I came to submit my suggestions before Department of Justice, Ministry of Law & Justice, honouring the intentions of Supreme Court aimed at improving the collegium system. It has asked the government to seek suggestions from public and Bar Council of India. Interestingly, as I came to flip through news items in the aftermath of sending my suggestions, I felt a deep sense of satisfaction that my views were well-within the ambit of concerns of other top-notch legal experts grappling with issue of elevating standard of collegium. The Supreme Court eager to ensure transparency feels that a permanent secretariat for collegium would prove handy. It’s also all prepared to improve the complain mechanism against the candidates besides ensuring a perfect methodology to determine candidate’s eligibility.
It’s certain that on this sensitive matter views of legal experts are bound to be divided. Fali S Nariman pointed out the flaws in present collegium system in quite strong terms. He seemed to be highly frustrated the way members of colleguim circle turned a deaf ear to concerns of right voices!! “The Dinakaran episode told us that there was lack of receptivity in the collegium. If a responsible member of the bar wants to tell the collegium about a person being considered for the post of a judge, why should the collegium members not hear him out.” ( Fali S Nariman, The Times of India )
Justice Chelameswar who has left everybody stunned with his strong condemnation of present days colleguim system sounds harsh yet very genuine in regard to reforms in this direction. “To assume or assert that judiciary alone is concerned with the preservation of liberties and does that job well, is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved… To wholly eliminate the executive from the process of selection would be inconsistent with the foundational premise that government in a democracy is by chosen representatives of the people. The records ( information shared among collegium members ) are absolutely beyond the reach of any person including the judges of this court who are not lucky enough to become CJI. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country” ( Justice J Chelameswar, The Times of India )
However, former solicitor general Gopal Subramaniam, is adamant about highest level of confidentiality regarding deliberations among collegium members! ” The moment information gets leaked about a person being considered by the collegium at the Supreme Court or the high court level, immediately, vested interests swing into action. They launch a motivated campaign to deride and defame the person in the zone of consideration. The person who is awaiting a final word about his appointment as judge from the collegium suffers greatly in silence. Collegium meetings have to be conducted in absolute secrecy. Names of persons being considered by the collegium for the post of judges should never be leaked out. It unnecessarily puts the candidate’s reputation in peril.” ( Gopal Subramaniam, The Times of India)
The opinion seems to be strongly divided. The ball now lies in the Supreme Court. We all eagerly await its final words in this regard. My suggestions are pretty simplistic in tone since I am quite aware of the fact that legal bodies would have sent enough cumbersome ideas!! For instance, I had a look at the suggestions sent by Save Indian Family Foundation ((SIFF) fighting for the welfare of men in India. Few of them appeared to be well-carved suggestions but certain ideas were outrageous and flabbergasting. Overall, this institution fighting for the cause of men did a good job.
My suggestions are as follows:
1. There should be thorough scrutiny of the credentials of the candidate. It should be ensured at the very first stage that names recommended represent the best minds.
2. Though it’s a good idea that there should be fair representation of women and SC/ST quota, it should be ensured that it in no way compromises with the merit. The point is that merit should be the criteria instead of adhering to notion of fair representation in rigorous way.
3. If possible let us citizens be made aware of criteria/qualification on which the final selection got made. There should be maximum transparency, and minimum confidentiality. It’s the notion of confidentiality that has created maximum damage in the field of judiciary. The point is that if at any stage it’s found that there is something fishy about final selection, there should be a mechanism to prevent the entry of wrong person in league with doubtful credentials.
4. It should also be ensured that whistle blowers who dare to expose wrong names should not be targeted.
5. It’s a redundant practice in field of law that only heirs of big lawyers or lawyers enjoying patronage of judges get recommended and thereafter selected! This practice should stop. Let those names be recommend who truly represent the legal values.
6. This may sound an abstraction but I feel that let those lawyers be recommended who have genuine inclination towards rule of law and natural justice instead of making way for lawyers who have simply dry understanding of rules and regulations.
