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The age factor

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PUBLISHED IN THE FRONTLINE

The appointment of three new judges to the Supreme Court reopens the debate on the need to appoint judges when they are younger.

The newly appointed judges of the Supreme Court (from left) Justices S.J. Mukhopadhaya, J.S. Khehar and Ranjana Desai.

A FEW weeks ago, the Supreme Court of India’s collegium, consisting of the Chief Justice and four most senior judges, cleared the names of three High Court judges for appointment to the Supreme Court. Once the collegium’s binding recommendation was accepted by the President, the new judges, Justices S.J. Mukhopadhaya, Ranjana Desai and J.S. Khehar, were sworn in to the court on September 13. This new slate of appointments will be worth noting for several reasons. Not insignificantly, this is the first set of Supreme Court appointments made by the present Chief Justice of India, Justice S.H. Kapadia, since he took over the office from Justice K.G. Balakrishnan in May 2010. One of the new judges is a woman – only the fifth woman among 196 judges appointed to the Supreme Court in its history spanning over six decades, and this is the first time two women judges will serve on the Supreme Court at the same time. The new appointments offer a telling glimpse into the trend of Supreme Court appointments during the last decade.

A total of 10 judges retire from the Supreme Court during Justice Kapadia’s term, including seven this year. (Justices B. Sudershan Reddy, V.S. Sirpurkar and H.S. Bedi have already retired, and the others to retire, in the order of retirement, are Justices Mukundakam Sharma, Markandey Katju, J.M. Panchal and R.V. Raveendran. Justices Cyriac Joseph, A.K. Ganguly, and Deepak Verma, in that order, will retire next year during Justice Kapadia’s term). This is the first time seven judges retire from the court in one year. In 2000, during Chief Justice A.S. Anand’s term, six judges retired and, one, Justice M. Srinivasan, passed away, creating seven vacancies that year. The vacancies this year also occur against the backdrop of a larger debate concerning many vacancies in High Courts.

But what does the appointment of the three new judges to the Supreme Court say about the candidates typically selected to the highest constitutional court of India? For one, the three judges are, on average, quite old. Two of them, S.J. Mukhopadhaya and Ranjana Desai, are over 61 years old. The retirement age of High Court judges is 62, and both these judges had less than a year left to retire from their respective High Courts. Since Supreme Court judges retire at the age of 65, both will serve terms of less than four years in the Supreme Court. Is this adequate? Forget for a moment that judges on the Supreme Court of the United States serve in office for life, and forget that judges of the South African constitutional court serve fixed non-renewable 15-year terms, but consider that in India most judges of High Courts serve at least 10-15 years in office, if not more.

For a constitutional court of the stature of the Indian Supreme Court to retain its coherence as an institution, to maintain consistency and predictability in the articulation and application of constitutional norms, it is essential that its judges be given more satisfactory tenures. That is not to say that judges of repute and learning such as Justices Mukhopadhaya and Ranjana Desai should not be appointed to the court: the only contention is that they should have been appointed earlier, or once appointed they should be given fixed but longer terms.

 

At present, the average age of the three new judges to be appointed is over 60.7 years. In fact, of the 38 Chief Justices of India, only three – Justices Harilal Kania, B.K. Mukherjea, and M.N. Venkatachaliah – made appointments of judges who had an average age higher than this (Table 1 illustrates that the average age of appointment to the court during the tenure of these three Chief Justices of India was over 61 years of age).

Interestingly, this is in keeping with the trend of appointment of older judges, on average, to the Supreme Court.

Youngest judges

The data tell us that the youngest Supreme Court judges in the country’s history were appointed in the 1970s. One of the finest judges the Supreme Court has ever seen, Justice P.N. Bhagwati, was only 51 years old when he was appointed to it. The fact that he served close to 14 years in office, a term longer than his tenure as a High Court judge in Gujarat, perhaps had something to do with the stature he attained in the court and the status he achieved as a judge. But even before him, many judges in the 1950s were appointed to the court at age 55 or younger (B.P. Sinha, Syed Jaffer Imam, P.B. Gajendragadkar, A.K. Sarkar, K. Subba Rao, K.N. Wanchoo, M. Hidayatullah, and J.C. Shah). Some of these names are amongst the most well known in India’s legal circles.

As the court’s most prolific dissenter, Justice K. Subba Rao went on to herald the demise of the “Gopalan era” in the court. According to one estimate, he wrote as many as 53 dissenting opinions, that is, opinions in which he disagreed with the majority view. In A.K. Gopalan vs Madras, AIR 1950 SC 27, the Supreme Court had held that the constitutionality of a law would have to be tested on the basis of the object of the law itself and not by the incidental effect the law would have on other fundamental freedoms. In a series of cases decided in the 1960s ( Kochuni vs Madras, AIR 1960 SC 1080; Kharak Singh vs U.P., AIR 1963 SC 1295; and Maharashtra vs Prabhakar, AIR 1966 SC 424), Justice Subba Rao expressed considerable doubt over the court’s “object” approach to constitutional analysis, an approach which was soon replaced by the “effects” test in R.C. Cooper vs Union, (1970) 1 SCC 248. Of a similar stature, opinions written by Justices Gajendragadkar and Hidayatullah still elicit adulation in classrooms and admiration in courtrooms. It is not implausible to posit that their age and lengthy terms in office gave them an edge – an occasion to define themselves on the court, and then to define the jurisprudence and docket of the court itself.

In the 1960s, Justice S.M. Sikri was the only judge appointed to the court at age 55, but as the Chief Justice of India he went on to preside over the most significant case in India’s constitutional history, where, as part of the majority, he and six other judges held that our Constitution had a “basic structure”, one which could not be altered or destroyed by constitutional amendment. In the 1970s, too, several judges were appointed to the court at age 55 or younger (Y.V. Chandrachud, P.N. Bhagwati, M. Fazl Ali, R.S. Pathak, O. Chinnappa Reddy, A.P. Sen and E.S. Venkataramiah). Many of these judges left a lasting mark on the jurisprudence of the court.

