“Let this be the last judgment ever written on communal consideration” [Translation]

Last month, LiveLaw reported a judgment of the Madras High Court, which had set aside a judgment delivered by District and Sessions Judge No.II, Kancheepuram.

The trial court in that case, shockingly, convicted all the accused not on any legal ground but on mere surmises. The trial Court concluded that they would have committed the crime as according to the trial Court, the traditional occupation of the people belonging to that community was theft.

Whilst rightly setting aside the trial court judgment, the High Court also said, “In our little experience, we have not come across this kind of worst judgment. Let this be the last judgment ever written on communal consideration”.

The Madras High Court, in its order, also extracted some of the paragraphs from the impugned judgment delivered by the District and Sessions Judge, which incidentally is in Tamil. I have done my best to translate those portions to English. It was such a painful experience. I genuinely have no words to express what I feel. With no comments, below is the translation.

Translated portions of the Sessions Court judgment

“(7) Before resolving the issues in the present case, it is necessary to state the socio-economic background of the 5 persons who are named as accused. All of these accused belong to a Scheduled Tribe community – named Irulars as per the registers maintained by the Tamilnadu Revenue Department – a small portion of the Scheduled Tribe population which generally lives in the northern districts of Tamilnadu, and are called differently in different districts, like Villiyars, Poosaalis, etc. These Irular community people, for many years – until 25 years ago – did not enter the mainstream society and were living in small groups in agricultural villages and government properties – without building any residences of their own – by accommodating themselves in village landlords’ motor tents and small huts, and initially their occupation was hunting rats, snakes, mongoose, rabbits, etc. and committing minor crimes. Due to the current social changes, the community of the Accused, Irulars started learning habits like getting crap haircut, wearing shirts, full-length pants like others, and also started the habit of going to schools like others. When these scheduled tribe community was not developed yet, and did not communicate and get along with the rest of communities, they were doing the same traditional occupation. Since now they have come to the centre-stage of the society like other communities, the behaviours of the other community people have also caught on to them is what the present case depicts. These Irular community people initially lived their lives by catching snakes, and selling snake skins. Further, they also fearlessly and effortlessly removed snakes from others’ houses, lands, motor rooms, and got small amounts from such household owners as a stipend. Not only that, in initial days, they lived their lives by hunting small animals, and thereafter selling/ eating them. Irulars who lived in coastal villages also had fishing as their occupation. When these people were practising independent culture, they neither had marriage nor divorce ceremonies. It does not appear that they still have such ceremonies. For these people, Kannimaar is the family deity. Furthermore, when these people represent about their heredity, they say as if they were lineage of a deported king. The descriptions stated above by me about these people’s characteristics, though is not helpful howsoever for resolving the present case, there are no statistics to suggest that – when they lived with their independent set of cultures without any influence from common cultures – these Irular community people indulged in committing serious crimes as that were alleged to have been committed by the accused. This case explains to us that, these community people, due to socio-economic changes, learned various good and bad habits as exhibited by other community people as explained by the American jurists, Edwin Suther Land and Donald Gressey that crimes are also, like other subjects, involve “Learning Process“, and therefore as a result of living closely with other community people, the accused-belonging community who did not involve themselves in bad habits during initial periods and had Virgin Quality, learned characteristics that were exhibited by other people.”

“9. In India and across the world, nobody commits crimes by keeping the witnesses close-by. Committing crimes with witnesses around is as good as not committing the crime itself. The perpetrators of crimes choosing the right date, and right time to ensure that nobody is around the crime spot to see such crime is an art well known to such perpetrators. Especially in theft cases, choosing such right time is essential. In this case as well, the fact that the accused chose 02-01-2010 11:00 pm at night to rob Ponniyamman Temple only shows that they were experts at committing such crimes, and without realizing how much monies the temple would have had, attempted to rob rather impoverished temple, and killed Subramani who came in the way of robbery, and after 10 months, they got caught and gave detailed confession statements before PW 15 Gurunathan, without an iota of doubt, explaining how they committed murder, what all they had stolen, what weapons they used to commit murder, who is in possession of such stolen properties, who all are committed the murder.”

“10. … Also that among these captured materials, as I stated before, since all the accused are Athivasis could not have been possessed by them, especially that, 1. Gold thali pottu, 2. Silver kan malar, 3. Bronze poojai plate, 4. Iron knives of Temple statutes, are not claimed by accused as their properties in their pleadings. It does not appear that the possession of these materials were forced upon the accused, a formal confession statements were obtained, PW 19 – Inspector with the help of PW 15 – built up an imaginary story that these materials that are associated with the Hindu temple were captured from the accused on a compulsion that the accused and the above offences can only then be related. I do not see any such necessity for PW 19 either.”