( The Writer Of This Post Is Advocate Associated With Allahabad High Court, Allahabad, Uttar Pradesh. )
Supreme Court Regarding Nature Of Collegium
Fali S Nariman On Collegium System
Justice Chelameswar On Collegium System
Gopal Subramaniam On Collegium System
Suggestions By Save Indian Family Foundation
I still treat Indira Gandhi as one of the finest politicians India ever produced. At least, she was a politician with a backbone. She had a mind of her own, which she perfectly used to serve the cause of nation. She was, indeed, mired in bundle of contradictions and offered no great resistance to Congress culture wedded with sycophancy. Despite being owner of iron-will, she was in grip of insecurities. That brought her head on with prominent leading constitutional body like Supreme Court. She was the one who really started the game of weakening Supreme Court after biting the dust due to Allahabad HighCourt’s decision. The emergency period, an evergreen stigma on India’s democratic credentials, prove that she inherited the dictatorship traits found in infamous dictators of the past.
This “dumb doll” was really deceptive, and, no wonder, she was at the receiving end of Nixon’s anger, who treated her as “witch” and “clever fox”. The problem with her was that she had a disturbed childhood, followed by broken marriage, which when got combined with bourgeois set up offered by Congress culture, produced a fractured personality. She had flashes of brilliance in matters pertaining to internal security but other times she remained in possession of her whims and fancies. The Congress Party, which likes of Mahatma Gandhi, believed should be dissolved after Independence, remained in power with all its ills. Against this backdrop, a strong lady like Indira Gandhi had no other option but to share the road with corrupt minds.
We have many legitimate reasons to believe that her flaws in her persona outnumbered her positive aspects. However, it’s undisputed that her love towards nation was supreme. She had perfect global mind, which could argue with egocentric American leaders in tough language. She had the ability to call a spade a spade besides having the ability to follow her own way even as that meant ransacking American wishes. India, if we leave Atal Bihari Vajpayee, has not seen any Prime Minister who articulated dreams and wishes so well before the global leaders in the post Nehru regime in such a bold fashion. Lal Bahadur Shashtri also led the nation in glorious way but that’s a different story.
Today this nation is in mess. It’s progressing in a manner which has further widened the gap between the haves and the have nots. The Jihadi elements rule the roost, naxalites run a parallel government in this nation, China has increased its influence in Nepal and Arunanchal Pradesh, Kashmir remains in the grip of separatist leaders and scams have become the only phenomenon taking place regularly but our puppet Prime Minster Manmohan Singh, like Roman Emperor Nero, feels all is well! Imagine the fate of this nation in hands of likes of Rahul Babas and Robert Vadheras.
India was much safe in hands of Indira Gandhi than in the hands of mentally retarded leaders of our era, having huge difference in theory and practice. This lady with so many flaws had the sincere desire to keep India’s integrity intact. Her hardcore attitude was better than tendencies exhibited by leaders like Pranab Mukherjee, Manmohan Singh and Chidambaram, which is nothing other than cowardice masquerading as gentleness. We need her boldness and not such pretenders at the helm of affairs, in control of foreign hands, hidden behind the curtain.
This petition stated: “In a feminist ruled country(feminocracy) like India Justice Bhaktvatsala is a great judge who against all odds is battling the feminist hegemony in courts. He has taken on the misandrist media and feminist ideology and is delivering great judgment. His recent efforts on stopping the misuse of the dreaded section 498a which has led to millions of husbands committing suicide is truly remarkable. India hails Justice Bhaktvatsala and wants more Judges like him to be elevated to the HC and Supreme court.”
And now on Sep.05, 2012, a prominent prestigious publication, Kafila, started a campaign for removal of the same judge. The content of the petition states: “Justice Bhaktavatsala has shown grave disrespect towards the Indian Constitution, which he is sworn to protect, and which guarantees equal rights to all citizens, men and women. As such, he has revealed himself to be utterly unfit for his high office of responsibility.Sign the petition asking the Chief Justice of India, Hon’ble Mr. Justice S.H. Kapadia, to remove Justice K Bhaktavatsala from his post for these appalling statements.”