However, starting with the 1980s, in 30 years, only four judges have been appointed to the Supreme Court at age 55 or younger: Sabyasachi Mukherjee, A.S. Anand, S.P. Bharucha and K.G. Balakrishnan, each of whom went on to become Chief Justice of India. In fact, the data tell us that the oldest judges were appointed to the Supreme Court in the last two decades, that is, between 1990 and 2009. The average age of appointment during 2000-2009 was 59.7 years and during 1990-1999 it was 59.8 years – higher than the average of any previous decade. Justice Kapadia’s three appointments tend to fit this paradigm. In fact, one wonders if appointees to the Supreme Court today would not have been even older had the retirement age in High Courts been 65. If this were so the court’s collegium would have had even older High Court judges to choose from, judges who would potentially go on to serve only a few months in the Supreme Court.

That is not to say older judges cannot mould the jurisprudence of the court in a comparatively shorter but influential cameo innings. Chief Justice M. Patanjali Sastri, one of the first members of the court, was 61 years old when the Supreme Court of India came into being. Similarly, appointed at the relatively late age of 59, Justices Vivian Bose and H.R. Khanna each indelibly altered the trajectory of the court’s jurisprudence. In the famous Anwar Ali Sarkar case, Justice Bose was perhaps the first judge to use the phrase “reasonable, just and fair”, prescient words which would resonate in the court’s opinions decades later in the Maneka Gandhi case (1978) and beyond. Justice Khanna’s dissent in the habeas corpus case served as a moral compass for a court that tried desperately to atone for the wrongs it committed during the Emergency. Imagine a court where the Sastris, the Boses and the Khannas, or for that matter the Mukhopadhayas and the Desais serve not three to six years in office but 10 to 15 years – how much more beneficial that would be for the court and for our system.

Next, of the three new judges being appointed to the Supreme Court, two (Mukhopadhaya and Khehar) were High Court Chief Justices. There is nothing surprising about this either. In the early years, at least half the judges of the Supreme Court were typically amongst those who were not High Court Chief Justices. This began to show signs of change starting with the end of Justice A.M. Ahmadi’s tenure as Chief Justice of India (1994-1997) when an unprecedented 17 sitting Supreme Court judges (or 73 per cent of the court) were former High Court Chief Justices. This trend reached its zenith by the end of Justice R.C. Lahoti’s term as Chief Justice (2004-05), when an overwhelming 20 sitting Supreme Court judges (or 95 per cent of the court) were former High Court Chief Justices.

CHIEF JUSTICE OF India, Justice S.H. Kapadia. The number of judges retiring during his term will be 10. Of them, three have already retired and four more will retire this year.

For this reason, the fact that two of Chief Justice Kapadia’s new appointees are High Court Chief Justices is not surprising. (In fact, Justice Khehar served as Chief Justice of not one but two High Courts in succession (Uttarakhand and then Karnataka), a trend which has increasingly been seen in the court starting with the 1990s. The overwhelming dominance of High Court Chief Justices in the Supreme Court adds a few years to the average age of the court – after all, only the oldest judges in the country, those who have served the longest terms in the High Courts and risen to positions of seniority, are transferred to other High Courts as Chief Justices.

Neither, perhaps, is it surprising that the only Kapadia appointment to the court not to have been a High Court Chief Justice, Justice Ranjana Desai, is a woman. Only two (Sujata Manohar and Gyan Sudha Misra) of the four women who were appointed to the court before this, previously served as the Chief Justice of a High Court. Justices M. Fathima Beevi and Ruma Pal were not, and neither is Justice Ranjana Desai, although, to be fair, she was the most senior associate justice in the Bombay High Court.

P.N. BHAGAWATI, former Chief Justice of India. He was only 51 years old when he was appointed to the Supreme Court. He served close to 14 years in office and this perhaps had something to do with the stature he attained in the court and the status he achieved as a judge.

What do Chief Justice Kapadia’s appointments tell us about the Supreme Court itself? The appointment of the fifth woman justice of the court must be welcomed. Now there is only one other constituency that has a smaller claim to the court than women – “bar judges”. Since 1950, only four judges have been appointed to the Supreme Court directly from the bar, that is, without having served as a judge in a High Court. Starting with the 1960s, one such judge was appointed in every decade – S.M. Sikri in the 1960s, S. Chandra Roy in the 1970s, Kuldip Singh in the 1980s, and Santosh Hegde in the 1990s.

The 2000-09 decade was the only one since the 1950s when a judge was not appointed to the Supreme Court directly from the bar. The appointment of Justice Ranjana Desai to the court now means that women finally have a stronger claim to the court than the court’s own bar. However, the fact remains that where S.M. Sikri, a bar judge, served as the Chief Justice of India (during the historic Basic Structure hearings, no less), not a single woman has become the Chief Justice of India.

S.M. SIKRI. In the 1960s he was the only judge to be appointed at age 55, and the only one in that decade to be appointed directly from the bar. He went on to serve as Chief Justice of India and presided over the historic case on the “basic structure” of the Constitution.

Despite these statistical inferences, the three new selections for appointment to the Supreme Court must be welcomed, even as we look to see how the Chief Justice of India populates the remaining six vacancies during his tenure.

Abhinav Chandrachud is the author of Due Process of Law (EBC 2011), and, starting this Fall, a research fellow at Stanford Law School.

ORIGIN: http://www.frontline.in/stories/20111021282104900.htm

Judicial activism Of corrupt individuals, media trial and justice

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PUBLISHED IN GREATER KASHMIR

