Can a Government servant directly submit RTI application, pertaining to his own service records, to the concerned public information officer without routing it through the head of office?
Reply:
Section 3 of the Right to Information Act, 2005, specifically states that: “Subject to the provisions of this Act, all citizens shall have the right to information”.
A government employee is no doubt a citizen, and therefore, he has equal right to seek information from the concerned authority. The RTI Act was enacted only to lay down the procedure for obtaining information since the substantive right to information was already recognized by the Supreme Court as a fundamental right of the citizens. Therefore, in my considered opinion, a government employee is equally entitled to get information under the RTI Act from his employers, since it is his fundamental right under the Constitution.
Moreover, Section 6 of the RTI Act lays down as under:
“6. Request for obtaining information.—(1) A person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed, to—
(a) the Central Public Information Officer or State Public Information Officer, as the case may be, of the concerned public authority;
(b) the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be,
specifying the particulars of the information sought by him or her:
Provided that where such request cannot be made in writing, the Central Public Information Officer or State Public Information Officer, as the case may be, shall render all reasonable assistance to the person making the request orally to reduce the same in writing.
(2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.
… …”.
It is thus clear from the provisions of Section 6 of the RTI Act that the application for seeking information under the RTI Act is required to be made to the concerned Public Information Officer or the Assistant Public Information Officer of the concerned authority. Thus, whosoever is declared or designated as such Officer in the department for providing the type of information required by the Government employee, is required to be contacted by him for seeking RTI information. There is no provision in this section that such Government employee is required to route his RTI application through his head of office. This provision allows making of a direct RTI application to the concerned public information officer. Therefore, in my considered opinion, there is no need to route the RTI application through the head of the office and a Government servant may directly send the RTI application to the designated Public Information Officer as required under the above section.
It is also pertinent to point out that as per above quoted sub-section (2) of Section 6, there is no need to give any reason for requesting the information or any other personal details except those that may be necessary for contacting the person seeking the information. Thus, under the law, a Government servant is required only to provide his contact information and he may not even be required to inform that he is a government employee. Of course, if a Government servant so wishes, he can inform the officer concerned about his status as a government employee. However, if a Government servant is seeking information about his own service records, and if it is felt that such information is held in fiduciary capacity, then it may be advisable to reveal his status since in that case the clause relating to withholding of information under Section 8(1)(e) of the RTI Act (i.e., for information held in fiduciary capacity) may not be applicable if he is seeking his own information.
Notwithstanding what is mentioned above, if a Government servant so wishes, he can first make a simple request (instead of an RTI application) to his seniors to provide the information required by him, though it is not required under law.
Secondly, if the Government servant has decided to directly file the RTI application, if he so wishes, he can send a copy of his RTI application to his head of office just for his information, though this is also not required under law. However, as mentioned by me above, this is just as a choice as a sort of courtesy to one’s seniors; but, a Government servant has every right under the laws to directly make an RTI application to the concerned public information officer for seeking the requisite information.
In 1975, former Railway Minister Lalit Narayan Mishra was killed in a murder case. That happened about 40 years ago. The criminal trial in that case is still going on for about 40 years. This is in fact one of the oldest criminal trial cases, if not the oldest. Recording of evidence and hearing of the final arguments have been completed in this case, and the judgment of the court is likely to be delivered tomorrow (8 December 2014) by the Sessions Judge Shri Vinod Goel in New Delhi.
The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, as amended from time to time, prohibits advertisements for tests conducted for prenatal sex determination. However, several such advertisements regularly appear on the Internet. In a writ petition filed before the Supreme Court, it was highlighted that the search engines such as Google India, Yahoo India and Microsoft Corporation (I) Pvt. Ltd., are still getting things advertised in violation of the legal provisions contained in the aforesaid Act.
Eminent jurist Justice VR Krishna Iyer, a former Supreme Court judge, passed away today (4th December 2014) at Kochi in Kerala. Just a few days ago (on 15th November 2014), he had celebrated his 100th birthday.
Justice Krishna Iyer was the conscience keeper of the judicial system in India. Though he retired as Supreme Court judge about 34 years back in 1980, his was the most respected voice in legal circles. While serving as a judge of the Supreme Court from 1973 to 1980, he wrote several landmark judgments. His way of writing the judgments was unique and unparalleled. Justice Krishna Iyer was one of those judges who laid the foundation of the public interest (PIL) jurisdiction of the Supreme Court. He had a pro-people and liberal approach while interpreting the Constitution.
The Chief Justice of India H.L. Dattu has set up a Social Justice Bench of two judges which will sit on every Friday at 2 pm to deal with the cases relating to social issues. First such bench will sit on 12th December 2014. This is an innovative idea that will help in quick delivery of justice in matters related to social issues. This bench will be comprising of Justice Madan B. Lokur and Justice Uday U. Lalit.
Is it possible to directly approach the High Court for cancelling bail granted by a Magistrate? Is it not necessary that first the Sessions Court should be approached against the order granting bail issued by a Magistrate?
Reply:
The High Court and the Sessions Court, both have concurrent powers under Section 439(2) of Cr.P.C. to cancel the bail granted by a lower court. Therefore, a person can directly approach the High Court under that provision for cancellation of bail, instead of first approaching the Sessions Court. Section 439(2) of Cr.P.C. is reproduced below for your information:
“(2) A High Court or Court of Sessions may direct that any person who has been released on bail under this chapter be arrested and commit him to custody.”
Therefore, there is nothing wrong if the High Court is approached directly against an order of bail issued by a Magistrate. The High Court has sufficient powers to cancel such bail.
I want to use the colour combination of the Indian national flag in my company logo, i.e., I want to use the colour combination of saffron, white and green colours (similar to the one used in the Indian national flag) with some words written in those coloured strips. Is use of such colour combination similar to Indian national flag a violation of the law or rules?
Reply:
Please note that as per the provisions of Section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950, any colourable imitation of an “emblem” when used for the purpose of any trade, business, calling or profession, or in the title of any patent, or in any trade mark or design, without previous permission of the Central Govt. or its authorised officer is prohibited and the penalty for its violation is prescribed under Section 5 as a fine of up to Rs. 5000/-. The word “emblem” includes the “Indian National Flag” as defined in Section 2 read with the Schedule to the said Act.
Thus, a colourable imitation of the Indian National Flag cannot be used in logo for a business without prior permission of the Central Government or its authorised officer. This appears to be the legal position.
I want to know whether Section 506 of Indian Penal Code is bailable or non-bailable in Maharashtra? Someone told me that it is non-bailable in Maharashtra, though in general it is bailable.
About one month back, two persons snatched about Rs. 5000/- and my wrist watch from me threating me with a knife. They also slapped me 3-4 times. I reported the matter to the police. However, the police has not taken any action so far. No FIR has been registered and no investigation has been conducted. What should I do now.
Reply:
From the facts stated by you, it is quite clear that a cognizable offence of robbery has been committed. Section 154 of the Cr.P.C. mandates the police to register FIR on a complaint that discloses commission of a cognizable offence. The relevant part of Section 154 Cr.P.C. is quoted below:
“154. Information in cognizable cases.— (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf…”.
It is also pertinent to point out that if the SHO refuses to register the FIR, you can send the complaint to the Superintendent of Police of the district concerned (in a city, it may be a Deputy Commissioner of Police), as laid down in sub-section (3) of Section 154 Cr.P.C., as quoted below:
“(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.”
I may also point out that as per a recent decision (12 November 2013) of a 5-Judge Constitution Bench of the Supreme Court in the case of Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1, it is mandatory for the officer-in-charge or the SHO of a police station to register the FIR if the complaint given to him discloses commission of a cognizable offence.
Therefore, by citing this judgment, in the first instance you can request the Superintendent of Police of the district to get the FIR registered and to take disciplinary action against the SHO for failing to register the FIR. If need be, you may file an application for the Magistrate having jurisdiction over the area for directing the police to investigate under Section 156(3) of the Cr.P.C. In fact, non-registration of FIR in a cognizable offence may even amount to contempt of court for flouting the directions issued by the Supreme Court.
Can you please tell me if there is any acquittal which occurred when an applicant filed review petition in Hon’ble Supreme court of India? It is learnt that there is not a single case where review petition was successfully considered and acquittal occurred. Even in a case where there are good grounds where review petition must be heard, it is not heard. Is it so that since the review petition goes to the same judges who took the decision, they are adamant on not overruling their own decision? What is the success rate in a review petition?
Reply:
It is very rare chance indeed that a review petition will succeed in the Supreme Court. Unless a Judge has retired, the review petition goes before the same Bench which heard the case previously. Moreover, the review petition first goes before those Judges in their chamber and not in the open court (which means no oral arguments by counsel). It is only when the Judges find something substantial in the review petition that they decide to hear such petition in the open court permitting oral arguments by counsel. But, that is very rare indeed.
As per the Supreme Court Rules, a review petition will not be entertained in a criminal proceeding except on the ground of an error apparent on the face of the record. And, in a civil proceeding, a review petition is not entertained except on the ground mentioned in Order XLVII, Rule I of the Civil Procedure Code, which in turn means grounds such as: (1) the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by the person at the time when the decree was passed or order made; or, (2) some mistake or error apparent on the face of the record; or, (3) any other sufficient reason.
Thus, a review petition is maintainable only on limited grounds. It is also the normal human tendency not to accept the review petition sometimes even if the judges themselves had committed an error. However, still people try by filing review petitions in a routine manner. Hoping against hope. In fact, some people try even a curative petition after rejection of their review petition in the Supreme Court.
It is pertinent to mention that the system of curative petition was started after the decision of the Supreme Court in the case of Rupa Ashok Hurra vs. Ashok Hurra, (2002) 4 SCC 388 : AIR 2002 SC 1771. A tedious process has been laid down for filing a curative petition, inter alia, including, that the curative petition shall contain a certification by a Senior Advocate with regard to the fulfilment of the requirements for filing the curative petition. If my information is correct, since the curative petition system was started about 12 years back in 2002 in the aforesaid judgment, only a total of two curative petitions have succeeded so far from out of hundreds of curative petitions that are filed every year. Thus, in curative petitions also, the success rate is very-very low.
Can I fight my own case in court without advocate? Can I also fight this case for my parents who are co-accused in the same case? It is a matrimonial case, filed under Sections 498-A and 406 IPC. I am not an advocate. I am the main accused in the above case.
Reply:
You can fight your own personal case in the court. Do not appoint any advocate. Inform the court, when asked, that you want to defend yourself during trial. Being a criminal case, the court may offer you the free legal services of an advocate, but you may decline that if you want to defend yourself.
There is no prohibition in law that can stop you from fighting your case yourself in a trial court.
However, it may not be possible for you to defend the case (in court) on behalf of your parents, even if they are co-accused in the same case, since you are not an advocate. Of course, your parents can also fight their own individual cases themselves. But, if they want to appoint some other person to defend them in court, then such other person defending them should be an advocate.
If all of you are co-accused, and if your parents do not appoint any advocate, then you can cross-examine the witnesses on your own behalf and your parents can adopt your cross-examination (if they are defending themselves). This can perhaps be a via media. But, it may be risky sometimes. So, be careful.
Also be careful that you must know the basic law and procedure, and should also have some basic knowledge of how to defend the criminal charges levelled against you on merits. Otherwise, sometimes, not appointing an advocate can also be like “penny wise pound foolish”. So, take the decision after carefully considering pros and cons.
Can a co-accused be a witness of another accused or the main accused in a criminal case?
Reply:
All persons are competent to be witness except in the cases mentioned below. Therefore, a co-accused can also be a witness for an accused person. In this regard, have a look at the provisions of Section 118 of the Evidence Act:
“118. Who may testify.—All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation.—A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.”
Thus, it is unequivocally clear that any person can be a witness. Even an accused himself can become his own witness by entering the witness box and then giving evidence in his own favour. Of course, an accused person cannot be forced to become a witness against himself in view of the fundamental right guaranteed under Article 20 of the Constitution. Therefore, there is no doubt that a co-accused can definitely be a witness for an accused person.
However, please be careful that if a co-accused or the accused himself becomes a witness then he may be subjected to cross-examination by the prosecution, which may sometimes be risky for the accused. It may be a double-edged weapon. So, take this step only after a serious consideration.
It is also noteworthy that a co-accused is also an “accomplice” in legal parlance, though the reverse may not always be true. Section 133 of Evidence Act and Illustration (b) to Section 114 of that Act are relevant to the statement of an accomplice, and are reproduced below:
“133. Accomplice.—An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”
“114. Court may presume existence of certain facts.—The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations
The Court may presume—
… …
(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;
… …”.
Thus, Section 133 of the Evidence Act, in specific terms lays down that “An accomplice shall be a competent witness against an accused person…”. Since a co-accused is also an accomplice, therefore a co-accused is also a competent witness.
However, please note that while Section 133 lays down the rule when the accomplice gives evidence AGAINST the accused person, whereas what is asked in the above question is a co-accused or accomplice giving evidence IN FAVOUR OF the accused. However, the Illustration (b) to Section 114 is neutral, i.e., it applies to the evidence of accomplice in all situations. Thus, the court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Of course, the above presumption can be rebutted.
Therefore, the evidence of an accomplice is generally required to be corroborated in material particulars (i.e., the main issues) by some other evidence, even though Section 133 clearly says that “…a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice…”; this is because the courts have interpreted Section 133 and Illustration (b) to Section 114 of Evidence Act together.
There are many judgments on this issue which will clear the doubt, if any. For example, in the case of Sheshanna Bhumanna Yadav v. State of Maharashtra, (1970) 2 SCC 122, at page 126, the Supreme Court has held that:
“The law with regard to appreciation of approver’s evidence is based on the effect of Sections 133 and 114, illustration (b) of the Evidence Act, namely, that an accomplice is competent to depose but as a rule of caution it will be unsafe to convict upon his testimony alone. …”.
[emphasis supplied by me.]
Similarly, in the case of Piara Singh v. State of Punjab, (1969) 1 SCC 379, at page 384, the Supreme Court held as under:
“An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious taint in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence.”
[emphasis supplied by me.]
There are several other judgments of the Supreme Court on this issue. I don’t want to keep multiplying these judgments.
Thus, the fact remains that as per the provisions of the Evidence Act, as well as various judgments of the Supreme Court, it is crystal clear that an accomplice is a competent witness though his testimony is generally not believed unless it is corroborated in material particulars by some other evidence. At the same time, in a particular case, if the court convicts an accused person solely on the basis of the evidence of an accomplice, it shall not be illegal, as Section 133 of Evidence Act itself declares, though it is considered not to be a prudent thing to do so.
And, of course, it goes without saying that a co-accused or accomplice can also give evidence in favour of another accused. How much reliance would be placed by the court on such evidence of the co-accused, of course, would depend upon various factors, including the corroboration available through other evidence.
A detailed analysis of the implications of the appointment of a retired Chief Justice of India to a political post of Governor of a State. Will it adversely impact the independence of judiciary which lies at the very foundation of a constitutional democracy and of the rule of law?
Appointment of former Chief Justice of India, Justice P. Sathasivam, as Governor of Kerala by the Union Government marks a new low in politicisation of judiciary. Even if it be presumed that there is no quid pro quo for this appointment, it is likely to open floodgates for similar other appointments in future, by way of inducement to others, some of which may then be due to some sort of quid pro quo, thereby seriously compromising the independence and impartiality of the judiciary. At the outset itself, a disclaimer is due. What is stated in the ensuing paragraphs is not with any specific individual in mind but is stated in general terms. Moreover, what is written here is only and only with the intention of making the judiciary stronger and not with the intention of maligning the judiciary. Only by accepting the existence of rot in the system we can improve it. By sweeping things under the carpet, no system can be improved. It is true that there is no restriction in the Constitution of India for appointing a retired judge of the Supreme Court to a constitutional post such as Governor of a State. The only restriction placed on a retired judge of the Supreme Court in respect of his future occupation is contained in clause (7) of Article 124 of the Constitution, which lays down as under:
“(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.”
Thus, a retired judge of the Supreme Court cannot plead or act in any court or before any authority. This provision basically prohibits a retired judge from practicing law in any court or before any authority. There is no other restriction imposed in the Constitution on a future employment of a retired judge of the Supreme Court.
Contrast this with the restrictions imposed in the Constitution on certain other constitutional functionaries such as the Comptroller and Auditor-General of India (CAG), UPSC Members, etc., for their future employment. For example, clause (4) of Article 148 lays down as under:
“(4) The Comptroller and Auditor-General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office.”
Similarly, clause (a) of Article 319 of the Constitution lays down that on ceasing to hold office, the Chairman of the UPSC shall be ineligible for further employment either under the Government of India or under the Government of a State. This Article contains similar provisions for other members of the UPSC as also for Chairman and members of the State Public Service Commissions.
Likewise, similar restrictions have been placed even under some statutes on certain statutory functionaries such as the Central Vigilance Commissioner, Chairman of the Telecom Regulatory Authority of India (TRAI), etc. For example, Section 5(6) of the Central Vigilance Commission Act, 2003, mandates as under:
“(6) On ceasing to hold office, the Central Vigilance Commissioner and every other Vigilance Commissioner shall be ineligible for—
(a) any diplomatic assignment, appointment as administrator of a Union Territory and such other assignment or appointment which is required by law to be made by the President by warrant under his hand and seal;
(b) further employment to any office of profit under the Government of India or the Government of a State.
