Publication:Times Of India Delhi;
Date:Dec 9, 2007;
Section:Spl Report;
Page Number:8
CRIMES AGAINST WOMEN
Hometruth: The Ugly NRI
Avijit Ghosh TNN The shining side of the NRI story usually makes for primetime news.But there’s another side that’s usually kept under wraps, much like a bad skin condition: crimes against women. Dowry harrasment, desertion, wife-beating, concealment of earlier marriage and ill-treatment — there are plenty of unknown Kiranjit Ahluwalias (whose lifestory was told in the film Provoked) in the NRI cupboard. According to New York-based South Asian women’s helpline Sakhi, the organisation got 201 calls from women seeking help in 2001. In 2006, the number had shot up to 685. “Requests for assistance could reach close to 800 this year. Calls and emails from women abandoned in India are increasing,” says Sandeep Bathala of Sakhi. On its website, the Oxford-based Asian Women’s Helpline claims to be getting about 85 calls a month. And since January 1990, Apna Ghar, a Chicagobased domestic violence shelter, has served over 5,400 domestic violence clients. But figures can never evoke the real horror of a vulnerable woman trapped in a bad marriage in an alien land. A survivor tale posted on the website of Narika, a California-based helpline for South Asian women captures that feeling. The unnamed survivor, who met her husband through a marriage web site (it was a second marriage for both), recounts: “My in-laws and my husband nudged me into the role of a maidservant... I was not allowed to go out of the house, make or receive phone calls and for some time they monitored my e-mails too. I was introduced as a guest to the few people I came across in those four months. I was shocked when my husband refused to consummate our marriage. In effect, I was penniless without any outside contact and totally at their mercy — just the way they wanted it. Economically, socially emotionally and mentally, we (the victim and her daugh ter by first marriage) were their slaves.” This isn’t an isolated case. Senior Punjab cop San jeev Gupta, who used to head the NRI cell, says he has come across several cases where the NRI got married only because his family needed domestic help abroad. That’s not all. Last month, Punjab police charged NRI Jagpaljit Singh and three members of his family with the murder of his wife Manjit. Reason: Property The same month Haryana cops arrested California based Nitin Kumar on his wedding night. Reason: Dowry demands. Then there are thousands of holiday wives in Punjab’s Doaba region: women languishing in their parents’ homes after being abandoned by their NRI hus bands following a brief stay together. The problem, say experts, is that new immigrants often bring their social baggage with them. Lakshmi Aiyappa of US-based ASHA for Women says “in-law control and dowry” are contributing to the problem of domestic violence. Activist Ranjana Kumari points out that mindsets don’t change merely by changing countries. In-laws still expect their daughter-in-law to be subordinated and serving. “The newly wedded immigrant woman is more vulnerable because in a foreign country with a different culture, she doesn’ know where to go for help,” she says. A modicum of help, though, is on its way. Ear lier this year, the Ministry of Overseas Indian Affairs launched a scheme to provide financial and legal assistance to women deserted by NRI spouses. Some women’s organisations such as Asha for Women, Manavi and Sakhi have been em panelled with Indian missions abroad to offer help. The MOIA has also brought out a guidance booklet titled, ‘Marriage to Overseas Indians’ which outlines the dos and don’ts of marrying abroad But as the rising number of distress calls show, a lot more needs to be done. avijit.ghosh@timesgoup.com
Wednesday, December 12, 2007
Cash-for-warrant scam: SC seeks unconditional apology from channel
Express News Service
New Delhi, November 22: Three years after a news channel seeking to expose corruption in the lower judiciary carried out a sting operation, the Supreme Court on Thursday asked for “an unconditional apology” from the channel and the concerned reporter as it found the explanation given by them unconvincing.“We are not satisfied with your affidavit,” remarked a bench headed by Chief Justice K G Balakrishnan which further questioned the credentials of the reporter in question. “You have given bribe to lawyers, this is not a bonafide act,” the Court said.
In 2004, the TV channel — Zee News — through their reporter Vijay Shekhar, carried out a sting operation which showed how fake bailable warrants could be procured against any person in consideration of hefty amount paid to the court. The sting operation had shown four such bailable warrants being procured from a local court in Gujarat in the name of the then President A P J Abdul Kalam, the then Chief Justice of India Justice V N Khare, a Supreme Court Judge Justice B P Singh and a senior advocate.
The “expose” sought to bring to light how fake warrants are easily managed by giving bribes. The Court, which refused to grant another date for the matter as senior advocate Harish Salve appearing for the channel was not available, went on to say: “You have committed a serious offence. You must tender an unconditional apology.” The Bench, also comprising Justices R V Raveendran and J M Panchal remarked: “Everyone in the country feels that any case can be filed by anyone.”
The matter will now be taken up after four weeks.
Earlier too, in the previous hearing on July 26, the CJI had strongly observed that the expose caused a disrepute to the image of judiciary. The court had issued notices to the reporter and the channel to be served through CBI. It had sought to know why action should not be taken against the channel and the reporter. “We are strongly of the view that the person should be prosecuted,” the bench had noted.
New Delhi, November 22: Three years after a news channel seeking to expose corruption in the lower judiciary carried out a sting operation, the Supreme Court on Thursday asked for “an unconditional apology” from the channel and the concerned reporter as it found the explanation given by them unconvincing.“We are not satisfied with your affidavit,” remarked a bench headed by Chief Justice K G Balakrishnan which further questioned the credentials of the reporter in question. “You have given bribe to lawyers, this is not a bonafide act,” the Court said.
In 2004, the TV channel — Zee News — through their reporter Vijay Shekhar, carried out a sting operation which showed how fake bailable warrants could be procured against any person in consideration of hefty amount paid to the court. The sting operation had shown four such bailable warrants being procured from a local court in Gujarat in the name of the then President A P J Abdul Kalam, the then Chief Justice of India Justice V N Khare, a Supreme Court Judge Justice B P Singh and a senior advocate.
The “expose” sought to bring to light how fake warrants are easily managed by giving bribes. The Court, which refused to grant another date for the matter as senior advocate Harish Salve appearing for the channel was not available, went on to say: “You have committed a serious offence. You must tender an unconditional apology.” The Bench, also comprising Justices R V Raveendran and J M Panchal remarked: “Everyone in the country feels that any case can be filed by anyone.”
The matter will now be taken up after four weeks.
Earlier too, in the previous hearing on July 26, the CJI had strongly observed that the expose caused a disrepute to the image of judiciary. The court had issued notices to the reporter and the channel to be served through CBI. It had sought to know why action should not be taken against the channel and the reporter. “We are strongly of the view that the person should be prosecuted,” the bench had noted.
All the president’s persons
Today in India, two races are afoot. The first is the race between a creative society, a society that shows much energy and is surging upwards on the one hand, and on the other, the scaffolding of the state which is being hollowed by termites. The second is the race between those who are making the new India — primarily, the entrepreneurs and middle class professionals — and the political class that is stoking the old India — for instance, by pumping in the poison of caste — to keep itself in business.
If things are just left to proceed at will, the outcome may go either way: a dynamic economy and those forging it may be so hobbled by the worsening of governance that they may put enough pressure on the political class to mend its ways, to improve governance or let governance deteriorate to such an extent that Bihar and UP are generalised, and economic growth is once again pulled down.
Why is it that, to take the obvious contrast, in industry new leaders are emerging by the year, leaders who are doing better and more innovative things; but in public life second-raters are giving way to third-raters, politicians are giving way to politicians dependent on criminals, and the latter to criminals-who-have-become-politicians?
Why is it that while our entrepreneurs are venturing into newer and newer fields, that while they are registering conquests in more and more distant countries, that while they are thinking and planning farther into the future and transforming their operations today so that they may outdo the world in the distant future, why is it that while in one sphere we see these features, in the other sphere, our politicians are stoking ever narrower sections, why is their horizon becoming shorter and shorter?
This brief book is about features in the structure of the ‘parliamentary system’ — actually, that should be ‘in the structure of what we have made of the parliamentary system’ — which hurtle us into the kind of politics that we see today, which steer power into the hands of the sorts of politicians we see today. And about the structure that we may adopt as an alternative.One structure will induce conduct of one kind; another structure will make some other type of conduct more profitable. Our tax system of the 1950s and 1960s, with its extortionate taxes, ensured neither higher revenues nor equality. It fanned the black economy. As the rates have been lowered, compliance has improved. Similarly, under the licence-quota raj, knowing the technology or the markets was not a fraction as important as knowing the minister for commerce and industries, and the civil servants in the DGTD and the Office of the Controller of Imports and Exports — yes, exports too; even to export something you had made and earn the foreign exchange the country so desperately needed, you needed permission which only these worthies could give. That structure induced one kind of effort, it brought one kind of entrepreneur to the top — the one whose core competence lay in his ability to manipulate the state apparatus. As that structure has been dismantled, we see an entirely different kind of conduct among our entrepreneurs, we see an entirely new type of entrepreneur rise to the top.
Pluck, as an example, a proposal that figures later in the book. We lament the fact that today elections are greatly influenced by the money that a candidate can deploy, by the castes that he can work up. We dread the advantage that dons now have over ordinary candidates because they have a network of criminals that they can mobilise. Suppose we dispensed with elections altogether, and instead selected legislators by lottery. That ‘X’ can throw out more money; that he is from one caste rather than another; that he has a whole posse of criminals to do his work — none of these ‘strengths’ would improve his chances. The influence of money/caste/criminality would be erased.
So, structures do affect the outcome. They do affect conduct. And therefore, the fact that there is no structure that cannot be perverted should not deter us from exploring alternatives.
The conclusions that this brief review urges are:
• The key problem today is that the parliamentary system and the electoral system from which it springs are fragmenting the electorate on the one hand and, on the other, are not yielding persons who have the competence, integrity and dedication to govern a billion people;
• Our legislatures, thus, are the root of the problems we face in governance today;
• Accordingly, we should find ways to reduce the role and influence of legislatures;
• Correspondingly, we should devise ways which improve the chances of getting a better type to man the executive;
• Thereafter, we should tilt the balance away from legislatures towards the executive;
• We should seek to secure accountability through institutions other than legislatures;
• In particular, we should strengthen the powers and role of the judiciary
The alternative
The two basic elements we need are: an effective — that is, a strong and competent — executive, especially at the Centre, and a continuing sense of belonging among the population at large, a feeling that the system of governance is responsive. For achieving these twin objectives, we should, on the one hand, weaken the link between the executive and the legislature, and on the other, strengthen the local government.
To ensure the first of these objectives, two features in the Constitution should be recast to provide:
• The head of the executive, the president, is directly elected
• He is free to select as his ministers persons from within or outside the legislature
The term of the president should be five years. A person should be able to be president for a maximum of two terms.
The president must be elected by more than 50 per cent of the electorate. As many candidates as are qualified for the presidency and want to contest may do so. In case one of them gets the votes of more than 50 per cent of the electorate, she or he becomes president. If no one does, the election is held again, as in France, within a fortnight, and only the two who have scored the highest number of votes are allowed to stand in the second round. (Were it not for the fact that many of our voters may find it difficult to indicate preferences, one way to ‘economise’ is to have not a second round but to make provision for it, so to say, in the first round itself. Instead of the second ballot, voters can be asked to indicate a 1st, 2nd, 3rd, and so on, preference against the name of each candidate. If in the 1st round of counting a candidate wins more than 50 per cent of the votes, she is declared elected. If not, the candidate polling the lowest number of 1st preferences is eliminated; the second preferences of the voters who voted for him are then assigned to the other candidates — till one of them gets more than 50 per cent.
It should not be possible to remove the president except by impeachment, and that on specified grounds. In other words there should be no equivalent of the current ‘vote of confidence’.
The president may select anyone from outside or within the legislature to be his minister. Any member of a legislature who has been chosen to be a minister must resign his seat. She or he may attend sessions of the legislature, and participate in the debates. But he or she shall not vote on any measure on which the legislature is voting.
‘But how can we let outsiders participate in the proceedings of the House? An outsider cannot even enter the lobby.’ Such a reaction is yet another example of what the management experts call IRI — the Instant Rejection Instinct, a reaction by which we exempt ourselves from thinking or doing anything. Ministers are today appointed from both Houses. Ministers who happen to be members of one House participate as fully in the proceedings of the other House as ministers who happen to be members of the latter. They answer questions, they participate in debates but they do not vote in the House, of which they are not members. The most vivid example of today is the prime minister. He is a member of the Rajya Sabha. In that sense, he is an ‘outsider’ to the Lok Sabha. Does he not participate fully in the proceedings of the Lok Sabha? But does he vote there?
‘The Parliamentary System: What we have made of it, what we can make of it’ By Arun Shourie ASA/Rupa & Co, Rs 495
If things are just left to proceed at will, the outcome may go either way: a dynamic economy and those forging it may be so hobbled by the worsening of governance that they may put enough pressure on the political class to mend its ways, to improve governance or let governance deteriorate to such an extent that Bihar and UP are generalised, and economic growth is once again pulled down.
Why is it that, to take the obvious contrast, in industry new leaders are emerging by the year, leaders who are doing better and more innovative things; but in public life second-raters are giving way to third-raters, politicians are giving way to politicians dependent on criminals, and the latter to criminals-who-have-become-politicians?
Why is it that while our entrepreneurs are venturing into newer and newer fields, that while they are registering conquests in more and more distant countries, that while they are thinking and planning farther into the future and transforming their operations today so that they may outdo the world in the distant future, why is it that while in one sphere we see these features, in the other sphere, our politicians are stoking ever narrower sections, why is their horizon becoming shorter and shorter?
This brief book is about features in the structure of the ‘parliamentary system’ — actually, that should be ‘in the structure of what we have made of the parliamentary system’ — which hurtle us into the kind of politics that we see today, which steer power into the hands of the sorts of politicians we see today. And about the structure that we may adopt as an alternative.One structure will induce conduct of one kind; another structure will make some other type of conduct more profitable. Our tax system of the 1950s and 1960s, with its extortionate taxes, ensured neither higher revenues nor equality. It fanned the black economy. As the rates have been lowered, compliance has improved. Similarly, under the licence-quota raj, knowing the technology or the markets was not a fraction as important as knowing the minister for commerce and industries, and the civil servants in the DGTD and the Office of the Controller of Imports and Exports — yes, exports too; even to export something you had made and earn the foreign exchange the country so desperately needed, you needed permission which only these worthies could give. That structure induced one kind of effort, it brought one kind of entrepreneur to the top — the one whose core competence lay in his ability to manipulate the state apparatus. As that structure has been dismantled, we see an entirely different kind of conduct among our entrepreneurs, we see an entirely new type of entrepreneur rise to the top.
Pluck, as an example, a proposal that figures later in the book. We lament the fact that today elections are greatly influenced by the money that a candidate can deploy, by the castes that he can work up. We dread the advantage that dons now have over ordinary candidates because they have a network of criminals that they can mobilise. Suppose we dispensed with elections altogether, and instead selected legislators by lottery. That ‘X’ can throw out more money; that he is from one caste rather than another; that he has a whole posse of criminals to do his work — none of these ‘strengths’ would improve his chances. The influence of money/caste/criminality would be erased.
So, structures do affect the outcome. They do affect conduct. And therefore, the fact that there is no structure that cannot be perverted should not deter us from exploring alternatives.
The conclusions that this brief review urges are:
• The key problem today is that the parliamentary system and the electoral system from which it springs are fragmenting the electorate on the one hand and, on the other, are not yielding persons who have the competence, integrity and dedication to govern a billion people;
• Our legislatures, thus, are the root of the problems we face in governance today;
• Accordingly, we should find ways to reduce the role and influence of legislatures;
• Correspondingly, we should devise ways which improve the chances of getting a better type to man the executive;
• Thereafter, we should tilt the balance away from legislatures towards the executive;
• We should seek to secure accountability through institutions other than legislatures;
• In particular, we should strengthen the powers and role of the judiciary
The alternative
The two basic elements we need are: an effective — that is, a strong and competent — executive, especially at the Centre, and a continuing sense of belonging among the population at large, a feeling that the system of governance is responsive. For achieving these twin objectives, we should, on the one hand, weaken the link between the executive and the legislature, and on the other, strengthen the local government.
To ensure the first of these objectives, two features in the Constitution should be recast to provide:
• The head of the executive, the president, is directly elected
• He is free to select as his ministers persons from within or outside the legislature
The term of the president should be five years. A person should be able to be president for a maximum of two terms.
The president must be elected by more than 50 per cent of the electorate. As many candidates as are qualified for the presidency and want to contest may do so. In case one of them gets the votes of more than 50 per cent of the electorate, she or he becomes president. If no one does, the election is held again, as in France, within a fortnight, and only the two who have scored the highest number of votes are allowed to stand in the second round. (Were it not for the fact that many of our voters may find it difficult to indicate preferences, one way to ‘economise’ is to have not a second round but to make provision for it, so to say, in the first round itself. Instead of the second ballot, voters can be asked to indicate a 1st, 2nd, 3rd, and so on, preference against the name of each candidate. If in the 1st round of counting a candidate wins more than 50 per cent of the votes, she is declared elected. If not, the candidate polling the lowest number of 1st preferences is eliminated; the second preferences of the voters who voted for him are then assigned to the other candidates — till one of them gets more than 50 per cent.
It should not be possible to remove the president except by impeachment, and that on specified grounds. In other words there should be no equivalent of the current ‘vote of confidence’.
The president may select anyone from outside or within the legislature to be his minister. Any member of a legislature who has been chosen to be a minister must resign his seat. She or he may attend sessions of the legislature, and participate in the debates. But he or she shall not vote on any measure on which the legislature is voting.
‘But how can we let outsiders participate in the proceedings of the House? An outsider cannot even enter the lobby.’ Such a reaction is yet another example of what the management experts call IRI — the Instant Rejection Instinct, a reaction by which we exempt ourselves from thinking or doing anything. Ministers are today appointed from both Houses. Ministers who happen to be members of one House participate as fully in the proceedings of the other House as ministers who happen to be members of the latter. They answer questions, they participate in debates but they do not vote in the House, of which they are not members. The most vivid example of today is the prime minister. He is a member of the Rajya Sabha. In that sense, he is an ‘outsider’ to the Lok Sabha. Does he not participate fully in the proceedings of the Lok Sabha? But does he vote there?
