Archive for the ‘Judiciary’ Category
A five-judge Constitution bench of the Supreme Court is hearing about the legality of Electoral Bonds. The bench is headed by Chief Justice of India D Y Chandrachud and comprises Justices Sanjiv Khanna, B R Gavai, J B Pardiwala and Manoj Misra. The matter relates to the Electoral Bonds scheme of 2018. It has been pandind in the Supreme Court almost from 2028, in spite of the petitionrs’ requests to expedite its hearing.
Supreme Court had decided on December 6 last year whether to refer the case of Electoral Bonds to a larger bench. The Court’s decision came while hearing a batch of petitions filed by the Association for Democratic Reforms (ADR) in 2017 and the Communist Party Of India (Marxists) a year later, among others. They challenged Amendments to the Finanace Act, 2017, the Reserve Bank of India Act, the Foreign Contribution Regulation Act (FCRA) 2010, the Companies Act, the Income Tax Act, and the Represeantion of the People Act that facilitated the Electoral Bonds scheame. Their argument was that it undermined the right to know as well as the Election Commission of India guidelines on the political funding. Prof. Jagdeep S. Choker. co-founder of the ADR was dissatisfied with the progrss of the case since 2018.
The Electoral Bonds scheme, notified first time by the Union Government on January 2, 2018 was considered as a clever step towards emaciating the opposition parties. Neither would it lead to greater transparency in the funding of political parties (as claimed by Finance Minister late Arun Jaitley) nor would it check the flow of black money into the electoral process. Even Election Commission had expressed apprehensions at the move. It had even written to Government expressing apprehension.
The objection to the scheme mainly was that it might lead to the use of black money in electoral politics. In his keynote address at a conference of Association for Democratic Reforms (ADR), then Election Commissioner O P Rawat observed that ‘the recent amendments in the election and income tax laws make it clear that any donation received by a political party through an Electoral Bond has been taken out of the ambit of reporting in the Contribution Report which political parties have to submit to the EC. Implications of this step can be retrograde as far as transparency is concerned. Furthermore, where contributions received through Electoral Bonds are not reported, a perusal of contribution reports will not make it clear whether the party in question has taken any donations in violation of Section 298 of the Representation of the People Act, which prohibits political parties from taking donations from Government companies and foreign sources.’
Only the State Bank of India (SBI) can issue the Electoral Bonds in the denominations of Rs 1000, Rs 10,000, Rs one lakh, Rs ten lakh and Rs one crore. A total of 53 branches of SBI have been authorised to sell the Bonds – one branch in the capitals of all the States and Union Territories – more than one branch in some States. An individual or body can purchase these Bonds from the designated branches after fulfilling the KYC (Know Your Customer) requirements. However, the Bonds will not carry the name of the purchaser.
The byer can donate these Bonds to a political party which is registered with the Election Commission and has received not less than one per cent of the votes in the last Lok Sabha or Assembly election. The party can encash the Bonds only by depositing these in its bank, registered with Election Commission, within 15 days after the issuance of the Bond. If not deposited within 15 days, the amount of the Bond will go to the Prime Minister’s Relief Fund.
Election Commission had expressed the apprehension that abolition of relevant provisions of the Companies Act of removing a cap of 7.5 per cent of profit for political donations can lead to money laundering by setting up of shell companies for diverting funds for donations to political parties.
Thoughts At Random
Posted on: August 14, 2023
- In: Government | Judiciary | Religion | Uncategorized
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In University days I had three mottoes for me: walks at random; talks at random; and thoughts at random. The first two have gradually disappeared in my life and the third is totteringly still there. What appears below is part of that.
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Two dozen and odd political parties coming together in the name of INDIA seems to have upset Narendra Modi. Apart from putting his hounds against them, he publicly castigates them on all occasions.
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Pakistan’s outgoing Prime Minister Shehbaz Sharif and Leader of Opposition Raja Riaz Ahmed agreed upon the name of Senator Anwarul Haq Kakar and gave it to the President for appointment as caretaker Prime Minister till the elections. India also needs some such arrangement.
