SC Must Stem Rot Before It Stinks

The Supreme Court of India is beset with galore of controversies. At the beginning of this year, four of its senior most judges- Jasti Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph- held a Press Conference saying that ‘all is not well’ in the Supreme Court of India. This triggered the opposition parties to move for the impeachment of the Chief Justice of India Dipak Misra. However, the impeachment proceedings could not be carried forward because the entire last session of both houses was washed out due to the ruckus and pandemonium inside the house by one or the other opposition party. Thereafter two of its judges sent missives to the CJI requesting him to take immediate measures to set right the Court’s functioning.

Adding fuel to fire the former Law Minister and very senior advocate Shanti Bhushan and his son Prashant Bhushan, also a celebrated advocate, filed Public Interest Litigation in the Supreme Court for the constitution a five-judge bench to decide as to which case was to be heard by which bench. They further asked the Registrar General of the court not to list the matter before the Chief Justice of India. This part of their prayer virtually amounts to no confidence in the Chief Justice, which many consider being inappropriate. Prashant Bhushan mentioned this issue before Justice Chelameswar on 12^th April 12, 2018, for early hearing but it was rejected by him with a sarcastic tinge that he would not like his order to be reversed by the larger bench in 24 hours. Assigning of the cases has been the main cause of contention. In their letter of 12^th January 2018 to the Chief Justice, the four senior-most judges had said ‘there have been instances when cases having far-reaching consequences for the nation and the institution have been assigned by the CJI selectively to Benches of their preference without any rational basis for such assignment.’

In the meantime Justice Kurian  also wrote a letter to the Chief Justice of India with copy to all other 22 judges of the Supreme Court saying that, ‘the very existence of the Supreme Court is under threat and history will not pardon us, if the court does not respond to the government’s unprecedented act  of sitting on the collegium recommendation to elevate a judge and a senior advocate to the apex court’. He urged the Chief Justice to establish a bench of seven judges to suo motu take up the matter government sitting on the two names.  If this demand is accepted, it would effectively mean an open court hearing by the judges who could pass orders asking the government to decide on the pending recommendations of the Collegium. They could even direct the government to issue the warrants for appointments of judges within a stipulated time frame and failure to do so make the government liable for contempt of court. Justice Kurian even suggested that following the precedent in Justice Karnan’s case, the Supreme Court should take up the mater on the judicial side. Most remarkably, he added, that while Justice Karnan’s case was a threat to the ‘dignity of the court’, the present one is a threat to the ‘very life and existence’ of the institution.

What has, however, taken the cake is that a petition of a lawyer Ashok Pande, who is credited to have filed more than two hundred PILs on various issues, mostly in the Allahabad High Court. He filed his PIL within four days of the press conference of four senior-most judges of the Supreme Court. Shri Pande in his petition besides asking for transparency in the allocation of cases also suggested for a pattern to be adopted by the Supreme Court for constituting and assigning the cases to the benches. His all suggestions were disdainfully dismissed by the Bench of CJI Dipak Misra, AM Khanwilkar, and DY Chandrachud. The author of the judgment Justice Chandrachud said, ‘the relief which the petitioner seeks is manifestly misconceived. For one thing, it is a well-settled principle that no mandamus can be issued to direct a body or authority which is vested with a rulemaking power to make rules in a particular manner. The Supreme Court has been authorized under Article 145 to frame rules of procedure. A mandamus of nature sought cannot be issued. Similarly, the petitioner is not entitled to seek a direction that Benches of this Court should be constituted in a particular manner or, as he seeks, that there should be separate divisions of this Court. The former lies exclusively in the domain of the prerogative powers of the Chief Justice’.