Well, all I can now say is that ball lies in the court of people. Right now, I feel happy for adding a new dimension in the creature called writer. And yes, million thanks to my haters!
The Marriage Laws (Amendment) Bill 2010 has raised a storm in the legal circles and among bodies representing rights of men. The bodies advocating for men’s rights like Save Indian Family Foundation (SIFF) have lambasted the latest amendment on ground that it promotes misandry in society. Even in legal circles, allowing wife right to oppose the grant of a decree, if she happens to be respondent, on the ground that the dissolution of the marriage will result in grave financial hardship to her but denying the same right to husband is being seen as violation of the principle inherent in Article 14 related with Right to Equality.
In my eyes, the response is just the reverse. I appreciate the amendment and I condemn the media and Men’s Rights Association that they have reacted in immature manner without bothering to having a close look at the Amendment. The Amendment nowhere talks about distribution of husband’s property -an impression generated by SIFF and Indian media. We should learn to appreciate good laws. However, I too have my fears and doubts but they differ hugely from the mainstream media or, for that matter, associations championing the cause of men.
This amendment had became a necessity after Hindu Marriage Act, 1955, and the Special Marriage Act, 1954 were modified to meet the new changes in the society. It was presented in the Parliament last year, keeping in mind suggestions made by the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice. It would be quite interesting to know that demand to include “Irretrievable Breakdown of Marriage as a Ground of Divorce” came into limelight some three decades ago. That prompted the Law Commission to take note of this issue. It dealt with this issue in its 71st Report titled “The Hindu Marriage Act, 1955 — Irretrievable Breakdown of Marriage as a Ground of Divorce” which was submitted in April, 1978, and made this recommendation that “irretrievable breakdown of marriage” should be made a new ground for granting a decree of divorce.
The Bill cites two judgement delivered by Supreme Court which acted as a catalyst: Ms. Jorden Diengdeh vs. S.S. Chopra(AIR 1985 SC 935) and Naveen Kohli vs. Neelu Kohli (AIR 2006 SC 1675). Both theses judgments laid emphasis on bringing suitable changes in Hindu Marriage Act, 1955 so that irretrievable breakdown of marriage could serve as an additional ground for divorce. The Law Commission once again came to the fore when it took suo moto cognizance of the issue, presenting its 217th Report titled ‘Irretrievable Breakdown of Marriage —Another Ground for Divorce’ to the government in year 2009.
It can be noticed that Congress governments have been pretty much conscious to introduce laws, which give an upper hand to weaker sex so that it can be seen as champion of women’s rights. It’s very much similar to its approach in the case of minorities, which it tries to woo with anti constitutional measures. The same Congress government miserably failed to protect the sanctity of important Constitutional bodies like Governor of States and Comptroller and Auditor General of India (CAG). After all, how dare CAG came to point out irregularities in the allocation of radio spectrum? No need to talk about role of governors who turned out to be puppets instead of acting as bridge between Centre and States. It also weakened Judiciary by making it in constant conflict with Parliament over its power to interpret the laws in independent manner. The Congress governments in subtle ways have always tried to weaken all the institutions that came to curb its lust for power. Of late, we find that it’s chiefly focused to appease minorities and women. One can easily sense why it’s so? It’s because these two constitute its vote bank. It’s neither bothered about quality of life nor its interested in making the nation on right track. How else can one justify the way it dragged important institutions into controversy- the latest being army row?
Let’s grasp this fact very well that all dubious laws have been framed by Congress government in the name of good intentions. The same laws created with good intentions become so terrible that Supreme Court Court is left with no other option other than to treat the Dowry Act as instrument of legal terrorism. The SC/ST Act is another draconian law that has left deep scars on the societal structure operating in India. The point is if laws are allowed to operate in the flawed system they do not serve the purpose for which they have been created. They become medium to harass and frustrate the right people. The better way to improve the society is not only have good laws but also have a system that makes implementation of the laws in proper way.