This case is not a politically important murder case. The person who died in the incident, Subramani was an ordinary and poor man who collected old papers, plastics etc. and sold it for whatever they were worth, incapable of even sleeping at a house. Whether the case involved his death or murder was closed or not, nobody is going to come running to argue for him. There is not even such representation made by the accused that someone will argue for the deceased.”

“These days, we can see that when the Government cannot solve a case, and even when the Government makes representation before the Supreme Court that they cannot solve the case, due to increasing pressures made through the “Media Trial” by the so-called 4th Estate, the electronic media, even the highest court that is the Supreme Court refuse to accept the “closure report” filed under Section 173 of Cr.P.C. and order reinvestigation by higher agencies like CBI. Recently in Delhi, in the death case of Arushi (14), the only daughter of Doctor Talwar couple, where she died inside a closed house, when the normal police could not solve the case, the Supreme Court transferred the investigation to CBI, and despite CBI conducting nacro-analysis on Talwar to know the truth, they struggled to find the truth and submitted Negative Final Report in the trial court, which was then objected through various public interest litigations filed before the Supreme Court, and the Supreme Court refused to accept the Negative Final Report and ordered once again reinvestigation and based on that a Positive Final Report was filed, and trial was conducted and Arushi’s father and mother, i.e. Talwar couple, were convicted for murder. When we see such all these things, even if a case do not have strength on its own, when public interest organisations and Free Media impose pressure, such cases get their strength. It does not appear that such kind of pressure was put on the investigating authority of this case. In that situation, there is no necessity for PW 19 Inspector to manufacture false charges against these accused with the help of PW 15 by carrying out ritualistic compliance, that is ritualistic arrest, ritualistic confession statements, ritualistic records, etc. When there is no such political pressure, money pressure or media pressure, there is no necessity for PW 19 to frame innocent persons as the accused who have committed murder.”

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Patriotism – is it stupid and immoral?

This question, because that’s what the Russian novelist and thinker Leo Tolstoy (1828-1910) believed.

According to him –

Patriotism is stupid because every patriot holds his own country to be the best of all whereas, obviously, only one country can qualify. It is immoral because it enjoins us to promote our country’s interests at the expense of all other countries and by any means, including war, and is thus at odds with the most basic rule of morality, which tells us not to do to others what we would not want them to do to us.

He is not alone.

Emma Goldman (1869-1940), a popular anarchist said – “Patriotism assumes that our globe is divided into little spots, each one surrounded by an iron gate. Those born within this little spot consider themselves superior, nobler, more esteemed and more intelligent than the living beings inhabiting any other spot. It is therefore the duty of everyone living on that chosen spot to fight, kill, and die in the attempt to impose superiority upon all others. The inhabitants outside that little spot reason in the same manner, of course”.

Not just historical philosophers or anarchists.

The present-day American political theorist George Kateb argues that patriotism is “a mistake twice over; it is typically a grave moral error and its source is typically a state of mental confusion”. He believes that a country “is not a discernible collection of discernible individuals”; it is rather “an abstraction… a compound of a few actual and many imaginary ingredients”. Therefore patriotism is “a readiness to die and to kill for an abstraction… for what is largely a figment of the imagination”.

Some of these arguments can be easily countered. Some of these arguments may not stand the test of time. One can possibly be patriotic about his own country and still respect all other countries. One can possibly be patriotic about his own country and still not engage in wars. Patriotism may yield in humans more good than bad. But, Tolstoy and others have a point. A point which is worth discussing even today.

*****

The Oxford English Dictionary defines a ‘patriot’ as “one who disinterestedly or self-sacrificingly exerts himself to promote the well-being of his country”.

Stephen Nathanson, a professor of philosophy at Northeastern University, Boston and the author of the book – ‘Patriotism, morality, and peace‘, defined patriotism as involving:

  1. Special affection for one’s own country
  2. A sense of personal identification with the country
  3. Special concern for the well-being of the country
  4. Willingness to sacrifice to promote the country’s good

Standford’s study on ‘Patriotism’ lists five types of Patriotism, (i) extreme, (ii) robust, (iii) moderate, (iv) deflated and (v) ethical. Though the degree of attachment to the ‘notion of patriotism‘ may vary in these types, all of them generally arise out of any of the four ingredients that Nathason has described.

*****

Patriotism is a notion.

Probably one of the most successful and powerful man-made notion. It is so successful that if you challenge the notion, you may even be treated as a traitor.

We are advised to love our country as fatherland and mother country. Such usage seems to indicate that we should love our country as we love our parents. Although children are not usually asked to die for their parents, and most parents wouldn’t accept the offer if it were made, some imagine the country as a super-parent that may ask its children to die for it. We are even told not to ask what our country has done for us; but to ask what we have done for our country.

This arises out of gratitude. That we will not exist if not for the country. That we won’t be what we are if not for the country.

