Context

The Supreme Court order of May 20, transferring the suit on the Gyanvapi Masjid dispute from the civil judge (senior division) Varanasi to the district judge casts aspersion, though unintended, on the competence of civil judges in general.

Background

• The matter had reached the Supreme Court on a petition filed by the Mosque Management Committee, which challenged the civil judge’s orders.
• The order permitted inspection, survey, and videography of the mosque’s complex to collect evidence about the alleged existence of idols of Hindu deities inside the mosque, which is adjacent to the Kashi Vishwanath Temple.
• The Mosque Management Committee had filed an application before the civil judge seeking the rejection of the plaint on the ground that it was barred by the Places of Worship (Special Provisions) Act, 1991.
• Places of Worship (Special Provisions) Act, 1991 prohibits individuals and groups of people from converting, in full or in part, a place of worship of any religious denomination into a place of worship of a different religious denomination, or even a different segment of the same religious denomination.
• It was argued before the SC that given the said Act, the suit was liable to be rejected at the threshold as the civil judge had no jurisdiction to entertain the same, much less to pass the aforesaid interim orders.
• The SC has not found any fault with the order of the civil judge, though there is also a view that it was mandatory on the part of the civil judge to have first passed an order on whether he had the jurisdiction to entertain the suit.
• However, it appears that in the SC’s view, this was not a serious infraction.
• So, in a way, the SC has affirmed the orders of the civil judge.
• The civil court had territorial and pecuniary jurisdiction to deal with the matter.
• The question that arises is: Why has the Supreme Court transferred the matter to the court of the district judge?

Issues with the SC transferring the case to the district judge

• The SC has seemingly declared civil judges to be not competent to decide a matter alleged to be complex.
• When the Civil Procedure Code, the High Court Rules and Orders invest a civil judge with jurisdiction, why take it away merely on the plea that the matter is complex?
• Unhealthy precedent: Fransfer of the case to the district judge has set an unhealthy precedent and will have a demoralising effect on the subordinate judiciary.
• In the recent past, many lower-level judicial officers have passed outstanding orders in matters concerning the liberties of the citizens, which are under threat as never before.
• The subordinate judiciary provides the foundation of our judicial system.

Conclusion

Supreme Court order inadvertently casts aspersions on competence of subordinate judiciary. District court should not be weighed down by SC observation.

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Context

Justice M. Nagaprasanna of the Karnataka High Court on March 23, 2022, in the case of Hrishikesh Sahoo vs State of Karnataka, pronounced the end of the marital rape exception.

Background of the case

• This judgment was a result of a unique case where a woman had filed a criminal complaint of rape against her husband due to the repeated acts of sexual assault she had to face.
• Marital rape exception to Section 375: The police registered her complaint under Section 376 notwithstanding the marital rape exception, a charge sheet was filed and the Sessions Judge took cognisance and framed charges under Section 376.
• This led to the husband approaching the High Court seeking to quash the criminal proceedings.
• In a nuanced and far-reaching judgment, Justice Nagaprasanna refused to quash the charge of rape against the husband.

Violation of rights of woman

• Violation of the right to equality: Justice Nagaprasanna held that if a man, being a husband is exempted for his acts of sexual assault, it would destroy women’s right to equality, which is the very soul of the Constitution.
• Discrimination: He held that the Constitution recognises and grants equal status to women, but the exception to marital rape in the IPC amounts to discrimination because a wife is treated as subordinate to the husband.
• The Constitution considers marriage as an association of equals and does not in any sense depict women to be subordinate to men and guarantees women the fundamental rights under Articles 14, 15, 19 and 21 the right to live with dignity, personal liberty, bodily integrity, sexual autonomy, right to reproductive choices, right to privacy, right to freedom of speech and expression.
• n Independent Thought vs Union of India (2017), the Supreme Court of India diluted it and removed the exception to marital rape to a wife not below 15 years and made it 18 years.

Historical roots of the principle of exception

• The exception to marital rape in common law was due to the dictum by Chief Justice Matthew Hale of Britain in 1736 where he argued that by marriage, a woman gave up her body to the husband and was accepted as an enduring principle of common law, due to which a husband could not be guilty of raping his wife.
• This was therefore translated into criminal codes, including the Indian Penal Code which India adopted.
• This principle has now been completely abolished.
• In the United Kingdom, in 1991, the exception to marital rape was done away with in the case of R. vs R. The House of Lords held that where the common law rule no longer represents what is the true position of a wife in present-day society.
• The court held that a husband’s immunity as expounded by Chief Justice Matthew Hale no longer exists.

Conclusion

The Karnataka High Court, by holding that the exception to marital rape in Section 375 is regressive and in violation of the constitutional guarantee of equality, has now truly pronounced the death knell of the marital rape exception.

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Context

In Thwaha Fasal vs Union of India, the Court has acted in its introspective jurisdiction and deconstructed the provisions of the Unlawful Activities (Prevention) Act (UAPA) with a great sense of legal realism. This paves the way for a formidable judicial authority against blatant misuse of this law.