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The Indian Constitution has three parts — all independent. If one part shows tendency of encroaching upon another part, there is remedy to stop it. After elaborate preparation, the virtual censorship included, the Government has now conquered two parts– executive fully and legislature almost. The most difficult is harnessing the judiciary and Modi is moving towards that.
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Prime Minister Narendra Modi castigates non-BJP leaders from the precincts of Parliament House. Wish he had the moral courage to say all those things from inside the House.
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Narendra Modi and Amit Shah leave no opportunity of reminding the people that leaders of non-BJP parties are corrupt. What about BJP? The moment the “most corrupt” person joins the BJP, he becomes non-corrupt and may be even made Deputy CM of a State?
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The most dangerous piece of legislation enacted by Independent India is the ‘Inter-Services Organisation(Command, Control and Discipline) Bill 2023’. Read with other steps taken so far, it enables the Defence Minister (read Prime Minister) to take over the country’s control with the help of Armed Forces.
Reforming Judiciary in India
Posted on: March 18, 2022
Originally it appeared on July 5,2009
A good thing – and intensely in the interest of the nation – that Manmohan Singh has done in his second term is to keep Hansraj Bhardwaj out of his council of ministers. How P.V.Narasimha Rao and Manmohan Singh tolerated this master of gimmickry is beyond one’s comprehension. There is nothing to show by way of his achievements as the Union Minister of Law and Justice. Maybe, he retained his usefulness by carrying out extra-judicial tasks for the party bosses –- as in the Quattrocchi case for Sonia Gandhi.
Narasimha Rao had taken Bhardwaj in his council of ministers in July 1992 as Minister of State (Independent charge) for Law, Justice and Company Affairs. The problem of judicial reforms was as pressing even then as it is now. Bhardwaj appeared to tackle the problem in right earnestness (as Veerappa Moily is doing now; one only hopes Moily does not become another Bhardwaj).
A meeting of law ministers of the States was convened by Bhardwaj at Bangalore within a few months of his taking over (October 1992) where a blueprint for legal reforms was prepared. This was followed by another meeting of law ministers and law secretaries in Panaji in Goa in April 1993, which was followed by another meeting at Pachmarhi a month later, and so on and so on. The Congress government went in 1996 but the implementation stage for the decisions taken at the first meeting never came. How he wasted the nation’s wealth on the salary and perks of the Union Cabinet Minister of Law and Justice in the Manmohan Singh government (2004-2009) is recent history.
Challenge beore Moily
Going by Moily’s known temperament, he is not expected to indulge into gimmickry when he promises judicial reforms expeditiously. The task is not easy because of the hypersensitivity of this privileged class. The malaise of corruption, greed, inefficiency and arbitrariness is percolating at all the levels of the judiciary. Two young women — sisters —are found murdered in their house at Shajapur in Madhya Pradesh while their parents were out on a morning walk. The sessions judge awards death sentence to a dalit youth (who was not even present in the town on that day) because the police wanted it under pressure from the young women’s influential father. The High Court bench at Indore upholds the conviction but only changes the sentence from death to life imprisonment. The youth is saved by the Supreme Court which exposed the mischief as to how the case was built up on the irrelevant and fictitious evidence and the relevant evidence was ignored. The dalit youth is a wreck by this time, having languished in jail under the threat of the gallows. Would Moily recommend deterrent punishment for the prosecutors, as well as for the judge, in such cut and dried cases?
There is another instance, which is much more common because of the thin line between discretion, error of judgement and deliberate mischief. An Itarsi resident went to attend a marriage ceremony along with his wife and nine-year-old daughter. The young girl was lured by a person and taken to the terrace where he raped her and tried to strangulate her with a rope. Taking the girl for dead, he left the place. The girl, however, managed to loosen the knot and stumbled down to her parents in a horrifying state, with her eyes bulging and body smeared in blood. The Hoshangabad Sessions Judge sentenced the accused to five years’ imprisonment under Sections 376/511 IPC (attempt to rape) instead of rape, and one year’s imprisonment under Section 323 (injury) instead of attempt to murder. A division bench of the Madhya Pradesh High Court, at Jabalpur, saw the point and ordered an inquiry by its vigilance wing against the Hoshangabad District and Sessions Judge.