The Court further said that ‘apart from the fact that the relief sought is contrary to legal and constitutional principle, there is a fundamental fallacy in the approach of the petitioner, which must be set at rest. The petitioner seeks the establishment of a binding precept under which a three-judge Bench in the Court of the Chief Justice must consist of the Chief Justice and his two senior-most colleagues. While the Constitution Bench should consist of five senior-most judges (or, as he suggests, three ‘senior-most’ and two ‘junior-most’ judges). There is no constitutional foundation on the basis of which such a suggestion can be accepted. This would intrude into the exclusive duty and authority of the Chief Justice to constitute benches and to allocate cases to them. The petitioner seems to harbour a misconception that certain categories of cases or certain courts must consist only of the senior-most in terms of appointment. Every Judge appointed to this Court under Article 124 of the Constitution is invested with the equal duty of adjudicating cases which come to the Court and are assigned by the Chief Justice. Seniority in terms of appointment has no bearing on which cases a Judge should hear. It is a settled position that a judgment delivered by a Judge speaks for the court (except in the case of a concurring or dissenting opinion). The Constitution makes a stipulation in Article 124(3) for the appointment of Judges of the Supreme Court from the High Courts, from the Bar and from amongst distinguished jurists. Appointment to the Supreme Court is conditioned upon the fulfilment of the qualifications prescribed for the holding of that office under Article 124(3). Once appointed, every Judge of the Court is entitled to and in fact, duty bound, to hear such cases as are assigned by the Chief Justice. Judges drawn from the High Courts are appointed to this Court after long years of service. Members of the Bar who are elevated to this Court similarly are possessed of wide and diverse experience gathered during the course of the years of practice at the Bar. To suggest that any Judge would be more capable of deciding particular cases or that certain categories of cases should be assigned only to the senior-most among the Judges of the Supreme Court has no foundation in principle or precedent. To hold otherwise would be to cast a reflection on the competence and ability of other judges to deal with all cases assigned by the Chief Justice notwithstanding the fact that they have fulfilled the qualifications mandated by the Constitution for appointment to the office.’

Thus, now it has become abundantly clear that the CJI is the master of the roster. The Court elucidated that the constitution of Benches and the allocation of cases by the Chief Justice must be regulated by a procedure cast in iron is the apprehension that in absence of such a procedure the power will be exercised arbitrarily. In his capacity as a Judge, the Chief Justice is primus inter pares: the first among equals. In the discharge of his other functions, the Chief Justice of India occupies a position which is sui generis. From an institutional perspective, the Chief Justice is placed at the helm of the Supreme Court. In the allocation of cases and the constitution of benches, the Chief Justice has an exclusive prerogative. As a repository of constitutional trust, the Chief Justice is an institution in himself. The authority which is conferred upon the Chief Justice, it must be remembered, is vested in a high constitutional functionary. The authority is entrusted to the Chief Justice because such an entrustment of functions is necessary for the efficient transaction of the administrative and judicial work of the Court. The ultimate purpose behind the entrustment of authority to the Chief Justice is to ensure that the Supreme Court is able to fulfil and discharge the constitutional obligations which govern and provide the rationale for its existence.’

 In view of this imprimatur, the authority of Chief Justice of India as the Master of Roster is firmly established. But it appears that the imbroglio is not going to die down soon. Many eminent former judges have criticised the CJI for hearing the case which pertains to him and thus has violated the principle of natural justice nemo judex causa sua (nobody can be a judge in one’s own case). Such spats certainly erode the faith in the institution and therefore must be stemmed before it rots and stinks.

Appeasement Policy is Counterproductive

It is a historical fact that before independence the Congress Party was identified with Hindus and Muslims were with the Muslim League. Only a few Muslim leaders like Maulana Abul Kalam Azad and Rafi Ahmad Kidwai were with the Congress Party .They were sarcastically called the ‘show pieces’ of the Congress Party by M.A. Jinnah. It was more or less true also because they did not have any hold over Muslims of India. What is, however, very surprising is that immediately after the partition of the country; Indian Muslims switched sides and became the ardent supporters of the Congress Party. Ordinary Muslims of India were used as sentimental cannon fodders by the feudal and rich Muslims, who spearheaded the movement for creation of Pakistan. What an irony that Muslims fought for the creation of Pakistan with MA Jinnah but stayed back in India, which kept alive the communal problems of the country.

The myopic Indian leadership not only failed to handle the communal problems but kept the embers of Muslims communalism burning for vote banks. The initial beneficiary was the Congress Party but later other semi-literate politicians of regional parties fueled the fire of Muslim Communalism for the same vote banks. These short-sighted leaders got the Hindus divided in the name of castes and creeds, again; for serving their own ends.

During previous ten years of UPA regime another dirty game was played by Chidambarams and Shindes at the instance eminence grise (this French word is pronounced as emino griz, which means a person who does not hold any post but wields much power), like Sonia Gandhi for maligning the Hindus by branding them as communal and Hindu terrorists. That is how many false cases were slapped on them in Malegaon, Samjhauta Express, and Mecca Masjid terrorists’ incidents. Their nefarious game of painting the Hindus with black brushes is now becoming clearer as all the cases are falling flat in the courts of law. Their malicious designs have done much harm to the country that real culprits have never been caught. The way the Kathua rape case is being handled by implicating Hindus is a matter of serious concern, which is clear from the charge sheet and the lopsided investigation. Lest the real culprits slip away from the noose of the law is very disquieting.

