WHEN RULE OF LAW BECOMES A “DEAD HORSE”- SC ORDER REFUSING PROBE IN KANHAIYA KUMAR LYNCHING IS UNFORTUNATE.

On 24^th January, the Supreme Court dismissed the plea seeking probe by a Special Investigation Team into the lynching of JNU student leader Kanhaiya Kumar which took place in the premises of Patiala House Court during February 2016. Reportedly, the Bench comprising Justice Ranjan Gogi and Justice R Banumathi dismissed observed “ We don’t want to flog a dead horse back into life”.  The Court felt that nothing survived in the matter and closed it.

As much as it is disappointing, it is also surprising that the Court ultimately chose to avoid interference, because it was in stark contrast with the very serious consideration the Court had been bestowing upon this issue on all previous occasions since beginning. The lynching of Kanhaiya Kumar within the premises of Patiala House Court by lawyers ( there are also reports that there were thugs disguised as lawyers) happened in blatant defiance of the directions of the Supreme Court itself. The Supreme Court had issued strict directions to ensure safety of Kanhaiya Kumar and to avoid untoward incidents in Court premises, and had constituted a special committee consisting of Senior Advocates to oversee security arrangements. The Court also had issued directions restricting entry of persons who were not materially connected with Kanhaiya Kumar’s case to the Court. Defying all such directions, Kanhaiya Kumar was brutally attacked and manhandled by the members of the legal profession itself, within the premises of Court.  Persons other than those permitted by the Supreme Court gained easy access to the Court, betraying grave security lapses. This incident ought to have disturbed and shocked the Supreme Court, because, apart from all other reasons, this openly questioned the authority of the Supreme Court undermining the binding value of directions passed by it.  If, two years down the line, the Supreme Court trivializes this act of grave defiance through mob strength shown by none other than lawyers as a ‘dead horse’, then it makes one wonder as to the value and legitimacy the Court attaches to its own orders. 

Lawyers turning lynch-mob

JNUSU leader Kanhaiya Kumar was arrested on charges of sedition, allegedly for organizing anti-national events and sloganeering against India. The situation in Patiala House Court on 15^th February 2016, when Kanhaiya was produced before the Magistrate was quite charged up.  Some of the lawyers present decided to give due process of law a skip, and usurped the role of judge and executor to ‘punish’ Kanhaiya.  In a manner bringing disrepute to the noble profession of law, the lawyers behaved like street ruffians and manhandled Kanhaiya. The case was adjourned to 17^th February. Meanwhile, one of the faculty members of JNU filed a petition in the Supreme Court seeking directions of ensure the safety of Kanhaiya Kumar on the next date of hearing, in the light of violent incidents of February 15.  The Supreme Court took up the matter urgently on 17^th February morning.  The Division Bench comprising Justice Chelameswar and Justice A.M Sapre took the matter very seriously. The Court felt that in order to avoid untoward incidents it was necessary to regulate the entry to the Court before 2PM, when Kanhiaya Kumar was to be produced. Hence, the Court specified the names of persons in the order, which included his lawyers and five identified media persons, and directed that only those persons should be permitted to enter. The Delhi Police Commissioner and Registrar General of Patiala House Court were strictly directed to take steps to avoid mob gathering in Court.

However, despite the directions of the Court, a tense situation developed in Patiala House Court, with a hostile mob, including lawyers, gathering there anticipating the arrival of Kanhaiya. So, the matter was again mentioned in the Supreme Court 2 PM, and the Court was informed of the intimidating and unruly situation in Patiala House Court.  It was also submitted that 5 journalists who had gone to the Court as permitted by the Supreme Court in the order passed in morning were fearing for their safety.

In that backdrop, the Court passed the following order :-

In the above mentioned circumstances, we thought it fit to depute some members of the Bar of this Court to observe the situation and report to this Court. We also believe the presence of the senior advocates might help diffuse the tension. We accordingly depute Mr.Kapil Sibal,Sr.Adv., Dr.Rajeev Dhawan,Sr.Adv., Mr. Dushyant Dave, Sr.Adv., Mr. H.P. Rawal, Sr.Adv., Mr. Ajit K. Sinha, Sr. Adv. and Mr. A.D.N. Rao, learned counsel to proceed to the Patiala House Courts Complex and report the situation prevailing there.

But, the directions of the Supreme Court failed to prevent violence. The situation was so unruly that even the members of the Committee constituted by the Supreme Court could not get easy access to the Court. The members of the Committee reported to the Supreme Court the unfortunate incidents at 4 PM on 17^th February. The Court directed them to submit a report in writing.

Report of the SC appointed Committee

The lawyer’s committee filed a report about the violent incidents of February 17^th.  The report stated that that lawyers and journalists were locked inside the court room and Kanhaiya Kumar was badly beaten up by lawyers, while Police did nothing to prevent.

The atmosphere outside was surcharged and intimidating. Abuses were hurled at Mr. Kapil Sibal and all other committee members. There was an effort create an atmosphere of fear and terror. The upbeat mood of the crowd in lawyers’ dress who were continuously shouting slogans and abuses to present a terrorising atmosphere was clearly visible- The Report said.

The Committee members were abused and pieces of mud and broken pot were hurled at them.  The Committee also took the statement of Kanhaiya Kumar. He said that Kanhaiya Kumar was assaulted by lawyers while he was being taken to the Court Room. Further, he was beaten up inside the Court room as well.