The recent past has witnessed a good measure of writs, orders and directions from the Supreme Court of India which could be termed classical examples of Judicial Activism, an expression used invariably to connote meaning when courts pronounce on matters which usually and in the ordinary course of things do not fall within their well defined areas of operation or jurisdiction. Legally the courts in these matters may not be lacking jurisdiction totally, but as a matter of practice which over a long period of time has hardened into an unwritten rule, the courts do not interfere in such matters as are best left to the discretion or powers of the Executive or Legislature.
There might have been instances of judicial activism in the country in the past but then the constitutional doctrine of separation of powers was never lost sight of. The Supreme Court of India while dealing with various matters and while giving new dimensions to the concept of rule of law and taking the concept of rule of law to higher legal heights had always refrained from making pronouncements on matters of public policy followed by the executive. Thus the often spoken about doctrine-of-separation of powers between the judiciary, executive and parliament was respected and clearly kept in mind.
Without going into finer details as to what could be termed as judicial activism or pure judicial functioning and not trying to lay down lines of distinction between the two, let us come straight way to the recent unusual decisions or directions of Supreme Court which have once again brought the debate to the fore. All this started when in the recent past Mr. Subramanium Swami approached the Supreme Court of India seeking directions on to CBI to probe in to the 2 G Scam. In his petition Mr. Swami maintained that he had written to the Prime Minister of India to grant sanction for the prosecution of Mr. Raja the then Telecom Minister but the Prime Minister did not grant the same, he further said that he had written to the Prime Minister in this connection in November, 2008. Till then no FIR was lodged in 2G Scam. One wonders as to how the Prime Minister could grant sanction to prosecute Mr. Raja merely on the petition of Mr. Swami. However, an FIR was lodged in 2G Scam in October, 2009 and the Supreme Court started to monitor investigation into the case. What followed is history.
The accused in 2G Scam where subjected to media trial on the one hand and on the other hand the Supreme Court of India while monitoring the investigation acted in a method and manner, that gave rise to many legal ponderables, for instance that one of the cardinal principles of criminal jurisprudence, ‘an accused is presumed to be innocent till his guilt is proved beyond doubt at the trial of the case’ was given a burial and an impression was created that whatever the investigating agency comes forthwith is the gospel truth and that as if the guilt of the accused was already proved, so much so that the concession of bail to the accused persons was also denied to them. Though the case even if proved, does not carry death penalty not even life imprisonment as punishment. In thousands of cases across the country which are heinous in nature and where the allegations are grave, but do not carry death penalty as punishment accused are enjoying the benefit of bail because in the legal system in this country bail and not jail is the rule, especially at the pre-trial stage. However, in the case under discussion again the cardinal principal of law relating to bail that (bail is not to be with held as a matter of punishment) was given a good bye. That the accused is presumed to be innocent and the presumption of innocence is in favour of the accused till proved guilty beyond any shadow of doubt and he has right to remain on bail as a presumable innocent person, all this and many other principles of criminal jurisprudence and criminal justice system received a burial.
Any one belonging to legal profession with even slight understanding of the criminal jurisprudence and criminal justice system, can safely say that in the heat and dust created by such cases as 2G Scam, the courts of the country have allowed the long respected cardinal principles of criminal justice system to become a causality and in fact have made these so.

 

A pertinent question stares one in his or her eye that as to what purpose of law and justice is served by keeping Kalanmozi in continued judicial custody, would she flee justice if she was allowed bail? Women are allowed bail even in cases which involve death penalty or life imprisonment as punishment. Kalanmozi is an ML P. and very well known person in her own rights and has very strong roots in society. Therefore, there is no reason in law to withhold her bail.
Another disturbing instance is Hassan Ali’s case, why is he still in jail, when the allegations against him are failing apart in spite of what the investigating agency had to publicize about him and in spite of very strong observations of the Supreme Court in his case. He was put to media trial much before his actual trial in a court of law would start and people were given to believe that Hassan Ali is involved in money laundering in a big way and that he is the king pin in the matter of stashing black money in foreign banks. He was publicized to be owing Rupees Seventy Two Thousands crores of income tax to the country by the investigating agency and in a rush perhaps the Supreme Court not only formed a S.I.T. to investigate the black money stashed in foreign banks but also at one point in time observed that why shouldn’t the government invoke terror laws against him. His bail was cancelled and he was jailed. His rights which the Constitution gives him were violated by the very judiciary which is supposed to protect tire fundamental rights of the citizens, which includes the accused persons also.
(The author is advocate J&K High Court)

ORIGIN: http://www.greaterkashmir.com/news/2011/Sep/15/judicial-activism-83.asp

14 Bills (11 in the Lok Sabha and 3 in the Rajya Sabha) introduced during the Monsoon Session

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LAXMAN PRASAD IN LAWYERSCLUBINDIA

The Lok Sabha passes 13 Bills and the Rajya Sabha passes 09 Bills during the session

 The Monsoon Session, 2011 of Parliament which commenced on Monday, the 1st of August, 2011, concluded on Thursday, the 8th of September, 2011.  The Session provided 26 sittings spread over a period of 39 days.

During the Session, Supplementary Demands for Grants (General) for 2011-12 and the related Appropriation Bill, was discussed and passed by the Lok Sabha. Thereafter, the Rajya Sabha considered and returned the Appropriation Bill.

In Lok Sabha, Motion regarding price rise, calling upon the Government “to take immediate effective steps to check inflation that will give relief to the common man”, moved by Shri Yashwant Sinha was discussed and adopted without voting.

One Bill replacing the Ordinance, namely, the Indian Medical Council (Amendment) Ordinance, 2011 which was promulgated by the President, was considered and passed by both the Houses of Parliament during the Session. Another Ordinance, namely, the Indian Institute of Information Technology, Design and Manufacturing, Kancheepuram Ordinance, 2011 which was promulgated by the President, could not be replaced by an Act of Parliament.

In the Lok Sabha, five Short Duration Discussions under Rule 193 were held on (i)Commonwealth Games, 2010; (ii) Relief and resettlement of Tamils in Sri Lanka; (iii) Setting up of Lokpal and certain events that took place on 16.08.2011 in Delhi; (iv) Widespread corruption in the country; and (v) issues relating to setting up of a Lok Pal.

In the Rajya Sabha, four Short Duration Discussions under Rule 176 were held on (i) Growing incidents of terrorism in the country; (ii) Commonwealth Games, 2010; (iii) Growing incidence corruption in the country; and (iv) Problems being faced by Sri Lankan Tamils. Besides, clarifications were sought on the statement made by Prime Minister on setting up of a Lok Pal.

Besides, 2 Calling Attentions in Lok Sabha and one Calling Attention in Rajya Sabha were discussed.  One Half-an-hour discussion each in Lok Sabha and Rajya Sabha was also discussed.