Background of the case

• In this case from Kerala, there are three accused.
• The police registered the case and later the investigation was handed over to the National Investigation Agency (NIA).
• During the investigation, some materials containing radical literature were found, which included a book on caste issues in India and a translation of the dissent notes written by Rosa Luxemburg to Lenin.
• Thus, the provisions of the UAPA were invoked.
• After initial rejection of the pleas, the trial judge granted bail to both the accused in September 2020.
• The Supreme Court was emphatic and liberal when it said that mere association with a terrorist organisation is not sufficient to attract the offences alleged.
• Unless and until the association and the support were “with intention of furthering the activities of a terrorist organisation”, offence under Section 38 or Section 39 is not made out, said the Court.

Issues with UAPA

• Section 43D(5) of the UAPA says that for many of the offences under the Act, bail should not be granted, if “on perusal of the case diary or the report (of the investigation), there are reasonable grounds for believing that the accusation is prima facie true”.
• Thus, the Act prompts the Court to consider the version of the prosecution alone while deciding the question of bail.
• Unlike the Criminal Procedure Code, the UAPA, by virtue of the proviso to Section 43D(2), permits keeping a person in prison for up to 180 days, without even filing a charge sheet.
• Prevents examination of the facts: The statute prevents a comprehensive examination of the facts of the case on the one hand, and prolongs the trial indefinitely by keeping the accused in prison on the other.
• Instead of presumption of innocence, the UAPA holds presumption of guilt of the accused.
• In Zahoor Ahmad Shah Watali, the Court said that by virtue of Section 43D(5) of UAPA, the burden is on the accused to show that the prosecution case is not prima facie true.
• The proposition in Zahoor Ahmad Shah Watali is that the bail court should not even investigate deeply into the materials and evidence and should consider the bail plea, primarily based on the nature of allegations, for, according to the Court, Section 43D(5) prohibits a thorough and deeper examination.
• The top court has now altered this terrible legal landscape.

Key takeaways from the judgement

• The text of the laws sometimes poses immense challenge to the courts by limiting the space for judicial discretion and adjudication.
• The courts usually adopt two mutually contradictory methods in dealing with such tough provisions.
• One is to read and apply the provision literally and mechanically which has the effect of curtailing the individual freedom as intended by the makers of the law.
• In contrast to this approach, there could be a constitutional reading of the statute, which perceives the issues in a human rights angle and tries to mitigate the rigour of the content of the law.

Conclusion

The judgment should be invoked to release other political prisoners in the country who have been denied bail either due to the harshness of the law or due to the follies in understanding the law or both.

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Context

When the bench of the Chief Justice of India passed an order appointing a committee in the Pegasus matter, it served the interest of every Indian.

What led to the appointment of committee by the Supreme Court

• Pegasus has allegedly been used against politicians and individuals across the globe, including against politicians, journalists and other private individuals in India.
• The issue rocked Parliament, but the government was not willing to share any information pertaining to the software or its use, citing national security as a reason.
• The alleged victims of the software turned to the Supreme Court, and prayed for setting up of an independent enquiry.
• The government, on being called upon by the Supreme Court, cited national security, contending that any information it let out would become a matter of public debate, which could be used by terror groups to hamper national security.
• Its unrelenting stand left the court with no option but to take a call on whether to blindly accept the government’s refusal to share no information whatsoever, or lean in favour of a citizen’s right to privacy, a fundamental right guaranteed under the Constitution.
• The Supreme Court chose the latter course.

Balancing the fundamental rights  nad judicial review with national security

• The Supreme Court has observed that “the state cannot get a free pass every time the spectre of national security is raised”.
• It goes on to say that national security “cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review”.

Conclusion

The Pegasus order upholding the individual’s right to a life of dignity and privacy, is music to the ears of those who believe in constitutional values and rule of law.
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Context

The Supreme Court of India appointed an independent committee to inquire into charges that the Union government had used the mobile phone spyware Pegasus to invade, access, and snoop into devices used by India’s citizens.

Background

• The petitioners before the Supreme Court relied on an investigation conducted by a consortium of global media.
• These reports revealed that hundreds of phone numbers from India had appeared on a global list of more than 50,000 numbers that were selected for surveillance by clients of the Israeli firm, the NSO Group.
• The NSO has since confirmed that its spyware is sold only to governments, chiefly for the purposes of fighting terrorism.

Government’s defence

• In response to the allegations made against it, the Government invoked national security.
• What is more, according to it, the very adoption of this argument virtually forbade the Court from probing further.
• In matters purportedly involving national security, the Court has shown an extraordinary level of deference to the executive.
• The cases also posed another hurdle: a contest over facts.
• The petitioners were asserting the occurrence of illegal surveillance.
• The Government was offering no explicit response to their claims.
• Now, to some degree, in its order appointing a committee, the Court has bucked the trend of absolute deference.
• The Court has held that there is no magic formula to the Government’s incantation of national security, that its power of judicial review is not denuded merely because the state asserts that the country’s safety is at stake.

