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With close to 70 lakh crores ( 70,000,00,00,00,000 ) of unaccounted public money stashed by politicians, bureaucrats and the rich in swiss banks and the like abroad, how does one get hold of that money ? The answer probably could be the latest writ petition in the Supreme Court wherein the petitioners have asked the Court to interfere in compelling the government to take actions to get the money back to India. While it is a noble cause, I opine that the Supreme Court interfering in this may not work.
To understand, let’s take the case of Germany and LGT Bank of Liechtenstein. In January 2006, the German Government offered 5 million Euros to a bank officer of LGT bank asking him to give out confidential data of the clients and accounts of LGT bank. After a successful transaction in this regard, the German Government then went on to catch of the tax evasionists responsible and started prosecuting them. The amount of fraud is said to have exceeded 5 billion Euros now.
In its aftermath, the bank officer has been offered asylum in Germany and the German Government is now putting pressure over the European Union and the OECD to take measures into compelling these banks to be more transparent. In times of recession, this may be fruitful, but nevertheless, none of these banks can be compelled to give up the money that they own. (See timeline and EU Actions here)
Coming back to India, if we are to create a parallel to the German situation, the following issues would arise;
– Can the Indian Government pay somebody to do an illegal act in another country ?
– Going further, can the Court issue a writ of Mandamus to ask the Government to do such an illegal act?
– Even if the above can take place, there is no way of recovering the money but only to use the data to prosecute those for tax evasion. Neither the executive or the judiciary can do otherwise.
While one possible solution could be that while prosecuting these tax evasionists/ those holding up the money in these accounts, we offer them an immunity as an incentive if they get back the money; this could possibly lead to litigation and a replay of the Bearer Bonds case (RK Garg v. Union of India , 1979 SC). In the sense that, Indians charged for evasion in India would allege that this is arbitrary, unfair and against the mandate of Article 14 and is creating a difference between those stashing money abroad and evading income tax and those being prosecuting for evading income tax in India.
This is a complicated issue and I don’t think the Court’s can and should interfere. In the debates conducted, the speakers did come together on the fact that the Constitution does authorize the Court to interfere and ‘make law’ but they still agreed that it must keep out of policy matters and things it expressly cannot do and implement. It would then be interesting to see the way the Court handles this PIL.
“In a rule of law society operating under a constitutional order, either deterrent or preemptive executive action against prohibited human conduct including terrorist acts must be pursued only within the matrix of legislatively spelt out substantive and procedural rules of engagement and sanction. The executive, whether political or the professional has no legitimate authority to act in derogation, independent of or beyond the sanction of law. This is the price civil society and all institutions of government willingly pay for a constitutional way of life.”
Perhaps one of the most interesting and profound judgments off late has been that of Andhra Pradesh Civil Liberties Committee v. Govt. of AP, where the Andhra Pradesh High Court was deciding whether it is obligatory to file a First Information Report against the police officers who may have committed ‘crimes’ while taking part in an encounter. The judgment has come at a time when the country is grappling under terrorism, naxal ‘disorder’ and acts allegedly threatening the sovereignty of the state.
To elucidate the issue; when the police forces take part in an encounter that lead to the killing of persons, it was not possible to lodge or move ahead on filing an FIR by the victim. The apparent reason being because such acts were committed in exercise of the right of private defense and the executive then, in its discretion had the authority to dismiss the complaint. Furthermore, the state claimed immunity from disclosing the name of the police officers involved in the encounter operation thus making it difficult for an investigation to move ahead. These were the issues that the five judge bench of the Andhra Pradesh High Court was called upon to decide.
“In this case, the Court [was] called upon to identify the balance between the right to life of presumptive serious offenders of law and order and of the equilibrium of civil society; and the sovereign obligation of the State to maintain such law and order equilibrium, within the context of constitutional injunctions and legislative authority.”
In its ruling the Court held that it is obligatory on the police officer in charge of a police station to record an FIR under Section 154 even if it be committed against a police officer. In recording the FIR, the police officer cannot exercise any discretion in terms of the whether the offence had been committed or the complaint has any merit. This shall be the job of the judiciary and the existence of the claim of self defense is an extremely legal question that has to be determined only by a judicial process.
The judgment also delves upon certain essential principles of criminal law theory that would be useful for any law student.
In effect then, the Court negated an idea of immunity that could have been given to police officers that may have committed crimes in the guise of encounter deaths. Fake encounter killings are not inane to the Indian situation. Places like Kashmir, Gujarat, Punjab, Maharashtra and Andhra Pradesh was witnessed numerous instances where such encounters have occurred and this judgment of the Court re-iterates on the preservation of the rule of law and not giving a free hand to the police to kill.
This landmark judgment then came as a blow to the state government and the Centre who wanted some powers to check actions threatening the sovereignty of the state. When the case was appealed to the Supreme Court, the Court ordered a stay on the operation of the judgment and has scheduled a hearing soon.
Lord Cooke of Thorndon stated that his admiration for the Indian Courts (mainly the Supreme Court) in its ordinary work, particularly in the field of human rights, is no whit abated. He cited the judgment of Anand J. in DK Basu v. State of West Bengal to justify his statement. It takes a lot of courage for a Court of law to rule against a state policy and stand up for the protection of human rights. Though at times I have expressed by disgust for the way our judicial system works, these are solitary times when I wish I could retract my statement. Landmark decisions indeed !
