Witness Protection is Necessary for Fair Justice

                                                     Parmanand Pandey

The Supreme Court has again voiced its concern for the safety of witnesses, particularly in criminal cases.  The criminal justice is essentially an adversarial system, where the cases are decided on the basis of evidence, be it documentary or oral. Therefore, witnesses play a vital role in facilitating to arrive at correct findings. They are the backbones in the decision-making process.

In ‘Mahender Chawla and others vs Union of India and others’, the Supreme Court has said that whenever, in a dispute, the two sides come out with conflicting version, the witnesses become an important tool to arrive at right conclusions, thereby advancing justice in a matter. It is for this reason that the Legal philosopher Jeremy Bentham stated that “witnesses are eyes and ears of justice”.

A witness may be a partisan or interested witness but even then, his testimony is relevant, though, stricter scrutiny is required while adjudging the credence of such a victim. A witness is “a person whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences”. The author of the judgement Justice A.K. Sikri has expressed his anguish over the pathetic condition of witnesses in the Indian Legal System. There are many threats faced by the witnesses at various stages of an investigation and then during the trial of a case. Apart from facing the life-threatening intimidation to himself and to his relatives, he may have to face the trauma of attending the court regularly. Because of the lack of ‘Witness Protection Programme’ in India and the treatment that is meted out to them, there is a tendency of reluctance in coming forward and making a statement during the investigation and/or testify in courts. These witnesses neither have any legal remedy nor do they get suitably treated. The present legal system takes witnesses completely for granted. They are summoned to court regardless of their financial and personal conditions. Many times, they are made to appear long after the incident of the alleged crime, which significantly hampers their ability to recall necessary details at the time of the actual crime. They are not even suitably compensated for the loss of time and the expenditure towards conveyance etc.

In Swaran Singh vs. the State of Punjab, Justice Wadhwa had said the witnesses are harassed a lot. They come from distant places and see the case is adjourned. They have to attend the court many times on their own. It has become routine that case is adjourned until the witness is tired and will stop coming to court. Sometimes a witness is threatened, attacked, or even bribed. There is no protection to the witnesses. By adjourning the case the court also becomes a party to such miscarriage of justice. The witness is not given respect by the court. They are pulled out of the courtroom by the peon. After waiting for the whole day, he sees the matter is adjourned.

There is no proper place for him to sit and drink a glass of water. When he appears, he is subjected to prolong cross-examinations and cross-examinations. Even the qualified Doctors, who come to the courts to depose in medico-legal cases are meted out very shabby treatments as if they themselves are the accused persons For these reasons’ persons avoid becoming a witness and because of this administration of justice are hampered. The witnesses should, therefore, be paid immediately irrespective of the fact whether he is examined, or the matter is adjourned. The time has come now that all courts should be linked with each other through the computer. The Bar Council of India has to play important role in this process to put the criminal justice system on track. The liberal use of technology can go along way in keeping the witnesses from avoidable harassment. Their statements and cross-examination be executed from the safety their homes and workplaces. There is no need for them to make rounds of the courts.

The Apex Court said that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offences, or where the accused persons are influential. They terrorize or intimidate the witnesses because of which these witnesses either avoid coming to courts or refrain from deposing truthfully. This unfortunate situation prevails because of the reason that the State has not undertaken any protective measure to ensure the safety of these witnesses, commonly known as ‘witness protection’.

One of the reasons may be that they do not want lock horns with criminals and influential persons by deposing against them because of threats to their lives, more so when the offenders are hardened criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. The State, therefore, has a definite role to play in protecting the witnesses. As a protector of its citizens, it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for the observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology.

In one of the cases, the Supreme Court has said that the mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in a miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross-examination are given in writing to the presiding officer of the court, who may put the same to the victim or witnesses in a language which is not embarrassing.

In State v. Sanjeev Nanda, the Court reiterated the growing disturbing trend.  In ‘State of U .P. v. Ramesh Prasad Misra’ held that it is equally settled law that the evidence of a hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.. When the witnesses are not able to depose correctly in the court of law, it results in the low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is, for this reason, there has been a lot of discussion on witness protection and from various quarters. Demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty.

