SERIOUS CRIME CASES CAN'T BE QUASHED: SUPREME COURT.

The Supreme Court ruled on 04th October, 2017 (Wednesday) that criminal proceedings in serious crimes like rape, murder and financial fraud can't be quashed even if parties settle dispute amicably as such offences are not private in nature. "Heinous offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled (sic). Such offences are, truly speaking, not private in nature but have a serious impact on society. The decision to continue with the trial in such cases is founded on the overriding element of Public Interest in punishing persons for serious offences", a Bench of Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud said. 

"Economic offences involving the financial and economic well-being of the state have also implications which lie beyond the domain of a mere dispute between private disputants. The high courts would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance", the Bench said.

The Court passed the order while dismissing an appeal filed by four persons seeking quashing of the FIR against them for allegedly grabbing land on the basis of forged documents in Gujarat. They contended that the FIR should be quashed since the matter had been settled with the land owner who had filed a criminal complaint against the. 

"As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essential civil flavour may, in appropriate situations, fall for quashing where parties have settled the dispute", it said.

[Based on a news item written by Amit Anand Choudhary, published in The Times of India dated 05th October, 2017 (Thursday)]. 

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WHEN THE COURTS LEGISLATE AND EXECUTE.

In 1973, a Bench comprising 13 Supreme Court ruled by a majority that Article. 368 of the Constitution "does not enable Parliament to alter the Basic Structure or framework of the Constitution". The Court ruled what has come to be known as "the Basic Structure doctrine" - a judicial principle that the Indian Constitution has certain 'basic features' that cannot be altered or destroyed through amendments by Parliament. Paramount among these are the Fundamental Rights guaranteed by the Constitution. Only two years later, the Allahabad High Court found the then Prime Minister Indira Gandhi guilty of electoral mal-practices. Justice Jagmohan Lal Sinha invalidated Mrs.Gandhi's win and barred her from holding elected office for six years. The decision caused a political crisis in India that led to the imposition of the Emergency by Mrs. Gandhi's government from 1975 to 1977.