Readers may also read Law and Other Things on the case and developments therein.
Keeping my feelings against the Death penalty aside, the verdict in the Nithari killings comes as a shock to me. It is not that I thought either of them to be innocent, but the idea of giving the harshest punishment meted out by law to them is what I’d like to question.
Perhaps the best portrayal of the death penalty and why it must be abolished is Albert Camus ‘s essay titled “Reflections on the Guillotine” in Resistance Rebellion and Death. I myself was spellbound when I read that essay and I’d recommend it to all my readers.
After 1981 and the cases of Bachan Singh v. State of Punjab and Machi Singh v. State, the death penalty as a form of punishment has now been held to be the exception rather than the rule. To mete out a sentence of death, there must be reasons given by the judge and the circumstances of the case must be rarest of the rare.
The idea of rarest of the rare is also to remove any possibility of the innocence of the accused and that the circumstances of the death were so grave in nature that is called for a sentence of death. It is the former aspect that I’d like to look into more. The gravity of the offence is beyond dispute.
Glanville Williams in The Proof of Guilt, a study of the English Criminal trial wrote that the idea of beyond reasonable doubt conveys the message that any single or meek possibility of the accused not committing the crime must be considered, if not for the guilt then atleast when speaking for sentence. Such factors mitigate the sentence that can be meted out to the accused and the foundations of the English system (now India) rest on such presumptions.
The point that I’d like to put forth is that if the Central Bureau of Investigation (CBI) gave a clean chit to Mohinder Singh Pandher, then this should have acted as a mitigating factor as to his sentence and he should not have been given the death penalty. What does it say of our criminal system when the judge disregards the report of the investigating authority and pronounces guilt on his own inhibitions of the facts and circumstances ?
Could the judge have been a victim of the pressure surmounted by the media in this case ? Rationality and reason says that Mr Pandher should have been given a sentence of life considering this mitigating factor and not a sentence of death (the guilty being left out of question).
We saw the treatment of such cases in Manu Sharma’s trial, Nitish Katara’s case and now this may possibly be added to the list.
About a month ago, the Centre decided to increase the salaries of High Court and Supreme Court judges. A High Court judge now gets 80,000 Rs, the Chief Justice of the High Court 90,000 Rs. and Supreme Court Judges getting 90, 000 Rs and teh CJI a salary of Rs 1 Lakh.
Amidst this the All India Judges Association has now filerda petition in the Supreme Court asking that their salaries be revised too. This is based on certain committee reports.
I would be a little harsh in my words now but the judiciary does not have any right in the policy decisions of the Government and cannot interefer and ask it to do something in that area. We have ratios to the point stating that the judiciary has no control over the purse of the Government and cannot make any decision to that effect ( Asif v. State of J & K ).
It is then surprising that the Supreme Court allowed this petition to stand and asked the Centre to submit a detailed response as to why it hasnt affected the same for other judges.
At a time when questions of moral turpitude are being raised all over the country due to the assault on women at pubs in Mangalore, there comes a judgment, that stands out. While defining the contours of law and morality, the Delhi High Court has ruled that there is nothing wrong with a couple kissing in a park and that doing so would not be violative of Section 294 of the Indian Penal Code.
Noting that a public display of affection in the form of kissing does not in any way constitute obscenity and violative of public order, Justice Muralidhar dismissed the charges against the couple as laid down by the police.
Now the question of morality and what kind of perverse acts should be permitted by law has always been a debate. Those in favour of the public display of affection (like myself) turn to Dworkin’s “Do we have a Right to Pornography?” written in his book A Matter of Principle. In the article Dworkin makes a case for the open publishing and distribution of pornographic magazines and states that such an action is based on the society’s conception of individual liberty and privacy. Arguing that there is no harm to the individual himself/ herself with the expression of feelings in such a manner, Dworkin adds that there is no right of the State to tell the individual what to do, especially if it blatantly violates his liberty.
He however adds, that this isn’t the main concern. He states that it is not the expression of such feelings that matter, but the disgust caused to the public at large that is the main cause for concern in regulating such expression. He adds;
“Of course individual liberty would be very restricted if no one was allowed to do anything that any single other person found offensive. … The question is whether the harm to those who find offense would outweigh the desire for all those who wish to do what would offend them ?”
Dworkin says that the answer would lie in as to how such acts are perceived in the society at large and the level of maturity that is attributed to it. Regulation must not be such as to hamper the ideal of individual liberty that we hold so dear to ourselves.
Muthalik’s actions in Mangalore, Shilpa Shetty kissing Richard Gere and many other must be looked in the context of individual liberty and not what a third person would perceive of them. There should be nothing wrong with girls drinking in a bar and we must attribute to them that level of freedom. Not doing so, would make citizens lose their respects for Government (Dworkin, ‘Taking Rights Seriously’).
Justice Muralidhar’s decision I would say throws light on this issue and could be compared to Dworkin’s argument.
P.S. : I had the good fortune of clerking with Justice Muralidhar in 2007. Ranks amongst my best internship experiences. The judgment can be viewed at the Delhi High Court website.
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