‘The Parliamentary System: What we have made of it, what we can make of it’ By Arun Shourie ASA/Rupa & Co, Rs 495
Cash-for-warrant scam: SC seeks unconditional apology from channel
Express News Service
New Delhi, November 22: Three years after a news channel seeking to expose corruption in the lower judiciary carried out a sting operation, the Supreme Court on Thursday asked for “an unconditional apology” from the channel and the concerned reporter as it found the explanation given by them unconvincing.“We are not satisfied with your affidavit,” remarked a bench headed by Chief Justice K G Balakrishnan which further questioned the credentials of the reporter in question. “You have given bribe to lawyers, this is not a bonafide act,” the Court said.
In 2004, the TV channel — Zee News — through their reporter Vijay Shekhar, carried out a sting operation which showed how fake bailable warrants could be procured against any person in consideration of hefty amount paid to the court. The sting operation had shown four such bailable warrants being procured from a local court in Gujarat in the name of the then President A P J Abdul Kalam, the then Chief Justice of India Justice V N Khare, a Supreme Court Judge Justice B P Singh and a senior advocate.
The “expose” sought to bring to light how fake warrants are easily managed by giving bribes. The Court, which refused to grant another date for the matter as senior advocate Harish Salve appearing for the channel was not available, went on to say: “You have committed a serious offence. You must tender an unconditional apology.” The Bench, also comprising Justices R V Raveendran and J M Panchal remarked: “Everyone in the country feels that any case can be filed by anyone.”
The matter will now be taken up after four weeks.
Earlier too, in the previous hearing on July 26, the CJI had strongly observed that the expose caused a disrepute to the image of judiciary. The court had issued notices to the reporter and the channel to be served through CBI. It had sought to know why action should not be taken against the channel and the reporter. “We are strongly of the view that the person should be prosecuted,” the bench had noted.
New Delhi, November 22: Three years after a news channel seeking to expose corruption in the lower judiciary carried out a sting operation, the Supreme Court on Thursday asked for “an unconditional apology” from the channel and the concerned reporter as it found the explanation given by them unconvincing.“We are not satisfied with your affidavit,” remarked a bench headed by Chief Justice K G Balakrishnan which further questioned the credentials of the reporter in question. “You have given bribe to lawyers, this is not a bonafide act,” the Court said.
In 2004, the TV channel — Zee News — through their reporter Vijay Shekhar, carried out a sting operation which showed how fake bailable warrants could be procured against any person in consideration of hefty amount paid to the court. The sting operation had shown four such bailable warrants being procured from a local court in Gujarat in the name of the then President A P J Abdul Kalam, the then Chief Justice of India Justice V N Khare, a Supreme Court Judge Justice B P Singh and a senior advocate.
The “expose” sought to bring to light how fake warrants are easily managed by giving bribes. The Court, which refused to grant another date for the matter as senior advocate Harish Salve appearing for the channel was not available, went on to say: “You have committed a serious offence. You must tender an unconditional apology.” The Bench, also comprising Justices R V Raveendran and J M Panchal remarked: “Everyone in the country feels that any case can be filed by anyone.”
The matter will now be taken up after four weeks.
Earlier too, in the previous hearing on July 26, the CJI had strongly observed that the expose caused a disrepute to the image of judiciary. The court had issued notices to the reporter and the channel to be served through CBI. It had sought to know why action should not be taken against the channel and the reporter. “We are strongly of the view that the person should be prosecuted,” the bench had noted.
We will curb corruption in judiciary with an iron fist: CJI
Press Trust Of IndiaNew Delhi, November 26: Chief Justice of India Justice K G Balakrishnan on Monday vowed to curb corruption in the judiciary with an “iron fist” and sought the help of legal fraternity by becoming “whistle-blowers” to expose acts of misdeeds.Justice Balakrishnan also squarely blamed the Government for the huge pendency of cases in the country and raised a question whether administration of justice was not an essential part of planned development deserving priority attention of state governments and Planning Commission.
The Chief Justice made these remarks in his address to mark the annual Law Day celebrations at the Supreme Court.
Admitting that corruption in the judiciary was highly talked about in recent times, the Chief Justice said that for every corrupt judge, there existed the inevitable corruptors in the form of lawyers, litigants, trustees, receivers, ministerial staff and touts.
“Most are officers of the court and are bound by the same ethical and moral standards as judges. Thus they have an affirmative whistle-blowing function to report incidents of others violating rules of ethics,” Justice Balakrishnan said.
“A single judicial scandal can shake the confidence of the public in the whole judicial system. Corruption deserves to be curbed with an iron fist, whenever, it is detected and ascertained beyond doubt,” he added.
He regretted that though in 2002, the apex court had directed the Government to increase by five-fold the judges' strength in the Supreme Court and High Courts for rendering quick justice to the common man, the necessary action had not been forthcoming.
The Chief Justice made these remarks in his address to mark the annual Law Day celebrations at the Supreme Court.
Admitting that corruption in the judiciary was highly talked about in recent times, the Chief Justice said that for every corrupt judge, there existed the inevitable corruptors in the form of lawyers, litigants, trustees, receivers, ministerial staff and touts.
“Most are officers of the court and are bound by the same ethical and moral standards as judges. Thus they have an affirmative whistle-blowing function to report incidents of others violating rules of ethics,” Justice Balakrishnan said.
“A single judicial scandal can shake the confidence of the public in the whole judicial system. Corruption deserves to be curbed with an iron fist, whenever, it is detected and ascertained beyond doubt,” he added.
He regretted that though in 2002, the apex court had directed the Government to increase by five-fold the judges' strength in the Supreme Court and High Courts for rendering quick justice to the common man, the necessary action had not been forthcoming.
Ex-CJI: Judges should not be exempted from declaring their assets
Express News ServiceNew Delhi, November 15: Favouring accountability at all levels of judiciary, former Chief Justice of India Justice J S Verma has said the judges should not be exempted from declaring their assets. Reacting sharply to some High Court judges’ opposition to the move on declaration of assets, Justice Verma said the government should go ahead with the Judges (Inquiry) Bill 2006 which has such a proposal.“Transparency and accountability must attach the functioning of everyone who wields public power. Judges are as much accountable in a democracy as anyone else...judges should be no exception,” the former CJI said in a television interview.
“I am surprised...it should not have happened,” he said on the judges’ opposition, adding that he considered it a wrong move on their part.
“I am surprised...it should not have happened,” he said on the judges’ opposition, adding that he considered it a wrong move on their part.
Tuesday, December 11, 2007
SC loud and clear: activism hurts us, do not over-reach
SC loud and clear: activism hurts us, do not over-reach
Tannu SharmaCaution: ‘If legislature, executive don’t work, it’s for people to correct it via vote’ NEW DELHI, DECEMBER 10: In the strongest censure of itself in recent times, the Supreme Court, admitting that judicial activism is disturbing the “delicate” balance of powers “enshrined” in the Constitution, has sent an unequivocal message to the judiciary: restrain yourselfAnd has even gone to the extent of questioning a slew of recent orders by the Delhi High Court — on several issues from demolitions to nursery admissions — calling them “illegal.”
“Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State — the legislature, the executive and the judiciary — must have respect for the others and not encroach into each other’s domain,” said a bench comprising Justices A K Mathur and Markandeya Katju today.
Pointing to orders passed on subjects like identifying buildings to be demolished, legality of constructions in Delhi, nursery admissions, number of free beds in hospitals on government land and several other decisions, it held that the Courts have “apparently, if not clearly, strayed into the executive domain or in matters of policy.”
“In our opinion these were matters pertaining exclusively to the executive or legislative domain. If there is a law, judges can certainly enforce it but judges cannot create a law and seek to enforce it,” the bench said.
“The judiciary should only act as alarm bell, it should ensure that executive has become alive to perform its duties,” the bench said adding that it was unwilling to accept the “justification” given for judicial encroachment — that the other two organs are not doing their jobs properly. “Even assuming if this is so, the same allegation can be made against the judiciary too because there are cases pending in courts for half a century,” it said.
“The remedy is not in the judiciary taking over the legislative or executive functions, because that will only violate the delicate balance of power enshrined in the Constitution but also the judiciary has neither the expertise nor the resources to perform these function,” it said. “If the legislature or the executive are not functioning properly, it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfil their expectations...The remedy is not the judiciary taking over the legislative or executive functions, because that will not only violate the delicate balance of power enshrined in the Constitution, but also the judiciary has neither the expertise nor the resources to perform these functions.”
These remarks came as the apex court set aside a decision of the Punjab and Haryana high court wherein it had directed creating a post of tractor-driver and then regularizing an employee, who had been working as mali (gardener) in the Aravali Golf Club. The High Court had argued that since the services of a mali were also being used as a driver, there must be a suitable post against which he could then be regularized.
“Courts cannot direct creation of posts,” the judges said. “Creation and sanction of posts is a prerogative of the executive or legislative authorities and the courts cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation.”
Taking a strong view of the limits of the powers of the judiciary, the judges observed, “W are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions.” Terming such orders as “unconstitutional”, the court significantly held, “In the name of judicial activism, judges cannot cross their limits and try to take over functions which belong to another organ of the State.”
In a virtual echo of former Chief Justice J S Verma’s observations on the limits of judicial power, the bench said: “They (the courts) must remember that judicial activism is not an unguided missile — failure to bear this in mind would lead to chaos...With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint.”
To ensure that the sanctity and credibility of the judicial process were preserved, the apex court said: “Public adulation must not sway the judges and personal aggrandizement must be eschewed. “ It underlined, “With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint.”
“The moral of this story,” the judges said, “is that if the judiciary does not exercise restraint and over-stretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers or even the independence of the judiciary...Therefore it should confine itself to its proper sphere, realizing that in a democracy, many matters and controversies are best resolved in non-judicial setting.”
Is the Delhi High Court listening?
The courts have “apparently, if not clearly, strayed into the executive domain or in matters of policy,” said the apex court as it cited the following orders of the Delhi High Court:
• Legality of constructions in Delhi
• Identifying buildings to be demolished
• Age and other criterion for nursery admissions
• Unauthorised schools
• Criterion for free seats in hospitals on public land
• Use and misuse of ambulances
• Requirements for establishing a world class Burns Ward in a hospital
• Air Delhiites breathe
• Begging in public
• Use of subways
• Nature of buses we board
• Size of speedbreakers on Delhi roads
• Autorickshaws overcharging
• Accidents and enhancing fines
Tannu SharmaCaution: ‘If legislature, executive don’t work, it’s for people to correct it via vote’ NEW DELHI, DECEMBER 10: In the strongest censure of itself in recent times, the Supreme Court, admitting that judicial activism is disturbing the “delicate” balance of powers “enshrined” in the Constitution, has sent an unequivocal message to the judiciary: restrain yourselfAnd has even gone to the extent of questioning a slew of recent orders by the Delhi High Court — on several issues from demolitions to nursery admissions — calling them “illegal.”
“Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State — the legislature, the executive and the judiciary — must have respect for the others and not encroach into each other’s domain,” said a bench comprising Justices A K Mathur and Markandeya Katju today.
Pointing to orders passed on subjects like identifying buildings to be demolished, legality of constructions in Delhi, nursery admissions, number of free beds in hospitals on government land and several other decisions, it held that the Courts have “apparently, if not clearly, strayed into the executive domain or in matters of policy.”
“In our opinion these were matters pertaining exclusively to the executive or legislative domain. If there is a law, judges can certainly enforce it but judges cannot create a law and seek to enforce it,” the bench said.
“The judiciary should only act as alarm bell, it should ensure that executive has become alive to perform its duties,” the bench said adding that it was unwilling to accept the “justification” given for judicial encroachment — that the other two organs are not doing their jobs properly. “Even assuming if this is so, the same allegation can be made against the judiciary too because there are cases pending in courts for half a century,” it said.
“The remedy is not in the judiciary taking over the legislative or executive functions, because that will only violate the delicate balance of power enshrined in the Constitution but also the judiciary has neither the expertise nor the resources to perform these function,” it said. “If the legislature or the executive are not functioning properly, it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfil their expectations...The remedy is not the judiciary taking over the legislative or executive functions, because that will not only violate the delicate balance of power enshrined in the Constitution, but also the judiciary has neither the expertise nor the resources to perform these functions.”
These remarks came as the apex court set aside a decision of the Punjab and Haryana high court wherein it had directed creating a post of tractor-driver and then regularizing an employee, who had been working as mali (gardener) in the Aravali Golf Club. The High Court had argued that since the services of a mali were also being used as a driver, there must be a suitable post against which he could then be regularized.
“Courts cannot direct creation of posts,” the judges said. “Creation and sanction of posts is a prerogative of the executive or legislative authorities and the courts cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation.”
Taking a strong view of the limits of the powers of the judiciary, the judges observed, “W are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions.” Terming such orders as “unconstitutional”, the court significantly held, “In the name of judicial activism, judges cannot cross their limits and try to take over functions which belong to another organ of the State.”
In a virtual echo of former Chief Justice J S Verma’s observations on the limits of judicial power, the bench said: “They (the courts) must remember that judicial activism is not an unguided missile — failure to bear this in mind would lead to chaos...With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint.”
To ensure that the sanctity and credibility of the judicial process were preserved, the apex court said: “Public adulation must not sway the judges and personal aggrandizement must be eschewed. “ It underlined, “With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint.”
“The moral of this story,” the judges said, “is that if the judiciary does not exercise restraint and over-stretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers or even the independence of the judiciary...Therefore it should confine itself to its proper sphere, realizing that in a democracy, many matters and controversies are best resolved in non-judicial setting.”
Is the Delhi High Court listening?
The courts have “apparently, if not clearly, strayed into the executive domain or in matters of policy,” said the apex court as it cited the following orders of the Delhi High Court:
• Legality of constructions in Delhi
• Identifying buildings to be demolished
• Age and other criterion for nursery admissions
• Unauthorised schools
• Criterion for free seats in hospitals on public land
• Use and misuse of ambulances
• Requirements for establishing a world class Burns Ward in a hospital
• Air Delhiites breathe
• Begging in public
• Use of subways
• Nature of buses we board
• Size of speedbreakers on Delhi roads
• Autorickshaws overcharging
• Accidents and enhancing fines
Babu need banging
Babus block RTI and get away with itTue, Dec 11, 2007 at 19:24, New Delhi: Bureaucrats are blocking RTI and they are not even being penalized for it.
There are files that have remained shut for years and will remain shut in the RTI office, because the babus don't want to give access to people with queries, despite the much hyped Right to Information Act. What is worse is that the Central Information Commission is not even penalizing them for it, ironically.
Documents available with CNN-IBN show it is the CIC, which is letting babus off the hook. The CIC is supposed to fine bureaucrats for failing to give information on legitimate RTI queries.
RTI Activist Shekher Singh, speaks on the issue, " There is a well known case of a particular information commissioner, who didn't impose penalty on a particular department because they said this was their first time, but when looked at all the records, one will find that there were seven orders that we gave to the same department, and each time it was quoted as their first time." The documents that have been received through the RTI application show that in the last two years, the CIC has ordered various government departments to provide information in nearly 7,000 cases but only 92 public information officers have been fined.
Chief Information Commissioner Wajahat Habibullah, says, " if the commissioner comes to the conclusion that there is no reasonable cause, then in that case he may not impose the penalty."
RTI Activist, Dev Ashish Bhattacharya says, "As per the act it is totally illegal, because no where is it mentioned in the act that CIC has been given any discretionary power to not impose the penalty, in those cases where CIC issues the award." The debatable issue is how much powers can the Central Information Commission exercise?
What seems to be is that the debate that will continue in time to come, but the fact remains that the babus in our country will wake up to the harsh realities of your Right to Information only when penalties will be imposed on them on a regular basis.
There are files that have remained shut for years and will remain shut in the RTI office, because the babus don't want to give access to people with queries, despite the much hyped Right to Information Act. What is worse is that the Central Information Commission is not even penalizing them for it, ironically.
Documents available with CNN-IBN show it is the CIC, which is letting babus off the hook. The CIC is supposed to fine bureaucrats for failing to give information on legitimate RTI queries.
RTI Activist Shekher Singh, speaks on the issue, " There is a well known case of a particular information commissioner, who didn't impose penalty on a particular department because they said this was their first time, but when looked at all the records, one will find that there were seven orders that we gave to the same department, and each time it was quoted as their first time." The documents that have been received through the RTI application show that in the last two years, the CIC has ordered various government departments to provide information in nearly 7,000 cases but only 92 public information officers have been fined.
Chief Information Commissioner Wajahat Habibullah, says, " if the commissioner comes to the conclusion that there is no reasonable cause, then in that case he may not impose the penalty."
RTI Activist, Dev Ashish Bhattacharya says, "As per the act it is totally illegal, because no where is it mentioned in the act that CIC has been given any discretionary power to not impose the penalty, in those cases where CIC issues the award." The debatable issue is how much powers can the Central Information Commission exercise?
What seems to be is that the debate that will continue in time to come, but the fact remains that the babus in our country will wake up to the harsh realities of your Right to Information only when penalties will be imposed on them on a regular basis.
denying the democracy
The People's Union for Civil Liberties (PUCL)- Chhattisgarh is sadly disappointed with the Order of the Hon'ble Supreme Court of India, which today rejected the Bail Application of Dr. Binayak Sen, General Secretary, Chhattisgarh PUCL, and Vice-President, National PUCL.Millions of patriotic citizens of Chhattisgarh, and hundreds and thousands of social and human rights activists all over the country were looking towards the Supreme Court for justice, which has not been done. The PUCL considers Bail as a right of an accused, rejection is an exception, as has already been spelt out in various historic and landmark judgments of the apex court of the country. By restraining an accused in the prison who is to be considered innocent till proved guilty by a court of law, is like denying him freedom to defend himself through fair and free methods available to an accused released on bail. Thus, it also amounts to discrimination over against others who are out on bail. Dr. Binayak Sen almost all conditions laid down by the apex court in the matter of Bail. Thus, it is not only disappointing but also strange that the Supreme Court did not consider this to be a fit case of granting bail.Chhattisgarh PUCL has issued this statement today while observing the Human Rights Day in Raipur which has also been declared this year to be observed in defence of the Defenders of Human Rights. Dr. Binayak Sen falls under this category of Defenders of Human Rights.The PUCL is contemplating taking further legal action after consulting legal luminaries in the PUCL, and also carrying out a concerted campaign in every nook and corner of Chhattisgarh demanding the repeal of the Chhattisgarh Special Public Security Act, 2005, and release of all citizens detained under this Black Law, including Dr. Binayak Sen. If need be, it would give a call to the peace loving and patriotic citizens of Chhattisgarh to go to Delhi to demonstrate and demand justice in this case.The CG-PUCL has raised the relevant question as to why was the State Government hiding behind the Black Laws, and that if the State Government had any evidence against Dr. Binayak Sen, why was it not taking recourse to legal action against the normal laws of the land like the Criminal Procedure Code and the IPC, etc.