Lest Rapist of Kathua Girl Go Scot-free

Rape and murder of an eight-year-old girl Asifa in Jammu’s Kathua district are so horrendous that it can make anybody restless. Only a devil or monster in the human form could have done it. But look at those, who are most vociferously asking for justice to Asifa? They are those, who have been stone pelters and their sympathizers, rapists of Kashmiri women and killers of innocents, who are the loudest in their demand for justice to the poor girl.
It is a well-known fact that nomadic Bakerwal community is very loyal to India. This community has been giving vital information to the Indian army from time to time about the infiltration of the cross-border terrorists. This community, of cattle grazers, mostly remains mobile in the rough terrains and jungles. Bakerwals do not stay permanently at any particular place giving them the advantage of knowing the movements of suspicious the people. That is why; they succeed in identifying the enemies where even the Indian military intelligence fails. Bakerwals were the first to inform the Indian army about the base camps of Pakistani regulars in Kargil area some two decades ago. They have never been at loggerheads with the Hindus, who are in majority in the Jammu region.The incident has put the humanity to shame and sooner the culprits are brought to book the better. However, there are some gaping holes in the charge sheet that has been submitted before the Chief Judicial Magistrate of Kathua, which has been published verbatim in the Firstpost. It is for the prosecution and the defense to prove their case in the court of law. Nevertheless, one cannot resist asking a question why Rohingya factor has not been looked into? One cannot lose sight of the fact that for the last five-six years after the large-scale settlement of Rohingyas, with the active support of the government, in the Jammu region crimes and clashes have gone up manifold. So if the local populace is asking to inquire into the role of the illegal settlers, there appears to be nothing wrong in it
The incident took place more than three months ago, but nobody of any significance bothered about it. The charge sheet was prepared by an officer of dubious integrity. The former Chief Minister Omar Abdullah, the tweet master, who was very boisterous on this issue or, for that matter, any opposition leader never visited the place. People of the area have been simply demanding that inquiry should be done by the CBI, which certainly enjoys more credibility than the local police, known for the communal virulence.Again there is nothing wrong with this demand.
What was done with that innocent girl was abominable, diabolic and so chilling as to cause goosebumps but if, after shoddy and botched up inquiry, some more innocents are punished and real culprits go scot-free, then it will be an enormous travesty of justice with the departed soul of Asifa.May she rest in peace but the demons of perpetrators of crime on her must get the harshest and exemplary punishment.

Stop Barbaric Practice of ‘Honour Killing’: S. C.

It is true that love knows no boundaries, but it is equally true that there are many enemies of the true love. The biggest obstacles that have been coming in the way of the love of two adult couples in the recent years are the Chap panchayats. These Khap Panchayats of Haryana, Rajasthan and western Uttar Pradesh wield enormous authority and influence, particularly in the Jat community. These Khap Panchayats not only decide the cases of community disputes but also take up the roles of cruel executioners. Such Panchayats do not have any legal sanctity, yet governments do not muster the courage to effectively implement the orders of the courts even if they come from the Supreme Court. Courts have expressed their resentments, number without times, on the crimes committed in the name of defending the honour of caste, clan or family and yet they are committed in various parts of the country. The Supreme Court has now come down heavily on those, who have been committing such crimes, without much fear, for the sake saving the honour of the family or caste. It is true that there are many well entrenched and abominable social prejudices and therefore, it is difficult to eradicate them overnight through law or judicial pronouncements.

The Supreme Court has said that when the ability to choose is crushed in the name of class honour and the person’s physical frame is treated with absolute indignity, a chilling effect dominates over the brains and bones of the society at large. The question that poignantly emanates for consideration is whether the elders of the family or clan can ever be allowed to proclaim a verdict guided by some notion of passion and eliminate the life of the young who have exercised their choice to get married against the wishes of their elders or contrary to the customary practice of the clan. The answer has to be an emphatic “No”. Class honour, howsoever perceived, cannot smother the choice of an individual which s/ he is entitled to enjoy under our compassionate Constitution. And this right of enjoyment of liberty deserves to be continually and zealously guarded so that it can thrive with strength and flourish with resplendence.