Accountability on part of the government

• The order recognises, correctly, that spying on an individual, whether by the state or by an outside agency, amounts to an infraction of privacy.
• This is not to suggest that all surveillance is illegal.
• In holding thus, the Court has effectively recognised that an act of surveillance must be tested on four grounds:
• First, the action must be supported by legislation.
• Second, the state must show the Court that the restriction made is aimed at a legitimate governmental end.
• Third, the state must demonstrate that there are no less intrusive means available to it to achieve the same objective;
• Finally, the state must establish that there is a rational nexus between the limitation imposed and the aims underlying the measure.
• The test provides a clear path to holding the Government accountable.

Way forward

• The absence of a categorical denial from the Government, the order holds, ought to lead to a prima facie belief, if nothing else, that there is truth in the petitioners’ claims.
•  Having held thus, one might have expected the Court to frame a set of specific questions demanding answers from the state.
• If answers to these questions were still not forthcoming, elementary principles of evidence law allow the Court to draw what is known as an “adverse inference”. 
• A party that fails to answer questions put to it will only risk the Court drawing a conclusion of fact against it.
• If, on this basis, the petitioners’ case is taken as true, there can be little doubt that there has been an illegitimate violation of a fundamental right.
• It is, therefore, unclear why we need a committee at all.
• Ultimately, in the future, the Court must think more carefully about questions of proof and rules of evidence.

Conclusion

Ad hoc committees — sterling as their members might be — cannot be the solution. Far too many cases are consigned to the back burner on the appointment of external panels, and, in the process, civil liberties are compromised.

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Context

The Supreme Court of India has appointed a committee presided by Justice (Retd.) R V Raveendran to inquire into the Pegasus revelations.

Terms of reference

• The court’s terms of reference include queries on, “What steps/actions have been taken by the Union of India after reports were published in the year 2019 about hacking of WhatsApp accounts”, and, “Whether any Pegasus suite of spyware was acquired by the Union of India, or any State Government, or any central or state agency for use against the citizens of India”.
• The constitution of this committee marks an important step towards accountability for the victims and the larger public on the use of Pegasus.

Significance of the committee on Pegasus issue

1) Transparency and disclosure

• The order of the court constituting the committee attains significance for three clear reasons.
• The first is the court’s continuing insistence on transparency and disclosure by the Union government.
• The only filing made in court by the government was a limited affidavit, containing short paragraphs of generalised denials and the sole annexure of a statement by the Minister for Electronics and IT before Parliament.
• Immediately, the Supreme Court pointed out that these are inadequate and provided further time.

2) The SC’s approach towards national security

• The second reason is the Supreme Court’s firm approach towards the national security submissions by the Union government.
• The court correctly applied the settled convention on legal pleadings and affidavits by asking the government to, “necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns.”
• The second aspect of the national security argument is how the court balances it with the fundamental right to privacy.
• Here, drawing from the framework of the K S Puttaswamy judgment the court specifically states that, “national security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning” and, “mere invocation of national security by the State does not render the Court a mute spectator”.
• These are significant observations that, when followed as precedent, will bolster confidence in constitutional adjudications especially when courts demand evidence on arguments of “national security” to avoid generalised statements made to evade accountability.

3)  Rejection of the suggestion by the Solicitor-General to constitute a government committee of experts

• The court correctly notes that even though the Pegasus revelations were first made on November 1, 2019, there has been little movement on any official inquiry.
• It also records the genuine apprehension of the petitioners, many of whom are victims of Pegasus, that since the sale of this malware can only be made to governments, they fear the involvement of state agencies.

Challenges

• These include the functioning of the committee and the cooperation of government witnesses, the publication of the report so as to ensure public confidence and, ultimately, the directions and remedy provided by the Supreme Court.

Conclusion

Hence, the constitution of this committee provides hope. At the same time, any honest assessment should consider the more challenging tasks ahead.

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Context

In a recent ruling, the Supreme Court of India has sought to move away from an anthropocentric basis of law.

Biocentrism Vs. Anthropocentrism

• Anthropocentrism argues that of all the species on earth humans are the most significant and that all other resources on earth may be justifiably exploited for the benefit of human beings.
• The philosophy of biocentrism holds that the natural environment has its own set of rights which is independent of its ability to be exploited by or to be useful to humans.
• Biocentrism often comes into conflict with anthropocentrism.

Supreme Court of India upholds biocentric principles

• The Great Indian Bustard is a gravely endangered species, with hardly about 200 alive in India today.
• The overhead power lines have become a threat to the life of these species as these birds frequently tend to collide with these power lines and get killed.
• Recently, the Supreme Court in M.K. Ranjitsinh & Others vs Union of India & Others, said that in all cases where the overhead lines in power projects exist, the governments of Rajasthan and Gujarat shall take steps forthwith to install bird diverters.
• In protecting the birds, the Court has affirmed and emphasised the biocentric values of eco-preservation.
• A noteworthy instance of the application of anthropocentrism in the legal world is in that of the “Snail darter” case in the United States.
• The Supreme Court of the United States of America in Tennessee Valley Authority vs Hill, had held that since the “Snail darter” fish was a specifically protected species under the Act, the executive could not proceed with the reservoir project.