Unfortunately, the ultimate disposal of such inquiries and findings is not often confidence-inspiring. A judicial officer of Uttar Pradesh was charged with accepting illegal gratification for granting bail. An inquiry was held and it came to light that the respective courts had rejected bail applications of the accused twice on merits. It was alleged that the judicial officer had granted bail on the third application in utter disregard of judicial norms and on insufficient grounds and it appeared to be based on extraneous considerations.
The full court of the Allahabad High Court imposed a punishment of withholding two annual increments of the judicial officer with cumulative effect and subsequently he was reduced to a lower rank. His writ petition challenging the punishment was dismissed by the High Court. He then went in appeal to the Supreme Court.
What the three-judge bench of the apex court comprising Chief Justice K.G.Balakrishnan, Justice Lokeshwar Singh Panta and Justice D.K.Jain ruled was incredible, to say the least. It said: “this court on several occasions has disapproved of the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgements/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgements of the lower courts. While taking disciplinary action based on judicial orders, High Court must take extra care or caution.” The bench set aside the High Court judgement and directed that the appellant be immediately posted to the cadre of district judge and paid all monetary benefits due to him.
The Apex Court
One aggrieved by the subordinate judiciary can go in an appeal. When the judges of the highest court leave gaps in the judgement, what is the remedy? The Niyogi murder case illustrates the point. A highly respectable labour leader of Chhattisgarh, Shankar Guha Niyogi, was murdered in Bhilai. The case was investigated by the CBI. The Durg Sessions Judge gave a cogent judgement as to how certain industrialists of the area had conspired to get Niyogi eliminated. They hired for the job Paltan Mallah, who was doing odd jobs in Bhilai and occasionally indulged in petty crimes. The trial court’s judgement gives a sequence of events up to who paid the money and when to Paltan Mallah and provided the weapon to him to kill Niyogi. The Sessions Judge awarded death sentence to Paltan Mallah and life imprisonment to certain industrialists. The Madhya Pradesh High Court (Chhattisgarh was part of Madhya Pradesh then) acquitted all of them.
An appeal was moved in the Supreme Court. A division bench of K.G.Balakrishnan (he was not chief justice yet) and A.R.Lakshmanan sentenced Paltan Mallah to life imprisonment but acquitted the accused-industrialists. No one had brought before the trial court that Mallah had a grudge against Niyogi. The trial judge records that “Paltan Mallah had no personal animosity against labour leader Shankar Guha Niyogi. He had no motive for this offence (murder) except that he received money from those industrialists against whom Niyogi was organising the labour movement”. Once the industrialists are absolved of any part in the conspiracy, as the Supreme Court has done, what was Mallah’s motive in taking Niyogi’s life? A revision petition was preferred by Niyogi’s wife before the same bench – but it was rejected.
After the Bhopal Gas Leak Disaster of December 2-3, 1984, it was the politicians, the bureaucracy and a significant section of the judiciary who only added to the miseries of the victims to further their own selfish interests. Two former Chief Justices of India (CJIs) stand out in this respect. R S Pathak virtually persuaded the Indian establishment to accept a settlement for US Dollars 470 million in return for waiving the civil and criminal liabilities of the Union Carbide (the criminal cases were later restored by the Supreme Court). Soon thereafter, Pathak was made a judge of the International Court of Justice at The Hague with the backing of the US lobby.
The settlement was accepted by the Union Government (headed by Rajiv Gandhi), which had appropriated to itself through an Act of Parliament the right to represent the Bhopal gas victims in all legal matters. The settlement was for 3000 dead and 1,02,000 injured, though the Indian Council of Medical Research (ICMR) had presumed over 25,000 dead within three days of the MiC gas leak. The protests by scores of NGOs from all over the country against the unjust settlement were ignored. A Supreme Court bench later accepted the survivors’ plea about the inadequacy of the compensation amount in view of the larger number of deaths and the injured and directed the Union Government to make good the shortfall if the need be. The number of the injured and dead found eligible for compensation turned out to be five times more than the number for which Rajiv Gandhi had accepted the compensation.
