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“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. 

 

 

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NewsWire. 

Pathik sends us this Post;

The Union Law and Justice Minister H R Bhardwaj announced recently that 3,000 gram nyayalayas (village courts) would start functioning within a month (by March) across the country. This is an important step in decentralizing the justice delivery system and to promote expeditious adjudication and resolution of disputes. This step towards decentralization at the lower judiciary level, where over 2.5 crore cases are pending disposal, will attract more attention especially in light of the law commission’s recent suggestion of setting up circuit courts or benches of the Supreme Court in different parts of the country.

The proposal to set up 3000 gram nyayalayas was announced by Mr. Bhardwaj at a conference organised by the Associated Chambers of Commerce and Industry of India (ASSOCHAM) on the “Need for Strengthening Alternate dispute Resolution in India.” A budget of 600 crores, which the Finance Ministry is willing to release, has been sanctioned for this project. Each Court would end up with a corpus of around 20 lakh rupees.

This announcement comes subsequent to the passing of the Gram Nyayalayas Bill, 2008 by the Parliament on December 21, 2008. The bill had earlier been passed by the Rajya Sabha on December 17, 2008. The essential feature of the bill is that it provides for holding of mobile courts and conducting proceedings by the ‘Nyaya Adhikari’ (Judicial Magistrates First Class) by periodically visiting the villages.

The main objectives of the Bill can be summarized as follows:-

a)      To provide speedy, affordable and substantive justice to the poor at grass root level in the rural areas at their doorstep.

b)      Gram Nyayalaya will act as Subordinate Court at Intermediate Panchayat level.

c)      The Gram Nyayalayas so established will be in addition to the civil and criminal courts established under any other law  for the time being in force.

d)      The Central Government will bear all the non-recurring expenditure for setting up of the Gram Nyayalayas and will bear half of the recurring expenditure for three years after setting up of the Gram Nyayalayas.

e)      The Gram Nyayalayas will be empowered to deal with both criminal cases as well as civil cases as per the procedure laid down in the Gram Nyayalayas Bill

This would ensure that inexpensive and efficacious justice is delivered to the remotest areas possible

 

 

 

Continuing from my previous post, it is high time that the case of Kartar Singh v. State of Punjab, (1994) 3 SCC 569, be revisited by the Supreme Court. This I say, in light of the recent amendments to the Unlawful Activities and Prevention Act (UAPA). The Constitutionality of the most anti- terrorist laws is settled by the ratio in Kartar Singh’s case and when a change is made to these laws that wasn’t brought up in that case, the new principle of law cannot bask under its legality. In this post, I propose to examine the Constitutionality of the provisions of bail with regard to what was contented in Kartar Singh v. Union of India regarding bail.

In Kartar Singh’s case, the challenge to the provisions of bail was brought about by two main provisions; first the denial of anticipatory bail under S 438 of the CrPC by the addition of s. 20(7) of the TADA, 1985. The second was the induction of s. 20(8) that severely restricted the conditions of bail and stated;

“(8) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless-

(a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”

This is totally different from completely denying bail to a foreigner till the time of his trial under the new amendment to the UAPA. The Amendment states that no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing.

While numerous judgments were cited to explain the provision of anticipatory bail and the right to bail in India. As regards the non-applicability of s 438 CrPC, the Court declared it constitutional with its reasoning based on the lines below;

“para 328 – where a person accused of a non-bailable offence is likely to abscond or otherwise misuse his liberty while on bail, will have no justification to claim the benefit for anticipatory bail. Can it be said with certainty that terrorists and disruptionists who create terrorism and disruption and inject sense of insecurity, are not likely to abscond or misuse their liberty if released on anticipatory bail?”

Coming to the more important aspect of severely restricting the conditions of bail, it was contented by the petitioners that that this subsection infringed the underlying principle of Articles 21 and 14 of the Constitution as the is made it impossible for even an innocent person to get bail when he is falsely charged with an offence under the TADA Act. Stating that it is a a salutary principle of criminal justice is that every person is presumed to be innocent till he is proved to be guilty, this provision under challenge goes diametrically contrary to that principle. Reliance was placed by the petitioners (para 339) on Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240, wherein Krishna Iyer, J. has commenced his judgment with a prefatory note reading,

“‘Bail or jail?’ at the pretrial or post-conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion” and observed,

“The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19”

The Crux of the argument by Ram Jethmalani and VM Tarkunde in this case was the there is a constitutionally guaranteed right to bail that has been held to be entrenched in Article 21 and restricting it to conditions other than that mentioned in s. 437 of the CrPC are violative of the right. The State placed reliance on the fact that there was sufficient ratio to state that the right to bail has at its core the idea of protection of the public and justice concerns. Added to this he brought in the idea of community justice which the Court relying on held’

“para 351 – No doubt, liberty of a citizen must be zealously safeguarded by the courts; nonetheless the courts while dispensing justice in cases like the one under the TADA Act, should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear and above all the collective interest of the community and the safety of the nation so that the public may not loose faith in the system of judicial administration and indulge in private retribution.”