Similarly, Section 5(8) of the Telecom Regulatory Authority of India Act, 1997, laid down as under (before its amendment in 2014):
“(8) The Chairperson or any whole-time member ceasing to hold office as such, shall—
(a) be ineligible for further employment under the Central Government or any State Government; or
(b) not accept any commercial employment, for a period of one year from the date he ceases to hold such office: …”
It is pertinent to point out that, recently, in July 2014, the TRAI Act was amended to dilute the restrictions placed on the future employability of the Chairperson of TRAI, in order to facilitate the appointment of Shri Nripendra Misra (a former Chairperson of TRAI) as Principal Secretary to the Prime Minister Shri Narendra Modi. This amendment received the assent of the President on 17 July 2014. The amended provision is as under:
“(8) The Chairperson and the whole-time members shall not, for a period of two years from the date on which they cease to hold office as such, except with the previous approval of the Central Government, accept—
(a) any employment either under the Central Government or under any State Government; or
(b) any appointment in any company in the business of telecommunication services.”
In any case, the fact remains that restrictions on future employability of certain constitutional and statutory functionaries have been imposed, by provisions contained in the Constitution or the relevant statute, wherever such functionaries are expected to perform their functions in an independent and impartial manner.
In this background, it is rather surprising that the makers of the Constitution did not put similar restrictions on the future employability of the judges of the Supreme Court (or of the High Courts) under the Government. It can be nobody’s case that the CAG is expected to perform his duties independently but the judges of the Supreme Court are not so required. If the CVC or UPSC members or Chairperson of TRAI are required to be insulated from the executive in order to make their functioning independent and impartial by placing restrictions on their future employability, there is no reason why judges of the Supreme Court should not be insulated in a similar manner. In fact, the judges of the Supreme Court exercise immense powers under the Constitution that no other similar authority mentioned above can even think of. As a matter of fact, the decisions of these authorities, such as CAG, CVC, UPSC, etc., can also be subjected to scrutiny by the Supreme Court. The Supreme Court has the power, inter alia, to decide litigation in which Government is immensely interested and in which the stakes can be extremely high. It also decides litigation in which the ministers (and even the Prime Minister) may personally be involved. The Supreme Court decides matters relating to constitutional and/or legal validity of various laws, rules, regulations, orders as also the policies made by the Government which could have serious implications for the Government functioning. In fact, the Supreme Court also has the power to decide about the constitutional validity of the amendments to the Constitution carried out under Article 368 of the Constitution, in view of the doctrine of basic features of the Constitution laid down in the decision of a 13-Judges bench (the largest bench ever) of the Supreme Court in the case of Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461 : 1973 Supp SCR 1.
Thus, the judges of the Supreme Court exercise unparalleled powers under the Constitution. Their decisions can have very serious implications for the Government of the day or for the individual ministers or for the Prime Minister himself. The very existence of the rule of law may be shaken if the Supreme Court falters. The whole edifice of a constitutional democracy may crumble if the judiciary does not function properly or is not allowed to function properly. There have been umpteen number of cases that can easily demonstrate this fact, and I do not think there is any need to exemplify it.
This being the position, it is rather surprising that there are no restrictions placed in the Constitution on the future employability of judges of the Supreme Court under the Government after their retirement. Perhaps, the makers of the Constitution believed that the persons occupying the position of judges of the Supreme Court shall be persons of highest integrity, shall be beyond any type of influence by any person, and shall not get employed after the retirement in order to maintain the highest standards of probity in life. However, if this was the belief of the makers of the Constitution, then it is rather ironical that they have placed certain other restrictions on the future law practice by retired judges of the Supreme Court in clause (7) of Article 124, as mentioned above. In fact, it is inconceivable that a person who retires as a judge of the Supreme Court, which is the highest position in the judiciary, would even think of practising law in any Court (including the Supreme Court) or before any other authority. What then was the requirement or the intent behind placing explicit restrictions on their future law practice? And, if the makers of the Constitution did not trust the retired judges for giving up their future law practice after retirement, why did they trust them in respect of their future employability under the Government after retirement? Why did they not impose any restrictions on their future employment under the Government, as they did in respect of the CAG and Chairman / members of UPSC and State Public Service Commissions?
Be that as it may. The fact remains that ultimately the judges of the Supreme Court are also human beings, howsoever high pedestal may be accorded to them by equating them with the Lord. They are also likely to commit, and in my respectful submission some of them do in fact commit, the same mistakes and the same sins that are committed by us – the ordinary and humble human beings. Let us look at some illustrative examples.
The Chief Justice of India is the head of the judiciary in India and is the senior-most judge of the Supreme Court. Now look at this allegation levelled in the year 2009 by Shri Prashant Bhushan, a prominent advocate (see here), and supported by his father Shri Shanti Bhushan, former Law Minister (see here), alleging that half of the last 16 Chief Justices of India were corrupt. A list of these 16 last Chief Justices of India was given by them, and even an affidavit was filed in the Supreme Court, though they did not mention specifically as to who out of those 16 Chief Justices were corrupt. As if all this was not sufficient, recently on 24 August 2014 (see here), Justice Markandey Katju, who himself is a former judge of the Supreme Court, after referring to the aforesaid allegation made by Shri Shanti Bhushan, claimed as under:
“Even subsequent to the filing of this affidavit there have been Chief Justices of India, about whose integrity grave question marks were raised. Their names are well known, and need not be mentioned.”
And, Justice Katju goes on to narrate (see here) an incident about impropriety of a recently retired Chief Justice of India. It is not difficult to guess the name of the Chief Justice, and if you are still not able to guess it, read hereabout the allegations made by the sitting Chief Justice of Gujarat High Court against him and also read herethe response of that former Chief Justice of India against whom these allegations were made.
I may also point out that Shri S.P. Bharucha, a former Chief Justice of India, had reportedly stated that about 20% of the judges were corrupt (see hereand also here). During last about two months, Justice Katju has been targeting several recently retired Chief Justices of India, by their names, for various kinds of improprieties allegedly committed by them, including elevating or retaining corrupt judges, irregularities committed by the Collegium of the Supreme Court, etc. (see here, and here, and here, and here, and here, and hereand here; and also watch his video interviews – part 1 and part 2).
Allegations of serious corruption and misconduct were made also against Justice K.G. Balakrishnan, former Chief Justice of India (see here).
In another incident, eminent criminal lawyer Shri Ram Jethmalani made serious allegations of impropriety against Justice Tarun Chatterjee, a former judge of the Supreme Court, arguing that while heading a Bench hearing the Sohrabuddin fake encounter killing case, Justice Chatterjee should not have ordered the CBI probe since he himself was under the CBI scanner in the provident fund (PF) scam case (see here). It may be noted that Justice Tarun Chatterjee was named as one of the beneficiaries in the multi-crore Ghaziabad District Court PF scam, but the CBI subsequently gave him a clean chit.
One may also recall the impeachment of Justice V. Ramaswami, the then sitting judge of the Supreme Court, for charges of financial impropriety. The impeachment motion was placed in the Lok Sabha for debate and voting on 10 May 1993. Out of 401 members present in the Lok Sabha that day, 196 votes were cast in favour of the impeachment and no votes were cast against it, but there were 205 abstentions by members of the ruling Congress party and its allies. The impeachment motion which required not less than two third majority of the total number of members present in in the House and an absolute majority of its total membership, thus failed to pass. In this manner, the impeachment motion initiated on the charges of financial impropriety against the Supreme Court judge could not be passed only because of technical reasons of abstentions, and not because of merits of the charges which had been duly proved by the inquiry committee. Also, remember that not even a single vote was cast against the above impeachment motion.
As if allegations of financial impropriety were not enough, recently allegations of sexual advances have been made against two former judges of Supreme Court. Allegations of sexual harassment were made in 2013 by a law intern against Justice A.K. Ganguly, former judge of the Supreme Court, and a three-member panel appointed by the Supreme Court to enquire into these allegations, gave a prima facie finding on the intern’s allegations observing that Justice Ganguly had subjected the law intern to “unwelcome sexual behaviour” in December 2012 (see here). Similarly, recently, another former law intern made sexual harassment allegations against Justice Swatanter Kumar, former judge of the Supreme Court, and this matter is still pending before the courts (see here).
It may also be germane to note that a former Judge of Gujarat High Court and former Lokayukta of Gujarat state, Justice S.M. Soni, had written a 10-page letter to the then Chief Justice of India to keep Justice Aftab Alam, the then sitting judge of the Supreme Court, away from Gujarat cases, making detailed allegations of a communal mind-set against him (see here; this link also contains a copy of his letter). Since these serious allegations were made by a responsible person, i.e., a retired judge of a High Court, by way of a written complaint, it was expected that some sort of transparent enquiry will be conducted into the allegations, and if the allegations were found to be false, contempt proceedings would have been initiated against the retired judge himself making these allegations. However, I could not get any details from the media of any such enquiry conducted into these allegations or any action taken in this matter.
Another issue that raises serious questions of propriety, relates to the oft-repeated allegations of “uncle judges”. Close relatives of judges practice as advocates in the same court, though before a different bench, and it is widely suspected that they get direct or indirect help in the cases argued by them. This is, in fact, an allegation that is levelled against several judges, in the Supreme Court as well as in the high courts.
The seriousness of this problem can be gauged by the fact that in 2010, a Supreme Court bench comprising Justices Markandey Katju and Gyan Sudha Misra had famously quoted William Shakespeare to say “something is rotten” in the Allahabad High Court and that it needed to be cleaned up, and it further observed that (see here):
“We are sorry to say but a lot of complaints are coming about kith and kin practicing in the same court and within a few years of starting practice the sons or relations of these judges become multi-millionaires, have huge bank balances, luxurious cars, huge houses and enjoy a luxurious life”.
In fact, subsequently, when an application was moved to expunge the aforesaid “something is rotten” remarks, the Supreme Court refused to expunge them and upheld those remarks which said that something was “rotten” in the Allahabad High Court where the “uncle judges syndrome” was rampant and needed cleansing. Justice Katju is reported to have angrily told the counsel (see here):
“Do not tell all this. My family and I have more than 100 years of association with the Allahabad High Court. People know who is corrupt and who is honest.”
Again, details of the favours shown by the “uncle judges” to their relatives practising in the same courts are regularly and routinely discussed privately in the bar rooms, however, such details are generally not found fit for being discussed in the media due to absence of concrete evidence and perhaps due to the fear of contempt of court. But, merely because such details are not shared in media for general public consumption does not mean that this problem does not exist or that this problem would be only a miniscule one. As observed by Justice Katju, the problem of “uncle judges” is quite rampant and is a serious challenge to having a clean judiciary.
The point that I am trying to make is – if allegations of corruption can be made against such a large number of Chief Justices of India, who had the rare privilege of heading the Indian judiciary, and against other judges of the Supreme Court, then do we really need any further indicator about the trend in the higher judiciary? Please also note that these allegations are not made by lesser mortals. These allegations are made by those who have themselves had the privilege of serving as a judge of the Supreme Court or as a Law Minister of India or who are eminent and legendry lawyers, and hence can be said to be having personal knowledge of the incidents of corruption or impropriety in the higher judiciary.
Moreover, it may also be pertinent to point out that while a contempt petition came to be filed before the Supreme Court against Shri Prashant Bhushan for making the aforesaid allegation of half of the last 16 Chief Justices of India having been corrupt, the said contempt petition has not been taken to its logical end. This petition is pending for long in the Supreme Court and is not being heard now for quite some time. If the said allegations made by Shri Bhushan are false, what stops the Supreme Court from punishing him for contempt of court? It is worth mentioning that by an amendment made to Section 13 of the Contempt of Courts Act, 1971, justification by “truth” has now been made a valid defence to a charge of contempt of court, subject to certain conditions, as mentioned below:
“(b) the court may permit, in any proceeding 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 bona fide.”
So, it is quite possible that if the aforesaid contempt petition is pursued further and details of “truth” of certain alleged corrupt activities of some former Chief Justices of India are furnished as a valid defence in such petition, it may perhaps lead to further deterioration in the image of the judiciary. In fact, the vehement manner in which the said contempt petition was defended, gives credence to that fear. This is an indication of the possibility of there being “truth” in such allegations.
Let me now come to the issue of explicit restrictions placed in Article 124(7) of the Constitution on the future law practice by retired judges of the Supreme Court. It is a common knowledge that many of the retired judges indulge in “chamber practice” by giving legal opinions to private entities at hefty fees, take up arbitration work, etc., though of course they cannot directly practice in a court or before any authority. A PIL was filed in the Delhi High Court in 2010 for interpretation of the aforesaid Article 124(7) of the Constitution alleging that former SC judges were violating the Constitution “in letter and spirit” by tendering legal opinions, which were being produced in various forums of adjudication to influence judgment (see here). I understand that this PIL is still pending and has not been decided so far.
That the contentions raised in the aforesaid PIL are substantially true, may get substantiated by what I have personally experienced some 20 years back when I was working in CBI on deputation from IPS. A criminal complaint was made by a private bank to the CBI with a request to register FIR (called “Regular Case”, or in short, “RC”, in CBI) and investigate the same. However, the CBI declined to do so, asking the bank to file the FIR with the regular state police. Thereafter, after a few days, a senior officer of the bank came to me with two “legal opinions” – one each from two retired Chief Justices of India (both of whom were prominent and legendary Chief Justices). Both these opinions consisted of about 6-7 lines each, expressing the “opinion” that FIR deserved to be registered by the CBI in the said matter. No detailed reasons were given for such opinion, they were merely personal and unreasoned opinions expressed by two former Chief Justices of India. Frankly speaking, I was quite puzzled and amused as to how could the bank secure such opinions from retired Chief Justices of India. Being in service and not being in law practice at that time, I was really unaware of such practices. Out of curiosity, I asked the bank Officer as to how could they get such opinions and, in fact, how could they even dare to approach retired Chief Justices for such opinion? “There is nothing unusual in this and such opinions are routinely given by the retired judges”, replied the banker, and he further informed that a professional fee of Rs. 5 lakh was paid to each of those judges for the said brief unreasoned opinions. It goes without saying that the head office of the CBI finally decided to register the FIR in the said matter in the light of the opinions of the said two retired Chief Justices of India.
It happened about 20 years back. You can well visualise the situation that may be existing today. The fact of the matter is – giving “legal opinions” by retired judges of the Supreme Court is a routine and is considered a normal practice, notwithstanding the legal bar contained in Article 124(7) of the Constitution. If any further proof is needed, it is provided by none other than Justice P. Sathasivam, former CJI, himself, who has reportedly informed the Indian Express newspaper on 4 September 2014 as under (see here):
“Since my retirement (on April 26), I have not accepted any arbitration or done any consultation work for corporates as some other former CJIs are doing. I have stayed in my village to tend to my small farm. I didn’t lobby for the post. There is nothing wrong in accepting it.”
Thus, Justice Sathasivam has unequivocally stated that some other former Chief Justices of India are accepting arbitration work and are doing consultation work for corporates. If I may be permitted to say so, in my respectful submission, the aforesaid statement of Justice Sathasivam appears to be like taking a “higher moral ground” by indicating that doing consultation and/or arbitration work for corporations (by some other former CJI’s) is “worse” than being a Governor of a State.
If any further proof is needed about the practice of “legal opinions” being given by retired judges, it comes from Shri Soli Sorabjee, former Attorney General of India, who observed with regard to the legal opinions given by retired judges as under (see here):
“What about retired Supreme Court judges giving legal opinions, which invariably are flaunted by parties before courts and judicial authorities? Judges of the Supreme Court and high court strongly disapprove of opinions of retired judges which are annexed to the pleadings or cited in argument and refuse to look at them. However, this cannot be said of tribunals and judicial authorities who are likely to be influenced by the opinion. …”.
As regards arbitration work done by retired judges of the Supreme Court, it may be pointed out that sometimes retired judges are appointed as arbitrators in various disputes (generally of commercial nature) by the Supreme Court itself in its written orders. In fact, it is a common knowledge that in the KG-D6 gas dispute between the Reliance Industries Ltd (RIL) and the Government of India, while RIL has appointed the former Chief Justice of India Shri S.P. Bharucha as an arbitrator on its behalf, the Government has appointed another former Chief Justice of India Shri V.N. Khare as an arbitrator on its behalf (see hereand here).
In addition, there are several commissions and tribunals which are required (sometimes, statutorily) to be headed by former judges of the Supreme Court. An illustrative and non-exhaustive list is: National Human Rights Commission (NHRC); Armed Forces Tribunal (AFT); Law Commission of India; Press Council of India; Telecom Disputes Settlement & Appellate Tribunal (TDSAT); National Consumer Disputes Redressal Commission (NCDRC); National Green Tribunal (NGT); Cauvery Water Disputes Tribunal; and, so on. The recently enacted Lokpal Act will also be giving post-retirement employment to more than one judges of the Supreme Court as Chairperson / members of Lokpal.
In fact, of the 21 judges of the Supreme Court who retired between the period from January 2008 to July 2012, as many as 18 of them got post-retirement jobs in different government commissions and tribunals (see hereor herefor details).
This being the factual position, when most of the retired judges of the Supreme Court are re-employed in one or the other commission or tribunal, the question of independence of judiciary has become more serious.