Coming to the latest amendment made in Marriage Act, it’s good that government is conscious that divorce petitions if get trapped in the battle of egos hurt the interest of both the parties interested in quick separation. What it fails to recognize that granting only one side to oppose the petition, the wife, would only make the life of husband miserable, who is already reeling under many other flawed laws. It’s highly shocking that despite noticing trend in previous laws – the gross misuse of provisions providing upper hand to women- the government grants women the power to oppose such petitions in the name that ” dissolution of the marriage will result in grave financial hardship”. However, it conveniently forgets that dissolution is equally painful and shocking, emotionally as well as financially, for men community? Why have been they denied the chance to oppose the petition on the same ground ?
It’s not hard to ascertain that government is not ready to accept the new changes that have hit the Indian society. For instance, it is not ready to believe that women are highly aggressive and violent in our times, and, therefore, make necessary changes in Domestic Violence Act. Psychiatrist Dr Harish Shetty in one of the news items published recently says ” Domestic violence by women is grossly underreported as the law is heavily weighed against men.” It would be interesting to see when is Law Commission going to wake up and take suo moto cognizance of new behavioral patterns in women and make necessary changes in laws related with them? The problem with Law making bodies is that they deal with issues in narrow terms and hence the laws framed often miss the mark. The other point is bit complex in nature. The Women’s Commission in tandem with Women’s Rights activists and NGOs promotes emancipation of women, which has created more room for individualistic traits in women with heightened ego.
It’s really strange that we are creating more grounds of separation and, on the other hand, we are equally conscious that divorce becomes an easy task. Instead of making quality of life better, we are manufacturing new grounds of separation. On top of it, the flawed laws that ignore the abusive nature of women, the painful ignorance about the fact that men can be silent sufferers and the deep rooted prejudices which readily presume men guilty and women a holy cow have only led to collapse of family structure in India. It’s better that we device ways and means to ensure union and smooth relationship than ensuring easy divorce. Anyway, this amendment needs to be welcomed as it , at least, provides the trapped partners a chance to start new lives again than being engaged in endless battle. One hopes that it is not misused by the shrewd wives to manipulate and dictate terms.
In one of my previous articles’ A Huge Blunder On Part Of Supreme Court To Grant Bail To Binayak Sen‘, I had expressed my deep frustration over the leniency exhibited by the Supreme court in granting bail to Binayak Sen. I had then clearly stated that this would not be seen as a good precedent in history of criminal justice system. It would not only be demoralizing for the investigative agencies involved in trapping hard-core criminals but also leave a very bad impact on lower courts, which do a tough task of arriving at proper conclusions in light of evidences and arguments.
I am not going to discuss once again whether Supreme court was right or wrong in granting the bail. I am, at present, really taken aback by the recent strange move of the Central government. It has given a place to Binayak Sen in Planning Commission’s Steering Committee on Health as a member. Binayak Sen as one of the representatives belonging to civil society will advise the panel on the Twelfth Five-Year Plan (2012-2017). Interestingly, the move to make him part of the Planning Commission came very soon. He had got bail just couple of days back.
I am really surprised that though all the major newspapers mentioned the appointment of Binayak Sen, they avoided placing the appropriateness of this decision under the lens. That in my eyes is highly baffling. The media which raises hue and cry over seemingly insignificant gestures of celebrities, belonging to various fields, remained silent over this stunning development. It never bothered to raise this question in a prominent way as to why Binayak Sen was granted a place in Planning Commission despite being convicted of committing a serious crime?
Can convicts be allowed to become part of reputed institutions even as the matter is being heard in Court? I mean the Indian media which loves to get involved in ridiculous sting operations, not leaving even chaddhi-baniyan (private life) of the celebrities, chose to treat it as insignificant development. Why did it fail to make it an issue? Doesn’t this prove one thing that media is, in actuality, hand in glove with its favourite bashing boy-the government? That it loves to criticize and praise with some vested interests in mind?