The best of times: During the Emergency, Mrs. Gandhi altered the election law retroactively by the 39th Amendment to the Constitution. Article. 329-A was inserted to void the Allahabad judgment. The retroactive, undemocratic, and politically motivated legislative enactment validated an election. The Amendment secured her position and prevented her removal from Indian politics. Later the enactment was successfully challenged in the light of the 1973 ruling and Article. 329-A was struck down. The Judiciary curtailed autocratic politics - a stitch in time saves nine.
Our Fundamental Rights are the conscience of the Constitution. This Right, and every other legal right, stems from our ability to retain the integrity and the structure of our Constitution. There is a hard learnt, intellectual history to this legal inheritance. The principle of the basic structure of the Constitution is enshrined in Article. 79 (3) of the Basic Law for the Federal Republic of Germany. The German Constitution was drafted between 1948-49, in the immediate shadow of its Nazi past. During the drafting sessions, the Weimar Constitution came under immense scrutiny by German Jurists and Scholars, who investigated the document at great length. The Constitution's broad powers to suspend civil liberties, coupled with an insufficient system of checks and balances, presented a structural opportunity for Adolf Hitler to seize power and preside upon an authoritarian democracy.
In the nineteenth century, there were many who mocked Montesquieu for his fear of political power and for his cautiously articulated theory of 'separation of powers'. The doctrine of 'separation of powers' took a particular view of men and power. It assumed that power corrupts. In the Constitutional Assembly Debates, while discussing the Fundamental Rights, Dr. Ambedkar expressed similar sentiments. "I myself cannot altogether omit the possibility of a Legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting life and liberties of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court could examine the laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices can be trusted to determine  which law is good and which law is bad". Separation of powers is indispensable because under the Constitution, power divides itself so that reason can rule.
And the worst of times: In January, 2014, in the matter of Judicial Review of Pardon Power, the Supreme Court in Shatrughan Chauhan and Another v. Union of India and Others over-stepped its constitutional power and duty and exercised the sovereign power of clemency, which it never possessed. The three-judge Bench, in its unprecedented authority, commuted a sentence of death to life for 15 persons on the singular ground of delay. The decision egregiously disregarded previous judgments laid down by the five-judge Bench of the Supreme Court. The Supreme Court has the appellate power to reduce a death penalty in regular appeals. However, it has never possessed such powers to exercise the remission or commutation while exercising the Judicial Review of Clemency Power.
Protection of our fundamental rights remains paramount and the Judiciary can and must curb acts of excess, and ensure checks and balances. However, the protection of our fundamental rights itself never empowered the Supreme Court to either legislate or to execute. The decision in the Shatrughan Chauhan case has been widely and wrongly heralded as a decision in support of human rights, while squarely forgetting the Judiciary's infringement of the cardinal principles of separation of powers. The Judiciary cannot revolt against the Constitution, but only on its behalf. 
The errors in the Shatrughan Chauhan decision brought forward the case of three convicts - Murugan, Perarivalan and Santhan - in the Rajiv Gandhi assassination case before the consideration of the Supreme Court. These commutations were ordered on the same grounds as Shatrughan Chauhan and Another v. Union of India and Others. After commuting the death sentence to life imprisonment for these convicts, the court rendered an unsolicited legal opinion that was neither pleaded nor argued by the petitioners (para. 31 of the judgment). The judgment erroneously declared the power of the State government under the Criminal Procedure Code, to exercise remission of 'life sentence' to 'no sentence', and enabled the release of the convicts. In Krishta Goud and Bhoomaiah v. State of Andhra Pradesh, the Supreme Court Bench presided  over by Justice V.R. Krishna Iyer stated with clarity: "As Judges, we cannot rewrite the law whatever our views of urgent reforms, as citizens, may be". When the State government's decision was challenged by the Union of India in the Rajiv Gandhi assassination case, P. Sathasivam, Chief Justice of India stated: "We are responsible for this problem. We will solve it".
The Tamil Nadu government taking political advantage of the "Tamil sentiments" in view of the coming election, exercised the remission power purely for political consideration, and demanded that the Centre act within 72 hours. Electoral politicking that appeals directly to mass sentiments, ethno-national affinities and sympathies, without institutional and social checks and balances, erodes the very foundation of our rights. The Tamil Nadu government's decision to release the prisoners might create short term electoral victory, but it will further entrench a culture that places politics and emotional appeasement above governance and the Rule of Law.
In a country governed by a written Constitution, the democratic right flows from the attribute of constitutional sovereignty. We cannot claim our fundamental right  or any other legal rights, unless we retain the structure of our sovereignty. In the 1970s, when faced with gross violations of the country's democratic structures, the Supreme Court stepped in, limiting the power of both the Legislature and Executive. Our Constitution is our act of revolution and the Judiciary its protector. Today when the same Judiciary oversteps its limits, it is indispensable that the decision is corrected, reviewed and reversed by a larger Bench.  
[Based on an article written by Suchitra Vijayan, Bar-at-Law, published in The Hindu dated 01 April, 2014 (Tuesday)].  
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HATE SPEECH AND THE POSSIBLE ELECTORAL CHURN.

The possible shift of a good section of traditional Congress voters after party nominee Imran Masood's hate speech video against BJP's Prime Ministerial candidate Narendra Modi may well turn the fortune towards an unexpected aspirant. The sort of damage control done by Congress Vice-President Rahul Gandhi on Saturday - the day Mr. Masood was arrested - seems to have not had much impact as the local Congress leadership is still red-faced, and party workers fanning out to seek a vote are being confronted with uneasy questions. The hate speech by Mr. Masood and his 14-day judicial remand are the main topic of conversation among urbanites as well as in hukkah panchayats in rural areas.

Mr. Masood delivered the speech at a meeting at Talehi Bujurg, near Deoband, in September, 2013 when he was in the Samajvadi Party. Although he apologised on Friday, when the hat speech went viral on private television channels, he turned defiant after he was arrested on Saturday. He told journalists that he would go to jail a hundred times as he had committed no wrong by threatening to chop Mr. Modi into small pieces if he came to Uttar Pradesh. Saharanpur District Congress Committee President Meherban Alam, when contacted on Monday, said it was a well-planned conspiracy to make the hate CD public on election eve as it was made six months ago and not after the election code of conduct came into force.