Whatever I have mentioned above is mainly on the basis of what has already been reported in the media. For every one story published in the media, there may be 10 stories that may be discussed in the privacy of drawing rooms or may be in the bar rooms of the courts, and there may be many more further stories which may not even be known to anyone except those involved. In fact, in the Supreme Court bar, several such issues of impropriety are privately discussed on daily basis, which are not published in media for public consumption in the absence of any concrete evidence and perhaps also due to the fear of the contempt of Court. The opening words of a famous song from the Hindi movie “Roti” (starring Rajesh Khanna) – “ye jo public hai ye sab jaanti hai…” (loosely translated as “it is public, it knows everything…”), perhaps aptly depict the scenario. However, most of such stories do not come out due to fear of contempt of court. A person who has heard some of these unverified stories, can only describe the situation as appalling and unbelievable. As I said earlier, we cannot improve a system unless we first accept the existence of deficiencies in the system. As serious stake-holders in the system, the advocates have a duty to improve the system, howsoever unpleasant the task may be.
Thus, it is not that there is nothing wrong in the higher judiciary. As mentioned above, the judges are also human beings. They come from the same Indian society, having been born on the same mother Earth and not coming from any different planet or even from a different country that may have better moral fabric. Moreover, they are not paid well if you compare them with some of the successful lawyers. They also have their own families and interact with the society on a regular basis. Thus, at least some of the judges may also make similar mistakes as other lesser mortals are expected to make.
In fact, notwithstanding what has been stated above, it is to the credit of the members of the higher judiciary that most of them have maintained highest standards of financial, intellectual and moral integrity. At the same time, there may be some judges who may fall prey to the temptations, pressures, and influences of the kinds that other ordinary human beings are likely to succumb to.
In their own wisdom, the makers of the Constitution decided that judges of the Supreme Court shall retire on the completion of 65 years of age. This is unlike what happens in the United States, where the judges are appointed for life and they never retire (of course, they can resign voluntarily as and when they wish). About 65 years back, when the Constitution was framed, perhaps the retirement age of 65 years might have broadly reflected (or even exceeded) the life expectancy in India. However, with the rising levels of life expectancy in India, this retirement age is not sufficient. If an advocate can continue successfully practice at the age of 90 years plus (e.g., Shri Ram Jethmalani, who can argue for the full day), there is no reason as to why judges of the Supreme Court cannot perform their duties efficiently well beyond their present retirement age of 65 years. Many of the judges, therefore, take up further employment after their retirement from the Supreme Court. That the Government is more than willing to accommodate the judges in post-retirement positions becomes clear from the provisions of various statutes that require a retired judge to head a particular tribunal or commission. However, the issue is not about an employment being given to a retired judge; the issue is whether such post-retirement employment results into compromising the independence of the judiciary. Of course, the best solution perhaps would be to raise the retirement age of a Supreme Court judge to about 75 years or even higher. However, there does not appear to be any possibility of such a measure in the near future. A proposed amendment increasing the retirement age of Supreme Court judges by merely 3 years has also not seen light of the day so far. Therefore, one has to look at the circumstances as they exist today.
The fact remains that a deficiency in the Constitution, left deliberately or ignorantly or innocuously by the makers of the Constitution, has given rise to scope for the politicians to exploit the cracks in the judiciary. Given the nature and extent of the powers enjoyed by a Supreme Court judge, and given the consequences that may follow for the Government (or for the senior functionaries of the Government) from an adverse exercise of such powers, it is but natural that the Government of the day always tries to allure the judges with post-retirement options. It is true that while many of the judges would never compromise with their duties as sitting judges of the Supreme Court irrespective of the prospects of post-retirement options offered to them, there may perhaps be some who may not have the strength to resist the temptation or the pressure or the influence. Contents of the foregoing paragraphs amply show that there are a few judges whose conduct may not be above board in this regard.
The problem is compounded further where a judge may perhaps favour a party to a dispute, while performing his duties, as a quid pro quo or at least with a view to not to displease the powers that be in order to secure post-retirement options. The post-retirement options may influence his decision to the detriment of the independence of judiciary.
I am not writing this as a figment of imagination. Let me quote certain observations from Shri Arun Jaitley, the present Finance and Defence Minister in the Union Government, who himself is an eminent lawyer. Of course, his observations being reproduced here relate to a period when he was in the opposition party, and I am sure he would have a different opinion today given the appointment of Shri P. Sathasivam, former CJI, as Governor of Kerala made by his Government.
Notice what Shri Arun Jaitley had said when he was the Leader of Opposition in the Rajya Sabha (see here):
“…this clamour for post retirement jobs is adversely affecting impartiality of the judiciary of the country and time has come that it should come to an end. …Now through judicial verdicts post retirement jobs are being created… pre retirement judges are influenced by a desire for a post retirement job”.
In the same meeting, Shri Nitin Gadkari, who was BJP President at that time, and who is also a senior Minister in the present Union Government, while endorsing the above views of Shri Arun Jaitley, observed as under (please see the same link):
“For two years after retirement there should be a gap (before appointment), because otherwise the government can directly or indirectly influence the courts and the dream to have an independent, impartial and fair judiciary in the country would never actualise”.
Further, this is what Shri Arun Jaitley, as the then leader of opposition, stated in the Rajya Sabha in 2013 while speaking on the Judicial Appointments Commission Bill, 2013 (See here):
“…I think, we are going a bit too far now, in every legislation, in creating post-retirement avenues for Judges. … I think this whole temptation of continuing to occupy a Lutyens Bungalow is a very serious temptation. … The desire of a post-retirement job influences pre-retirement judgements. It is a threat to the independence of the Judiciary. Once it influences pre-retirement judgements, it adversely impacts the functioning of our Judiciary itself. …”.
Surely, Shri Arun Jaitley will have an entirely different opinion today in his capacity as a senior Minister in the Union Government. However, the fact remains that, as pointed out by Shri Jaitley, more and more statutory posts in the commissions and tribunals are being created exclusively for the retired judges of the Supreme Court and of High Courts. And, now Governor of a State is one more addition to the list, ironically added by the Government of which Shri Jaitley himself is a senior member.
To be fair, let me point out that there have been instances in the past when former CJI’s have taken up positions in the executive. Former CJI Justice M. Hidayatullah was the Vice President of India from 1979 to 1984, after having been elected with the consensus of all parties. Another CJI Justice Ranganath Mishra was appointed as a nominated member of the Rajya Sabha in 1998 and completed his term in 2004. Justice K.S. Hegde, a former judge of the Supreme Court, was elected to the Lok Sabha from Bangalore in the year 1997, and was Speaker of the Lok Sabha from 1977 to 1980. However, it is pertinent to point out that even before becoming a judge of the Supreme Court, Justice Hegde was elected to the Rajya Sabha in the year 1952 and continued to be Rajya Sabha member will 1957.
In fact, Justice Fathima Beevi, the first woman judge of the Supreme Court, was appointed as Governor of Tamil Nadu in the year 1997 and served as such till 2001. Likewise, Justice Sukhdev Singh Kang, former Chief Justice of Jammu and Kashmir High Court, was the Governor of Kerala from 1997 to 2002. Recently, Shri Vijay Bahuguna, who was a judge of the Allahabad High Court and the Bombay High Court, contested elections on the ticket of a political party (Congress) and even became Chief Minister of a State, namely Uttarakhand.
There have also been cases of retired judges taking up private employment. Former Chief Justice of India Shri S.H. Kapadia retired on 29 September 2012 and on 29 January 2013 he joined the board of directors of Bombay Stock Exchange (BSE) as a public interest director (PID), after being nominated to that post by the Securities and Exchange Board of India (SEBI) (see here). It is interesting to note here that as a judge of the Supreme Court, he regularly dealt with matters under SEBI Act, 1992, Companies Act, 1956, RBI Act, Mergers & Acquisitions, taxation matters, etc.
There have been cases of some other constitutional functionaries (who are required to be independent and impartial arbiters) also accepting positions after retirement. Shri M.S. Gill, who was the Chief Election Commissioner from 1996 to 2001, was appointed as the Minister of Youth Affairs and Sports in the Union Government by a Congress party. Shri T.N. Seshan, another former Chief Election Commissioner from 1991 to 1996, had contested for the post of President of India in 1997 as a Shiv Sena supported candidate, but lost this election to Shri K.R. Narayanan. Again, in 1999, Shri Seshan was a Congress-backed candidate for the Lok Sabha election from Gandhinagar against Shri L.K. Advani but suffered a heavy defeat.
So, what is new if a former CJI is now appointed as Governor of a State? Well, while there have been several instances when retired judges of the Supreme Court have been given post-retirement positions, but generally such positions were confined to tribunals and commissions, etc., which were generally related to the field of law. Governor of a State is an entirely different ball game. It is completely a political post. The way Governors are changed merely after a change of Government in New Delhi, and the way they are appointed on the basis of political affiliations, are no secrets. Recently, the way Governors of several states were made to resign and/or were transferred (to a place like Mizoram) to force their resignations, and the way new Governors were appointed in their place on the basis of political affiliations, clearly show as to how political the position of Governor has become today. The type of persons who have been appointed as Governors clearly shows that there is no requirement of any knowledge or expertise in law as a qualification for being made the Governor. Governors hold office during the pleasure of the President, which practically means the pleasure of the political party in power at the Centre. I need not elaborate further as to whether the office of Governor is befitting for a person of the stature of a former Chief Justice of India, who held a position independent of the executive, and who could not be removed from his post except by impeachment by Parliament in the manner laid down in the Constitution. The fact that till date, not even a single judge has been impeached since the Constitution came into existence in 1950, shows the kind of independence that has been guaranteed to a judge of the Supreme Court. Now, contrast it with the way a Governor can be removed from his post. A mere phone call from the Union Home Secretary may be sufficient for getting the resignation of a Governor. And, what kinds of duties are performed by a Governor? Is it not the practical experience that a Governor generally acts as advised by the political party in power at Centre? Will failure to fulfil the unwritten orders of the political party in power in Centre result into direct or indirect removal of the Governor? Notwithstanding a recent Constitution bench decision of the Supreme Court in the case of B.P. Singhal v. Union of India, (2010) 6 SCC 331 (ironically, Justice Sathasivam was a part of this Bench), the fact remains that a Governor can easily be removed from his post on political considerations, as the recent experience of removal of several Governors shows.
No doubt, there may be certain issues in the present case, such as who initiated the move to appoint Justice Sathasivam as Governor of Kerala? Was is the Central Government? Why should the Government do it when it has so many aspirants in its own party and moreover, why should it favour Justice Sathasivam in particular? Does it show some sort of quid pro quo or some sort of reward for the past services rendered as has been alleged by the opposition parties? Or else, did Justice Sathasivam himself initiate the move? If so, then does it show some sort of impropriety, even if he may now be a retired judge? Was there any mediator? If so, then again, who motivated such mediator and what is his interest in promoting the case of Justice Sathasivam? Or, whether the said appointment was done purely on merits in view of the great contribution made by Justice Sathasivam to the field of law?
However, I am not going into the details of these questions. For, there is a larger question. What message it contains for the sitting judges?
Thus, it may not be an issue of a serious concern if a particular former judge decides to join politics after his retirement or takes up a position that has political implications. In any case, as mentioned above, there is no bar under the Constitution, though there may be certain questions of propriety having moral implications.
But, what is of concern is as to what sort of impact it will have on the independence of judiciary and how it will impact the performance of duties by the sitting judges? Will it act as an inducement for the sitting judges too? Will some of their decisions be influenced? Will the carrot of such (or similar) post-retirement assignments have an adverse impact on the independence and impartiality of the judiciary? Will it be a retrograde step for the judiciary, and for the constitutional democracy, and also for the rule of law in the country?
At this juncture, I feel it necessary to refer to certain observations of the Supreme Court, relying upon dicta of the Privy Council. Referring to the observations of the Judicial Committee of the Privy Council in the case of Liyanage v. Queen, (1967) 1 AC 259, S.M. Sikri, C.J., observed in the case of Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461 : 1973 Supp SCR 1, as under:
“256. Their Lordships uttered a warning which must always be borne in dealing with constitutional cases: “what is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution”. This was in reply to the argument that the Legislature had no such general intention to absorb judicial powers and it had passed the legislation because it was beset by a grave situation and it took grave measures to deal with it, …”.
[Emphasis and underlining supplied.]
What these observations mean, in simple terms, is that sometimes a wrong act is justified on the grounds of serious circumstances then existing, however if such wrong act is permitted, it may become a precedent and may be repeated again and again in due course of time, and later, over a period of time such wrong act may be done even in less serious circumstances, and a time comes when bigger wrong acts are committed even in less serious circumstances, and so on. Therefore, it is always advisable not to permit the doing of a wrong thing in the very first instance itself, more so when it is connected with the serious issue of independence of judiciary. Any small compromise with the independence of judiciary, if ignored, may lead to more such compromises, thereby threatening the basic fabric of a constitutional democracy at the very foundation of which lies the independence of judiciary.
So, will the appointment of a former Chief Justice of India as a Governor of a State have an adverse impact on the independence of judiciary, either in the short run or over the longer term?
Well, the jury is still out. Only the time will tell us.
Recently, on 1 August 2014, the Supreme Court had settled the issue of territorial jurisdiction in cases under Section 138 of the Negotiable Instruments Act (cheque bouncing cases) bringing uniformity and certainty on the issue where such cases can be filed. However, within one month of this decision, a recent decision of the Bombay High Court has created the same uncertainty again in respect of multi-city cheques payable at par in all branches of the bank.
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Which court has the territorial jurisdiction in an offence committed under Section 138 of the Negotiable Instruments Act, 1881, for dishonour of a cheque, commonly known as a case of cheque bouncing? Recently, on 1 August, 2014, a 3-Judge bench of the Supreme Court [in the case of Dashrath Rupsingh Rathod v. State of Maharashtra, in Criminal Appeal No. 2287 of 2009] gave its verdict in order to settle this issue (see here). The Supreme Court held that the territorial jurisdiction is restricted only to the Court within whose local jurisdiction the offence was committed, which is where the cheque is dishonoured by the bank on which it is drawn. Thus, it was held that such a case cannot be filed, for example, in a court in whose area the cheque was presented in a bank by the payee or where the notice was issued, etc. This judgment was aimed at ensuring that such cases are not filed at places other than the place where the bank account from which the cheque was issued (i.e., the branch of the bank on which the cheque was drawn) is located. Thus, an old controversy about the territorial jurisdiction in cheque bouncing cases was set to rest by the Supreme Court. However, within a month of the aforesaid judgment of the Supreme Court, a single judge bench of the Bombay High Court, vide its judgment dated 25 August 2014 (see here) in the case of Ramanbhai Mathurbhai Patel v. State of Maharashtra [in Criminal Writ Petition No. 2362 of 2014], has reignited the old controversy again and has again created the uncertainty as to where a cheque bouncing case can be filed. Before going into further details, let me briefly analyse the background. [Update (21 March 2015): Please also this article: Jurisdiction for “at par” cheque dishonour – SLP against Bombay High Court decision dismissed by Supreme Court.]
In the case of K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 : AIR 1999 SC 3762, a 2-Judge bench of the Supreme Court had held that “(t)he locality where the Bank (which dishonoured the cheque) is situated cannot be regarded as the sole criterion to determine the place of offence”. It had further observed as under:
“14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice.
15. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at five different localities. But a concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Code. … …”
After referring to the provisions of Section 178 of the Cr.P.C., the Supreme Court had further held that “…if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done.”
Thus, in the aforesaid Bhaskaran case, the Supreme Court had given a lot of flexibility about the place where a case under Section 138 of the Negotiable Instruments Act could be filed. This legal principle has, generally speaking, been holding the field till 2014, though there were some minor issues such as, e.g., regarding territorial jurisdiction at a place where the drawer received the notice issued by the payee of the cheque demanding payment of the cheque amount after it has been dishonoured.
The aforesaid Bhaskaran case had many unintended consequences. Suppose a cheque is issued at Mumbai, drawn on a bank located at Mumbai, in favour of a payee who resides in Delhi. The payee may have his business spread over several places and may have several bank accounts in various banks located in various cities, for example in Bangalore, Chandigarh, Lucknow, etc. He presents the cheque to his banker in Chandigarh, which is dishonoured. He issues a notice to the drawer of the cheque for payment of the cheque amount from his branch office located in Lucknow. As per the aforesaid Bhaskaran case, the cheque bouncing case can be registered either at Mumbai or Chandigarh or Lucknow. This causes hardship to the drawer of the cheque. This gives flexibility to the payee of the cheque to choose the place where he was to file the cheque bouncing case. He may deliberately do so by filing the case at a remote place to harass the payee of the cheque in order to put pressure on him. Sometimes, several cheques are issued at the same time by a person to the same payee, which are deliberately presented in different banks located at different places, and thereafter, cheque bouncing cases are filed at different places against the drawer of those cheques. Thus, a lot of hardship was caused to the drawer of the cheque in many such cases.
Vide the aforesaid recent judgment dated 1 August 2014, in the Dashrath Rupsingh Rathod case, a 3-Judges bench of the Supreme Court has overruled the aforesaid decision in the Bhaskaran case. In this latest case, the Supreme Court held that the territorial jurisdiction is restricted only to the Court within whose local jurisdiction the offence was committed, which is where the cheque is dishonoured by the bank on which it is drawn. In para 19 of this judgment, the Supreme Court held as under (per VIKRAMAJIT SEN, J., on behalf of the Court):
“We clarify that the place of the issuance or delivery of the statutory notice or where the Complainant chooses to present the cheque for encashment by his bank are not relevant for purposes of territorial jurisdiction of the Complaints even though non-compliance thereof will inexorably lead to the dismissal of the complaint. It cannot be contested that considerable confusion prevails on the interpretation of Section 138 in particular and Chapter XVII in general of the NI Act. … … We clarify that the Complainant is statutorily bound to comply with Section 177 etc. of the CrPC and therefore the place or situs where the Section 138 Complaint is to be filed is not of his choosing. The territorial jurisdiction is restricted to the Court within whose local jurisdiction the offence was committed, which in the present context is where the cheque is dishonoured by the bank on which it is drawn.”