During the Session, 14 Bills (11 in the Lok Sabha and 3 in the Rajya Sabha) were introduced.  The Lok Sabha passed 13 Bills and the Rajya Sabha passed 09 Bills during the session. A list containing the titles of the Bills introduced, and, considered and passed during the Session is given below:

 

 

LEGISLATIVE BUSINESS TRANSACTED DURING EIGHTH SESSEION OF FIFTEENTH LOK SABHA AND 223rd SESSION OF RAJYA SABHA

(MONSOON SESSION, 2011)

 

I – BILLS INTRODUCED   IN LOK SABHA

 

1.       The Indian Medical Council (Amendment) Bill, 2011

2.       The Lokpal Bill, 2011

3.       The Indian Institute of Information Technology, Design and Manufacturing, Kancheepuram Bill, 2011

4.       The Appropriation (No.3) Bill, 2011

5.       The Damodar Valley Corporation (Amendment) Bill, 2011

6.       The Customs (Amendment and Validation), Bill, 2011

7.       The Benami Transactions (Prohibition) Bill, 2011

8.       The National Academic Depository Bill, 2011

9.       The Land Acquisition, Rehabilitation and Resettlement Bill, 2011

10.   The Nuclear Safety Regulatory Authority Bill, 2011

11.   The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2011

 

II – BILLS PASSED BY LOK SABHA

 

1.       The Appropriation (No.3) Bill, 2011

2.       The State Bank of India (Subsidiary Banks Laws) Amendment Bill, 2009

3.       The Transplantation of Human Organs (Amendment) Bill, 2009

4.       The National Institutes of Technology (Amendment) Bill, 2010

5.       The Customs (Amendment and Validation) Bill, 2011

6.       The Indian Medical Council (Amendment) Bill, 2011

7.       The Jawaharlal Institute of Post Graduate Medical Education and Research, Puducherry (Amendment) Bill, 2011

8.       The Indian Institute of Information Technology, Design and Manufacturing, Kancheepuram Bill, 2011

9.       The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2011

10.   The National Council for Teacher Education (Amendment) Bill, 2011

11.   The Academy of Scientific and Innovative Research Bill, 2010

12.   The Orissa (Alteration of Name) Bill, 2011

13.   The Constitution (One Hundred and Thirteenth Amendment) Bill, 2011

 

III – BILLS INTRODUCED  IN RAJYA SABHA

1.       The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Bill, 2011

2.       The Border Security Force (Amendment) Bill, 2011

3.       The Administrators-General (Amendment) Bill, 2011

 

IV – BILLS PASSED BY RAJYA SABHA

1.       The Jawaharlal Institute of Post Graduate Medical Education and Research, Puducherry (Amendment) Bill, 2010

2.       The Appropriation (No.3) Bill, 2011

3.       The Coinage Bill, 2011

4.       The Juvenile Justice (Care and Protection of Children ) Amendment Bill, 2010

5.       The National Council for Teacher Education (Amendment) Bill, 2010

6.       The State Bank of India (Subsidiary Banks Laws) Amendment Bill, 2011

7.       The Transplantation of Human Organs (Amendment) Bill, 2011

8.       The Indian Medical Council (Amendment) Bill, 2011

9.       The Customs (Amendment and Validation) Bill, 2011

 

ORIGIN:  http://www.lawyersclubindia.com/news/14-Bills-11-in-the-Lok-Sabha-and-3-in-the-Rajya-Sabha-introduced-during-the-Monsoon-Session-13334.asputm_source=newsletter&utm_content=news&utm_medium=email&utm_campaign=nl_15_09_2011

Indian courts can try offences committed by Indian in foreign country, rules Bench

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PUBLISHED IN THE HINDU

But prior consent of Central government (under Section 188 Cr.P.C.) is required

A dowry or any other offence committed by an Indian husband against his wife in a foreign country can be tried by a court in India, the Supreme Court has held.

A three-judge Bench of Justice Altamas Kabir, Justice Cyriac Joseph and Justice S.S. Nijjar said “the provisions of Indian Penal Code have been extended to offences committed by any citizen of India in any place within and beyond India by virtue of Section 4 thereof.”

The Bench, however said that offences committed by an Indian citizen in a foreign country would be amenable to provisions of IPC subject to the limitation imposed under Section 188 Cr.PC, viz seeking the prior consent of the Central government.

In the present case, the appellant Thota Venkateswarlu was married to Parvatha Reddy Suneetha in November 2005 as per Hindu traditions and customs in Ongole in Andhra Pradesh. At the time of marriage Rs. 12 lakh in cash, 45 sovereigns of gold and Rs. 50,000 as ‘Adapaduchu katnam’ was alleged to have been given to the husband, mother-in-law, and other relatives of the husband.

According to Suneetha, her husband left for Botswana in January 2006 and she later joined him. While in Botswana, she was allegedly severely ill-treated and various demands were made including a demand for additional dowry of Rs. 5 lakh. Unable to withstand the torture she sent a complaint to the Superintendent of Police, Ongole for dowry offences under IPC as well offences under the Dowry Prohibition Act.

The magistrate, to whom the complaint was forwarded took cognisance and issued summons to the husband and others, who were questioned on their arrival to India. While the Andhra Pradesh High Court quashed proceedings against the appellant’s mother and two others, it dismissed his plea. The present appeal by Venkateswaralu is directed against this order.

The appellant’s wife argued that part of the offence relating to dowry was committed in Indian soil and part of the offence was committed abroad. Hence the offence could be tried in Indian courts. However, the appellant argued that he could not be tried without the previous sanction from the Central government.

Writing the judgment Justice Kabir pointed out that it was clear that the case relating to the alleged dowry offences were committed outside India. But since part of the offence was committed in India, the court here could try the appellant and the High Court was correct in rejecting his plea to quash the proceedings. The Bench while asking the trial court to take up the case said, the trial would not proceed without the sanction of the Central government as envisaged in Section 188 Cr.P.C.

Reprieve from death

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T.S. SUBRAMANIAN IN THE FRONTLINE

DEATH CONVICTS IN THE RAJIV GANDHI ASSASSINATION CASE

The delay of over 11 years by the President to decide the mercy pleas of Rajiv Gandhi’s killers dominates the debate on the issue.