Kateb retaliates this view. He says, “I do not literally owe to my country my coming into existence. It’s true that I could not go on if I didn’t live in some society, but my genes are not politically identifiable; a country is not a biological entity. My parents could have moved after I was born; my country could have lost the territory in which I was born; I could have been abducted and raised elsewhere. My parents are one thing, my country another, altogether different”.

He emphasizes, “A country would not exist without its people; the reverse is literally false and appears true only by metaphorical distortion”.

Patriotism is a notion. A notion which is subject to challenge. A notion which is subject to change.

*****

Patriotism works just like religion. Arguably.

Country is the god. Its leaders and senior military officers a priesthood. Patriotism, as it is with most of the religions, has its extreme sensitiveness and fanatical intolerance. It has its periodical rituals. It has symbols, anthems, beliefs, flags. Maybe the God is real. Maybe the religions are pure. But that’s not the point here.

Gustave Herve (1871-1944)a French politician, went a step ahead and called patriotism “a superstition, one far more injurious, brutal and inhumane than religion”.

After all, there is a widespread belief that ‘obedience to patriotism’ has killed just as many people as (if not more) ‘obedience to religion’ has killed. Though one would ideally like to see the actual numbers. It may not be morally acceptable to fight and kill for religion (though there are plenty of exceptions even today). However it is perfectly acceptable to fight and kill for patriotism.

What one fails to understand is this – in a war, countries do not attack each other. Country is not a person.

A bunch of idiots in one country decide to kill humans from the other country because they belong to the other country and a thousands of patriots execute the plan. The larger citizens of a country may have nothing to do with the war they’re fighting for or the war they’re subjected to. If that larger citizens of a country support the war because of patriotism, the bunch of idiots have succeeded. Patriotism is a tool that few people successfully used to get what they wanted. Pride, power, money.

As Samuel Johnson puts it, “Patriotism is the last refuge of a scoundrel”.

*****

Quite obviously, there are contrary arguments.

Patriotism can be good. It is rather good. It teaches solidarity with others, concern for land and its resources, shared goals and visions, etc. It helps the society to involve in a healthy competition. But then, the notion of being-grateful-for-born-in-a-particular-territory will do more good if it extends to the global arena.

People also have special affection for their own town or city or village. There is a sense of personal identification with the place. But there is no patriotism. There are disputes, but not wars. The difference is the degree of attachment to the notion. Regionalism in its extreme is stupid irrespective of the size of the territory. Town, State or a Country.

One may love his country and countrymen. He may serve his country and countrymen. But to have a sense of belief that his country’s interests have to be promoted at the expense of all other countries and by any means is stupid. Embrace your religion. Respect other religions. And allow some space for atheists too.

Thousands of years back, one Tamil poet, Kaniyan Poongundranar had said it in so many words:

“யாதும் ஊரே யாவரும் கேளிர்”

(“To us all towns are one, all men our kin”)

*****

Bibliography


Arrest – Frequently Asked Questions

“Ignorance of law is no excuse unless of course you’re a lawyer” – anonymous 

Around 8 pm, on a Sunday. My friend is waiting to board a train at an awfully jammed Dadar station. One bulky police officer in uniform approaches my friend and tells him that he wants to check his bag and mobile. Before my friend could even respond, the police officer snatches both.

The officer finds few pornographic videos saved in his mobile. He tells my friend that carrying pornographic videos in mobile is a crime and that he is going to arrest him.

Completely unaware of what has caught him in a new place, my friend requests for his mobile phone to be returned so that he could call any of his friends. The officer refuses to return the phone and tells him that he has to stay put in the station for a day. After almost 10-15 minutes of begging and unwarranted explanation of how those videos have actually got into his mobile, the officer shows an easy way-out. Win-win situation for both.

The officer guards my friend to a nearby ATM. He makes him withdraw the entire amount from his account and double-checks the same with the printed balance receipt. Takes the entire money and sends my friend off to his destination, Bangalore.

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(i) The police officer, though has the right to check your belongings on suspicion; he has no right to check your mobile phone for no reason whatsoever; (ii) Possession of pornographic videos in your mobile is not a crime; (iii) The police officer had no right whatsoever to arrest or detain you in that situation; (iv) Whatever has happened is nothing but an extortion.

I explained my friend when he called me after boarding the train. So furious I was, I asked my friend to get down at next station, come back to Dadar, identify the police officer and file a complaint against him. I was fast reaching Dadar. He said, “I have an office to attend tomorrow”.

This happened a year back.

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It’s not just about my friend. There is a general lack of awareness amongst the common public, including highly educated people, as to when can a police arrest and what legal rights we have as citizens. Law and order is equally overwhelming these days that people are being arrested for drawing cartoons, updating facebook statustweeting about minister’s son and even drinking tea suspiciously.

So as a small step forward – FAQs on arrest. I thank my friend @suo_motu for helping me with framing the questions from a non-lawyer perspective.

1. What is the difference between: (a) police station lock up, (b) jail and (c) prison? When is a person sent to (a) / (b) / (c)? And, where is a person sent after arrest?