It was also stated that a man, who was not a lawyer, wearing a suit and dark glasses had come inside the Court premises. Kanhaiya had identified the man as one of the persons who had attacked him on the previous occasion, i.e on 15^th and stated that to the Police. However, police did not do anything, and the said man approached Kanhaiya and attacked him. The police did not do anything to prevent the assault and to apprehend that person. The Committee recorded that Kanhaiya Kumar looked intimidated, terrified, injured and could not stand up from his chair.

The Registrar General, upon being questioned by the Committee, acknowledged that there were persons other than those permitted by the Supreme Court present in the Court premises. 

The Committee Report is vivid in its details, and is powerful enough to shock anyone with an iota of sense of justice present in mind.

Regarding this incident, India Today conducted a sting operation on three lawyers who allegedly led the assault on Kanhaiya, and released a video. In the video, the lawyers proudly bragged that they thrashed Kanhaiya and forced him to utter “Bharat Mata Ki Jai’. The video indicated that the attack was not spontaneous, but was the result of a well orchestrated plan.  The National Human Rights Commission also intervened in the matter and observed that attack against him was ‘pre-planned and organized’.

Petition seeking SIT probe.

The Petition seeking investigation by a Special Investigation Team into the events in Patiala House on 15^th and 17^th February was filed by Senior Advocate Kamini Jaiswal. She also prayed for initiation of contempt of court proceedings against the three lawyers, Vikram Chauhan, Yashpal Singh and Om Sharma,  who had figured in the India Today sting operation.

Meanwhile, the Bar Council of India also swung into action, and passed a resolution deprecating the misconduct by lawyers in resorting to violence against Kanhaiya Kumar. It also stated that a panel will be formed for enquiry. 

On 11^th April 2016, when the petition of Kamini Jaiswal came for consideration before the bench of Justice Chelameswar and Justice A.M Sapre, the bench orally observed that the demand for SIT probe was justified. The Bench also wondered how unauthorized persons entered the Court Room. Notices were issued to the respondents, including the above mentioned lawyers.

Later, on 14^th November 2017, when the matter came before the bench led by Justice Gogoi, the Court indicated its inclination to hear the matter. Justice Gogi, reportedly observed as follows “We would like to examine the petition (Jaiswal’s plea) in the light of reports filed by Delhi Police and also by the Delhi High Court”

In the light of the serious consideration given to the matter initially by the Supreme Court, the latest order closing the matter without deeper probe came as a surprise.

Outcome of Sedition Charges

There are reports that Delhi Police have not found anything incriminating against Kanhaiya Kumar regarding the sedition charges, and hence it was reported that the charges against him might be dropped. Forensic reports stated that the videos of anti-India sloganeering by Kanhaiya and friends were doctored. In a related development, the Delhi High Court quashed the disciplinary action taken against Kanhaiya Kumar and other students with regard to the alleged anti-national event, on grounds of procedural irregularities and remanded the matter. Be that as it may, even assuming the allegations to be true, it is  doubtful whether charges of sedition will be sustainable in the light of the Supreme Court pronouncement in Kedar Nath v State of Bihar that mere utterance of words without any manifest action will not constitute offence of sedition.

All this makes one wonder whether the whole controversy was manufactured by jingoistic propaganda. What is more worrying and saddening is that lawyers, who are trained to be objective and rational in their analysis, got swayed by the hyper-nationalistic narrative, and jumped in to deliver ‘justice’ through the might of fist instead of waiting for the due process of law. The sacrosanct temple of justice was converted into an ugly arena of fist-fight.

We often take pride in our Constitution. We also take pride in our judicial system, which ensured the protection of due process even to a terrorist like Ajmal Kasab, who was accused of committing horrendous crimes. But, a student-accused was denied the protection of law, by those who claim to be the guardians of law. And what- the Supreme Court wants to bury the issue terming it as a dead horse!. The Court felt nothing survived in the matter. But, recurrence of such instances will render the survival of constitutionally established legal system tough in the long run. By failing to condemn the shameful act, the Supreme Court rendered its own directions dead letters and an exercise in futility, and denuded itself of the moral authority to condemn and indict other like instances of mob-lynching.

 

 Published in Live Law on 27.01.2018

 

THE MURKY COURSE OF SOHRABUDDIN FAKE ENCOUNTER CASE

Sohrabuddin Sheikh, Kauser Bi and Tulsiram Prajapathi- these names would not have got national significance, in ordinary course of things. Ironically, their deaths, in alleged fake encounters by the officials of Gujarat State Police, gave a fresh lease of life to their names, continuing to send ripples of shock over the judiciary and the larger canvass of Indian politics. The public discussions about Sohrabuddin case gained momentum following the unprecedented press conference held by four senior judges of Supreme Court last week, which is widely speculated( reinforced by the admission of Justice Gogoi) to have been triggered by the grievance regarding allocation of case of Judge Loya, who had died while hearing Sohrabuddin case.

The Genesis of case.

On 26^th November 2005, Sohrabuddin Sheikh was gunned down by Gujarat Police near Ahmadabad. The police version was that he was an associate of Lashkar-e-Toiba, who was planning to assassinate the then Gujarat Chief Minister Narendra Modi. So the version was that when police tried to intercept him, he opened fire and in the resultant exchange of fire he got killed.