The petitioner-organization ’Shakti Vahini’ was authorized for conducting Research Study on “Honour Killings in Haryana and Western Uttar Pradesh” by an order of the National Commission for Women. It is contended in the petition that the existence of a woman in such an atmosphere is entirely dependent on the male view of the reputation of the family, the community, and the milieu. The action of a woman or a man in choosing a life partner according to her or his own choice beyond the community norms is regarded as dishonour which, in the ultimate eventuate, innocently invites death at the cruel hands of the community prescription. The reputation of a woman is weighed according to the manner in which she conducts herself, and the family to which the girl or the woman belongs is put to pressure as a consequence of which the members of the family, on certain occasions, become silent spectators to the treatment meted out or sometimes become active participants forming a part of the group either due to determined behaviour or unwanted sense of redemption of family pride.

The pernicious practice of Khap Panchayats and the like taking law into their own hands and pronouncing on the invalidity and impropriety of Sagotra and inter-caste marriages and handing over punishment to the couple and pressurizing the family members to execute their verdict by any means amounts to flagrant violation of rule of law and invasion of personal liberty of the persons affected. Sagotra marriages are not prohibited by law, whatever may be the view in olden times. The Hindu Marriage Disabilities Removal Act, 1946 was enacted with a view to dispelling any doubts in this regard. The Act expressly declared the validity of marriages between the Hindus belonging to the same ‘gotra’ or ‘pravara’ or different sub-divisions of the same caste. The Hindu Marriage Act does not prohibit sagotra or inter-caste marriages.  Earlier in Lata Singh’s case, the Supreme Court had opined about Khap Panchayats that we are of the opinion that this is wholly illegal and has to be ruthlessly stamped out. There is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment

 As a matter of fact, the concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity, protection and the values it stands for. It is the obligation of the Constitutional Courts as the sentinel on qui vive to zealously guard the right to liberty of an individual as the dignified existence of an individual has an inseparable association with liberty. Without sustenance of liberty, subject to constitutionally valid provisions of law, the life of a person is comparable to the living dead having to endure cruelty and torture without protest and tolerate the imposition of thoughts and ideas without a voice to dissent or record a disagreement. The fundamental feature of dignified existence is to assert for dignity that has the spark of divinity and the realization of choice within the parameters of law without any kind of subjugation. The purpose of laying stress on the concepts of individual dignity and choice within the framework of liberty is of paramount importance.

Life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of the identity of a person. The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is an erosion of choice. When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation. The majority in the name of class or elevated honour of clan cannot call for their presence or force their appearance as if they are the monarchs of some indescribable era who have the power, authority and final  say to impose any sentence and determine the execution of the same in the way they desire possibly harbouring the notion that they are a law unto themselves or they are the ancestors of Caesar or Louis the XIV. The Constitution and the laws of this country do not countenance such an act, and, in fact, the whole activity is illegal and punishable as an offense under the criminal law.

The Supreme Court han as now asked the State Governments to adopt preventive, remedial and punitive measures to stop this nefarious practice of honour killings. As far as preventive steps are concerned the State Governments should forthwith identify Districts, Sub-Divisions and/or Villages where instances of honour killing, or assembly of Khap Panchayats have been reported in the recent past, e.g., in the last five years. Home Department of the concerned States shall issue directives/advisories to the Superintendent of Police of the concerned Districts for ensuring that the Officer In charge of the Police Stations of the identified areas are extra cautious if any instance of inter-caste or inter-religious marriage within their jurisdiction comes to their notice

If despite the preventive measures  any Khap Panchayat has taken place and it has passed any diktat to take action against a couple/family of an inter-caste or inter-religious marriage (or any other marriage which does not meet their acceptance), the jurisdictional police official shall cause to immediately lodge an F.I.R. under the appropriate provisions of the Indian Penal Code. Upon registration of F.I.R., intimation shall be simultaneously given to the Superintendent of Police/ Deputy Superintendent of Police who, in turn, shall ensure that effective investigation of the crime is done and taken to its logical end with promptitude.  Additionally, immediate steps should be taken to provide security to the couple/family and, if necessary, to remove them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception. And lastly, upon the failure by either the police or district officer/officials to comply with the aforesaid directions shall be considered as an act of deliberate negligence and/or misconduct for which departmental action must be taken under the service rules. The departmental action shall be initiated and taken to its logical end, preferably not exceeding six months, by the authority of the first instance. The State Governments shall create Special Cells in every District comprising the Superintendent of Police, the District Social Welfare Officer to receive petitions/complaints of harassment of and the threat to couples of inter-caste marriage.

Honour killings need to be consigned to the dustbins of history sooner than later.