Human role in extinction of species

• About 50 years ago, there were 4,50,000 lions in Africa. Today, there are hardly 20,000.
• Indiscriminate monoculture farming in the forests of Borneo and Sumatra is leading to the extinction of orangutans.
• Rhinos are hunted for the so-called medicinal value of their horns and are slowly becoming extinct.
• From the time humans populated Madagascar about 2,000 years ago, about 15 to 20 species of Lemurs, which are primates, have become extinct.
• The compilation prepared by the International Union for Conservation of Nature lists about 37,400 species that are gravely endangered; and the list is ever growing.

Evolution of Right of Nature laws in Constitutions

• Pieces of legislation are slowly evolving that fall in the category of the “Right of Nature laws”.
• These seek to travel away from an anthropocentric basis of law to a biocentric one.
• The Constitution of India is significantly silent on any explicitly stated, binding legal obligations we owe to our fellow species and to the environment that sustains us.
• It is to the credit of the Indian judiciary that it interpreted the enduring principles of sustainable development and read them, inter alia, into the precepts of Article 21 of the Constitution.
• In September 2008, Ecuador became the first country in the world to recognise “Rights of Nature” in its Constitution.
• Bolivia has also joined the movement by establishing Rights of Nature laws too.
• In November 2010, the city of Pittsburgh, Pennsylvania became the first major municipality in the United States to recognise the Rights of Nature.
• These laws, like the Constitution of the countries that they are part of, are still works in progress.

Conclusion

In times like this the Supreme Court’s judgment in M.K. Ranjithsinh upholding the biocentric principles of coexistence is a shot in the arm for nature conservation. One does hope that the respective governments implement the judgment of the Court.

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Context

Father Stan Swamy passed away at a private hospital in Mumbai on July 5. Fr. Swamy was arrested by the National Investigation Agency (NIA), under the Unlawful Activities (Prevention) Act (UAPA).

How Supreme Court judgment leaves the scope for misuse of UAPA

• The Supreme Court’s April 2019 decision in National Investigation Agency vs Zahoor Ahmad Shah Watali on the interpretation of the UAPA has affected all downstream decisions involving the statute.
• This decision has created a new doctrine.
• According to the decision, in considering bail applications under the UAPA, courts must presume every allegation made in the First Information Report to be correct.
• Further, bail can now be obtained only if the accused produces material to contradict the prosecution.
• In other words, the burden rests on the accused to disprove the allegations, which is virtually impossible in most cases.
• The decision has essentially excluded the admissibility of evidence at the stage of bail.
• By doing so, it has effectively excluded the Evidence Act itself, which arguably makes the decision unconstitutional.
• Due to the Supreme Court judgment, High Courts have their hands tied, and must perforce refuse bail, as disproving the case is virtually impossible.
• The Delhi High Court recently granted bail to three young activists arrested under UAPA in a conspiracy relating to the 2020 riots in Delhi.
• The Supreme Court reportedly expressed surprise and gave the direction that the decision will “not to be treated as precedent by any court” to give similar reliefs.

Misuse of the UAPA

• With such high barriers of proof, it is now impossible for an accused to obtain bail, and is in fact a convenient tool to put a person behind bars indefinitely.
• This is being abused by the government, police and prosecution liberally: now, all dissenters are routinely implicated under charges of sedition or criminal conspiracy and under the UAPA.
•  In multiple instances, evidence is untenable, sometimes even arguably planted, and generally weak overall.
• But as a consequence of UAPA being applied, the accused cannot even get bail.

Way forward

• If we want to prevent the misuse, the decision in the Watali case must be urgently reversed or diluted, otherwise, we run the risk of personal liberties being compromised very easily.

Conclusion

The provision of the act leaves the scope for misuse and therefore judiciary and legislature need to take steps to provide safeguards to prevent the misuse.

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In a recent judgement, Section 7 of POCSO Act was interpreted in a controversial way by the Nagpur Bench of the Bombay High Court. 

Issue of the definition of sexual assault under POCSO Act

• Recently, the Nagpur Bench of the Bombay High Court held that skin-to-skin contact is essential to constitute the offence defined under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
• Section 354 of the Indian Penal Code, 1860, which deals with outraging modesty of women and which provides for a lesser sentence, was held to be applicable in such cases.
• This ruling raises several concerns.
• The National Commission for Protection of Child Rights had asked the Maharashtra government to appeal this decision in the Supreme Court.
• The Supreme Court has currently stayed the acquittal of the accused under this judgement.

