Tag Archive | Attorney General

AG Wanted Judges To Scream No! Instead Got Their Nod! – By Mukesh Jhangiani

                                                                                                                                                  May 12, 2004

AG Wanted Judges To Scream No! Instead, Got Their Nod!

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – A government lawyer, who persuaded some of India’s seniormost judges during emergency that they had no business to intervene even if policemen took innocent lives, suffered ”profound anguish,” a contemporary jurist has reported.

English: Picture Of Justice V.R.Krishna Iyer

Justice V R Krishna Iyer (Photo: Wikipedia)

According to former Supreme Court Judge V R Krishna Iyer, Attorney General Niren De had urged the ”extreme position” hoping to shock and rouse the judges ”to rage against that violent view.”
Four of the five Judges heard but ”did not furiously resist. I felt sad as a jurist but found success as Counsel,” was how De put it, Justice Iyer recalls in a new book titled ‘Leaves from My Personal Life.’
The four: then Chief Justice A N Ray and Justices M H Beg, Y V Chandrachud and P N Bhagwati. Justice Hans Raj Khanna was the sole dissenter and paid by being superseded by his junior, Justice Beg.
Experts say the episode raises questions about the country’s judicial system and establishment, and the real or potential havoc to which the society may be exposed in absence of accountability in administration, adjudication and courts.
As Justice Iyer sees it, the April 1976 Judgement ranks ”in disgrace with” an American Supreme Court pronouncement that Negroes were slaves to be owned, not humans who could own.
The so-called habeas corpus case– Additional District Magistrate, Jabalpur v Shivakant Shukla– arose out of appeals from eleven high courts which had held that, notwithstanding a presidential order under Article 359 of the constitution suspending the right to enforce fundamental rights, the higher courts could, in appropriate cases, entertain applications for habeas corpus.
In his argument, De focused on ‘liberty’ as provided in the Constitution, contending that the right to move a court having been  suspended, a detainee had no locus standi and a writ petition would necessarily have to be dismissed.
Justice Khanna pointedly demanded: ”Life is also mentioned in Article 21 and would Government argument extend to it also?” De replied, ‘Even if life was taken away illegally, courts are helpless.’
Justice Iyer says: ”This argument, by democratic standards, was unconscionably outrageous. Yes, but the judges were not outraged, save Khanna, the great dissenter. They merely listened, (unperturbed by) the prospect of monstrous mayhem on human rights and fundamental freedoms; and eventually upheld this shocking proposition in pronouncements at learned length.”
”Alas, the darkest hour of forensic downfall, except for the historic dissent of Justice Khanna, was when this disastrous jurisprudence marred our law reports,” writes Justice Iyer.
The judgement delivered on 28th April, 1976 is dubbed by the People’s Union for Civil Liberties ”the biggest blow to the Supreme Court– by the Supreme Court.”
The Supreme Court held that, as long as the presidential order was in force, the individual had no remedy against detention, even in cases where he could show that the detention was vitiated by mala fides or was ultra vires of the statute.
Although the judgement has not been overruled, its effect has been reduced substantially by a 1978 amendment to the constitution which made the rights to life and personal liberty– Article 21– non-suspendable during emergencies.

Hans Raj Khanna

Justice Hans Raj Khanna (Photo: Wikipedia)

Justice Iyer’s narrative underscores the importance of Judges never letting a lawyer or a litigant– no matter how mighty– sway them from the rule of law.
De’s confession came at a chance encounter shortly after the apex court bench held that under Emergency no person has any locus to move any writ petition for habeas corpus to challenge detention.
At a dinner attended by judges, writes Justice Iyer, De ”came up to me– I was sitting in a corner and sat to tell me something deeply sombre and pathetically confidential which he wanted to unburden and reveal to me to relieve his conscience.
”What was it about? You are a socially sensitive judge and can appreciate my profound anguish, he said. ‘What was the agony in my soul, which gave me sleepless nights? It was about my defense of the Emergency.
”I did not want a ghastly law which would banish judicial jurisdiction in the face of subjective executive violence. I thought of the strategy of shocking the judges into sanity, into rousing their revulsion, into reading down the deadly law, into claiming space for judicial invigilation as haven of human rights.
”So I urged the damned extreme position hoping that humanist jurisprudence would be the indignant robed reaction.
”So I pressed, against my heart but with the expectation of awakening the aghast protest of the Bench. If the police abused power the court would not sit and watch with cauterised conscience but would act in fiat justicia spirit– so, I thought, would be their response.
”I wanted the robes to rage against that violent view I propounded and come down on such Emergency inhumanity. But, to my surprise, barring Khanna, the other justices heard but did not furiously resist. I felt sad as a jurist but found success as Counsel.
”Sir, frankly I passed through mental stress which I now confide in you because your conscience would have rebelled.”
”The narration ended, the dinner was over. And Niren De passed away not long after.”
Additional Solicitor-General Fali Sam Nariman had resigned from his post in protest a day after Emergency was declared on June 25, 1975.
Justice Iyer records: ”Nariman, the admirable and conscionable advocate resigned his post as Solicitor General. But I believed the Attorney General’s confessional version.
”Then why did he not give up his office? Good men, gripped by grave crises, sometimes cave in, maybe,” offers Justice Iyer.