Rubabbuddin Sheikh, the brother of Sohrabuddin, was not prepared to accept the police version. According to him, Sohrabbuddin and his wife Kauser Bi were travelling from Hyderabad to Sangli(Maharshtra) in a bus on 23^rd November 2005. During the journey, Gujarat police had picked up Sohrabbuddin and his wife from bus in Maharshtra. Sohrabuddin was thereafter brought to Ahmadabad and killed. The whereabouts of Kauser Bi was not known for several months. In that backdrop, Rubabbuddin Sheikh approached the Supreme Court, seeking investigation into the death of his brother. He also filed a habeas corpus petition, seeking production of his disappeared sister-in-law, Kauser Bi. It was also alleged that a third person was also travelling with Sohrabuddin and Kauser Bi, who, according to Rubabbuddin was one Tulsiram Prajapathi. As per records, Tulsiram Prajapathi was arrested from Ahmadabad on 25^th November and was sent to Udaipur(Rajasthan) in connection with a crime. It was alleged that Tulsiram Prajapathi was a witness to the abduction and killing of Sohrabudding by Gujarat Police. Later, a year after Sohrabuddin’s killing, Tulsiram Prajapathi was also killed, while he was being brought to Udaipur to Ahamedabad on a transit warrant, in yet another ‘encounter’.

Handing over of investigation to CBI

The Supreme Court gave anxious consideration to the petitions, and was prepared to order production of the corpus of Kauser Bi. While so, on 30^th April 2007, the State of Gujarat filed a report in the Court that Kauser Bi was dead and her body was burnt and disposed of in Illol Village on 29^th November 2005(three days after Sohrabuddin’s death). The Court directed Geeta Johri, the head of the investigation team, to file periodic status reports regarding the progress of investigation( Rubabbuddin Sheikh v. State of Gujarat (2007) 4 SCC 318, Division Bench of Justice Tarun Chatterjee & Justice P.K Balasubramanyam). Geeta Johri sought permission of the court to interrogate Tulsiram Prajapthi, to explore his link with Sohrabbuddin murder. While Tulsiram Prajapathi was being brought to Ahmadabad for interrogation, he got killed by Gujarat Police. As per police version, he escaped during the journey, and later tried to open fire at police officials.

Meanwhile, a charge sheet was hurriedly filed implicating some officers of Gujarat ATS(Anti-Terrorism Squad). Rubabbuddin sought for CBI enquiry to enquire into larger conspiracy. The Supreme Court expressed dissatisfaction at the shoddy manner of investigation. Therefore, the Court directed the Gujarat Police to hand over the investigation to the CBI(Rubabbuddin Sheikh v. State of Gujarat (2010) 2 SCC 200, Division Bench of Justice Tarun Chatterjee & Justice Aftab Alam).  In the charge sheet filed by CBI, the then Gujarat Home Minister Amit Shah was arrayed as an accused, alleging that he was the lynchpin of the conspiracy.

Amit Shah was arrested in 2010. He was later released on bail as per the order of the Gujarat High Court. The CBI approached the Supreme Court seeking cancellation of his bail. The CBI also sought for transfer of trial of case outside Gujarat. The Supreme Court recorded its dissatisfaction at the manner in which proceedings were happening in Gujarat. The Court noted that the concerned Magistrate had adopted a very strange procedure, when one of the accused(N.K Amin) expressed his intention to turn approver under Section 306 of Cr.P.C. The Magistrate did not pass any order on his application, and gave notice to other accused, in a manner unknown to law. The delay caused in the process gave window of time to other accused to pressurize and win over N.K Amin. The Court felt that the state machinery was acting hand in glove with the accused, and that there was strong likelihood of interference in the course of justice. So, trial was transferred to Mumbai. As regards cancellation of bail of Amit Shah, Court refrained from doing it, and observed as follows :- Had it been an application for grant of bail to Amitbhai Shah, it is hard to say what view the Court might have taken but the considerations for cancellation of bail granted by the High Court are materially different and in this case we feel reluctant to deprive Amitbhai Shah of the privilege granted to him by the High Court. ( CBI v. Amitbahi Anil Chandra Shah (2012) 10 SCC 545, Division Bench of Justice Aftab Alam & Justice R.P Desai)

Tulsiram Prajapathi Case

Meanwhile, Narmada Bai, the mother of Tulsiram Prajapathi approached the Supreme Court seeking CBI enquiry into her son’s death in encounter. Earlier, in the Rubabbuddin Case(2010) 2 SCC 200, the Supreme Court had discarded the contention of Gujarat Police that the third unknown person picked up along with Sohrabbuddin and Kauser Bi was not Tulsiram Prajapathi. In the said case, the Court had made the following crucial observation :- It also appears from the charge - sheet that it identifies the third person who was taken to Disha farm as Kalimuddin. But it does not contain the details of what happened to him once he was abducted. The possibility of the third person being Tulsiram Prajapati cannot be ruled out, although the police authorities or the State had made all possible efforts to show that it was not Tulsiram. In our view, the facts surrounding his death evokes strong suspicion that a deliberate attempt was made to destroy a human witness.

The petition filed by Narmada Bai was allowed, and the Court directed the CBI to take over the investigation of the case relating to the murder of Tulsiram Prajapathi( Narmada Bai v. State of Gujarat (2011) 5 SCC 79, Division Bench of Justice P. Sathasivam & Justice Dr. B. S. Chauhan). Following the directions of the SC, the CBI filed a fresh FIR in Tulsiram Prajapathi case, and filed a charge sheet arraying Amit Shah as the first accused.

