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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