Concerns with the judgement

• The Court held that the stringent nature of punishment provided for the offence required stricter proof and serious allegations.
• The court said the punishment should be proportionate to the seriousness of the crime.
• Nevertheless, while adjudging the seriousness of the offence the court has not given consideration to the fact that the victim, a minor, is entitled to greater protection.
• The major concern is that the interpretation of the court seems to defeat the purpose of the POCSO Act.
• Section 7 of POCSO defines sexual assault as “Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”
•  The court has concluded that the touching of the breast without skin-to-skin contact is not similar to the abovementioned acts and, therefore, does not fall within this definition.
• The court seems to have followed a rather pedantic approach to reach this conclusion.
• The fact that the trauma of the child whose breasts were groped through a cloth could be of the same nature and severity as direct touching of the breast is not discussed.
• And if the trauma is the same, the mere existence of cloth should not affect the applicability of the POCSO Act.

Legislative history and object of POCSO Act

• The POCSO Act was enacted with the specific intention of protecting children from sexual assault and sexual harassment.
• It took into consideration the standards prescribed by the Convention on the Rights of the Child adopted by the General Assembly of the United Nations to which the Indian government acceded to on December 11, 1992.
• The Act acknowledges the special vulnerability of children and that special protection, above and beyond that provided in the IPC, is required when the victim is a child.

Conclusion

If such an interpretation is followed, there is a threat that the POCSO Act in itself might become redundant as a wide range of sexually violative activities would be excluded from its ambit due to lack of skin-to-skin contact.

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The article examines the issue of selective prosecution and Indian judiciary’s approach toward it. It also highlights the importance of recent Goswami case.

Selective prosecution: Form of abuse of state power

• Recently the case involving bail application of a T.V. anchor brought to the fore issue of selective prosecution.
• The illegal selection of accused based on grounds prohibited by the Constitution is called “selective prosecution”.
• In case of selective prosecution, the police and enforcement agencies selectively target political and ideological opponents of the ruling dispensation to interrogate, humiliate, harass, arrest, torture and imprison.
• It is one of the oldest, most pernicious and widespread forms of abuse of state power.

How it is illegal: Two independent legal issues

1) Exercise of prosecutorial discretion

• The applicable legal standard is that while the police and prosecutors in common law jurisdictions enjoy vast discretion in deciding who they may pursue and who they may spare.
• However, the choice of accused must not be based on grounds that violate Constitutional rights, including the Article 14 right to equal protection of the law.
• The accused should not be selected, either explicitly or covertly, on constitutionally prohibited grounds.

2) Merit of the case filed

• When the choice of accused runs contrary to the Constitution, the entire criminal proceeding is vitiated, irrespective of the determination of the second issue, viz., whether the accused are convicted or acquitted on the charges brought against them.
• Once the proceedings fail under the first issue, there is no legal basis to proceed to the second issue., i.e., trial on the merits of the case.
• The theory is that the Constitution cannot be violated to uphold the law — such an approach would spell doom for the Constitution.
• The selective prosecution claim must be adjudicated as a threshold issue, with the prosecution being quashed at the outset of the criminal case if the claim is justified.
• In the context of this discussion, the constitutionally prohibited ground we are confronting in India is the political or ideological affiliation of the accused.
• It is an arbitrary ground that violates the Article 14 guarantee of equal protection of the law.

Approach of judiciary

• Our courts have not recognised selective prosecution as an independent claim.
• This is because courts assume that lawfulness of prosecution can only be taken up after the trial, if the accused is acquitted.
• The 2018 Report of the Law Commission on ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ discusses remedies for wrongful prosecution available only if and after the accused is acquitted.
• Remedy after acquittal comes far too late, well after a brutal and long drawn out criminal justice process that upends the lives of the victims.
• Also, the right against selective prosecution cannot be extinguished by conviction.
• Separate from post-acquittal actions for wrongful prosecution (which will still be available), the claim of selective prosecution is a threshold issue that is required to be adjudicated at the outset of criminal proceedings even during the investigation stage irrespective of the merit of the charges.

Importance of Goswami case

• The case provides a much needed and long awaited legal opening to strengthen the recognition and use of the selective prosecution claim in India to counter politically coloured prosecution.
• The judgment says, “Courts should be alive to the needof ensuring that the law does not become a ruse for targeted harassment ”.
• The Goswami judgment also quotes the 2018 Supreme Court holding in Romila Thapar v. Union of India that, “[T]he basic entitlement of every citizen who is faced with allegations of criminal wrongdoing is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21.”

Consider the question “How selective prosecution could threten the liberty of person? How Indian judiciary approaches the issue of selective prosecution and what are the issue with the approach adopted by the judiciary?”

Conclusion

To strengthen the protection of civil liberty, equality and democracy, it is time our courts — at all levels — recognise selective prosecution as a threshold constitutional defence against the abuse of police and prosecutorial power.

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The article examines the larger issue of powers of the Speaker under 10th Schedule and the current interim order of the Rajasthan High Court.

Context

• The Rajasthan High Court had admitted the petition by the Congress faction group challenging the notice of the Speaker.
• In the interim order, the High Court had ordered to maintain the status quo.