Likewise, it was held in para 17 as under:
“17. In this analysis we hold that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank, is located. … …”
Supplementing the aforesaid decision, T.S. THAKUR, J., separately held in para 31 of his decision as under (while concurring with the main decision):
“(vi) Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured.
(vii) The general rule stipulated under Section 177 of Cr.P.C. applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the Court within whose jurisdiction the dishonour takes place except in situations where the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof.”
Thus, in the aforesaid Dashrath Rupsingh Rathod case, a larger 3-Judge bench of the Supreme Court has now held that a cheque bouncing case can be filed only in a court which has the territorial jurisdiction over the place where the cheque is dishonoured by the bank on which it is drawn. Thus, if a cheque is drawn by a person on his bank account at Mumbai, the cheque bouncing case in respect of this cheque can be filed only in a court at Mumbai within whose territorial jurisdiction the said bank is located. Such a case cannot be filed in any other court at any other place. Thus, there is no uncertainty about the place where such a case can be filed now. The payee of a cheque cannot now unnecessarily harass the drawer of the cheque by filing the cheque bouncing case at the place of his choice by deliberately choosing a different for presenting the cheque or for sending the notice, etc.
A few days after the aforesaid decision had been pronounced, during a discussion with a senior member of the Bar (who is a retired Judge of a High Court), I had expressed certain reservations about this decision, one of which related to the issue of MULTI-CITY cheques which can be presented and encashed / cleared AT PAR in all branches of the bank. Unfortunately, in the aforesaid Dashrath Rupsingh Rathod case, the issue of “multi-city at par” cheques has not been considered. It is common knowledge that, nowadays, most of the cheques are multi-city cheques that can be encashed at par in any branch of the bank on which it is drawn. The question in such a case would be: if a multi-city cheque can be presented in any branch of the bank and if it can be cleared / encashed by that branch without sending it to the local branch where the drawer of the cheque actually has his account, does it not mean that dishonour of the cheque can also take place in the branch of the bank where it was actually presented and which dishonoured it without referring it to the local branch where the drawer of the cheque has his account? So where does the dishonour take place? Is it at the branch where the cheque is presented for clearing (but which cannot clear it due to non-availability of sufficient funds, etc.), or is it at the branch where the drawer has his account (though the cheque is not referred to this branch for clearing)? Ultimately, what is the purpose of issuing multi-city cheques which can be encashed at par in any branch the same bank? Moreover, if the dishonour of such a multi-city cheque can take place in a branch where it is presented, instead of the branch where the drawer has his account, then will it not lead to the same uncertainty regarding the territorial jurisdiction of the courts within whose jurisdiction the cheque bouncing case needs to be filed? This issue was not discussed in the aforesaid Dashrath Rupsingh Rathod case. Let me clarify here that I am not even referring here to the fact that nowadays the cheque may not even physically travel even to the clearing branch of the same bank (where it is presented for clearing), forget its travelling physically to the local branch where the drawer actually has his account. What happens nowadays is that only a scanned image of the cheque is generally sent electronically to the clearing branch of that bank in the city in which the cheque has presented.
As mentioned above, in view of the fact that most of the cheques being issued nowadays are multi-city cheques payable at par in all branches of the same bank, my expectation was that the aforesaid issue was likely to arise sooner or later. And, it has actually happened sooner rather than later.
As mentioned above, the issue of multi-city cheques arose in the recent case of Ramanbhai Mathurbhai Patel v. State of Maharashtra [in Criminal Writ Petition No. 2362 of 2014] before the Bombay High Court. In this case, to cheques had been issued by the petitioner from his accounts in two different banks, both located in Gandhinagar in Gujarat. Both these cheques were multi-city cheques payable at par in any of the branches of the respective banks. The payee of the cheques presented them in his bank at Mumbai, and they were sent for clearing in the respective branches of the two banks located in Kurla area of Mumbai. Both the cheques were dishonoured by the aforesaid clearing branches at Mumbai. In these circumstances, relying upon the aforesaid recent Dashrath Rupsingh Rathod case decided by the Supreme Court, a single judge bench of the Bombay High Court has now held that since a multi-city cheque is payable at par in all branches of the bank, therefore the dishonour of the cheques took place at Mumbai (and now in Gandhinagar in Gujarat). The relevant observations of the Bombay High Court are as under:
“8. It is thus clear that in the present case by issuing cheques payable at all branches, the drawer of the cheques had given an option to the banker of payee to get the cheques cleared from the nearest available branch of bank of the drawer. It, therefore, follows that the cheques have been dishonoured within the territorial jurisdiction of Court of Metropolitan Magistrate at Kurla. In view of judgment of Hon’ble Supreme Court in the matter of Dashrath v. State of Maharashtra cited (supra), the learned Metropolitan Magistrate of Kurla Court has jurisdiction to entertain and decide the complaint in question.”
In this manner, we have perhaps come back to square one again from where we started before the aforesaid recent Dashrath Rupsingh Rathod decision of the Supreme Court came to be delivered. Thus, the aforesaid Bombay High Court decision implies that the payee of a multi-city cheque, which is payable at par in all branches of the bank, can choose the place where he wants to present the cheque, and thereafter when it is sent for clearing to the nearest branch of the bank in that city, the court having jurisdiction over that clearing branch has the territorial jurisdiction of the cheque bouncing case! So, in respect of the multi-city cheques, the old problem of uncertainty about territorial jurisdiction of cheque bouncing cases returns to haunt us again merely within one month of the authoritative decision of the Supreme Court delivered on 1 August 2014. Therefore, if one goes by this latest decision from the Bombay High Court, the payee again gets the choice of place where he wants to file the cheque bouncing case, if the cheque being dishonoured is a multi-city cheque payable at par in all branches of the bank.
At the cost of repetition, it may be stated again that since most of the cheques being issued nowadays are multi-city cheques, the aforesaid decision of the Supreme Court in Dashrath Rupsingh Rathod case has effectively been set at naught, reigniting the same old uncertainty. There is, perhaps, an urgent need therefore to get this issue clarified by the Supreme Court in order to remove this uncertainty.
Will there be expeditions criminal prosecution of sitting MPs and MLAs? Unfortunately, the Supreme Court is sending confusing signals on this issue. The issue being important, there is a need to have a uniform and clear stand on this issue and that should be in favour of expediting the trial of sitting MPs and MLAs in the criminal cases pending against them.
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Recently, I wrote an article – Expeditious criminal prosecution of sitting MPs and MLAs, in which the need to expedite the trial of the sitting MPs and MLAs in the criminal cases pending against them was highlighted. I had quoted therein a recent decision of the Supreme Court delivered on 10 March 2014 (here), in the case of Public Interest Foundation v. Union of India [Writ Petition (Civil) No. 536 of 2011]. The Supreme Court had directed therein that in relation to sitting MPs and MLAs who have charges framed against them for the offences which are specified in sub-sections (1), (2) and (3) of Section 8 of the Representation of People Act, 1951, the trial shall be concluded as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s). It was directed that in such cases, as far as possible, the trial shall be conducted on a day-to-day basis.
In the aforesaid article, I had also referred to the election speeches of the new Prime Minister Shri Narendra Modi made during the recently concluded 2014 Lok Sabha elections, vowing to end criminalisation of politics, saying that if he assumes power, he would request the Supreme Court for speedy trial of tainted MPs within one year (here).
One thought that the highest functionaries in the judiciary and the executive are on the same wavelength in respect of expeditious criminal prosecution of sitting MPs and MLAs in the criminal cases pending against them. Therefore, it was quite natural to expect immediate action on this issue. Alas! It was not to be. It appears that things do not change in India in spite of the best intentions. The Supreme Court appears to have sent contradictory and confusing signals on this issue.
On 11 June 2014, the Prime Minister Narendra Modi had sought the support of the Parliamentarians to ask Supreme Court to complete trials of pending cases against MPs within a year. Thereafter, he had asked the Law and Home Ministries to expedite criminal cases against Members of Parliament within a year.
However, on 1 August 2014, when this issue came up before the Supreme Court, surprisingly the Supreme Court refused to fast track prosecution of criminal cases against the sitting MPs and MLAs. It asked the Government of India to work out a comprehensive policy for fast-tracking trials in criminal cases and “strengthening courts” for “good governance”, and observed that only some cases, like those against the MPs, cannot be fast-tracked “at the cost of” other cases.
These observations of the Supreme Court are directly in contradiction to its aforesaid decision dated 10 March 2014 (here), in the case of Public Interest Foundation v. Union of India, as mentioned above, wherein the Supreme Court had itself directed the completion of trial of certain cases pending against the sitting MPs and MLAs within a period of one year from the date of framing of charges. Surprisingly, the aforesaid earlier decision (10 March 2014) as well as the recent observations (1 August 2014) have both come from benches headed by the present Chief Justice of India Shri R.M. Lodha.
There is no doubt that there is a need for a comprehensive policy to ensure speedy justice in all cases. The need for speedy justice has been highlighted for last several decades (for details, see my article – The illusory right to speedy trial). What is needed is simply a substantial increase in the judicial strength. However, there has been a lot of talk but no concrete and effective action so far. Governments have come and gone. The problem of huge pendency in courts continues unabated. In fact, this problem has worsened over the years. Even as of today, more than 3 crore cases are pending before various courts all over India. Notwithstanding grand plans announced from time to time to solve this problem, precious little has been done on the ground.
This being the experience so far, what is required to be done is, at least, to expedite cases which are more important than others. It needs no emphasis to say that completion of prosecution of criminal cases pending against the sitting MPs and MLAs should definitely be a topmost priority. An elected representative is a part of the law-making body. The Government of the day is also responsible to the elected representatives, and in fact, the Government itself is formed from amongst elected representatives. Therefore, two important wings of the State, namely, legislature and executive are fully dependent on the elected representatives. They represent the people’s aspirations and play an important role in deciding their destiny. An elected representative having pending criminal cases against him is not in the interest of the citizens. We cannot afford to have criminals sitting in the legislature and executive. As highlighted in my previous article (Expeditious criminal prosecution of sitting MPs and MLAs), even in the recently concluded 2014 Lok Sabha elections, out of the 543 MPs elected by the people, as many as 186 newly elected MPs (i.e., 34% of the total number of MPs in the new Lok Sabha) have criminal cases pending against them (see this link for the list), and as many as 112 newly elected MPs (i.e., 21% of the total number of MPs in the Lok Sabha) have serious criminal cases against them (see this link for the list). Thus, it is really a serious issue. The Parliament and the executive, in effect, both consist of several persons who have criminal background and who have not been absolved of the criminal cases pending against them. This is not at all desirable for a vibrant democracy.
Therefore, there is an urgent need to ensure that the prosecution of all criminal cases pending against the sitting MPs and MLAs should be given topmost priority over other cases in order to rid the legislatures (and the political executive) of people having criminal background.
The aforesaid recent observations of the Supreme Court noting that only some cases cannot be fast tracked at the cost of other cases, do not appear to be laying down the correct proposition of law. We already have fast track courts, wherein certain cases are fast tracked at the cost of other cases. For example, offences against women are usually fast tracked. Moreover, there are special courts for various categories of offences, such as corruption, offences against SCs / STs, narcotic drug cases, etc. From time to time, through various decisions, the Supreme Court has upheld such special courts as well as expeditious prosecution of only a certain types of cases. Therefore, it is too late in the day to say that only some cases cannot be fast tracked at the cost of other cases. Moreover, it can be nobody’s case that criminal cases against sitting MPs and MLAs are not important enough to be fast tracked.
No doubt, the ideal situation would be to have a comprehensive policy for ensuring speedy justice. As mentioned above, it requires strengthening the judiciary by creation of more posts and filling up of the existing vacancies in the judiciary. The Supreme Court has enough powers under the Constitution to compel the Government of India and the Governments of the States for creating more posts in the judiciary in order to ensure speedy justice to all. As explained by me in another recent article (Have we done enough for women’s security?), what is needed is only about Rs. 6000 crore per year for doubling the strength of the judiciary in India, which is not much, given that an amount in the range of Rs. 300000 crore is spent every year on various kinds of subsidies alone, many of which are wasteful and unnecessary subsidies. However, unfortunately, the Supreme Court has always felt shy in effectively forcing the Governments to increase the judicial strength to the extent necessary to ensure speedy justice. It has been satisfied by merely making some verbal observations here and there, and sometimes even making such observations or directions in its decisions also (for details, see my article – The illusory right to speedy trial). But, I shall boldly put it in writing that the Supreme Court has, somehow or the other, lacked courage and conviction in enforcing such decisions and compelling the Governments to substantially enhance judicial strength for ensuring speedy justice which has been held to be a part of the fundamental right guaranteed under Article 21 of the Constitution of India.
Therefore, given the current state of affairs, since ensuring speedy justice in all types of cases may take quite some time howsoever desirable it may be, the Supreme Court should not fail in its duty to ensure that, at least, in important categories of cases there is no delay in the completion of the judicial process. At the cost of repetition, it needs to be said that criminal cases against the sitting MPs and MLAs would definitely come in this category of important cases, which need to be expedited as directed by the Supreme Court itself in its aforesaid order dated 10 March 2014. Therefore, there is an urgent need to clear the confusion in this regard that has been created by the aforesaid recent contradictory observations of the Supreme Court on 1 August 2014. Such confusing signals, coming as they are from the highest court of the land, are not in the interest of the health of our democracy.
The Chief Justice of India has proposed to make Indian judiciary work throughout the year; however, there is not going to be any increase in the number of working days or working hours of any of the judges. What is going to change is only that different judges will go on vacation during different periods of the year as per their choice. A detailed analysis as to whether this new proposal will make a dent in the huge pendency of about 3.2 crore cases in the courts.
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There is huge pendency of more than 3.2 crore cases in Indian courts. A majority of these cases are pending for large number of years. Now, contrast it with the fact that the Supreme Court of India works only for 193 days in a year, while the high courts work for 210 days in a year and the trial courts work for about 245 days in a year. In view of these reasons, the courts in India have been facing criticism for having long vacations even in the face of huge pendency of cases. Now, the Chief Justice of India Shri R.M. Lodha has come out with a new proposal to make the Indian judiciary work throughout the year. Shouldn’t it be good news? May be. However, the devil lies in the details.
Let us first compare the number of working days of the judiciary with that of other government servants. For example, in the Central Government, out of the 365 days in a year, 104 days are taken up by Sundays and Saturdays which are holidays (due to a five-day week), and in addition there are about 16 gazetted holidays in a year. Therefore, the number of working days for the Government servants in the Central Government is approximately 245 days in a year (in addition, the Government servants are also entitled to Earned Leave and Casual Leave; however, that is irrelevant for the present discussion, since similar privileges are available to members of judiciary also, though there may be some variation in the number of days for which a particular type of leave is admissible). Thus, the number of working days for Central Government servants is more or less equal to the number of working days for the trial courts, i.e., the lower judiciary. Therefore, the lower judiciary is already working almost throughout the year, more or less at par with other Government servants. It is worth mentioning that urgent matters are always heard by vacation judges or the holiday courts even during vacations and on other holidays (including on Sundays). In view of this, the proposed system of making the courts work throughout the year is not going to make much difference insofar as the lower judiciary is concerned.
However, as mentioned above, the Supreme Court works only for 193 days in a year whereas the High Courts work for about 210 days in a year. Therefore, considering 245 days in a year as the yardstick of “working throughout the year”, the Supreme Court may have to work for an additional 52 days in a year whereas the High Courts may have to work for an additional 35 days in a year.
Let me come back to the details of the new proposal of the Chief Justice of India. He is reported to have told the Times of India: “…There is not going to be any increase in the number of working days or working hours of any of the judges. At the beginning of the year, the judges would be required to tell the desk managing court sittings when they would like to avail vacations and holidays. Accordingly, a calendar would be prepared for arranging the benches in the Supreme Court and high courts to ensure that judiciary functions throughout the year.”
So, the number of working days is not going to change! What is going to happen is that instead of all the judges proceeding simultaneously on vacation during the same period of the year (for example, the summer vacation for 2014 for the Supreme Court is being observed from 10 May 2014 to 30 June 2014 – a period of seven weeks, during which period all SC judges are on vacation barring one or two vacation benches), different judges will be going on vacation during different periods of the year. This means that some judges would always be available in the court throughout the year.
However, the very fact that the number of working days is not going to change, it is not understood as to how this proposed system will make any dent in the pendency of cases. Ultimately, the number of courts/benches working on a given day will reduce proportionately and there is hardly any difference in the total number of courts/benches held during the year. For example, if we presume that on an average 13 benches are working every day in the Supreme Court for 193 days of the year, then the total number of courts/benches held during the year is 13 x 193, which is 2509. In the proposed system, the number of working days will increase drastically, but there will be a corresponding reduction in the average number of courts/benches held on a given day, and thus the total number of courts/benches held during the year will continue to remain more or less the same. Moreover, since the average number of courts/benches held on a given day will be reduced correspondingly, the average number of cases heard per day will also reduce correspondingly, presuming that the average rate of disposal of cases by a court/bench remains the same. Therefore, there would not be any significant improvement in the disposal of cases.
