Any Questions? info@beandbyias.com /+91 9958826967, 9958294810

For registration call @ 9958294810 or mail at info@beandbyias.com | LAW OPTIONAL COURSE for CIVIL SERVICES 2021 Live classes Starting from 4th January 2021 | Final batch for Civil Services 2021 |

Daily Category  (Judiciary)

Supreme Court dismisses Aadhaar review petitions

CONTEXT:

The Supreme Court, in a majority view, dismissed a series of petitions seeking a review of its 2018 judgment upholding the Lok Sabha Speaker’s certification of Aadhaar law as a Money Bill and its subsequent passage in Parliament.

However, Justice D.Y. Chandrachud dissented with the majority, saying the Aadhaar review petitions should be kept pending.

                                          Did Aadhaar CEO mislead the Supreme Court? - The Week

NEWS IN DETAILS:

Two questions for review: Two questions had come up for review regarding the five-judge Aadhaar Bench’s judgment in 2018.

1. Whether the Speaker’s decision to declare a proposed law as Money Bill was “final” and cannot be challenged in court.

  • The majority judgment in 2018 said the Speaker’s decision could be challenged in court only under “certain circumstances”.

2. Whether the Aadhaar Act, 2016 was correctly certified as a ‘Money Bill’ under Article 110(1) of the Constitution.

  • SC concluded that the Aadhaar Act was rightly called a Money Bill. Justice Chandrachud, who was on the Bench, had dissented on the second conclusion in 2018.

VIEWS OF JUSTICE CHANDRACHUD

Rojer Mathew vs South Indian Bank Ltd: In November 2019, Bench had questioned the conclusions arrived at by the Aadhaar Bench and referred the issues to a seven-judge Bench for an authoritative take.

Justice Chandrachud wrote: “The larger Bench’s determination would have an undeniable impact on

  • Validity of the reasons expressed in Puttaswamy [Aadhaar case], and
  • Constitutional issues of the certification by the Speaker of the House of People.”

He said the Review Bench should hence wait for the seven-judge Bench, which has not yet been constituted, to take a call. The review petitions should be kept pending for the time being.

VIEWS OF MAJORITY JUDGES IN THE CASE:

Dismissing the review pleas, the majority of four judges on the Bench held that following cannot be regarded as a ground for review”.

  • Change in the law or
  • Subsequent decision/judgment of a coordinate or larger Bench by itself

CONCERNS:

Fraud on the Constitution: Primarily by Rajya Sabha member Jairam Ramesh, had highlighted how the Aadhaar Act was passed as a Money Bill by superseding the Rajya Sabha. He had called it a “fraud on the Constitution”.

Not Under Article 110 (1): The review petition had argued that the Aadhaar Act clearly did not fall within the ambit of Article 110 (1) of the Constitution, which restricted Money Bills to certain specific fields only.

Judicial indiscipline: Dismissing the Aadhaar review even before the seven-judge Bench got a chance to apply its mind and arrive at a verdict would amount to “judicial indiscipline” and have “adverse consequences.”

Constitutional principles of consistency: The constitutional principles of consistency and the rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench.”

MONEY BILL:

Money bills: Article 110- It includes: 

  • Imposition, abolition, remission, alteration or regulation of any tax. 
  • Borrowing(obligation) of money by the union government 
  • Custody of the consolidated or contingency fund of India. 
  • Expenditure charged on the consolidated fund of India (CFI) 
  • Receipt of money on account of consolidated fund of India or the public accounts of India. 
  • Appropriation of money out of cfi 

Not part of money bill: Fines &penalties, taxes of local government, service fees. 

Article 117- Financial bill: 

  • It is similar to money bill, except that it can’t be passed unless President has recommended. 

REVIEW PETITION:

Under Article 137, the Supreme Court has the power to review any of its judgments or orders.

The court has the power to review its rulings to correct a “patent error” and not “minor mistakes of inconsequential import”.

Three grounds for seeking a review of a verdict:

  1. The discovery of new and important matter or evidence 
  2. Mistake or error apparent on the face of the record.
  3. Any other sufficient reason. 

Who can file a review petition: Any person aggrieved by a ruling can seek a review.

Time- period: Within 30 days, In certain circumstances- Delay than 30 days also allowed

CURATIVE PETITION: If a review petition fails.

  • Roopa Hurra v Ashok Hurra (2002), the court itself evolved the concept of a curative petition, which can be heard after a review is dismissed to prevent abuse of its process.

Source: The Hindu

HC notice to Centre on PIL challenging contempt Act

CONTEXT:

The Karnataka High Court ordered issue of notice to the Union government on a PIL petition filed by four eminent personalities challenging the constitutional validity of a provision of the Contempt of Courts Act, 1971.

PIL held that it makes “scandalising or tends to scandalising courts” as a ground for contempt.