Later, the FIR filed by the CBI in Tulsiram Prajapathi was quashed by the Supreme Court, on the ground that it amounted to registration of second FIR in respect to the same transaction( Amitbhai Anil Chandra Shah v. CBI (2013) 6 SCC 348). Coincidentally, this judgment and the judgement in Narmada Bai case ordering CBI investigation were authored by Justice P. Sathasivam. The judgment adopts a very strange reasoning that the FIR in respect of Tulsiram Prajapathi case could not have been registered when FIR in respect of Sohrabuddin case was already in existence. It was held that the FIR in Tulsiram Prajapathi case amounted to second FIR in respect of offence committed in the very same transaction in the FIR of Sohrabuddin case.  It was reasoned that Tulsiram Prajapathi’s murder was a consequence of Sohrabuddin case, and hence both these were a part of same transaction.

With due respect, it is opined that this view expressed by the Surpeme Court is erroneous.  It is a highly stretched application of the rule of ‘no second FIR in offence of same transaction’.  It is to be borne in mind that Tulsiram Prajapthi was killed in December 2006, almost a year after Sohrabbuddin’s killing. The conspiracy to kill Tulsiram Prajapath was  hatched subsequently and separately, and the same was carried out in totally different circumstances. While it can be said that there is linkage between Tulsiram case and Sohrabuddin case, as Tulsiram was done away with the intention of eliminating a material witness of abduction and killing of Sohrabuddin, these two murders cannot be said to have been carried out as part of same transaction by any stretch of imagination. So, the quashing of the FIR in Tulsiram case is on erroneous grounds.   The Court said that the final report filed in Tulsiram case should be treated as a supplementary charge sheet in Sohrabuddin case.

The quashing of FIR in Tulsiram case assumed a lot of relevance. Otherwise, Amit Shah would have been forced to seek bail in Tulsiram case as well. Since the FIR was quashed, the benefit of first bail granted in Sohrabuddin case worked in Tulsiram case as well. This must have been a huge relief for Amit Shah, especially in view of the fact that the election campaigns for the then impending 2014 polls were gaining momentum. Justice Sathasivam, after retirement as the Chief Justice of India, is at present the Hon’ble Governor of Kerala, with effect from September 2014.  While it is not proper to make imputations on Justice Sathasivam, the above developments certainly create a cloud of doubt. Situations like this make one wonder whether our judiciary is casual in ensuring that it does not conduct in such a manner to raise doubts about its objectivity,  falling short of the sacrosanct rule that ‘caesers wife must be above suspicion’.

Judge Loya’s death & Discharge of Amit Shah

The Supreme Court had ordered that the trial in Sohrabuddin case (which included Tulsiram case as well, following above said judgment) should be conducted by the same judge. But contrary to the directions, Judge Utpat was transferred during pendency of proceedings. Judge B H Loya assumed charge during June 2014.  On 1^st December 2014, Judge Loya was reported to have died due to cardiac arrest, while he was in Nagpur. In November 2017, ‘The Caravan’ magazine broke a story that the death of Judge Loya happened in mysterious circumstances.

Amit Shah was given a discharge by the CBI Court on 30^th December 2014 on the ground that there was no evidence against him. During August 2017, the accused police officers of Gujarat ATS were also discharged.

Puzzling inaction of CBI to challenge the order of discharge

The CBI has not challenged the discharge of Amit Shah during the past three years. Rubabbuddin Sheikh had filed a revision before the Bombay High Court challenging the discharge. Later, he expressed his intention to withdraw the revision and the same was dismissed as withdrawn(Order dated 23.11.2015 in Revision Application No.413/15).

However, the discharge was challenged by Harsh Mander, a social activist and retired bureaucrat. But the Bombay High Court dismissed the revision on the ground that he had no locus standi to challenge the discharge. Harsh Mander filed SLP against the Bombay High Court’s dismissal.  The SLP was also dismissed by the Supreme Court.  The inaction of the CBI to challenge the discharge is quite puzzling. This was a charge sheet prepared on the basis of a court-monitored investigation. In this regard, it is pertinent to note the submissions of CBI in Rubabbuddin Case(2010, supra) :-

It was submitted on its(CBI) behalf that Amitbhai Shah presided over an extortion racket. In his capacity as the minister for Home, he was in a position to place his henchmen, top ranking policemen at positions where they could sub-serve and safeguard his interests. He was part of the larger conspiracy to kill Sohrabuddin and later on his wife and finally Tulsiram Prajapati, as he was a witness to the abduction of Sohrabuddin and his wife by the police party. Taking advantage of his position as the minister, he constantly obstructed any proper investigation into the killings of Sohrabuddin and Kausarbi even when the matter came to the notice of this Court and this Court issued directions for a thorough investigation into their killings. It was at his behest and under his pressure that the top ranking police officers tried to cover up all signs of his involvement in the killings of Sohrabuddin, Kausarbi and Tulsiram Prajapati and systematically suppressed any honest investigation into those cases and even tried to mislead this Court. Even after the investigation was handed over to the CBI, he made things very difficult for them and the CBI was able to do the investigation against great odds. It is further submitted that the phone records pertaining to the periods when Sohrabuddin and his wife were abducted, Sohrabuddin was killed and his wife was killed and her body was disposed of by burning and of the later period at the time of killing of Prajapati showed Amitbhai Shah inregular touch with the policemen, accused in the case, who were actually executing the killings and the other allied offences. There was no reason for the minister for State of Home to speak directly on phone to police officers, far below him in the chain of command and the explanation given on his behalf in regard to those phone calls was on the face of it false and unacceptable. Apart from the phone records, there were many other materials and incontrovertible circumstances to establish the charges against Amitbhai Shah.