There is also a peculiar aspect involved in this shady development. This aspect is quite disturbing for all souls, who love to see two plus two as four quite often in life. Now just have a look at this pretty intriguing connection. The way Binayak Sen was granted bail by the Supreme court was not praised in many legal circles. However, the protests remained within limits of decency as the decision maker was Supreme court! Anyway, many dared to believe that there was more than meets the eye! For instance, the role of power centres in getting a desired judgment became a subject matter in private conversations. The government’s move to have him in the Planning Commission gives strength to such wild assumptions. After all, what was the urgency to have him as a member within weeks of getting bail? It’s really appears so strange that a person convicted under such serious charges is fit enough to be part of such a reputed government body and that too when matter the matter is sub judice.
Are the laws interpreted as per stature of person? The influential people manage to find thousand ways to have a bail in serious charges but an ordinary citizen spends many days in jail as under-trial even in a case, wherein it’s certain that person involved had no connection with the crime at all. I wish to know what message are we conveying to people of this nation via appointment of such dubious people in prominent institutions? Are we aware of the repercussions of such disastrous gestures?
Should the people remain silent merely because important bodies are involved in making of such decisions? The answer is emphatic no. It’s time that all thinking souls become vocal about such shady activities taking place with help of hi profile people and big institutions. Let’s not remain silent. Let’s learn to act as a watch-dog, which has the capacity not only to bark loudly but bite as well.
The Congress led governments have always tried to weaken the Judicial system. It’s no secret that most of our Constitutional bodies were reduced to theater of absurdities whenever Congress governments came at the helm of power. The various Congress headed governments indulged in systematic weakening of the Supreme court on stupid pretexts such as upholding the rights of minorities. Look at our present PM, who misses no opportunity to glorify his “helplessness” by organizing hi-profile conferences at regular intervals. He seems to cherish the illusion that serious issues can be solved by being tight-lipped. Mr. PM, silence is not always golden! More often than not silence is indicative of our own involvement in crime. Do not harbour the illusion that your regular flirtation with polished behaviour, which defines a gentleman, shall absolve you of the wrongdoings. It’s not at all outrageous to suggest that in previous years, the Congress governments have encouraged and abetted policies detrimental to Constitutional fabric.
If we have a look at bygone months, it would be very clear that Congress-led UPA government at Centre sidelined Constitutional provisions to keep its petty interests alive. Hasan Ali involved in money laundering case was allowed to roam free as if he had done nothing. The Central government remained lenient towards him, making Supreme court pass strict remarks. “What the hell is going on in this country? There are instances when minor offenders are shot down for violating Section 144 CrPC, but you don’t take any action against these people. We are very sorry. All these people are now free. What is in the way of taking action against Hasan Ali? How many years will investigations continue against Ali?” .
In another sensational case of corruption, the stand of Congress government had been laughable. I am talking about 2G spectrum case. The government machinery became hyperactive to shield the high profile people involved in the case, to an extent of misleading the Supreme Court. It also raised doubts over the legitimacy of the findings of CAG report, which in explicit terms talked about the mind boggling spectrum loot of 2008. The report was unambiguous in revealing the modus operandi, mentioning that “the entire process of allocation of UAS licenses lacked transparency and was undertaken in an arbitrary, unfair and inequitable manner, which gave unfair advantage to certain companies over others.”
In fact, one minister minced no words when he stated that “PAC draft report will be thrown in the dustbin, to which the chairman regretted and questioned if Parliament’s proposals and then Supreme court orders would be given the same treatment”. Well, I must say that undermining the importance of Constitutional bodies had always topped the priority list of Congress governments. It’s because SC has always shown courage in dealing with double faced minsters of Congress including the Prime Minister. “Can the sanctioning authority (Prime Minister in this case) sit on the complaint?” a Bench of Justices G S Singhvi and A K Ganguly asked while wishing to know the cause of delay in prosecuting Raja.