Tweets against CJI amounts to Criminal Contempt – Civilsdaily

NEWS IN DETAILS:

A Division Bench comprising Chief Justice Abhay Shreeniwas Oka and Justice Sachin Shankar Magadum passed the order on the petitions filed by

Petitions filed by:

  1. Krishna Prasad, senior journalist and former Editor of Outlook magazine;
  2. N. Ram, veteran journalist and former Editor-in-Chief of The Hindu;
  3. Arun Shourie, former Union Minister, and
  4. Prashant Bhushan, senior advocate.

All the four petitioners have narrated the proceedings faced by them under the Contempt of Courts Act at different point of time before the High Courts and the apex court.

Earlier they had filed a similar petition before the Supreme Court, which in August last year had permitted them to withdraw the petition by giving them liberty to move a High Court.

ISSUES IN CONTEMPT OF COURTS ACT, 1971:

Section 2(c)(i) of the Act:

  • It violates the right to free speech and expression guaranteed under Article 19(1)(a) and
  • Does not amount to a reasonable restriction under Article 19(2).

The Section 2(c)(i)

  • Fails the test of overbreadth,
  • Abridges the right to free speech and expression in the absence of tangible and proximate harm,  
  • Chilling effect on free speech and expression

Offence of “scandalising the court: It cannot be considered to be covered under the category of “contempt of court” under Article 19(2).

If Section 2(c)(i) were permissible under the ground of contempt in Article 19(2), it would be disproportionate and therefore unreasonable.

The offence of ‘scandalising the court’ is rooted in colonial assumptions and objects, which have no place in legal orders committed to democratic constitutionalism and the maintenance of an open robust public sphere.” 

CONTEMPT OF COURTS:

CONSTITUTIONAL PROVISIONS:

Article 129: Grants Supreme Court the power to punish for contempt of itself.

Article 142(2): Enables the Supreme Court to investigate and punish any person for its contempt.

Article 215: Grants every High Court the power to punish for contempt of itself.

Not Defined: In the Constitution.

CONTEMPT OF COURTS ACT, 1971:

It divides contempt into

  1. Civil contempt (Section 2(b)): Wilful disobedience to any judgment, decree, direction, order, writ
  2. Criminal contempt (Section 2(c)): Publication of any matter which Scandalises court

COURT CASES:

Duda P.N. v. Shivshankar: Contempt jurisdiction should not be used by Judges to uphold their own dignity.

Auto Shankar’s Case: SC invoked the famous “Sullivan doctrine” that public persons must be open to stringent comments and accusations as long as made with bonafide diligence, even if untrue.

Arundhati Roy Case: Fair criticism of the conduct of a Judge, the institution of the judiciary and its functioning may not amount to contempt if made in good faith and in public interest.

Source: The Hindu

The chilling effect of criminal contempt

1. CONTEXT OF THE NEWS

  • Recently, twitter has "withheld" two tweets by advocate Prashant Bhushan in India on grounds of alleged contempt to court even without a court order to delete the tweets.
  • The court had earlier "suggested" that twitter ought to remove the tweets by itself without waiting for formal order for the court.
  • The tweet in question is a personal remark made bylawyer and social activist Prashant Bhushan about the Chief Justice of India S.A. Bobde riding a very costly motorcycle.
  • The editorial discussed the contempt law in India and abroad. It also analyses its relevance in modern times and in democratic societies.

2. TRYING TIMES

2.1 Priority Cases

  • Presently, the COVID-19 pandemic has virtually halted all activities.
  • Workplace and institutions are slowly and tentatively getting back to normalcy by identifying priorities.
  • On similar lines, the Supreme Court too has to identify priority cases to be taken up first due to the pandemic-constricted schedule.
  • This should not be a difficult task given the number of cases pending before the apex court.
  • Over a dozen of constitutional casescall for immediate attention including the following:
    • constitutionality of the Citizenship (Amendment) Act,
    • the issue of electoral bonds
    • the matter of habeas corpus petitions from Jammu and Kashmir

2.2 Priority Cases for the Supreme Court

  • The umbrage that the court took at two tweets amidst the trying times is utterly disappointing.
  • The court held that the two tweets in question “brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the institution... and the office of the Chief Justice of India in particular….”
  • The Apex Court has further responded by initiating suomotu proceedings for criminal contempt again Prashant Bhushan.

2.3 Monarchical Origins

  • The need to “respect the authority and dignity of the court” has monarchical origins from the times when the King used to be deliver judgments himself.
  • The adjudicatory role have however, been transferred to the judges over centuries and this idea of extreme deference to the judges is not very appropriate in a democratic setup.
  • In a 2012 report, the U.K. Law Commission has even recommended the abolition of the law of contempt, which according to the report was intended to maintain a “blaze of glory” around courts.

3. A WIDE FIELD IN INDIA

3.1 Objective of contempt

  • The stated objective of contempt is safeguarding the public interest.
  • Given the nature of adjudication, there is a possibility of denigration of the authority of the Courts and this could lead to weakening of public confidence in the administration of justice, it is here that the concept of contempt comes in play.