In the cases of victims of terrorism and sexual offences against women and juveniles, the courts have to deal with a very vulnerable section of society, be they, victims or witnesses. The victims and witnesses are under fear of or danger to their lives or lives of their relations or to their property. It is obvious that in the case of serious offences under the Indian Penal Code, such fear or danger to victims and witnesses may be more common and pronounced. Obviously, if the trial in the case of special offences is to be fair both to the accused as well as to the victims/witnesses must be free. then there is no reason as to why it should not be equally fair in the case of other general offences of serious nature. It is the fear or danger or rather the likelihood thereof that is common to both cases. That is why several general statutes in other countries provide for victim and witness protection.

Therefore, the paramount need is to have a witness protection regime, in a statutory form, which all the stakeholders and all the players in the criminal justice system should concede. Live recording of the witnesses has become the need of the hour, which will reduce the difficulties of the witnesses and at the same time provide him/her adequate safety from the threat and intimidation of accused person. The statutory safety provision plus the use of modern technology can go a long way in providing the protection to the witnesses, which is necessary for the fair and unvitiated justice.

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Ominous flouting of Apex Court Order on Fire Crackers

‘Diwali gets noisier; more polluted despite SC curbs’ screams the newspaper headline. The most auspicious Hindu festival of Deepawali or Diwali is celebrated all over the country. On this day Laxmi and Ganesha are worshipped for bringing prosperity and happiness. The other reason is that people rejoice the return of Lord Rama to Ayodhya after his victory over the demon king Ravana. It also marks the harvesting of crops heralding the change of weather reminding us to protect and preserve the ecological balance. However, it has now become a very hazardous festival because of the uncontrolled use of firecrackers, although it is associated with lights and lamps. To curb and control the water and air pollution, Parliament passed the Environment Protection Act of 1986 but still, the level of pollution is going on unabated. The Supreme Court of India has played a sterling role by banning many factories to maintain the ecological balance and keep the water and air neat and clean, yet the noise pollution caused by the firecrackers have not only degraded the air quality but also engendered to many diseases.

In one of the recent judgements in ‘Arun Gopal and others vs Union of India and others’, the Supreme Court has ruled that only green firecrackers of low quality, that too only for two hours between 8.00 p. m. to 10.00 p.m. could be used, which if strictly followed would have improved the air quality across the country but sadly it was cared two hoots by the violators of the judgement, which included all-manufacturers, sellers and buyers of the firecrackers. Poor, very poor or severe air quality/air pollution affects all citizens, irrespective of their age. However, the petitioners emphasised more on the health of children because they are much more vulnerable to air pollutants as exposure thereto may affect them in various ways, including aggravation of asthma, coughing, bronchitis, retarded nervous system breakdown and even cognitive impairment.

This petition was initially filed in 2015, which has asked for among others to restrict licenses to low hazard fireworks, fireworks to be used only for hours in the evening and teachers must encourage students not to buy and use fireworks. After many long hearings, the Supreme Court decided last month that only the green crackers, with reduced emission, would be permitted to be manufactured and sold. Crackers with toxic effects would be banned. Manufacture, sale and use of joined firecrackers or series crackers were banned because they cause huge air, noise and solid waste problems. Only the licensed traders have been permitted to sell. According to the judgement no e-commerce websites, including Flipkart, Amazon etc., shall accept any online orders to effect online sales. If they do so, they will be hauled up for contempt of court. Barium salts in fireworks were banned. Even those crackers which have already been produced and they do not fulfill the conditions would not be allowed to be sold. Another important point of the judgement was that the governments would encourage community fire cracking as it is practised in other advanced countries. The Apex Court said that even for marriages and other occasions only the sale of improved crackers and green crackers would be permitted.

This judgement has indeed been very lofty one, which has been hailed by all right conscientious people, not only in India but all over the world. However, the implementation of the judgement has left much to be done and there has been a huge hiatus in the preaching and practice. The Diwali which has just gone by has left most of the people wonderstruck because the Supreme Court judgement was observed more in the breach than in compliance. The court had ruled that only low emission firecrackers would be allowed to be burst but the violators had used throughout the night without any fear of the law. The question, therefore, arises what is the sanctity of such orders when they cannot be enforced? In fact, unimplementable Court orders lower down the dignity and the majesty of the law. The Apex Court order was flouted in many ways –from burning non-green crackers to exceeding the time limit.