The Congress governments have also reduced to ashes the dignity associated with the State Governor. The latest in the list is controversial role played by H R Bhardwaj, confirming the doubts that Governors are no more than “old courtiers” of Congress. It also confirms that Raj Bhawan in the regime of Congress have always been “hot-bed of political conspiracies”. Just few years back, the role of Governors in Jharkhand and Goa had given a huge jolt to the reputation enjoyed by this Constitutional office. P.P Rao, a senior advocate, Supreme court of India, in editorial column of The Tribune rightly stated that ‘ the behaviour of some of the Governors raises a doubt whether they act at the behest of or to please the Central Government. In Hargovind Pant vs Dr Raghukul Tilak, the Supreme Court clarified that the Governor is not an employee or servant of the Central Government even though he is appointed by the President and holds office during his pleasure. The court sounded a note of caution “that Caesar’s wife must be above suspicion, that purity of public offices of high status is a constitutional value in itself, that nothing should be done which may create an impression that a holder of a public office can look forward to a higher appointment after retirement if he pleases the government of the day and that no appointment should be made which may lend support to the criticism of favouritism or patronage and consequential weakening of credibility.” Governors should not only act in a non-partisan manner, but also appear to act without fear or favour, affection or ill-will.’
Coming to other aspect, the Congress governments have always brutally murdered the feelings of Hindus whenever it got an opportunity to do so by misusing the concept of secularism. For instance, in Ram Setu case, it fooled the Supreme court by filing dubious affidavits one after another, in which it changed its stand many times. It declared that Rama Setu is not an “essential” and “integral” part of Hindu religion even as the said fact was admitted and accepted by the respondents (Centre and its concerned department) before the Madras High Court. One can easily see that Congress have always had guts to take contradictory stands before the Constitutional bodies. Now let’s delve deep into the past to know that Congress really never wished to make the Constitutional bodies attain perfect reputation. It always played with the impartiality associated with these institutions.
The Congress Party assaulted the Constitutional body in form of imposition of emergency in 1975 to prevent the execution of Allahabad High court’s order, which not only declared Indira Gandhi’s election null and void but also stopped her from contesting any election for an additional six years. The striking feature of the emergency was the suspension of Fundamental rights of an individual, which was against the principles laid down in Kesavananda Bharati judgment of the Supreme Court of 1973. The Judgment has clearly stated that “fundamental rights conferred by Part III of the Constitution of India cannot be abrogated but there can be only a reasonable abridgment of those rights to keep intact public interest”. However, the Congress government believed that no fundamental rights existed during emergency!
In fact, to lessen the impact of Kesavananda Bharati judgment the 42nd amendment was brought in existence, which limited the power of Apex Court and High Courts to examine the constitutional validity of law. The landmark Kesavananda Bharati judgment had given Court the power to review and quash any amendment to the Constitution of India, which altered the constitution’s ‘basic structure’. In fact, Indira government virtually punishing the judges involved in Kesavananda Bharati judgment, appointed A.N. Roy as Chief Justice of India bypassing senior judges Shelat, Grover and Hegde. This move was termed as ” the blackest day in the history of democracy” by Advocate C. K. Daphtary. However, 43rd and 44th Amendments made by the Janta Party Government restored pre-1976 position in a minor way.
The Shah Bano case is another prominent example to show how Congress is not ashamed at all to diminish the aura of Constitutional institutions. The Parliament came to pass The Muslim Women (Protection of Rights on Divorce) Act 1986 that nullified the Supreme Court’s judgment in the Shah Bano case, which stated that Shah Bano cannot be denied maintenance money in accordance with the provisions laid down in Section 125 of Code of Criminal Procedure. Anyway, let me also bring in perspective conflicts, which often take place between Parliament and Supreme Court during rule of Congress. In Golaknath v State of Punjab and Keshavananda Bharati v the State of Kerala case ,the Supreme Court made it clear that “court reserved for itself the discretion to reject any constitutional amendments passed by Parliament by declaring that the amendments cannot change the constitution’s ‘ basic structure’“. The Congress governments have always tried to make Parliament gain an upper hand but the reality is that as per constitutional experts Courts remain the “final arbiters of the validity and applicability of law”.