WHY was there a delay of more than 11 years before the President of India decided on August 11 to reject the clemency petitions of Murugan, Santhan and Perarivalan, who had been sentenced to death in the Rajiv Gandhi assassination case? The question came to the fore after it became known that the President had rejected their petitions. Officials of the Central Prison, Vellore, subsequently decided to hang them on September 9, but on August 30 the Madras High Court stayed their execution.

The Supreme Court reconfirmed the death sentences awarded to Nalini, Murugan, Santhan and Perarivalan in October 1999. On April 24, 2000, M. Fathima Beevi, Governor of Tamil Nadu then, commuted the death sentence awarded to Nalini, wife of Murugan, on the grounds that she was a woman and had a daughter; but she rejected the clemency petitions of the other three. The three sent separate clemency petitions to the President on April 26, pleading that they had undergone solitary imprisonment for eight years, which alone could be a mitigating factor for commuting their death sentences. The President’s decision came after 11 years and four months.

Following this, Vaiko, leader of the Marumalarchi Dravida Munnetra Kazhagam (MDMK) and N. Chandrasekaran, advocate, filed petitions on behalf of the trio in the Madras High Court. Senior Advocates Ram Jethmalani, R. Vaigai and Colin Gonsalves, who appeared for Murugan, Santhan and Perarivalan respectively on August 30 before a Division Bench comprising Justices C. Nagappan and M. Sathyanarayanan, argued that the 11-year delay made the death penalty illegal and unconstitutional. The sentence of death after the three had spent 20 years in jail was “unjust and inhuman”, they said.

“Unless the delay is properly explained or justified,” Jethmalani argued, “it makes the death penalty immoral, illegal and, according to me, unconstitutional.” He told the judges: “You must start with the assumption that more than two years’ delay is, prima facie, wrong.” Jethmalani quoted from various Supreme Court and High Court judgments, including the apex court’s ruling in the Chinnappa Reddy case, to argue that the 11-year delay could be the sole ground for commuting the death sentence.

Vaigai and Gonslaves argued that the delay was “unconscionable”. By no yardstick could a government sit on a mercy petition for so many years. The delay made the execution of death sentence unconstitutional, Gonslaves argued. He said Article 21 of the Constitution made it mandatory that no person should be deprived of his life or personal liberty except according to the procedure established by law. Taking 11 years to dispose of the mercy petitions was not a procedure established by law, he said.

The arguments were heard in a courtroom packed with a couple of hundred advocates. The judges said in their brief order that the main contention raised in all the writ petitions was the delay in the disposal of the mercy petitions. “Since the matter involves consideration of question of law, the petitions are admitted and there shall be an order of interim injunction. Counter by eight weeks.” Additional Solicitor-General M. Ravindran and Advocate-General A. Navaneethakrishnan took notice for the Union government and the State government.

Assembly resolution

As news of the stay spread, the several hundred advocates gathered on the High Court premises rejoiced. Arputhammal, mother of Perarivalan, thanked Jethmalani with clasped hands as a beaming Vaiko stood by. There was more rejoicing when news came in on the same day that the Tamil Nadu Assembly had passed unanimously a resolution urging President Pratibha Patil to reconsider the clemency petitions.

The President should take into account the sentiments of the people of Tamil Nadu and the opinions of the political parties, the resolution said. The Congress members did not oppose the resolution. The Dravida Munnetra Kazhagam (DMK) members were not present in the House.

The resolution, piloted by Chief Minister J. Jayalalithaa, marked a significant change in the ruling All-India Anna Dravida Munnetra Kazhagam‘s (AIADMK) stand. Only the previous day had she told the Assembly that as Chief Minister she had no powers to stop the executions after the President had rejected the mercy petitions. This had been made clear in a Union Home Ministry Communication dated March 5, 1991, which said: “In case of death sentences where a petition for grant of pardon, etc., has earlier been rejected by the President of India in exercise of his powers under Article 72 of the Constitution of India, it would not be open for the Government of a State to seek to exercise similar powers under Article 161 in respect of the same case. However, if there is a change of circumstances or if any new material is available, the condemned person himself or anyone on his behalf may make a fresh application to the President for reconsideration of the earlier order. Once the President has rejected a mercy petition, all future applications in this behalf should be addressed to and would be dealt with by the President of India.”

Jayalalithaa also accused the DMK of adopting “double standards” and enacting “a deceitful drama”. Several political parties, Arputhammal and DMK president M. Karunanidhi had appealed to her to stop the executions. Jayalalithaa recalled that it was under Karunanidhi’s chief ministership in 2000 that the State Cabinet recommended rejection of the mercy petitions of Murugan, Santhan and Perarivalan. (The Cabinet took the decision on April 19, 2000, and the Governor, accepting its advice, passed the order on April 24.) If, after recommending the rejection of the mercy petitions of the three to the Governor, “Mr. Karunanidhi issues a statement that their lives should be saved, people of Tamil Nadu should ponder whether it is not tantamount to adopting double standards and performing a drama?” Jayalalithaa said.

Karunanidhi, however, turned the tables on Jayalalithaa. He said that on April 27, 2000, an AIADMK member opposed in the Assembly even the commutation of the death sentence awarded to Nalini. Jayalalithaa, too, had objected to the commutation. In a statement published in the AIADMK party organ Namadhu MGR (Our MGR) on October 23, 2008, she had attacked the delay in executing the death sentences awarded to the trio.

Karunanidhi said: “The three persons have spent more than 20 years in jail, which is virtually tantamount to death sentences. So the DMK wants the [death] sentence to be reconsidered. Since Murugan, Santhan and Perarivalan have spent more than 20 years in prison, it should be treated as if they had fully undergone the punishment awarded to them and they should be freed. The DMK appeals to the Centre to take steps in this direction.”

The assassination case

On May 21, 1991, former Prime Minister Rajiv Gandhi was assassinated at Sriperumbudur near Chennai by Dhanu, a belt-bomb assassin belonging to the Liberation Tigers of Tamil Eelam (LTTE). After a meticulous investigation, the Special Investigation Team (SIT) of the Central Bureau of Investigation (CBI) headed by D.R. Karthikeyan charge-sheeted 41 people in the case. The SIT said the LTTE was behind the assassination. Of the 41 accused, three were absconding and could not be tried. They were the LTTE chief V. Prabakaran, its intelligence wing chief Pottu Amman, and deputy chief of the LTTE women’s intelligence wing, Akila. Twelve among the 41 died, and so charges against them abated. The remaining 26 stood trial in the designated court at Poonamallee near Chennai. In his judgemnt delivered on January 28, 1998, the designated judge, V. Navaneetham, pronounced all 26 guilty under Section 102-B (murder) read with Section 302 (murder) of the Indian Penal Code and provisions of the Terrorist and Disruptive Activities (Prevention) Act, or TADA.