3.2 Definition of Criminal contempt in India

  • In India, criminal contempt has extremely wide definition, and can be easily invoked.
  • To further complicate matters, the Courts have suomotu powers to initiate the proceeding of criminal contempt.
  • In addition, before the amendment of the Contempt of Courts Act in 2006, truth and good faith were not recognised as valid defences.
  • However, despite truth and good faith raised as defences, the Delhi High Court sentenced the employees of an Indian newspaper (Mid-Day) for contempt of court for publishing "scandalous" articles and portraying a retired Chief Justice of India in an unfavourable light.

3.3 Trampling on civil liberties

  • Justice V.R. Krishna Iyer famously held the law of contempt has as having a vague and wandering jurisdiction, with uncertain boundaries.
  • Therefore, regardless of public good, the contempt law might unintentionally trample upon civil liberties.
  • Hence, it comes to the public to determine the extent to which it wants to bear the trample.

4. CONTEMPT LAW AND DEMOCRACY

4.1 Asynchronous with democracy

  • For a democratic setup respecting and recognising the freedom of speech and expression as a fundamental right, the law of criminal contempt seemingly sounds asynchronous and incompatible.

4.2 Using laws for Chilling effect

  • A liberal exercise of suomotu powers by the courts coupled with an excessively loose use of the test of ‘loss of public confidence’ lead to dangerous consequences.
  • For one, it could reflect the Court signalling that it will not put up with any critical commentary about the institution at all irrespective of how evidently problematic its actions may be.
  • By doing so, the judiciary could find itself at an uncanny parallel with the executive, in using laws for chilling effect.

4.3 Need for a revisit

  • Not only the law on criminal contempt, but even the test of contempt needs revisit and revaluation.
  • The test, if it were to exist at all, should be limited to check if the contemptuous remarks in question actually obstruct the Court from functioning.
  • The courts should not be allowed to misuse the law of contempt to prevent any and all criticism of an institution.

5. OBSOLETE ABROAD

5.1 Use of the contempt law in foreign democracies

  • In foreign democracies, the contempt law has already become practically obsolete with jurisdictions acknowledging it as an archaic law designed and suitable for the bygone era with no utility and necessity in modern times.
  • In Canada, the test for contempt law is real, substantial and immediate dangers to the administration.
  • The courts in U.S.A too no longer uses the contempt law in response to comments on judges or legal matters.

5.2 England and contempt law

  • India has inherited the legacy of contempt law from England.
  • However, in England too the legal position on contempt law has evolved.
  • The judges in England have sensibly and judiciously ignored several instances where the contempt law could have been used.
  • The British newspaper the Daily Mail ran a story of three judges who delivered the Brexit ruling with the caption “Enemies of the People”, while many people considered it excessive, the courts chose to ignore it and did not commence contempt proceedings.

5.3 India and contempt law

  • However, in India, the courts are not always inclined to show the same level of maturity as exhibited by their peers in foreign democracies.
  • An exception in point being the time when in response Arundhati Roy’s criticism of the Supreme Court for vacating the stay for constructing a dam Justice S.P. Bharucha held that Ms. Roy had brought disrepute to the Court but no contempt proceedings were initiated for “the court’s shoulders [were] broad enough to shrug off [these] comments”.
  • However, the generosity of the court was undone when contempt proceedings were initiated against the Ms. Roy for leading a demonstration outside the court and filing an affidavit.
  • The court held her in contempt for “scandalising its authority with mala fide intentions” and sentenced to a day’s imprisonment, with fine.

5.4 Silencing criticism

  • It is unfortunate that judges believe that silencing criticism will harbour respect for the judiciary.
  • On the contrary, efforts to artificially prevent free speech are bound to aggravate the situation even more.
  • The same was pointed out in the landmark U.S. case of Bridges v. California (1941), “an enforced silence would probably engender resentment, suspicion, and contempt for the bench, not the respect it seeks”.
  • The Courts, for sure would not desire so.

6. CONCLUSION

Recently, the Pakistan Supreme Court hinted at banning social media platforms including YouTube for exhibiting what, in the eyes of the court is ‘objectionable content’ that ‘incited hatred’ for institutions such as the army, the judiciary, the executive, and so on.

This took place simultaneously with the Indian Supreme Court’s decision to commence contempt proceedings against Mr. Bhushan.

Expert have pointed out the eerie similarity between the two sets of observations. This raises serious concerns about the direction in which the Indian Supreme Court sees itself heading.

ADDITIONAL INFORMATION

Contempt law in Indian Constitution

  • Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself.
  • Article 142(2) gives Supreme Court the power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
  • Article 215 declares High Courts to be courts of record and further provides that the High Courts shall have all the powers of such a court including the power to punish for contempt of itself.

Contempt law and Fundamental Rights

Contempt law is in sharp contradiction of the Freedom of Speech and Expression, which is a fundamental right in India.

Article 19 - Protection of certain rights regarding freedom of speech etc.

(1) All citizens shall have the right

            (a) to freedom of speech and expression

            (b) to assemble peaceably and without arms

            (c)to form associations or unions

            (d) to move freely throughout the territory of India

            (e) to reside and settle in any part of the territory of India

            (f) omitted

            (g) to practise any profession, or to carry on any occupation, trade or business

Article 19(1)(a) grants right to freedom of speech and expression to all citizens.