In fact, it is pertinent to point out that, at present, one or two benches of the Supreme Court regularly sit during the summer vacation also. Therefore, these benches are, in fact, additional benches in the present system, that may not be needed in the proposed system. Therefore, it may perhaps so happen that the actual number of total benches in a year may actually come down, albeit to a small extent.
It is also pertinent to point out that judges may not be averse to such an idea, since the number of working days are not going to increase for them, and they will have an added advantage of choosing the vacation as per their own convenience during any part of the year. However, for the advocates, the number of working days is going to increase drastically since they will now have to remain present for all the working days throughout the year. This is so because once an advocate has accepted a particular case, he is legally bound to attend to that case as and when that case is listed in the court. But, will there be any increase in the productivity even if the advocates have to attend the courts throughout the year? Hardly any, since the total disposal of cases in a year is not going to change in view of lesser number of courts now available on a given day. It is no surprise then that the Bar Council of India has rejected the above suggestion of the Chief Justice of India.
Some people have tried to suggest that in the proposed system, even the advocates can also select their own vacation, since they are completely free to take leave and decide when not to attend the court. However, this is usually not possible for the simple reason that once an advocate has accepted a particular case, it is his legal responsibility to attend to that case as and when it is listed. Of course, there is a miniscule percentage of advocates (usually, senior advocates) who take up cases only on “per appearance” basis and do not commit for the full case on all dates. However, even such advocates may not like to go on vacation for long durations when the courts are working, since it may adversely affect their practice as well as their earnings, and moreover, a client may engage another advocate and change his loyalties.
In all fairness, I must also point out one practical possibility that may arise if the proposed system is introduced. There are many judges who do not take any leave (or take only a part of the leave) to which they are entitled under the existing rules. Therefore, under the new system, if it is not made binding on them to compulsorily go on vacation during a given year, though during the period chosen by them, there is every likelihood that many judges may not like to proceed on vacation (or may take advantage of only a part of the vacation) and may like to continue working throughout the year. A judge in a higher court is a position of great responsibility as well as a matter of great honour. Therefore, it is quite possible that certain judges may not like to proceed on vacation and may instead continue working to serve for the maximum possible number of days in their fixed tenure. Moreover, if a judge is about to retire shortly, he may decide not to proceed on vacation, since in any case after his retirement he would be getting full vacation (unless, he is inclined to take up some post-retirement assignment in some tribunal, commission, etc.). In fact, if some of the judges opt not to go on vacation, over a period of time there is a likelihood of the peer group pressure working on other judges some of whom may also be persuaded to opt out of the vacations. If it happens, then, of course, the proposed system may help in reduction of the pending cases since this would mean judges being available for more number of days in a year vis-à-vis the present system.
It is also worth noting that at present there appears to be strong resistance in the judiciary to give up the vacations. It may not perhaps be possible to discontinue the present system of court vacations in a direct manner. The proposed system may, however, be an indirect method of giving up the vacations, since in the short run the present system of forced vacations would be discontinued, and in the long run there is a possibility that more and more judges may opt not to go on vacation.
All said and done, the best option would be to gradually reduce the number of days for which the courts go on vacation in a year. The main argument that is given against such reduction is that judges need time to do research and/or write judgements and that they need long vacations for this purpose; however, this argument does not hold water. Usually, the courts work for only 5 to 6 hours per day (for example, the working hours for the Supreme Court are only 4 ½ hours, viz., from 10.30 am to 1 pm and 2 pm to 4 pm; and, moreover, on Mondays and Fridays most benches in Supreme Court usually rise by the lunch time). Therefore, some additional hours can definitely be spent every day for writing judgements, reading case papers, doing other research work, etc. In fact, it is already been done by most judges since usually most of the judges come prepared for the cases, at least in the Supreme Court, which means reading relevant papers of a large number of cases; and, likewise, many of the judgments are also written during weekends. It is also to be appreciated that the advocates also spend similar additional time after the court hours. Even the trial courts, which have more number of working days in a year, do all these additional things in the given time-frame. In fact, it’s not uncommon for other Government servants to work for 10-12 hours per day or even more. Therefore, the colonial hangover of long vacations in the courts needs to be gradually discontinued especially when the pendency of cases is huge and is in fact increasing over time. In any case, suitable arrangements can always be made by reducing the workload of a particular judge where it is absolutely necessary for a judge to spend additional time for writing a long and/or complicated judgment.
It is also worth mentioning that a large number of positions are vacant in the judiciary in spite of the fact that the judge-population ratio is already quite low in India (it is only about 12 judges for 1 million population, if we compare the actual existing judicial strength of about 15000 judges to the present population of about 125 crore). For example, in the lower judiciary, about 3300 posts of judges are lying vacant from out of a total sanctioned strength of about 17,700 judges (here). Likewise, there are about 300 vacancies in the High Courts against the sanctioned strength of about 900 judges. As of today, the Supreme Court also has 6 vacancies from out of the total strength of 31. Thus, about 20% to 25% positions in the judiciary are lying vacant. There is a crying need to fill up these vacancies urgently. Likewise, there is an urgent need to further strengthen the judiciary by increasing its total strength. The judge-population ratio in India is quite poor as compared with many other countries. The Supreme Court has itself emphasised the need to increase the strength of the judiciary five-fold. For example, see the case of All India Judges’ Assn. v. Union of India, (2002) 4 SCC 247 : AIR 2002 SC 1752, in which the Supreme Court directed that the then existing judge-population ratio of 10.5 or 13 judges per one million population be raised to 50 (i.e., about 5 times) in five years. However, nothing much has happened on this count, since as mentioned above, even as of today, the judge-population ratio continues to be only about 12 judges per million people. From time to time, in various reported cases, the Supreme Court has been merely highlighting the need for expediting disposal of cases, but no concrete steps have been taken to compel the Government to implement this direction.
It is only when the judicial strength is increased substantially and the existing vacancies in the judiciary are filled up, that the problem of huge pendency of cases can be solved. Any piecemeal solution, including the proposal of the Chief Justice of India, can only have a limited impact. As regards the advantage of having courts open throughout the year (as per the new proposal), it may be mentioned that even in the present system, urgent matters are always heard by vacation judges or the holiday courts. So, ultimately, what actually is needed is gradual reduction in the number of days for which courts go on vacation and also a substantial increase in the judicial strength as well as filling up the existing vacancies in judiciary. Only then can we have a substantial reduction in the pendency of cases. However, as explained earlier, if the new system proposed by the Chief Justice of India can indirectlylead to the actual abolition of vacation system (if over a period of time, most judges opt not to go on vacation during different periods of the year), it may definitely be a welcome change. But, given the opposition of the advocates (as indicated by the Bar Council of India) to the proposed system, it is yet to be seen as to whether or not the proposed system would be actually implemented.
Rape cases continue to occur unabated in India. Despite the huge public uproar after the 16 December 2012 Delhi gang-rape case, we seem to have done precious little to improve women’s security. A detailed analysis of what we have done and what we have not done.
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The recent horrific incident of abduction, gang rape and murder of two Dalit teenage girls in Badaun district of Uttar Pradesh has again shaken the whole nation. The issue of women’s security has again come to the centre-stage. Not long ago, on 16 December 2012, the Delhi gang rape case had shocked the conscious of the nation. Large-scale protests took place. Several big promises were made for taking effective remedial action to ensure women’s security. But, is there any real change in the ground situation? Have we done enough for the women’s security? Let us analyse what exactly we have done to ensure that 50% of our citizens have the basic human right of leading a normal life with dignity and do not have to face the humiliation of rapes again and again.
After the 16 December 2012 Delhi gang rape case, the Central Government setup a three-member committee under the chairmanship of late Justice JS Verma. The committee submitted its report within a period of one month. Thereafter, various legal provisions relating to offences against women were amended by passing the Criminal Law (Amendment) Act, 2013, which came into effect from 2 February, 2013 (here). The definition of rape was changed by widening it to include many other facets of sexual assault within the definition of rape. Certain other changes were made in offences against women. There was enhancement of sentence/punishment for the offence of rape and for certain other offences against women. The Central Government announced creation of special Nirbhaya Fund for empowerment, safety and security of women and girl children for which an amount of Rs. 1000 crore was earmarked. Another corpus of Rs. 1000 crore was announced for the Nirbhaya Fund in the interim budget of 2014; however, it turns out that even the initial funds were not utilised (here). This clearly shows the callous attitude of the Government when it is not able to utilise the funds meant for women’s security.
In fact, even while passing the aforesaid Criminal Law (Amendment) Act, 2013, the language of the newly inserted Section 166A of the IPC was changed from the one used in the Ordinance to the one used in the final Act passed by the Parliament, perhaps under pressure of some vested interests. At that time, I had written two articles that are self-explanatory (see, hereand here; in this regard, also see reference in the later part of this article to the case of Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1, decided by a Constitution Bench of the Supreme Court).
Is that all? Was anything else done? Well, the Government referred the 16 December 2012 Delhi gang rape case to a special court to expedite the trial. The trial court has already given its verdict of holding the accused persons guilty and awarding them death penalty (here). The High Court has also decided the appeal in that particular case upholding the death penalty (here). The case is now pending before the Supreme Court.
But, what happened to many other similar rape cases? Well, in certain other rape cases also (mainly those which attracted media attention), trial was referred to the fast track courts.
So, is that all? Well, it appears to be the case.
Isn’t the amendment to the rape law supposed to act like a magical wand, which will automatically solve the problem of regularly-happening incidents of rapes all over the country?
Well, it appears to be so, if one goes by the efforts made by the Government, so far, to improve the ground situation for ensuring women’s security. Nothing much has been done by the Government(s) on other fronts to tackle this problem. It is a case of no lessons learnt, or precious little having been done even if the correct lessons have been learnt.
Little does our Government realise that if by merely making a law can change the system and bring about changes in the security scenario, then by now India would have been like the heaven on the earth since we have perhaps the largest number of laws covering all facets of life; and, on a serious note, most of such laws may be well-meaning also.
Alas! The ground reality is entirely different. Making or amending laws is only one part of the story. Implementation of the existing or the new laws is altogether a different thing. And, implementation requires many things to be done, including change in attitude of various institutions and the society.
Law and order is a subject over which control has been given to the State Governments under the provisions of the Constitution. However, hardly any positive changes have been made by the State Governments to create a secure environment for women, despite the huge public protests after the 16 December 2012 gang rape incident in Delhi.
Rape is a social problem. Drastic changes in the attitude and behaviour of society and various institutions are needed to solve this problem.
Rape is also a serious crime. Drastic changes in the criminal justice system are needed to take care of such crimes.
Rape is also a question of dignity, in fact a question of basic human dignity, of 50% of the populace. It’s a question of ensuring women’s security. Article 21 of the Constitution guarantees a fundamental right to all persons to live a life with full dignity. Drastic changes are needed in the security environment within the country to take care of this issue.
In this article, I’m concentrating on the last two issues, namely changes in the criminal justice system as well as improving the overall security environment for ensuring women’s security.
I return to my original question. What have we done for women’s security? Have we done enough, given the level of public uproar that was noticed in the country after the horrifying 16 December 2012 incident in Delhi? What lessons we have learnt? What action we have taken?
As mentioned above, we made certain changes in the laws relating to rape and certain other offences against women. Unfortunately, we have done practically nothing else more than this to improve the ground situation with regard to women’s security.
Legislation is only one limb of the criminal justice system. Its other important limbs are police, judiciary and prison administration. What have we done in respect of these other limbs of the criminal justice system to improve women’s security?
Let us consider police first. Have we increased police strength? Have we, at least, filled the existing vacancies in police? Have we increased police presence on the streets? Have we trained police to deal with offences against women in a better and more efficient manner? Have we tried to bring about changes in the attitude of police towards women? Have we improved the investigation skills of police particularly for offences against women? Have we tried to introduce scientific methods of investigation in offences against women? Have we introduced police reforms in all sincerity and with all earnestness, at least those police reforms that were ordained in 2006 by the Supreme Court?
Well, the list is endless. I hope you will agree with me that we have done precious little on all these issues relating to police. In fact, there does not even appear to be any serious or special effort being made in this direction after 16 December 2012. Everything is routine, as usual. Chalta hai, attitude, as usual. As if some divine power is expected to suddenly come to our rescue and solve this problem!
Let me cover the issue of police personnel in slightly greater details. In 2010, I had filed a PIL on behalf of an NGO (namely, Lokniti Foundation) in the Supreme Court for introducing reforms in police recruitment by way of introduction of a transparent recruitment process. This was to ensure that police personnel at the lower levels are recruited in an honest, transparent, scientific, impartial manner and that the evils of corruption, nepotism, partiality and arbitrariness so rampant in various police recruitment processes are eradicated to the extent possible. The transparent recruitment process highlighted in the said PIL was in fact designed by the National Police Mission setup by the then Prime Minister as a part of the Bureau of Police Research and Development (BPR&D) under the Ministry of Home Affairs. Since most of the State Governments were reluctant to implement this transparent recruitment process due to certain vested interests, the said PIL sought directions to such States to implement the same or some other similar transparent recruitment process for selecting the police personnel at the lower levels.
What happens in that PIL? Filed in 2010, we are at present in 2014. The PIL still remains in the same initial stages. The Supreme Court does not appear to be having sufficient time to hear such important issue that can have the effect of drastically improving the quality of police personnel selected in various States. You cannot expect honesty and efficiency from a policeman who was selected on payment of bribe or due to nepotism, etc. If a policeman is selected on the basis of merit in an honest and transparent manner, there is every possibility that his quality would definitely be much better and moreover, there is a much better chance of him doing his public duty with more honesty and efficiency. However, other than giving dates, nothing much has happened in the said PIL. Perhaps, the Court has its own priorities.
So, nobody is interested in improving the quality of police personnel selected through honest and transparent recruitments. State Governments are not interested. Judiciary also does not appear to be too enthusiastic.
Let me mention a word about the police strength also. In the said PIL, we had quoted the figures of vacancies in various police forces. As per those figures, a very large number of 5,30,580 vacancies were available in various state police forces (civil and armed police) as on 01.01.2009 as against the total sanctioned strength of about 20,56,041 police posts (also see, table 3.6 on page 50 of this online file). This means that more than 25% of the total police posts were vacant! So, forget increasing the police strength, as many as 25% of the total police posts were vacant!! Has the situation changed for better now? Well, this news item shows that even as on 01.01.2011, the number of vacancies in police posts was 5,02,420 from out of the total sanctioned strength of about 20,64,370. Likewise, as per this replyto a Lok Sabha question, as on 01.01.2012, the number of vacancies was 5,39,479 from out of the total sanctioned strength of about 21,24,596. And, this news report shows that even as on 01.01.2013, about 24.82% vacancies existed in the total police posts in India. I am not able to get figures for 01.01.2014. But, the fact remains that the number of vacancies have remained consistently in the range of about 25% of the total police strength.
Please keep in mind that we have a meagre police-population ratio as compared to other countries. For example, this report in Times of India shows that as per the latest Government data, the actual police-population ratio in India is only 106 police personnel for per one lakh people, as against the recommendation of 222 by the UN. And, whatever police strength is sanctioned, out of that too about 25% of the posts are vacant! How can we ensure an improved security scenario then? In fact, India is a complex country with various religious, linguistic, caste groups, with problems of illiteracy, unemployment, poverty, etc. Moreover, we have serious problems of insurgency, terrorism, Maoism, etc., in various parts of the country. We also have terrorism imported from our neighbouring countries. Therefore, our police-population ratio, in fact, should be more than what it is in other developed countries which do not face many of the problems which are peculiar to India. However, firstly our police-population ratio is quite low, and secondly there are huge number of vacancies (about 25% of the total sanctioned strength) in whatever police strength is sanctioned.
Unfortunately, nothing much had changed on ground even after 16 December 2012, notwithstanding some well-intentioned sound-bites coming from various Governments from time to time.
Last year, the Supreme Court directed the police to reduce VIP security and deploy policemen for protection of the ordinary citizens (here). Has there been any positive change in the actual deployment of police forces for the security of the common men and women? Have the police forces been able to divert their precious manpower from various kinds of security categories (Z, Z +, and so on) provided to the so-called VVIPs and VIPs and deploy them on streets for the benefit of the common people? Well, your guess is as good as mine, but the ground situation does not show any appreciable change. After all, lives of VIPs appear to be much more important than the lives (and dignity) of the humble men and women on the street!
Lesser said the better, as regards implementation of various police reforms needed to bring about a qualitative change in policing and to make police more professional. Report of the National Police Commission is now 34 years old and may be gathering further dust somewhere in the archives. Certain basic police reforms mandated in the year 2006 by the Supreme Court in the case of Prakash Singh v. Union of India, (2006) 8 SCC 1 (read here) are also now about 8 years old. In the year 2006, at the time when the said police reforms were mandated by the Supreme Court, I had written a satirical article (here) apprehending that nothing much was expected to change on the ground. I’m sorry to state that I have been proved right. I wish I were proved wrong. Most of these police reforms remain pending in most of the States, and wherever implemented, the implementation is more on paper than in real spirit. So, the ground reality remains the same. There is a crying need for reforms in police. However, again, the Supreme Court does not appear to be having sufficient time and interest to enforce certain bare minimum reforms that it had itself mandated in police departments in various States. With due respect, perhaps, the priorities are different.
What about better training to police personnel? What about change in police attitude towards women? What about improvements in investigation methods in respect of offences against women? And, so on. Well, the proof of the pudding is in its eating. Need I say more?
