ക്രിമിനല്‍ വത്തക്ക!! (അഥവാ criminalising prejudices)

വത്തക്ക പ്രയോഗം നടത്തിയ അദ്ധ്യാപകന് എതിരെ ക്രിമിനല്‍ കേസ് ചാര്‍ജ് ചെയ്ത നടപടിയോട് യോജിപ്പില്ല.

ഒരാളുടെ ചിന്തകളും സംസാരവും നവീകരിക്കുക എന്നത് ക്രിമിനല്‍ നിയമത്തിന്റെ ഉദ്ദേശമല്ല. സംസ്കാരിക ഉദ്ബോധനം അല്ല ക്രിമിനല്‍ നിയമത്തിന്റെ ലക്‌ഷ്യം. പ്രകടമായ ഹിംസയെ നിരോധിക്കുക. അക്രമവാസനകള്‍ക്കു തടയിടുക. സമൂഹത്തില്‍ ക്രമസമാധാനം പുലര്‍ത്തുക. ആളുകളുടെ ജീവനും സ്വത്തിനും സംരക്ഷണം നല്‍കുക- ഇതൊക്കെയാണ് ക്രിമിനല്‍ നിയമത്തിന്റെ ഉദ്ദേശലക്ഷ്യങ്ങള്‍ ആയി ഞാന്‍ മനസ്സിലാക്കുന്നത് (തെറ്റുണ്ടെങ്കില്‍ തിരുത്താം). അല്ലാതെ, ഒരാളുടെ വികലമായ കാഴ്ചപ്പാടുകളെ തിരുത്തുക എന്നതല്ല. അങ്ങനെ ആയിക്കൂടാ.

ഒരാള്‍ വെച്ച് പുലര്‍ത്തുന്ന വികലവും അപരിഷ്കൃതവും ആയ ചിന്തകള്‍ക്ക് അയാളെ ക്രിമിനല്‍ ശിക്ഷയ്ക്ക് വിധേയമാക്കുകയാണെങ്കില്‍, അതിനര്‍ത്ഥം ഒരു വ്യക്തിയുടെ സ്വകാര്യ ചിന്താമണ്ഡലത്തില്‍ കയറി മേയാന്‍ സ്റ്റേറ്റിന് അധികാരം നല്‍കുന്നു എന്നാണ്.

എല്ലാ വ്യക്തികളും അവരവരുടെ മുന്‍വിധികള്‍ അനുസരിച്ചാണ് ജീവിക്കുന്നത്. ഉദാഹരണത്തിന് , നിങ്ങള്ക്ക് ചില വിഭാഗത്തില്‍ ഉള്ള ആളുകളോട് വെറുപ്പ് ഉണ്ടാകും; ചില ജീവിത രീതികള്‍ ശരിയല്ല എന്ന് നിലപാടുണ്ടാകും; ചില രീതിയില്‍ ഉള്ള ചിന്തകളും പ്രവര്‍ത്തികളും പാടില്ല എന്ന് അഭിപ്രായം ഉണ്ടാകും. ഇതിനൊന്നും യാതൊരു അടിസ്ഥാനവും ഉണ്ടാകില്ല. എങ്കിലും, ഇവയൊക്കെ മനസ്സില്‍ കൊണ്ട് നടക്കുകയും അതിനനുസരിച്ച് പ്രവര്‍ത്തിക്കുകയും ചെയ്യുന്നു എല്ലാവരും; തങ്ങളുടെ ചിന്തകളും മുന്‍വിധികളും പൂര്‍ണമായും ശരിയാണ് എന്ന ഉറച്ച വിശ്വാസത്തോടെ.

വിശാലമായ മാനവിക വീക്ഷണത്തില്‍ അത്തരം മുന്‍വിധികള്‍ തെറ്റാണ് എന്നത് കൊണ്ട് മാത്രം അവയെ ക്രിമിനല്‍വല്ക്കരിക്കുന്നതിന്റെ ആവശ്യം ഉണ്ടോ? അത് ഒരു തരത്തില്‍ ഉള്ള ഒരു thought policing അല്ലെ? ഒരു moralising agency ആയി സ്റ്റേറ്റിനെ പ്രവര്‍ത്തിക്കാന്‍ അനുവദിക്കുന്നത് എങ്ങനെ ആഭികാമ്യം ആകും?

ഒരാളുടെ സംസാരം അല്ലെങ്കില്‍ ചിന്ത നിങ്ങളെ അലോസരപ്പെടുത്തി എന്നത് കൊണ്ട് അയാള്‍ ഒരു ക്രിമിനല്‍ ആകുമോ? അങ്ങനെയെങ്കില്‍, നമ്മള്‍ എല്ലാവരും ഓരോ തരത്തില്‍ ക്രിമിനലുകള്‍ ആണ്.