However, the contempt law erodes the freedom to raise voice against the functioning of the court.

Kesavananda Bharati Case

Context:

Recently, Kesavananda Bharati the main petitioner of Kesavananda Bharati Sripadagalvaru and Ors v State of Kerala Case, 1973 passed away.

  • The ruling is considered among the most important decisions by the Supreme Court as it set out the “basic structure” of the Constitution that Parliament cannot amend.

Kesavananda Bharati:

  • He challenged the Kerala land reform legislation in 1970, which imposed restrictions on the management of the religious property.
    • Article 26: The case was challenged under this, concerning the right to manage religiously owned property without government interference.
  • A 13-judge bench was set up (the biggest so far) to hear the case.
  • The question underlying the case also included:
    • Was the power of Parliament to amend the Constitution unlimited?
    • Could Parliament amend, alter, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?

About the case:

  • It was about the Parliament’s power to amend the Constitution.
    • First, the court was reviewing a 1967 decision in Golaknath v State of Punjab which, reversing earlier verdicts, had ruled that Parliament cannot amend fundamental rights.
    • Second, the court was deciding the constitutional validity of several other amendments.
  • The right to property was a major one. It had been removed as a fundamental right, and Parliament had also given itself the power to amend any part of the Constitution and passed a law that it cannot be reviewed by the courts.
  • With the Kesavananda Bharati case the executive vs judiciary maneuvers displayed in the amendments ended.

The judgment of the court:

  • The court held that fundamental rights cannot be taken away by amending them. While Parliament had vast powers to amend the Constitution, it drew the line by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.
    • However, despite the ruling, the court upheld the amendment that removed the fundamental right to property. The court ruled that in spirit, the amendment would not violate the “basic structure” of the Constitution.
  • Kesavananda Bharati, in fact, lost the case. But as many legal scholars point out, the government did not win the case either

Basic structure doctrine:

  • Origins:  The origins are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws.
  • Learning from that experience, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which it considered ‘basic law’.
  • In India, the basic structure doctrine has formed the bedrock of judicial review of all laws passed by Parliament.
  • No law can impinge on the basic structure. What the basic structure is, however, has been a continuing deliberation.
  • Parliamentary democracy, fundamental rights, judicial review, secularism- are all held by courts as basic structure, the list is not exhaustive.
  • It is the Judiciary that is responsible to decide what constitutes the basic structure.

Source: Indian Express

The chilling effect of criminal contempt

1. CONTEXT OF THE NEWS

  • Recently, twitter has "withheld" two tweets by advocate Prashant Bhushan in India on grounds of alleged contempt to court even without a court order to delete the tweets.
  • The court had earlier "suggested" that twitter ought to remove the tweets by itself without waiting for formal order for the court.
  • The tweet in question is a personal remark made by lawyer and social activist Prashant Bhushan about the Chief Justice of India S.A. Bobde riding a very costly motorcycle.
  • The editorial discussed the contempt law in India and abroad. It also analyses its relevance in modern times and in democratic societies.

2. TRYING TIMES

2.1 Priority Cases

  • Presently, the COVID-19 pandemic has virtually halted all activities.
  • Workplace and institutions are slowly and tentatively getting back to normalcy by identifying priorities.
  • On similar lines, the Supreme Court too has to identify priority cases to be taken up first due to the pandemic-constricted schedule.
  • This should not be a difficult task given the number of cases pending before the apex court.
  • Over a dozen of constitutional cases call for immediate attention including the following:
    • constitutionality of the Citizenship (Amendment) Act,
    • the issue of electoral bonds
    • the matter of habeas corpus petitions from Jammu and Kashmir

2.2 Priority Cases for the Supreme Court

  • The umbrage that the court took at two tweets amidst the trying times is utterly disappointing.
  • The court held that the two tweets in question “brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the institution... and the office of the Chief Justice of India in particular….”
  • The Apex Court has further responded by initiating suomotu proceedings for criminal contempt again Prashant Bhushan.

2.3 Monarchical Origins

  • The need to “respect the authority and dignity of the court” has monarchical origins from the times when the King used to deliver judgments himself.
  • The adjudicatory role has however, been transferred to the judges over centuries and this idea of extreme deference to the judges is not very appropriate in a democratic setup.
  • In a 2012 report, the U.K. Law Commission has even recommended the abolition of the law of contempt, which according to the report was intended to maintain a “blaze of glory” around courts.

3. A WIDE FIELD IN INDIA

3.1 Objective of contempt

  • The stated objective of contempt is safeguarding the public interest.
  • Given the nature of adjudication, there is a possibility of denigration of the authority of the Courts and this could lead to the weakening of public confidence in the administration of justice, it is here that the concept of contempt comes in play.

3.2 Definition of Criminal contempt in India

  • In India, criminal contempt has an extremely wide definition and can be easily invoked.
  • To further complicate matters, the Courts have suomotu powers to initiate the proceeding of criminal contempt.
  • In addition, before the amendment of the Contempt of Courts Act in 2006, truth and good faith were not recognized as valid defenses.
  • However, despite truth and good faith raised as defenses, the Delhi High Court sentenced the employees of an Indian newspaper (Mid-Day) for contempt of court for publishing "scandalous" articles and portraying a retired Chief Justice of India in an unfavorable light.