Justice to all-distant dreams
India is a sovereign , repuplic and democratic country which ensures through its constitution the principle of equality to all its citizens (to some aspects non-citizens also) without any discrimination based on any adverse criteria. The preamble to the constitution envisages social, economic and political justice to all. But still even after fifty seven years of independence, the practical application of the principle of equality is not found to all the classes of people in the society because of their adverse socio-economic and geographical backgrounds. About 3/4 of the total population of our country are not aware of their constitutional and legal rights because of their ignorance, poverty and other disabilities. Consequently, although they often become the victims of different types of circumstances and exploitation cannot reach the door of justice for getting appropriate relief.
`Legal Aid' as a concept is not something new in our legal system. It is already therein in the preamble which is also known as the philosophy of the Indian constitution. However, a direct and visible provision i.e article 39-A was incorporated in the constitution (vide the Constitution 42nd Amendment act, 1976) which provides that the state shall secure the operation of the legal system to promote justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or scheme or in any other way, to ensure that opportunity for securing justice are not denied to any citizen by reason of economic or other disabilities.Apart from the above, there are statutory provisions under the Criminal Procedure Code and the Civil Procedure Code in this regard. Section 304 of the Criminal Procedure Code, 1973 provides for legal aid to the accused person at the state expenses in certain cases. According to this provision, a Court of Session will assign a pleader in favour of the accused who is unable to engage the same. Further, the State Government has the power to direct the application of this provision in relation to any class of cases before any other court in the state.
Order XXXIII of the C.P.C. as amended provides for filing of suits by indigent persons commonly known as pauper suit. Under this provision if a person does not have sufficient means to pay the prescribed fee for the plaint or if he is not entitled to property worth Rs. 1,000/- can make an application stating the facts and on this he is entitled to have a pleader on his behalf.
Legal aid makes great effort to ensure the solemn promise of the constitution to full legal aid in its letter and spirit and equal Justice to poor, and downtrodden class of the society. To this end, free legal aid and speedy trial have also been declared as fundamental rights under Article 21 of our constitution. In M.H.Hoskot Vs. State of Maharastra Air 1978 SC 1548 and Hussainara Khatoon Vs. Home Secretary, State of Bihar, Air 1979 SC 1369 the Hon'ble Supreme Court of India held that the State is under a duty to provide a lawyer to a poor person and it must pay to the lawyer his fees as prescribed by the court.
Perhaps, to honour the constitutional mandate and the observation of the Hon'ble Supreme Court of India in the above mentioned cases, the parliament of India, enacted the Legal Services Authorities Act 1989 (Act) to provide free legal services to eligible persons and for organizing `Lok Adalats' to secure quick justice at cheaper costs. The Act provides for a National Legal Services Authority at the centre, State Legal Services Authority at the State concerned and District Legal Services Authorities in each districts and they are in function. Section 12 of the Act reads as:-
Every person who has to file or defend a case shall be entitled to legal services under the Act if that person is-
(a) A member of scheduled caste or scheduled tribe. (b) A victim of trafficking in human being or beggar as referred to in Article 23 of the Constitution.(c) A woman or a child.(d) A mentally ill or other disable person.(e) A person under circumstances of undeserved want such as being a victim of mass disaster, ethnic violence, caste atrocity, and flood, drought or industrial disaster, or (f) An industrial workman, or(g) In custody, including in a protection home, or in a juvenile home or in a psychiatric nursing home. (h) A person whose annual income is less than Rs. 25,000/- (Rs. 50,000/- in respect of cases pending or to be filed before the Supreme court).
Apart from the benefit of legal aid, the Act provides for the amicable settlement of the disputes known as Lok Adalat, a praise worthy step to promote social justice. Upto 30th June, 2004 2,23,159 Lok Adalats have been held all over the country and therein 1,63,31,357 cases have been settled. More than 4751 crores of rupees were distributed by way of compensation. 66,73,240 persons have been benefited through Legal Aid Service.
In spite of all these efforts such as speedy and quality disposal by the regular courts and amicable settlements through Lok Adalats and Arbitration it is smelled that the people wants more quick and speedier justice. The problem can be focused in two ways : Firstly, the number of judges comparing to the people in our country are less than that ought to be. The law Commission in its 120th Report (1987) stated that the number of judges per million population in India was 10.5 (which is now said to have gone up between 12 and 13 per million) which is the lowest in the world. The Hon'ble Supreme court of India in the case of All India Judges Association (2002) 4 SCC 247 desired the number of judges to be increased to fifty per million in a phased manner. Besides, the allocation of fund during the Tenth Plan (2202-2007) is Rs. 700 crores which is 0.078 % of the total plan outlay of Rs. 8,93,183 crores. This being the actual position is it possible for the judiciary to take the responsibility of rendering justice to the poor Indians alone?
Secondly, majority of our common people are illiterate for which they are ignorant about their legal benefit. Some of them are under privileged due to political or biological factors. I am sure that there are so many provisions for free legal aid particularly in the Legal Services Authorities Act, 1987 is not known to those for whom the Act/s has been enacted. Therefore the Government must take appropriate step to create awareness among the people so that they can get the benefit of the scheme. The educational institutions particularly the Law Colleges, the lawyers, publicly spirited persons and the Non-Governmental Organization should come forward to take the burden for spreading the messages to the rural needy-downtrodden people. It should not be confined to the four corners of the cities and towns
`Legal Aid' as a concept is not something new in our legal system. It is already therein in the preamble which is also known as the philosophy of the Indian constitution. However, a direct and visible provision i.e article 39-A was incorporated in the constitution (vide the Constitution 42nd Amendment act, 1976) which provides that the state shall secure the operation of the legal system to promote justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or scheme or in any other way, to ensure that opportunity for securing justice are not denied to any citizen by reason of economic or other disabilities.Apart from the above, there are statutory provisions under the Criminal Procedure Code and the Civil Procedure Code in this regard. Section 304 of the Criminal Procedure Code, 1973 provides for legal aid to the accused person at the state expenses in certain cases. According to this provision, a Court of Session will assign a pleader in favour of the accused who is unable to engage the same. Further, the State Government has the power to direct the application of this provision in relation to any class of cases before any other court in the state.
Order XXXIII of the C.P.C. as amended provides for filing of suits by indigent persons commonly known as pauper suit. Under this provision if a person does not have sufficient means to pay the prescribed fee for the plaint or if he is not entitled to property worth Rs. 1,000/- can make an application stating the facts and on this he is entitled to have a pleader on his behalf.
Legal aid makes great effort to ensure the solemn promise of the constitution to full legal aid in its letter and spirit and equal Justice to poor, and downtrodden class of the society. To this end, free legal aid and speedy trial have also been declared as fundamental rights under Article 21 of our constitution. In M.H.Hoskot Vs. State of Maharastra Air 1978 SC 1548 and Hussainara Khatoon Vs. Home Secretary, State of Bihar, Air 1979 SC 1369 the Hon'ble Supreme Court of India held that the State is under a duty to provide a lawyer to a poor person and it must pay to the lawyer his fees as prescribed by the court.
Perhaps, to honour the constitutional mandate and the observation of the Hon'ble Supreme Court of India in the above mentioned cases, the parliament of India, enacted the Legal Services Authorities Act 1989 (Act) to provide free legal services to eligible persons and for organizing `Lok Adalats' to secure quick justice at cheaper costs. The Act provides for a National Legal Services Authority at the centre, State Legal Services Authority at the State concerned and District Legal Services Authorities in each districts and they are in function. Section 12 of the Act reads as:-
Every person who has to file or defend a case shall be entitled to legal services under the Act if that person is-
(a) A member of scheduled caste or scheduled tribe. (b) A victim of trafficking in human being or beggar as referred to in Article 23 of the Constitution.(c) A woman or a child.(d) A mentally ill or other disable person.(e) A person under circumstances of undeserved want such as being a victim of mass disaster, ethnic violence, caste atrocity, and flood, drought or industrial disaster, or (f) An industrial workman, or(g) In custody, including in a protection home, or in a juvenile home or in a psychiatric nursing home. (h) A person whose annual income is less than Rs. 25,000/- (Rs. 50,000/- in respect of cases pending or to be filed before the Supreme court).
Apart from the benefit of legal aid, the Act provides for the amicable settlement of the disputes known as Lok Adalat, a praise worthy step to promote social justice. Upto 30th June, 2004 2,23,159 Lok Adalats have been held all over the country and therein 1,63,31,357 cases have been settled. More than 4751 crores of rupees were distributed by way of compensation. 66,73,240 persons have been benefited through Legal Aid Service.
In spite of all these efforts such as speedy and quality disposal by the regular courts and amicable settlements through Lok Adalats and Arbitration it is smelled that the people wants more quick and speedier justice. The problem can be focused in two ways : Firstly, the number of judges comparing to the people in our country are less than that ought to be. The law Commission in its 120th Report (1987) stated that the number of judges per million population in India was 10.5 (which is now said to have gone up between 12 and 13 per million) which is the lowest in the world. The Hon'ble Supreme court of India in the case of All India Judges Association (2002) 4 SCC 247 desired the number of judges to be increased to fifty per million in a phased manner. Besides, the allocation of fund during the Tenth Plan (2202-2007) is Rs. 700 crores which is 0.078 % of the total plan outlay of Rs. 8,93,183 crores. This being the actual position is it possible for the judiciary to take the responsibility of rendering justice to the poor Indians alone?
Secondly, majority of our common people are illiterate for which they are ignorant about their legal benefit. Some of them are under privileged due to political or biological factors. I am sure that there are so many provisions for free legal aid particularly in the Legal Services Authorities Act, 1987 is not known to those for whom the Act/s has been enacted. Therefore the Government must take appropriate step to create awareness among the people so that they can get the benefit of the scheme. The educational institutions particularly the Law Colleges, the lawyers, publicly spirited persons and the Non-Governmental Organization should come forward to take the burden for spreading the messages to the rural needy-downtrodden people. It should not be confined to the four corners of the cities and towns
Tuesday, November 27, 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.
http://www.telegraphindia.com/1071127/asp/frontpage/story_8597904.asp
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.
http://www.telegraphindia.com/1071127/asp/frontpage/story_8597904.asp
Tuesday, November 20, 2007
PEOPLE'S WATCH
BIHAR
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 mynews.in
BIHAR
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 mynews.in
Farmer's Suicides & advice of chairman,commission for agricultural costs and prices
At farmers' meet, agricultural panel chief shoots from hip
AMRITA CHAUDHRYLUDHIANA
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."
AMRITA CHAUDHRYLUDHIANA
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, Salon.com, 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?!
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, Salon.com, 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
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.
Times of India
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
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.
The Times of India
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
India
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.
The Hindu
India
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.
Thursday, September 13, 2007
Land Mark- Lesson for fake encounter specialists
Cops Get Life Imprisonment in EtawahHaidar Naqvi, Hindustan TimesKanpur, September 11, 2007First Published: 21:34 IST(11/9/2007)Last Updated: 21:49 IST(11/9/2007)In a landmark decision, an Etawah court convicted 15 policemen andsentenced them rigorous life imprisonment for killing a physicallychallenged youth in a fake encounter way back in 1992.The policemen include three sub-inspectors, one of them retired, threeconstables of civil police and nine jawans of Provincial ArmedConstabulary (PAC). Special Judge (essential commodities act) RCSharma has slapped a fine of 5000 each on personnel from civil policeand 1000 each on PAC jawans.After the verdict was pronounced, the relatives of policemen wentberserk and assaulted relatives of victims thanking the Almightyjoyously, on court campus. One person Ashok Sharma was grievouslyinjured in the attack and the police have taken several persons intocustody.Those convicted by the court are Girwar Giri, sub-inspectors SaligramYadav, Jai Narayan Singh, constables Brijesh Kumar Yadav, Satosh Kumarand constable-driver Brij Mohan and 10 PAC jawans. One of the PACjawan died in course of trial and sub-inspector Saligram Yadav retiredfrom the police force and now is 67 years of age.They had gunned down 22-year-old Raj Narayan Tewari on January 28,1992 at outskirts of Dadra, a village nestled on banks of Chambalriver. Tewari's brother Ram Kumar Pandit was a dacoit and the MadhyaPradesh government had announced a cash reward of 50,000 on his head.The police team was headed by then station officer Chakar Nagar,Giriwar Giri who claimed to have had acted on specific information.But the police story boomranged when two eye witnesses came forth andspilled the beans. Even in the court they stood by their account and
"The witness Vijay Narayan and Seeta Ram had seen the policemen shooting Raj Narayan dead and later dumping his body in the Chambalr iver," said public prosecutor Vijay Narayan Singh Sengar. "The body was never found and the testimonies of two witness played the pivotal role in the decision. The findings of CD-CID inquiry were equally significant," Sengar told HT. The CB-CID inquiry was ordered a year after and the investigating officer Santosh Kumar Awasthi concluded the encounter as fake and recommended registration of murder and concealment of victim's body under section 302 and 201. During the trial, the police did not produce the general diary that contains day-to-day details about policemen's deed. And this was presumed as an act of concealment of evidence by the \u003cbr">court.
"The witness Vijay Narayan and Seeta Ram had seen the policemen shooting Raj Narayan dead and later dumping his body in the Chambalr iver," said public prosecutor Vijay Narayan Singh Sengar. "The body was never found and the testimonies of two witness played the pivotal role in the decision. The findings of CD-CID inquiry were equally significant," Sengar told HT. The CB-CID inquiry was ordered a year after and the investigating officer Santosh Kumar Awasthi concluded the encounter as fake and recommended registration of murder and concealment of victim's body under section 302 and 201. During the trial, the police did not produce the general diary that contains day-to-day details about policemen's deed. And this was presumed as an act of concealment of evidence by the \u003cbr">court.
Monday, August 06, 2007
Khaki Mafia Highjacking the judicial systems
Tragic decline of criminal jurisprudenceCops have been successful in cajoling the media to tout law as too lame to curb crime, or deal with hardened and tough criminals. Thus, the criminal justice system yielded, impatiently trying to achieve not only a higher rate of convictions but also negating past precedents set by the Supreme Court whereby persons accused by the police got a fair chance to prove their innocence. Now the legal protection of accused persons has all but disintegrated because of the higher judiciary's rulings that write off not only their own affirmations made in the past but also guarantees provided under the Constitution to protect an individual's life and liberty. Senior advocate Dhairyasheel Patil cites cases where the highest judiciary has gone against its earlier rulings as, for an example, in one shocking decision which overlooks torture of women accused as Dhairyasheel
he dismantling of the criminal law protection of the accused is said to have started about 15 years ago. It began with the perception within the judiciary at the highest levels that criminal law protection was too extensive and needed to be reviewed. It was fuelled in large part by the systematic campaign carried out by senior police officers who came on national television boldly berating the judiciary for taking a hyper technical human rights view, thus letting off criminals at the drop of the hat. The appearance of senior police officers on television right across the country was not accidental but part of a sinister conspiracy to destroy the criminal justice system by shaking the confidence of the higher judiciary in their own system. And to achieve this, policemen appealed to the public in prominent cases saying that while they have captured dreaded criminals and terrorists, the judiciary was letting them out on bail or acquitting them because of notions of fairness, ignoring the victims of theses crimes. The police often referred to the low rate of conviction in IPC cases presenting false information to the public on numerous TV programmes. The public was told that the rate of conviction was as low as 10 percent whereas in fact conviction in IPC cases was about 50 percent. It was often said that conviction in TADA cases was a mere five percent forgetting that the vast majority of TADA accused were kept as undertrials for five years or more before their trials began. Thus, even if they were ultimately acquitted, innocent persons spent at least five years incarcerated.Judges, of course, cannot come on prime time television pointing out that it was due to the appalling level of investigation of crimes and corruption in the investigation process, that acquittals take place. Thus, the ideological campaign ultimately had its intended effect. Judges were apparently embarrassed at the low rate of convictions. The public perception, not criminal justice, was uppermost in their minds. At some stage, the judiciary decided that it was necessary to push up the rate of convictions, come what may. This is how we have come to live in the decade of the dismantling of the criminal law protection of the accused. What matters is not criminal justice or criminal jurisprudence. What is most important is that people perceived as being criminals should be put behind bars, denied bail and given the stiffest possible sentence, perhaps even the death sentence. That a judge should entertain reasonable doubt as to the guilt of the accused now plays second fiddle. An overarching objective was to be achieved and that was to change the public's view of the judiciary in criminal trials and to clearly show that the courts were tough on criminals. That this objective could be achieved in another manner which would be in tune with the Constitution as well as protect the rights of the accused persons was never discussed. The constitutional law protection for accused persons was undermined in case after case in a hasty rush to change the common man's perceived view of the judiciary. Nobody bothered to introspect and ask the question as to whether the view perceived was a general one or one relating to the upper middle classes. The vast majority of the poor in any case see the criminal justice system as a great engine of oppression where torture is widespread and condoned by the judiciary and innocent people are roped in while rich get away scot-free. Ultimately, upper middle class opinion held sway and the agenda of the legal system was guided more by how the system would be portrayed in the media than by the desire to uphold constitutional values. It is often unpopular to uphold the Constitution particularly when it is implemented in respect of poor and working class people.