It must be mentioned here that the pollution in the city of Delhi has gone up 29 times more than tolerable limits. One can see the mornings and evenings in Delhi enveloped with smog. While deciding the case the Apex Court also took into consideration three substantial submissions which were made by the Central Pollution Control Board (CPCB) that (a) Sulphur in fireworks should not be permitted as Sulphur on combustion produces Sulphur Dioxide and the same is extremely harmful to health, (b) it should be burst only in designated places and (c) the joined crackers should be totally banned.

The Court observed that in environmental law, ‘precautionary principle’ is one of the well-recognised principles which is followed to save the environment. Some of the salient principles of “Sustainable Development”, as culled out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance to the developing countries. The Court said that “we are, however, of the view that the Precautionary Principle and the Polluters Pay Principle are essential features of “Sustainable Development”. The Precautionary Principle- in the context of the municipal law-means: Environmental measures — by the State Government and the statutory authorities — must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. The onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign.”

In view of the above-mentioned constitutional and statutory provisions, there should not be any hesitation in holding that the Precautionary Principle and the Polluters Pay Principle are part of the environmental law of the country. Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law. The constitutional and statutory provisions protect a person's right to fresh air, clean water and pollution-free environment, and it is the inalienable common law right of the clean environment”.

The Court ruled that environment protection is a facet of Article 21. It must be given supremacy over the right to carry on business enshrined in Article 19(1)(g). The Supreme Court said that ‘we state at the cost of repetition that right of health, which is recognised as a facet of Article 21 of the Constitution and, therefore, is a fundamental right, assumes greater importance than other rights. It is not only the petitioners and other applicants who have intervened in support of the petitioners, but the issue involves millions of persons living in Delhi and NCR, whose right to health is at stake. However, for the time being, without going into this debate in greater details, our endeavour is to strive at balancing of two rights, namely, right of the petitioners under Article 21 and right of the manufacturers and traders under Article 19(1)(g) of the Constitution.’ The aspect of economic hardship was also advanced by some, but the Court gave more importance to the protection of life as the economic effect must give way the protection of health.

Needless to say, that firecrackers have led to a high increase in the cases of asthma, coughing, bronchitis, retarded nervous system breakdown and even cognitive impairment. Some of the diseases continue on a prolonged basis. Some of these which are caused because of the high level of pollution is even irreversible. In such cases, patients may have to continue to get the medical treatment for a much longer period and even for life. However, it has now become loud and clear that only court decisions cannot bear the desired fruits because it involves a large section of society. Therefore, it needs a greater awakening of the people supported by the law enforcing authorities to strictly comply with court orders.

Court Cannot Resolve the Ayodhya Tangle

All Courts, right from the lower court to the Apex Court, have been dithering in pronouncing any judgement on Ayodhya and, in a way that is the correct approach also. In this context, it’s relevant to recall the obiter dicta of the former Chief Justice of India JS Khehar, who had suggested during one of the hearings of the Ayodhya case that all parties to the dispute must make sincere efforts to settle the issue amicably out of court.
Therefore, those who were expecting that the Supreme Court would start day-to-day hearing of the Ayodhya matter were extremely disappointed when the Chief Ranjan Gogoi led bench did not take even a minute to adjourn the case till January 2019. He also did not tell about the composition of the bench whether it would be headed by him or any new bench would be constituted to hear the case. The previous Chief Justice of India Dipak Misra had fixed the date of the 29th October 2018 for the day-to-day hearing. So all hopes of the early decision in the case from the Supreme Court are now dashed and shattered.
In one of the previous hearings, the senior advocate of the Sunni Waqf Board Kapil Sibbal wanted the hearings to be adjourned till July 2019 when the general elections of the Parliament would be over. Therefore, it must have warmed the cockles of the advocates like him and Rajiv Dhawan, who got the temporary relief without making any submission before the Court. There are no two opinions that a tiny minority has been holding the overwhelming majority to ransom and not allowing the Ram temple to be built. Sadly, the government has also been capitulated and is not in a position to take any stand.
How strange it is that we cannot have a temple even in Ayodhya where millions and millions of Hindus across the world have the unshakable faith that it was the place of Lord Rama's birth. Moreover, the remains of the temple have also been found from the site during excavation, which further substantiates the claim of Hindus. 
There may be thousands of temples of Lord Rama in India and abroad but all those temples can never be equated with the importance of Lord Rama’s temple at Ayodhya. Kashi, Mathura and Ayodhya have been the most sacred places for Hindus. There are abundant proofs that Mosques were constructed exactly on those sites where the temples of Lord Shiva, Lord Rama and Lord Krishna existed in Kashi, Ayodhya and Mathura. Obviously, the mosques were built by desecrating, defiling and destroying the temples and thereby hurting the sentiments of Hindus. 
This is the time for the Muslims to atone and give up their claims on Ayodhya, Mathura and Kashi to win the hearts of Hindus and to build bridges of unity and confidence between the two communities. An analogy will suffice: There may be lakhs of Churches all over the world but can all Churches be compared to the Church of the Vatican? Similarly, there must be many lakhs of Masjids throughout the world but can those Mosques be treated equivalently to the Masjids of Mecca and Medina? The reply is emphatic no. If all Mosques cannot be compared with Mosques of Mecca and Medina and all Churches cannot be compared with the Church of Vatican then the temple of Lord Rama at Ayodhya has certainly and distinctly very high status for Hindus. 
After all, 99.99 per cent Muslims of India have their common ancestry with Hindus. Can they not renounce their intransigence and pave the way for the construction of a grand temple at Ayodhya? This gesture of theirs will go a long way in fostering the most cordial and harmonious relationship between the Hindus and the Muslims, which can never be found in the court verdict. However, if the issue is not settled amicably the government has the last but not the preferable choice to adopt the Ordinance route to ensure that the temple is built without causing any further acrimony between the two communities.

