Monday 21 November 2022

JUDICIAL PERFIDIES-22

 

Let me begin this critique by quoting from a report of 23 Sep, 2022 - ‘Kerala High Court initiates suo motu case against PFI bandh in Kerala’ (https://www.mid-day.com/news/india-news/article/kerala-high-court-initiates-suo-motu-case-against-pfi-bandh-in-kerala-23247140 :

Kerala High Court on Friday initiated a suo motu case against Popular Front of India (PFI) leaders who called for a strike in the state against the arrest of its members by the National Investigation Agency.

Notably, as per a Kerala HC order on January 7, 2019, nobody can call for a bandh in the state without prior notice of seven days.

According to the police, stone-pelting incidents were reported at various places in the state.

Two police officers were attacked earlier today by the hartal supporters at Pallimukku in the Kollam district.

The first issue that comes to mind is the preposterousness of somebody deciding that a bandh can be enforced on the public at large with 7 days notice. Where is the rationale, forget about sense of justice, in someone bloodying your nose with 7 days notice? Isn’t it the most fundamental principle of jurisprudence that your liberty ends where my nose begins? The right to protest is certainly a safety valve for aggrieved persons and almost a fundamental right in a democracy. But how can that extend to violating somebody else’s equally fundamental right not to protest?

I have mentioned in an earlier part of this series how the same court had declared bandhs illegal long back and the apex court had upheld that decision. Thereafter, the same means of protest has continued to be perpetrated by calling it hartal.

My effort to get copies of the two court orders, to find out if it was the term bandh that was held illegal or the activities that went with it, was also thwarted by the Public Information Officer of the High Court who denied it claiming that it was part of judicial proceedings and it was exempted from disclosure as per the High Court Rules on the RTI Act. 

Even the extract of the report above, exposes the confusion prevailing about the brazen violation of the fundamental right of the majority of citizens that follows a call for hartal, aka bandhs. That it disrupts normal lives and causes untold misery to the general public goes without saying. What about destruction of property, public as well as private? And when police personnel are injured in the violence unleashed by the mobs, the plight of helpless individuals can well be imagined.

There was another report that the Kerala State Road Transport Corporation has filed for damages to their buses to the tune of Rs 5 crores. But the poor police personnel? Will they be able to seek compensation too? Or is it just a part of their job description?

That brings me to another preposterous decision by the apex court- of registering FIRs in cases of civilian deaths in counter insurgency areas.

Jay Bhattacharjee, working in the areas of Corporate Law and Finance, has written about this in his widely read book, Resurgent Bharat and Other Issues- An anthology of Essays.  In the essay ‘Our armed forces severely handicapped when fighting terror’, on the decision of the apex court in criminal writ petition 129/2012, he has written that the SC virtually made our armed forces run a one legged race and compelled our military to fight the enemy with one hand tied behind its back.

Let me take a detour here to place some relevant facts on record.

This is what K R Naryanan, former President, had written, long before he occupied that highest office of the nation, in an article Fragile Chimera, published in the Illustrated Weekly of India (6-12/09/1987):

A historian once remarked- few men are so disinterested as to prefer to live in discomfort under a government that they hold to be right rather than in comfort under one which they hold to be wrong. In politics and administration it is not enough to be right. It is imperative that the goods are delivered to the people, there is law and order and a general sense of comfort and above all a common sense of unity in the country and society.

We all know that the majority of the people want to live a comfortable, peaceful and happy life. Taking to violent means of protest is the last step that any ordinary human being would think of. But to reach that level he must have face gross disappointments with all the means available for redressal of his grievances, the ultimate being the judiciary. So, insurgencies are a sign of the total failure of the government as a whole but specifically of the judiciary, ultimately.  It is at this stage that the government depends on its sword arm for succor.

The military, obviously, lives on the ethos: do or die.  They are fed on the diet that there are no runners up in war. Though politically it may not be correct to refer to counter-insurgency operations as war, the fact is it is worse than war for the soldiers. In war, at least there is a known enemy.  In counter insurgency operations the enemy is not distinctly identified. There have been many cases reported of soldiers who, while leaving buildings/ areas after cordon and search operations, have been shot in their back by women whom they had refused to identify as insurgents or collaborators of insurgents.

