S.O.S e – Voice For Justice – e-news weekly
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Editor: Nagaraja.M.R.. Vol.12..Issue.21….….28/05/2016
PIL – Justice Denied
IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION
CRIMINAL WRIT PETITION NO. OF 2015
IN THE MATTER OF
NAGARAJA . M.R
editor SOS e Clarion of Dalit & SOS e Voice for Justice
# LIG 2 , No 761 ,, HUDCO First Stage , Laxmikantanagar ,
Hebbal , Mysore – 570017 , Karnataka State
Honourable Chief Justice of India & Others
PETITION UNDER ARTICLE 12 to ARTICLE 35 & ARTICLE 51A OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS UNDER ARTICLE 32 & ARTICLE 226 OF THE CONSTITUTION OF INDIA.
Hon’ble The Chief Justice of India and His Lordship’s Companion
Justices of the Supreme Court of India.
The Humble petition of the Petitioner above named.
MOST RESPECTFULLY SHOWETH :
1. Facts of the case:
a. Every human being , every Indian citizen are equal and guaranteed equitable justice as their human right and Constitutional right.
b. In india mafia of powers that be and government ensure that cases drag on for years , so that poor litigant either dies before judgement day or opts out in the middle. Due to this delaying tactics , many poor people rather suffer injustice instead of seeking justice in courts. Mafia indirectly forces them to keep away from litigation.
c. Due to occupation induced health problems my health is deteriorating day by day , some of the PILs concerning national security , public welfare I have filed are two decades old , still no justice in sight. Judges not even admitted the cases.
d. Actual working hours , working days for judges are less in india. Too many case adjournments , less number of judges , too many holidays for judges like summer vacation , winter vacation , working hours less than 8 hours per day , etc.
e. Judges work less but enjoy 5 star pay & perks at public expense.
f. Due to denial of justice common people suffer injustice for more time or till their death. Say some falsely implicated persons suffer in jail for years till their acquittal by courts , some petty criminals whose crime attracts one year imprisonment suffers in jail for ten years. Because they are not well connected , cann’t afford hi fi advocates , bail fees.
g. Due to lethargic judiciary , some land acquisition cases drag on for years land looser suffers also the project cost escalates by hundreds thousands of crores of rupees.
h. The lethargic Judiciary in India itself is the biggest violator of common man’s human rights , fundamental rights. It is the culprit responsible for loss of thousands of crores of rupees to public exchequer due to project cost escalations.
i. when a common man’s human rights , human rights is violated in the form of delaying tactics by court of law , judiciary , the presiding judge becomes a criminal and liable to pay damages to the aggrieved.
j. The central government and state government yearly spend thousands of crores of rupees unnecessarily like purchasing new cars for ministers , renovation , interior decorations of minister’s bungalows , foreign jaunts , etc. These are all not priority one spending. Out of these spending how many more judges could be appointed , paid salaries.
k. when compared to project cost escalations of thousands of crores of rupees caused due to case delays , is it not wise on the part of government to appoint requisite number of judges with additional budget burden of few crores of rupees.
l. Both central and state governments are the biggest litigants in the country.
m. Government is manipulating judicial process by denying finance to appoint more judges , to create more court infrastructures.
n. We common people are imposed with time limits to mandatorily comply with, in our interactions with other public , with government authorities , with courts itself. For our failures we common people are penalized.
0. Paradoxically , there is no mandatory time limits for judges , public servants to finish specific works concerning public. In most of the cases they adopt delaying tactics , deny justice still they are not penalized and don’t pay any compensation to the aggrieved public.
p. Due to delaying tactics of judges , many anti national crimes , terror attacks took place and still continuing which could have been well averted in time if judges took timely action. For helping mafia by the way of delayed justice , mafia rewards some of those judges with post retirement postings , promotions , site allotments , etc.
q. The Judiciary has the right , authority , power to order government to allocate finance for appointing judges , setting up court infrastructure. If the government gives ruse of no money in it’s account , courts can definitely monitor spending of government , cut down on waste , non-priority spending of government , divert such money for appointment of judges , court infrastructure development. No need for CJI to weep before prime minister. Judges themselves never consider the sufferings of weeping litigants. It shows the weakness of CJI and a shame to our nation.
2. Question(s) of Law:
Is it right for judges to deny justice . is it right on the part of judges to delay judges under various ruses to common man , violate their human rights , fundamental rights.