"The CD contains Mr. Imran Masood's personal views, which are contrary to the Congress philosophy that stood for communal harmony and peace", Mr. Alam said adding that the party was canvassing for Mr. Masood as he never used such language after joining the Congress. Mr. Masood's outburst has, however, shocked many, especially traditional Congress voters, who seem to be considering voting for the Bahujan samaj Party or the Samajwadi Party. A good section of Congress voters is considering voting for the BJP ... a shift not thought of till a week ago. This, observers feel,might tilt the balance in favour of Raghav Lakhanpal, MLA, fielded by the BJP.

Mr. Masood is the nephew of the former Union Minister, Rashid Masood, who is in jail on ebing convicted in the medical admissions scam. The Samajwadi Party has fielded Mr. Rashid Masood's son, Shahjan Masood, who was given the ticket after withdrawing the same from Imran Masood. Lakhanpal enjoys considerable clout because of the work done by his late father Nirbhaypal Sharma, who was a popular Congress MLA. Besides this, the entire saffron brigade has fanned out to villages trying to prove that the Congress was a communal force by citing the hate speech video.

Hafiz Abdul Aziz Khan, a prominent social worker in Deoband,while deploring Imran Masood's hate speech, says he might get the votes of illiterate Muslims, while secular Muslims would now vote for the sitting Bahujan Samaj Party MP Jagdish Rana fielded again by the Party. Ashraf Siddiqui in Khata Khedi in the city feels that people would vote for the party that promised safety, food and health security and could defeat the BJP.

Chet Ram in Haroda expressed shock that the Congress candidate had uttered such objectionable words against Modi. Most of the traditional Congress voters here are at a loss to decide as to who should be given the mandate."We will soon be holding a panchayat to decide whom to vote - the BSP, SP or BJP", he said. These are challenging times for the Masood family, which has reigned supreme in the region for decades ... the older Masood is tainted for the medical admissions scam and his nephew Imran for the hate speech. It would be better to elect someone from outside this family, says Harish Talwar and Seema Bhandari in Hakikat Nagar.

[Based on an article written by C.K. Chandramohan published in The Hindu dated 01st April, 2014 (Tuesday)]. 

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RIGHT TO HEALTH UNDER INDIAN CONSTITUTION.

The Constitution of India under Article. 21 provides for Right to Life and Personal Liberty to the people of India. Under the various provisions of the Constitution it imposes the responsibilities to the Central as well as State Government, of establishing a Welfare state, securing and protecting the rights of the individual and promoting their well-being. The State has to implement the Directive Principles, as it is the obligatory duty of the Government, to provide adequate medical facilities and health care to the people of India, by running hospitals and health care centers. Basically, the courts are custodian and protector of the Fundamental Rights of the citizens, but now they are empowered to proceed further and give compensatory relief to the victims, whenever, there is violation of his or her fundamental right to health, by public or by the State. For violation of the fundamental rights of the citizens, Supreme Court under Article. 32 and the High Court under Article. 226 can grant monetary relief to the sufferer through Writ Petitions. It can penalise the wrong doer, including the Government and fix the liability for the public wrong, under the Constitution of India. There is no express provision, for fixing such liability but, the Supreme Court, through its various judgments, have made the adequate provisions for fixing the liabilities for the same.

In the Constitution of India, the spirit of Fundamental Rights and Directive Principles of State Policy recognises many basic rights of the individuals, safeguarding the human dignity. Fundamental Rights are justiciable, i.e., they can be enforced by legal action. Directive Principles are directions for the legislatures and are not enforceable or justiciable but are powerful instruments for the good governance of the country and it shall be the duty of the State to apply these Principles in making the law (Article. 37).

Article. 21: No person shall be deprived of his life or personal liberty except according to the procedure established by law. Thus, the Right to Life or Personal Liberty under Article. 21 from the point of health includes - 

(i). Right to Health;

(ii). Right to Doctor's Assistance;

(iii). Right to Pollution free environment. 

Article. 32: The Constitution gives Right to Move Supreme Court for the enforcement of the Fundamental Rights. Whenever a right of the citizen is violated, he can move the Supreme Court for the enforcement of that right.

Article. 226: The Constitution gives right to move High Court for the enforcement of the fundamental rights. Whenever a right of the citizen is violated, he can move the High Court for the enforcement of that right.