Inimitable Business Style of Desi Entrepreneurs

While going up from Haridwar to the heights of Badrinath and coming down from there to Haridwar, journalists Hemant Tiwari, Siddharth Kalhans and I spent nearly 30 hours travelling in the same car. Obviously, we talked and discussed a range of issues and topics. We all marvel at the entrepreneurial skill of two persons- Baba Ramdev and Mahashaya Dharampal, who has passed a few days back at the ripe old age of 100 years. Mahasha ji. as he was called, was just a literate person with no academic degree. He was plying Tanga in old Delhi after migrating from Pakistan. He started grinding spices at his house to supplement his income. In due course of time, he became the shahenshah of masalas. His MDH brand spices are now sold all over the world and enjoy the status of uncrowned king.  I have met him twice with a leading lawyer HL Kumar, who recommended him to engage me for some legal cases.

There has been a striking similarity in both personalities. Both have been ardent Arya Samajis. Their personal life has been irreducibly simple. Both never possessed academic degrees. They never engaged models and other professionals for advertising their products. As a business journalist Kalhans says that both of them must be complimented for keeping the predatory multi-national companies at bay. These multinational companies do not bat even an eyelid to destroy Desi companies. They burn thousands of crores in defaming and destroying the business empires and goodwill of Desi companies. Their only morality is to establish the hegemony of their produces at any cost.

Therefore, if Baba Ramdev and Mahasha ji have been able to beat the multinational companies by giving quality products at highly completive prices, there is something remarkable in them. It hardly needs to be mentioned that it is Baba Ramdev, who made Yoga egalitarian, which was confined only to some elitists. Yoga was considered to be esoteric but thanks to Baba Ramdev, Sri Sri Ravishankar ji Maharaj and Narendra Modi, it has become a household pastime for the good of all.

Thousands of young boys and girls have got gainful employment as Yoga teachers across the world. Similarly, many lakhs are engaged in floriculture, horticulture, animal husbandry, dairy farming and producing and selling of Patanjali products. Do you think if there has been any compromise with the quality of their products, multinational companies had spared from brutally slaughtering them in the broad daylight?

Most importantly, the Indian capital remains in India as they have successfully prevented its flight to other countries. They have not only faced the tough challenges of the multinational companies but have beaten them with their sticks.

Can India Progress if Uttarakhand Lags Behind?

My recent visit to Badrinath, one of the holiest shrines of Hindus, after a gap of eleven years, has been highly reinvigorating, mentally satisfying and spiritually uplifting. This time I was in the company of Hemant Tiwari and Siddharth Kalhans, two talented and gifted journalists of Lucknow, who have a razor-sharp analytical mind and possess wonderful information about politics, history, religion, spiritualism, society and social mores.