Before I move on, let me make a few points about the issue of mandatory registration of FIRs. It has come on record that in the aforesaid Badaun gang rape incident, there was inaction on the part of the police in taking up the investigation of the case. Perhaps, the lives of the two victims, those two innocent teenage girls, could have been saved, had the police acted well in time. Action has now been taken against a few police personnel, including sacking of two police personnel. But, is that enough, or was it timely?
Recently, in the case of Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 (read here), a Constitution Bench of the Supreme Court has held that registration of FIR under Section 154 of the Cr.P.C. is mandatory if the information given to the police discloses commission of a cognizable offence (incidentally, I had the privilege of fruitfully arguing before the Supreme Court in this case). However, unfortunately, there is always a deliberate or negligent inaction on the part of the police in registration of FIRs, including those in as grave a case as rape. In fact, due to fear of humiliation in the society, a large number of rape incidents are not reported to the police by the victims and their families themselves. You may be surprised to know that the rate of rape cases reported in India in the year 2010 was only about 1.8 per one lakh population, whereas in USA this figure was 27.3 and in UK it was 28.8 (see, here). A major explanation for this vast difference could only be gross under-reporting of rape cases in India. And, of whatever small number of rape cases are reported to the police, many are not registered by police. Due to this, the criminals involved in such offences remain unpunished and get emboldened to commit more offences of the same type. This is what was in fact noticed in the recent gang rape case of Mumbai’s Shakti Mills compound (here). This is a serious lapse on the part of the police.
In fact, the problem starts much earlier. Though not always, many a time, rape offenders would first have been involved in comparatively smaller offences against women, such as eve-teasing, outraging the modesty of women, stalking, etc. Since many of these FIRs are not registered by police, the criminals go unpunished and get emboldened to commit more similar offences, and then to commit more serious offences of the same type, including rape. There is a crying need to ensure proper registration of FIRs for such comparatively smaller offences against women. This is very important.
In this regard, let me refer to the “Broken Window” theory in criminology. This theory was first introduced by social scientists James Q. Wilson and George L. Kelling, in an article titled “Broken Windows” that was published in the March 1982 edition of The Atlantic Monthly. The main theme of this theory is derived from the following example:
“Consider a building with a few broken windows. If the windows are not repaired, the tendency is for vandals to break a few more windows. Eventually, they may even break into the building, and if it’s unoccupied, perhaps become squatters or light fires inside. Or consider a pavement. Some litter accumulates. Soon, more litter accumulates. Eventually, people even start leaving bags of refuse from take-out restaurants there or even break into cars.”
In fact, much before the said theory was introduced, Philip Zimbardo, a Stanford psychologist, organised an experiment in 1969 that can be said to be a sort of practical proof for the broken-window theory. He arranged for a car with no license plates and the hood up and parked it idle, i.e., abandoned it, in a Bronx neighbourhood. Another similar car in the same condition was kept idle in Palo Alto, California. The car in the Bronx was attacked within minutes of its being kept in an abandoned condition. He noticed that the first “vandals” to arrive were a family consisting of a father, mother and a young son, who took away the radiator and battery from the abandoned car. Within one day of its abandonment, everything of value had been removed from the car. After that, the car’s windows were smashed in, its parts were torn, upholstery was ripped, and then children started using the car as a playground. On the other hand, the car abandoned in Palo Alto, California remained untouched for more than a week. No damage was caused to it. Then, to experiment further, Zimbardo himself went up to the car in Palo Alto, California and deliberately smashed it with a sledgehammer, and then he left. Soon after, other people started taking part in that adventure and started destroying parts of that car. Zimbardo observed that majority of the adult “vandals” in the case of both cars were mainly well dressed and respectable people. The further explanation was that in an area such as the Bronx, where cases of abandoned property and theft were more common, vandalism occurred much faster as people generally seem indifferent. However, similar events can occur even in any civilized community (such as in Palo Alto, California) when community barriers and the sense of mutual regard and obligations of civility are lowered by actions that suggest apathy.
Later, in 1996, a detailed book with the title of “Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities” by George L. Kelling and Catharine Coles, was published based on the above article. In this book, it was suggested that a successful strategy for preventing vandalism is to fix the problems when they are small. Repair the broken windows within a short time, say, a day or a week, and the tendency is that vandals are much less likely to break more windows or do further damage. Clean up the sidewalk every day, and the tendency is for litter not to accumulate (or for the rate of littering to be much less). Problems do not escalate and thus respectable residents do not flee a neighbourhood.
Moral of the story is that register the FIRs and take strict action against offenders involved in offences against women in the very beginning itself when they start committing comparatively smaller offences against women, such as eve-teasing, stalking, etc. If you do not take timely action in the very beginning itself, they are emboldened to commit more offences of the similar type and then more offences of serious types such as rape and gang-rape. Unfortunately, the problem in India is that even many of the rape cases are not reported or not registered, reporting and registration of comparatively minor offences against women is not at all considered important. However, herein lies the root-cause of the problem.
In a similar manner, I would say that instead of suspending or dismissing police personnel for not taking immediate action in a rape case, suspend them (and/or dismiss in appropriate cases) when they fail to take immediate and effective action in comparatively minor offences against women. Then alone would there be sufficient awareness about the seriousness of the problem with regard to offences against women. Any lenient action in matters of deliberate or grossly negligent lapses of police personnel in any type of offences against women emboldens them and makes them immune to the seriousness of the issue. Exemplary action in a small incident itself would send the alarm bells ringing.
Unless police personnel are sufficiently sensitised about he seriousness of the issue relating to offences against women, by way of exemplary action against defaulters and by way of educating and training them generally, women will continue to feel insecure and it would be difficult to prevent offences against them.
Well, let me now turn to the next wing of the criminal justice system, namely, the judiciary. Nothing much has changed in the judiciary after the 16 December 2012 incident. Only some cosmetic changes were made. For example, in the Supreme Court, certain offences against women were heard on priority basis for a few months. Similarly, some rape cases were referred to the fast track courts for conducting expeditious trials and a few new trial courts might have been designated in some States for conducting the trial of the rape cases. And, may be a few other similar changes, which are not expected to have lasting impact on the ground situation with regard to offences against women.
There are no drastic improvements in the strength of the judiciary. No substantial improvements in the number of pending cases and likewise no noticeable improvements in the number of years that a criminal case takes for its disposal. Merely expediting the trial of a few rape cases is not going to solve the problem of women’s security. As mentioned above, the broken window theory shows that a lot more is desired to expedite the trial of several other types of cases also which may be minor in nature but which are very crucial to ensure that each and every “broken window” is repaired at the very earliest so that there is an overall improvement in the security scenario. Unless the general lawlessness existing in the society is controlled by an effective and expeditious justice delivery system, and unless the rule of law is established fully by ensuring that those who commit crimes are punished with certainty and promptness, it may not be possible to ensure a secure environment for the women in isolation.
The judge-population ratio in India is quite poor as compared with many other countries. The Supreme Court has itself emphasised the need to increase the strength of the judiciary five-fold. For example, see the case of All India Judges’ Assn. v. Union of India, (2002) 4 SCC 247 : AIR 2002 SC 1752, in which the Supreme Court directed that the then existing judge-population ratio of 10.5 or 13 judges per one million population be raised to 50 (i.e., about 5 times) in five years. However, nothing much has happened on this count. From time to time, in various reported cases, the Supreme Court has been merely highlighting the need for expediting disposal of cases. In fact, right to speedy trial has been recognised as a fundamental right under Article 21 of the Constitution [see, Hussainara Khatoon (I) v. Home Secretary, State of Bihar, (1980) 1 SCC 81 at pp. 88-89 : AIR 1979 SC 1360 : 1979 Cri LJ 1036]. Nonetheless, this so-called fundamental right remains only on paper. Barring some exceptions, the Supreme Court has rarely interfered in cases where there are long delays in completion of the trial. In fact, recently in the case of Ranjan Dwivedi v. CBI, (2012) 8 SCC 495 : AIR 2012 SC 3217 : 2012 Cri LJ 4206, even a delay of 37 years in the completion of the trial was considered not to be a violation of the right to speedy trial.
It is worth mentioning that delayed justice is no justice at all. Delay in completion of trial is usually prejudicial to the interests of the prosecution, of the society, and of the victims of crimes. Depending upon facts and circumstances of the case concerned, delay in the trial may sometimes help the accused persons while in some other cases it may be against the interests of the accused persons as well. However, the fact remains that usually delay in trial makes it comparatively more difficult for the prosecution to prove its case against the accused persons. Recently, a Constitution bench of the Supreme Court in the case of State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 : AIR 2010 SC 1476, has held that a victim of a crime also has a fundamental right under Article 21 of the Constitution to have a fair and impartial investigation.
This being the legal position, it is of utmost necessity that prosecution of criminal cases is completed expeditiously without any unnecessary delay, and likewise appeals/revision in such cases should also be disposed of expeditiously. However, more than two crore criminal cases are pending in different courts for last so many years and nothing much has been done to improve this pendency situation.
The only and only solution that can work to clear this huge pendency is creation of more courts by drastic improvements in the strength of the judiciary. As mentioned above, while the Supreme Court has been emphasising again and again the need to improve the strength of the judiciary, nothing much has been done in this regard. It is surprising that the Supreme Court, which is never found wanting in ensuring compliance of its directions given to the Government in other matters, does not enforce its directions to increase the strength of the judiciary by compelling the Government to do the needful.
It may also be noteworthy that looking at the size of Indian economy, the requirement of funds for drastically increasing the strength of the judiciary may not be substantial. At present, the strength of the lower judiciary in India is about 18,000. In my book, “Law of Bail, Bonds, Arrests and Custody” [2009 edition; published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-440-0)],I had mentioned that as per a news report published in the Times of India in the year 2007 [see, “Govt needs to invest in infrastructure of courts”, Times of India, November 30, 2007; click here to read it online; also see, “Timely justice at Re 1 per head per month”, Times of India, November 30, 2007], for appointing 10,000 new judges the estimated expenditure was only about Rs. 1426 crore per year, which at the current prices in 2014 cannot be expected to exceed Rs. 3000 crore per year, which means that for about 20,000 new judges the expenditure may be about Rs. 6000 crore per year. India spends more than Rs. 3,00,000 crore per year on various subsidies, many of which are unnecessary and wasteful subsidies. For example, the total subsidy bill for the financial year 2013-14 is expected to be about Rs. 3,60,000 crore (see here). Can’t we spend Rs. 6000 crore per year for doubling the strength of the judiciary? It is pertinent to mention that in the aforesaid news report in Times of India, the then Chief Justice of India had stated that all the pendency of criminal cases in the trial courts could be cleared in one year if 18,479 more judges were appointed. So, all criminal cases pending for 10 years, 20 years and more, could be disposed of within a period of one year only, if about 20,000 more judges are appointed at an annual expenditure of Rs. 6000 crore. Is it asking for too much to spend this much amount for a country of the size of India? [Update: In view of queries made by some esteemed readers, I may clarify that this approximate figure of Rs. 6000 crore per year, includes not only the expenditure for 20,000 more judges but also the expenditure for 60,000 more court staff (at the rate of 3 new staff members for each new judge) and other relevant office expenses.]
Thus, it is clear that what is perhaps needed is the will power to strengthen the judiciary and drastically improve the situation with regard to large pendency of criminal cases in various courts. Money should not be a restraint, and in any case, as mentioned above, the expenditure required for this purpose would only be a fraction of the mostly wasteful expenditure that is incurred by the Government of India on various types of subsidies every year.
It is only when we ensure expeditious disposal of criminal cases that we can ensure the real rule of law. Certainty and promptness in delivering justice can only lead to faith in the judicial system. Then only would the criminals develop fear of law. Then only we can have overall safety and security for the citizenry, including women’s security. Just referring a few high-profile rape cases to fast track courts would not solve the problem, when vast number of other cases against women (and, other cases) remain pending for decades. Remember the theory of “broken window”?
Unfortunately, nothing much has been done on this front even after 16 December 2012 even though most of the remedies needed should be quite obvious.There is also a need for conducting sensitisation programmes to change the attitude of judges (and the advocates) with regard to offences against women, though, to be fair, this problem is more at the level of lower judiciary than the higher judiciary, and though this problem is not as acute in judiciary as it is in police. There are reports of cases in which a rape victim would be ridiculed during trial or would be so harassed by consistent impertinent questioning that she ultimately gives in, leading to deficiencies in prosecution evidence. The insensitivity in offences against women, including serious cases of gang rape, is seen sometimes (luckily, on rare occasions only) even in the highest court of the land; for example, see one of my previous articles in which I had explained how even the Supreme Court had casually considered a gang rape case and had drastically reduced the sentence awarded to the rapists in a gang rape case (even below the minimum prescribed under law) without adequate and reasonable cause.
Having covered in detail police and judiciary wings of the criminal justice system, I’m not going to cover prison administration in this article, which though is also a part of the criminal justice system, is comparatively less relevant for the purposes of the present discussion.
Before I complete this article, I may also referred to one important aspect of offences against women, especially in the rural India. Absence of sufficient toilet facilities in individual houses, or at least the absence of community toilet facilities close to the populated areas of the villages, leads to women going to isolated and insecure places outside the villages for relieving themselves. Due to privacy issues, it is not possible for the women in rural areas to go to open spaces closer to the populated areas of the villages for relieving themselves; for this purpose, they are required to go to isolated areas outside the villages. This often leads to serious security concerns for the women. This is what actually happened in the aforementioned Badaun gang rape case to the two unfortunate victims. Absence of sufficient toilet facilities in India is really a serious health hazard, leading to various diseases especially affecting the children. The enormity of the problem can easily be estimated when we look at the hard facts, as per which approximately 50% of our population (about 59.4 crore people, as estimated by UNICEF) does not have toilet facilities in their houses (see, here). As seen in the aforementioned gang rape case, absence of toilet facilities in individual houses or absence of community toilet facilities close to the populated areas of the villages, also have security hazard for the women in addition to the health hazard for the citizens as a whole. During his election campaign in the recently concluded 2014 Lok Sabha elections, our new Prime Minister Shri Narendra Modi had emphasised the importance of providing toilet facilities to each household in the country. It is right time to implement this promise on priority basis.
I have confined this article to the improvements needed in the criminal justice system to improve women’s security in India. There is no doubt that many other changes are needed in the society, such as the need for positive change in attitude of male citizens towards women, the need for educating people (especially, at the younger stage itself) to respect the dignity of the women, etc. There is also a need for change in the way media portrays women for their commercial benefits. The attitudinal changes in the mind-set of the people will perhaps require more time since it is a slow process. However, the changes in the criminal justice system can be made quickly if the Government has the will power to do so. So far, the experience has shown that the response of the Central Government as well as that of the State Governments has been dismal and anything but inspiring, notwithstanding the fact that, of late, there has been huge public uproar against offences against women. It is for the society to persuade and force the Government(s) to bring about improvements in the criminal justice system on priority basis for overall security in general and for women’s security in particular.
[Credits: Contents of the “Broken Window” theory have been taken and adapted from Wikipedia.]
Will a recent direction of the Supreme Court to complete trial of pending criminal cases against sitting MPs and MLAs within one year and a similar election-time promise made by the new Prime Minister Narendra Modi result into decriminalisation of politics?
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Criminalisation of politics is one of the biggest problems affecting the Indian democracy, apart from corruption. Of late, the Supreme Court has been actively taking steps to cleanse the political system in the country to ensure that persons with criminal record do not continue to remain people’s representatives in the Parliament and in the State Legislatures. The newly appointed Prime Minister Shri Narendra Modi has also promised a similar action.
Recently, in a landmark decision on 10 July 2013, in the case of Lily Thomas v. Union of India, (2013) 7 SCC 653 (here), the Supreme Court held that Section 8(4) of the Representation of the People Act, 1951 (here), is ultra vires the Constitution and that the Parliament had no power to enact this provision and that hence disqualification for being chosen as, or, for being MP or MLA/MLC upon conviction as provided in sub-sections (1), (2) or (3) of Section 8 of the said Act shall come into effect immediately upon such conviction and that such disqualification cannot be postponed / suspended as was sought to be done by Section 8(4) of the Act. It is pertinent to mention that sub-sections (1), (2) or (3) of Section 8 of the said Act disqualify persons who have been convicted for various offences to be member of Parliament and State Legislatures. However, in respect of the sitting members of the Parliament and the State Legislatures, Section 8(4) of the said Act provided a grace period of three months even after their conviction in such offences due to which their membership of such House is not terminated in spite of such conviction, and moreover, if within that period of three months an appeal or application for revision is filed in the higher court in respect of such conviction or the sentence by such sitting member then he is not disqualified from being such member until that appeal or application is disposed of by the court. Thus, in a way, Section 8(4) provided for continuation of a sitting MP or MLA / MLC even after his conviction in a serious criminal case. In the aforesaid Lily Thomas case, the said Section 8(4) has been declared to be unconstitutional. Thus, a sitting MP or MLA / MLC would immediately lose his membership of the Parliament / Legislature once he is convicted of an offence specified in sub-sections (1), (2) or (3) of Section 8 of the said Act and punished in the manner mentioned therein. This is how Shri Lalu Prasad Yadav lost his membership of Lok Sabha immediately after he was convicted in a fodder scam case in October 2013, due to which he was also disqualified to contest the recently concluded Lok Sabha elections of 2014.