Why Kihoto Hollohan Case matters

• The Kihoto Hollohan decision of the Supreme Court delivered in 1992 forms the basis in such decisions.
• The Constitution Bench which heard it was split 3:2.
• The majority on the bench upheld the constitutionality of the Tenth Schedule of the Constitution.
• The High Court is not empowered to unsettle Kihota Hollohan and must apply its ratio that the Chairman/Speaker is the final arbiter on the disqualification of a member.
• Rajasthan High Court has raised the issue about whether disqualification under Tenth Schedule is applicable in the case of “intra-party dissent”.
• Para 2(1) a of 10th Schedule deals with disqualification of a member of a House belonging to any party “if he has voluntarily given up his membership of such political party”.

Let’s look at what the Supreme Court said  in Kihoto Hollohan case:

“paragraph 2 of the Tenth Schedule of the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected members of Parliament and the legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended”.

Consider the question “Examine the issue of powers of Speaker/Chairman in the matters of disqualification of the member against the powers of the Courts in such matters. What are the reasons for frequent frictions between the two authorities on this matter?”

Conclusion

The high courts and the Supreme Court routinely refuse to interfere in matters where the concerned authority has merely issued a show-cause notice or granted an opportunity of being heard. So, it must fix the issue raised by the Rajasthan High Court interim order.

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The article discusses the relation between the judiciary and the legislature. Recent development in Rajasthan assembly serves as the backdrop.

Context

• The political tussle in Rajasthan entered the High Court and the Supreme Court.
• The Supreme Court itself proposed to rule on the larger question of the jurisdiction of courts to entertain such pleas.

Historical background

• The President of India made a presidential reference to the Supreme Court on the relative powers of legislative assemblies and constitutional courts.
• The Supreme Court held that there is a broad separation of essential powers of each organ of the State.
• However, the Court went on to hold that a judge who entertains a petition challenging any order of the legislature does not commit contempt of the said legislature.
• Since then court have restrained themselves from interfering in the workings of legislative assemblies or Parliament is concerned.
• The sole exception is under the anti-defection law-after a final order of disqualification has been passed.

Let’s look into Kihoto Hollohan’s case

• Constitution bench of the Supreme Court in 1992 held that the Speaker acting in a disqualification matter acts as a tribunal and is subject to judicial review.
• However, the same judgment makes it clear that the Court will not intervene at an interim stage.
• The same judgment further holds the Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.

Let’s now look into Rajasthan episode

• In this case, issuance of a possible disqualification notice by the Speaker, has been contested in constitutional courts.
•  Even in routine petitions against notices of proposed administrative actions, the petitioner is told to answer the show cause notice and to challenge the final action only.
• The Rajasthan High Court, however, entertained a petition to challenge the Speaker’s authority to decide, if MLAs had committed an act of defection.
• The Rajasthan High Court reserved its judgment, requested the Speaker to defer further proceedings and proceeded to direct him to await judgment.

Co-equality of Constitutional authorities

• Rajasthan assembly Speaker moved the Supreme Court, questioning the court’s power to direct a Constitutional authority.
• The principle of law applied is that Constitutional authorities cannot issue directions to each other.
• They can, at best, make a polite request.
• The single judge in Calcutta, recorded in his judgment that the Supreme Court was only co-equal with the High Court, as a Constitutional Court.
• Appellate powers of the Supreme Court did not make it a superior authority to which the High Court was subordinate.
• Ever since, the Supreme Court has been careful to couch its orders as requests to any High Court, or Constitutional authority.
• Constitutional courts have followed the same principle, in addressing other Constitutional authorities.

Role of judiciary in maintaining the balance

• Unnecessary conflict between organs of state may well invite some Speaker, backed by a solid majority at State and Centre, to defy the courts.
• Courts are apolitical but keep getting pulled into political thickets, especially in matters of mass defections resulting in regime change.
• The walls of separation between constitutional organs, once breached, cannot be then repaired against future intrusions.

Consider the question “Analyse fine balance Indian Consitution strikes between the various Constitutional authorities. Also examine how role of judiciary in dealing with the anti-defection law.”

Conclusion

Even under a sovereign Constitution, parliamentary and legislative supremacy in their areas of working must be respected.

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Context

On March 31, the Supreme Court of India (SC), entertaining a writ petition under Article 32, passed an order which raises more questions than it seeks to answer.

What were the issues involved in the writ petition?

• The writ petition was purportedly filed in the public interest, “for redressal of grievances of migrant workers in different parts of the country”.
• Directions which are in favour of the Union government: The Court has proceeded to issue several directions which are clearly in favour of the respondent, the Union of India.
• The following three directions were uncalled for:

What were the directions issued by the Supreme Court?