Public Interest Litigation: Normally the person, whose individual right is violated or infringed, has a locus standi to file a writ petition for the enforcement of a fundamental right. However, when there is a breach of some public duty or breach of a constitutional provision which causes injury to the general public. Any person is allowed to file Writ Petition for such violation and Supreme Court has taken cognizance of even petitions filed based on the Press reports, for such violation of fundamental rights.

Relevant Directive Principles Related With Right To Health To Be Followed By The State:

(A). Article. 39:

(a). That the citizens, men and women equally, have the right to an adequate means of livelihood.

(e). That the health and strength of workers, men and women and the tender age of children are not abused, and the citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.  

(f). That the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that children and youth are protected against exploitation and against moral and material abandonment.

(B). Article. 41:

The State shall, within the limits of its economic capacity and development, make effective provisions for securing the Right to Work, to Education and to Public Assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Thus it deals with social services and confers Right to Public Assistance in cases of sickness and disablement.

(C). Article. 42:

It requires, that the State, within the limits of its economic capacity and development, to make effective provisions, for securing just and human conditions at work and also make provisions for maternity relief.

(D). Article. 47:

It lays down, the duty of the State, to regard, as among its primary duties - the raising of the level of nutrition and the standard of living of its people and the improvement of public health. The State has to endeavour to bring about prohibition of the consumption (except for the medicinal purposes) of intoxicating drinks and drugs which are injurious to health.

(E). Article. 48-A (introduced by the forty-second amendment Act, 1976): It obligates the State to endeavour to protect and improve the environment in view of the public health. The State must take necessary steps for protection and improvement of healthy environment - essential for preserving and maintaining good public health.

Some Relevant Directive Principles Under New Chapter: Prior to Forty-Second Amendment of the Constitution in 1976, there were no fundamental duties of the citizens. The list of Fundamental Duties was incorporated in the Constitution on the recommendation of the Swaran Singh Committee.

(F). Article. 51-A(g): It is the Fundamental Duty of every citizen to protect and improve the natural environment including forests, lakes, rivers, wild life to have compassion for living creatures.