Requests for equitable justice , Prosecution of judges responsible for case delays.
Please read details at :
Honourable Chief Justice of India TAKE ACTION
Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the concerned public servants in the following cases to perform their duties & to answer the questions.
The Petitioner has sent many letters / appeals / petitions to supreme court of india & other courts through e-mail , DARPG website & through regular mail requesting them to consider those as PILs. But none ofthem were admitted , even acknowledgement for receipts were not given. See How duty conscious ,our judges are & see how our judges are sensitive towards life , liberty of citizens , common men & see how careless our judges are towards anti national crimes , crimes worth crores of rupees. That the present petitioner has not filed any other petition (which are admitted by courts) in any High Court or the Supreme Court of India on the subject matter of the present petition.
In the above premises, it is prayed that this Hon’ble Court may be pleased:
a . Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the concerned public servants , Tax Authorities , Law Enforcement Agencies , RBI authorities in the following cases to perform their duties & to answer the below RTI questions.
b . to pass such other orders and further orders as may be deemed necessary on the facts and in the circumstances of the case.
c. To legally prosecute responsible , concerned judges , police & public servants.
d. To cancel winter , summer vacation holidays for judges.
e. To bring down the holidays of courts per year to twelve on the lines of industrial establishments.
f. To make it mandatory for judges to conduct court hearings for 8 hours per day.
g. To bring down unnecessary court adjournments.
h. to reserve precious court timings only for arguments , cross examination of litigants , witnesses.
i. to use information technology , internet for issue of notices , summons and litigants submitting documents , applications instead of wasting court time.
j. to introduce working of courts on shift basis in the same infrastructure.
k. to appoint retired judges immediately to bring down gaps in judges requirement.
l. to order the biggest litigant government of india and all state governments to frame laws strictly in accordance with constitution.
m. to order governments to give proper training for public servants , IAS officers , KAS officers , others about law of the land.
o. to make specific public servants personally responsible for wrong applications of law while discharging their duties and to make them pay compensation from their personal pockets.
p. to order Chief Justice of India to pay compensation of Rupees TWO CRORES to Nagaraja Mysuru Raghupathi editor SOS e Clarion of Dalit & SOS e Voice for Justice , towards the damages he has suffered due to delayed justice.
FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL BE DUTY BOUND, EVER PRAY.
Dated : 21st May 2016 ………………….FILED BY: NAGARAJA.M.R.
Place : Mysuru , India……………………. PETITIONER-IN-PERSON
CJI Thakur breaks down at CMs and CJs Conference; PM proposes a Closed Door Session
“Judges’ strength has been put in cold storage for past three decades. You cannot blame the judiciary alone for the high number of pending cases. In some petitions, we have to dispose ourselves in extremely stressful conditions. I request your Government to address the issue”, said an emotional Chief Justice of India today at CJ-CM Conference in presence of PM Narendra Modi. Blaming Govt inaction for judges vacancies, the Chief Justice Thakur asked “Appointments of 169 High Court judges pending with Government. Jails are overflowing. 2/3rd jail inmates are under trials, how long will u take to clear files?”
Justice Thakur also pointed out that in 1987 the Law Commission of India had said that there should be 50 judges per 10 lakh population and the successive governments have done nothing in this regard. No point of Make in India or FDI if judiciary can’t function without efficacy, it is important to have more judges “, CJI remarked. “Remember it is a recommendation of 1987.Several promises have been made that judges population ratio will be improved..several assurances, debates in parliament. People are languishing injails. But nothing really appear to be coming. It is not enough to criticize. You cannot shift the entire blame on the judiciary”, the CJI said looking at the Prime Minister On why he turned emotional and broke down, the CJI said at the fag end of the speech: “If nothing else has worked in terms of the improving the condition of the judiciary, an emotion appeal may perhaps I thought”.
50 % REJECTIONS
Speaking at the Conference of Chief Justices and Chief Ministers conference, Chief Justice T S Thakur that while it made 143 appointments to the High Courts, approval for 169 were still pending with the government Significantly the CJI said 50 percent of the proposals for high court judgeship have been turned down. “50 of proposals sent to us were turned down as we have raised the bar. A slightest blemish against a candidate has resulted in his rejection. We do not want criticism about how people get appointed, much has been said about it” said CJI .