The CBI, which had hotly contended as above, is now in deep slumber. It is not suggested that Amit Shah or other accused are guilty of the above said allegations. But, the matter should get a proper closure, at least to allay the doubts in the mind of common man regarding the matter. A relook by a higher judicial forum is absolutely necessary in this matter. When a final report prepared on the basis of a SC monitored investigation is discarded by the Trial Court at the threshold level,  should not the investigating agency feel aggrieved? Instances like this reinforce the rebuke that CBI is a ‘caged parrot  speaking in his masters voice’. In a recent development, Bombay Lawyer’s Association has filed a PIL in the Bombay High Court seeking to direct CBI to file revision against discharge of Amit Shah.

Conflict of interest by eminent lawyers?

The fake encounters gave rise to numerous litigations at Apex Court. Senior Counsel Harish Salve was briefed to appear for Rubabbuddin, as discernible from the records of (2007) 4 SCC 404.  However, Salve appeared for Amit Shah in 2016, to oppose the petition of Harsh Mander. There is an apparent conflict of interest in both the appearances. Harish Salve was earlier appointed as amicus curie by the Supreme Court for monitoring the investigation in the Gujarat riots case. Then also, there were complaints regarding his impartiality as amicus, because he was simultaneously defending the Gujarat government in the Ishrat Jahan encounter case.

Likewise, Senior Counsel Pallav Sisodia had appeared for Amit Shah in the CBI’s petition filed in Supreme Court to cancel his bail( CBI v. Amitbhai Anil Chandra Shah (2012) 10 SCC 545). Curiously, it is Pallav Sisodia who is appearing in the present petition filed in the Supreme Court seeking investigation into the death of Judge Loya, who died while hearing Sohrabuddin case.

Live Law sought the responses of Harish Salve and Pallav Sisodia as to whether there was any conflict of interest in their appearances in above matters. Harish Salve was not available for response. Pallav Sisodia responded by email denying any conflict of interest. The response of Pallav Sisodia is given as below :-

“I shall continue to appear in the matter of Judge Loya for petitioner Bandhuraj Lone to press for an independent probe. As the matter is sub- judice and everyone shall have opportunity to watch and report submissions in open court, I do not consider it appropriate to make further comment on the merits of the matter.
As for suggestion of conflict of interest on my part, I am not able to understand the underlying premise. It appears a very convoluted logic to construe a prayer for an independent probe as an exercise for or against any of the suspects in the matter.
There is also one  thought I would wish to share with discerning readers. In a recent interview, Obama says that in hyper times we live, democracy is not about rival points of view but your facts versus my facts. All those who entertain doubt about universe of facts you live in are suspects. All those who disagree with your facts are sinners.The need for truth cannot be underscored better in a noisy democracy.”

Harish Salve had sounded critical of the press conference made by the judges, and in his interview given to Republic TV stated that it resulted in putting the entire system under a cloud. But, when the conduct of eminent lawyers held in high esteem appears to be under cloud by conflict of interest, the laments about the entire system being put under cloud sound hollow.

 Dent in constitutional values.

The allegations, if true, reveal a deep rot in the Indian system. The extensive findings and observations made by the Supreme Court regarding the nefarious methods adopted to stonewall and deflect investigation and trial are shocking. It means that the cherished constitutional values of justice, liberty, equality and fraternity are remaining frozen in the text of constitution, and have not permeated into the social psyche to form a way of life.  Situations like this cause disenchantment with the system so as to create a feeling of constitutional nihilism. So, a proper dealing of the matter is necessary to redeem the foundational values of Indian Republic. Till then, the ghosts of Sohrabbuddin, Kauser Bi and Tulsiram Prajapathi will continue to haunt Indian judiciary and polity. At least, their cases should get a decent burial!