Article. 12 of the International Covenant on Economic, Social and Cultural Rights: It requires the State parties to strive for the highest attainable standard of physical and mental health. The effect of these international human rights documents are to impose obligations on the State, relating to health, under different laws, such as Law of Torts, Law of Contract, Consumer Protection and Law of Crimes. 
Survey of Judicial Decisions in Establishing Right to Health as a part of Right to Life:
(1). Municipal Council, Ratlam v. Vardhichand (1980) 4 SCC 162: The case refers to Article. 21 for Right to Health with reference to the pollution free environment and State duty to maintain pollution free environment under Article. 47. In this case, resident of Ratlam, Vardhichand filed a complaint that Municipality had failed to prevent the discharge of malodorous fluids from the nearby Alcohol Plant into the public street (nala) and provide sanitary facilities on the roads. The Supreme Court directed the Municipality to follow the statutory duties as provided in Article. 47 of the Constitution and stop the effluents from the alcohol plant from flowing into the nala or street and remove unhygienic conditions amounting to public nuisance. It further stressed, that Article. 47, makes it paramount primary duty on the State or Municipality to take steps to prevent pollution free environment and improve the public health. The Court also observed that - Where Directive Principles have found statutory expression in do's and don'ts, the Court will not sit idle and allow municipal or Government to become statutory mockery. The Law will relentlessly be enforced and the plea of poor finances will be alibi when people in the misery cry for JUSTICE. The officer-in-charge and even elected representative, will have to face the penalty of law, if what the Constitution and follow-up legislation, direct them to do are defied and denied wrongfully.
(2). M.C.Mehta v.Union of India (1987) 4 SCC 463 (Ganga Pollution Case): The case refers to the Article. 21 for Right to Health with reference to the pollution-free environment. Justice Singh declared the closure of Industries which were polluting River Ganga (though it may bring unemployment and loss of revenue to the State/ as life, health and ecology have greater importance for the people than the unemployment and loss of revenue. 
(3). M.C. Mehta v. Union of India AIR 1987 SC 965: This case refers to the Article. 21 for Right to Health with reference to the pollution free environment. In this case, there was a leakage of oleum gas on 04th December, 1985 from the Shri Ram Food and Fertiliser Corporation, New Delhi, in which one person died on the spot and several persons were taken ill because of the leakage of the toxic gas. M.C.Mehta filed a PIL under Article. 32 for the violation of Article. 21 and sought to close and relocate the Plant which was located in the thickly populated area of Delhi. The District Magistrate, Delhi ordered to close down the factory. Chief Justice Bhagawathi showed his deep concern for the safety of the people of Delhi from the leakage of the hazardous substance like oleum gas. The Apex Court made significant announcement in this case, that enterprises engaged in hazardous or inherently dangerous activity owe an absolute duty to the community and must be absolutely liable to compensate for the harm caused by such activities. It was observed that there is an element of hazard or risk inherent in the very use of science and technology and it is not possible to totally eliminate such hazards or risks to the community. We cannot possibly adopt a policy of not having any chemical or other hazardous industries, merely because, they pose hazards or risk to the community. We can only hope to reduce the elements of hazards or risks to the community, by taking all necessary steps. It allowed it to restart the factory with modifications of the workers safety, while maintaining the effluent discharge and emission standards.
(4). Pt. Parmanad Katara v. union of India AIR 1989 SC 2039: This case refers to the Article. 21 for Right to Health. Article. 32, Articles. 41 and 42 Right to get Treatment in Sickness and Disablement. In this case Pt. Parmanad Katara was a small human right activist fighting for the good cause of general public interest. He filed a writ petition on the basis of a report in Hindustan Times, in which it was alleged that a man travelling by Scooter was knocked down by a speeding car. He has an head injury and was bleeding profusely. He was picked by a person on the road and he took him to the nearest hospital. The doctor refused to attend to him and give treatment. He could not get the treatment due to lack of operative facilities for a Head Injury and non-availability of a neuro-surgeon. He was advised to take him to a different hospital located about 20 kms. away, authorised to treat Medico-Legal cases. At last he died on the way. The Supreme Court has held that there cannot be two opinions, that preservation of Human Life is of paramount importance. Every medical practitioner, whether practicing or attached to government or private hospital has a profound obligation, to extend his services with due expertise for protecting life.No law or statute can intervene, to avoid or delay the discharge of this paramount obligation, cast upon the members of the Medical Profession. Many a times the member of the Medical Profession avoids his duty to help a dying person, because it might turn out to be a medico-legal case. No doubt a Physician is free to choose his patient, whom he wants to serve. However, he should  respond to any request for his assistance in an emergency. The Supreme Court has further held that whenever a member of the medical profession is approached, and if he finds, that whatever assistance he could give, is not sufficient to save the life of the patient, and some better assistance is necessary, it is the duty of the medical man, to provide primary medical aid to the patient and then refer the patient to the other hospital, where the expertise facilities required for the treatment are available. The practice of the doctors and certain Government Institutions, to refuse even the primary medical aid to the patient and referring them to other hospitals, simply because they are medico-legal cases is deprecated. No medical man shall commit an act of negligence depriving the patient from necessary care.