It goes without saying that Uttarakhand is amazingly beautiful; replete with high hills, deep vales, dense forests and breath-taking scenic places. It can be made the most attractive and alluring tourist destinations in the world. If necessary facilities and infrastructures are provided, Uttarakhand itself can generate many times more money from domestic and foreign tourists than even Switzerland. It can be the haven of trekkers’ delight. Lakhs of pilgrims visit the four most sacred places of Hindus, known as the ‘Char Dhams’- Gangotri, Yamunotri, Kedarnath and Badrinath. But pilgrims are pilgrims. They are never demanding for facilities. In fact, most of the pilgrims consider that the suffering and arduousness is the concomitant with the pilgrimage.

While Badrinath is one of the original four dhams set up by Adi Shankaracharya. The other three are Jagganathpuri, Dwarika and Rameshwaram.  Badrinath presents a unique example of national integration, where Hindus from all parts of the country, nay the entire world assemble, have a dip in the icy cold waters of Alaknand and the hot water spring at the feet of the temple before the Darshan of the Lord. Kedarnath, on the other hand, is one of the twelve Jyotirlingas, which assumes the highest reverence for the Hindus across the world. 

Another most significant aspect of developing the tourism to an unprecedented level in Uttarakhand is that five holy rivers - Bhagirathi, Mandakini, Alaknanda, Pindar and Dhauli Ganga flow from this Dev Bhoomi and confluence of these rivers are known as Panch Prayags. Prayag means ‘place of sacrifice’, where one river loses its identity after merging with the bigger one. The confluence of the Holy Ganga, Yamuna and invisible Saraswati is at the Prayag Raj, where Kumbha Mela is observed every twelve years.  Similarly, the confluence of the rivers of Uttarakhand is also named as Prayag. At Vishnu Prayag, near Joshimath, river Dhauli Ganga merges with Alaknanda, which originates from Satopath glacier and passes through Badarinath. The second one is Nand Prayag, the meeting point of Alaknanda and Nandakini.  Then comes Karn Prayag, where the Pindar originating the Pindar glacier joins Alaknanda. Fourth in the line is Rudra Prayag, where Mandakini meets Alaknanda and the last is Dev Prayag, which is the confluence of Alaknanda and Bhagirathi.  The Holy River Ganga takes its name from this place. Bhagirathi, as the legend goes, is another name of the Ganga as it was brought on earth by the sage Bhagirath after thousands of years of Tapasya.

Needless to say, that the proper taming of the river giants for generating hydroelectricity can increase the income of the state manifold. The economy of the Garhwal region of Uttarakhand can be significantly enhanced by the River Bed Mining (RBM). One can find the stone boulders ranging from few kilograms to hundreds of quintals in the river beds obstructing the free flow of waters, particularly during the rainy season, causing floods and havoc. The calamity that was caused in 2013 by river Mandakini, due to the fall of the avalanche of the glacier of lakhs of tons is too horrifying to recall. One tremble at the very thought of the disaster that was brought by the river Mandakini, which had taken the toll of thousands within a few days.

Although, such natural calamities cannot be fully prevented yet it could certainly be reduced and mitigated by clearing the path of the mighty rivers through river bed mining. The stone boulders lying on the beds of these rivers can be converted into tons of money by properly utilising them for the production and pebbles to be used all over the country. However, the mindless exploitation of Jal, Jangal and Jamin will destroy the ecology and bring more misery for the people in its wake. It is good to see the construction of all-weather roads going on in full swing. It will, without doubt, transform the state of Uttarakhand into a very vibrant one. Conservation of forests, herbal agriculture and by increasing the areas of orchards and tea plantations etc; can make Uttarakhand as one of the most developed and the wealthy states of India. There is immense scope for the development of aviation, which can provide cheap services to the remote and intractable areas of the state. The problems of far-flung areas, which are deprived of proper health facilities and good educational institutions, must be addressed with all sincerity.

The High Court of Uttarakhand is situated in Nainital, which is very inaccessible for a person from Uttarkashi or Chamoli. In view of the difficulties of the hilly people, it will be highly desirable to have a Bench of it, either in Pauri or Srinagar, which incidentally is in the Pauri district but is well connected by road. The capital Dehradun is quite distant from both regions of Garhwal and Kumayun but because of easy accessibility, it cannot be shifted for now to any other place. Moreover, gigantic expenses have been made for the construction of offices and other necessary buildings.