Police station lock up

  • Place where police generally keeps custody of an arrested person for interrogation purposes.
  • Upon arrest, a person is considered to be taken into police custody. He has to be produced before the nearest Magistrate court within 24 hours of arrest.
  • Magistrate would thereafter direct either police custody or judicial custody considering the facts and circumstances of the case.
  • In any event, police custody cannot be extended for more than 15 days.

Jail

  • Place where undertrials (people who are awaiting trial in a competent court) are kept when the court directs judicial custody of the accused.
  • Generally followed by police custody.
  • Persons who have been convicted for minor offences are also sometimes kept in ‘jail’.

Prison

  • Place where convicts (people who are sentenced by a judge) of major crime are generally kept.

However in India, the term ‘Jail’ is misleadingly used to mean both ‘Jail’ and ‘Prison’.

2. When can a person be arrested? only for charges filed under IPC? or can someone be arrested for charges filed under civil law also? (for e.g. Ramalinga Raju of Satyam was arrested for fraud I think)

Arrest happens generally for criminal offences, which not necessarily have to be embodied under Indian Penal Code (IPC). IPC is not an exclusive Act under which all the criminal offences are defined. There are plenty of criminal minor Acts, including Information Technology Act, Prevention of Money Laundering Act, Prize Chits and Money Circulation Scheme (Banning) Act, Arms Act, NDPS Act, and etc.

Though there is a provision for civil arrest under law, the same is exercised very rarely by courts and as a last resort in case of execution of a civil decree.

[Ramalinga Raju was arrested for various criminal charges but not for any civil case. He was charged under various charges including fudging of account books, forgery, fabricating of invoices and fixed deposit receipts, and falsifying of Income Tax returns.]

3. How long can a person be arrested for? (before he has to be produced in court)

A person who is arrested and detained in custody has to be produced before the nearest magistrate within a period 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate.

4. What is the difference between complaint / FIR / chargesheet?

First Information Report (FIR) is the basic report that is registered by police authorities upon receipt of complaint. FIR would generally have following details: (i) Name & address of the complainant, (ii) Sections for which FIR is registered, (iii) Place & date of occurrence, (iv) Name & address of the accused, (v) Particulars of properties involved, (vi) Brief contents of the complaint and (vii) Reasons for delay in filing FIR, if any.

Chargesheet is a report filed by the investigating authorities upon investigation. This report would generally have post investigation findings along with the witness statements and affidavits. The chargesheet names the persons against whom the charges are framed. The trial starts after filing of chargesheet.

Complaint is commonly used to refer complaint filed by an individual with the police authorities before registration of FIR and also a private complaint filed by an individual before the Magistrate.

5. Which organizations have the authority to force an arrest? Police, CBI, anybody else?

Besides police agencies and CBI, following authorities have the power to arrest:

(i) Enforcement Directorate (under Section 19 of Prevention of Money Laundering Act, 2002 – see here)

(ii) SEBI (under the ordinance of September, 2013 – see here)

(iii) Central Excise and Customs (see here)

(iv) National Investigation Agency (see here)

(v) Income Tax authorities (see here)

(vi) Sales tax authorities (see here)

(vii) Serious Fraud Investigating Office (SFIO) will have the power to arrest under Companies Act, 2013. However, provisions with respect to the same are yet to be notified.

I'm the police and I'm here to arrest you.

I’m the police and I’m here to arrest you.

6. Is there a maximum time before which a crime should be reported? for example this Asaram Bapu case: some woman has complained about rape after some 10 years. Isn’t there a limit before which you should report a crime?

According to Section 468 of the Criminal Procedure Code, no court shall take cognizance of an offence after the expiry of the period of limitation and the limitation periods are as follows:

(i) 6 months – if the offence is punishable with fine only;

(ii) 1 year – if the offence is punishable with imprisonment for a term not exceeding one year;

(iii) 3 years – if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years

In effect, there is no limitation period if the offence is punishable with imprisonment for a term exceeding three years.

For all practical purposes, there is no strict rule followed with respect to limitation. Reasons for delay in filing complaint, if any, are generally recorded in the FIR. However, if there is an inordinate and unexplained delay to file an FIR, the same may be taken as a ground for seeking quashing of such FIR.

7. Can a police officer arrest without warrant?

Yes, if in case of cognizable offences, a police officer can arrest without warrant. Some of the cognizable offences are murder, robbery, theft, rioting, counterfeiting etc. Non-cognizable offences are less serious offences.

Schedule I to the Criminal Procedure Code classifies the offences under IPC as cognizable and non-cognizable.

8. What is the procedure to be followed while making arrest?

(i) While making an arrest, every police officer should bear an accurate, visible and clear identification of his name which will facilitate easy identification.

(ii) He should prepare a memorandum of arrest which shall be attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made counter-signed by the person arrested.