In 2007, the Supreme court in I.R. Coelho (Dead) By Lrs v State of Tamil Nadu and Others made it crystal clear via unanimous judgment that “all Laws passed, even if they are kept in IX Schedule of the Constitution has to pass through the Basic Structure Doctrine”. The Supreme Court being in tune with all the provisions of the Constitution besides taking into account Basic Structure doctrine as propounded in Keshavananda Bharati case holds the right to scrutinize the Ninth Schedule Laws. This judgment is hailed as “master stroke of the judiciary”. The Supreme court was virtually compelled to introduce the concept of Basic Structure Doctrine because of the misdeeds of Congress regimes, which used Ninth schedule as a mean to ensure solid vote bank. It had become a perfect medium to defend the appeasement based laws. Against this backdrop, it had became need of the hour to make Ninth schedule above vote bank politics.
The governments acted smart by inserting the dubious laws in Ninth schedule and thus making judicial review a tricky affair. It would be interesting to know that Ninth Schedule has thirteen items related with land reform laws, which cannot be challenged on basis of contravention of Article 13 of the Constitution. Article 13 broadly ensures protection of Fundamental Rights as depicted in Part III of Indian constitution. In nutshell, the 2007 judgment highlights the Chief Justice Patanjali Sastri’s view expressed in State of Madras v. V.G. Row [1952 SCR 597]: “This is especially true as regards the “fundamental rights” as to which the Supreme Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute.” In other words, the power inherent in Article 32 is supreme as the said article is the life-force of the Constitution, making it evident that “judicial review is a constituent power that cannot be abrogated by judicial process of interpretation“.
One needs to appreciate Supreme court that it always thwarted the attempts of shrewd Congress rulers, interested in lowering the dignity associated with Constitutional bodies. And no wonder, the Congress governments are always at loggerheads with Constitutional bodies on one pretext or another. It’s better that we provide no room to such governments, which love to weaken the Constitutional institutions. That would shape the destiny of this wonderful nation in a desired way.
The bail granted to Binayak Sen would have a detrimental effect on the criminal justice system. The verdict is being perceived as a testimony to the perfect Indian legal system. I am afraid that it’s far away from the truth. This man should have been denied bail in light of facts that are associated with this case. The Supreme court has been astonishingly liberal in dealing with the facts associated with this evil doctor. Surprisingly, it has nothing else to state other than treating the Sen as mere ” sympathiser(of Naxalites)” and, therefore,“ no case of sedition is made out against him and the evidence is baseless”. The bench comprising of Justice HS Bedi and CK Prasad stated: “ We are a democratic country. He may be a sympathiser (of Naxalites) but it did not make him guilty of sedition. He is a sympathiser. Nothing beyond that.”
Ignoring the fact that this man has close contacts with likes of Narayan Sanyal, the Supreme court bench came up with the flawed opinion that the possibility to pass information to jailed Naxal leaders Narayan Sanyal and Piyush Guha is absolutely impossible. “Visitors are screened and searched by the jail staff. Jailors are there to oversee all these things. So, the question of passing letters or documents doesn’t arise.” Anybody who knows the Indian jails know quite well that all big criminals are operating from inside the jails. The contract to kill (Supari) is being ordered from inside the jails via the mobile. A surprise raid in any Indian jail would always lead to discovery of drugs, weapons, mobile phones and other prohibited things.