Another CJI to use the disaster for his own selfish ends was A M Ahmadi. A Supreme Court bench had directed the Union Carbide to build 500-bed hospital in Bhopal with the modern facilities for treatment of the Bhopal gas survivors. The Indian officials of the UCC approached the Bhopal sessions court to release the company’s (seized) shares to enable it to build the hospital but the court refused and asked the company to finance the construction of the hospital from its own coffers. The court had reasoned that the shares would continue to be frozen to ensure appearance of the accused in the court.
Ahmadi, heading a Supreme Court bench, first released the shares so that the Union Carbide Corporation (UCC) could raise money by selling these and did not have to spend from its own coffers for construction of the hospital. Next, he diluted the charges against the Indian officials of the Union Carbide (Union Carbide chairman Anderson was already out of the bounds) so that they could be punished with the maximum of two years’ imprisonment; earlier the IPC sections had provided for life imprisonment or sentence up to ten years in jail.
The UCC had formed Bhopal Hospital Trust (BHT) to build the hospital with Sir Ian Percival, a London attorney, as its chairman. Sir Ian died in April 1998 and left behind financial accounts of the BHT showing that he had spent US $2.5 million on travel, refurbishing his London office and such other expenses. In August of that year, the BHT was Indianised to form the Bhopal Memorial Hospital Trust (BMHT). Justice A M Ahmadi, who had retired from the Supreme Court by that time, was appointed the chairperson of the BMHT. Later it was converted into Bhopal Memorial Hospital and Research Centre (BMHRC).
Though essentially established to cater to the requirements of the survivors of the gas leak disaster, the hospital had, from the beginning, been showing a cavalier attitude towards the gas victims, asking them to pay up heavy sums or turning them away. Its whole attention was on non-gas victims who could pay. The Bhopal Gas Peedit Mahila Udyog Sangathan (BGPMUS), the voluntary organisation working for the gas victims, had to petition the Supreme Court repeatedly to get the hospital treat the gas victims free of cost, as envisaged in the original apex court directive. In fact, it was on a petition of the BGPMUS that the Supreme Court directive for the establishment of the hospital was issued. Ahmadi was accused of misappropriating over Rs 100 crore of the hospital funds by the NGOs working among the gas victims. A shocking and disgraceful act that came to light in 2008 was the illegal manner in which secret drug trials were conducted on gas-victims at BMHRC during 2004-2008. After the matter become public, the authorities at BMHRC made every effort to shield the culprits. BGPMUS and Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) held detailed inquiry into this unsavoury incident of using gas-victims as guinea pigs and demanded stringent action against the guilty. For pursuing the matter, BGPMUS and BGPSSS became interveners in Writ Petition (C) No.33 of 2012, which was filed by Swasthya Adhikar Manch, Indore, to oppose unregulated drug trials in the country, especially by multinational drug companies.
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In his first major statement after taking charge as Chief Minister of Maharashtra, Shiv Sena’s Uddhav Thackeray demanded an inquiry into the death of Judge Brijgopal Harkishan Loya. That was to hit at BJP president and Home Minister Amit Shah. At the same time, Thackeray kept his line of friendly relations with Prime Minister Narendra Modi open. An editorial in Shiv Sena’s mouthpiece “Saamna” described Narendra Modi as Uddhav Thackeray’s elder brother. Portents indicate a realignment of power structure within the BJP.
Brijgopal Harkishan Loya was a special CBI Judge in Mumbai where the Sohrabuddin Sheikh case was transferred on orders of the Supreme Court. Sohrabuddin was killed in an alleged fake encounter in 2005. The accused in the case included Amit Shah, then Minister of State for Home in Gujarat, and some senior police officers of Gujarat and Rajasthan. Judge Loya died on December 1, 2014 allegedly following a heart attack in Nagpur where he had gone to attend the marriage ceremony of the daughter of one of his colleagues. Four other judges, who had also attended the ceremony, said Loya died of heart attack.
Special CBI judge J T Utpat, was hearing the high profile case. The BJP formed the government at the Centre and Narendra Modi took oath as Prime Minister on May 26. Judge Utpat was abruptly transferred on June 25 — a day before he was to pronounce the order on a petition seeking the discharge of Amit Shah from the Sohrabuddin fake encounter case. His transfer was in flagrant violation of the Supreme Court directive that the presiding judge in the case should not be replaced. Judge Utpat had expressed in strong words his displeasure at Amit Shah’s continued absence from the court during the trial. Then H B Loya was assigned to the case.