(iii) The police officer should also inform the person arrested (unless the memorandum is attested by a member of his family) that he has a right to have a relative or a friend named by him to be informed of his arrest.

[For all practical purposes, nobody cares.]

9. Do you have the right to meet an advocate during interrogation?

Yes, when a person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.

10. What is the difference between bail and anticipatory bail?

Bail is post-arrest and anticipatory bail is pre-arrest.

If a person apprehends that he might be arrested in a particular case, he may approach sessions court or high court seeking anticipatory bail.

After a person is arrested, he may apply for bail. In all bailable offences, bail is a matter of right and in non-bailable offence, bail is discretion of court. Though it is the discretion of the court, there are well settled principles as to when a bail has to be granted or rejected.

11. Why most of the accused despite having committed serious crimes come out of bail? Why can’t they be just jailed for longer term?

Because, the criminal law in India on this aspect works on following basic principles:

(a) There is a presumption of innocence in favour of the accused till he is found to be guilty.

(b) The bail is the rule and denial thereof is the exception. For the purpose of denial of the bail there must be extraordinary circumstances necessarily meaning that bail ought not to be denied to an accused only on the ground of general sentiments of the community as it impairs the right to liberty guaranteed to an accused.

(c) While considering the grant of bail, both the factors, namely, the seriousness of charges and the severity of punishment which the offence carries must be taken into consideration.

(d) The bail ought to be granted in a case where there are no chances of the accused fleeing away from the processes of law or in other words, the accused, who is released on bail must be readily and willingly available to submit himself to the custody of the Court at any given point of time.

(e) The grant of bail ought not to be denied only on the perceived apprehension by the Court that the petitioner, if restored to a liberty, he will tamper with the evidence. There must be some prima facie evidence on record or reasonable and justifiable grounds to believe that in case the benefit of bail is extended to an accused he is going to misuse his liberty or so as to create

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I am hoping to write a Part – II with few more questions soon.

If you have anything further to add/ ask, please write in as comments. Thanks.

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Kollam – Madurai Passenger

Window seat. Blazing weather. Senior citizens as co-passengers. Non-billing hours.

These things can generally make anyone randomly stare through the train windows and go down their memory lane before realising what a waste of time that it is.

Today – July 13, 2013. Mumbai – Nanded. Tapovan Express.

While spending most of my time counting number of buffaloes the train had crossed, for a short span of time – when no buffaloes were found – I went through my memory lane too. I plead guilty.

———

I always believed that, I have a deep & meaningful relationship with trains. I don’t, though. But for sure, I have train load of memories about trains.

Some of them are too good to be blogged. Some of them are not. Here is one of those memories.

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KOLLAM – MADURAI PASSENGER

Almost for two months (if I remember correctly, between May and June, 2003), I was attending coaching classes in Madurai for Tamilnadu law entrance exam. Cruelly, classes started at 8 in the morning.

For a 45-minutes journey from my hometown (Virudhunagar) to Madurai, I was taking Kollam-Madurai passenger which leaves at 4 am. YES, FOUR FUDGING A.M.

Three main reasons why I was taking such an early train:

(i) I wanted to study like anything, score rank one in the entrance exam, become a sincere lawyer, then an IAS officer and serve the country till I die.

(ii) The next train for Madurai was only at 8 am.

(iii) I HATE BUSES.

Actually, its only the third.

Though the schedule time was 4, it never reached at 4. If early, anytime between 5 and 5.30.

Impressed with my kollam experience and hard working nature, two of my friends studying in the same coaching centre wanted to join me that particular day.

That particular day.

They reached the station at 4.10. I reached at 4.20. No trace of a train, yet. Also no any trace of passengers in the platform. I cursed myself for reaching so early.

We thought of taking out our books and reading. But, sensibly settled down to discuss recently released Tamil movies.

5.30 – No trace of a train. Strangely, no announcement also.

5.40 – I started feeling hungry.

5.41 – We all opened our tiffin boxes and started eating.

6.00 – Still no train.

6.15 – Doubt in my mind. I didn’t tell them.

6.30 – I went to enquiry room – just to find out that train reached at 3.50 and departed at 4.

Well done, Southern Railways.

[P.S. No.1 – Luckily, those two friends didn’t clear the entrance exam and they went on to do something other than law. And, I happened to clear it with 4th ranking in the state.

P.S. No.2 – Their tiffin tasted better than mine.]


40 Years of Kesavananda Bharati!

24th April, 1973.

The day when Indian Judiciary managed to save the Constitution by a whisker.

The day when Supreme Court of India passed its judgment in Kesavananda Bharati vs. State of Kerala holding that amending power of the Parliament cannot be used to alter the basic structure or the essential features of the Constitution.

Marking 40th anniversary of passing of this landmark judgment, here is some of the interesting trivia about the case:

1. This was the largest Bench (13 Judges Bench) that had heard the lengthiest arguments and covered the widest area of case laws and legal literature in the history of the Supreme Court.