The dilution of criminal lawThe dilution of the criminal law was brought about in strange ways. First of all, the principle that precedents must be adhered to and that decisions of larger benches must be followed by smaller benches even if they disagree was departed from. Decisions of larger benches, even constitutional bench decisions were departed from on the grounds that such a view was "technical" or that the ratio of the larger bench was "only a rule of prudence" or "merely a rule of caution". But criminal law is, at its core, a set of technical rules and procedures that require a judge to be prudent and cautious and which lay down the path by which a judge is able to determine what constitutes reasonable doubt. Once these technical rules are discarded and a judge becomes imprudent and rash, the "beyond reasonable doubt" standard is thrown to the winds and a judge basically does what he likes. He is then able to convict or acquit on the basis of what he may find to be true in a subjective manner or on some sort of gut feeling. When such a development takes place, the rule of law goes into a tailspin. We have, indeed, set out on such dangerous course.
Judges cannot come on prime time TV pointing out that it was due to the appalling level of investigation of crimes and corruption in the investigation process, that acquittals take place
The obliteration of decades of binding precedents of coordinate benches and even larger benches of the Supreme Court takes place when a coordinate bench or a smaller bench side steps a binding precedent of the Supreme Court without referring the issue for determination to a larger bench. That decision then is followed in a series of cases. On being cited in case after case this effectively sets aside the earlier binding precedent.This is not to argue that reforms were not necessary. They certainly were. But for reforms a certain degree of transparency, consultation and deliberation is absolutely necessary. It is not upto individuals to take it upon themselves to depart from decades of well established law and procedure and bring about change in an arbitrary and ad hoc fashion. Nor is it permissible to bring about reforms that have the effect of undermining criminal law jurisprudence itself. Reform of the criminal justice system does not mean the dilution of standards and the lowering of the Bar. It means the raising of the standards of the police and the public prosecutors so that they are able to meet the high standards set by the Supreme Court through its earlier judgments. Sadly, things have proceeded in the opposite direction. It is assumed that the police and public prosecutors will continue to be inept and corrupt. The question then is posed of speeding up of the system and increasing the rate of convictions while assuming that the appallingly low level of investigations must necessarily remain the same. In doing so the judiciary has lost a marvellous opportunity to radically reform police investigations and has instead taken the high standards of criminal law jurisprudence down to the level of the police. And thereby a grave disservice is caused not only to accused persons but also to the public at large. They run the risk of facing indiscriminate arrests, prosecutions and convictions on ever increasing scale. Secondly, the police could read the clear signal to do business as usual. Whatever little desire there was, within the police force, to make the investigations of crimes a professional affair dissipated.Yet the Malimath Report on criminal justice reforms in India suggested precisely such a change. It came in for widespread criticism. Government of India rejected its recommendations. To change criminal law standards requires substantial amendments in the Criminal Procedure Code and the Indian Penal Code. The executive chose not to make such changes. But the legal system went ahead nevertheless bringing about sweeping changes.
Policemen as panchasIn G Srinivas Goud vs State of AP 2005(8) SCC 183 a two-judge bench of the Supreme Court held that "there is no bar in law for a policeman to act as a panch witness".
Sealing not done on the spotIn State of Maharastra vs BC Raghani 2001(9) SCC 1 the Supreme Court held that it was unnecessary to "make a mountain out of a molehill" merely because the seized weapons were not sealed on the spot and were subsequently displayed at a press conference. "We are of the opinion that the trial court adopted a technical approach in appreciating the factum of recovery of weapons" and wrongly held that the evidence relating to the seizure will have to be totally kept aside, the Supreme Court held.The Constitutional Bench decision in the case of Kartar Singh versus State of Punjab 1994(3) SCC 569, not followed by smaller Benches of the Supreme Court thereafter
In Kartar Singh's case, the Supreme Court abdicated doing its duty as a Constitutional Court and was more concerned with executive issues presented in an exaggerated and one-sided fashion. Whereas the executive is concerned with the issue of terrorism per se and is not concerned with balance between terrorist acts on the one hand and the protection of the human rights of accused persons on the other hand, the Supreme Court is concerned precisely with this balance. Para 21 to 23 of the decision and subsequent paragraphs as well are couched in intemperate language more suitable for politicians rather than judges. In Para 83 of the judgment the Supreme Court concludes that the provisions of TADA including the provision for the setting up of designated courts "all postulate the concept of speedy trial in spirit under TADA". Immediately thereafter in Para 85 the Court admits, "In fact, lot of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay".Referring to Section 15 of TADA which made certain confessions made to police officers admissible in evidence, the Supreme Court held in Para 254:"In view of the legal position vesting authority on higher police officer to record the confession hitherto enjoyed by the judicial officer in the normal procedure, we state that there should be no breach of procedure and the accepted norms of recording the confession which should reflect only the true and voluntary statement…"(Page 680)
The Court came to the conclusion even though the court was aware of the fact that torture was widespread in India, the Court observed:"… we cannot avoid but saying that we - with the years of experience both at the Bar and on the Bench - have frequently dealt with cases of atrocity and brutality practised by some overzealous police officers resorting to inhuman, barbaric, archaic and drastic methods of treating the suspects in their anxiety to collect evidence by hook or by crook and wrenching a decision in their favour. We remorsefully like to state that on a few occasions even custodial deaths caused during interrogation are brought to our notice. We are very much distressed and deeply concerned about the oppressive behaviour and the most degrading and despicable practice adopted by some of the police officers." (page 679)"It is heart-rending to note that day in and day out we come across with the news of blood-curdling incidents of police brutality and atrocities, alleged to have been committed, in utter disregard and in all breaches of humanitarian law and universal human rights as well as in total negation of the constitutional guarantees and human decency." (Page 711)
Now if this is the situation in India, namely, that torture is the principle forensic tool of the police and is extensively used, and as a result confessions to a police officer have never been held to be admissible right through the British period and upto the enactment of TADA, what was the evidence before the Supreme Court on the basis of which they could conclude that it would be legitimate to repose faith in senior police officers because they would be less inclined to use torture? In fact, there was no such evidence. The Supreme Court concluded that confessions made to senior police officers were admissible based on no evidence at all to justify the departure from a rule of law and practice that govern criminal trials for over 100 years. There was also no evidence before Supreme Court that the police practice of torture had declined in any manner. In fact, a perusal of decisions of the Supreme Court could possibly indicate precisely the opposite i.e. an increasing use of torture by the police during investigation of crimes, as manifested in custodial violence cases.The Supreme Court also concluded that a confession made by a person before a police officer is also admissible against the co-accused. Refer to Sukhmant Singh v/s State-2003 AllMR (CR) 2365.
... day in and day out we come across with the news of blood-curdling incidents of police brutality and atrocities, ... in all breaches of humanitarian law and universal human rights as well as in total negation of the constitutional guarantees and human decency
Rule 15 of the Terrorists and Disruptive Activities (Prevention) Rules, 1987 lays down in detail how confessions are to be taken and recorded. In particular the rule requires the police officer to make a certificate in writing to the effect that the confession was taken in his presence and the record contains a full and true account of the confession and that it was voluntarily made. Referring to the Acts and Rules regarding confessions the Supreme Court held, "we strongly feel that there must be some severe safeguards which should be scrupulously observed while recording a confession". We will now show how, in the following cases smaller benches of the Supreme Court disregarded the directives of the Constitutional Bench and held that the safeguards and the guidelines are directory and not mandatory.A digression at this point is in order. Despite the binding decision of the Constitution Bench in Kartar Singh's case above mentioned, in Jameel Ahmed versus state of Rajasthan - 2003(9) SCC 673 - a two judge Bench of the Supreme Court without reference to the observations of the Constitutional Bench above mentioned held as under:"Rule 15(5) does not ascribe any role to the CMM or the CJM of either perusing the said statement or making any endorsement or applying his mind to these statements. It merely converts the said courts into a post office for further transmission to the Designated Court concerned, therefore, the object of the rule is to see that the statement recorded under Section 15 of the Act leaves the custody of the recorder of the statement at the earliest so that the statement has a safer probative value. In our opinion, transmission of the recorded confessional statement under Section 15 of the Act to the CMM or the CJM under Rule 15(5) is only directory and not mandatory." (Page 688)
Going back to Kartar Singh's case, the Supreme Court then rejected the argument that it would be improper to empower the Executive Magistrates to record confessions under Section 15 of TADA, since they cannot be expected to have judicial integrity and independence.Justice K Ramaswamy made an extraordinary dissent. Referring to section 25 of the Evidence Act which excluded confessions made to the police as evidence he said that it "rests upon the principle that it is dangerous to depend upon a confession made to a police officer which cannot extricate itself from the suspicion that it might have been produced by the exercise of coercion." (page 724).
Justice Ramaswamy held: "While the Code and Evidence Act seek to avoid inherent suspicion of a police officer obtaining confession from the accused, does the same dust not cloud the vision of superior police officer? Does such a procedure not shock the conscience of a conscientious man and smell of unfairness? Would it be just and fair to entrust the same duty by employing non obstante clause Section 15(1)? Whether mere incantation by employing non-obstante clause cures the vice of afore enumeration and becomes valid under Articles 14 and 21? My answer is "NO", "absolute no, no". The constitutional human rights perspectives projected hereinbefore; the history of working of the relevant provisions in the Evidence Act and the wisdom behind Section 164 of the Code ignites inherent invalidity of sub-section (1) of Section 15 and the court would little afford to turn Nelson's blind eye to the above scenario and blissfully bank on Section 114 III.(e) of the Evidence Act that official Acts are done according to law and put the seal that sub-section (1) of Section 15 of the Act passes off the test of fair procedure and is constitutionally valid". (page 731)… Conferment of judicial powers on the police will erode public confidence in the administration of justice… It not only sullies the stream of justice at its source but also chills the confidence of the general public and erodes the efficacy of the rule of law." (page 732).
Dealing with the argument that senior officers may be trusted to record confessions, he said:"It would, therefore, be clear that any officer not below the rank of the superintendent of police, being the head of the district police administration responsible to maintain law and order is expected to be keen on cracking down the crime and would take all tough steps to put down the crime to create terror in the heart of the criminals. It is not the hierarchy of officers but the source and for removal of suspicion from the mind of the suspect and the object assessor that built-in procedural safeguards have to be scrupulously adhered to in recording the confession and trace of the taint must be absent. It is, therefore, obnoxious to confer power on police officer to record confession under Section 15(1). If he is entrusted with the solemn power to record a confession, the appearance of objectivity in the discharge of the statutory duty would be seemingly suspect and inspire no public confidence. If the exercise of the power is allowed to be done once, may be conferred with judicial powers in a lesser crisis and be normalised in grave crisis, such an erosion is anathema to rule of law, spirit of judicial review and a clear negation of Article 50 of the Constitution and the constitutional creases. It is, therefore, unfair, unjust and unconscionable, offending Articles 14 and 21 of the Constitution." (page 734).
Justice Sahai also dissented saying:"Killing of democracy by gun and bomb should not be permitted by a State but in doing so the State has to be vigilant not to use methods which may be counter-productive. Care must be taken to distinguish between the terrorist and the innocent. If the State adopts indiscriminate measures of repression resulting in obliterating the distinction between the offender and the innocent and its measures are repressive to such an extent where it might not be easy to decipher one from the other, it would be totally incompatible with liberal values of humanity, equality, liberty and justice. … Measures adopted by the State should be to create confidence and faith in the government and democratic accountability should be so maintained that every action of the government be weighed in the scale of rule of law." (page 753)"A police officer is trained to achieve the result irrespective of means and method which is employed to achieve it. So long the goal is achieved the means are irrelevant and this philosophy does not change by hierarchy of the officers. A sub-Inspector of the police may be uncouth in his approach and harsh in his behaviour as compared to a superintendent of police or additional superintendent of police or any higher officer. But the basic philosophy of the two remains the same. The Inspector of police is as much interested in achieving the result by securing confession of an accused person as the superintendent of police. By their training and approach they are different. Procedural fairness does not have much meaning for them. It may appear unfortunate that even after Independence a force which was created to implement harsh and Draconian laws of imperial regime, ruthlessly and mercilessly, has not changed much even in people regime. Dignity of the individual and liberty of person - the basic philosophy of Constitution - has still not percolated and reached the bottom of the hierarchy as the constabulary is still not accountable to public and unlike British police it is highly centralised administrative instrumentality meant to wield its stick and spread awe by harsh voice more for the executive than for the law and society."
"A confession made to a police officer is suspect even in England and America. But it has been made admissible subject to the safeguards mentioned above. Why? Because what is provided by Section 26 of the Evidence Act stands substituted by presence of lawyer or near relatives". (Page 762)."Further a confession made to a police officer for an offence committed irrespective of its nature in non-notified area is inadmissible. But the same police officer is beyond reproach when it comes to a notified area. An offence under TADA is considered to be more serious as compared to one under Indian Penal Code or any other Act. Normally graver the offence more strict the procedural interpretation. But here it is just otherwise. What is inadmissible for a murder under Section 302 is admissible even against a person who abets or is possessed of the arms under Section 5 of the Act. How the methods applied by police in extracting confession has been deprecated by this Court in series of decisions need not be reproduced. But all that changed overnight when TADA was enacted. Giving power to police officer to record confession may be in line with what is being done in England and America. But that requires a change in outlook by the police. Before doing so the police force by education and training has to be made aware of their duties and responsibilities, as observed by Police Commission. The defect lies not in the personnel but in the culture. In a country where few are under law and there is no accountability, the cultural climate was not conducive for such a drastic change. Even when there was no Article 21, Article 20(3) and Article 14 of the Constitution any confession to police officer was inadmissible. It has been the established procedure for more than a century and an essential part of criminal jurisprudence. It was, therefore, necessary to bring about change in outlook before making a provision the merits of which are attempted to be justified on law existing in other countries." (page 762) … Section 15 of the TADA throws all established norms only because it is recorded by a high police officer. In my opinion our social environment was not mature for such a drastic change as has been effected by Section 15. It is destructive of basic values of the constitutional guarantees." (page 763)
Confessions recorded under TADA admissible even if accused acquitted of all TADA charges!In State vs Nalini - JT 1999 (4) SC 106 - a three Judge of the Supreme Court held:"The admissibility of the confessional statement would continue to hold good even if the accused is acquitted under TADA offences."
This is a shocking proposition of law. Confessions to a police officer were made admissible in evidence for the first time under TADA to meet the exigencies arising out of terrorist offences. Now, even if those offences were not made out the confessional statements would continue to be admissible in evidence for prosecution under normal criminal law where such evidence is not admissible had TADA not been applied. In this manner confessions before a police officer became admissible in evidence under normal criminal law, without the legislature making any amendment in the Code.
A confession made to a police officer for an offence committed irrespective of its nature in non-notified area is inadmissible. But the same police officer is beyond reproach when it comes to a notified area
In Nalini's case the doubt expressed by the Supreme Court in Bilal Ahmed Kaloo vs state of AP - JT 1997 7 SC 272 - was overruled. In Bilal's case the Supreme Court held that the confessions made before a police officer under TADA were admissible in evidence even when the accused is acquitted of offences under TADA. After Nalini's case, a three judge bench of the Supreme Court doubted the correctness of the decision in Nalini's case as under:"We are, however, constrained to record our doubt as regards the state of law as declared by the three-judge bench of this Court in Nalini (supra)
The issue, therefore, is whether the confessional statement would continue to hold good even if the accused is acquitted under TADA offences and there is a clear finding that TADA Act has been wrongly taken recourse to or the confession loses its legal efficacy under the Act and thus rendering itself to an ordinary confessional statement before the police under the general law of the land. Nalini (supra), however, answers this as noticed above, in positive terms but we have some doubts pertaining thereto since the entire justice delivery system is dependent upon the concept of fairness. It is the interest of justice which has a pre-dominant role in the criminal jurisprudence of the country. The hallmark of justice is the requirement of the day and the need of the hour. Once the court comes to a definite finding that invocation of TADA Act is wholly unjustified or there is utter frivolity to implicate under TADA, would it be justified that Section 15 be made applicable with equal force as in TADA cases to book the offenders even under the general law of the land. There is thus doubt as noticed above!!"However, the five-judge Constitutional Bench in Prakash Kumar vs state of Gujarat - JT 2005 11 SC 209 - upheld the ratio of Nalini's case.
Recording of confessionsIn the case of Nazir Ahmed vs King Emperor AIR 1936 PC 253 the Privy Council held that confessions recorded by a magistrate acting under Section 164 had to be recorded in the manner prescribed under the Section and the Standing Orders and in no other way. In that case the magistrate had not recorded the confession as required by law and tendered his oral evidence of the confession made by the accused. It was held that the confession was inadmissible and the accused was acquitted. This was followed in state of UP v/s Singhara Singh reported in AIR 1964 SC 358.Recent smaller benches of the Supreme Court have disregarded the precedent set in Nazir Ahmed's case as in 1998 (1) Bom Cr Cases 631.
Chance witnessIn a long line of decisions starting from Puran vs State of Punjab - AIR 1953 SC 459 - the Supreme Court had rejected the evidence of what was called "nature's call witnesses" who allegedly appeared at the crime scene out of the blue with the explanation that they were at the crime scene by chance while attending the call of nature. In a startling reversal the Supreme Court has in state of UP versus Farid Khan 2005(9) SCC 103 taken the contrary view without any reference to the preceding case law to the contrary. The Supreme Court held:"However, the High Court disbelieved his evidence on two counts - firstly on the ground that he was previously convicted in a criminal case and was sentenced to four years' imprisonment. This, according to the High Court, was a valid ground to discard his evidence. Another ground to disbelieve the evidence of PW 2 Sharif was that he must have been a chance witness and his explanation that he was going to the shop of Safi may not have been true as there were several other "beedi" manufacturers in that locality nearest to his house. Of course, the evidence of a witness, who has got a criminal background, is to be viewed with caution. But if such an evidence gets sufficient corroboration from the evidence of other witnesses, there is nothing wrong in accepting such evidence." (Page 106)
In Puran vs state of Punjab, the abovementioned, the three-judge bench of the Supreme Court held:"In these circumstances it could not be said that the Sessions Judge was in error when he rejected the evidence of this witness and described him as a chance witness. Such witnesses have the habit of appearing suddenly on the scene when something is happening and then of disappearing after noticing the occurrence about which they are called later on to give evidence." (Page 460)
The SC convicted an accused even though there was nothing to show that the blood stains on the lungi recovered belonged to the deceased. ... SC breached the right to silence of the accused persons ...