The charge against Prabakaran was that he ordered the assassination. Pottu Amman conspired with Prabakaran to carry it out. The charge against Akila was that she, in tandem with them, planned the assassination and arranged for its execution. Dhanu, an LTTE cadre, was to carry out the assassination along with Subha. Sivarajan, LTTE intelligence wing member, led the nine-member assissination squad, which reached Kodiakkarai in Tamil Nadu from the Jaffna peninsula on May 1. Sivarajan and Subha committed suicide at Konankunte, near Bangalore, on August 19, 1991, when cornered by the SIT.

The charge sheet said Nalini, an Indian national and wife of Murugan, accompanied Sivarajan, Dhanu, Subha and Haribabu to the assassination site. Murugan, a Sri Lankan Tamil and LTTE intelligence wing cadre, acted as a conduit between Sivarajan and Nalini’s family. According to the charge sheet, Murugan knew that Rajiv Gandhi was the target; Santhan, also a member of the LTTE intelligence arm, was a member of the squad; and Perarivalan, an Indian citizen, helped Sivarajan and Murugan in planning and executing the conspiracy. He bought two battery cells on Sivarajan’s instructions and gave them to him. They were used by Dhanu in her belt-bomb. Perarivalan also bought a battery to operate an illegal wireless set, which was installed in Vijayan’s (another accused in the case) house to send messages to Pottu Amman. Perarivalan bought the Kodak film used by Haribabu, photographer, to film the assassination. Haribabu died in the blast.

After the designated court awarded death sentences to all the 26 accused, they appealed in the Supreme Court. On May 11, 1999, Justices K.T. Thomas, D.P. Wadhwa and Syed Shah Mohammed Quadri confirmed the death sentences awarded to Nalini, Murugan, Santhan and Perarivalan but “altered” the death sentences awarded to Robert Payas, Jayakumar and Ravichandran to life imprisonment.

Justice Thomas disagreed with Justices Wadhwa and Quadri on confirming the death sentence awarded to Nalini. In his dissenting judgment, Justice Thomas said, “She became an obedient participant without doing dominant role. She was persistently brainwashed by A-3 [Murugan] who became her husband and then the father of her child…. She realised only at Sriperumbudur that Dhanu was going to kill Rajiv Gandhi. But she would not have dared to retreat from the scene because she was tucked into the tentacles of the conspiracy…. She knew how Sivarajan and Santhan had liquidated those who did not stand by them…” ( Frontline, November 5, 1999). Justice Thomas added that it could not be overlooked that she was the mother of a little girl who was born in captivity. Since the death sentence had been confirmed on the father Murugan and the child had to be saved from “imposed orphanhood”, the judge said, “the sentence passed on her is altered to one of imprisonment for life”.

Of the 19 other accused, the judges absolved 18 of taking part in the conspiracy. Although the judges confirmed the sentences awarded to them by the lower court under the Arms Act, the Explosive Substances Act, the Passport Act, and so on, they were freed because they had already served out their terms. S. Shanmugavadivelu, who was charged only under TADA, was acquitted.

Nalini, Murugan, Santhan and Perarivalan filed petitions in the Supreme Court, seeking a review of the death sentences awarded to them. On October 8, 1999, Justices Thomas, Wadhwa and Quadri reconfirmed the death sentences. Justice Thomas, who gave the dissenting judgment with regard to Nalini, said her review petition “should be allowed and her sentence should be altered to imprisonment for life”.

After the Supreme Court ruling in October 1999, Fathima Beevi accepted the recommendation of the Karunanidhi Cabinet in April 2000 to commute the death sentence awarded to Nalini to imprisonment for life. Congress president Sonia Gandhi met President K.R. Narayanan and conveyed her family’s view that Nalini’s life should be spared. “It is my personal feeling, keeping in mind a child’s need for a mother,” Sonia Gandhi said ( Frontline, May 26, 2000). Fathima Beevi rejected the petitions of Murugan, Santhan and Perarivalan. They sent clemency petitions to the President on April 26, 2000. President Pratibha Patil’s rejection of the petitions led to protests across Tamil Nadu.

SOURCE: http://www.frontline.in/stories/20110923281912700.htm

Half a victory

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Abhishek Manu Singhvi, Indian politician, spea...

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VENKITESH RAMAKRISHNAN  IN THE FRONTLINE

Team Anna wins the first round, but the way ahead in the fight against corruption is full of uncertainties.

“A BATTLE has been won in the campaign for cleansing public life through the rallying of vast sections of people across the country. But a purposive piece of legislation has finally to be passed by Parliament even to rate this victory as truly meaningful. Indeed, the state of peace that has descended after the tumult is pregnant with uncertainties. Uncertainties of such dimensions that no one has a clue as to what this will ultimately deliver.” These words spoken by a key player in the negotiations between Team Anna and the United Progressive Alliance (UPA) government during the tumultuous 12-day fast undertaken by Anna Hazare, which rocked the national capital and most other parts of the country, sum up the mood prevailing among individuals and groups that would play a role in the drafting and passage of a new Lokpal Bill. The government, the big and small opposition parties with representation in Parliament, Team Anna and various other institutions and bodies that have come up with suggestions on the proposed Bill, such as the Aruna Roy-led National Campaign for People’s Right to Information (NCPRI) and the Udit Raj-led Justice Party, all share these uncertainties and the lack of clarity about the future.