3.3 Trampling on civil liberties

  • Justice V.R. Krishna Iyer famously held the law of contempt has as having a vague and wandering jurisdiction, with uncertain boundaries.
  • Therefore, regardless of the public good, the contempt law might unintentionally trample upon civil liberties.
  • Hence, it comes to the public to determine the extent to which it wants to bear the trample.

4. CONTEMPT LAW AND DEMOCRACY

4.1 Asynchronous with democracy

  • For a democratic setup respecting and recognizing the freedom of speech and expression as a fundamental right, the law of criminal contempt seemingly sounds asynchronous and incompatible.

4.2 Using laws for Chilling effect

  • A liberal exercise of suomotu powers by the courts coupled with an excessively loose use of the test of ‘loss of public confidence’ leads to dangerous consequences.
  • For one, it could reflect the Court signaling that it will not put up with any critical commentary about the institution at all irrespective of how evidently problematic its actions may be.
  • By doing so, the judiciary could find itself at an uncanny parallel with the executive, in using laws for chilling effect.

4.3 Need for a revisit

  • Not only the law on criminal contempt, but even the test of contempt needs to revisit and revaluation.
  • The test, if it were to exist at all, should be limited to check if the contemptuous remarks in question actually obstruct the Court from functioning.
  • The courts should not be allowed to misuse the law of contempt to prevent any and all criticism of an institution.

5. OBSOLETE ABROAD

5.1 Use of the contempt law in foreign democracies

  • In foreign democracies, the contempt law has already become practically obsolete with jurisdictions acknowledging it as an archaic law designed and suitable for the bygone era with no utility and necessity in modern times.
  • In Canada, the test for contempt law is real, substantial, and immediate dangers to the administration.
  • The courts in U.S.A too no longer uses the contempt law in response to comments on judges or legal matters.

5.2 England and contempt law

  • India has inherited the legacy of contempt law from England.
  • However, in England too the legal position on contempt law has evolved.
  • The judges in England have sensibly and judiciously ignored several instances where the contempt law could have been used.
  • The British newspaper the Daily Mail ran a story of three judges who delivered the Brexit ruling with the caption “Enemies of the People”, while many people considered it excessive, the courts chose to ignore it and did not commence contempt proceedings.

5.3 India and contempt law

  • However, in India, the courts are not always inclined to show the same level of maturity as exhibited by their peers in foreign democracies.
  • An exception in point being the time when in response Arundhati Roy’s criticism of the Supreme Court for vacating the stay for constructing a damJustice S.P. Bharucha held that Ms. Roy had brought disrepute to the Court but no contempt proceedings were initiated for “the court’s shoulders [were] broad enough to shrug off [these] comments”.
  • However, the generosity of the court was undone when contempt proceedings were initiated against Ms. Roy for leading a demonstration outside the court and filing an affidavit.
  • The court held her in contempt for “scandalizing its authority with mala fide intentions” and sentenced to a day’s imprisonment, with fine.

5.4 Silencing criticism

  • It is unfortunate that judges believe that silencing criticism will harbour respect for the judiciary.
  • On the contrary, efforts to artificially prevent free speech are bound to aggravate the situation even more.
  • The same was pointed out in the landmark U.S. case of Bridges v. California (1941), “an enforced silence would probably engender resentment, suspicion, and contempt for the bench, not the respect it seeks”.
  • The Courts, for sure would not desire so.

6. CONCLUSION

Recently, the Pakistan Supreme Court hinted at banning social media platforms including YouTube for exhibiting what, in the eyes of the court is ‘objectionable content’ that ‘incited hatred’ for institutions such as the army, the judiciary, the executive, and so on.

This took place simultaneously with the Indian Supreme Court’s decision to commence contempt proceedings against Mr. Bhushan.

Expert has pointed out the eerie similarity between the two sets of observations. This raises serious concerns about the direction in which the Indian Supreme Court sees itself heading.

ADDITIONAL INFORMATION

Contempt law in Indian Constitution

  • Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself.
  • Article 142(2) gives Supreme Court the power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
  • Article 215 declares High Courts to be courts of record and further provides that the High Courts shall have all the powers of such a court including the power to punish for contempt of itself.

Contempt law and Fundamental Rights

Contempt law is in sharp contradiction of the Freedom of Speech and Expression, which is a fundamental right in India.

Article 19 - Protection of certain rights regarding freedom of speech etc.

(1) All citizens shall have the right

  1. to freedom of speech and expression
  2. to assemble peaceably and without arms
  3. to form associations or unions
  4. to move freely throughout the territory of India
  5. to reside and settle in any part of the territory of India
  6. omitted
  7. to practice any profession, or to carry on any occupation, trade or business

Article 19(1)(a) grants the right to freedom of speech and expression to all citizens.