Sohrabuddin –Tulsiram case time line

23.11.2005	Sohrabuddin, Kauser Bi and Tulsiram allegedly picked up by Gujarat ATS from Maharshtra
25.11.2005	Tulsiram arrested in Ahmadabad and sent to Udaipur Jail
26.11.2005	Sohrabuddin shot dead in Ahmadabad, allegedly in a fake encounter
29.11.2005	Kauser Bi killed, and cremated in Illol village, Gujarat
December 2005	Rubabbuddin Sheikh, brother of Sohrabbuddin, writes letter to CJI seeking investigation into his brother’s death
27.12.2006	Tulsiram Prajapathi killed while he was being brought from Udaipur to Gujarat for interrogation.
12.01.2010	Supreme Court directs CBI to take over investigation of killing of Sohrabuddin; Transfers trial of matter from Gujarat to Mumbai
July 2010	CBI files charge sheet arraying Amit Shah as accused; Amit Shah arrested
October 2010	Amit Shah granted bail by Gujarat HC
08.04.2011	Tulsiram Prajapathi case also handed over to CBI by SC.
September 2012	CBI files charge sheet in Tulsiram case, arraying Amit Shah as one of the accused
08.04.2013	SC quashes the FIR registered by CBI against Amit Shah in Tulsiram case;
01.12.2014	Judge Loya, presiding officer of CBI Court Mumbai dealing with Sohrabuddin case, reported to be dead
30.12.2014	Amit Shah discharged in the Sohrabuddin case by CBI Court Mumbai
2015	Rubabbuddin, brother of Sohrabuddin, files revision in Bombay HC against discharge of Amit Shah
23.11.2015	Rubabbuddin withdraws his revision petition in Bombay HC
11.03.2016	Bombay HC dismisses Harsh Mander’s revision against discharge on ground that he had no locus standi.
21.08.2016	Supreme Court dismisses Harsh Mander’s SLP
August 2017	Gujarat police officials discharged in Sohrabuddin case
November 2017	“The Caravan” magazine breaks a story that Judge Loya died not in a cardiac arrest but in suspicious circumstances
January 2018	Petitions filed in Bombay HC and Supreme Court seeking special investigation into Judge Loya’s death
19.01.2018	Bombay Lawyer’s Association files PIL in Bombay HC seeking to direct CBI to file revision against Amit Shah discharge

Published in Live Law on 21.01.2018

THE IRONY OF A FORMER CHIEF JUSTICE OF INDIA SIGNING ORDINANCE TO NULLIFY SUPREME COURT ORDER- KERALA ORDINANCE TO REGULARIZE MEDICAL ADMISSIONS.

It is really bizarre when a former Chief Justice of India has to collaborate with the Government to get over a Supreme Court order.  Justice P. Sathasivam, the present Governor of Kerala, had to confront this embarrassing situation, when he had to sign the ordinance mooted by Kerala Government to regularize admissions in two self-financing medical colleges, which were cancelled by the Supreme Court.

In what could be termed as a blatant misuse of executive power and an affront to judicial authority, the Kerala Government proposed an ordinance to regularize admissions to MBBS seats for the academic year 2016-17 in Kannur Medical College and Karuna Medical College, which were cancelled on the ground that they were made in a non-transparent and arbitrary manner. Initially, the Governor,  the former Chief Justice of India, was reported to have returned the Ordinance without signing, citing legal anomalies. But when the Government persisted with the matter, the Governor had to sign the ordinance, and thereby had to give his imprimatur to a mischievous design to circumvent the order of the Supreme Court. Ironical, it may sound; perhaps it’s the occupational hazards of a former Chief Justice of India being a Governor of a State!

The Kerala Government has promulgated Kerala Professional Colleges(Regularization of Admission in Medical Colleges) Ordinance 2017[Ordinance No.21 of 2017] in order to save the admissions by nullifying   judicial orders.   The Ordinance which was notified on 20th of October suffers from apparent constitutional infirmities. Although the Ordinance does not state it clearly, from a bare understanding of the background factual context, it is very clear that the Ordinance intends to benefit Kannur Medical College and Karuna Medical College.

Factual background of cancellation of admissions

Kannur Medical College is a self-financing institution, run by a private trust, Prestige Educational Trust. Likewise, Karuna Medical College is run by a private trust namely Safe Development Alms Trust. From 2016-17 onwards, admissions to medical college seats have to be done on the basis on NEET merit list after following common counselling process. Regarding the admission process, the High Court had passed directions on 26.08.2016 in W.P(c) 28041/16. It was directed that applications for admission should be received only through on-line and such applications shall be uploaded for the scrutiny of the Admission Supervisory Committee immediately on the expiry of the last date for submission of applications. It was further directed that the admission process should be proceeded with only on the basis of a Prospectus, for which approval of the Admission Supervisory committee has been obtained.

Admission Supervisory Committee is a statutory body under the Kerala Professional Colleges or Institutions( Prohibition of Capitation Fee, Regulation of Admission,Fixation of Non-exploitative fee and other measures to ensure equity and excellence in professional education) Act 2006. According to the Committee, there was patent violation of the orders/directions by these two colleges. The web site of the colleges was not accessible most times and also not to the requisite extent. The details of the applications, rejected applications, reason for rejection, whether opportunity was given to cure the defects, how that was implemented, details of the list finalized etc. were never accounted by the Colleges.The reservation of seats in the Management Quota in Kannur Medical College for dependents of the Trustees and Staff was found to be bad by the Committee. The fee structure fixed by the colleges unilaterally, without executing any agreement with the Government, was also found to be excessive by the Committee and was reduced.

The High Court did not accept the challenge made by the said institutions against the directions of the Committee, as per its judgment dated 28.10.2016. The High Court observed as hereunder :-What disturbs this Court equally or more is with regard to the course and procedure pursued by the petitioner Institutions as to the interim order dated 23.08.2016, particularly 'condition No.(ii)'. As per this condition, it was very much obligatory for the petitioners to have uploaded all the applications stated as received online, to the notice of the Admission Supervisory Committee to have it scrutinized, immediately after the last date for submitting the applications. Had the proceedings been duly notified by the Colleges to the notice of the Admission Supervisory Committee then and there, giving effect to the various orders to the extent they were unchallenged, the proceedings could have been pursued and finalized, without much difficulty, enabling all concerned, to understand their position. It is also relevant note that the version of the Committee that the so called lists stated as produced before the Commissioner   were not made available before the Committee for scrutiny and no material has been produced before this Court as well, to show it, if otherwise. There are several lapses on the part of both the petitioner Institutions, which has spoiled much time of this Court as well, besides that of the Committee and the Governmental authorities, including the Commissioner. The laxity of the institutions in following a transparent and non-arbitrary admission process was deprecated in the strongest possible words by the High Court and cost of Rupees One lakh each was imposed on both the colleges.