RETIRED JUDGES TO COME BACK
The CJI said as per a resolution passed in conference it has been resolved that apart from fresh appointments “which may take two months or so for completion we need to use the services of judges who have already proved themselves in the system. Article 224 of the constitution already provides for it..some judges who have served 30 years, 40 years who have risen from the ranks because of their integrity, any judge who has done well ..to ask them to go home will be a waste of talent”. This is because of the extra ordinary situation we are faced with ..because of the shortage of judges. The judges who are ready to work, they can be used for another two years or so”, said the Chief Justice Referring to the speech of the Chief Justice of India, where he spoke of the large number of cases pending in various courts in India, the Prime Minister said that he understood the Chief Justice’s concern. He said that going forward, he hoped that the Government and the Judiciary could work together to find solutions to these issues.
The Prime Minister also stressed on the efforts being made by the Government to remove archaic laws from the statute books. The Prime Minister also said “Why don’t you reduce your holidays. I suggested this when I was Gujarat Chief Minister. I was criticized”.
PM PROPOSES CLOSED DOOR MEETING?
The Times of India has reported that, after the emotional Speech of Chief Justice of India, the Prime Minister has proposed a closed door meeting with CJI to discuss the issues relating to appointment of Judges and Judicial Reforms.
CJAR demands Public Consultation on new MoP on Appointment of Judges
In a letter to Chief Justice of India, Campaign for Judicial Accountability & Reforms (CJAR) Convenor Prashant Bhushan has applauding the judiciary’s move rejecting some of the clauses in the government draft of the Memorandum of Procedure for appointment of Supreme Court and High Court judges and sought greater transparency and public consultation in preparing a new MOP for Judicial Appointments. Read the Full Text of the Letter Here;
The Hon’ble Chief Justice of India ,
Supreme Court of India ,
New Delhi .
12th May 2016
Subject : Regarding public consultation on the Memorandum of Procedure
Dear Hon’ble Chief Justice,
The Campaign for Judicial Accountability & Reforms (CJAR) is a response of people’s movements, campaign organizations and individuals working on public interest issues, to ensure a judicial system that is more accountable, accessible and sensitive to the poor, marginalized and common people of this country. We are writing to you in the context of the news item appearing in the Indian Express on May 6, 2016 titled “SC collegium unhappy with govt’s draft procedure” which states that the collegium of Judges headed by your Lordship has rejected the “national security” clause which the Central Government had inserted into the Memorandum of Procedure to override decisions of the collegium in respect of recommendation of judges for appointment. This is a very positive development for the independence of the judiciary and we applaud the decision of the collegium to stand firm against an attempted encroachment by the Executive of this basic principle of our Constitution. “National security” is a bogey that has been used. and continues to be used, by Governments to trample upon the rights of citizens in India.
The same is with respect to the collegium rejecting the clause that requires the Attorney General at the Centre and the Advocate Generals at the States to have a say in recommending candidates for appointments. This too is an attempt by the government to have backdoor control over judicial appointments, a move that was rightly rejected by the collegium. We are heartened to note that the judiciary is willing to contest the Government’s claims in this regard, in the interests of preserving constitutional governance in India. At the same time, we must express our distress at the process which is being followed in drafting the MoP. There is no publicly available draft of the MoP, no public consultation and no public debate on this vital document that guides the appointment of judges. We do not think that this is an internal, administrative document that must be kept out of public view for whatever reason. There should as much transparency in the process of drafting of this document as in the mechanisms for appointment that the MOP deals with.
The MOP has an important bearing on the independence of the judiciary, especially with regard to the appointment of judges to the Supreme Court and the High Court. The Campaign for Judicial Accountability and Reforms had written to the Hon’ble Finance Minister, Mr. Arun Jaitley, on the 16th of March 2016, requesting for a public consultation on the MOP and also sending in some of the Campaigns suggestions. We have yet to hear back on this request and in the meanwhile the government draft has reached the collegium for consideration. As your Lordship is no doubt aware, civil society and the Bar played an important role in not only challenging the constitutional validity of the 99th Constitutional Amendment and the National Judicial Appointments Commission Act, 2015, but also participated wholeheartedly in the consequent hearings. Detailed suggestions were given by members of the Bar, different civil society organisations and public spirited citizens, proposing reforms to the appointment process.
