair trial or interference with the administration of justice.
In the “Mid-day” case, a bench of the Delhi High Court without considering the defence of truth has imposed a severe sentence of four months imprisonment on the media for scandalising the Court. The case is now pending in the Supreme Court and raises far-reaching questions of public law.

The law as laid down by the Supreme Court following earlier cases was that justification or truth was no defence against summary proceedings for contempt when words were used which scandalised the Court or lowered its authority.

Parliament has now intervened and radically changed the law by Act 6 of 2006 by amending Section 13 of the Contempt of Courts Act, 1971 which states — “Notwithstanding anything contained in any law for the time being in force ... (b) the court may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide.”

The Statement of Objects and Reasons to the Bill states that the amendment “would introduce fairness in procedure and meet the requirements of Art. 21 of the Constitution.”

When the provisions of the Bill were discussed in the Lok Sabha, Law Minister H.R. Bharadwaj said “Suppose, there is a corrupt judge and he is doing corruption within your sight, are you not entitled to say that what you are saying is true? Truth should prevail. That is also in public interest.”

The National Commission to Review the Working of the Constitution (NCRWC) headed by the distinguished former Chief Justice of India, M.N. Venkatachaliah, in its report stated “Judicial decisions have been interpreted to mean that the law as it now stands, even truth cannot be pleaded as a defence to a charge of contempt of court. This is not a satisfactory state of law. … A total embargo on truth as justification may be termed as an unreasonable restriction. It would, indeed, be ironical if, in spite of the emblems hanging prominently in the court halls, manifesting the motto ‘Satyameva Jayate’ in the High Courts and ‘Yatho dharmas tatho jaya’ in the Supreme Court, the courts could rule out the defence of justification by truth. The Commission is of the view that the law in this area requires an appropriate change.”

Chief Justice E.S. Venkataramiah, whose judgments on press freedom are liberal and well known — gave an interview to journalist Kuldip Nayar on the eve of his retirement. He stated “the judiciary in India has deteriorated in its standards because such judges appointed as are willing to be ‘influenced’ by lavish parties and whisky bottles.” … “in every High Court, there are at least 4 to 5 judges who are practically out every evening, wining and dining either at a lawyers’ house or a foreign embassy.” The columnist further reported that “Chief Justice Venkataramiah reiterated that close relations of judges be debarred from practicing in the same High Court.”

At the instance of a leading advocate, a petition was filed against Justice Venkataramiah bringing this interview to the notice of the Nagpur Bench of the Bombay High Court for instituting contempt proceedings against him for scandalising the entire judiciary. The Division Bench observed that the entire interview appeared to have been given with an idea to improve the judiciary and it was not a fit case where suo motu action was called for and dismissed the petition on merit.

International standards and laws of other democracies would be informative and enable us to arrive at the right standards. Professor Michael Addo of the University of Exeter has collected the views of many European experts in “Freedom of Expression and the Criticism of Judges.”

In European democracies such as Germany, France, Belgium, Austria, Italy, there is no power to commit for contempt for scandalising the court. The judge has to file a criminal complaint or institute an action for libel. Summary sanctions can be imposed only for misbehaviour during court proceedings.

In Belgium, the media have been very critical of the functioning of the administration of justice and have strongly criticised individual judges. This tension between the press and the judiciary led to a seminal pronouncement of the ECHR (European Court of Human Rights). Leo De Haes and Hugo Gijsels were editor and journalist of a weekly magazine Humo. They published five articles in which they criticised judges of the Antwerp Court of Appeal in virulent terms for having awarded custody of children to their father although there were serious allegations against him of incest and abuse of children. The three judges and the Advocate-General instituted proceedings against Haes and Gijsels seeking compensation for damage caused by the defamatory articles. The Tribunal of first instance held against the journalists and the same was affirmed by the Brussels Court of Appeal and on further appeal by the Court of Cassation. The journalists applied to the ECHR and succeeded. It was held that though courts had to enjoy public confidence and judges had to be protected against destructive attacks that were unfounded, the articles contained detailed information based on thorough research, and the press had a duty to impart information and ideas of public interest and the public had a right to receive them It was held that there was a breach of Article 10 of the European Human Rights Convention which guaranteed freedom of speech and expression and there was also a breach of Article 6(1) (fairness of trial) because the Tribunal refused to study the reports of professors relied upon by the journalists. The journalists were awarded damages and costs of over Francs 964000 against the State. The case shows that there is no summary right of committal for contempt and the judges adopted proceedings for libel which ultimately failed.

Professor Addo concludes in relation to Art. 10 of the European Convention of Human Rights that although all countries in Europe had an offence relating to the criticism of judges on their books only a few continue to punish for this offence and there is an emerging common European standard.

In the U.K., the offence of scandalising the court has become obsolete. The judiciary was vigorously criticised by the English press in the Spy Catcher case. Peter Wright a former intelligence officer wrote his memoirs but the Court of Appeal injuncted the publication of the book in England. The House of Lords, by a majority of three against two confirmed the interim injunction and enlarged it. The Times of London came out with a blistering editorial which said: “Yesterday morning the law looked simply to be an ass. Those who regretted this fact were waiting with quiet confidence for the Law Lords to do something about it . . . But yesterday afternoon the law was still an ass ... In the hands [of] Lords Templeman, Ackner and Brandon (the majority who ruled for the gag order) it had become unpredictable and wild seemingly responsive only to autocratic whims.”

The Daily Mirror came out with a front page caption “You Fools” and published the photographs of Lords Templeman, Ackner, and Brandon upside down.

In the United States, contempt power is used against the press and publication only if there is a clear imminent and present danger to the disposal of a pending case. Criticism however virulent or scandalous after final disposal of the proceedings will not be considered as contempt. The U.S. Supreme Court observed — “the assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste on all public institutions ... And an enforced silence, however, limited, solely in the name of preserving the dignity of the Bench, would probably engender resentment, suspicion and contempt much more than it would enhance respect.”

Our Parliament, by the recent amendment where justification or truth can be bona fide pleaded in the public interest has attempted clearly to bring our law in line with European and American standards.

Truth was treated as an ‘untouchable’ while exercising contempt jurisdiction for scandalising the Court. Parliament has now opened the doors of the temple of justice for the erstwhile untouchable.

In the case of Veeraswami, a former Chief Justice of Madras High Court, the Supreme Court observed: “A single dishonest judge not only dishonours himself and disgraces his office but jeopardises the integrity of the entire judicial system.”

The contest is between truth and its suppression. The choice then is between the plea of truth to expose judicial misconduct and the attempt to stifle such publication by the use of the contempt power. The Delhi High Court through its “Mid-day” judgment has catapulted the issue nationally and internationally.

This article was published in The Hindu on 29 October, 2007. Please read the original article here.