Blood testIn a long line of decisions the Supreme Court had acquitted the accused on account of deficiencies in the investigation, such as the failure of the police to show that the blood stains on the recovered articles corresponded with the blood of the deceased. In a shocking reversal, and once again without referring to the earlier case law, the Supreme Court convicted an accused person even though there was nothing to show that the blood stains on the lungi recovered belonged to the deceased. Not only that the Supreme Court breached the right to silence of the accused persons and in the face of a grossly incompetent investigation used an adverse inference drawn on account of the silence of the accused to convict him. The Supreme Court held as under:"As noted above and as seen from the mahazar, the deceased had suffered bleeding injuries and the lungis seized by the investigating agency from the accused contained bloodstains. The Serologist has opined that the bloodstains are of a human being but was not able to establish the blood group. As noted above, learned counsel for the appellant had contended that in the absence of such identification of the blood group the stains found on the lungi would not in any manner inculpate the accused in the crime. We do not think this argument can be accepted. The accused has admitted that the lungis belonged to him and were seized from him, for that matter he says he gave the lungis to the investigating officer but he has not explained how the bloodstains which are at least proved to be human blood came to be there on the lungis. The absence of any explanation in this regard would only strengthen the prosecution case that blood must have stained the lungis at the time of the attack on the deceased." (page 188)
In Kansa Behera vs state of Orissa - 1987 3 SCC 480 - the Supreme Court held:"As regards the recovery of a shirt or a dhoti with bloodstains which according to the serologist's report were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and, therefore, it could not positively be connected with the deceased. In the evidence of the investigating officer or in the report, it is not clearly mentioned as to what were the dimensions of stains of blood. Few small bloodstains on the clothes of a person may even be of his own blood especially if it is a villager putting on these clothes and living in village. The evidence about the blood group is only conclusive to connect the bloodstains with the deceased. That evidence is absent and in this view of the matter, in our opinion even this is not a circumstance on the basis of which any interference could be drawn." (Page 484)
Re-examinationDespite a long line of decisions starting from Chanan Singh v/s state of Haryana 1971 SCC (Cr) 714 to the effect that re examination of witnesses in a criminal trial on behalf of the prosecution must be confined to clarification of ambiguities which may have emerged during the cross examination, the Supreme Court in the case of Rammi versus State of MP 1999(8) SCC 649 held without reference to the previous case law as under:"There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross examination he has the liberty to put any question in re-examination to get the explanation. The public prosecutor should formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the public prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.Even if the public prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions.A public prosecutor who is attentive during cross-examination cannot but be sensitive to discern which answer in cross-examination requires explanation. An efficient public prosecutor would gather up such answers falling from the mouth of a witness during cross examination and formulate necessary questions to be put in re-examination. There is no warrant that re-examination should be limited to one or two questions. If the exigency requires any number of questions can be asked in re-examination." (Page 655)
Dying declarationIn a number of decisions culminating in Paparambaka Rosamma versus state of AP 1999(7) SCC 695 Supreme Court repeatedly held that where a doctor was present, the magistrate may record a dying declaration but it is imperative that the doctor certify that the injured was in a fit state of mind at the time of making the declaration. In Paparambaka's case the Supreme Court held:"In our opinion, in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration." (Page 701) … In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessary in a fit state of mind. This distinction was overlooked by the courts below". (page 702)
Earlier, in Mani Ram versus state of MP 1994 (Supp) 2 SCC 539 the Supreme Court similarly held:"… in a case of this nature, particularly when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor after duly being certified by the doctor that the declarant was conscious and in senses and was in a fit condition to make the declaration. These are some of the important requirements which have to be observed". (Page 540)
In innumerable decisions culminating in Amarjeet Singh versus state of Punjab (a three-judge bench decision) 1995 (supp) 3 SCC 217 -- the Supreme Court repeatedly held that sealing has to be done on the spot
Both the three-judge Bench decisions in Paparambaka's case as well as the decision in Mani Ram's case was departed from by the Supreme Court in Koli Chunilal Savji versus state of Gujarat - 1999 (9) SCC 562 - in the following fashion:"In the case of Mani Ram versus state of MP, no doubt this Court has held that when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor and after being duly certified by the doctor that the declarant was conscious and in his senses and was in a fit condition to make the declaration. In the said case the Court also thought it unsafe to rely upon the dying declaration on account of the aforesaid infirmity and interfered with the judgment of the High Court. But the aforesaid requirements are a mere rule of prudence and the ultimate test is whether the dying declaration can be held to be truthful one and voluntarily given." (page 566)
Ultimately, a Constitutional Bench of the Supreme Court was formed, and in Laxman versus state of Maharashtra - 2002(6) SCC 710 - the Constitutional Bench referring to its decision in Paparambaka's case held that the view that a doctor's certificate stating that the injured was in a fit state of mind to make a statement was necessary for a dying declaration to be relied upon, was a view "too broadly stated and is not the correct enunciation of law". (Page 715)
SealingIn innumerable decisions culminating in Amarjeet Singh versus state of Punjab (a three-judge bench decision) 1995 (supp) 3 SCC 217 -- the Supreme Court repeatedly held that sealing has to be done on the spot by the investigation officer and that non-sealing of the articles recovered or seized would be considered a serious infirmity. In Amarjeet Singh's case the Supreme Court held:"The non-sealing of the revolver on the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out." (page 218).
All this long line of precedents was discarded by the Supreme Court in 2002 Cr LJ 944, once again without noting judgments to the contrary, by criticising the approach as "a technical approach" and condemned the trial court for making "a mountain out of a mole hill on such a frivolous ground". (Page 34). The Supreme Court held as under:"Holding that the only seized weapons were shown to the press, the trial court committed a mistake and it has unnecessarily tried to make a mountain out of a molehill on such a frivolous ground."
Thereafter in Ganesh Lal versus state of Rajasthan - 2002(1) SCC 731- a similar observation on law is recorded:"In such a situation, merely because the articles were not sealed at the places of seizure but were sealed at the police station, the recovery and seizure do not become doubtful." (Page 736)
Similarly in Rajendra Kumar vs state of Rajasthan - 2004 SCC (Cri) 713, where a submission was made by counsel for the accused to the effect that the bangles allegedly recovered were not sealed. The Court held:"We do not think much importance can be attached to the fact that these bangles were not sealed at the time when recovery was made." (Page 716)
Arrest of femalesDeparting from a long tradition of not arresting women at night and not arresting women in the absence of a female constable, the Supreme Court in state of Maharashtra versus Christian Community Welfare Council of India - 2003(8) SCC 546 - held:"Herein we notice that the mandate issued by the High Court prevents the police from arresting a lady without the presence of a lady constable. The said direction also prohibits the arrest of a lady after sunset and before sunrise under any circumstances. While we do agree with the object behind the direction issued by the High Court in sub-para (vii) of the operative part of its judgment, we think a strict compliance with the said direction, in a given circumstance, would cause practical difficulties to the investigating agency and might even give room for evading the process of law by unscrupulous accused. While it is necessary to protect the female sought to be arrested by the police from police misdeeds, it may not be always possible and practical to have the presence of a lady constable when the necessity for such arrest arises, therefore, we think this direction issued requires some modification without disturbing the object behind the same. We think the object will be served if a direction is issued to the arresting authority that while arresting a female person, all efforts should be made to keep a lady constable present but in the circumstances where the arresting officers are reasonably satisfied that such presence of a lady constable is not available or possible and/or the delay in arresting caused by securing the presence of a lady constable would impede the course of investigation, such arresting officer for reasons to be recorded either before the arrest or immediately after the arrest be permitted to arrest a female person for lawful reasons at any time of the day or night depending on the circumstances of the case even without the presence of a lady constable." (page 549)
Exaggeration by witnessesIn their desire to push up the rate of conviction lies, exaggeration, embroidery and emballishments have become intrinsically mixed up with admissible evidence against the accused in criminal trials. Normally, in any other jurisdiction, the evidence of witnesses who lie or exaggerate would never be the basis of a conviction. The evidence would be frowned upon. In most jurisdictions in America or Europe, the evidence would be discarded lock, stock and barrel. In India however, the Supreme Court has laid down a very low standard for accepting untruthful evidence against accused persons. In SA Gaffar Khan versus VR Dhoble - 2003(7) SCC 749 - the Supreme Court held as under:"The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars… It is merely a rule of caution… The doctrine is a dangerous one especially in India for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main… The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate an exaggeration, embroideries or embellishment." (Page 764).
In a subsequent case Gangadhar Behera & Ors vs state of Orissa - 2003 SCC (Cri) 32, the Supreme Court went even further holding:"Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained." (Page 42)
These observations of the two-judge Bench of the Supreme Court are directly contrary to coordinate benches and even larger benches. In case after case, the Supreme Court has held that if a witness is found lying then it would be very hazardous to rely on part of his evidence while rejecting the other part. The notion of separating chaff from the grain is alien to criminal law jurisprudence and cannot be used in the context of witnesses who are lying and exaggerating and certainly not in the case of witnesses whose testimony has been found substantially false.
In case after case, the Supreme Court has held that if a witness is found lying then it would be very hazardous to rely on part of his evidence while rejecting the other part. The notion of separating chaff from the grain is alien to criminal law jurisprudence and cannot be used in the context of witnesses ...
In the case of RP Thakur versus state of Bihar - 1974 (3) SCC 664 - Supreme Court held:"If Nakuldeo could involve one person falsely, one has to find a strong reason for accepting his testimony implicating the others." (page 665)
Similarly in Suraj Mal versus State - 1979(4) SCC 725 - the Supreme Court held:"It is well-settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses … In other words, the evidence of witnesses against Ram Narain and the appellant was inseparable and indivisible." (page 726)
POTAIn Kartar Singh's case, the Supreme Court was called upon to decide a challenge to the constitutional validity of TADA. In the Peoples Union for Civil Liberties versus Union of India 2004(9) SCC 580, the Supreme Court decided the constitutional validity of the Prevention of Terrorism Act, 2002. By the time the case came to be decided on the December 16, 2003, there were widespread protests against the misuse of TADA and the roping in of innocent people. When this was brought to the notice of Supreme Court at the beginning of the hearing the Supreme Court held:"Another issue that the petitioners have raised at the threshold is the alleged misuse of TADA and the large number of acquittals of the accused charged under TADA. Here we would like to point out that this Court cannot go into and examine the "need" of POTA. It is a matter of policy. Once legislation is passed the government has an obligation to exercise all available options to prevent terrorism within the bounds of the Constitution. Moreover, we would like to point out that this Court has repeatedly held that mere possibility of abuse cannot be counted as a ground for denying the vesting of powers or for declaring a statute unconstitutional". (page 598)
As in Kartar Singh's case the Supreme Court missed the bus. The issue was not "a mere possibility of abuse" but rather one of persistent and rampant abuse of a statute. As stated earlier, while the Supreme Court was hearing the case, there were widespread allegations of misuse of POTA and there were numerous articles appearing in the newspapers on the misuse of POTA by the authorities. In circumstances where the petitioners are in a position to demonstrate that the statute and the misuse of the statute are so intrinsically interwoven that it is impossible for any court to deal with one without the other, was it permissible for the Supreme Court to dismiss the challenge and ignore widespread misuse of the statute in a summary manner? Ultimately, Government of India itself accepted that POTA was widely misused and that there was widespread public dissatisfaction with the Act. The Act was repealed. POTA was considered, as was TADA, as a black period of criminal law jurisprudence. Yet the Supreme Court in both the instances gave these repressive statutes a clean chit.When it was argued that lawyers and journalists who are bound by their code of conduct and ethics to maintain confidentiality with respect to matters covered by lawyer - client and journalist - source privilege, the Supreme Court dismissed this off-hand as under:"It is settled position of law that a journalist or lawyer does not have a sacrosanct right to withhold information regarding crime under the guise of professional ethics… There is also no law that permits a newspaper or a journalist to withhold relevant information from courts though they have been given such power by virtue of Section 15(2) of the Press Council Act, 1978 as against the Press Council… Of course the investigating officers will be circumspect and cautious in requiring them to disclose information. In the process of obtaining information, if any right of a citizen is violated, nothing prevents him from resorting to other legal remedies." (page 603)
Dealing with Section 32 of POTA which made it admissible confessions made to a police officer and also dealing with Section 32(4) and (5) which require the confession to be sent to magistrate, the Supreme Court held:"In our considered opinion the provision that requires producing such a person before the Magistrate is an additional safeguard. It gives that person an opportunity to rethink over his confession. Moreover, the Magistrate's responsibility to record the statement and the enquiry about the torture and provision for subsequent medical treatment makes the provision safer." (page 612)
In the earlier section dealing with TADA we had demonstrated how smaller benches of the Supreme Court disregarded the Constitutional Bench decision in Kartar Singh's case holding that the guidelines laid down by the Court in that case were to be scrupulously followed. Now in the POTA case we have set out the finding of the Supreme Court above mentioned only to demonstrate that subsequent smaller benches of the Supreme Court departed from this binding observation in the PUCL case to hold that the magistrate has virtually no role to play and almost acts only as a post office.
Medical vs ocular evidenceIn a series of decisions starting with NB Mitra vs SC Roy - AIR 1960 SC 706 - the Supreme Court has acquitted accused persons when the medical evidence was explicit and the ocular evidence was clearly at variance with the medical evidence. There are no doubt cases where the two, despite apparent contradiction, can be reconciled. However in cases where there is a clear contradiction which cannot be explained reasonably, the Supreme Court has repeatedly held that the benefit of doubt will go to the accused persons. Now in a startling reversal, once again without reference to binding precedent, the Supreme Court has, in Gangadhar Behera & Ors vs state of Orissa - 2003 SCC (Cr) 32, held:"At this juncture, it would be appropriate to deal with the plea that ocular evidence and medical evidence are at variance. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant." (Page 44)
This two-judge bench decision is directly contrary to the three-judge bench decision in Mitra's case above-mentioned where the magistrate made a direction to the Jury as under:"Now, gentlemen, when a medical witness is called as an expert he is not witness of fact. Medical evidence of an expert is evidence of opinion, not of fact. Where there are alleged eyewitnesses of physical violence which is said to have caused the hurt, the value of medical evidence by prosecution is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence, or any medical evidence which the defence might itself chose to bring is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Therefore, you must remember this particular point of view that if you believe the eyewitnesses, then there is no question of having it supported by medical evidence, unless the medical evidence again in its turn goes so far that it completely rules out all possibility that such injuries could take place in the manner alleged by the prosecution and that is a point which you should bear in mind, because if you accept the evidence of the eye-witnesses, no question of further considering the medical evidence arises at all." (Page 1034)
The three-judge bench of the Supreme Court disagreed:"I do not think that the direction is either correct or complete. It is incorrect, because a medical witness who performs a post-mortem examination is a witness of fact, though he also gives an opinion on certain aspects of the case. Further, the value of a medical witness is not merely a check upon the testimony of eye-witnesses; it is also independent testimony, because it may establish certain facts quite apart from the other oral evidence. If a person is shot at close range, the marks of tattooing found by the medical witness would show that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds, would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is often direct evidence of the facts found upon the victim's person." (Page 1034)
Similarly in Mohar Singh vs state of Punjab - 1981 Supp. SCC 18 - the Supreme Court had held:"In view of this glaring inconsistency between the ocular and medical evidence, it will be extremely unsafe and hazardous to maintain the conviction of the appellants on such evidence." (Page 20)
Report to the magistrate Section 157 CrPC requires the Officer in charge of a police station to "forthwith" send a report to the magistrate on the police receiving information in respect of the commission of an offence. There is a long line of binding precedent of the Supreme Court (AIR 1976 SC 2423, AIR 1980 SC 638) to the effect that a late dispatch of the report to the magistrate could provide a basis for suspicion that the FIR was the result of consultation and deliberation and that it was recorded later than the date and time mentioned. However, in state of J&K vs S Mohan Singh - 2006 9SCC 272, where the crime is said to have occurred on 23.7.85 at 6 pm, the FIR was lodged at 7.20 pm and a copy of the FIR was received by the magistrate on the next day at 12.45 pm the Supreme Court held:"In our view, copy of the first information report was sent to the magistrate at the earliest on the next day in the court and there was no delay, much less inordinate one, in sending the same to the magistrate." (Page 275)
Similarly in Anil Rai versus state of Bihar - AIR 2001 SC 3713 - the Supreme Court introduced a new concept namely "extraordinary delay". Without reference to the previous case law, the law on the point is changed in the following manner:"Extraordinary delay in sending the copy of the FIR to the magistrate can be a circumstance to provide a legitimate basis for suspecting that the first information report was recorded at much later day than the stated day affording sufficient time to the prosecution to introduce improvements and embellishment by setting up a distorted version of the occurrence. The delay contemplated under section 157 of the Code of Criminal Procedure for doubting the authenticity of the FIR is not every delay but only extraordinary and unexplained delay. However, in the absence of prejudice to the accused the omission by the police to submit the report does not vitiate the trial." (page 3174)
Names of witnesses omitted The Supreme Court has held repeatedly that if the name of the witnesses are omitted in the FIR, unless a plausible explanation is given, the omission could be treated as a ground to doubt the evidence. In Marudanal Augusti versus state of Kerala - 1980(4) SCC 425 - the Supreme Court acquitted the accused persons because though it was stated in the Court evidence that they had witnessed the assault, they were not mentioned at all in the FIR. To the contrary, however, in Rajkishore Jha vs. state of Bihar - 2003 11 SCC 519, the Supreme Court held: "The High Court has noted that the names of witnesses do not appear in the first information report. That by itself cannot be a ground to doubt their evidence." (Page 520)
In a series of decisions starting with NB Mitra vs SC Roy - AIR 1960 SC 706 - the Supreme Court has acquitted accused persons when the medical evidence was explicit and the ocular evidence was clearly at variance with the medical evidence
Similarly in Anil Rai versus state of Bihar - AIR 2001 SC 3173 - the Supreme Court held that the non-inclusion of the names of the witnesses in the FIR could have been on account of the fact that the wife who had lodged the FIR was perturbed on the murder of her husband.