(5). Union Carbide Corporation v. Union of India AIR 1992 SC 248 commonly called as the Bhopal Gas Tragedy: This case refers to the Article. 21 for Right to Health with reference to the pollution free environment. In this case, there was leakage of Methyl Isocynate (MIC) gas from the Union Carbide Corporation at Bhopal on 02nd - 03rd December, 1984. It was reported that more than 3,000 people died the same night and 2,00,000 persons were taken ill of various ailments. In this case the Supreme Court held that the Union Carbide Corporation will compensate the victims and their relatives and also for the injuries to unborn children whose congenial defects were traceable to MIC toxicity inherited or derived congenitally due to the accident.
(6). State of Punjab v. Mohinder Singh AIR 1997 SC 1225: The Right to Health is recognised as a part of Fundamental Right to Life, guaranteed by Article. 21 of the Constitution. In this case an employee Mr. Mohinder Singh of the Punjab State had a heart ailment. The specialist of this disease was not available in Punjab so he was permitted by the Director of Health Services and the Medical Board of Punjab, to have treatment outside Punjab, i.e., at All India Institute of Medical Sciences, New Delhi. The employee had to pay room at the Institute as per their rates. The employee claimed re-imbursement for the same. The State Government rejected the claim saying that the room rent was not permitted as per Government Rules. The Employee went to the Court and it was held that having regard to Article. 21 of the Constitution, the employee was entitled for the re-imbursement amount actually paid by him as room rent.
(7). Dilip Basu v. State of Bengal AIR 1997 SC 3017: This was a writ petition in the Supreme Court and was decided by Honourable Justices Dr. A.S. Anand and K.T. Thomas. The petition was related to Articles. 21, 22, 32 and 226. The Honourable Apex Court has held that as established in Article. 21 that no person shall be deprived of his life or personal liberty except according to the Procedure established by law. Personal liberty thus is a sacred and cherished right under Constitution of India. The expression Life and Personal Liberty has been held to include the Right to Live with Human Dignity and thus it would also include within itself a guarantee, against torture and assault by the State or its functionaries.
(8). Pachim Bengal khod Majdoor Samiti and Others v. Government of West Bengal AIR 1996 (4) SCC 37: This case refers to the Article. 21 for Right to Health and Articles. 41 and 42 making it the duty of the State to provide the treatment in sickness and disablement. One member of the Pachim Bengal Khod Majdoor Samiti fell from the train and suffered Head Injury for which he needed a Neuro Surgeon to operate on him. He moved from 7-8 hospitals and was turned down for lack of operative facilities for a Head Injury and non-availability of a Neuro-Surgeon. At last he was admitted and operated at some hospital after wastage of few hours. He was alright but he sued the government for not providing adequate facilities for Neuro-Surgery in the State Hospital. The Supreme Court has held that it is the responsibility of the State to provide for the facilities of treatment in the state run hospitals and held this inability to provide Neuro-Surgery in the State Hospital as violation of Articles. 41 and 42 to be read with Article. 21 and penalised the Bengal government with a fine of Rs. 25,000/-. It was held that Life without health is no life at all. It also issued necessary directions to the Central and State Government to ensure availability of proper medical facilities to deal with the emergency cases. It also emphasised that the State cannot abdicate the constitutional obligation imposed upon it, by citing financial constraints - as a reason for not providing adequate health care facilities.
(9). In M.C. Mehta v. Kamal Nath AIR 2000 SC 1997: Justice Saghir Ahmed of Supreme Court gave a wider interpretation of the fundamental right or constitutional right of article. 21. It was held that the expression Life in Article. 21 does not mean, mere animal existence. It has a wider meaning which includes right to livelihood, better standards of life, hygienic conditions in the work place and leisure. This means right to live with human dignity and have a living environment congenial to human existence. Any activity which pollutes the environment and makes it unhealthy, hazardous to human health, is violative of the right to have living environment, guaranteed by Article. 21. He further held that environmental pollution should also be regarded as amounting to violation of Article. 21 of the Constitution. 
(10). Hinch Lal Tiwari v. Kamla Devi 2001 (6) SCC 496: This case refers to Article. 21 for Right to Health with reference to the pollution free environment. In this case, the Supreme Court has held that material resources of the community like forests, tanks, ponds, hillock, mountain, etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality of life which is the essence of the guaranteed right under Article. 21 of the Constitution. The Court decided that the Pond's land cannot be allotted for the residential purpose.
-C.S. Chakravarthy-
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'PROMISCUITY' OF THE RAPED: HIGH COURT BAIL REFLECTS '70s VIEW.