However, the contempt law erodes the freedom to raise voice against the functioning of the court.

Source: The Hindu

The police are in the dock, reforms must start with the political system

Context:

Till recently, Police was in the news for its humanitarian role during the pandemic. It was lauded as “the frontline of the frontline”. PM Modi said that “the human and sensitive side of policing has touched our hearts”.

But brutal custodial death of a father and son in the police station of Thoothukudi district in Tamil Nadu, which led to commenting of UN Secretary-General wanting the incident to be investigated. On top of that, the killing of Vikas Dubey brings back to the surface the governance in-country and on police reform in general.

Root of the problem:

  • Criminals, politicians and government Nexus: Vohra Committee in 1993, submitted a report showing this nexus. It mentioned in the report that “the network of the mafiais virtuallyrunning a parallel government, pushing the state apparatus to irrelevance”.
  • Criminalisation of Politics: The mafiosi, who were earlier supporting the politicians from outside, had decided to enter the fray, by contesting elections.It is a sad reflection on our democracy that the number of members of parliament with criminal background has been going up with every successive election.
  • A/c to Association of Democratic Reforms:

Year

MPs from criminal background

2009

30 %

2014

34 %

2019

43 %

  • No due processes of law: It creates an environment where the criminals who are part of the nexus are able to dodge the due processes of law. Administration turns a blind eye and nexus has proliferated. After all, Vikas Dubey had 62 FIRs against him, including seven of murder and eight of an attempt to murder, and yet he was roaming free.
  • Custodial Death: We can see that these depravities are probably the tip of the iceberg. Statistics reaffirm the epidemic of bad behavior.
    • The National Crime Records Bureau records 853 custodial deaths between 2010 to 2018.
    • National Human Rights Commission puts the death figure much higher at 1, 636. For this, just three policemen have been convicted.

Why there is rise in criminal-Political-Nexus:

  • Use of money and muscle power:
    • National Commission to Review the Working of the Constitution (NCRWC) stated that the high cost of elections creates a high degree of corruption in government machineries.
    • There are a total 88% elected ‘crorepatis’ Parliamentarians in the 17th Lok Sabha.
    • Goswami Committee on Electoral Reforms also highlighted the use of money and muscle power in elections.
  • Lack of political will:
    • The political system is unwilling to change the law or the system and politics presently is in the hands of those who want power for its own sake.
    • A political leader being held responsible for giving ticket to large numbers of tainted candidates with pending criminal cases is going to act as a deterrent for other political parties.
  • Police as a political tool:
    • The police have a strange position in a democracy. But, it is often used as a tool of political power to channelize patronage.
    • The political establishment in power does not want to give up this strong tool of political power.
    • Be it any party, ruling or opposition, all use police power to fulfill their political goals.
  • Casteism and Communalism: People belonging from same caste and religion support politician and criminals from the same group; favour them irrespective of the fact whether they are a criminal. Thus it creates a culture of un-constitutionalism.

Consequences in absence of Political reforms:

  • Bad Governance: The outcome of criminalization in politics is bad governance.
    • Numerous surveys conducted year after year reveals that the Indian citizens are unhappy with the quality of governance.
    • The sorry state of affairs can be estimated from the fact that despite numerous parties forming a government at the Union and State level, governance hasn't really improved, barring a few exceptions.
  • Thoki Raj and Encounter culture: The present political regime in the state of Uttar Pradesh is colloquially known as “thoki raj", owing to the increasing number of encounters in the state.
    • Last year, the police in Hyderabad killed four men in an encounter. The four men had allegedly raped and murdered a woman veterinarian.
    • Political commentators terms such encounters not as clashes but cold-blooded murder by the police
  • Extra-Judicial Killings:
    • The killing of Vikas Dubey has parallels elsewhere but is also unique in the context that he epitomizes both the banality and horror of up politics.
    • Given that the present political culture considers the demand for the rule of law as cruelty and vengeance as humanizing
    • There is no place for extrajudicial killings in a liberal democracy.
  • Distrust towards the police: The police arguably is one of the most distrusted institutions of the Indian state.
    • The privileged sections of the society would rather have a negotiable system than an effective police force.
    • Police reforms are deemed to create more trust towards the police in the eye of the public.
  • Legitimation Crisis of Democracy: Free and fair election, rule of law, democratic culture, good governance etc are salient features of a democracy. But issues like Criminalisation of politics, police cruelty on public, custodial deaths etc creates Legitimation Crisis of Democracy.

Constitutional and statutory Provisions for safeguards:

  • Right to Life: Article 21 of the Constitution states, “No person will be deprived of his life or personal liberty except in accordance with the procedure established by law.”Article 21 mandates the state to put a person on trial in accordance with the provisions of the Criminal Procedure Code before depriving him of his life.
  • Rule of law: Constitution under Article 14 provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The Supreme court also held that ROL is a basic structure of the constitution.
  • Article 32: Indian Constitution under Article 32 gives the right to citizens to move to the Supreme Court to seek justice when they feel that their right has been 'unduly deprived.
  • Article 324: Election Commission is provided with extreme power to conduct free and fair elections, to give level playing field to all candidates, to stop the use of money and muscle power so that democracy strengthens furthermore.
  • Judiciary: Use of Public interest litigation, Special Leave Petition, Article 142: Complete justice provisions, etc. to ensure easy access to justice for people by introducing No Locus standi rule, Suo-moto action for political and police reform by the judiciary.
  • National Human Rights Commission: It is the watchdog of human rights in the country. It overlooks and protects the rights related to life, liberty, equality and dignity of the people as enshrined in the Indian Constitution.