At the moment, of course, the prime mover is the Standing Committee of Parliament, chaired by Congress leader Abhishek Manu Singhvi. The committee is expected to take up and initiate negotiations on the various proposals from different sides sometime in September itself. Central to these negotiations are the three points on which Parliament expressed its sense-of-the-House agreement in response to Team Anna’s demands. The sense-of-the-House resolution stated that the issues of “Citizens’ Charter, Lower Bureaucracy also to be under the Lokpal through appropriate mechanism, and establishment of Lokayuktas in the States” would be taken up by the Standing Committee. This process itself has historic dimensions because it is for the first time that the members of the Standing Committee will be discussing the provisions of an already introduced government Bill in response to a sense-of-the-House resolution suggesting incorporation of new provisions.

The mainstream political parties and Team Anna expect this process of the Standing Committee to be completed before the winter session of Parliament. On their part, both Union Finance Minister Pranab Kumar Mukherjee, who emerged as the most important player on the government side during the latter stages of the anti-corruption agitation, and Anna Hazare himself have come up with public postures that have signified a sense of caution and accommodation, which in turn is considered conducive to the smooth conduct of deliberations. In repeated comments to the media after Anna Hazare concluded his fast on August 28, Mukherjee made it clear that the government had bowed before people’s power and its genuine representative leader. Anna Hazare responded by agreeing that there was a lot more to be done peacefully to take the negotiations to the level of fruition. Asserting that “this is only half a victory”, he said he was confident that Members of Parliament would not go back on their word to provide “an effective and strong Lokpal”.

While this sense of accommodation and optimism bodes well for deliberations in the future, large sections of public opinion still harbour apprehensions as to how things will unfold. Speaking to the media immediately after Anna Hazare ended his fast, Infosys founder V. Narayana Murthy hailed the ‘in principle’ agreement of Parliament to the demands put forward by Team Anna but added that it was only the first step. “We have to go through the process of implementation and take it to success. And that is the toughest part. For implementation is the Devil.”

According to Professor Nil Rattan of the Patna-based A.N. Sinha Institute of Political Studies, the apprehensions about implementation have arisen essentially on account of the very track record of the players involved in the process. “Both sides have shown intransigence at different times. While the government has bumbled about from one mistake to another for long spells while addressing the issue, Team Anna had initially taken the obstinate position that nothing short of its version, the Jan Lokpal Bill, would do. The present atmosphere for deliberations could be arrived at only because the government rectified some of its mistakes and Team Anna was ready to come down on some of its demands like bringing the higher judiciary under the ambit of the Lokpal. What is the guarantee that this will stand? Who knows whether sections of the government will embark on some adventurist path again,” Nil Rattan told Frontline.

Indeed, the UPA’s track record in handling the early days of Anna Hazare’s August agitation is pathetic. Almost every section of the government, starting with Prime Minister Manmohan Singh, kept on making mistakes. Interventions by Home Minister P. Chidambaram and Telecommunications Minister Kapil Sibal made matters worse. Finally, Congress general secretary Rahul Gandhi contributed his mite to the rank confusion in the ruling establishment. These mistakes were in many ways directly proportional to the rising popularity of Anna Hazare.

Undoubtedly, the biggest mistake was the imprisonment of Anna Hazare on August 16, that too in Tihar jail, where people like Suresh Kalmadi and A. Raja, who were arrested on charges of corruption, are incarcerated. Subsequently, an official spokesperson of the Congress classified Anna Hazare as a “top to bottom” corrupt person.

Interestingly, the decision to take Anna Hazare to Tihar jail was made in an apparent effort to keep him away from the crowds. The political bosses and the administrative-bureaucratic leadership, especially of the Home Ministry, had reportedly considered different options, such as placing him in a government or private guest house or moving him out to Ralegan Siddhi (his hometown in Maharashtra), but finally decided against all these, fearing that his supporters would gather in front of the guest house or at Ralegan Siddhi. Informed sources said that they finally decided to shift him to Tihar because it was thought that the jail would not be accessible to Hazare’s supporters. But what happened was the exact opposite. Crowds gathered at Tihar in big numbers, forcing the government to order his release.

In the days following his release, and during the fast undertaken by him at the Ramlila Grounds, Anna Hazare was perceived as the symbol of all that is positive in society and in many ways the one-stop solution for all social problems. Various organisations, such as sections of the Rashtriya Swayamsewak Sangh (RSS)-led Sangh Parivar and non-governmental organisations of different hues and patterns of funding, pitched in for crowd mobilisation. Cumulatively, the impact of genuinely inspired participation and motivated organisational mobilisation resulted in massive crowds at the maidan.

Meanwhile, the government made another faulty move: it stated that Parliament cannot give up its supremacy. This when it had undermined Parliament in April by calling Team Anna to draft the Lokpal Bill and keeping the opposition parties out of the drafting committee. While this move was made by the Prime Minister, Rahul Gandhi made a facile attempt to score some brownie points through an intervention in Parliament highlighting the same supremacy-of-Parliament position.

Ultimately, it required the intervention of some youth power from the government side itself to untangle the mess that senior politicians such as Manmohan Singh, Chidambaram and Sibal had created. It was through the good offices of a young Delhi MP, Sandeep Diskshit, that the government built channels of communication with Team Anna and managed to bring about a solution. To start with, Dikshit’s intervention was followed by an appeal from Manmohan Singh to Anna Hazare to withdraw the fast. He made this appeal even while crediting Anna Hazare with valid slogans representing the people’s aspirations.

However, in the euphoria created by this collection of crowds day after day, shrill voices questioning the very legitimacy of political processes and leaderships were heard from the Ramlila podium – from Team Anna leaders including Anna Hazare, Kiran Bedi and Arvind Kejriwal, and supporters such as the actor Om Puri. The campaign was such that it sought to raise visions of an apolitical leadership replacing politics in the country. Voices like those of the social activist Swami Agnivesh, which emphasised the need to accord validity to political leaderships and elected representatives, were fiercely criticised by the volunteers of Team Anna and by sections of the crowd. Agnivesh’s comment that Hazare ought to have responded positively to Manmohan Singh’s appeal was targeted for special vitriolic treatment by many of Team Anna’s supporters.

Despite this, the government persisted with its efforts at negotiation. It was in this process that Pranab Mukherjee’s role came to the fore, even though Chidambaram and Kapil Sibal continued to argue that a tough line would ultimately compel Team Anna to compromise. This tussle on strategy reflected in a different manner within Team Anna too. Though voices like those of Swami Agnivesh had been sidelined, there also developed an impression that Kejriwal and Kiran Bedi were pushing things to the brink. A group within Team Anna, including senior lawyer Prashant Bhushan, took the lead in meeting a number of political leaders, particularly in the opposition BJP and the Left. These initiatives were supplemented by the Mukherjee-led negotiations.