The Punjab and Haryana High Court recently gave an astounding reason to grant bail to three students of O.P. Jindal Global University who were convicted of sexually assaulting a junior - "possible promiscuity of rape survivor". The three assaulted the girl for two years after blackmailing her into submission with her nude pictures. The bail order came on a petition challenging the judgment of a Sonipat Court, which in May 2015 had awarded two of them 20 years' jail term and ordered the third to undergo seven imprisonment. The trial court scanned the evidence and did not find the rape survivor 'promiscuous'. The order said, "The WhatsApp chats running into pages are so abusive and vulgar that the extracts of the same cannot be explained and put into the judgement and what can only be concluded through the WhatsApp chats is that the prosecutrix (survivor) was totally under the control and dominance of the accused, Hardik".

According to the trial judge, the messages showed that the girl, under duress, acted according to Hardik's wishes and continued to share nude pictures with him. The trial court was shown evidence that he forced the girl to purchase sex toys and use it while chatting with him over skype. If the girl's 'promiscuity' was the reason for her sexual assault, why did the High Court direct the three men to undergo psychiatric treatment at AIIMS and get cured of "their behavioural aberration" and "voyeuristic tendencies". More surprisingly, the High Court asked them to pool Rs. 10 lakh and pay the survivor.

The High Court's order is legally untenable. On the one hand it found that the men had serious behavioural problems which needed medical treatment and they were guilty enough to be liable to pay Rs. 10 lakh to the girl, while on the other hand, it pinned half the blame on the survivor by saying "a careful examination of her statement again offers an alternative conclusion of misadventure stemming from a promiscuous attitude and voyeuristic mind". The High Court's bail order reflected the Supreme Court's outrageous approach recorded in its 15th September, 1978, judgment in Mathura case [1979 (1) SCR 810]. The Supreme Court was hearing an appeal by two policemen convicted by Bombay High Court for sexually assaulting minor girl Mathura, who was brought to the police station on a complaint lodged by her relatives after she eloped with her lover.

The Supreme Court acquitted the police-men just because Mathura's medical examination indicated that she was "habituated to sexual intercourse". It also underlined the evidence that she had not raised alarm while being sexually assaulted by the police-men inside the police station. So, should men get away if they sexually assaulted a woman who is used to intercourse and if she does not raise an alarm out of shock? Two years later, the Supreme Court did a course correction through a judgement authored by Justice Krishna Iyer in Rafiq v. State of Uttar Pradesh [1981 (1) SCR 402]. He said, "When rapists are revelling in their promiscuous pursuits and half of humankind - womankind - is protesting against its hapless lot, when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable". 

A decade later, the Supreme Court laid down the golden rule - men do not have a right to violate even a prostitute, and any attempt to indulge in sex without the woman's consent would constitute rape [State of Maharashtra v. Madhukar Narayan Mardikar 1991 (1) SCC 57]. It had said, "The un-chastity of a woman does not make her open to any and every person to violate her person against her wish. She is equally entitled to protection of law. Therefore, merely because she is of easy virtue, her evidence cannot be thrown out". Strangely, two decades later, the Punjab and Haryana High Court relied on "possible promiscuity" of the girl to release the rape convicts on bail during pendency of appeal against conviction. 

A judge's lack of sensitivity in rape cases has the potential to suffocate a woman already devastated by the sexual assault. Not only in India, but across the world, such insensitivity had dented the advancement of jurisprudence in gender justice. In 2007, Oxford County Court judge Julian Hall doubted a ten year old girl's age and blamed her provocative sense of dressing to award a friendly nine-month prison term to the man who violated her. Did it matter how a 10-year-old dresses or how old she appears? Hall probably subscribed to the mindset of another Judge, Bertrand Richards of Ipswich Crown Court, who in 1982 had created a sensation by his judgment in another rape case. A young woman on a lonely stretch took a lift from a passing car. The young man took advantage of the situation and raped her. Richards convicted him but let him off with a fine of 2,000 pounds saying the girl was guilty of "contributory negligence" by knowingly taking the risk of hitch-hiking at a late hour on a lonely stretch. Richards could have termed the girl's attempt to get out of the lonely stretch with the help of a Good Samaritan as a provocative gesture inviting the sexual assault and hence the woman was guilty of 'contributory negligence'.

-C.S. Chakravarthy-

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RETRIBUTIVE POLICY IN JAILS TO BLAME FOR UNNATURAL DEATHS.

Highlighting a complete mismatch in approach towards prisoners by the Criminal Justice System and prison administration, the Supreme Court has said this dichotomy could be a major cause of large number of unnatural deaths of jail inmates every year. "What is practiced in our prisons is the theory of retribution and deterrence and the ground situation emphasises this, while our Criminal Justice System believes in reformation and rehabilitation (of prisoners) and that is why hand-cuffing and solitary confinement are prohibited", said a Bench of Justices Madan B. Lokur and Deepak Gupta. Justice Lokur, writing the judgement for the Bench, said the rejection of Criminal Justice System-advocated reformation and rehabilitation policy by the prison authorities has resulted in "violence in prisons and eventually unnatural deaths". The Supreme Court quoted National Crime Records Bureau statistics to highlight large number of unnatural deaths in Indian prisons - 127 deaths (87 suicides) in 2012; 114 (70) in 2013; 195 (94) in 2014 and 114 (77) in 2015. The average suicide rate in prisons is over 50% more than the figure in normal conditions", it said.