In another landmark decision on 10 March 2014 (here), in the case of Public Interest Foundation v. Union of India [Writ Petition (Civil) No. 536 of 2011], the Supreme Court has directed that in relation to sitting MPs and MLAs who have charges framed against them for the offences which are specified in sub-sections (1), (2) and (3) of Section 8 of the Representation of People Act, 1951, the trial shall be concluded as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s). It was directed that in such cases, as far as possible, the trial shall be conducted on a day-to-day basis. The Supreme Court further directed that if for some extraordinary circumstances the concerned court is being not able to conclude the trial within one year from the date of framing of charge(s), such court would submit the report to the Chief Justice of the respective High Court indicating special reasons for not adhering to the above time limit and delay in conclusion of the trial, and that in such situation, the Chief Justice may issue appropriate directions to the concerned court extending the time for conclusion of the trial.
The decision in the above Public Interest Foundation case tries to take care of pending criminal cases against a sitting MP / MLA / MLC, if such offences are included in any of the provisions mentioned in sub-sections (1), (2) and (3) of Section 8 of the Representation of People Act, 1951. Thus, the trial against him will have to be compulsorily completed within a period of one year. Presuming that such a sitting member is convicted during such trial, the decision in the aforesaid Lily Thomas case will further take care that such sitting member loses his membership of the Parliament / Legislature with immediate effect.
At this juncture, it is pertinent to note that the new Prime Minister Shri Narendra Modi had repeatedly made promises during his election speeches in the recently concluded 2014 Lok Sabha elections, vowing to end criminalisation of politics, saying that if he assumes power (which he has now done as Prime Minister of India), he would request the Supreme Court for speedy trial of tainted MPs within one year (here).
How serious is the situation with regard to criminalisation of politics? Has the recent public uproar against criminalisation of politics had any impact? Well, it is disturbing to note that even in the recently concluded 2014 Lok Sabha elections, out of the 543 MPs elected by the people, as many as 186 newly elected MPs (i.e., 34% of the total number of MPs in the new Lok Sabha) have criminal cases pending against them (see this linkfor the list). In fact, as many as 112 newly elected MPs (i.e., 21% of the total number of MPs in the Lok Sabha) have serious criminal cases against them (see this linkfor the list). It is to be noted that these lists have been prepared on the basis of the declaration filed by the MPs themselves in their election affidavits; so, one can guarantee their authenticity.
That’s not all. It is not that such tainted MPs have only one criminal case pending. Most of them have more than one criminal case pending against them. RJD MP Shri Rajesh Ranjan alias Pappu Yadav has as many as 24 criminal cases pending against him, while BJP MP Dr. Ramshankar Katheria has 21 cases against him. There are many other newly elected MPs who have 10 or more criminal cases pending against them. Moreover, many of these criminal cases are pending for several years; for example, just to illustrate, Shri Pappu Yadav has a dacoity case of 1989, an attempt to murder case of 1990 and a murder case of 1999, pending against him (see this link for the list of cases against him).
Thus, the scenario is really gloomy. Every 1 out of 3 newly elected MPs has criminal case(s) against him, and every 1 out of 5 such MPs has serious criminal case(s) against him. It is not to suggest that all such criminal cases may be genuine. Many of such cases may in fact be false and may have arisen due to political rivalry or other reasons. However, what is needed, at least, is an expeditious disposal of these pending cases irrespective of the outcome of these cases. If a criminal case is found to be genuine and there is evidence to prove the same, the sitting MP or MLA will lose his seat in the Parliament / Legislature. On the other hand, if the case is found to be false, such sitting member will be exonerated and it will rather help such member to prove his clean credentials.
How serious the problem could be and what would be the consequences of a person with criminal charges continuing as a member of the Parliament or a State Legislature? It may perhaps be best illustrated by the example of Shri Shibu Soren. He was an accused in a case of murder committed on 23 January, 1975, in which 11 persons had been killed. He was charged for this murder case along with several other persons with the allegation that he had led a mob which killed 11 persons, including 9 Muslims, in Chirrudih village in Jamtara district of Bihar (now in Jharkhand state). The trial of this case was completed after a long delay of 33 years in the year 2008 in which Shri Shibu Soren was acquitted. I don’t think a trial can result in conviction after such an inordinate delay by which time most of the witnesses would have been missing / dead or would have lost interest or would have forgotten the details of the incident or would have been won over. It is interesting to note that summons were issued to him sometime in 1986 but he did not answer the summons for a murder charge for 18 long years! It was in the year 2004, about 29 years after the incident, that ultimately he surrendered in the court and that too after staging a drama of remaining “missing” for about a week even while being a sitting cabinet minister of the Central Government perhaps with the hope that he could still avoid the arrest. Curiously, after the said murder incident in 1975, he was elected to the Lok Sabha in 1980, 1989, 1991, 1996, 2002 (by-election) and 2004 and was also elected to the Rajya Sabha in 2002 from which he resigned in the same year. He was also elected to the State Legislature of Jharkhand on multiple occasions and appointed as Chief Minister of Jharkhand on three different occasions. It is pertinent to point out that he was also an accused in the infamous Jharkhand Mukti Morcha bribery case of 1990’s, wherein he was alleged to have accepted huge amounts of cash from the then Prime Minister of India, for voting in support of the vote of confidence in the Parliament. He survived in this bribery case only because of a technical immunity granted by a controversial decision of the Supreme Court [reported vide P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626 : AIR 1998 SC 2120] which held that a Member of Parliament accepting a bribe for voting inside the Parliament could not be prosecuted because of parliamentary privileges while the bribe giver could be prosecuted for the same. Moreover, Shri Shibu Soren was also allegedly involved in another murder charge of killing his private secretary in 1994 apparently because the latter knew a lot of things about the said bribery matter. He was convicted in this case in 2006, but was acquitted by the High Court in 2007. The question that arises is – what would have been the fate of Shri Soren if his trial had been completed within one year of the commission of the said offence in 1975, or at least within one year of 1980 when he was first elected as a Member of Parliament? Due to timely completion of trial, if he was to face conviction, he would not have been able to contest subsequent elections. However, the cases against him got grossly delayed and he continued to win elections several times and become Member of Parliament or of the State Assembly and become Central Government Minister as well as Chief Minister of Jharkhand on multiple occasions.
The same logic would apply to the present sitting members of the Parliament or the State Legislatures. If their prosecution is not completed expeditiously, the chances of the conviction would be reduced correspondingly, and meanwhile they would keep winning elections and would continue to be members of the Parliament / Legislature and even become Ministers. This is how the system is being abused by criminals in politics. And, this is why the latest efforts to cleanse the political system assume importance.
But, will the recent Supreme Court decisions, referred to above, and the resolve of the new PM Shri Narendra Modi be helpful to ensure that the criminal cases pending against these newly elected MPs of Lok Sabha, as also against the sitting MPs of Rajya Sabha and sitting members of State Legislatures, would be completed within a period of one year so that if convicted, they could be immediately disqualified and other persons could be elected in their place as members of the Parliament / Legislatures? Well, let me first point out some of the serious constraints that I visualize in this effort:
(1) Firstly, the aforesaid Supreme Court decision of 10 March 2014 in the case of Public Interest Foundation directs completion of trial in criminal cases against the sitting MPs, etc., where charges have been framed. There are no directions in this decision for speedy completion of: (i) cases pending investigation with police agencies, or, (ii) of cases where charge-sheets have been filed by police agencies but charges are yet to be framed. Thus, there is scope for manipulation to continue as sitting MP / MLA by ensuring that a criminal case remains under investigation or by ensuring that charges are not framed by the trial court even if charge sheet is filed. And, mind you, the number of such cases would not be small. Just to illustrate, for Shri Pappu Yadav, in 7 out of 24 criminal cases against him, charges are yet to be framed even though such cases were filed long back (some of these cases against him in which charges are yet to be framed are of the years 1986, 1996, 2001, etc.). So, this is a major loophole or lacuna that needs to be taken care of, for an effective solution to the problem of criminalisation of politics. After all, a chain is only as strong as its weakest link.
(2) Secondly, it is often seen in practice that it is difficult to conclude the trial in a time-bound manner due to the enormous burden of pending cases on the criminal justice system in general and on the trial courts in particular. This happens even in a particular single case wherein specific directions have been given by the higher judiciary to complete trial in a time-bound manner. Just to give an illustration, in a particular case involving gruesome murder of a political leader at the instance of a rival political leader, the Supreme Court recently directed completion of trial in about 9 months’ period. However, this time limit expired and nothing much happened. After about 15 months, another time limit of 2 months was set to complete the prosecution evidence. Yet, even after 5 months, nothing much happened. Yet another chance was given to complete the prosecution evidence in another 2 months’ period. Even that period expired without much success. Yet another extension of time was granted for about 3 weeks. Ultimately, in this manner, the prosecution evidence was concluded after time limit to complete trial was extended several times by the highest court of the land, and that too by dropping as many as about 70 prosecution witnesses from out of about 120 witnesses! Thus, even after several extensions, prosecution evidence was completed by dropping more than 50% of the prosecution witnesses. What are the reasons for such delay despite repeated specific directions of the highest court of the land to complete the trial in a time-bound manner? Well, there are many genuine practical difficulties as well as deliberate and well-planned dilatory tactics employed by the accused persons. If it could happen in a single case despite specific Supreme Court directions in that case, what can one expect from general directions of the Court to complete trials in such a large number of cases and that too which involve influential persons (such as the sitting MPs / MLAs)? Well, my intention is not to show pessimism but to be realistic so that best efforts could be made to avoid such lapses.
(3) Another major issue is that multiple cases are pending against certain individual MPs and MLAs. As mentioned above, the number of cases go to as many as 24 in the case of Shri Pappu Yadav, a newly elected MP. Many of these cases are quite old, pending for 20-25 years. The very fact that the trial of these cases could not be completed for so many years, clearly shows that there must be some serious difficulties (genuine as well as deliberate) due to which the trial of these cases could not be completed in so many years. To ensure that the trial of all such large number of cases against a single individual would be completed now in just one year would definitely be a Herculean task. Moreover, there would be additional practical difficulties to simultaneouslyconduct trial of several cases against a single individual.
(4) All the usual difficulties experienced in a delayed trial would also arise during the trial of the sitting MPs and MLAs. For example, ensuring the presence of the witnesses on time before the trial court. There will be additional difficulties in view of the fact that the trial would be against powerful persons, i.e., sitting MPs and MLAs some of whom may even be ministers. This would definitely mean more difficulties for the trial courts to complete the trials expeditiously.
(5) What happens if the trial in such a case could not be completed within the stipulated period of one year? The aforesaid Supreme Court judgement says that in such a scenario, the matter shall be referred to the Chief Justice of the concerned High Court and the High Court will then issue directions to the trial court for extension of time. However, it is not clear what type of directions would be issued by the High Court in such situations. No specific guidelines have been issued by the Supreme Court in this regard. Therefore, the High Courts will be using their own discretion. What should perhaps be done in such a scenario is to extend the period during which the trial is to be completed, and at the same time take away other pending cases and other work from the trial court so that it could concentrate only on the trial against such sitting MP or MLA. Moreover, it is also necessary to take exemplary action against the presiding officer of the trial court if some deliberate or gross negligence is noticed on his part to strictly implement the direction to complete the trial in a time-bound manner.
I have highlighted only some of the major constraints. There would definitely be many other practical difficulties coming in the way of expeditious completion of such trials. Due to their influence and clout, the sitting MPs and MLAs who are facing criminal prosecutions, with the help of the top advocates that they can hire, would come up with various new methods to somehow thwart the efforts to complete the pending trials against them within one year. Concerted efforts on the part of the higher judiciary and the PMO would therefore be needed to ensure that the measures taken to complete expeditious trials against sitting MPs / MLAs are strictly implemented. New special courts may perhaps have to be set up, wherever needed, for taking care of the pending cases against the sitting MPs and MLAs. Responsible citizens and media also need to be alert and they may have to pursue these cases with the judiciary, wherever possible and/or needed, so that these efforts to cleanse the political system are not frustrated by vested interests.
It is true that it may not perhaps be possible to conclude trials in all pending cases against sitting MPs / MLAs within the stipulated period of one year. However, even a partial success in the beginning would be helpful which can then be followed up in subsequent years. Even if a few sitting MPs are disqualified during next one year, it will send a very strong message to others. In a lighter vein, it may perhaps be said that some people with criminal records may not like to contest elections in future if a success in elections is likely to result into expeditious completion of the cases against them leading to their conviction; instead, they may perhaps like to continue to remain ordinary citizens (rather than being MPs or MLAs) to enjoy the fruits of a delayed trial. Of course, ultimately the real solution would be to improve the criminal justice system in general so that all trials into all offences against all types of persons are concluded expeditiously within a reasonable period of a few months, by creating sufficient number of trial courts needed to dispose of increasing number of criminal cases. Till that happens, one will have to be content with a piecemeal approach of expediting trial of criminal cases against the sitting representatives of the people.
Today (27 May 2014) being the first day in office for the new Prime Minister Shri Narendra Modi, is it too much to expect from him a strong resolve to fulfil a promise that he made during his election speeches?
CBI is a “caged parrot”. So said the Supreme Court on 8th May 2013 while hearing the PILs relating to the coal scam. It asked the Government of India to file an affidavit as to what the Government intends to do to make CBI autonomous and independent of political interference. Well, earlier this week, on 3rd July 2013, the Government filed its affidavit (here) before the Supreme Court narrating the actions that it proposes to take to make CBI more autonomous and to free it from political interference. Do these proposals make any sense? Will they make CBI completely autonomous and free it from political interference? Let us analyze these proposals thread-bare to find out whether the Government has been sincere in its efforts to make CBI independent.
(1) Selection of Director CBI:
Government proposes to amend Section 4A of the Delhi Special Police Establishment Act, 1946 (hereinafter, “DSPE Act”) relating to selection of Director CBI. The amended section would provide that Director CBI would be appointed on the basis of the recommendation of a 3-member Committee consisting of the Prime Minister (as Chairperson) and the Leader of Opposition in the House of the People (as Member) and the Chief Justice of India or a Supreme Court Judge nominated by him (as Member).
This is definitely a positive step. The proposed Committee is quite balanced and can definitely be considered to be capable of selecting the best person as Director CBI. This is perhaps the best that one can expect about the composition of such a Committee. However, there are certain other issues worth noting.
Firstly, it is not specified in the proposed section as to whether this Committee will select Director CBI by a unanimous decision or by a majority vote. If the selection can be made by a majority in the Committee overruling strong reasoned objections by the third member in respect of the selected person, it may lead to compromising the selection process. In this regard, one may recall how a similar 3-member selection committee in the recent past had selected Mr. P.J. Thomas as the Chief Vigilance Commissioner by a majority of 2 members (Prime Minister and Home Minister) overruling the strong objections raised by the third member in the Committee – Mrs. Sushma Swaraj (leader of the Opposition in the House of People). Thus, a person with subsisting allegations of corruption was selected as CVC despite the fact that the Central Vigilance Commission Act provided for an independent selection committee for ensuring selection of the right person to the important post of CVC. Of course, subsequently, the appointment of Mr. P.J. Thomas as CVC was set aside by the Supreme Court.
However, the saving grace in the proposed Committee for selection of Director CBI is that all of its three members belong to different institutions and that the Government does not have a majority in this Committee unlike the selection committee that chooses the CVC wherein the Government has two members (Prime Minister and Home Minister) in the 3-member committee. Thus, the proposed 3-member committee consisting of the Prime Minister, Leader of the Opposition in the House of People and the Chief Justice of India (or a Supreme Court Judge nominated by him) for selection of Director CBI can be considered to be a far better, and perhaps the best possible, composition for such a committee.
Nonetheless, it would have been advisable if it was specifically laid down in the proposed section that the aforesaid selection committee will have to select the Director CBI by a unanimous decision rather than by a majority. A unanimous decision by the committee will definitely ensure selection of the best possible person. [Of course, to avoid a complete stalemate, it may perhaps be provided that if the Committee is not in a position to come to a unanimous decision in spite of, say 5 consecutive meetings, the decision shall be taken by a majority.]
The second issue is about the preparation of panel of officers from amongst whom one officer would be selected as Director CBI by the said selection committee. There is no provision in the proposed section as to how and by whom such panel would be prepared. It is necessary to lay down a transparent and foolproof system of preparing the panel of officers by an independent search committee consisting of persons of impeccable integrity or by some other foolproof mechanism. Moreover, such panel needs to be prepared by considering all available eligible officers and by following a transparent process, and not by limiting the choices at the threshold itself. In the absence of such provisions, there is a likelihood that the Government will include a limited number of its own preferred officers in the panel, thereby limiting the choices before the aforesaid selection committee and in turn completely destroying the very purpose of constituting such a high level selection committee.
(2) Safety of tenure of Director CBI:
The proposed amended section 4B in the DSPE Act,inter alia, provides the following:
Safety of tenure of two years for the Director CBI;
Director CBI cannot be transferred without the previous consent of the aforesaid 3-member selection committee.
A stringent provision for removal of Director CBI on the ground of proved misbehaviour or incapacity following an inquiry conducted by the CVC on a reference made by the President.
These provisions will provide some protection and safety of tenure to the Director CBI. The proposed provision relating to removal is somewhat similar to the protection provided under the Constitution to the UPSC members, though in their case the inquiry for establishing proved misbehaviour or incapacity is required to be conducted by the Supreme Court. Perhaps a similar provision (i.e., inquiry by the Supreme Court) would be advisable for removal of Director CBI. As we shall see later, the CVC is also given the power of superintendence over CBI functioning in respect of corruption cases, due to which the CVC will have a conflict of interest if such an important inquiry was to be conducted by him. Supreme Court will perhaps be the most appropriate institution that can impartially conduct such an inquiry.