ഉദാഹരണത്തിന്, നിങ്ങളുടെ 'ലിബറല്‍' ചിന്ത ഒരു യാഥാസ്തികന് അലോസരം ഉണ്ടാക്കുന്നു. ഒരു മതവിശ്വാസിയുടെ ചിന്ത ഒരു ഭൌതികവാദിക്ക്‌ ഈര്‍ഷ്യ ഉളവാക്കുന്നു. ഒരു ബോഹീമിയനും പാരമ്പര്യവാദിയും അന്യോന്യം പുച്ഛം പുലര്‍ത്തുന്നു. ഇതെല്ലം, ക്രിമിനല്‍വല്ക്കരിക്കപ്പെടുകയാണെങ്കില്‍ ആരും ഒന്നും ചിന്തിക്കാതെയും സംസാരിക്കതെയും ഇരിക്കുന്ന ഒരു മൃത സമൂഹം നമുക്ക് രൂപപ്പെടുത്താം.

അത് കൊണ്ട്, ചിന്തകള്‍ തമ്മിലടിക്കട്ടെ. ക്രിമിനല്‍ നിയമം അതില്‍ ഇടപെടാതെ മാറി നില്‍ക്കട്ടെ;അതൊരു യഥാര്‍ത്ഥ സംഘട്ടനം ആകുന്നതു വരെ.

WILL INDIA EVER HAVE ‘THE POST’ MOMENT, WITH THE OFFICIAL SECRETS ACT IN PLACE?

Official Secrets Act has become an instrument of oppression at the hands of the establishment to witch-hunt those who dare to ask uncomfortable questions

Amidst the Vietnam war, the board of management of ‘The Washington Post’ was caught up in a severe dilemma as to whether it should publish sensitive and classified defense documents which revealed that the U.S Government had been always aware that there was no chance of winning the war, and that despite such concrete knowledge successive governments escalated the war propaganda solely to reap political benefits. The leaked documents made it clear that the U.S was waging a futile war, and thousands of young men were sent to die only for the sake of whipping up jingoistic frenzy. While the management was apprehensive of inviting the wrath of the then President Richard Nixon, the Editor-in-Chief Ben Bradlee was very resolute in his decision that the paper should publish the documents which showed that successive US Governments have been lying about the Vietnam war for past 30 years. “If we don’t hold them accountable, who will?”, asks him.

This incident of Washington Post publishing Pentagon documents belying the Government’s claim about winning Vietnam war has been recreated in cinematic form in the recent Hollywood movie “The Post”. Directed by Steven Spielberg, this film has been nominated for Best Picture in Oscar Awards. Veteran actor Tom Hanks plays the role of Ben Bradlee, the editor.

“What will happen if we don’t publish? We will lose! The country will lose!”, asserts the character of Tom Hanks, which nudges Katharine Graham, the heiress of the newspaper family, to take a firm decision, overcoming her initial tentativeness. Meryl Streep plays the role of Katharine Graham,  who,  has to make a tougher call as she has to negotiate strong chauvinistic prejudices in the male-dominated board of management, apart from dealing with apprehensions about legal and financial consequences of publication.

‘The Newyork Times’ had already published a part of the documents, which  resulted in legal proceedings under the U.S Espionage Act for breaching national security, and it was restrained from publishing as per injunction orders passed by Courts. It was in that backdrop that ‘The Washington Post’ decided to publish the rest of the information.  Both the papers had to ultimately approach the U.S Supreme Court to protect their right to publish. In a landmark decision, Newyork Times v. U.S.A, the U.S Supreme Court upheld the right of the newspapers to publish the documents. By a 6:3 majority, the Court held that the Constitution did not permit prior restraint on press freedom on whatever grounds.

The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell, Justice Hugo Black emphatically observed in the judgment.

“The Post” is a riveting account of the above historical developments.  The movie’s moral compass points at the right direction, as its setting and tenor make the viewer root for the triumph of truth and liberty.  Perhaps this is why Dushyant Dave, Senior Advocate, remarked during the hearing of Loya case that “your Lordships should watch ‘The Post’”.

Official Secrets Act 1923- the Indian counter-part of Espionage Act.

The US Government tried to restrain publication of Pentagon papers invoking Section 793 of the Espionage Act, which criminalized possession of information relating to ‘national defence’, which the possessor has ‘reasons to believe’ ’could be used to the injury of the United States or the advantage of any foreign nation’. The US Supreme Court held that this penal provision cannot be invoked to impose prior restraint on publication.