The Court in this case finally held that the right to bail was not totally denied to the accused but that only its conditions were limited by a special law. Based on the fact that it wasn’t totally denied, the above provisions were held constitutional in the case. The same reasoning was used by the Court while deciding the Constitutionality of the POTA in PUCL v. Union of India. The Court also held that irrespective of such limitations, the accused may approach the High Court under Article 226 to consider his application of bail. (Usmanbhai Dawoodbhai Memon v. State of Gujarat, (1988) 2 SCC 271)

If this were the ultimate reasoning of the Court, then today when the Amendment completely denies bail to any foreigner, surely this provision must be in violation of the Constitution. Even if it is not in violation of the Constitution, inter alia, its constitutionality cannot rest on the ratio in Karat Singh’s case because that decision did not contemplate this factual situation. Worse, that if this not be addressed now, then the silence would be taken to mean that it is constitutional which may not be the case. It is sad that the constitutionality of a statute is decided in the garb of terrorism and not the rights enshrined in the Constitution. Time and again in Kartar Singh’s case reference is made as to the supremacy of community interest over the rights of a ‘terrorist’ and that the criterion of legality rests on it. This should not be the way the law works.

The Supreme Court under Chief Justice Balakrishnan and Justice Sadashivam, today heard the petitioners’ (Nandini Sundar and ors, Kartam Joga and ors) response to the NHRC report on Salwa Judum. The counsel for the petitioners, Mr. Ashok Desai, pointed out that the report contained a number of findings which supported the petitioners’ grievances, such as the burning of villages by Salwa Judum, complicity of State Police and administration in arson and looting of property; Government and political sponsorship of Salwa Judum rallies;forcing of villagers into camps; inhibition of freedom of movement, extra judicial killings by SPOs; suspect encounters and non-recording of deaths, recruitment of minors as SPOs, and arming of civilians as a vigilante force.  The NHRC report notes with respect to sangham members who are unarmed villagers,

“these villagers were specifically targeted when Salwa Judum was on the rise. The enquiry team has come across instances where some of these villagers were even killed (no criminal cases were, however, either reported or registered). Though the State has taken action against SPOs in some cases for violations like murder and attempt to murder, but these cases do not pertain to the violence let loose on innocent villagers during operations against Naxalites.”
(5.04).

The Chhattisgarh Government, which has continued to publicly justify Salwa Judum, admitted in its affidavit and annexures to the Supreme Court that villages had been burnt by Salwa Judum and security forces, and there had been serious offences committed by Salwa Judum, SPOs and security forces in which no action had been taken and no FIRs had been registered.

On 17th October, in response to the Supreme Court’s order that the CG government take some immediate steps on the NHRC report, the Home Secretary of Chhattisgarh issued orders to the Collectors of Bijapur and Dantewada that “necessary action be taken for rehabilitation of uninhabited villages; necessary relief money be given in the cases of properties damaged by Salwa Judum activists/security forces, besides naxalite violence, after village wise analysis, security forces be not allowed to stay in school/ashram buildings; facilities of ration distribution, PDS, health, toilet etc. in the relief camps be ensured.” In addition, the DGP has issued orders to all SPs to register FIRs on receipt of information, and to prepare a village wise list of missing persons.

When counsel for the petitioners pointed out that despite admission of violations, till date no compensation had been publicly announced, leave alone carried out, CG counsel made the excuse that they could not do anything because of the election code of conduct (though this did not stop them from distributing free rice and blankets).

Chhattisgarh government has been asked to file an Action Taken Report to the Supreme Court on the implementation of compensation and rehabilitation measures on a village wise plan and register FIRs against all cognizable offences, by January 28. This will involve bringing back refugees from Andhra Pradesh and compensating them.

The Supreme Court has given time for a detailed hearing in the first week of February, to go into all matters of killing, rape etc. The Judges recognized that the cases mentioned in the NHRC report are only a fraction of the total charges, and will go into the prosecution and other issues in greater depth at that time.