These suggestions have been taken on board by the Constitution Bench of the Hon’ble Supreme Court as seen in the order dated December 16, 2015 directing the Government to frame the MoP. In the same spirit of openness and transparency that marked the NJAC hearings, we humbly request from Your Lordship that the draft MoP be made public, comments on the proposals be invited, and inputs and suggestions received from civil society and the Bar be incorporated as much as possible into the ultimate draft. We are certain that increased transparency and participation of civil society and the Bar will only improve the quality of the MoP and inspire greater public confidence in the MoP itself as the mechanism to appoint judges to the Supreme Court and the High Court. The appointment process for judges to the Supreme Court and High Courts is vital to defending the independence of the judiciary and civil society entirely shares the concerns of the judiciary in this respect.
We look forward to a positive response on this issue.
Yours Sincerely ,
Stop the Colonial Practice of Long Vacations for Courts ; CJAR
The Campaign for Judicial Accountability and Reforms has issued a statement suggesting various steps to be taken to improve the efficiency of the Court. The statement issued by its convenor Prashant Bhushan suggested that the Courts to increase the judicial time to litigants, especially to those who have been languishing in jails without recourse to a speedy trial.
Here is the Full text of the Statement The problem of judicial delays has recently gained public attention in light of the impassioned appeal by the Chief Justice of India to the Government, at the Joint Conference of Chief Ministers and Chief Justices on 24 April 2016, to increase the strength of judges and clear all pending files relating to judicial appointments. The Chief Justice of India also appealed to all relevant stakeholders in the judicial system to work together towards making the system more efficient. He also implored all duty holders to consider cutting down on vacation time and use the additional time to clear long pending cases. These appeals need to be viewed in the context of a situation in which millions of under trials languish in jails across the country and lakhs of civil litigants are waiting endlessly for justice.
Closing down the courts for extended periods of time during the long summer months is a vestige of colonial India. There is no justification in a modern democracy to retain the colonial practice of long vacations for courts. Judicial officers should get service benefits, including leave and vacation benefits, similar to what other public service officials of comparable seniority get. There has been an almost unanimous decision by the judges of the Allahabad High Court to cut short their summer break, to conduct special hearings to clear long pending criminal matters and thereby address the staggering backlog of cases. The Chief Justice of the Madhya Pradesh High Court has written a letter appealing to the members of the Bar, to follow course and cut short vacation time, as well as work on Saturdays.
These are positive voluntary steps which need to be institutionalised and implemented for all courts in India. There have also been welcome news reports of retired judges being reappointed on an ad-hoc basis to tide over the current shortfall in the number of judges. Compulsory video recording of proceedings of all courts is another step which will help ensure that judicial time is not wasted, besides having several other valuable benefits for litigants and justice dispensation and should also be implemented immediately. CJAR strongly supports steps towards increasing the judicial time available to litigants, especially to those who have been languishing in jails without recourse to a speedy trial. CJAR demands that the Supreme Court and other High Courts in the country follow the example set by the Allahabad and Madhya Pradesh High Courts, do away with vacations where the entire court is closed and increase court time.
This will also help address the problems of judicial delays in this country. CJAR applauds and supports the decision of Chief Justice of India to appoint ad-hoc judges, thereby drawing on a pool of available, competent judges, to tide over the judicial backlog. CJAR demands that proceedings of all courts be video recorded – a step which will not only cut down on delays but will also have other salutary effects. Other administrative reforms such as appointment of court managers, pre-trial conferences, using Information Communication Technology for notices, etc., also need to be institutionalised and these steps if taken, will certainly lead to increasing the efficiency of court processes in the long term.
More than 70,000 Judges required to clear the pending Cases; Chief Justice Thakur
Access to Justice is a fundamental right and no government can afford to deny its people their fundamental right, he said Chief Justice of India Justice TS Thakur today, while inaugurating the centenary celebrations of Orissa High Court at Cuttack, said that ‘we require more than 70,000 judges to clear backlog of cases’. “While the Law Commission of India in 1987 had suggested for having 44,000 judges to effectively tackle the then number of pending cases, the country today has only 18,000 judges. Thirty years down the line we continue to work with depleted strength. If you go by the number of people that have been added to the population, we may now require more than 70,000 judges to clear the pending cases,”, He said “Access to Justice is a fundamental right and no government can afford to deny its people their fundamental right,” “It’s unfortunate that the machinery involved in appointment of judges continues to run very slowly,” He added He stated that around 170 proposals for appointment of High Court judges were now pending with the government. “While we remain keen to ensure that judges’ appointments are made quickly, the machinery involved with the appointment of judges continue to grind very slowly,” He said Last month, speaking at the Conference of Chief Justices and Chief Ministers , he made an emotional speech and said, “Judges’ strength has been put in cold storage for past three decades. You cannot blame the judiciary alone for the high number of pending cases. In some petitions, we have to dispose ourselves in extremely stressful conditions. I request your Government to address the issue”.