The Supreme Court said: "The common person does not violate law for no reason at all. It is circumstances that lead a situation where there is a violation of law".

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ERRANT COLLEGIUM ARE THERE ANY CHECKS?

The lack of transparency in the collegium system, exposed by Justice J. Chelameswar, has stunned the whole country and eroded the faith of the public in the institution's inviolability. All powers tend to expand, and judicial power is no exception. During the Constituent Assembly debates, some members opined that the concurrence of the Chief Justice of India must be a necessary pre-requisite for appointments to Higher Judiciary. However, this was emphatically rejected by Dr. Ambedkar, Chairman of the Drafting Committee.

The Second Judges case ruled in favour of not only the primacy of the Chief Justice of India but also practically eliminated the role of the Executive. "Consultation" by judicial interpretation was assigned the meaning "concurrence". To undo the situation and maintain independence of the judiciary, while at the same time claiming a participatory role in the selection of judges of the Higher Judiciary, the Parliament unanimously passed the Constitution (93rd Amendment) Act and also the National Judicial Appointments Commission (NJAC) Act. Predictably, this was challenged in the Supreme Court. Of the five judges who constituted the Bench, one Judge - Justice J. Challameswar - wrote a dissenting opinion and among the four others there was no unanimity. The judgment has revived the status quo ante - judicial supremacy without any meaningful role for the Executive.

The practice of judges appointing judges and claiming the same to be integral to judicial independence - a system nowhere in vogue an any democratic country governed by the Rule of Law - has attracted wide criticism not only from lawyers, litigant public, retired judges and jurists but also from all sections from society. In its working, the system spawned many an unedifying consequence. The judges of the Supreme Court and the High Courts, who are not members of the respective collegiums, were totally in the dark about how the selections were made and whether people with real merit were chosen or sidelined.

In deciding the Second Judges' and Third Judges' case, as well as the NJAC case, the Supreme Court has held that there are certain implied limitations to the powers of the Parliament. Time has now come to say that there should be implied limitations to judicial power, at least to the extent of collegium sharing with all the members of the court - Supreme Court or High Courts as the case may be. Even the author of the Second Judges' case Justice J.S. Verma, after his retirement, revised his opinion and favoured a review in the light of the experience gained after the verdict in the Second Judges' case. The intention of the Constitution makers, according to his re-thinking, was not to accord primacy to either the Judiciary or the Executive and the responsibility was to "find the most suitable person for appointment and this could best be done by a National Judicial Commission representing all wings headed by the Vice-President / Prime Minister / Chief Justice of India". Had this thought permeated his thinking while authoring the majority opinion in the Second Judges' case, the constitutional history of India would have been different.

Another former Chief Justice of India Justice E.S. Venkataramaiah viewed that the construction placed in the Second Judges' case, about the primacy of the judiciary, was totally undemocratic. Justice V.R. Krishna Iyer, one of the greatest Judges of our country, lamented that the Second Judges' case had overturned the delicate balance between the three organs of the State engrafted in the Constitution. The present crisis is unparalleled and unprecedented. The situation calls for immediate remedial action. One solution is that the President (Council of Ministers) may refer the following, among other questions, for the advisory opinion of the Supreme Court of India under Article. 143(1) of the Constitution: Whether instead of the collegium, the power should be exercised by the institution as a whole - Supreme Court or the High Courts as the case may be?

Whether the ambit and scope of judicial independence obtaining when Keshavananda Bharati was decided could be altered by judicial verdict. If so, whether such alteration would not amount to altering a basic feature of the Constitution forbidden by the Keshavananda case? What should be the role of the Executive if an alternative mechanism is to be brought into being for appointment of judges of the Higher judiciary? Whether the President can exercise his individual discretion in regard to appointments to the Higher Judiciary recommended by the Supreme Court collegium?

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