2. This decision was made by a wafer-thin majority of 7:6, i.e. with 6 judges dissenting to the majority view. (If the decision of Justice Khanna is vivisected carefully, one would find that the verdict is really 6.6:6.4!)

3. The case was heard for the longest number of days. It totally took 68 working days commencing on October 31, 1972 and concluding on March 23, 1973. The written arguments were submitted by March 27, 1973.

4. The entire case came close to being reheard because of the illness of Justice Beg. He fell ill in February and March, 1973 and was hospitalized thrice. At that time, Chief Justice Sikri had to go on a two-week trip to Europe in the last week of March and was to retire on April 24, 1973. If Beg did not sit again or if Chief Justice Sikri retired, the hearings, which had already taken five months, would have to commence once again.

5. The illness of Justice Beg left Nani Palkhivala who appeared for the Petitioner with no choice but to give up his arguments in rejoinder for the last two days.

6. Ironically, the Petitioner ‘His Holiness Kesavananda Bharati Sripadagalvaru’ neither met Nani Palkhivala nor even spoke to him. Kesavananda Bharati was actually quite surprised to see his name appearing in the papers every day and wondered why the case was taking so much time.

7. The longest judgment, covering 703 pages was delivered on April 24, 1973. The headnotes of SCC reported judgment alone runs into 80 pages.

8. The controversial summary of the judgment was prepared by the Bench however it was signed only by nine judges out of thirteen judges. Justices Ray, Mathew, Beg and Dwivedi refused to sign it.

9. Though the most important contribution of this judgment is the basic structure theory, there was no unanimity on what constituted the basic structure of the Constitution even among the judges who gave the majority view. Different examples of what constitutes basic structure were given by different judges.

10. A shocking revelation by T. R. Andhyarujina (in his book ‘The Kesavanada Bharati Case – The Untold Story of Struggle for Supremacy by Supreme Court and Parliament‘) is that the Government was in possession of some of the draft judgments even before they were delivered on April 24, 1973.

11. H.M.Seervai, one of the staunchest supporters of the unlimited power of Parliament to amend the Constitution appeared on behalf of the Respondents in the case. With his characteristic honesty, he later admitted that if the basic structure doctrine had not been laid down, the consequences would have been very grave and India would have been in danger of being converted into a police State ‘as the experience of the emergency clearly showed’.

12. The judgment was delivered on the last working day of Chief Justice Sikri. He retired on April 25, 1973. The tradition of appointing the senior most judge as the Chief Justice was abandoned and Justice Ray, who was the fourth in the line of seniority, superseded Justices Shelat, Hedge and Grover. This announcement was first made known through a radio broadcast over the All India Radio.

13. The marathon hearing yielded no relief to His Holiness Kesavananda Bharati or any of the other petitioners. But they have the consolation of being responsible for the basic structure doctrine and saving India democracy.

[The above facts are extracts from the book ‘Nani Palkhivala – The Courtroom Genius’ written by Soli Sorabjee and Arvind P Datar. No student of law, no lawyer, no chartered accountant, no member of the judiciary, and no well-informed citizen can afford to miss reading this book!]


Media to be recognised as ‘Court’ – Government passes the Bill

This post was originally published here.

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Today, the government passed a bill called ‘The Mainstream Media & Social Media Courts Bill, 2013’, which legally recognises the mainstream media like newspapers, television channels and radio channels and also the social media like Facebook, Twitter, YouTube and Blogs to act as Courts. All these media can now adjudicate any kind of social, political or commercial issues whenever there are no important things like ‘Shah Rukh Khan vs. Salman Khan’ and ‘Ritesh Deshmukh vs. Tusshar Kapoor’.

The bill was unanimously passed by both the Lok Sabha and the Rajya Sabha and sent to the President for his signature. To ensure the President’s immediate attention, the bill was sent to his office in a sealed envelope with ‘Mercy Petition’ written on it.

According to the newly passed bill, media can either hear the parties and pass a judgment or pass a judgment and hear the parties. However, it is made clear that ‘hearing the parties’ is not mandatory at all. After passing the bill, the Prime Minister Manmohan Singh remarked that, “This would surely help reducing the huge pendency of cases before the courts. If not that, it will at least ensure that people don’t go to courts. Theek Hai?”

This bill also suggests various ways of disposing of cases by the social media. For example, if a person gets more number of ‘RTs’ in Twitter and ‘likes’ in Facebook than the other person, he would be deemed to have won the case against that other person.

The bill was welcomed by all the quarters and more surprisingly, even by various legal luminaries. Speaking for himself and 90% of the Indians, retired Supreme Court Judge Markandey Katju said that “This is a great move. Seriously, courts do not make any sense. I mean, why would anyone wait 20 long years for the court to pass a judgment if one can watch Munna Bhai MBBS in less than three hours and pass a judgment?” referring to the recent controversy.