CJI refuses to accept Whatsapp message as PIL; agrees to hear content as petition
In a first of its kind development, a noted Indian lawyer and motivational speaker Ashok Arora, now settled in USA sent a 10-minute video message through Whatsapp to Chief Justice of India T S Thakur on “how to ensure over all development of the country and its citizens” and urged him to accept it as a Public Interest Litigation (PIL). Indian judiciary is yet to admit Whatsapp messages or SMSs as petition even though it has converted several letters and post cards received by the judges as public interest litigations in the past.
HEARING ON MONDAY But to the relief of Arora, the chief justice has agreed to hear his PIL coming Monday though not the petition in Whatsapp form but based on a typed petition. He has been asked to put on paper whatever he has said in his voice message. Arora had sent the message to the Chief Justice few weeks ago. But since he did not get a reply he flew down to Delhi to make an enquiry. Yesterday when he referred to his message, CJI Thakur told him that the judiciary has not started considering whatsapp messages as ‘letter petitions’. Arora countered that if prayers made through post cards can be converted into a PIL, so can be whatsapp messages and “in fact such messages are more credible as one can authenticate the sender from the number it has come from unlike the post cards which anybody can send in anybody’s name”. In the petition, Arora said, he had raised the issue of citizens, including those holding powerful positions not performing their fundamental duties enshrined in the Constitution. He said he has raised the issue of Article 51 A and 51 A (H) of the Constitution.
These relate to a direction to the centre to develop scientific temper, humanism and the spirit of inquiry in today’s youth. “99.9% citizens including lawyers, judges and parliamentarians do not perform their fundamental duties prescribed under Article 51 A of constitution,” Arora said in his petition. In his plea he said, the world is producing machines but not compassionate human beings due to which millions are suffering and not getting one square meal. He said there is need to create an atmosphere so that people perform their fundamental duties and education system should make changes accordingly. “We all know that article 51 A of the constitution which defines the fundamental duties of a citizen enjoins upon every citizen to develop the spirit of enquiry and scientific temper” it said.
The dream of framers of our constitution to wipe the last tear from the last eye is nowhere near realization rather millions of citizens go to bed on an empty stomach More than two lakh farmers have committed suicide people have no access to drinking water”, it said. “Problem throughout the world is same that the education system is producing computers and not compassionate human being. That is why the world has not produced any Bhagat Singhs Abraham Licoln, Martin Luther King Nelson Mandela for a long time. The world is investing in bombs than next generation “Recently your lordship made a public statement that your lordships job satisfaction was only five percent I admire your lordship’s candid declaration but it surely does not mean that your lordhsip’s many other colleagues and those who govern this nation are having a better job satisfaction”, said Arora.
Why the Death Penalty should be abolished
The risk of executing innocent people exists in any justice system
There have been and always will be cases of executions of innocent people. No matter how developed a justice system is, it will always remain susceptible to human failure. Unlike prison sentences, the death penalty is irreversible and irreparable.
The arbitrary application of the death penalty can never be ruled out
The death penalty is often used in a disproportional manner against the poor, minorities and members of racial, ethnic, political and religious groups.
The death penalty is incompatible with human rights and human dignity
The death penalty violates the right to life which happens to be the most basic of all human rights. It also violates the right not to be subjected to torture and other cruel, inhumane or degrading treatment or punishment. Furthermore, the death penalty undermines human dignity which is inherent to every human being.
The death penalty does not deter crime effectively
The death penalty lacks the deterrent effect which is commonly referred to by its advocates. As recently stated by the General Assembly of the United Nations, “there is no conclusive evidence of the deterrent value of the death penalty” (UNGA Resolution 65/206). It is noteworthy that in many retentionist states, the effectiveness of the death penalty in order to prevent crime is being seriously questioned by a continuously increasing number of law enforcement professionals.
Public opinion is not a major stumbling block for abolition
Public support for the death penalty does not necessarily mean that taking away the life of a human being by the state is right. There are undisputed historical precedences where gross human rights violations had had the support of a majority of the people, but which were condemned vigorously later on. It is the job of leading figures and politicians to underline the incompatibility of capital punishment with human rights and human dignity.