Gradually, sections of Team Anna that had raised a rant against the political class as a whole had to listen to the less aggressive sections. And, it was this that finally led to the discussion of Anna’s demands in Parliament and the final passage of the resolution.

Notably, when Anna Hazare’s fast was withdrawn on August 28 following the passage of the resolution, Kejriwal made it a point to underline the fact that at no point of time had Team Anna sought to denigrate the entire political class as corrupt. While this was sought to be presented as a clarification, many observers perceived the effect of a corrective reverse pressure in this statement.

The passage of the resolution in Parliament and the acknowledgement of Anna’s agitation methods by parliamentarians have evoked high praise, especially from sections of the media, some of whom have described the agitation as the most phenomenal people’s movement to have happened in the history of independent India. In fact, some commentators have even gone to the extent of suggesting that there could be a classification of national politics as pre-Anna and post-Anna phases.

While it is true that the agitation and the fast touched an emotive chord in large sections of the people, including the middle class which has never participated actively in political initiatives, the fact remains that many other movements, ranging from the struggle for land reforms to the empowerment of Dalits, have had more lasting historical impact on Indian society.

Professor Sudhir Panwar, an Uttar Pradesh-based social activist associated with the Kisan Jagriti Manch, who supported the Anna Hazare agitation as a significant effort to initiate a new democratic discourse in the country’s political system, also pointed out that the increased participation of the middle class had helped get enhanced media attention to the movement compared with other grass-roots initiatives such as those of farmers and agricultural workers.

“The fact is the issue of corruption, especially corruption by the political class, is so pervasive and the fight against it has such widespread resonance that even those who have never thought of the country and its people in a larger sense joined in,” he said.

Panwar pointed out that the middle class, which had assiduously kept away from politics and refused to respond to phenomenal political developments such as the demolition of the Babri Masjid and the Gujarat riots of 2002, was triggered into action on political and other forms of corruption also because of the global economic crisis and its impact on day-to-day life.

Panwar emphasised that the leaders of Team Anna should use this opportunity to broadbase the movement with a larger understanding of other social issues and an earnest incorporation of other social movements. “Only then will this have a lasting impact,” he stated.

Naturally, this would involve adopting a more open approach to issues such as the demands of Dalits and backward classes in relation to the Lokpal and looking at broader issues such as the impact of neoliberal policies. Team Anna has announced its resolve to continue struggles in new areas such as electoral reforms, which will include the right to recall and the right to reject legislators. It has also stated that it will strive for decentralisation of power through the greater empowerment of gram sabhas and mohalla sabhas.

A one-line overview of the national political situation in the context of the agitation and the related developments was provided by Pranab Mukherjee when he said, “We are at a crossroads.” It was with this phrase that Mukherjee began his speech marking the beginning of the August 27 debate in Parliament on the Lokpal Bill.

Clearly, as the statement implies, it is time to move with caution to enhance the democratic content of the nation and its institutions and systems. It is a message that applies equally to the largely discredited and beleaguered political class as also to the new civil society players who have had a modicum of success in initiating a corrective process.

And exactly because of this success, Team Anna needs to be extra cautious in what it preaches and practises. For, the hallucination among some of its leaders that India is Anna and Anna is India militates against the very concept of democratic discourse.

Justices delayed: SC down, Judge vacancies pile up

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SUPREME COURT OF INDIA

MANEESH CHIBBER in INDIAN EXPRESS

At a time when the collegium system of appointment of Judges is under attack, the Supreme Court — with over 50,000 cases pending before it — will soon be working at less than 75 per cent of its total sanctioned strength of Judges. By October 15, seven Judges of the apex court will retire, the largest number of retirements in a single year since Independence.

And that’s just the position in the country’s highest court. The biggest court in India, Allahabad High Court, has been functioning with just 62 of its total 160 approved strength of Judges, as reported by The Indian Express (nine more will join tomorrow). The Gujarat HC, with a sanctioned strength of 42, has 18 vacancies; while Punjab and Haryana HC has just 43 Judges, against a sanctioned strength of 68.

In all, data compiled by the government shows, of the total 895 posts of Judges sanctioned in the 21 HCs in the country, only 610 are currently filled — a gap of 285. This year, in fact, saw the highest number of posts falling vacant in HCs in a calendar year since 1990. However, only 41 new appointments have been made so far in 2011.

The subordinate judiciary is not much better placed. Data collected by the Supreme Court says that as of December 31, 2010, out of the sanctioned strength of 17,151 posts in states and Union Territories, 3,170 were vacant, with Bihar (389 vacancies), Gujarat (361), Uttar Pradesh (294) and Maharashtra (234) leading the list.

Even though the Supreme Court collegium headed by Chief Justice of India S H Kapadia has recommended three names — two HC Chief Justices and one Judge of Bombay HC — even if they are able to take oath by October 15, the number of vacancies in the apex court will still be six out of 31.

“Even though at every meeting of chief ministers and Chief Justices, the judiciary is requested to recommended names for elevation to the Bench at least three months before an anticipated vacancy, it is never done. Today, except for the Himachal Pradesh High Court, there is no court that is working at full strength. Though the sanctioned strength of the Jammu and Kashmir HC is 14, the court is functioning with just seven judges. In most cases, the HC collegium has not met even once in the last one year to recommend names,” said a senior government functionary.

Sikkim, the country’s smallest court with a sanctioned strength of three judges, has just one judge, who was designated Acting Chief Justice after the resignation of Justice P D Dinakaran last month.

The other HCs with a significant number of vacancies are Andhra Pradesh (16), Bombay (14), Calcutta (14), Rajasthan (13) and Chhattisgarh (12).

The highest number of appointments made in a single year was 110 in 2006 when Justice Y K Sabharwal was the CJI and H R Bhardwaj the Union law minister.

http://www.indianexpress.com/news/justices-delayed-sc-down-judge-vacancies-pile-up/841693/2