Steps taken so far for reforms:

  • SC ordered all political parties to publish the entire criminal history of their candidates for Assembly and Lok Sabha elections. The Apex court also ordered the political parties to state the reason that drove them to nominate suspected criminals over decent people.
  • Section 8 of the Representation of the People Act, 1951 disqualifies a person convicted with a sentence of two years or more from contesting elections.
  • Lily Thomas Case: SC held that that Section 8(4) of The Representation of the People Act, 1951 is unconstitutional which allows MPs and MLAs who are convicted to continue in office till an appeal against such conviction is disposed of. The court held that MP/MLA convicted for two years or above would be disqualified immediately irrespective of the fact whether they are ministers or not.
  • Association for Democratic Reforms case, 2002: SC held that every candidate, contesting an election to the Parliament, State Legislatures or Municipal Corporation, has to declare their criminal records, financial records and educational qualifications along with their nomination paper.
  • Prakash Singh case for Police reforms: In 2006, SC directed the states and UTs to comply with seven binding directives that would kick start police reform.
  • DGP Appointment: It ensures a minimum tenure of at least two years for the DGP in the state police forces to ensure independence and autonomy to Police
  • Fast track courts for MPs: The Centre has asked states and Union Territories to set up special fast-track courts to try criminal cases pending against MLAs and MPs. 12 fast track courts (FTCs) have been set up in 11 states by the government on the direction of the apex court for speedy trial of cases against lawmakers.

Way out:

  • Law to debar criminals from entering into Politics:  Reforms must start with the political system to break this deadly nexus between criminals and politicians. A law needs to be enacted which debars persons with serious criminal cases from entering the assemblies and the Parliament.
  • Vohra Committee: To set up an institution to effectively deal with the menace of Criminals, politicians, and government Nexus.
  • Criminal justice system: It must be revamped as recommended by the Malimath Committee. 
  • Police reforms: The Supreme Court’s directions on police reforms must be implemented.
  • An integrated institution: An institution comprising representatives of the police/CBI/NIA, Intelligence Bureau, Income Tax department, Revenue Intelligence, and Enforcement Directorate should be set up to monitor the activities of the mafia and criminal syndicates in the country and ensure stringent action against them.
  • Act on the lines of MCOCA: A Central act on the lines of MCOCA should be enacted to curb the activities of organized criminal gangs. 

Different committees on Political and Criminal justice reforms:

1. Second Administrative Reforms Commission:

  • Concept of federal crime: The concept of a federal crime, as recommended by the Second Administrative Reforms Commission, should be accepted and offenses which have all-India ramifications or are trans-national in character, like those of terrorism and organized crimes, should be brought within its ambit.
  • It recommended that Section 8 of RPA needed to be amended to disqualify all persons facing charges related to grave and heinous offenses and corruption, where charges have been framed six months before the election.

2. Malimath Committee on criminal justice system reforms:

  • Borrowing from the inquisitorial systems in countries such as Germany and France where the court is actively involved in investigating the facts of the case.
  • Right to silence- Article 20 (3) needs to be modified which protects the accused from being compelled to be a witness against himself. The court should be given the freedom to question the accused.
  • Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted.
  • Witness protection- The committee recommends a strong witness protection mechanism.
  • No. of Courts and judges to be increased

3. Law commission of India on Political reform:

  • Bring political parties under the ambit of the RTI.
  • Promote internal democracy in political parties.
  • Ensure greater financial accountability of parties
  • State Funding of election model to check black money in elections

Conclusion:

Legislature, judiciary, executive, and police system itself must build an environment where police become an instrument of service to the people, where monsters like Dubey do not thrive and become a menace to society.

It may sound like asking for too much, but we have been discussing the need for such measures for a long time. Is it not time to take up these reforms in the right earnest? The journey of a thousand miles, they say, begins with the first step. Let that step be taken at least.

Source: Indian Express

Creating Order By Trampling On Law

1. CONTEXT OF THE NEWS

The killing of Vikas Dubey and the chain of events leading up to it bring back to the surface the governance or lack thereof in Uttar Pradesh and on police reform in general.

Many Indian states tolerate acts of impunity and selectively suspend the rule of law.

The editorial discusses how the use of strong-arm tactics by the state tramples the creation of law and order.

2. PREVALENT LAWLESSNESS

2.1 Thoki Raj

  • The present political regime in the state of Uttar Pradesh is colloquially known as “thoki raj", owing to the increasing number of encounters in the state.
  • Various reports have shown that as early as February 2018 the UP police were conducting four encounters a day, killing up to 40 people.