If one goes by the logic of Supreme court, these things should never be found in possession of the prisoners. However, the reality is otherwise. The bench decided to ignore this obvious reality is really bothering to a thinking mind like me. Is it not aware of the fact that high profile prisoners are living a luxurious life inside the jails ? How is that possible unless they are being supplied with prohibited articles in a secret way? It’s indeed baffling that Supreme court bench weakened and twisted the grounds projecting Sen as guilty.
Interestingly, it finds no meaning when one meets hardcore criminals. I never imagined that conspirators and co-accused are not equally guilty as accused. The verdict to grant bail to Binayak Sen demolishes the elements inherent in law related to conspiracy. One of the principles involved in making of a conspiracy is quite clear that “it is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage.” It’s really strange that when one meets with hardcore criminals so many times in jail it amounts only to being a “sympathiser “. Now who is Narayan Sanyal ? He was the active member of ” Naxalite movement led by Charu Mazumdar in late 1960s and was a member of Kolkata’s Dalhousie local committee. He was a founder member and politburo member of the CPI-ML (People’s War).”
What’s the need for Police to arrest the aides/accomplices of main accused/criminal? They should be ignored as mere symapthisers. The police should not waist time in nabbing them. However, the reality is that police may or may not pick the main accused but it readily arrests many on grounds that they provided helping hand in direct or indirect way to the accused. If that’s the case, the person like Binayak Sen found guilty of helping the Naxalites should not have been given any room to prove otherwise. Look at this two evidences. There are letters besides electronic documents that show correspondences with the banned organizations. He has the guts to meet with hardcore Naxalite leader Naryan Sanyal more than 33 times in jail. He also possesses banned literature but Court downplays its importance with its remark that ” If Gandhi’s books were found in my house, would that make me a Gandhian?” This simplistic take on the whole issue is quite amazing.
One would love to know in what capacity Sen was in touch with hardcore Naxalite leaders? Was he Sanyal’s advocate that he met so many times with him? The fact that he not only owned Naxalite literature but also in touch with dangerous Naxalite leaders are enough to hail him as guilty. These are sufficient material evidence and therefore the stand of Supreme court that ” state could not slap sedition charges on Sen unless there was material to show that he was actively preaching or propagating Maoist ideals ” is not appropriate. What else one should produce in name of material evidence ? Even circumstantial evidences are enough to prove anybody guilty and here we have strong evidences but still there is want of material evidence? Isn’t it sound strange when Supreme court demands more material evidence?
The High court while dismissing the bail plea of Binayak Sen had absolutely agreed with the arguments of prosecution and prima facie found Binayak Sen guilty. The prosecution had convinced the bench that Binayak had strong links with the Maoists. The prosecution had argued that “the trial court has already convicted Sen on charges of sedition. The documents seized and the circumstances in totality qualify for the requirement for conviction on the charges of sedition.” His organisation “Rupantar” had members having links with the Maoists making it clear that “it’s not just a simple case of a doctor engaged in social service.”
The way Supreme court has gone out of the way to grant bail is pretty disturbing as we find that this very Apex court has earlier rejected the bail plea of Binayak Sen in December 2007. The Bench comprising of Justices Ashok Bhan and D K Jain had rejected the contention of Sen’s defence counsel that there was no evidence to suggest that he was involved in naxal activities.The bench had then dismissed the petition stating that “sorry, we do not agree with you.” It’s really surprising that now Supreme court has taken such a liberal stand against a person who is guilty of acting as a courier between dangerous minds like Sanyal. It preferred not to give strong reasons why it felt that way other than posing awkward questions to prosecution. The verdict dangerously paves the way for treating a co-accused as simply “sympathisers”.
One needs to anticipate this present judgment very consciously. This is very discouraging for all the people who are involved in war against the anti-India elements. This is not a way to fight war with the wrong elements. One need not to provide oxygen to wrong forces in anyway. Let’s have the guts to call a spade a spade. Let’s expose and punish the people disguised as gentlemen but in reality are the agents of Satan(devil). The decision of Chhattisgarh government to pursue this case seriously is, indeed, a heartening news.