There is no denying that there are bound to be mistakes when troops operate in insurgency affected areas, with their own lives on the line. And that is why the Armed Force Special Powers Act is invoked when army is launched in such operations. This, and only this, is the armour that protects from witch hunting later. And it is this armour that was rendered useless by the apex court bench of Madan Lokur and U U Lalit in Jul 2016.

As far as mistakes are concerned, given the army’s obsession with its image, more often than not, even minor mistakes are taken seriously and those involved punished in exemplary manner. Case in point: the Sukhna land scam.  A Lt General, then Military Secretary, was dismissed from service for showing undue interest in transferring land near a military establishment to a private party to establish an educational institution.

Again, just for the records, the babus, playing around with files, have a law that is invoked quite often and without much ado- obstructing a public servant in the discharge of his functions.

Section 186 of the Indian Penal Code reads as: Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

And we have the preposterous, undemocratic Contempt of Court Act, at the disposal of our judges, who have opposing parties presenting some facts, some laws and some case laws leaving the judge with all the freedom to decide in favour of any one of them, again without much ado.

This brings me to the report ‘Retired CJIs, SC judges to get lifetime domestic help, chauffeur’ at https://www.freepressjournal.in/india/retired-cjis-sc-judges-to-get-lifetime-domestic-help-chauffeur. As per this report:

Ø  A Chief Justice of India will now get a domestic help, a chauffeur, and a secretarial assistant for lifetime from the day he or she demits office.

Ø  A retired CJI will also be entitled to a security cover round-the-clock at their residence along with a 24X7 personal security guard for five years from the date of retirement.

Ø  If a retired CJI or a retired judge of the top court is already provided a 'higher grade' security on the basis of threat perception, 'the higher grade security already provided shall continue'

Ø  The benefits of the amended rules will now be extended to all living former CJIs and retired Supreme Court judges.

Ø  "The post-retirement benefits under this rule shall be admissible to the retired Chief Justice (of India) or the retired Judge (of SC) if no such facilities are availed from any High Court or from any other government body where the retired Chief Justice or a retired Judge has taken up any assignment after retirement,"

Just look at the wanton abuse of authority or can it be dismissed as mere placating? Though in this case it cannot be directly blamed on the judges, there was a report, dated 07 August 2021 titled ‘Chief Justice of India N V Ramana seeks special force for protecting judges’ (https://economictimes.indiatimes.com/news/india/chief-justice-of-india-n-v-ramana-seeks-special-force-for-protecting-judges/articleshow/85119242.cms). But one should certainly acknowledge the glaring unfairness of soldiers deployed in counter insurgency areas being subjected to prosecution when those sitting in judgment in air conditioned rooms, are being provided security cover not only while in service but also after retirement.

Coming back to Jay Bhattacharjee, he has written: Without apologizing for mixing metaphors, this writer would say that the judges poured vinegar on raw wounds and threw the ball back to the Union Government’s court, saying that the latter should take steps to protect the legitimate concerns of soldiers and this was not the job of the court.

Meanwhile there has been an interesting development. The 2009 criminal contempt of case against Adv Prashant Bhushan has been dismissed. The case involved Prashant Bhushan alleging that 8 Chief Justices of India were corrupt, in an interview with Tehelka and which was published by Tehelka. The editor was also facing contempt charges. 12 years after initiation of proceeding by a three member bench, it was dismissed on 30 Aug 2022 by another three member judge. The reason as reported at https://www.livelaw.in/top-stories/supreme-court-closes-2009-contempt-case-against-prashant-bhushan-tarun-tejpal-207860 is : "In view of the explanation/apologies made by the contemnors, we don't deem it necessary to continue matter". Senior Advocate Kamini Jaiswal appearing for Bhushan submitted that he has given an explanation for his statement. Senior Advocate Kapil Sibal, appearing for Tarun Tejpal, the editor of Tehelka Magazine, submitted that he has apologized. As per the Hindu (https://www.thehindu.com/news/national/supreme-court-drops-contempt-case-against-prashant-bhushan-for-corruption-remarks-in-tehelka/article65828997.ece) it had brought to the fore several cardinal issues, including the right to criticise the judiciary in a public forum and whether a person who expressed an bonafide opinion about judicial corruption was obliged to prove it or whether it was enough to show that he bonafide had held that opinion.

Just for the records, the copy of the order could not be accessed at https://main.sci.gov.in/judgments.

 

P M Ravindran/ raviforjustice@gmail.com                                                             29 Sep 2022

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