There is also a provision in the proposed amended section 4B of the DSPE Act for suspension of Director CBI during the pendency of an inquiry referred to above. Again, this provision is similar to the one existing in the Constitution for the UPSC members. Of course, it does give some indirect power to the Government to interfere in CBI working, keeping in view the fact that no time limit has been prescribed for completion of such inquiry.
(3) Selection of other senior officers in CBI:
For selection of other senior officers in the CBI (of and above the rank of Superintendent of Police), another 6-members selection committee has been proposed in the amended section 4C of the DSPE Act. This committee will also decide about the extension and curtailment of their tenure in CBI. This selection committee consists of the following:
Three members from the Central Vigilance Commission (the CVC will be the chairperson, and two other members of the Commission will be members).
Two members from the Central Government (Home Secretary and the Secretary DoPT).
One member from CBI (Director CBI).
Thus, the composition of the selection committee does not appear to be free from Government control, more so since it appears that this committee can select officers for CBI by a majority decision. Moreover, the proposed section 4C lays down that on receipt of recommendations from the said selection committee, the Central Government shall pass such orders “as it thinks fit” to give effect to such recommendations. Thus, certain discretion has been left with the Central Government for acting on the recommendations of the said committee.
Officers of and above the rank of Superintendent of Police in CBI form its backbone. Investigations conducted by the CBI are closely supervised by these officers. The quality and integrity of the investigations, thus, depend largely on the calibre and integrity of these officers. Therefore, it is important to lay down a foolproof method of selection of these officers.
(4) Non-interference in investigations conducted by CBI:
Section 4 of the DSPE Act is proposed to be amended to give further independence to CBI in matters of investigation. Broadly speaking, it is on the same lines as the existing provision with some changes.
For example, for corruption related cases, it is proposed that the CVC would have the power of superintendence over CBI; however, the CVC shall not exercise this power in such a manner so as to require CBI to investigate or dispose of any case in a particular manner. Therefore, a general power of superintendence is given to the CVC in corruption cases investigated by CBI, but the CVC cannot interfere in investigation of any individual case. It is pertinent to point out that a similar provision already exists in the Proviso to Section 8(1) of the CVC Act, 2003; what is now proposed is to simply reiterate the same in the DSPE Act also. So, nothing changes in reality.
For cases other than the corruption cases (such as a murder case or an encounter case, for example, the Ishrat Jahan case) and for other matters (such as administrative matters), the Central Government will have the power of superintendence over CBI. Here again, it is proposed that the Central Government shall not exercise this power in such a manner so as to require CBI to investigate or dispose of any case in a particular manner. So, interference in the investigation of individual cases is barred. However, the fact remains that the Central Government will continue to have the power of superintendence at the macrolevel in respect of investigations into cases other than corruption cases and also in other matters such as administrative matters. So, the allegations of political interference in CBI investigations in cases (such as Ishrat Jahan encounter case) will continue to thrive in future as well, since there is hardly any change in the proposed law.
So, CVC and Central Government will continue to have superintendence over CBI investigations in their respective fields though they won’t have power to micro-managethe investigation in an individual case. This is proposed to be the letter of the law. However, it is well known that, in practice, nobody bothers about the limitations under law. There is always a thin line between superintendence at the macro level and interference at a micro level in an individual investigation. When the Director CBI is called for a meeting in the name of superintendence at the macro level or for an administrative matter, details of individual cases can also be discussed conveniently, more so when the officers are pliable.
Another issue is the actual interpretation of what exactly amounts to “superintendence” of investigations and what exactly amounts to not requiring CBI “to investigate or dispose of any case in a particular manner”. Isn’t it likely to lead to wrong interpretations?
(5) Sanction of Central Government necessary to conduct investigation / inquiry against senior functionaries:
Section 6A of the DSPE Act lays down that the CBI shall not conduct any inquiry or investigation into any corruption case against certain senior functionaries (such as those of and above the rank of Joint Secretary in Central Government) without taking prior approval from the Central Government.
In a recent article, I had written that deletion / repeal of the aforesaid provision is a must in order to make CBI autonomous and independent of political interference. I am not going into the details of that article, but in brief I may mention that this is the biggest hurdle in the CBI being made independent. This section ensures that the CBI is not in a position to conduct any inquiry or investigation in a corruption case where senior Government functionaries are involved unless it first obtains permission from the Government. So, the CBI does not have the power to conduct investigation in big corruption scandals without Government permission. What better example can you find of political interference in CBI working?
So, what does the Government propose to do in its affidavit before the Supreme Court? Does it say that it will repeal Section 6A of the DSPE Act? No, there is no such proposal. This section will remain in the statute books. In effect, it implies that the Government interference in the CBI functioning will continue unabated.
Of course, the Government has proposed a minor change in Section 6A of DSPE Act by offering to lay down that the Central Government shall take a decision on such requests for prior approval for investigation / inquiry within a period of three months and that if the prior approval for investigation is to be declined, reasons shall be given in support thereof.
But, this proposed change is no solace for not repealing the said section 6A altogether. It is pertinent to point out that, as I had mentioned in my earlier article, this section was inserted in the DSPE Act only after the Supreme Court had set aside a similar so-called “Single Directive” that prescribed a similar prior approval for CBI investigations by way of an administrative order. Moreover, the constitutional validity of Section 6A is already under challenge before a Constitution Bench of the Supreme Court for last several years. In view of these reasons, it was expected that the least the Government would do would be to repeal Section 6A of DSPE Act. It has not happened, though.
Thus, the Government has completely failed in this test of providing autonomy to CBI by not proposing to repeal Section 6A from the DSPE Act, which would perhaps have been the best indicator of the Government’s intentions.
(6) Director of Prosecution:
The Government has proposed to insert a new Section 5A in the DSPE Act to provide for a Director of Prosecution in the CBI who shall work under the overall supervision and control of the Director CBI. It is pertinent to point out that this section does not make any great changes in the present arrangement. A Directorate of Prosecution already exists in CBI under the administrative arrangements, with more or less similar provisions, though now these provisions are proposed to be put in the statute itself.
Director of Prosecution will be selected by a committee consisting of the following:
CVC as its Chairperson.
Three Secretaries to the Central Government (one each from MHA, DoPT and Department of Legal Affairs).
Director CBI.
Thus, Government has a clear majority in the said selection committee, with 3 members out of a total of 5 members. This clearly implies that the Government will have the final say in the selection of the Director of Prosecution.
Moreover, the selection of Special Counsel and Retainer Counsel for conducting prosecution, revisions and appeals on behalf of CBI in various courts will require approval from the Ministry of Law & Justice of the Central Government.
Further, where Director CBI disagrees with the advice of the Director of Prosecution, the matter shall be referred to the Attorney General for India (who works under the Central Government). Thereafter, the Director will take the decision in the matter keeping in view the opinion of the Attorney General.
It may also be noted that the Annual Confidential Report (ACR) of the Director of Prosecution will be reviewed by the Secretary, Department of Legal Affairs in the Government of India.
Thus, in the matter of prosecution of all CBI cases and for advice during investigation stage (as also, appeals, revisions in various courts), the interference of the Central Government will continue to exist, directly or indirectly.
(7) Accountability Commission:
Government proposes to insert two new sections 7 and 8 in the DSPE Act to create an Accountability Commission consisting of three whole time members from amongst retired Supreme Court or High Court Judges. CVC shall be the ex-officio member of this Commission.
This Accountability Commission shall exercise the power to entertain and inquire into allegations of misbehaviour, incapacity, impropriety or irregularity on the part of an officer or employee of CBI.
It needs to be pointed out that it has been wrongly reported in some sections of the media that this Accountability Commission will supervise investigations conducted by CBI. That is not true. This Commission will, in fact, look into complaints against the officers and employees of CBI.
Broadly speaking, this is a welcome provision. Where immense powers are vested in an institution (we are talking of full “autonomy” here), it is also necessary to ensure that such powers are not misused or abused, and there is a need to have an effective mechanism to look into complaints against personnel of such institution. So, this Commission will fulfil that requirement since once CBI is made autonomous with immense powers, it may perhaps be necessary to have a mechanism to look into complaints of misuse against its own officers.
However, the proposed provisions relating to Commission do not lay down as to how the members of this Commission will be selected. It appears that the Central Government will have full discretion to appoint persons of its own choice as its members. True, its members will be retired Supreme Court or High Court Judges (in addition, CVC will be an ex-officio member). But, that is no guarantee. Judiciary is not immune from corruption and other human weaknesses. Giving full freedom to the Government to select members of this Commission without there being any independent selection committee to make recommendations in this regard, is likely to be misused or at least there will be a scope for its misuse. Ultimately, this Commission will have the power to inquire into complaints against CBI officers and the complaints can be forwarded to it for inquiry also by the Central Government itself. It is not impossible to manufacture complaints and then harass an honest CBI officer (who otherwise refuses to listen to the Government) through pliable members of the said Commission. Will this not open indirect avenues for Government interference in CBI functioning?
Therefore, while having an Accountability Commission is definitely a good idea, it would be advisable to have an independent selection committee to select members of this Commission. Merely being a retired Supreme Court Judge or a retired High Court Judge is not equivalent to being a magical solution to the problems of integrity, professionalism and efficiency. There are good Judges and there are bad Judges. After all, these Judges also come from the same society and they work in the same environment.
(8) Financial autonomy:
The Government does not propose any amendment in the DSPE Act to give financial autonomy to CBI. However, by administrative orders, it intends to give the same financial powers to the Director CBI as are exercisable by the Director General of the Central Reserve Police Force (CRPF) at the relevant time under the Government notifications. While I don’t have full details of the financial powers of the DG, CRPF, I am given to understand that giving similar financial powers to Director CBI will help the CBI substantially since the existing financial powers of CBI are very limited.
(9) Concluding remarks:
Overall, it appears that the actions proposed by the Government of India in its affidavit to the Supreme Court to make CBI autonomous and free from political interference, are only half-hearted attempts. Some of these proposed actions are, no doubt, quite useful, while some others are completely unsatisfactory. Moreover, some other steps that were expected, have not been proposed. For example, it was expected that there would be a provision that the Director CBI shall not be eligible for further employment under the Government after his retirement (at least, for some specific number of years after the retirement). However, no such proposal has been made.
So, will the CBI become completely free from political interference? Well, let us also see first what is the reaction of the Supreme Court to the aforesaid Government affidavit. I do sincerely hope that the Supreme Court will further add strength to these measures proposed by the Government.
Before I conclude, let me point out that how an institution will function, in fact, depends more on the integrity, character, courage, determination, dedication and quality of the people who run that institution. I don’t think I have to cite examples to prove this statement. Suffices it to quote the following relevant observations (here) of Dr. B.R. Ambedkar during a meeting of the Constituent Assembly at the time of framing of our Constitution:
“…however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the state depends are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave or will they prefer revolutionary methods of achieving them? If they adopt the revolutionary methods, however good the Constitution may be, it requires no prophet to say that it will fail. It is, therefore, futile to pass any judgement upon the Constitution without reference to the part which the people and their parties are likely to play.”
Much in a similar manner, while the legal provisions relating to CBI autonomy may be important, what is more important is the people who run the CBI. If they are bad, nobody can help.
When Saddam Hussein organized a referendum in 2002 to find out whether he should rule for another 7 years, he got 100% backing of voters. There were 11,445,638 eligible voters – and every one of them voted for Saddam Hussein. [here]
When General Parvez Musharraf contested Presidential election in Pakistan in 2007, he got 99% of the votes. [here]
Do we want a similar system in our country? That everyone should support a specific candidate? There should not be any dissent?
Well, that can never happen in a true democracy. That can happen only in an autocracy such as in countries ruled by military rulers like Saddam Hussein and Gen Parvez Musharraf. In a true democracy, there will (and there must) always be some dissenting people. Otherwise, the democracy is not a true democracy but only a farce.
Now, once it is accepted that there are always some dissenting voices in a democracy, does it mean that no decision should be taken till complete consensus emerges and no dissent remains? Is this what is meant by democracy? The answer is clearly a big “NO”. You cannot delay taking the decision merely because there is no consensus. A democracy works on the concept of decision by a majority. A majority decision prevails. There may be certain issues of fundamental importance to a polity that may perhaps need a higher majority or a special majority rather than a simple majority. But, even in those situations, the fact remains that you cannot indefinitely wait for a complete consensus to emerge and you cannot keep delaying the decision till such time. Complete consensus would generally be possible only in an autocracy. Indecisiveness should not be encouraged merely because the complete consensus is not possible. A democracy has to function. The majority has to decide and act. Naturally, some people may not be happy with such a decision. But, the fact that a majority of people are with the decision would give a moral authority to such a decision.
Unites States has a system of holding presidential primary elections and/or caucuses in each of the States as a part of nominating process of United States Presidential election. Which candidate will be nominated by a political party to contest the Presidential election on its behalf, is decided by such primary elections. It is noteworthy that there is no provision in the US Constitution for such primary elections. The detailed system of holding primary elections and caucuses was evolved by political parties in US over time.
In India, we don’t have a Presidential system of Government. Our Constitution has adopted the Parliamentary system. People need not be told in advance as to who is going to become their Prime Minister after the elections. The Prime Minister is supposed to be elected by the Members of Lok Sabha belonging to the ruling party. This process is expected to be a democratic process. But, unfortunately, there is no internal democracy in most of the parties in India. So, usually you won’t see any dissent. If there is ever a dissenting voice, that is muzzled. A dissenter will either be thrown out of the party or he will break the party and form his own faction / party or will join another party. That’s one of the reasons (though not the only one) that we have such a large number of parties.
Bhartiya Janata Party (BJP) has a system that comes closest to internal democracy from the Indian perspective. Though it does not have an ideal system of internal democracy within the party, it is better than most other parties in the country. It is not run by a family. Dr. Shyama Prasad Mookerjee was the founder of the previous avatar of BJP, i.e., the Bhartiya Jana Sangh. His family is nowhere in control of today’s BJP. Likewise, you’ll not hear the name(s) of any family members of other prominent leaders such as Pt. Deen Dayal Upadhyaya, Atal Behari Vajpayee, or even Lal Krishna Advani, ruling the affairs of today’s BJP.
Though it does not have internal democracy in the true sense of the term, it follows a system similar to that of caucuses in the US. Its parliamentary board and/or other internal bodies take most of its important decisions collectively, and it is not a specific individual who takes these decisions. Though it is true that RSS has a lot of influence (and, some control too) over the BJP decisions, the fact remains that many a time, even the RSS does not have the final controlling power. For example, RSS was not happy with Atal Behari Vajpayee on many of his decisions when he was the Prime Minister, yet it could not do much. Likewise, recently, RSS was not successful in installing Nitin Gadkari as BJP President for the second term, mainly due to the resistance of Lal Krishna Advani. One can say that most of the important decisions of BJP are taken by a group of its important leaders generally by consensus or by majority (and of course, RSS too exercises its own influence in this regard). Here, all these leaders may not have equal voting power. Some leaders may have more influence than others in the decision-making process or may have the so-called veto power. However, the fact remains that there is at least a semblance of a collective decision making process. And, at any rate, I think it is better than most other parties in India.
It is in this context that the elevation of Gujarat Chief Minister Narendra Modi as BJP Election Campaign Committee Chief for the 2014 General Elections should be seen. There were consultations, discussions, dissents, influences, pressures, and so-on. There was also pressure from RSS in favour of Narendra Modi. Ultimately, the decision was taken in favour of Narendra Modi. There were many dissenting voices. Many of the dissenting voices were ultimately convinced, either through persuasions or pressures. But, the majority decision ultimately prevailed. It may not be the majority of the parliamentary board of BJP. But, it was the majority vote of BJP cadre and supporters, ascertained not by a formal election as is done in US Presidential primary elections, but by an informal process that took years. This vote of the BJP cadre in favour of Narendra Modi was so vociferous that it could not be ignored. That the son of a tea-stall vendor, belonging to a backward caste, got elevated through this process, is a clear indicator that there was at least a semblance of a democratic consultation process. The fact that even the patriarch of the party could not force his wish, also indicates that the decision was possible only if the majority support (or popular support, or cadre support, whatever you may call it) was available to it.
No doubt, Chief of the Election Campaign Committee is not the same thing as being the Prime Ministerial candidate. During 2004 and 2009 elections, Pramod Mahajan and Arun Jaitley, respectively, were holding the same post of Chief of Campaign Committee in BJP and neither was considered to be its Prime Ministerial candidate. However, the scenario is different now. Most believe (including Advani himself) that this elevation for Modi means an indirect elevation as the Prime Ministerial candidate, or at least, a stepping stone in that direction.
May be that this process may be a stepping stone for a US type primary election process in long run in the future. There may be dissenting voices. So what? Aren’t we living in a democracy? As I mentioned earlier, complete consensus is possible only in an autocratic system. Democracy pre-supposes allowing dissenting voices to be raised, though the majority prevails in the end. In any case, isn’t it better than what prevails in most of our parties?
It is, therefore, desirable that we should encourage such democratic process, howsoever imperfect it may be as of now, as citizens of India, irrespective of whether we are apolitical or belong to any specific political party. Encouraging internal democracy in our political parties and subjecting them to the RTI Act [as the recent decision of the Central Information Commission does (here)] are very important issues if we aspire to be a true, real and transparent democracy. It is, thus, unfortunate that one notices a lot of criticism, rather than appreciation, in the media of the aforesaid decision-making process that led to the elevation of Narendra Modi in BJP. Here, I am referring to the process and not to the individual.