• One, that under section 54 of the Disaster Management Act, 2005, persons can be punished with imprisonment, which may extend to one year, or with a fine for making or circulating a false alarm or warning.
• Disobedience of the order including an advisory by a public servant would result in punishment under section 188 of the IPC.
• Two, all concerned, that is the state government, public authorities and citizens will faithfully comply with directives, advisory and orders issued by the Union of India in letter and spirit in the interest of public safety.
• Three, the media should only refer to and publish the official version of the Government of India, publishing a daily bulletin.
• The SC observations about migrant labourers: After giving substantial reliefs to the Union of India, the SC proceeded to make mere observations about migrant labourers by directing that they should be dealt with “in a humane manner”.
• And that “trained counsellors, community leaders and volunteers must be engaged along with the police to supervise the welfare activities of migrants”.
• The SC has virtually absolved the government for its handling of the situation.

What was the basis for issuing orders and issues with it

• The basis of the directions is a statement made by the Solicitor General of India and some status reports to the effect that “the exodus of migrant labourers was triggered due to panic created by some fake/misleading news and social media”.
• What is an issue with basis? The SC has proceeded on assumptions and surmises which were untested and unchallenged.
• What the court should have done? In a matter of such seriousness, the least it should have done was to have appointed an amicus curiae (a friend of the court) to assist it rather than simply accept the self-serving status reports and statements made before it.
• The Court overlooked the fact that in India, hundreds of millions of people work during the day and are paid at the end of the day and then go and buy their foodstuffs.
• They have no savings, nor do they have foodgrains stored.
• It is surprising that the Court, the custodian of fundamental rights, should be oblivious to this reality.

Issue of press freedom

• Citizens have the right to freedom of speech and expression. Press freedom is a part of this. Citizens have the right to receive information as well.
• Article 13 (2) of the Constitution says that the state cannot make any law which takes away or abridges the fundamental rights.
• If Parliament cannot do so, the Supreme Court — the upholder of the constitutional rights — surely cannot do so.
• The SC has itself held in M Nagraj (2006): “A right becomes a fundamental right because it has foundational value. The fundamental right is a limitation on the power of the State. A Constitution, and in particular that part of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled, is to be given a generous and purposive construction.”
• The SC should not have made all media subservient to the government by directing that the former “refer to and publish the official version about the developments”.
• Such an order could be justified only during an emergency and that too by the executive, subject to challenge before the courts.

Conclusion

The SC has given a carte blanche to the authorities, and citizens appear to have no avenues of redress. Most of all, by condemning the media and social media, holding them responsible for fake news, the SC has done a great disservice to the institution which provides information to citizens and upholds democracy.

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Context

In a highly unusual move, a nine-judge Bench of the Supreme Court resorted to a non-speaking order as it ruled affirmatively on the preliminary issue arising out of the Sabarimala review petition.

Departure from norms

• The importance of a ‘reasoned decision’ in a constitutional democracy committed to the rule of law, is self-evident.
  • Its importance cannot be overstated and this curious departure from the norm merits close analysis.
• Time and again, the Supreme Court has unequivocally endorsed and underlined the requirement of giving reasons in support of the order.
  • The SC has often chastised subordinate institutions for their failure to supplement their orders with reasons.

Importance of ‘reasoned decision’

• The juristic basis for the ‘reasoned decision’: The juristic basis for this has also been explored in a number of cases.
• In various decisions, the court has ruled that speaking orders promote-
  • Judicial accountability and transparency.
  • Inspire public confidence in the administration of justice; and
  • Introduce clarity and minimise the chances of arbitrariness.
• Quotes from various judgements: In addition to being a “healthy discipline for all those who exercise power over others”, recording of reasons has been described by the Supreme Court as the “heartbeat of every conclusion”; the “life blood of judicial decision making”; and a cherished principle of “natural justice”.
• The Madhya Pradesh Industries Ltd case: In this case Justice Subba Rao K. stated:
  • “The condition to give reasons introduces clarity and excludes or at any rate minimises arbitrariness;”
  • “… it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the tribunals within bound… Speaking order will at its best be reasonable and at its worst be at least a plausible one.”

Devaluation by the SC and implications

• Implicit rules: The need for a court to provide an intellectual substrate for its decisions is also implicit in the expression “pronounce judgment” in Supreme Court Rules, 2013.
  • According to settled decisions, the same signifies “judicial determination by reasoned order”.
• However, when it came to applying the principle to its own verdict, the apex court has inadvertently devalued the importance of concurrent reporting of reasons.
  • The court seems to have downplayed the fact that it may be coming across as inarticulate at best and indecisive at worst.
• Undermining integrity: Besides undermining institutional integrity, a decision’s authority as a binding precedent is also potentially compromised by this omission.

Culture of justification

• The term “transformative constitutionalism” has recently found currency in constitutional adjudication (Navtej Joharand Joseph Shine).
  • The Supreme Court is yet to articulate a comprehensive theory of the concept but it has been fleshed out in other jurisdictions.
• From authority to justification: For example, Pius Langa, former Chief Justice of the Constitutional Court of South Africa, argued that “transformative constitutionalism” entails a transformation of legal culture from one “based on authority” to the one “based on justification”.
• Karl Klare (the scholar who coined the term) posited that it may be legitimately expected of constitutional adjudication to “innovate and model intellectual and institutional practices appropriate to a culture of justification”.