It needs to be pointed out that public support for the death penalty is inextricably linked to the desire of the people to be free from crime. However, there exist more effective ways to prevent crime.
Judiciary biased against poor: Justice Saldanha
Only culprits from certain sections of the society are given death sentence in India while the rich and influential are spared the gallows, observed former high court judge Justice M F Saldanha.
Addressing law students of JSS Law College at an orientation programme here on Monday, he rued that the justice system is biased against socio-economically backward classes. “There have been instances where many rich and popular personalities committed similar crimes but went scot-free,” he noted. There are certain loopholes in the legal system. Academicians, legal parishioners and law students must work towards bridging these gaps and bringing about the desired change in the system, he added, calling upon budding lawyers to follow ethics in their professional and personal lives.
College principal K S Suresh said the country has nearly 4 crore cases pending before the court, due to delay in settling them. Though there are nearly 13,500 courts and two dozen high courts, at this rate, it will take about 100 years to clear the pending cases, he said while stressing on the need to deliver speedy justice. MLA Vishweshwar Hegde Kageri said society has immense faith in the judicial system and called upon the legal fraternity to live up to people’s expectations
Yakub Memon, Maya Kodnani and the ‘Chain of Action and Reaction’
The media tells us we should now have a sense of “closure” but in the wake of Yakub Memon’s execution, I, like many others, have been trying to understand the logic of why some criminals get hanged in India while others guilty of similar crimes don’t.
On the day Memon’s writ petition against his death warrant was dismissed by the Supreme Court, another bench decided that the assassins of former prime minister Rajiv Gandhi would not have to hang after all. The court, which had earlier commuted their sentence, rejected the government’s belated and somewhat half-hearted curative petition demanding that they be put to death.
By a curious coincidence, the Gujarat High Court has also just started hearing appeals in the Naroda Patiya case stemming from the Ahmedabad killings of March 2002. The trial court had convicted several persons connected with the sangh parivar for the cold-blooded massacre of nearly 100 Muslims. Among those sentenced was Maya Kodnani. She had been a minister in the state cabinet of Narendra Modi at the time she was arrested by the Supreme Court-appointed Special Investigation Team. Found guilty of leading the murderous mobs, Kodnani was sentenced to 28 years rigorous imprisonment and not death. The Gujarat government has taken the view that there is no need to seek the death penalty as there is (according to it) only indirect evidence linking her to the murders.
As a critic of the death penalty, I am as opposed to hanging Kodnani as I was to the execution of Memon (against whom, ironically, evidence showing his involvement in the heinous Bombay bombings was also only “indirect”). But I am curious about the social, judicial and, above all, political hierarchy of crimes that clearly exists in India and which determines both the course of prosecution and the nature of punishment that follows.
That there is such a hierarchy was obliquely confirmed by the Home Minister in Parliament the other day. During the debate on the Gurdaspur terrorist incident, Rajnath Singh attacked the Congress party for coining the term ‘Hindu terror’, and said this had served to distract the attention of the country away from actual terrorism, which, by his logic, is presumably non-Hindu.
The fact that the minister said this in the wake of Gurdaspur, where the terrorists had clearly crossed over from Pakistan, and barely a day after Memon was hanged, gave his argument a certain currency. Neither Memon nor the others held responsible for planning and executing the conspiracy were Hindu. The Shiv Sena-BJP government which came to power in Maharashtra after Justice B. Srikrishna had begun probing the December 1992-1993 Bombay riots first tried to disband his commission and then expanded its terms of reference to include the March 1993 blasts. What the commission established was that the bombs planted were a product of the riots which preceded them. They were, in other words, part of a ‘kriya pratikriya ki chain’, or ‘chain of action and reaction’ – to invoke the peculiar phrase Narendra Modi would use nine years later to link the mass killing of Muslims that was taking place across Gujarat to the burning of Hindu passengers at Godhra. “What I want is that there should be no action and no reaction,” Modi had added even as his state was burning, a curious wish list for a Chief Minister who could not undo the past but who definitely had the power to at least control the present.