The Supreme Court also confirmed the cancellation of admission, by dismissing the special leave petitions filed by the colleges.

Regularization by the Ordinance.

The Preamble of the Ordinance states that there was no fault on the part of the students whose admissions got cancelled. Though the Preamble refers to cancellation of admission by the Admission Supervisory Committee, reference to the orders of the High Court and Supreme Court affirming the Committee decision is conspicuous by absence. Section 2 is a non-obstante clause, enabling the Government to regularize the admissions in any medical college during the academic year 2016017, ignoring any judgment, decree, order or proceedings of any court or the Admission Supervisory Committee. As per Section 3, the management of the colleges seeking regularization should make an application to that effect, within fifteen days. The Ordinance also fixes a regularization fee, which is Rupees Three Lakhs per student, as per Section 5. In short, by paying rupees three lakhs per student, the colleges can regularize the cancelled admissions.

Ordinance cannot blatantly nullify judicial order

It is well settled that the legislature cannot by a bare declaration, without anything more, directly overrule, reverse or override a judicial decision at any time (Madan Mohan Pathak vs. Union of India AIR 1978 SC 803).It means that if the Court says that a particular action ‘A’ cannot be done, then the legislature is not competent to state in a subsequent legislation that ‘A’ can be done(State of Tamil Nadu v. M. RayappaGounder, AIR 1971 SC 231.). Of course, the legislature can neutralise the effect of a judgment by altering the legal basis of the judgment, or by curing the defect in the law. But, the legislature cannot directly invalidate a judgment by declaring that the judgment is not applicable. The Ordinance is definitely falling under the latter category. If it is shown as an attempt to interfere with the judicial process, such law would be invalidated being in breach of doctrine of separation of powers. This was declared by a Constitutional Bench of Supreme Court in State of Kerala vs. State of Tamil Nadu AIR 2014 SC 2407. Therein, the Kerala Legislature enacted Kerala Irrigation and Water Conservation(Amendment) Act 2003, in order to nullify an earlier Supreme Court order which permitted the water level of Mullaperiyar dam to be maintained at 142 feet. The amendment Act stated that water level should not be raised above 136 feet. The Court invalidated the amendment.

The rigour of this principle ought to be more stringent in case of an Ordinance, as it is an indirect way of legislation by the executive, bypassing the elected legislature. Ordinance making power is not a parallel power of legislation and is a power exercisable only when legislature is not in session and it has been conferred in order to enable the executive to meet an emergent situation(R.K Gargv.  Union of India (1981) 4 SCC 675). In D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378, Constitution Bench of Supreme Court held that if the Executive takes over the law-making function of the Legislature, it “would be clearly subverting the democratic process which lies at the core of our Constitutional scheme, for then, the people would be governed not by the laws made by the legislature as provided in the Constitution but by laws made by the executive”The Court made it clear that an Ordinance is a short-term, emergency measure intended only to bridge the gap until the next session of the legislature.What is the emergent situation here which cannot wait till the next assembly session so as to warrant such an ordinance, especially so when the Kerala Legislative Assembly is scheduled to commence its next session on 9^th of November? One is left to wonder.

It is also pertinent to note that a seven judges’ bench of the Supreme Court recently held that placing of ordinance before the legislature was a mandatory requirement, so as to ensure that a situation of ‘Ordinance Raj’ will not prevail.

Single person legislation.

The Ordinance also suffers from the vice of being a ‘single person legislation’. Single person legislations are those legislations which intend to confer benefits on particular, identified persons or entities, as opposed to a general class. Such legislations are frowned upon by the Constitutional Courts as violative of equality clause under Article 14 of Constitution of India (Chiranjit Lal Chowdhari v. Union of India and others AIR 1951 SC 41). The only beneficiaries of the Ordinance are Kannur Medical College and Karuna Medical College. They do not form a class by themselves, having intelligible differentia so as to justify the Ordinance as a piece of class legislation. Hence, this can only be viewed as a mischief played on the Constitution.  And when a former Chief Justice of India approves such an Ordinance in the capacity of a Governor, it can only be termed as a Constitutional embarrassment.

                

Published in Live Law on 09.11.2017

WHEN THE BAR COUNCIL OF INDIA CEASES TO BE TRULY REPRESENTATIVE

‘To safeguard the rights, privileges and interests of Advocates’- this is one of the  functions of the Bar Council of India , as stated in the Advocates Act. Hallowed function, indeed!  This ought to mean that the Bar Council is representing the interests of Advocates. But when the Bar Council itself is not a representative body, how can it claim to represent the rights and interests of advocates.  It can only be a formal representation without any moral backing.

The debates surrounding Bar Council elections have started to gain momentum in view of the statements made by Senior Advocate Dushyant Dave that Bar Council of India was a body which has not held elections for years under some pretext and Mr. Mishra continues to occupy the position as Chairman unduly. Mr. Dave was responding to the news that BCI had sent him a show-cause notice against him for his remarks that the Supreme Court collegiums had succumbed to executive pressure while ordering transfer of Justice Jayant Patel from High Court of Karnataka.