One often wonders why the rail connections cannot be laid out across the state for the better transportation of the passengers and goods. After all, most of the developed countries have got railheads in the hilly tracts. Indian Railways have also gained enough expertise in laying the rails in Jammu and Kashmir and Konkan regions. The same expertise can be used for connecting the different places of Uttarakhand by making deep and long tunnels in the mountains. The recent example of connecting Beijing with Lhasa by rail can be an eye-opener. China is reported to have the plans to rupture the high Himalayas for connecting Kathmandu with Beijing with rails. If this can be done, then why different places of Uttarakhand should be not connected with rails?

The development of the Uttarakhand is closely linked with the development of the country. Uttarakhand can be made the driver of the development by making proper use of the resources available in the state.

Today, unfortunately, Uttarakhand is more known for its large-scale migration and dependence on the remittances from outside because there is not much scope for employment or self-employment. This trend can be reversed with help of technology. Can the country progress, if Uttarakhand lags? Obviously not.

A Lawyer's Zeal for Constitutional Clarity

Shri Asok Pande (Yes, that is how he writes his name), my good friend, is a public-spirited lawyer and he must have filed more than 200 PILs in the Allahabad High Court and the Supreme Court of India. Some of the judgements on his PILs have now become an integral part of the Indian constitutional study.  His tenacity for the cause that he espouses is seen to be believed.

Recently, he has filed a PIL for the preponing the of the swearing in of the Chief Justice-designate Ranjan Gogoi on the ground that the post of the Chief Justice of India is in continuum and it cannot remain vacant even for a few hours. The incumbent CJI Dipak Misra is retiring on 2^nd October, which is a national holiday, being the Gandhi Jayanti. Therefore, the CJI designate will take oath on 3^rd October leaving a time gap of many hours between the retiring CJI and the new CJI. 

The fate of the PIL will be known when it is heard and decided by the Supreme Court but what has impelled me to write on it is how does it make any difference in the functioning of the Supreme of India, if the post of the CJI remains vacant for a few hours? After all, the CJI is the only the administrative head of the Supreme Court. As far as his judicial powers are concerned, S(he) does not have even a whit more powers than the junior most judge of the Supreme Court. 

The Supreme Court and the High Courts are the constitutional courts. Acting Chief Justices are appointed in the High Courts but not in the Supreme. Article 124 of the Constitution of India speaks about the Union Judiciary i.e. establishment of the Supreme Court India and its powers etc., go up to Article147. 

To my mind, the theory of the continuum is applicable for the Prime Minister because if there is no Prime Minister, there cannot be any council of ministers. The council of ministers’ dissolves with the resignation or the death of the Prime Minister. This is the reason is that immediately after the death of the Prime Minister a new Prime Minister is sworn in. Article 74 says, ‘there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.

 The President is, therefore, merely a titular head. All powers vested with the Council of Ministers and essentially in the Prime Minister. The President and the Prime Minister do not retire on superannuation as it is in the case of the Chief Justice or the other judges.

Shri Pande has said in his PIL that Justice ND Ojha was sworn in as the judge of the Supreme at the night because he was to retire from the High Court in the midnight of that date. This could, however, not be the reason for his swearing in. Let me cite one example of Justice Fathima Beevi, who retired as the Judge of the High Court on 29^th April 1989 and was appointed the judge of the Supreme Court on 6^th October 1989, more than five months after her retirement as the judge of the High Court. Fortunately, she is still alive. She had started her judicial career from the lowest rung of the Munsif Magistrate. I have met her two times when she was the Governor of Tamilnadu along with the illustrious Justice (Retd) PB Sawant, who was the then Chairman of the Press Council of India and I was one of its members.

Indian Constitution is, as one of my teachers in the Law Faculty of the Delhi University, used to say, ‘a riddle wrapped in an enigma’. It is a conundrum. Regrettably, even the Supreme Court has not been able to settle the riddle. However, I must appreciate the zeal and vigour of Asok Pande who is trying his level best to provide finality to the grey areas of the Constitution. Kudos to you Asok ji.

Shrinand, Let Your Soul Rest in Eternal Peace

Death is inevitable, but the death of any near and dear ones is always sad and shocking. The death of my younger brother Shrinand, which occurred in the morning of 22^nd of August has shocked and benumbed me. He was nearly four years younger than me and was the youngest among all brothers. He died young at the age of only 58. He was a carefree person, particularly in his younger days. He remained almost untouched of the worldliness and that was the reason that he hardly got bothered by the damages and difficulties in the worldly life.