Corporate bigwigs also seem to have lot of praise for the new bill. Sahara Group Chief Subrata Roy in an interview to FakingNews was quoted saying, “Enough is enough. I am done with all these cases, appeals, appeals on appeals, revision on appeals on appeals, contempt in revision, revision on contempt, and appeal against revision. No court understands what degree of injustice has been done to us. Even we don’t have any idea. Let’s have a TV debate and settle it through Sagarika Ghose. At least the degree of injustice will then be apparent,” whilst talking about Sahara’s everlasting love for SEBI.

Arindam Chaudhuri also had a word or two about the bill, “Dare to think beyond courts. Dare to think beyond anything. But remember one thing – IIPM is a B-school with a human face. More like mine.”

The only shocking response came from none other than Arnab Goswami, “NEW BILL? BULLSHIT! I HAVE BEEN PASSING JUDGMENTS FOR AGES NOW.”


An eventful year – 2012

2012, unarguably, is one of the worst years for Indian politics with unvarying scams and uninspiring deeds of politicians. Hardly any steps were adopted (except for few attempts in later half) to revive the economy either. If there is a single institution which had an eventful year, it has to be the Apex Court of India. Far from perfection though.

Here is a simple review of landmark judgments/ legal developments happened in this eventful 2012 (with links to judgments and reading materials). Hope you will find it useful.

JANUARY 20, 2012 – VODAFONE JUDGMENT

On January 20, 2012, the Supreme Court ruled in favor of Vodafone saying capital gains tax is not applicable to the telecom major. The Court overruled the judgment of Bombay High Court and held that Income Tax department should return Rs.2,500 Crores to Vodafone with 4% interest. As a huge boost for cross border mergers in India, the Court held that there is no question of TDS being deducted under Section 195 of the Income Tax Act, 1961 and that it is a bonafide FDI transaction. It is considered to be one of the major blows for the tax department in recent years.

Full text of the Bombay High Court Judgment (September 8, 2010) – Click here.

Full text of the Supreme Court Judgment – Click here.

Reaction

The matter however did not rest with the judgment of Supreme Court.

The government, in March 2012 proposed, in its budget, the most controversial retrospective amendment to the Income Tax Act that would help the government to overturn the Supreme Court order.

The prospective retrospective amendment can be seen here. [Taxmann]

Recently, the government has approached the Apex Court seeking a review of the judgment. The department wants the matter heard afresh by a larger seven-judge bench. [Financial Express]

Besides these desperate attempts by the government, there are few people who have also criticized the judgment for having exceeded its jurisdiction. [Indian Express]

FEBRUARY 2, 2012 – CANCELLATION OF 122 TELECOM LICENSES 

On February 2, 2012, the Apex Court cancelled all 122 unified access service licences which were issued in January 2008 by former telecom minister A Raja. The decision came as a heavy setback for the government. The eight companies who were holding the licences together invested Rs 35,000-40,000 crore, of which two-thirds was put in by two telcos, Uninor and Sistema.

The Court also directed the Telecom Regulatory Authority of India (TRAI) to make fresh recommendations for the telecom spectrum auction route in future, within four months of the Order.

List of cancelled 2G licenses [Business Standard]

Full text of the Judgment – Click here.

Reaction

Few observations and directions by the Court on method of disposal of natural resources lead to a Special Reference by President under Article 143 of the Constitution of India. The Hon’ble Court rightly ensured, through this special reference, that this judgment does not fall within the never-ending battle between Judiciary and Legislature/ Executive. It clarified that the scope of 2G judgment is restricted only to spectrum and also that Court cannot and will not prescribe any policy as the only constitutional permissible policy. It was a concurring opinion which offered separate reasons for same conclusions on majority.

Original presidential reference – Click here.

September 27, 2012 – Opinion rendered by Supreme Court in presidential reference – Click here.

APRIL 12, 2012 – RIGHT TO EDUCATION JUDGMENT

On April 12, 2012, the Supreme Court rejected a batch of petitions and upheld the constitutional validity of Right to Education Act (RTE), 2010 through a majority of then Chief Justice SH Kapadia and Justice Swatenter Kumar. However, Justice Radha Krishnan dissented from the view that a fourth of seats in all schools, including private ones, should be reserved for admission to economically weaker students.

RTE mandates 25 percent reservation and the bench brought all educational institutions within the ambit of this Act except for unaided minority institutions. The Act, which is operational in at least 19 states, envisages free and compulsory education for all poor children aged between 6 and 14 years.

Full text of the Judgment – Click here.

AUGUST 31, 2012 – SAHARA

The second major judgment of the year, in terms of money involved, came from the bench of Justices KS Radhakrishnan and Justice JS Khehar on August 31, 2012, where two Sahara group companies were ordered to refund Rs 24,000 Crores they had collected through optional fully convertible debentures, to SEBI with 15 per cent interest by November 30, 2012, since they had violated various regulatory norms. The judgment is undoubtedly a boost for SEBI in reinstalling its powers as a regulator in the market.