”Niren De was a serious, sound advocate who argued later for democracy and against gross misuse of Presidential Power of supersession of State autonomy, but failed.
”Anyway, the ADM Jabbalpur ruling ranks in disgrace with the Dred Scott case where the American Supreme Court pronounced that Negroes were slaves to be owned, not humans who could own.”
Justice Iyer cited the dissenting judgement of Justice James Richard Atkin on deciding between the citizens’ rights to know the basis of their detention in war time and the rights of the executive government in times of emergency to deprive citizens of their liberty without being held to account in the courts.
Justice Iyer says Justice Atkin ”has the last word in Liversidge v Sir John Anderson.”
Justice Atkin’s words: ”I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive.
”Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum…: “In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.”
”In this country (England), amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.
”It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
”In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I,” a 17th century British monarch regarded by many members in Parliament as a despot.
Justice Iyer warns: ”Our freedoms are in peril if our courts suffer (from) pusillanimity or arrogance.”
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SC Watchdog Headless – 82 Atrocities Daily – By Mukesh Jhangiani

                                                                                                                                             October 9, 2010

Gandhi collecting funds for harijan work

Gandhi collecting funds for harijan work (Photo: Wikipedia)

SC Watchdog Headless – 82 Atrocities Daily

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – While violations against India’s 180 million scheduled caste citizens have been on the rise, a government agency set up to investigate them has been headless over four months.

Experts say India’s Constitution prescribes a presidential appointment of Chairperson, Vice-Chairperson and three Members of the National Commission for Scheduled Castes but sets no time frame.

The NCSC chairmanship has been vacant since May 25, 2010, the vice-chairmanship and two memberships, since May 28, and another membership since May 29.

In the eyes of law, experts say, such a lapse makes the Commission ”non-functional.”

This is not the first time the posts have remained vacant since the NCSC was carved out of the 28-year-old National Commission for Scheduled Castes and Scheduled Tribes in February 2004.

The NCSC chairmanship was vacant for more than nine months after incumbent Suraj Bhaan died in harness in August 2006. The other four posts, too, remained vacant for three months each.

Sanctioned posts remaining vacant is not unusual in India even in such crucial areas as judiciary, teaching, administration and so on.

Authorities have ignored suggestions about creating a pool of professionals from which candidates may be drawn for appointment without any delay or gap of more than a day or two.

But experts find allowing such vacancies in NCSC hard to explain given the United Progressive Alliance’s avowed commitment to social justice for weaker sections.

The issue has figured in Parliament as well as in the Supreme Court of India.

In Rajya Sabha, Minister of State for Social Justice and Empowerment D Napoleon told Bharatiya Janata Party member from Madhya Pradesh Narayan Singh Kesari that its reconstitution ”is under process.”

That was on August 12, almost three months after vacancies had arisen.

Mr Napolean and MoS for Home Affairs Ajay Maken, in replies to Nationalist Congress Party’s Y P Trivedi from Maharashtra and BJP’s Om Prakash Mathur from Rajasthan, acknowledged a worsening trend.

Mr Maken cited National Crime Records Bureau data that ”a total of 27,070, 30,031 and 33,615 cases of atrocities against Scheduled Castes were registered during 2006-2008 respectively.”

Mr Napolean cited Bureau data that ”the number of registered cases of rape of women belonging to the Scheduled Castes during 2004 to 2008 is” 1157, 1172, 1217, 1349 and 1457, respectively.

On an average, that amounts to an atrocity every 17-18 minutes and a rape every seven hours during the years accounted for– even with a Commission in place.

Data furnished by Mr Maken showed that in 90,716 cases registered, 150,240 persons were chargesheeted, and 43,613 convicted.

But there was no word on the quantum of punishment awarded, if any, that may explain why law or enforcement has failed to produce a deterrent effect.

Last year, a British study suggested that not empowering the NCSCST to enforce its findings has resulted in a failure to punish and deter violations.

The study was sponsored by the Centre for Research on Inequality, Human Security and Ethnicity within Oxford University and supported by the United Kingdom Department for International Development.

The CRISE study pointed to ”the lack of teeth for organisations like” the NCSCST which ”prevented oppressive social practices from being checked and severely punished.”

In July 2010, the apex court was petitioned by a lawyer handling cases of alleged harassment of SC citizens who wanted the government directed to fill the posts as per Article 338 of the Constitution.

In a civil writ petition, advocate Radhakanta Tripathy told the Court he ”has been witnessing the plight” of clients ”since the matters cannot be decided without chairperson and other members.”

He also stressed setting a time frame for future appointments.

At a hearing on August 2, 2010, Justices D K Jain and H L Dattu requested Attorney General G E Vahanvati present in Court ”to seek instructions in the matter.”

Eight weeks later, on September 27, 2010, the Judges disposed of the petition after a government lawyer submitted: ”all appointments in the National Commission for Scheduled Castes shall be made within two months from today.”

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