The Indian counter-part of the said provision of U.S Espionage Act is the Official Secrets Act 1923- a short colonial legislation which reflects imperialistic fervour than constitutional temperance. It criminalizes disclosure of information which is likely to affect sovereignty and integrity of India, the security of state or friendly relation with foreign states’(Section 5). The Act also criminalizes disclosure of information which might be directly or indirectly useful to an enemy(Section 3). As per the interpretation given to the provision by the Supreme Court in Sama Alana Abdullah v. State of Gujarat AIR 1996 SC 569, the information need not be even ‘secret’, and if it is likely to be useful to an enemy, the offence is said to have been committed. Therefore, there is a lot of subjectivity involved here, as the conviction is based on an arbitrary and uncertain test of information being useful to an enemy. In an article published in the blog ‘Indian Constitutional Law Philosophy’ , it is articulated that the constitutional validity of the Official Secrets Act(OSA) is highly doubtful on account of its vagueness, subjectivity and over-breadth in creation of offences.  Various incidents in India demonstrate that the OSA has been misused to clip the wings of bona fide press reportage, and Indian Courts are not keen to follow the American example of protecting press freedom when OSA is involved.

Instances of misuse galore.

Journalist Santanu Saika was booked under Official Secrets Act in 1998 for publishing the contents of a cabinet note on disinvestment policy. This was widely perceived as an instance of official high-handedness, as the nexus between disinvestment policy and national security seemed too remote. When the Court acquitted Saika on the grounds that the publication of the disinvestment document, though marked “secret”, was unlikely to affect the sovereignty and integrity of India or the security of the state or friendly relations with foreign states, it was 2009, and by that time he had undergone considerable period under detention.

In 2002, Kashmiri journalist Iftikar Gilani had to face prosecution under the Act on ground that he disclosed classified military information to terrorists. This had led to huge furore, and was seen as an attempt of the establishment to break the morale of Kashmiri journalists. The Committee for Protection of Journalists and Reporters Sans Frontiers, two international organisations, had written to the then Deputy Prime Minister L.K Advani urging him to drop the charges. In trial, the military officials conceded that the information found in possession of Gilani was freely available in public domain, resulting in his acquittal.

During the same period, Tehelka had to face action under the Act on ground that it published sensitive government information, making many wonder if it was a vindictive response from the Government after the Tehelka sting operation exposed corruption in arms deal, which resulted in the exit of the then Defence Minister George Fernandes and then BJP President Bangaru Laxman. In 2011, Mid-Day Reporter Tarakant Dwivedi was arrested under the OSA for a piece on how arms purchased by the Government Railway Police, after the 26/11 attack, were rotting in the armoury due to poor storage; but only to be freed subsequently by Court.

Recently, in 2017, Poonam Agarwal, a reporter of online portal ‘Quint’, published a video story which showed that senior army officers in Nashik Army Camp were improperly compelling subordinate officers to do their personal work and household chores.  One of the soldiers interviewed in the report, Roy Mathews, was found dead a few days later, reportedly a case of suicide. Poonam Agarwal’s story irked the establishment, and she was charged under Official Secrets Act.

"This is nothing but an attempt by the Indian Army to shut up journalists from exposing wrongdoings in the institution. It will set a very bad precedent, because in future, an editor or reporter will think twice before raising their voices against the Army.", Agarwal remarked about the developments.

Apart from these reported instances, there are many other low-profile instances of journalists facing harassment under this Act across the country. The mere mention of Official Secrets Act by the prosecution is enough for the Magistrates to deny release on bail. Magistrates rarely venture to question the prosecution opposition on ground of ‘national security’. Very often the process itself becomes the punishment, resulting in a chilling effect on press freedom.

The main problem with the Act is that it is not possible for anyone to know with certitude that some information is ‘secret’ or is likely to be useful for an enemy. It seems that there is a manual by the Ministry of Home Affairs which deals with classification of documents. However, that manual itself is treated as ‘secret’. When an RTI activist tried to obtain the copy of the manual, it was declined stating that it was ‘confidential’. The CCI upheld the decision of Ministry in denying the copy of manual.  This is a bizarre situation, leaving too much to the subjective whim of the prosecution. Therefore, it is not surprising that OSA has become an instrument of oppression at the hands of the establishment to witch-hunt those who dare to ask uncomfortable questions.