2.2 Increasing lawlessness

  • The increasing lawlessness in Uttar Pradesh was evident in the way anti-CAA protests were quelled by arbitrarily attaching people’s properties in ways that had no legal backing and prejudged guilt.

2.3 Use of the National Security Act

  • There is also an increasing tendency of the UP government to deploy the National Security Act against a variety of offenses as if using this Act were imposing a minor fine.
  • Creating order by trampling on law seems to be the new ideological raison d’etre of the state government of Uttar Pradesh.

3. EXTRA JUDICIAL KILLINGS

  • The killing of Vikas Dubey has parallels elsewhere but is also unique in the context that he epitomizes both the banality and horror of UP politics.
  • He allegedly killed eight police officers with impunity and was accused of several heinous crimes.
  • However, he was an integral part of a social and political power structure and served the needs of his political masters.
  • Given that the present political culture considers the demand for the rule of law as cruelty and vengeance as humanizing, there is a big possibility of trivializing this encounter but we should not ignore three points:
    • Firstly, there is no place for extrajudicial killings in a liberal democracy.
    • Secondly, the excuses given for extrajudicial killings even if true are not justified. Judicial infirmity is often cited to justify extrajudicial killings but most of the time, behind judicial infirmity, lies political hand.
    • Thirdly, the assumption of supporting political strong-arm tactics to maintain law and order in the longer run must be questioned as diminishing violence cannot be achieved through extra-judicial means.

4. POLICE REFORMS

The entire episode of events in this recent incident calls for the long-pending police reforms as

  • Protecting the police from political interference
  • Investing in police training
  • Ramping up judicial infrastructure

However, no entity really intends to undertake police reforms for the following reasons:

4.1 Distrust towards the police

  • The police arguably is one of the most distrusted institutions of the Indian state.
  • Police reforms are deemed to create more trust towards the police in the eye of the public.
  • But there is also a fear that empowering or reforming the police amidst the prevalent environment of distrust in the police could also amount to giving more powers of repression to the police.
  • Disempowered groups already suffering at the hands of the police also fear an effective police force as they might lose even the little margins of negotiation they have.
  • The privileged sections of the society would rather have a negotiable system than an effective police force.

4.2 Police as a political tool

  • The police have a strange position in a democracy. It is often used as a tool of political power to channelize patronage.
  • The political establishment in power does not want to give up this strong tool of political power.
  • However, the stand of opposition to police reforms is also not clear.
  • The opposition not only aims to use the same political power one day when they sit in power, but the ad hoc rule of law structure, open to negotiation by community identity, money, violence, and connections, actually fragments power in a democracy.

4.3 Resistance to state

  • No one wants to give the state an actual monopoly over violence.
  • Criminals subvert the rule of law but some sections also see them as power nodes and often deploy them in resistance to the state.
  • Indian democracy survived not just because of a commitment to values, but because this de facto fragmentation of violent power was essential to it.
  • Police reform would mean subverting this entire moral economy of fragmented power.

4.4 Pitiful state of the police

  • It is also reported that in UP Police, more than twice as many policemen were killed on duty as the number of civilians killed by police in the year of study.
  • More shocking is the fact that most of the police deaths were not at the hands of criminals but a result of neglect and poor working conditions.
  • The police are visibly expected by society to publicly stage violence or be implicated in its structures by politicians and at the same time, they are also morally condemned for enacting the norm.
  • Political analysts suggest that the police are marginalized in a moral sense. They are asked to sacrifice and simultaneously condemned morally and legally.
  • The police is both central and marginal to the political order depending on the need of the political establishment.
  • Without a real constituency of police reform, the line between the criminal and the state will remain blurred.

5. FAKE ENCOUNTERS

5.1 Encounter culture

  • Encounters were widely practiced all over India:
    • by the Maharashtra Police to deal with the Mumbai underworld
    • by the Punjab Police against Sikhs demanding Khalistan
    • by the Uttar Pradesh Police during the present political regime
  • Last year, the police in Hyderabad killed four men in an encounter. The four men had allegedly raped and murdered a woman veterinarian.
  • Political commentators terms such encounters not as clashes but cold-blooded murder by the police.

5.2 Provisions of Article 21

  • Article 21 of the Constitution states, “No person will be deprived of his life or personal liberty except in accordance with the procedure established by law.”
  • Article 21 mandates the state to put a person on trial in accordance with the provisions of the Criminal Procedure Code before depriving him of his life.
  • The accused must be informed of charges against him and should be given an opportunity to defend himself (through counsel).
  • Only after undergoing this due process the accused is found guilty, must he be convicted and executed.

6. CONCLUSIONS

Fake encounters and extrajudicial killings circumvent the legal procedure mandated by Article 21 in its entirety. Hence, such encounters are completely unconstitutional.

The argument of judicial infirmity and the justification of such encounters by citing that no one will dare to testify against dreaded criminals who will again roam free, even if true will breed a dangerous culture giving impunity to the police to carry out on the spot justice.

Such culture and practices have no place in a democratic country like India.

Source: Indian Express