Judge Loya had also expressed his displeasure at Amit Shah’s absence during the hearing. On the last hearing in the Sohrabuddin fake encounter case, judge Loya had directed Amit Shah’s lawyer to ensure that he (Shah) was present on the next hearing slated for December 15. Loya, however, died on December 1. Judge M B Gosavi who was appointed in Loya’s place, heard Amit Shah’s discharge petition from December 15 to 17 (2014) and dropped all charges against him on December 30. Predictably, the CBI did not challenge the judgement. It was followed by the discharge of the other accused persons.
There were several discrepancies in the circumstances of Judge Loya’s death allegedly of heart attack. In a well-researched article, Caravan magazine had published documents to point out these discrepancies. PILs seeking an inquiry into Loya’s death were rejected both by the Bombay High Court and the Supreme Court. The public, however, was not satisfied. Now by demanding an inquiry into Judge Loya’s death, Uddhav Thackeray has touched Shah’s raw nerve.
It was only after the Maharashtra Assembly election results were announced that Thackeray and Shah started moving away from each other. Before the elections, the alliance between the BJP and the Shiv Sena was finalised by Amit Shah and Uddhav Thackeray. The terms and conditions were not made public then. After the two parties jointly bagged a majority of the seats in the Assembly, Thackeray claimed that he and Shah had agreed on Chief Minister of each party for two and a half years. While other BJP leaders denied it, Shah kept quiet for nearly a fortnight. When he did speak, he did not categorically deny Thackeray’s claim but spoke only vaguely and refused to agree to any such power sharing, forcing the Shiv Sena leader to forge an alliance with NCP and Congress. In an adroit move, Thackeray had stated that Shah had apparently not briefed Modi about the agreement, thus keeping his line to the Prime Minister intact.
Besides, there were reports that Amit Shah was not in favour of repeating Devendra Fadnavis as Chief Minister and was not happy when Modi had named Fadnavis as the chief ministerial candidate during the campaign. Shah was reported to be in favour of elevating State BJP president Chandrakant Patil as the chief ministerial candidate. Now Thackeray has demanded an inquiry into Judge Loya’s death by declaring Modi as the elder brother. It should be interesting to watch what turn the BJP politics takes.
Chief Justice of India (CJI) Ranjan Gogoi has granted permission to CBI to investigate corruption charges against a sitting judge of Allahabad High Court. This is a welcome departure from the attitude of one of his predecessors who had ruled while disposing of a case that no action should be initiated against a judicial officer even if he takes bribe.
Justice S N Shukla of Allahabad High Court (Lucknow Bench) was alleged to have favoured a private medical college by extending deadline to admit students for 2017-2018 in violation of the Supreme Court order. After receiving a complaint from Uttar Pradesh Advocate General Raghvendra Singh in September 2017, then CJI Deepak Misra constituted an inquiry panel comprising three High Court judges, two of them Chief Justices, to hold a preliminary inquiry into the allegations against Justice Shukla. The panel found that Justice Shukla had disgraced the values of judicial life, acted in a manner unbecoming of a judge to lower the majesty, dignity and credibility of his office and acted in breach of his oath of office, and that “there is sufficient substance in the allegations contained in the complaints against Justice Shukla and the aberrations complained of are serious enough to call for initiation of proceedings for his removal”. On receiving the panel’s report, Justice Misra asked Justice Shukla either to resign or seek retirement but he had refused.
The Supreme Court had in 1991 ruled while deciding a case that no investigating agency can lodge an FIR against a Supreme Court or High Court judge without first showing the evidence to the CJI for permission to investigate the judge. The CBI had written to CJI Gogoi to investigate the allegations against Justice Shukla. Attached with the CBI request was a note listing the preliminary evidence of corruption against Justice Shukla. After perusing the note, CJI granted permission to CBI on July 30 to file an FIR against Justice Shukla and start investigation.