Conclusion

In light of the above, it can be concluded that the practice of issuing non-speaking orders and giving post-hoc rationalisations later is an anathema to the principle of constitutional governance. Duty to give reasons is an incident of the judicial process and constitutional justice should not be a matter of afterthought.

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Context

The recent judgment in Rekha Murarka vs The State Of West Bengal, the SC has held that the victims’ private counsel cannot orally examine or cross-examine the witnesses.

Place of the victim in the present criminal justice system

• Removed from the proceedings: Under our criminal justice system, victims find themselves removed from the proceedings.
  • Their identities are reduced to being mere witnesses.
  • The harm they suffer is reduced to being aggravating or mitigating factors at the time of sentencing.
  • Stage props in a larger scheme: With the state appropriating their victimisation, the actual victims become mere stage props in a larger scheme.
• Need of The victim-centric notion of justice-Law Commission suggestion: In 1996, the 154th Law Commission Report suggested a paradigm shift in India’s criminal justice system towards a victim-centric notion of justice.
  • Partial acceptance: The Code of Criminal Procedure (Amendment) Act, 2009 partially accepted the Law Commission suggestion and granted some rights to the victims of crime.
  • The Act introduced victims’ right to a private counsel under Section 24(8).
  • Move toward victim’s participation: The Code of Criminal Procedure already allowed for pleaders engaged by private persons to submit written arguments with the permission of the court under Sections 301(2) and 302 allowed a person to conduct the prosecution with permission of the court.
  • These sections were read together to partially secure the victims’ right to participation.

Steps take  towards securing justice for victims

• Right to legal assistance to victims of sexual assault: In the case of Delhi Domestic Working Women’s Forum v. Union of India (1994), the SC called for the extension of the right to legal assistance to victims of sexual assault at the pre-trial stages.
• The SC opinion over asymmetry in rights of victims and the accused: In Mallikarjun Kodagali (Dead) … vs The State Of Karnataka (2018), the Court accepted that under the criminal justice system, the rights of the accused far outweigh the rights of the victim.
• Introduction of victim impact statement right to appeal against the adverse order: The Supreme Court not only called for the introduction of a victim impact statement in order to guarantee the participation of the victim in the trial proceedings.
  • The SC also reinstated the victims’ right to appeal against an adverse order.

Provisions on the international level for the victim’s participation

• Despite these advances, the scheme of victim participation remains far removed from the ideals embedded in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; India is a signatory.
  • What does the declaration require? It requires that the views and concerns of victims should be allowed and considered at all appropriate stages without prejudice to the accused.
• Need to increase the victims’ advocate’s role: Presently, the victims’ advocate has an extremely limited role to play wherein he “assists” the prosecutor rather than represent the interests of the victim before the court.
  • The only substantial opportunity provided to a private counsel is after the closing of evidence when written arguments may be submitted to the court only after seeking the permission of the court.
• Contrast with ICC: In contrast, the International Criminal Court (ICC) provides for victim participation at the stage of-
  • First, a challenge to the jurisdiction of the ICC.
  • Second, framing of charges.
  • Third, opening and closing statements.
  • Fourth, making a written submission wherever the personal interests of the victims are affected.
  • And finally, for presenting witnesses to give evidence on issues relating to the personal interests of the victims.

What the SC judgement means

• Missed opportunity: The Supreme Court in Rekha Murarkahas missed the opportunity to forward the jurisprudence on victim justice and rectify the lacunae in our laws.
  • Instead, the judgment goes against the jurisprudential current specified above.
  • Indeed, the victim’s right to participation cannot be secured by restricting the rights of the accused.
• Why the victim’s advocate is not allowed the right to participate in the SC’s opinion: According to the judgment, a victim’s advocate cannot be allowed the right to participate because-
  • First- Insistence by the victim’s counsel to examine a witness deliberately left out by the prosecution may weaken the prosecution’s case;
  • Second– The trial will derogate into a “vindictive battle” between the victim’s counsel and the accused.
  • Third- A lack of experience on the part of the victim’s counsel may lead to lapses.
• The problem in the SC ruling: The judgment further assumes that prosecutions effectively take the victim’s needs into account.
  • SC ignored why the need for private counsel arise: The judgement ignores the fact that the need for a private counsel arises precisely because intentional or unintentional prosecutorial lapses directly lead to injustice to the victims.
  • The court expects the victim’s counsel to make the prosecutor aware of any aspects that have not been addressed in the examination of witnesses or the arguments advanced by the public prosecutor.
  • In the process, it assumes that the prosecutor will address such lapses.

Conclusion

Under the role currently envisaged in our criminal justice system, the public prosecutor cannot sufficiently take into account the interests, needs and requirements of the victims. The cause of victim justice would be greatly served if the Supreme Court decided to revisit its reasoning and assumptions to appropriately amend this provision in light of the above.

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