Expiry of term of members of State Bar Councils

The unfortunate fact is that elections to at least fifteen State Bar Councils have been put on hold for more than past two years, and that the governance of Bar Councils are carried out by nominated  ‘Special Committees’.  

The State Bar Councils are supposed to comprise elected members from among the advocates enrolled with the respective Bar Councils. The term of office of elected members of the Council is for a period of five years (Section 8). Each State Bar Council elects one member from among its members to the Bar Council of India. Thus, the Advocates Act contemplates a method of direct election by advocates to the State Bar Council, and a method of indirect election to the Bar Council of India.

The Bar Council of India has one each elected member from nineteen states(state bar council having less than 5000 enrolled advocates do not sent members to BCI). Apart from that the Attorney General of India, and the Solicitor General of India are ex-officio members of the BCI.

The term of office of members of fifteen State Bar Councils expired two years ago. However, no elections have been held till now to elect new members. The governance of such Bar Councils is being carried out through an ad-hoc arrangement by nominating a Special Committee under Section 8A of the Advocates Act.

As per Sec.8A, if there is failure to conduct elections, the BCI can constitute a Special Committee to take charge from the date of expiry of the term of elected members. The Chairman of the Committee will be the Advocate General of the State, ex-officio. The other two members of the Special Committee are nominated by the BCI from amongst the advocates on the electoral roll of the State Bar Council.

In the fifteen states where the term of members have expired, the duties and functions of State Bar Council are being discharged by the Special Committees constituted by BCI. The Special Committee is originally contemplated as an ad-hoc arrangement. But now it has sort of assumed a permanent character, with its continuance in fifteen states for more than two years.

So the present state of affairs is that the Bar Councils are totally governed by nominated members, as opposed to elected members. The term of office of the members of BCI who got elected from the State Bar Councils is co-terminus with their term of office in the State Bar Council. So, the term of office of fifteen members of BCI have automatically expired, on expiry of their term in the State Bar Council. For example, the Chairman of the Bar Council of India,  Senior Advocate Manan Kumar Mishra is elected from Bar Council of Bihar, and his term Bar Council of Bihar have expired long ago. So naturally, his membership in BCI also should expire. However, the members of BCI are continued on the basis of proviso to sub-section(3) of Section 4 of the Advocates Act, which states that every member of BCI shall continue to hold office as a member of the Bar Council of India until his successor is elected.

So, we have a curious situation wherein elections of State Bar Councils have been put on hold for more than two years, and the members of BCI whose term have already expired are holding onto office due to failure to elect succeeding members.

Undemocratic in spirt.

The BCI is not just undemocratic in form, but in action as well, as revealed from its response to Mr Dushyant Dave.  The press release by the BCI to the media is bizarrely worded, belying a knee-jerk response in a manner not behoving well for a body claiming to be representing advocates. It says that the Council has decided to issue show-cause notice. The Advocates Act does not empower the BCI to initiate disciplinary proceedings as an original authority. So the BCI does not have any power to initiate disciplinary proceedings. If at all the remarks are regarded as disrespectful amounting to misconduct, the authority to initiate disciplinary proceeding is the Disciplinary Committee of the concerned State Bar Council and not the BCI. The unilateral manner in which the BCI has decided to issue show-cause notice without any hesitation is quite unfortunate, especially so, when a large section of the advocate community seem to be disapproving the decision of the collegium. Many State Bar Councils have protested the transfer order issued to Justice Jayanth Patel. The Karnataka State Bar Council has resolved to protest the transfer b boycotting Courts on October 4^th.  The Gujarat High Court Advocates Association and the lawyers in Bengaluru have written letters to the CJI seeking reasons for the transfer of Justice Patel. So, Mr. Dave was merely expressing aloud the feelings shared by a large section of advocates in the matter. Therefore, the matter required a lot of discussions and deliberations at the instance of BCI. The BCI had to take the legal fraternity into confidence before taking a stand in the issue. But when the body ceases to be representative, all that is too much to ask for.

The press release further states that the Chairman has clarified that the Council may not agree with the decision of collegiums with regard to Justice Jayant Patel and it may join hands with the Gujarat High Court Advocates Association in the legal proceedings. The self-contradiction is very evident in that the Council is not repudiating the criticisms levelled by Mr. Dave wholly; yet, when it comes to taking a stand in the matter, the BCI chooses to be tentative and vacillating.  

The never ending process of certificate verification.

The delay in holding elections is sought to be justified on the reason that verification of certificates of lawyers to weed out bogus and dormant lawyers form the electoral roll is not yet complete. The verification Rules were brought in during 2015, and the process is going on at snail’s pace. Some sources allege that the verification process is nothing but a ruse projected by the BCI to stall elections. Mr. Dave also seems to be suggesting this when he alleges that the elections are put on hold on some ‘pretext’.  Anyhow, the Supreme Court has intervened in the matter, and has given an ultimatum to the BCI to complete verification process and finalization of electoral roll by December 31^st 2017.  Hopefully, this might pave way for expedition of much delayed elections.

Advocacy is cherished as a noble profession as it involves standing up for the rights and liberties of others and upholding rule of law and democratic values. But when a ‘representative’ body of Advocates shies away from standing up for democratic rights and liberties, it cuts a very sorry figure, tainting the image of the profession as a whole.   

Published in Live Law on 02.10.2017