The case of the defenceIn a striking unsettling of well settled criminal law procedure and jurisprudence, not referred to in the judgment, the Supreme Court has, in Tarun Bora vs state of Assam - 2002 SCC (CRI) 1568 - observed as under:"In cross-examination the witness stated as under:"Accused Tarun Bora did not blind my eyes nor he assaulted me."This part of cross-examination is suggestive of the presence of accused Tarun Bora in the whole episode. This will clearly suggest the presence of the accused Tarun Bora as admitted. The only denial is that the accused did not participate in blindfolding the eyes of the witness nor assaulted him. (Page 1572)
We have already noticed that in the cross-examination of PW 1, a suggestion was put to him that the appellant Tarun Bora had neither participated in blindfolding him nor assaulted him. This is clearly indicative of the presence of the appellant and participation in the kidnapping episode." (Page 1573) Similar is the case reported in 2002 SCC (Cr) 217.
Inadmissible evidenceIn BS Panchal vs state of Gujarat - AIR 2001 Supreme Court 1158 - the Supreme Court began by remarking:"We have reached the stage when no effort shall be spared to speed up trials in the Criminal Courts."
The Court then went on to observe:"It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection." (Page 1158)"Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item or oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. There is no illegality in adopting such a course." (Page 1159)
There are major problems with this approach. First, in all jurisdictions trial court judges are expected to deal with the objections on the spot in criminal trials. There was no evidence before the Supreme Court to indicate that the practice of deciding objections as to admissibility of evidence there and then, was "archaic". This observation is based more out of frustration than a serious attempt to deal with delays in criminal trials. Secondly, recording all objections and proceeding nevertheless in a criminal trial may cause grave prejudice to the accused and bias the mind of the judge as inadmissible evidence may come on record, albeit temporarily. Thirdly, it allows the judge to be mechanical in his approach and behave more as a recorder of evidence rather than an adjudicator. It is one thing to say that complex issues relating to admissibility of evidence may be temporarily postponed after recording the objections. It is an entirely different thing to lay down a rule of this sort for every objection.
Standard lowered In a startling departure from the well established standard of proof for criminal cases of "beyond reasonable doubt" the Delhi High Court has, without reference to binding case law to the contrary now lowered the standard to "moral certainity". In Alamgir vs state - 2003 1 SCC 21 - a two-judge bench of the Supreme Court while noticing that a High Court had defined the standard thus chose to leave it alone:"Incidentally, the High Court did emphasise on the true and correct meaning of the phraseology "reasonable doubt" to be attributed thereon and it is on this score, the High Court records:'Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the judge'."We are, however, not expressing any opinion with regard thereto." (Page 26)
This is directly contrary to the Constitutional Bench's decision in Haricharan Kurmi vs state of Bihar - AIR 1964 SC 1184 - where the constitutional bench categorically said:"In criminal trials, there is no scope for applying the principle of moral conviction." (Page 1184)
Accused do not figure Once again contrary to a long line of binding precedent to the effect that if the names of the accused do not figure in the statements made to the police during investigation, then normally such an omission could possibly cast a doubt on the prosecution case. However, in Alamgir versus State - 2003(1) SCC 21 - the Supreme Court held:"Admittedly, this piece of evidence was not available in the statement of the witness under Section 161 CrPC, but does it take away the nature and character of the evidence in the event there is some omission on the part of the police official? Would that be taken recourse to as amounting to rejection of an otherwise creditworthy and acceptable evidence - the answer, in our view cannot but be in the negative." (page 27)
Confessions against co-accusedWe start with the three-judge Bench decision of the Supreme Court in Kashmira Singh versus state of Madhya Pradesh - AIR 1952 SC 159 - where it was held as under:"The confession of an accused person is not evidence in the ordinary sense of the term as defined in S. 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. (page 159)
As regards its use in the corroboration of accomplices and approvers, a co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no way lessened when the "evidence" is not on oath and cannot be tested by cross-examination. Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the judge as having no greater probative value. It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed. The tendency to include the innocent with the guilty is peculiarly prevalent in India and it is very difficult for the court to guard against the danger. The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measures implicates such accused." (page 159)The three-judge bench decision in Nathu versus state of Uttar Pradesh - AIR 1956 SC 56 - where it was held therein:"… that such statements were not evidence as defined in S. 3 of the Evidence Act, that no conviction could be founded thereon, but that if there was other evidence on which a conviction could be based, they could be referred to as lending assurance to that conclusion and for fortifying it." (Page 154)
This was followed by another three-judge Bench decision in Ram Chandra versus state of UP - AIR 1957 SC 381 - where the Court held:"Under S. 30 confession of a co-accused can only be taken into consideration but it not in itself substantive evidence." (Page 560)
Then we have the decision of the Constitutional Bench of the Supreme Court in the case of Haricharan Kurmi versus state of Bihar - AIR 1964 SC 1184 - where the Supreme Court held that:"... in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. (para 12)
Thus, the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence." (page 844)
... in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, ...
Directly contrary to this line of binding precedent is a decision of the two-judge Bench in K Hashim versus state of TN - 2005(1) SCC 237 - where the Supreme Court held:"If it is found credible and cogent, the court can record a conviction even on the uncorroborated testimony of an accomplice." (Page 247)
False defence as evidenceThere is a plethora of binding precedents to the effect that a false defence can never be taken as substantive evidence. In the case of circumstantial evidence, it is only when the chain of circumstances is complete that a false defence can at best be considered an additional circumstance. In Shankerlal G Dixit versus state of Maharashtra - 1981(2) SCC 35 - it was held:"… falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused." (page 43)
Directly contrary to this is the two-judge Bench decision in state of Maharashtra versus Suresh - 2000(1) SCC 471 - where the Supreme Court held:"A false answer offered by the accused when his attention was drawn to the aforesaid circumstance renders that circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing "a missing link" for completing the chain." (page 480)
A study of the criminal law reports from 2001 onwards shows an increasing tendency of the superior courts to use extra-judicial confessions as substantive evidence in the conviction of the accused, on par with other forms of evidence
This was followed by another two-judge Bench in Mani Kumar Thapa versus state of Sikkim - 2002(7) SCC 157 - where the Supreme Court held:"If the said principle in law is to be accepted, the statement of the appellant made under Section 313 CrPC being palpably false and there being cogent evidence adduced by the prosecution to show that the appellant had given two other versions as to the incident of 12.2.1988, we will have to proceed on the basis that the appellant has not explained the inculpating circumstances established by the prosecution against him which would form an additional link in the chain of circumstances." (page 167)
Condonation of tortureIn Kamalanantha vs state of TN - 2005 5 SCC 194 - the women who had alleged that they were raped stated: "After the police beat us, myself and other girl informed that we were raped by Premanandha. " In a shocking condonation of torture making admissible evidence taken after beating of the witnesses by the police, the Supreme Court held:"It is in that context the High Court held that the so-called beating could have meant to shake off their inhibition and fear, to make them free to say what they wanted to say. In the given facts and circumstances of this case, beating will mean to remove the fear psychosis and to come out with truth. We do not find any infirmity in the concurrent findings recorded by both the courts below on this court".
Extr-judicial confessionsA study of the criminal law reports from 2001 onwards shows an increasing tendency of the superior courts to use extra-judicial confessions as substantive evidence in the conviction of the accused, on par with other forms of evidence. The latest is Ram Singh vs Sonia - 2007 2 SCC (Crl.) 1. This is contrary to a long line of binding precedent holding, as in Rahim Beg vs state of UP - 1972 3 SCC 759 - that "the evidence of the extra judicial confession is a weak piece of evidence." (Page 765)
162 CrPC statementsThe superior courts are increasingly inclined to brush aside objections relating to statements made in court which are improvements from the statements made to the police during investigation. In a long line of decisions, as in Yudhishtir vs state of MP - 1971 3 SCC 436 - the Supreme Court has originally held that crucial omissions in the statements to the police must be considered an improvement and may make the evidence before the court to be considered as "false and unacceptable". (Page 439)
- The author is former chairperson of the Bar Council of India
he dismantling of the criminal law protection of the accused is said to have started about 15 years ago. It began with the perception within the judiciary at the highest levels that criminal law protection was too extensive and needed to be reviewed. It was fuelled in large part by the systematic campaign carried out by senior police officers who came on national television boldly berating the judiciary for taking a hyper technical human rights view, thus letting off criminals at the drop of the hat. The appearance of senior police officers on television right across the country was not accidental but part of a sinister conspiracy to destroy the criminal justice system by shaking the confidence of the higher judiciary in their own system. And to achieve this, policemen appealed to the public in prominent cases saying that while they have captured dreaded criminals and terrorists, the judiciary was letting them out on bail or acquitting them because of notions of fairness, ignoring the victims of theses crimes. The police often referred to the low rate of conviction in IPC cases presenting false information to the public on numerous TV programmes. The public was told that the rate of conviction was as low as 10 percent whereas in fact conviction in IPC cases was about 50 percent. It was often said that conviction in TADA cases was a mere five percent forgetting that the vast majority of TADA accused were kept as undertrials for five years or more before their trials began. Thus, even if they were ultimately acquitted, innocent persons spent at least five years incarcerated.Judges, of course, cannot come on prime time television pointing out that it was due to the appalling level of investigation of crimes and corruption in the investigation process, that acquittals take place. Thus, the ideological campaign ultimately had its intended effect. Judges were apparently embarrassed at the low rate of convictions. The public perception, not criminal justice, was uppermost in their minds. At some stage, the judiciary decided that it was necessary to push up the rate of convictions, come what may. This is how we have come to live in the decade of the dismantling of the criminal law protection of the accused. What matters is not criminal justice or criminal jurisprudence. What is most important is that people perceived as being criminals should be put behind bars, denied bail and given the stiffest possible sentence, perhaps even the death sentence. That a judge should entertain reasonable doubt as to the guilt of the accused now plays second fiddle. An overarching objective was to be achieved and that was to change the public's view of the judiciary in criminal trials and to clearly show that the courts were tough on criminals. That this objective could be achieved in another manner which would be in tune with the Constitution as well as protect the rights of the accused persons was never discussed. The constitutional law protection for accused persons was undermined in case after case in a hasty rush to change the common man's perceived view of the judiciary. Nobody bothered to introspect and ask the question as to whether the view perceived was a general one or one relating to the upper middle classes. The vast majority of the poor in any case see the criminal justice system as a great engine of oppression where torture is widespread and condoned by the judiciary and innocent people are roped in while rich get away scot-free. Ultimately, upper middle class opinion held sway and the agenda of the legal system was guided more by how the system would be portrayed in the media than by the desire to uphold constitutional values. It is often unpopular to uphold the Constitution particularly when it is implemented in respect of poor and working class people.
The dilution of criminal lawThe dilution of the criminal law was brought about in strange ways. First of all, the principle that precedents must be adhered to and that decisions of larger benches must be followed by smaller benches even if they disagree was departed from. Decisions of larger benches, even constitutional bench decisions were departed from on the grounds that such a view was "technical" or that the ratio of the larger bench was "only a rule of prudence" or "merely a rule of caution". But criminal law is, at its core, a set of technical rules and procedures that require a judge to be prudent and cautious and which lay down the path by which a judge is able to determine what constitutes reasonable doubt. Once these technical rules are discarded and a judge becomes imprudent and rash, the "beyond reasonable doubt" standard is thrown to the winds and a judge basically does what he likes. He is then able to convict or acquit on the basis of what he may find to be true in a subjective manner or on some sort of gut feeling. When such a development takes place, the rule of law goes into a tailspin. We have, indeed, set out on such dangerous course.
Judges cannot come on prime time TV pointing out that it was due to the appalling level of investigation of crimes and corruption in the investigation process, that acquittals take place
The obliteration of decades of binding precedents of coordinate benches and even larger benches of the Supreme Court takes place when a coordinate bench or a smaller bench side steps a binding precedent of the Supreme Court without referring the issue for determination to a larger bench. That decision then is followed in a series of cases. On being cited in case after case this effectively sets aside the earlier binding precedent.This is not to argue that reforms were not necessary. They certainly were. But for reforms a certain degree of transparency, consultation and deliberation is absolutely necessary. It is not upto individuals to take it upon themselves to depart from decades of well established law and procedure and bring about change in an arbitrary and ad hoc fashion. Nor is it permissible to bring about reforms that have the effect of undermining criminal law jurisprudence itself. Reform of the criminal justice system does not mean the dilution of standards and the lowering of the Bar. It means the raising of the standards of the police and the public prosecutors so that they are able to meet the high standards set by the Supreme Court through its earlier judgments. Sadly, things have proceeded in the opposite direction. It is assumed that the police and public prosecutors will continue to be inept and corrupt. The question then is posed of speeding up of the system and increasing the rate of convictions while assuming that the appallingly low level of investigations must necessarily remain the same. In doing so the judiciary has lost a marvellous opportunity to radically reform police investigations and has instead taken the high standards of criminal law jurisprudence down to the level of the police. And thereby a grave disservice is caused not only to accused persons but also to the public at large. They run the risk of facing indiscriminate arrests, prosecutions and convictions on ever increasing scale. Secondly, the police could read the clear signal to do business as usual. Whatever little desire there was, within the police force, to make the investigations of crimes a professional affair dissipated.Yet the Malimath Report on criminal justice reforms in India suggested precisely such a change. It came in for widespread criticism. Government of India rejected its recommendations. To change criminal law standards requires substantial amendments in the Criminal Procedure Code and the Indian Penal Code. The executive chose not to make such changes. But the legal system went ahead nevertheless bringing about sweeping changes.
Policemen as panchasIn G Srinivas Goud vs State of AP 2005(8) SCC 183 a two-judge bench of the Supreme Court held that "there is no bar in law for a policeman to act as a panch witness".
Sealing not done on the spotIn State of Maharastra vs BC Raghani 2001(9) SCC 1 the Supreme Court held that it was unnecessary to "make a mountain out of a molehill" merely because the seized weapons were not sealed on the spot and were subsequently displayed at a press conference. "We are of the opinion that the trial court adopted a technical approach in appreciating the factum of recovery of weapons" and wrongly held that the evidence relating to the seizure will have to be totally kept aside, the Supreme Court held.The Constitutional Bench decision in the case of Kartar Singh versus State of Punjab 1994(3) SCC 569, not followed by smaller Benches of the Supreme Court thereafter
In Kartar Singh's case, the Supreme Court abdicated doing its duty as a Constitutional Court and was more concerned with executive issues presented in an exaggerated and one-sided fashion. Whereas the executive is concerned with the issue of terrorism per se and is not concerned with balance between terrorist acts on the one hand and the protection of the human rights of accused persons on the other hand, the Supreme Court is concerned precisely with this balance. Para 21 to 23 of the decision and subsequent paragraphs as well are couched in intemperate language more suitable for politicians rather than judges. In Para 83 of the judgment the Supreme Court concludes that the provisions of TADA including the provision for the setting up of designated courts "all postulate the concept of speedy trial in spirit under TADA". Immediately thereafter in Para 85 the Court admits, "In fact, lot of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay".Referring to Section 15 of TADA which made certain confessions made to police officers admissible in evidence, the Supreme Court held in Para 254:"In view of the legal position vesting authority on higher police officer to record the confession hitherto enjoyed by the judicial officer in the normal procedure, we state that there should be no breach of procedure and the accepted norms of recording the confession which should reflect only the true and voluntary statement…"(Page 680)
The Court came to the conclusion even though the court was aware of the fact that torture was widespread in India, the Court observed:"… we cannot avoid but saying that we - with the years of experience both at the Bar and on the Bench - have frequently dealt with cases of atrocity and brutality practised by some overzealous police officers resorting to inhuman, barbaric, archaic and drastic methods of treating the suspects in their anxiety to collect evidence by hook or by crook and wrenching a decision in their favour. We remorsefully like to state that on a few occasions even custodial deaths caused during interrogation are brought to our notice. We are very much distressed and deeply concerned about the oppressive behaviour and the most degrading and despicable practice adopted by some of the police officers." (page 679)"It is heart-rending to note that day in and day out we come across with the news of blood-curdling incidents of police brutality and atrocities, alleged to have been committed, in utter disregard and in all breaches of humanitarian law and universal human rights as well as in total negation of the constitutional guarantees and human decency." (Page 711)
Now if this is the situation in India, namely, that torture is the principle forensic tool of the police and is extensively used, and as a result confessions to a police officer have never been held to be admissible right through the British period and upto the enactment of TADA, what was the evidence before the Supreme Court on the basis of which they could conclude that it would be legitimate to repose faith in senior police officers because they would be less inclined to use torture? In fact, there was no such evidence. The Supreme Court concluded that confessions made to senior police officers were admissible based on no evidence at all to justify the departure from a rule of law and practice that govern criminal trials for over 100 years. There was also no evidence before Supreme Court that the police practice of torture had declined in any manner. In fact, a perusal of decisions of the Supreme Court could possibly indicate precisely the opposite i.e. an increasing use of torture by the police during investigation of crimes, as manifested in custodial violence cases.The Supreme Court also concluded that a confession made by a person before a police officer is also admissible against the co-accused. Refer to Sukhmant Singh v/s State-2003 AllMR (CR) 2365.
... day in and day out we come across with the news of blood-curdling incidents of police brutality and atrocities, ... in all breaches of humanitarian law and universal human rights as well as in total negation of the constitutional guarantees and human decency
Rule 15 of the Terrorists and Disruptive Activities (Prevention) Rules, 1987 lays down in detail how confessions are to be taken and recorded. In particular the rule requires the police officer to make a certificate in writing to the effect that the confession was taken in his presence and the record contains a full and true account of the confession and that it was voluntarily made. Referring to the Acts and Rules regarding confessions the Supreme Court held, "we strongly feel that there must be some severe safeguards which should be scrupulously observed while recording a confession". We will now show how, in the following cases smaller benches of the Supreme Court disregarded the directives of the Constitutional Bench and held that the safeguards and the guidelines are directory and not mandatory.A digression at this point is in order. Despite the binding decision of the Constitution Bench in Kartar Singh's case above mentioned, in Jameel Ahmed versus state of Rajasthan - 2003(9) SCC 673 - a two judge Bench of the Supreme Court without reference to the observations of the Constitutional Bench above mentioned held as under:"Rule 15(5) does not ascribe any role to the CMM or the CJM of either perusing the said statement or making any endorsement or applying his mind to these statements. It merely converts the said courts into a post office for further transmission to the Designated Court concerned, therefore, the object of the rule is to see that the statement recorded under Section 15 of the Act leaves the custody of the recorder of the statement at the earliest so that the statement has a safer probative value. In our opinion, transmission of the recorded confessional statement under Section 15 of the Act to the CMM or the CJM under Rule 15(5) is only directory and not mandatory." (Page 688)
Going back to Kartar Singh's case, the Supreme Court then rejected the argument that it would be improper to empower the Executive Magistrates to record confessions under Section 15 of TADA, since they cannot be expected to have judicial integrity and independence.Justice K Ramaswamy made an extraordinary dissent. Referring to section 25 of the Evidence Act which excluded confessions made to the police as evidence he said that it "rests upon the principle that it is dangerous to depend upon a confession made to a police officer which cannot extricate itself from the suspicion that it might have been produced by the exercise of coercion." (page 724).