As the Bombay riots and blasts – and Godhra fire and Ahmedabad inferno – show, Hindu terror and Muslim terror are twins and both are equally evil. There is, even in the Newtonian moral universe of ‘action and reaction’, a culpability that neither Memon nor Kodnani can evade. Yet one pays with his life while the other doesn’t. Both freely acted out their role in the ‘kriya-pratikriya ki chain’ but the same state that fought to take one life will now fight to save the other. Just as it fought to ensure the terrorists who led the mobs in Bombay in 1992-93 and Delhi in 1984 were never called to render account.
Memon’s execution, we are told, will help deter others from committing similar crimes but the effectiveness of this “deterrence” rests surely on what crimes are to be considered “similar”.
Shocked by the devastation of Hiroshima, whose 70th anniversary falls this week, Judge Radhabinod Pal of the Tokyo Tribunal trying Japanese war criminals believed there was no possibility of justice if those responsible for the deliberate murder of civilians by atomic weapons were also not put in the dock. His was not an argument about moral equivalence but of the deterrent value of justice. Future war crimes could be prevented only if the Tribunal was willing to treat the dropping of nuclear bombs or the firebombing of entire cities on par with the atrocities that the Japanese militarists were rightly accused of committing.
Pal was overruled by the other Allied judges but this tension between victor’s justice and the rights of all victims to justice would later be resolved – at Geneva, the Hague and Rome – with the adoption of the Geneva Conventions (after World War II), the International Court of Justice advisory opinion on the illegality of nuclear weapons (in 1996), and the establishment of the International Criminal Court (in 1998).
In India, sadly, we are not even prepared to recognise the gravity of the crime of communal violence and treat it on par with terrorism, let alone adopt legal remedies to deal with it. It is our national failure to come up with a deterrent to mass violence that allowed the 1984 massacre of Sikhs to take place, followed by Hashimpura, the Babri Masjid, Bombay and then Gujarat. If the government wants to end this chain, it must turn justice from being a product of faith – in which minority victims don’t count – into an article of faith for India and its state institutions.
SC moots curtailing govt’s remission power in ‘rarest of rare’ cases
The Supreme Court on Thursday proposed curtailing the central and state governments’ powers under Criminal Procedure Code to remit sentences of life convicts in ‘rarest of rare’ category of cases and bring it under the scanner of the judiciary.
“We owe something to society. We cannot ignore the interest of society. We care for it. We have to keep in mind society’s cry for justice in ‘rarest of rare’ category of cases. We are also alive to the convicts’ right to remission of sentence. This has to be balanced with society’s cry for justice,” a bench of Chief Justice H L Dattu and Justices F M I Kalifulla, P C Ghose, A M Sapre and U U Lalit said.
Before proposing the curtailment, the bench said it would be applicable only to ‘rarest of rare’ category of cases in which the convicts were serving life sentence after death penalties awarded to them by the trial court had been commuted to life imprisonment by higher courts or constitutional authorities.
The bench said that keeping past experience in mind, the SC could specify that in such cases, if the Centre or a state government decided to remit the sentence of a lifer and release him from prison, then it would have to mandatorily seek the view of the judge of the trial court which had imposed the death penalty.
“If the opinion of the trial court is accepted by the state government, it is well and good. If the state government decides to go ahead with its decision to remit the sentence despite the trial court’s opinion to the contrary, then the matter must get referred to the Supreme Court which will adjudicate the desirability of releasing such convicts,” the bench said.
Appearing for Tamil Nadu government, senior advocate Rakesh Dwivedi protested, saying the judiciary could not encroach into the exclusive remission domain of the executive. “The remission power given to executive governments under the Criminal Procedure Code can be curtailed only through legislation and not by the orders of the court passed under Article 142 of the Constitution,” he said.
The bench said in such ‘rarest of rare’ category of cases, it was proposing to erase the ‘suo motu’ power of governments to grant remission of sentence, as was the case in Rajiv Gandhi assassination case. “Past experience shows that state governments have been releasing convicts en masse on the birthdays of political leaders,” the court said.
It also clarified that it was not curtailing the right of convicts to seek remission of sentence from the President or the governor under Articles 72 and 161 of the Constitution respectively. “This will answer the query from states whether the Supreme Court can impose sentences exceeding 14 years with a caveat that there would be no remission till the convict serves out the specified period of sentence,” the bench said.
Dwivedi said, “It is one thing to be alive to society’s cry for justice but it should not result in anger-driven award of punishment that goes beyond the penal parameters specified in the statute books.”