     He did not possess high academic degrees but due to his self-studies, he developed a good understanding of literature, social values, political ups and downs, changing trends of the society and unfortunate rupturing of the family bonds and relations. He was a good connoisseur of the qualities of others and that was the reason he was loved and respected by young and old, uneducated and highly educated persons alike. He had no foes but only friends. Almost everyone, who came into his contact was greeted by him with his infectious and disarming smile.

     When I was still a student in the Banaras Hindu University, he was an adolescent and had the wings of imaginations, which could take him high in the sky. He had ventured to write a novel but unfortunately, it met with a miscarriage and thereafter he dropped the idea of indulging into any creative writings, but one could have the feel of literary flavour while talking to him.

      An avid reader of newspapers and watcher of the news on TV channels, he had his fingers right on the pulse of the events and could predict on the future shape of things. Never a greedy person, he only aspired to get respect from those, who came into his contact. He often used to tell me that he wanted that his son to have a good education from good institutions and he got it fulfilled. I often told him that expecting too much from anybody is entirely impractical and therefore, he must not nurse very high hopes from anybody. Such expectations are harmful to both sides; i. e. to the person who pins many hopes from the other and also to the person, who is put under stress and strain to achieve expectations.

     He was very close to me and to my another brother Harinand , who is younger to me but is elder to Shrinand. Shrinand could defy anybody but never to Harinand, even if he disagreed with him. After family partition, it was Shrinand, who looked after my small agricultural land other immovable properties in my native village of Hansapur Khurd ( Ahraula) in Azamgarh district of Uttar Pradesh. Shrinand was respectful to me and to Harinand and never said ‘no’ to whatever we asked him to do. Thus, the irreparable loss that we have suffered is indescribable.

     Shrinand during his childhood had gone to Jalandhar in Punjab and worked for some time with any medical practitioner but he was so sharp that he could correctly diagnose a patient and prescribe effective medicines to them. Many a time even highly trained Doctors were surprised by his understanding of the diseases and prescriptions. He was so selfless that he used to administer injections and provide medicines almost free. Anybody could approach him even in the dead of the night or in the wee hours for any emergency helps. Whatever little anybody gave him for his services was acceptable to him. ‘Service before self’- was his motto and that was the reason he was immensely popular in the cross-section of the society. Highly progressive in his thoughts and actions he was against superstitions.  

     He was indeed a rationalist. But to my shock and surprise, a person who used to give medicines to others was so callous towards his own health and wellbeing. For the last many years, he became diabetic but never observed the rigours of diet, which is so necessary for a person suffering from this silent killer disease. I am told that both his kidneys were badly damaged, and heart was fully clogged. He was unaware of it and by the time others knew about, it was too late. Firstly, he was taken to Azamgarh to a private doctor, who referred him to the PGI Lucknow. But before he could be admitted to the PGI of Lucknow, he breathed last on the very gate of the PGI. Medical services and facilities in Government hospitals are so poor and pathetic that one is compelled to go to a private doctor and in the name of facilities they loot the patients with gay abandon. Anyway, it is an altogether different matter. He has a journalist son Devesh and a happily married daughter Gudiya. He wanted his wife to step out of the four walls of the house, but she preferred to remain confined to the household works. Hopefully, she will now take up his responsibilities, which will be a fitting tribute to Shrinand.  

     On the day of his death, my wife Nirmala and I were in Shrishailam, a Jyotirlinga Peetha, 400 kilometres away from Hyderabad. We rushed to Hyderabad and made all efforts to join his funeral but could not because it was just not possible. I joined the family members, relatives, native villagers and friends on the ‘shudh ceremony’ on 31^st of August and got my head tonsured and moustaches shaved along with other family members as a mark of respect and homage to my dearest Shrinand. My wife and I have returned to Delhi after Terahvin. My mind, however, is still not ready to accept that Shrinand is no more.

    Your loss, Shrinand , is irreparable to all our family members. We can only pray to God Almighty to make you soul free from the cycle of birth and death. May your soul rest in heaven in eternal peace, my dear brother! We all pay our sincerest homage to you and we will never forget you.