Full text of the Judgment – Click here.

Reaction

The Court invited strong criticism recently when a bench presided over by Chief Justice of India Altamas Kabir modified the judgment of August 31, 2012 by allowing SAHARA to pay the amounts in installments. It was a shocking incident for many lawyers. Legal luminaries have criticized this order particularly because final order passed by one bench could not possibly be modified by another bench and that it would set a wrong precedent. [Legally India]

SEPTEMBER 6, 2012 – BALCO JUDGMENT ON ARBITRATION

On September 6, 2012, the Constitution bench of then Chief Justice of India SH Kapadia and Justices D. K. Jain, Surinder Singh Nijjar, Jagdish Singh Khehar and Ranjana Prakash Desai overruled the doctrine laid down in its own 2002 landmark judgment Bhatia International v Bulk Trading SA & Anr case, which held that Indian courts had exclusive jurisdiction to test the validity of an arbitral award made in India even when the proper law of the contract is the law of another country.

The Apex Court held that part 1 of the Arbitration Act does not apply to international arbitration and that the seat of arbitration will determine jurisdiction of the court. This judgment is hailed as one of the landmark judgments which renewed arbitration in India.

Full text of the Judgment – Click here.

SEPTEMBER 11, 2012 – MEDIA GUIDELINES

The special constitutional bench of Supreme Court, on September 11, 2012 laid down a new doctrine that, if requested, would allow courts to temporarily ban media from reporting a case if it would adversely affect the trial. However, the Court declined to create wider guidelines on how the media should report court cases

The Chief Justice of India S.H. Kapadia, said that if publishing news related to a trial would “create a real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial”, the court could grant a postponement order, temporarily gagging electronic or print media from reporting on the case.

However, this excise undertook by the Court was more of an academic nature and it helped none.

Full text of the Judgment – Click here.

SEPTEMBER 13, 2012 – RTI JUDGMENT

On September 13, 2012, a division bench of the Supreme Court, comprising Justice AK Patnaik and Justice Swatander Kumar disposed of a writ petition (within two months) ruling that information commissions under the Right to Information Act, 2005 (RTI Act) must function with two-member benches, one of the two members being a high court chief justice or a supreme court judge for the post of chief information commissioner. The judgment certainly brought the functioning of CIC to an abrupt emergency halt.

The judgment also prescribed procedures for appointment to these posts.

Full text of the Judgment – Click here.

Reaction

This judgment has been criticized by all quarters and considered to be one of the major blunders committed by the Apex Court. It is opined by many RTI activists and legal luminaries that this judgment could just kill the RTI Act and that it would create unnecessary hurdles and delay in its enforcement.

Few articles:

A recent Supreme Court ruling could kill RTI [Forbes]

Judges’ quota ruffles RTI panel [Hindustan Times]

SC ruling stumps RTI fraternities [The Hindu]

Information Commissions need judicial members: apex court [Live Mint]

NOVEMBER 9, 2012 – REVISITING COLLEGIUM SYSTEM

After almost 19 years of nine-judge bench of Supreme Court passing a judgment as to collegium in the appointment of judges in Supreme Court and High Courts, the possibility of Supreme Court revisiting the same by eleven-judge bench has increased. The bench headed by Chief Justice of India Justice Altamas Kabir on November 9, 2012 issued notices to the Union of India and Attorney General on a petition filed by a trust seeking review of the 1993 judgment.

The government has already been working on, for a long time, a Constitution Amendment Bill to provide for a Judicial Appointments Commission.

OTHER MAJOR DEVELOPMENTS

(i) Many issues as to validity of few provisions of IT Act, 2002 (particularly Section 66A) as also its enforcement were raised this year by various quarters and rightfully so. Incidents like blocking twitter accounts/ websites and unnecessary arrests/ charges had triggered these issues and recently a PIL has been filed by one law student in Supreme Court challenging constitutional validity of Section 66A of the Act. The Court has taken cognizance and issued notice to the government.

(ii) Though it is more of a policy decision, allowing FDI in multi-brand retail can be considered one of the major legal developments happened in the year 2012. On September 14, 2012, the government of India announced the opening of FDI in multi-brand retail, subject to approvals by individual states. On September 20, 2012, the Government of India formally notified the FDI reforms for single and multi-brand retail, thereby making it effective under Indian law. On December 7, 2012, the Government of India allowed 51% FDI in multi-brand retail in India. The government managed to get the approval of multi-brand retail in the parliament despite heavy uproar from the opposition.

(iii) After a long wait, Companies Bill, 2011 has been passed by Lok Sabha on December 18, 2012.

Full text of the Companies Bill, 2011 – Click here.