He said there was a judge in the Supreme Court who wanted all “corrupt to be hung from lamp posts”. Justice Kalifulla said it was not an order but a casual observation made by the judge in court where he had said “corrupt should be hung from the nearest lamp post”. Though no one mentioned the name of the judge, it was ex-judge Markandey Katju who had made the remark.
Justice Katju had on March 7, 2007 said, “Everyone wants to loot this country. The only deterrent is to hang a few corrupt persons from the lamp post.” He was part of a bench hearing a bail petition filed by fodder scam accused Braj Bhushan Prasad, who was convicted by the trial court.
Death penalty files ‘lost, eaten by termites’
Records of death penalty convicts who have been executed since independence have gone missing from many prisons with the National Law University (NLU), conducting a first of its kind study, able to confirm data related to 755 executions since 1947.
“Some prison authorities have written to us that either the records have been lost or destroyed by termites,” NLU director Anup Surendranath told TOI, who is heading the death penalty research project. The NLU is compiling data on all prisoners who have been executed since independence with the help of the central government.
The missing files are not only a serious lapse on part of prison authorities but has also hampered an ongoing attempt to study all death row convicts to ascertain the fairness of the capital punishment jurisprudence, particularly those who have been executed in independent India.
The casual attitude towards death row convicts is reflected in the loss of mercy pleas of Krishna Mochi and three others in the Krishna Mochi & Ors vs. Bihar case of 2001. Convicted by the TADA court, mercy pleas of the four have been lost by the Union home ministry. Their pleas were sent to the President in 2003, and a recent RTI response to Suhas Chakma of Asian Centre for Human Rights has revealed that the home ministry has no records available. “These papers have evidently been lost,” Chakma said.
Loss of data on executed prisoners reflects poorly on the record-keeping of the government and the judicial system. Incidentally, the 35th report of the law commission had confirmed execution of at least 1,410 death row prisoners in a span of 10 years—between 1953 and 1963.
Data by the National Crime Records Bureau is also not without gaps. For example the NCRB claims that as many as 2,052 individuals were awarded capital punishment by courts between 1998 and 2013. And the NCRB also says between 2001 and 2013 the number of those whose death sentences were commuted was double: 4,497 persons.
CHRI’s Venkatesh Nayak says that this is where the NCRB data becomes “questionable”. “The discrepancies probably crept in when jail authorities counted all commutations even those of shortened prison time,” he said.
“Information on executions are sourced from various prisons and courts across the country which do not reveal either the religious or caste backgrounds of the convicts who have been executed,” Surendranath points out. The NLU report on death penalty is scheduled for release in mid-August where a detailed analysis of socio-economic profile, legal representation and duration on death row would be made public.
The NLU has conducted interviews of 373 surviving death penalty convicts and has drawn their socio-economic profile. The analysis of these surviving prisoners shows that an overwhelming majority of them are from backward class, religious minorities and economically vulnerable classes. In the category of terror offences, 94% prisoners sentenced to death are Dalits and religious minorities.
“We have been unable to find an exhaustive list of prisoners executed in India. However, as per a report of the Law Commission (1967), the total number of cases in which the sentence of death was executed from 1953 to 1963 was 1,410,” Surendranath said.
15 judicial officers compulsorily retired by Allahabad HC in UP
In a major action, 15 judicial officers in Uttar Pradesh have been punished with compulsory retirement by theAllahabad High Court for “doubtful integrity”, “negligence” and “poor performance”.
The decision was taken at a “Full Court” meeting presided by Chief Justice of the High Court D Y Chandrachud held in Lucknow on April 14, S K Singh, the Registrar General of the High Court, said.
12 Additional District Judges (ADJs) and three Additional Chief Judicial Magistrates (ACJMs) were “divested of their charges and stopped from functioning on their respective posts” with immediate effect while a communique to this effect was sent to the state government, he said.
A 10 per cent curtailment in the pension of a retired officer Ashok Kumar Saxena, against whom there were serious complaints, has also been announced, the registrar said.
The ADJs – who were posted in different districts of the state and have been given compulsory retirement are – Shaileshwar Nath Singh, Bans Raj, Ram Murti Yadav, Dhruv Raj, Jagdish, Naresh, V P Kandpal, A K Ganesh, Arvind Kumar, Avinash Chandra, A K Dwivedi and M M Khan while the three ACJMs are Kishore Kumar, S S Singh and Shyam Shankar.
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