The OSA is an anachronism in this age which has recognized the citizen’s right to information as sacrosanct. It is interesting to note that the RTI Act has an overriding power over OSA, as expressly stated in Section 22.  The Administrative Reforms Committee recommended in 2006 that the OSA should be repealed as it was incongruous with the transparency regime. But no further action was taken in that regard.

The Act has no redeeming provision, which protects disclosure of information in public interest. The reports of Mid-Day and The Quint mentioned above definitely had public interest element in them, as they revealed wrong-doings on the part of military establishment.  Yet, they were subjected to charges under OSA.  Such instances will deter whistle-blowers and activists from using information to which they are privy in order to openly question misdeeds of government.

‘National security’ and ‘defence’ are holy cows in Indian scenario, which cannot be questioned. In this backdrop, it is difficult to say whether Indian media can fearlessly report about botched up military operations and expose hollow claims of national security, as did by Washington Post and New York Times during Vietnam War. ‘The Post’ moment for the Indian scenario may never happen.

Pulbished in Live Law on 26.02.2018

Collegium Recommendations Of Justice KM Joseph And Indu Malhotra: A Litmus Test On Independence Of Judiciary

It is reliably learnt that the senior judges of the Supreme Court collegium- Justice Chelameswar, Justice Ranjan Gogoi, Justice Madan.B.Lokur and Justice Kurian Joseph- are seriously aggrieved with the inaction of Central Government in acting upon Collegium recommendations. Sources revealed to Live Law that the senior judges had taken up the issue with the Chief Justice of India Dipak Misra and are unhappy at the failure of CJI in being firm with the Central Government.   The manner in which the Government has been sleeping over collegium recommendations, and also dilly-dallying with the Memorandum of Procedure(MoP) for appointment of judges has been a cause of concern for the judges.             It is reliably understood that these issues were discussed by the four judges with the CJI, and the differences regarding resolution of the same acted as an additional impetus for the press conference held by them on the 12 of January, among other reasons pertaining to roster fixation.

Memorandum of Procedure- The bone of contention.

Ever since the striking down of Constitutional amendment introducing NJAC, things have not been very smoothbetween the centre and the Collegium regarding judicial appointments. The major bone of contention is the finalization of Memorandum of Procedure (MoP).

In December 2015, the Constitution Bench of Supreme Court directed the Central Government to finalize the MoP in consultation with the CJI, taking into account the revised guidelines proposed by SC.  In view of the stand-off between Government and Collegium regarding the finalization of MoP, judicial appointments were getting delayed. The Centre dragged its feet in acting upon the recommendations of collegiums regarding appointment and transfer of judges. Therefore, in 2016, many of the High Courts witnessed high percentage of judicial vacancies.

Later, the Centre formulated a draft MoP, which included a contentious clause enabling the Centre to reject a candidate on the ground of ‘national security’. The draft MoP by Centre suggested that Attorney General and the Advocate Generals of the respective states should have a say in the matter of selection. Involvement of retired judges in selection process was too suggested. However, the Collegium rejected the recommendations in the draft MoP formulated by the Central Government.

In wake of the stalemate, Collegium recommendations got stuck at the Ministry without further movement. For example, the Collegium had recommended the transfer of Justice K.M Joseph, the present Chief Justice of Uttarakhand High Court, to Andhra Pradesh High Court, reportedly on health reasons. However, the matter was kept pending by the Central Government

Centre’s delay in processing Collegium recommendations caused much anguish to the then CJI T.S Thakur.  A Bench headed by the CJI did not mince its words in expressing its unhappiness over the ‘logjam’ in appointment of judges.  “The collegium has cleared 75 names of high court judges (for transfer/appointment) but they have not been approved. I don't know why, where these files are stuck”, a much disturbed CJI asked the then Attorney General Mukul Rohatgi. While speaking at a public function in which PM Narendra Modi was also attending, CJI Thakur made an emotional appeal to the Centre to promptly act upon judicial appointments, and broke down to tears during his speech criticising the Centre’s apathy in filling up vacancies.

Justice J.S Khehar, after he became CJI following Justice Thakur, did not refrain from expressing dissatisfaction at the manner in which Centre was delaying appointments.   As CJI, he was prepared to consider the issue on the judicial side by adjudicating the PILs seeking expeditious filling up of judicial vacancies. The then Attorney General Mukul Rohatgi objected the consideration of PILs stating that it was a matter to be dealt with by the administrative side of the judiciary and not its judicial side“We cannot run away from our own cause when they (citizens) are projecting the cause of the judiciary.”, the Bench observed, overruling the objections of AG.