Justice Ramaswamy held: "While the Code and Evidence Act seek to avoid inherent suspicion of a police officer obtaining confession from the accused, does the same dust not cloud the vision of superior police officer? Does such a procedure not shock the conscience of a conscientious man and smell of unfairness? Would it be just and fair to entrust the same duty by employing non obstante clause Section 15(1)? Whether mere incantation by employing non-obstante clause cures the vice of afore enumeration and becomes valid under Articles 14 and 21? My answer is "NO", "absolute no, no". The constitutional human rights perspectives projected hereinbefore; the history of working of the relevant provisions in the Evidence Act and the wisdom behind Section 164 of the Code ignites inherent invalidity of sub-section (1) of Section 15 and the court would little afford to turn Nelson's blind eye to the above scenario and blissfully bank on Section 114 III.(e) of the Evidence Act that official Acts are done according to law and put the seal that sub-section (1) of Section 15 of the Act passes off the test of fair procedure and is constitutionally valid". (page 731)… Conferment of judicial powers on the police will erode public confidence in the administration of justice… It not only sullies the stream of justice at its source but also chills the confidence of the general public and erodes the efficacy of the rule of law." (page 732).
Dealing with the argument that senior officers may be trusted to record confessions, he said:"It would, therefore, be clear that any officer not below the rank of the superintendent of police, being the head of the district police administration responsible to maintain law and order is expected to be keen on cracking down the crime and would take all tough steps to put down the crime to create terror in the heart of the criminals. It is not the hierarchy of officers but the source and for removal of suspicion from the mind of the suspect and the object assessor that built-in procedural safeguards have to be scrupulously adhered to in recording the confession and trace of the taint must be absent. It is, therefore, obnoxious to confer power on police officer to record confession under Section 15(1). If he is entrusted with the solemn power to record a confession, the appearance of objectivity in the discharge of the statutory duty would be seemingly suspect and inspire no public confidence. If the exercise of the power is allowed to be done once, may be conferred with judicial powers in a lesser crisis and be normalised in grave crisis, such an erosion is anathema to rule of law, spirit of judicial review and a clear negation of Article 50 of the Constitution and the constitutional creases. It is, therefore, unfair, unjust and unconscionable, offending Articles 14 and 21 of the Constitution." (page 734).
Justice Sahai also dissented saying:"Killing of democracy by gun and bomb should not be permitted by a State but in doing so the State has to be vigilant not to use methods which may be counter-productive. Care must be taken to distinguish between the terrorist and the innocent. If the State adopts indiscriminate measures of repression resulting in obliterating the distinction between the offender and the innocent and its measures are repressive to such an extent where it might not be easy to decipher one from the other, it would be totally incompatible with liberal values of humanity, equality, liberty and justice. … Measures adopted by the State should be to create confidence and faith in the government and democratic accountability should be so maintained that every action of the government be weighed in the scale of rule of law." (page 753)"A police officer is trained to achieve the result irrespective of means and method which is employed to achieve it. So long the goal is achieved the means are irrelevant and this philosophy does not change by hierarchy of the officers. A sub-Inspector of the police may be uncouth in his approach and harsh in his behaviour as compared to a superintendent of police or additional superintendent of police or any higher officer. But the basic philosophy of the two remains the same. The Inspector of police is as much interested in achieving the result by securing confession of an accused person as the superintendent of police. By their training and approach they are different. Procedural fairness does not have much meaning for them. It may appear unfortunate that even after Independence a force which was created to implement harsh and Draconian laws of imperial regime, ruthlessly and mercilessly, has not changed much even in people regime. Dignity of the individual and liberty of person - the basic philosophy of Constitution - has still not percolated and reached the bottom of the hierarchy as the constabulary is still not accountable to public and unlike British police it is highly centralised administrative instrumentality meant to wield its stick and spread awe by harsh voice more for the executive than for the law and society."
"A confession made to a police officer is suspect even in England and America. But it has been made admissible subject to the safeguards mentioned above. Why? Because what is provided by Section 26 of the Evidence Act stands substituted by presence of lawyer or near relatives". (Page 762)."Further a confession made to a police officer for an offence committed irrespective of its nature in non-notified area is inadmissible. But the same police officer is beyond reproach when it comes to a notified area. An offence under TADA is considered to be more serious as compared to one under Indian Penal Code or any other Act. Normally graver the offence more strict the procedural interpretation. But here it is just otherwise. What is inadmissible for a murder under Section 302 is admissible even against a person who abets or is possessed of the arms under Section 5 of the Act. How the methods applied by police in extracting confession has been deprecated by this Court in series of decisions need not be reproduced. But all that changed overnight when TADA was enacted. Giving power to police officer to record confession may be in line with what is being done in England and America. But that requires a change in outlook by the police. Before doing so the police force by education and training has to be made aware of their duties and responsibilities, as observed by Police Commission. The defect lies not in the personnel but in the culture. In a country where few are under law and there is no accountability, the cultural climate was not conducive for such a drastic change. Even when there was no Article 21, Article 20(3) and Article 14 of the Constitution any confession to police officer was inadmissible. It has been the established procedure for more than a century and an essential part of criminal jurisprudence. It was, therefore, necessary to bring about change in outlook before making a provision the merits of which are attempted to be justified on law existing in other countries." (page 762) … Section 15 of the TADA throws all established norms only because it is recorded by a high police officer. In my opinion our social environment was not mature for such a drastic change as has been effected by Section 15. It is destructive of basic values of the constitutional guarantees." (page 763)
Confessions recorded under TADA admissible even if accused acquitted of all TADA charges!In State vs Nalini - JT 1999 (4) SC 106 - a three Judge of the Supreme Court held:"The admissibility of the confessional statement would continue to hold good even if the accused is acquitted under TADA offences."
This is a shocking proposition of law. Confessions to a police officer were made admissible in evidence for the first time under TADA to meet the exigencies arising out of terrorist offences. Now, even if those offences were not made out the confessional statements would continue to be admissible in evidence for prosecution under normal criminal law where such evidence is not admissible had TADA not been applied. In this manner confessions before a police officer became admissible in evidence under normal criminal law, without the legislature making any amendment in the Code.
A confession made to a police officer for an offence committed irrespective of its nature in non-notified area is inadmissible. But the same police officer is beyond reproach when it comes to a notified area
In Nalini's case the doubt expressed by the Supreme Court in Bilal Ahmed Kaloo vs state of AP - JT 1997 7 SC 272 - was overruled. In Bilal's case the Supreme Court held that the confessions made before a police officer under TADA were admissible in evidence even when the accused is acquitted of offences under TADA. After Nalini's case, a three judge bench of the Supreme Court doubted the correctness of the decision in Nalini's case as under:"We are, however, constrained to record our doubt as regards the state of law as declared by the three-judge bench of this Court in Nalini (supra)
The issue, therefore, is whether the confessional statement would continue to hold good even if the accused is acquitted under TADA offences and there is a clear finding that TADA Act has been wrongly taken recourse to or the confession loses its legal efficacy under the Act and thus rendering itself to an ordinary confessional statement before the police under the general law of the land. Nalini (supra), however, answers this as noticed above, in positive terms but we have some doubts pertaining thereto since the entire justice delivery system is dependent upon the concept of fairness. It is the interest of justice which has a pre-dominant role in the criminal jurisprudence of the country. The hallmark of justice is the requirement of the day and the need of the hour. Once the court comes to a definite finding that invocation of TADA Act is wholly unjustified or there is utter frivolity to implicate under TADA, would it be justified that Section 15 be made applicable with equal force as in TADA cases to book the offenders even under the general law of the land. There is thus doubt as noticed above!!"However, the five-judge Constitutional Bench in Prakash Kumar vs state of Gujarat - JT 2005 11 SC 209 - upheld the ratio of Nalini's case.
Recording of confessionsIn the case of Nazir Ahmed vs King Emperor AIR 1936 PC 253 the Privy Council held that confessions recorded by a magistrate acting under Section 164 had to be recorded in the manner prescribed under the Section and the Standing Orders and in no other way. In that case the magistrate had not recorded the confession as required by law and tendered his oral evidence of the confession made by the accused. It was held that the confession was inadmissible and the accused was acquitted. This was followed in state of UP v/s Singhara Singh reported in AIR 1964 SC 358.Recent smaller benches of the Supreme Court have disregarded the precedent set in Nazir Ahmed's case as in 1998 (1) Bom Cr Cases 631.
Chance witnessIn a long line of decisions starting from Puran vs State of Punjab - AIR 1953 SC 459 - the Supreme Court had rejected the evidence of what was called "nature's call witnesses" who allegedly appeared at the crime scene out of the blue with the explanation that they were at the crime scene by chance while attending the call of nature. In a startling reversal the Supreme Court has in state of UP versus Farid Khan 2005(9) SCC 103 taken the contrary view without any reference to the preceding case law to the contrary. The Supreme Court held:"However, the High Court disbelieved his evidence on two counts - firstly on the ground that he was previously convicted in a criminal case and was sentenced to four years' imprisonment. This, according to the High Court, was a valid ground to discard his evidence. Another ground to disbelieve the evidence of PW 2 Sharif was that he must have been a chance witness and his explanation that he was going to the shop of Safi may not have been true as there were several other "beedi" manufacturers in that locality nearest to his house. Of course, the evidence of a witness, who has got a criminal background, is to be viewed with caution. But if such an evidence gets sufficient corroboration from the evidence of other witnesses, there is nothing wrong in accepting such evidence." (Page 106)
In Puran vs state of Punjab, the abovementioned, the three-judge bench of the Supreme Court held:"In these circumstances it could not be said that the Sessions Judge was in error when he rejected the evidence of this witness and described him as a chance witness. Such witnesses have the habit of appearing suddenly on the scene when something is happening and then of disappearing after noticing the occurrence about which they are called later on to give evidence." (Page 460)
The SC convicted an accused even though there was nothing to show that the blood stains on the lungi recovered belonged to the deceased. ... SC breached the right to silence of the accused persons ...
Blood testIn a long line of decisions the Supreme Court had acquitted the accused on account of deficiencies in the investigation, such as the failure of the police to show that the blood stains on the recovered articles corresponded with the blood of the deceased. In a shocking reversal, and once again without referring to the earlier case law, the Supreme Court convicted an accused person even though there was nothing to show that the blood stains on the lungi recovered belonged to the deceased. Not only that the Supreme Court breached the right to silence of the accused persons and in the face of a grossly incompetent investigation used an adverse inference drawn on account of the silence of the accused to convict him. The Supreme Court held as under:"As noted above and as seen from the mahazar, the deceased had suffered bleeding injuries and the lungis seized by the investigating agency from the accused contained bloodstains. The Serologist has opined that the bloodstains are of a human being but was not able to establish the blood group. As noted above, learned counsel for the appellant had contended that in the absence of such identification of the blood group the stains found on the lungi would not in any manner inculpate the accused in the crime. We do not think this argument can be accepted. The accused has admitted that the lungis belonged to him and were seized from him, for that matter he says he gave the lungis to the investigating officer but he has not explained how the bloodstains which are at least proved to be human blood came to be there on the lungis. The absence of any explanation in this regard would only strengthen the prosecution case that blood must have stained the lungis at the time of the attack on the deceased." (page 188)
In Kansa Behera vs state of Orissa - 1987 3 SCC 480 - the Supreme Court held:"As regards the recovery of a shirt or a dhoti with bloodstains which according to the serologist's report were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and, therefore, it could not positively be connected with the deceased. In the evidence of the investigating officer or in the report, it is not clearly mentioned as to what were the dimensions of stains of blood. Few small bloodstains on the clothes of a person may even be of his own blood especially if it is a villager putting on these clothes and living in village. The evidence about the blood group is only conclusive to connect the bloodstains with the deceased. That evidence is absent and in this view of the matter, in our opinion even this is not a circumstance on the basis of which any interference could be drawn." (Page 484)
Re-examinationDespite a long line of decisions starting from Chanan Singh v/s state of Haryana 1971 SCC (Cr) 714 to the effect that re examination of witnesses in a criminal trial on behalf of the prosecution must be confined to clarification of ambiguities which may have emerged during the cross examination, the Supreme Court in the case of Rammi versus State of MP 1999(8) SCC 649 held without reference to the previous case law as under:"There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross examination he has the liberty to put any question in re-examination to get the explanation. The public prosecutor should formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the public prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.Even if the public prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions.A public prosecutor who is attentive during cross-examination cannot but be sensitive to discern which answer in cross-examination requires explanation. An efficient public prosecutor would gather up such answers falling from the mouth of a witness during cross examination and formulate necessary questions to be put in re-examination. There is no warrant that re-examination should be limited to one or two questions. If the exigency requires any number of questions can be asked in re-examination." (Page 655)
Dying declarationIn a number of decisions culminating in Paparambaka Rosamma versus state of AP 1999(7) SCC 695 Supreme Court repeatedly held that where a doctor was present, the magistrate may record a dying declaration but it is imperative that the doctor certify that the injured was in a fit state of mind at the time of making the declaration. In Paparambaka's case the Supreme Court held:"In our opinion, in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration." (Page 701) … In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessary in a fit state of mind. This distinction was overlooked by the courts below". (page 702)
Earlier, in Mani Ram versus state of MP 1994 (Supp) 2 SCC 539 the Supreme Court similarly held:"… in a case of this nature, particularly when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor after duly being certified by the doctor that the declarant was conscious and in senses and was in a fit condition to make the declaration. These are some of the important requirements which have to be observed". (Page 540)
In innumerable decisions culminating in Amarjeet Singh versus state of Punjab (a three-judge bench decision) 1995 (supp) 3 SCC 217 -- the Supreme Court repeatedly held that sealing has to be done on the spot
Both the three-judge Bench decisions in Paparambaka's case as well as the decision in Mani Ram's case was departed from by the Supreme Court in Koli Chunilal Savji versus state of Gujarat - 1999 (9) SCC 562 - in the following fashion:"In the case of Mani Ram versus state of MP, no doubt this Court has held that when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor and after being duly certified by the doctor that the declarant was conscious and in his senses and was in a fit condition to make the declaration. In the said case the Court also thought it unsafe to rely upon the dying declaration on account of the aforesaid infirmity and interfered with the judgment of the High Court. But the aforesaid requirements are a mere rule of prudence and the ultimate test is whether the dying declaration can be held to be truthful one and voluntarily given." (page 566)
Ultimately, a Constitutional Bench of the Supreme Court was formed, and in Laxman versus state of Maharashtra - 2002(6) SCC 710 - the Constitutional Bench referring to its decision in Paparambaka's case held that the view that a doctor's certificate stating that the injured was in a fit state of mind to make a statement was necessary for a dying declaration to be relied upon, was a view "too broadly stated and is not the correct enunciation of law". (Page 715)
SealingIn innumerable decisions culminating in Amarjeet Singh versus state of Punjab (a three-judge bench decision) 1995 (supp) 3 SCC 217 -- the Supreme Court repeatedly held that sealing has to be done on the spot by the investigation officer and that non-sealing of the articles recovered or seized would be considered a serious infirmity. In Amarjeet Singh's case the Supreme Court held:"The non-sealing of the revolver on the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out." (page 218).
All this long line of precedents was discarded by the Supreme Court in 2002 Cr LJ 944, once again without noting judgments to the contrary, by criticising the approach as "a technical approach" and condemned the trial court for making "a mountain out of a mole hill on such a frivolous ground". (Page 34). The Supreme Court held as under:"Holding that the only seized weapons were shown to the press, the trial court committed a mistake and it has unnecessarily tried to make a mountain out of a molehill on such a frivolous ground."
Thereafter in Ganesh Lal versus state of Rajasthan - 2002(1) SCC 731- a similar observation on law is recorded:"In such a situation, merely because the articles were not sealed at the places of seizure but were sealed at the police station, the recovery and seizure do not become doubtful." (Page 736)
Similarly in Rajendra Kumar vs state of Rajasthan - 2004 SCC (Cri) 713, where a submission was made by counsel for the accused to the effect that the bangles allegedly recovered were not sealed. The Court held:"We do not think much importance can be attached to the fact that these bangles were not sealed at the time when recovery was made." (Page 716)
Arrest of femalesDeparting from a long tradition of not arresting women at night and not arresting women in the absence of a female constable, the Supreme Court in state of Maharashtra versus Christian Community Welfare Council of India - 2003(8) SCC 546 - held:"Herein we notice that the mandate issued by the High Court prevents the police from arresting a lady without the presence of a lady constable. The said direction also prohibits the arrest of a lady after sunset and before sunrise under any circumstances. While we do agree with the object behind the direction issued by the High Court in sub-para (vii) of the operative part of its judgment, we think a strict compliance with the said direction, in a given circumstance, would cause practical difficulties to the investigating agency and might even give room for evading the process of law by unscrupulous accused. While it is necessary to protect the female sought to be arrested by the police from police misdeeds, it may not be always possible and practical to have the presence of a lady constable when the necessity for such arrest arises, therefore, we think this direction issued requires some modification without disturbing the object behind the same. We think the object will be served if a direction is issued to the arresting authority that while arresting a female person, all efforts should be made to keep a lady constable present but in the circumstances where the arresting officers are reasonably satisfied that such presence of a lady constable is not available or possible and/or the delay in arresting caused by securing the presence of a lady constable would impede the course of investigation, such arresting officer for reasons to be recorded either before the arrest or immediately after the arrest be permitted to arrest a female person for lawful reasons at any time of the day or night depending on the circumstances of the case even without the presence of a lady constable." (page 549)
Exaggeration by witnessesIn their desire to push up the rate of conviction lies, exaggeration, embroidery and emballishments have become intrinsically mixed up with admissible evidence against the accused in criminal trials. Normally, in any other jurisdiction, the evidence of witnesses who lie or exaggerate would never be the basis of a conviction. The evidence would be frowned upon. In most jurisdictions in America or Europe, the evidence would be discarded lock, stock and barrel. In India however, the Supreme Court has laid down a very low standard for accepting untruthful evidence against accused persons. In SA Gaffar Khan versus VR Dhoble - 2003(7) SCC 749 - the Supreme Court held as under:"The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars… It is merely a rule of caution… The doctrine is a dangerous one especially in India for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main… The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate an exaggeration, embroideries or embellishment." (Page 764).