More on;

Campaign for Peace and Justice in Chhattisgarh
Email: cpjcindia@gmail. com;
Website:www.cpjc.wordpress. com
Contact for further information: Nandini Sundar 9868076576, MJ Vijayan
9868165471 (Delhi),
Manish Kunjam 09425260360 (Dantewada),
Himanshu Kumar 09425260031 (Dantewada)

Apologies for this delayed post. However, quite fortunately, the last Part of this three-pronged series coincides with two seminal events/publications.

1. CJI K.G. Balakrishnan’s piece on “Terrorism, rule of law and human rights” in The Hindu (Opinion Page).

2. The Union Cabinet’s nod for NSA Amendments and a new Investigation Agency.

KGB’s write-up/analysis of our contemporary security predicaments has been posted in his official capacity as the Hon’ble Chief Justice of India, and is remarkable for that very reason. The highest judicial officer in this country has clearly expostulated the need to maintain our constitutional ethos in place. He elucidates upon the role played by due process and rule of law in protecting human rights, even at a time when the nation is blinded by rage against a terror attack that left India reeling.

Adherence to the constitutional principle of ‘substantive due process’ must be an essential part of our collective response to terrorism. Any dilution of the right to a fair trial for all individuals, however heinous their crimes may be, will be a moral loss against those who preach hatred and violence.

On the other hand, the Union Cabinet has given the green signal to proposed amendments in the National Security Act, 1980 and a new Anti-Terror Investigative Agency (Part II of this series had enlisted the major provisions in the prospective legislation). In a chaotic post-Mumbai period when public sentiment and ire has been directed largely against the political class, it is important that the Government does not resort to populist methods to assuage this anger. A new and shiny array of ‘tough’ anti-terror laws might seem to be the perfect panacea to our security problems, but in reality they are nothing more than knee-jerk reactions.

Tougher anti-terror laws have had a chequered history in this nation’s democratic regime. Yet, they continue to be hot favourites among people and institutions who want a change in the Government’s attitude towards terror. Indeed, I remember a discussion in one of our Criminal Law classes at Nalsar where the topic in question was the efficacy of anti-terror laws like POTA, ULFA etc. The debate invariably spun around to the “Human Rights v. National Security” perspective, with a visibly emotional law professor eventually closing the arguments thus:

Those who might find favour with the concept of due process, and justiciable rights for the terror -accused will never step down from their ideal ivory towers till they lose a little finger in a blast or attack.

Surely, she spoke for a sizeable portion of the populace, who truly believe that India’s anti-terror must be incisive and deterrent to all who wreak havoc in its villages and cities. Take Qasab’s case for instance; the Mumbai Bar Association has forbidden its members to take up his defence. Does his obvious involvement in the terrorist attacks mitigate a constitutionally guaranteed right of legal aid? Doesn’t the lawyering community rush to defend the super-rich and mighty from all sorts of civil,criminal and commercial indictment, even when evidence is blatantly against them? Why treat Qasab exceptionally then? Is it because terrorism is an evil more equal than the other evils which plague civil society? Certainly, we have to draw the line, before the rule of law goes flying out of this polity’s windows.

The POTA has an abysmal conviction rate of 2%, and has hardly produced the desired results. The new face of terrorism does not operate like other societal crimes, and ‘deterrence’ is hardly any reason to come up with multi-fanged laws. That the terrorists in the Taj and Trident-Oberoi had no intentions of negotiating with the Government, and came readily prepared to die, must teach us an invaluable lesson. If the purpose of all anti-terror laws is to preserve public order, then we must embrace a systematic procedure to collect evidence, grant fair trials and opportunities. Without these safeguards, the law will never strike at the root of terrorism, for all the wrong people would be behind bars then.

Arundhati Roy wrote a blistering piece in Outlook India last week, and she says;

It was after the 2001 Parliament attack that the first serious questions began to be raised. A campaign by a group of lawyers and activists exposed how innocent people had been framed by the police and the press, how evidence was fabricated, how witnesses lied, how due process had been criminally violated at every stage of the investigation….The Supreme Court upheld the death sentence of another of the accused, Mohammad Afzal. In its judgment, the court acknowledged that there was no proof that Mohammad Afzal belonged to any terrorist group, but went on to say, quite shockingly, “The collective conscience of the society will only be satisfied if capital punishment is awarded to the offender” Even today we don’t really know who the terrorists that attacked Indian Parliament were and who they worked for.

The rallying calls against anti-terror laws must not be mistaken to be a blind push for seemingly facile human rights, but a warning against the nightmarish future of citizens losing faith in its own legal regime.