During May 2017, the SC collegium led by the then CJI Khehar finalized the MoP, conceding to the Government’s demand that it should have the right to veto a candidate on ground of ‘national security’. The Supreme Court also gave up its objections to the Centre’s proposal for setting up secretariats for dealing with judicial appointments. Even though the MoP has been cleared by the SC Collegium, the Centre has not returned its word on it, and has kept it pending on the ground that its ‘studying’ the matter.  

The letter written by four senior judges to the CJI, which was released to the media on 12^th January, makes reference to the manner in which a Division Bench happened to deal with issue of Memorandum of Procedure (MoP). On 27^th October, a Division Bench comprising Justice  A.K Goel and Justice U.U Lalit sought for the response of the Government regarding the steps to finalize the Memorandum of Procedure for appointment of judges, in a petition filed by R.P Luthra.  The letter expressed - when the Memorandum of Procedure was the subject matter of a Constitution Bench of this Court in Supreme Court Advocates on Record Association v. Union of India (2016) 5 SCC 1, it is difficult to understand as to how any other bench could have dealt with the matter.

The petition filed by R.P. Luthra was subsequently posted before a three judges’ bench presided by the CJI, after advancing the posting initially given by the Division Bench. The Bench of the CJI dismissed the matter recalling the order passed by the Division Bench on 27^th October. The Bench observed that there was no need to proceed with the matter in view of the Constitution Bench decision.

Need to fix time limit for acting on collegiums recommendations.

The impasse highlights the need for fixing a time-limit for Centre to act upon collegiums recommendations. During December 2016, the Centre rejected almost half of the collegiums recommendations for HC judges, after sitting over the files for months.  Such mass rejections by the Central Government are quite unprecedented.  In 2014, the then CJI R.M Lodha had criticised the Government for dropping the name of Senior Advocate Gopal Subramanium from the list of collegium recommendations.  Justice Lodha stated that the name of Gopal Subramanium was segregated and dropped by the Government without consulting the Collegium.  But before the Collegium could reiterate the name of Gopal Subramanium, he withdrew his consent.

As per the dictum in the ‘Second Judges Case’, if the Collegium reiterates a recommendation despite the Government returning it, then the recommendation will be binding on the Government. In order to avoid this situation, the Government is sitting over those recommendations, which do not find favour with it, without making any explicit rejection. This too, the Government is doing selectively. While some recommendations of elevation and transfer are acted upon, others are put in cold storage indefinitely. As illustrated above, while the transfer of Justice K.M Joseph was kept pending, transfer recommendations of several other judges were acted upon. It may be noted that Justice Joseph had presided over the bench of Uttarakhand HC which quashed the presidential rule imposed by Centre dissolving Uttarakhand Assembly. Many in legal circles wonder whether Justice Joseph is ‘paying the price’ for rendering judgment against the Centre. The selective manner in which the Centre acts upon some recommendations ignoring others will have a chilling effect on the independence of judiciary, as it could be construed as a subtle signal to toe the line of the Executive.

The selective inaction shown by the Government has led to huge disappointment and unhappiness amongst the members of the collegium. Sources close to the Collegium reveal that the four judges made it clear to the CJI that the Government should be told in no uncertain terms to act in a time bound manner on the recommendations. While the previous CJIs like Justice Lodha, Justice Thakur and Justice Khehar have been very active in voicing concerns about delay in judicial appointments, the present CJI Justice Misra is not perceived to be that forthcoming in addressing the issue.   

Last December, the Government had tried to pass the buck to judiciary, when the Minister of State of Law & Justice, P.P Chaudhary in Lok Sabha stated in Lok Sabha that Government had not received any recommendations from SC for filling up of current judicial vacancies. In this backdrop, it needs to be anxiously watched as to how the Government will respond to the latest recommendations made by the Collegium. In the first week of January, the Collegium recommended the elevation of Justice K.M Joseph and Senior Advocate Indu Malhotra, and transfer of several other judges. Regarding their elevation, the Collegium made the following observation :-

"The Collegium considers that at present Mr. Justice K.M. Joseph, who hails from Kerala High Court and is currently functioning as Chief Justice of Uttarakhand High Court, is more deserving and suitable in all respects than other Chief Justices and senior puisne Judges of High Courts for being appointed as Judges of the Supreme Court of India"We have also considered the names of eminent members of the Bar. In our considered opinion, at present, Ms. Indu Malhotra, Senior Advocate, is eminently suitable for being appointed as a Judge in the Supreme Court
 There were unconfirmed reports that the recommendations were returned by the Central Government, which were subsequently refuted by the Government.The Government’s response to these recommendations will act as a litmus test for executive’s reverence to judicial independence.

 Published in Live Law on 04.02.2018

 

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