In a subsequent case Gangadhar Behera & Ors vs state of Orissa - 2003 SCC (Cri) 32, the Supreme Court went even further holding:"Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained." (Page 42)
These observations of the two-judge Bench of the Supreme Court are directly contrary to coordinate benches and even larger benches. In case after case, the Supreme Court has held that if a witness is found lying then it would be very hazardous to rely on part of his evidence while rejecting the other part. The notion of separating chaff from the grain is alien to criminal law jurisprudence and cannot be used in the context of witnesses who are lying and exaggerating and certainly not in the case of witnesses whose testimony has been found substantially false.
In case after case, the Supreme Court has held that if a witness is found lying then it would be very hazardous to rely on part of his evidence while rejecting the other part. The notion of separating chaff from the grain is alien to criminal law jurisprudence and cannot be used in the context of witnesses ...
In the case of RP Thakur versus state of Bihar - 1974 (3) SCC 664 - Supreme Court held:"If Nakuldeo could involve one person falsely, one has to find a strong reason for accepting his testimony implicating the others." (page 665)
Similarly in Suraj Mal versus State - 1979(4) SCC 725 - the Supreme Court held:"It is well-settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses … In other words, the evidence of witnesses against Ram Narain and the appellant was inseparable and indivisible." (page 726)
POTAIn Kartar Singh's case, the Supreme Court was called upon to decide a challenge to the constitutional validity of TADA. In the Peoples Union for Civil Liberties versus Union of India 2004(9) SCC 580, the Supreme Court decided the constitutional validity of the Prevention of Terrorism Act, 2002. By the time the case came to be decided on the December 16, 2003, there were widespread protests against the misuse of TADA and the roping in of innocent people. When this was brought to the notice of Supreme Court at the beginning of the hearing the Supreme Court held:"Another issue that the petitioners have raised at the threshold is the alleged misuse of TADA and the large number of acquittals of the accused charged under TADA. Here we would like to point out that this Court cannot go into and examine the "need" of POTA. It is a matter of policy. Once legislation is passed the government has an obligation to exercise all available options to prevent terrorism within the bounds of the Constitution. Moreover, we would like to point out that this Court has repeatedly held that mere possibility of abuse cannot be counted as a ground for denying the vesting of powers or for declaring a statute unconstitutional". (page 598)
As in Kartar Singh's case the Supreme Court missed the bus. The issue was not "a mere possibility of abuse" but rather one of persistent and rampant abuse of a statute. As stated earlier, while the Supreme Court was hearing the case, there were widespread allegations of misuse of POTA and there were numerous articles appearing in the newspapers on the misuse of POTA by the authorities. In circumstances where the petitioners are in a position to demonstrate that the statute and the misuse of the statute are so intrinsically interwoven that it is impossible for any court to deal with one without the other, was it permissible for the Supreme Court to dismiss the challenge and ignore widespread misuse of the statute in a summary manner? Ultimately, Government of India itself accepted that POTA was widely misused and that there was widespread public dissatisfaction with the Act. The Act was repealed. POTA was considered, as was TADA, as a black period of criminal law jurisprudence. Yet the Supreme Court in both the instances gave these repressive statutes a clean chit.When it was argued that lawyers and journalists who are bound by their code of conduct and ethics to maintain confidentiality with respect to matters covered by lawyer - client and journalist - source privilege, the Supreme Court dismissed this off-hand as under:"It is settled position of law that a journalist or lawyer does not have a sacrosanct right to withhold information regarding crime under the guise of professional ethics… There is also no law that permits a newspaper or a journalist to withhold relevant information from courts though they have been given such power by virtue of Section 15(2) of the Press Council Act, 1978 as against the Press Council… Of course the investigating officers will be circumspect and cautious in requiring them to disclose information. In the process of obtaining information, if any right of a citizen is violated, nothing prevents him from resorting to other legal remedies." (page 603)
Dealing with Section 32 of POTA which made it admissible confessions made to a police officer and also dealing with Section 32(4) and (5) which require the confession to be sent to magistrate, the Supreme Court held:"In our considered opinion the provision that requires producing such a person before the Magistrate is an additional safeguard. It gives that person an opportunity to rethink over his confession. Moreover, the Magistrate's responsibility to record the statement and the enquiry about the torture and provision for subsequent medical treatment makes the provision safer." (page 612)
In the earlier section dealing with TADA we had demonstrated how smaller benches of the Supreme Court disregarded the Constitutional Bench decision in Kartar Singh's case holding that the guidelines laid down by the Court in that case were to be scrupulously followed. Now in the POTA case we have set out the finding of the Supreme Court above mentioned only to demonstrate that subsequent smaller benches of the Supreme Court departed from this binding observation in the PUCL case to hold that the magistrate has virtually no role to play and almost acts only as a post office.
Medical vs ocular evidenceIn a series of decisions starting with NB Mitra vs SC Roy - AIR 1960 SC 706 - the Supreme Court has acquitted accused persons when the medical evidence was explicit and the ocular evidence was clearly at variance with the medical evidence. There are no doubt cases where the two, despite apparent contradiction, can be reconciled. However in cases where there is a clear contradiction which cannot be explained reasonably, the Supreme Court has repeatedly held that the benefit of doubt will go to the accused persons. Now in a startling reversal, once again without reference to binding precedent, the Supreme Court has, in Gangadhar Behera & Ors vs state of Orissa - 2003 SCC (Cr) 32, held:"At this juncture, it would be appropriate to deal with the plea that ocular evidence and medical evidence are at variance. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant." (Page 44)
This two-judge bench decision is directly contrary to the three-judge bench decision in Mitra's case above-mentioned where the magistrate made a direction to the Jury as under:"Now, gentlemen, when a medical witness is called as an expert he is not witness of fact. Medical evidence of an expert is evidence of opinion, not of fact. Where there are alleged eyewitnesses of physical violence which is said to have caused the hurt, the value of medical evidence by prosecution is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence, or any medical evidence which the defence might itself chose to bring is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Therefore, you must remember this particular point of view that if you believe the eyewitnesses, then there is no question of having it supported by medical evidence, unless the medical evidence again in its turn goes so far that it completely rules out all possibility that such injuries could take place in the manner alleged by the prosecution and that is a point which you should bear in mind, because if you accept the evidence of the eye-witnesses, no question of further considering the medical evidence arises at all." (Page 1034)
The three-judge bench of the Supreme Court disagreed:"I do not think that the direction is either correct or complete. It is incorrect, because a medical witness who performs a post-mortem examination is a witness of fact, though he also gives an opinion on certain aspects of the case. Further, the value of a medical witness is not merely a check upon the testimony of eye-witnesses; it is also independent testimony, because it may establish certain facts quite apart from the other oral evidence. If a person is shot at close range, the marks of tattooing found by the medical witness would show that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds, would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is often direct evidence of the facts found upon the victim's person." (Page 1034)
Similarly in Mohar Singh vs state of Punjab - 1981 Supp. SCC 18 - the Supreme Court had held:"In view of this glaring inconsistency between the ocular and medical evidence, it will be extremely unsafe and hazardous to maintain the conviction of the appellants on such evidence." (Page 20)
Report to the magistrate Section 157 CrPC requires the Officer in charge of a police station to "forthwith" send a report to the magistrate on the police receiving information in respect of the commission of an offence. There is a long line of binding precedent of the Supreme Court (AIR 1976 SC 2423, AIR 1980 SC 638) to the effect that a late dispatch of the report to the magistrate could provide a basis for suspicion that the FIR was the result of consultation and deliberation and that it was recorded later than the date and time mentioned. However, in state of J&K vs S Mohan Singh - 2006 9SCC 272, where the crime is said to have occurred on 23.7.85 at 6 pm, the FIR was lodged at 7.20 pm and a copy of the FIR was received by the magistrate on the next day at 12.45 pm the Supreme Court held:"In our view, copy of the first information report was sent to the magistrate at the earliest on the next day in the court and there was no delay, much less inordinate one, in sending the same to the magistrate." (Page 275)
Similarly in Anil Rai versus state of Bihar - AIR 2001 SC 3713 - the Supreme Court introduced a new concept namely "extraordinary delay". Without reference to the previous case law, the law on the point is changed in the following manner:"Extraordinary delay in sending the copy of the FIR to the magistrate can be a circumstance to provide a legitimate basis for suspecting that the first information report was recorded at much later day than the stated day affording sufficient time to the prosecution to introduce improvements and embellishment by setting up a distorted version of the occurrence. The delay contemplated under section 157 of the Code of Criminal Procedure for doubting the authenticity of the FIR is not every delay but only extraordinary and unexplained delay. However, in the absence of prejudice to the accused the omission by the police to submit the report does not vitiate the trial." (page 3174)
Names of witnesses omitted The Supreme Court has held repeatedly that if the name of the witnesses are omitted in the FIR, unless a plausible explanation is given, the omission could be treated as a ground to doubt the evidence. In Marudanal Augusti versus state of Kerala - 1980(4) SCC 425 - the Supreme Court acquitted the accused persons because though it was stated in the Court evidence that they had witnessed the assault, they were not mentioned at all in the FIR. To the contrary, however, in Rajkishore Jha vs. state of Bihar - 2003 11 SCC 519, the Supreme Court held: "The High Court has noted that the names of witnesses do not appear in the first information report. That by itself cannot be a ground to doubt their evidence." (Page 520)
In a series of decisions starting with NB Mitra vs SC Roy - AIR 1960 SC 706 - the Supreme Court has acquitted accused persons when the medical evidence was explicit and the ocular evidence was clearly at variance with the medical evidence
Similarly in Anil Rai versus state of Bihar - AIR 2001 SC 3173 - the Supreme Court held that the non-inclusion of the names of the witnesses in the FIR could have been on account of the fact that the wife who had lodged the FIR was perturbed on the murder of her husband.
The case of the defenceIn a striking unsettling of well settled criminal law procedure and jurisprudence, not referred to in the judgment, the Supreme Court has, in Tarun Bora vs state of Assam - 2002 SCC (CRI) 1568 - observed as under:"In cross-examination the witness stated as under:"Accused Tarun Bora did not blind my eyes nor he assaulted me."This part of cross-examination is suggestive of the presence of accused Tarun Bora in the whole episode. This will clearly suggest the presence of the accused Tarun Bora as admitted. The only denial is that the accused did not participate in blindfolding the eyes of the witness nor assaulted him. (Page 1572)
We have already noticed that in the cross-examination of PW 1, a suggestion was put to him that the appellant Tarun Bora had neither participated in blindfolding him nor assaulted him. This is clearly indicative of the presence of the appellant and participation in the kidnapping episode." (Page 1573) Similar is the case reported in 2002 SCC (Cr) 217.
Inadmissible evidenceIn BS Panchal vs state of Gujarat - AIR 2001 Supreme Court 1158 - the Supreme Court began by remarking:"We have reached the stage when no effort shall be spared to speed up trials in the Criminal Courts."
The Court then went on to observe:"It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection." (Page 1158)"Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item or oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. There is no illegality in adopting such a course." (Page 1159)
There are major problems with this approach. First, in all jurisdictions trial court judges are expected to deal with the objections on the spot in criminal trials. There was no evidence before the Supreme Court to indicate that the practice of deciding objections as to admissibility of evidence there and then, was "archaic". This observation is based more out of frustration than a serious attempt to deal with delays in criminal trials. Secondly, recording all objections and proceeding nevertheless in a criminal trial may cause grave prejudice to the accused and bias the mind of the judge as inadmissible evidence may come on record, albeit temporarily. Thirdly, it allows the judge to be mechanical in his approach and behave more as a recorder of evidence rather than an adjudicator. It is one thing to say that complex issues relating to admissibility of evidence may be temporarily postponed after recording the objections. It is an entirely different thing to lay down a rule of this sort for every objection.
Standard lowered In a startling departure from the well established standard of proof for criminal cases of "beyond reasonable doubt" the Delhi High Court has, without reference to binding case law to the contrary now lowered the standard to "moral certainity". In Alamgir vs state - 2003 1 SCC 21 - a two-judge bench of the Supreme Court while noticing that a High Court had defined the standard thus chose to leave it alone:"Incidentally, the High Court did emphasise on the true and correct meaning of the phraseology "reasonable doubt" to be attributed thereon and it is on this score, the High Court records:'Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the judge'."We are, however, not expressing any opinion with regard thereto." (Page 26)
This is directly contrary to the Constitutional Bench's decision in Haricharan Kurmi vs state of Bihar - AIR 1964 SC 1184 - where the constitutional bench categorically said:"In criminal trials, there is no scope for applying the principle of moral conviction." (Page 1184)
Accused do not figure Once again contrary to a long line of binding precedent to the effect that if the names of the accused do not figure in the statements made to the police during investigation, then normally such an omission could possibly cast a doubt on the prosecution case. However, in Alamgir versus State - 2003(1) SCC 21 - the Supreme Court held:"Admittedly, this piece of evidence was not available in the statement of the witness under Section 161 CrPC, but does it take away the nature and character of the evidence in the event there is some omission on the part of the police official? Would that be taken recourse to as amounting to rejection of an otherwise creditworthy and acceptable evidence - the answer, in our view cannot but be in the negative." (page 27)
Confessions against co-accusedWe start with the three-judge Bench decision of the Supreme Court in Kashmira Singh versus state of Madhya Pradesh - AIR 1952 SC 159 - where it was held as under:"The confession of an accused person is not evidence in the ordinary sense of the term as defined in S. 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. (page 159)
As regards its use in the corroboration of accomplices and approvers, a co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no way lessened when the "evidence" is not on oath and cannot be tested by cross-examination. Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the judge as having no greater probative value. It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed. The tendency to include the innocent with the guilty is peculiarly prevalent in India and it is very difficult for the court to guard against the danger. The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measures implicates such accused." (page 159)The three-judge bench decision in Nathu versus state of Uttar Pradesh - AIR 1956 SC 56 - where it was held therein:"… that such statements were not evidence as defined in S. 3 of the Evidence Act, that no conviction could be founded thereon, but that if there was other evidence on which a conviction could be based, they could be referred to as lending assurance to that conclusion and for fortifying it." (Page 154)
This was followed by another three-judge Bench decision in Ram Chandra versus state of UP - AIR 1957 SC 381 - where the Court held:"Under S. 30 confession of a co-accused can only be taken into consideration but it not in itself substantive evidence." (Page 560)
Then we have the decision of the Constitutional Bench of the Supreme Court in the case of Haricharan Kurmi versus state of Bihar - AIR 1964 SC 1184 - where the Supreme Court held that:"... in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. (para 12)
Thus, the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence." (page 844)
... in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, ...
Directly contrary to this line of binding precedent is a decision of the two-judge Bench in K Hashim versus state of TN - 2005(1) SCC 237 - where the Supreme Court held:"If it is found credible and cogent, the court can record a conviction even on the uncorroborated testimony of an accomplice." (Page 247)
False defence as evidenceThere is a plethora of binding precedents to the effect that a false defence can never be taken as substantive evidence. In the case of circumstantial evidence, it is only when the chain of circumstances is complete that a false defence can at best be considered an additional circumstance. In Shankerlal G Dixit versus state of Maharashtra - 1981(2) SCC 35 - it was held:"… falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused." (page 43)
Directly contrary to this is the two-judge Bench decision in state of Maharashtra versus Suresh - 2000(1) SCC 471 - where the Supreme Court held:"A false answer offered by the accused when his attention was drawn to the aforesaid circumstance renders that circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing "a missing link" for completing the chain." (page 480)
A study of the criminal law reports from 2001 onwards shows an increasing tendency of the superior courts to use extra-judicial confessions as substantive evidence in the conviction of the accused, on par with other forms of evidence
This was followed by another two-judge Bench in Mani Kumar Thapa versus state of Sikkim - 2002(7) SCC 157 - where the Supreme Court held:"If the said principle in law is to be accepted, the statement of the appellant made under Section 313 CrPC being palpably false and there being cogent evidence adduced by the prosecution to show that the appellant had given two other versions as to the incident of 12.2.1988, we will have to proceed on the basis that the appellant has not explained the inculpating circumstances established by the prosecution against him which would form an additional link in the chain of circumstances." (page 167)
Condonation of tortureIn Kamalanantha vs state of TN - 2005 5 SCC 194 - the women who had alleged that they were raped stated: "After the police beat us, myself and other girl informed that we were raped by Premanandha. " In a shocking condonation of torture making admissible evidence taken after beating of the witnesses by the police, the Supreme Court held:"It is in that context the High Court held that the so-called beating could have meant to shake off their inhibition and fear, to make them free to say what they wanted to say. In the given facts and circumstances of this case, beating will mean to remove the fear psychosis and to come out with truth. We do not find any infirmity in the concurrent findings recorded by both the courts below on this court".
Extr-judicial confessionsA study of the criminal law reports from 2001 onwards shows an increasing tendency of the superior courts to use extra-judicial confessions as substantive evidence in the conviction of the accused, on par with other forms of evidence. The latest is Ram Singh vs Sonia - 2007 2 SCC (Crl.) 1. This is contrary to a long line of binding precedent holding, as in Rahim Beg vs state of UP - 1972 3 SCC 759 - that "the evidence of the extra judicial confession is a weak piece of evidence." (Page 765)
162 CrPC statementsThe superior courts are increasingly inclined to brush aside objections relating to statements made in court which are improvements from the statements made to the police during investigation. In a long line of decisions, as in Yudhishtir vs state of MP - 1971 3 SCC 436 - the Supreme Court has originally held that crucial omissions in the statements to the police must be considered an improvement and may make the evidence before the court to be considered as "false and unacceptable". (Page 439)
- The author is former chairperson of the Bar Council of India
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