Contrast this with the attitude of the Supreme Court about five years ago when corruption in Judiciary was virtually given legitimacy by a judgement of the apex court — by a three-member bench presided over by then CJI K G Balakrishnan. An Additional District and Sessions Judge of Uttar Pradesh, Ramesh Chander Singh, was charged with illegal gratification for granting bail to a notorious offender. An inquiry was held by the vigilance wing of Allahabad High Court and it came to light that the respective courts, which had the jurisdiction, had rejected the bail applications of the accused twice on merits. It was alleged that the Additional Judge had granted bail on the third application in utter disregard of judicial norms and on insufficient grounds and it appeared to be based on extraneous considerations. The full court of the Allahabad High Court imposed a punishment of withholding two annual increments of the Additional District and Session Judge with cumulative effect and subsequently he was reduced to a lower rank. His writ petition challenging the punishment was dismissed by the High Court. He then went in appeal to the Supreme Court.
What the three-judge bench of the apex court comprising Chief Justice K G Balakrishnan, Justice Lokeshwar Singh Panta and Justice D K Jain ruled was incredible, to say the least. It said: “this court on several occasions has disapproved of the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgements/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgements of the lower courts. While taking disciplinary action based on judicial orders, High Courts must take extra care or caution.” The bench set aside the Allahabad High Court judgement and directed that the appellant be immediately posted to the cadre of district judge and paid all monetary benefits due to him.
Rajendra Sail was a close associate of Shankar Guha Niyogi and was with him till a few hours before the most respected trade union leader of Chhattisgarh was assassinated at his Bhilai residence in the early hours of October 28, 1992.
The investigation was entrusted to the CBI which collected a tome of evidence. Nine persons were put on trial for Noyogi’s murder. Second Additional Sessions Judge of Durg T.K.Jha delivered a 184-page judgement on June 23,1997. Three of the accused, Naveen Shah, Chandra Baksh Singh and Baldeo Singh were acquitted. Paltan Mallah was held guilty of murder under Section 302 IPC and was awarded sentence of death (subject to the confirmation by the High Court). The remaining five persons, Chandrakant Shah, Gyan Prakash alias Gyanu, Avadhesh Rai, Abhay Kumar Singh and Moolchand Shah were convicted under Section 302 (murder) read with Section 120-B (criminal conspiracy) of IPC and sentenced to imprisonment for life.
The Madhya Pradesh High Court acquitted all of them.
Sail was upset — and not unnaturally. He issued a statement virulently criticising the High Court judgement and presumably transgressed the “Lakshman-rekha” in his anger. His statement was published by “Hitavada”, an English daily of Nagpur.
The Madhya Pradesh High Court found Sail and the functionaries of “Hitavada” guilty of committing contempt of the court and setnenced them to six months’ imprisonment.
A Division Bench of the Supreme Court comprising Justice Y.K.Sabharwal and Justice Tarun Chatterjee upheld on April 25 the Madhya Pradesh High Court verdict holding Sail guilty of committing contempt of the court but reduced his sentence to seven days’ simple imprisonment.The Supreme Court let off the functionaries of “Hitavada” as it had published an apology even before the High Court had issued notices to them.
The Bench laid down the guidelines for the media and said while criticising the judgements of the courts the media should keep in mind that the “freedom of expression must be exercised with utmost care and responsibility. It must not be abused”.
“Judgements of courts are public documents and can be commented upon, analysed and criticised, but it has to be in dignified manner without attributing motives. The media -whether print or electronic – all concerned have to see whether any such criticism has crossed the limits.”
“Undoubtedly the judgements are open to criticism. No criticism, however vigorous, can amount to contempt of court, provided it is kept within the limits of reasonable courtesy and good faith. A fair and reasonable criticism of a judgement, which is a public act of a judge concerned with administration of justice, would not constitute contempt,” the Bench said. It, though, cautioned news organisations against attributing motives to the judiciary merely for the purpose of “sensationalising” news reports on any verdict. It said such motivated criticism would erode people’s faith in the justice-delivery system.
There is the other side also. What is the remedy when a judge acts in the most arbitrary manner and wilfully passes illegal orders? I have seen many such cases in my professional life as a journalist.
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