By Arun Srivastava

The bill to remove a prime minister, chief minister or any other minister in jail for 30 days, without conviction is awell-designed plot to accomplish the RSS-BJP mission of pushing India to one nation-one party rule. This is one of the alternate choices like the SIR to have saffron idea turn into reality.

It would be naive to construe that this instrument in future would not be misused. The timing of moving the bill in Parliament ought to be seriously taken note. Home minister Amit Shah moving the bill coinciding with SIR virtually on the verge of collapse, has wider implication. Like SIR, the instrument would strengthen and empower the rightist forces and deprive the centrist and secular of the political space they deserve.

According to sources, like all other programmes, the RSS in collusion with the BJP had drew the strategy long back, precisely after comprehending the mood of the people that they have turned anti-BJP. By this time the basic ingredients were already being implemented. He bill on conviction was an alternative idea to the SIR.

The bill seeks to remove a prime minister, chief minister or any other minister in jail for 30 days, without conviction. It will empower its agencies, ED, CBI and others to act recklessly. People are yet to forget the manner in which opposition chief ministers Arvind Kejriwal and Hemant Soren were arrested and made to languish in jail without trial. While granting bail to Soren, Supreme Court had observed; “We don’t want to observe anything more, if we observe you might be in difficulty”

It is a well-known fact that Narendra Modi and Amit Shah had used the judiciary and the judicial provisions during their eleven year rule to scare and finish the opposition leaders. Almost all opposition leaders across India had to become the victim of weaponisation of the judicial process. In this backdrop how any one could subscribe to the Modi or Amit Shah’s explanation that the latest instrument was only meant to check corruption.

Some rightist advocates and academics plead that the arrested persons can apply for bail within the period of 30 days and get released before the expiry of the term. These people no doubt are trying to mislead the people and help the evil design of Modi. We have before us examples of many academics and intellectuals and social activists languishing in the jails without even serving them the chargesheet.

Father Stan Swamy died in jail without trial. On 8 October 2020, Swamy was arrested and charged by the National Investigation Agency under the Unlawful Activities (Prevention) Act, for his alleged role in the 2018 Bhima Koregaon violence and links to the Communist Party of India (Maoist). Judiciary rejected his bail request multiple times. Incarcerated, his health deteriorated and died on 5 July 2021.

Omar Khalid is languishing in jail for more than five years. He was arrested in September 2020, Mr Khalid for being accused as “key conspirator” in violent clashes in Delhi that killed 53 people, mostly Muslims. The February riots in Delhi had occurred amid massive months-long protests against a contentious citizenship law. Two police cases were lodged against Khalid. One case has been dropped, while in the other, he hasn’t been charged in court yet, and the trial hasn’t begun. What has come as a rude shock is the fact that while Supreme Court speaks of bail as right, it has ignored the fact that Khalid has been in jail for more than five years. What is worse he has been arrested under Unlawful Activities (Prevention) Act (UAPA) – a notorious anti-terror law.

There are numerous such cases. These two are rare cases. Moving the bill yesterday in the Parliament, that is too in the midst of country witnessing massive agitation against SIR, exposes the wicked design of RSS and Modi government. Senior advocate Sanjay Hegde holds: “The disqualification is temporary and to the extent until which the person is in jail. One can resume office after release.” But at the same time admits; “However, there is a great possibility of misuse. I foresee strong governments in the Centre misusing it against strong governments in the states.”

Going by Hegde’s observation, by the time the arrested person gets the bail, the game will be over and the political career of the poor guy is finished. This is precisely the intention of Modi and Shah behind bringing the bill. They intend to finish the political career of the opposition leaders and make India a country of one party, one nation and one election. SIR in reality was brought in vogue with this aim. But Rahul’s expose has turned it redundant. Now they are trying to experiment with the conviction bill.

Senior Supreme Court advocate Indira Jaising is right in her observation: “In a country where criminal law is used for persecution, not prosecution, and as a tool for eliminating all Opposition parties, the proposed constitutional amendment is also weaponising the Constitution itself. When the ED and the CBI are under the direct control of the central government, federalism gets destroyed.”

Saffron ecosystem claim of exterminating corruption by bringing in constitutional amendment is purely a farce and meant to fool people. It once again enforces the fact that Modi and Amit treat the Indians as idiots and fools. It is an open secret that Amit Shah has been instrumental in allowing passage and inducting the corrupt politicians into BJP. All these turncoats by virtue of their closeness to Amit Shah have been ruling the roots in their states, whether it is Maharashtra, Bihar, UP, Bengal or MP. They dictate the political course of the party in their states. A common phrase moves around in the political circle: BJP is a washing machine for all the corrupt politicians”.

Really it is outrageous to think that Modi and Amit Shah would eradicate corruption. This constitution amendment bill simply aims at turning India a meadow for the saffron brigade. With all the opposition or even rebel BJP leaders in jail or disqualified, Modi and Amit will help RSS to implement its plan of one-party rule.

Their track record of punishing the so called people makes it explicit. Out of 193 cases registered by the ED against political rivals of the BJP, only two have ended in conviction, proving that 191 cases are false and foisted for political reasons. Satyendra Jain of AAP had to spend two years in jail without any charge. Bracketing the prime minister along with chief ministers and other ministers is the biggest joke cracked by RSS and BJP. The saffron ecosystem played to this gallery gimmick only to convince the people of its sincerity and seriousness.

Can anyone imagine that a prime minister would be arrested for helping Adani or any other big corporate honcho. For arresting prime minister, the sanction has to be obtained from the President that is too on the advice of the Union cabinet. Is it feasible? Can the cabinet ministers bell their leader? With the passing of the bill, India will turn into a police state in which constitution is irrelevant. AIMIM’s Asaduddin Owaisi was correct in saying that the bills were aimed at creating a Gestapo, the secret police of Nazi Germany. India will also cease to have a criminal justice system with judiciary failing to muster courage to confront the political rulers.

West Bengal chief minister Mamata Banerjee banged the Constitutional Amendment Bill as a move “more than a super Emergency” and “a Hitlerian assault on the very soul of Indian democracy”. While proclaiming that the dangerous outreach ought to be resisted, she described the bill as “death knell for democracy and federalism in India which seeks to empower the Union to intrude upon the mandate of the people, handing sweeping powers to unelected authorities (ED, CBI – whom the Supreme Court has described as ‘caged parrots’) to interfere in the functioning of elected state governments.” According to her, “It is a step to empower the Prime Minister and the Union home minister in a sinister manner at the expense of the basic principles of our Constitution and strip the judiciary of its constitutional role.”.She was speaking the truth. (IPA Service)

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By K Raveendran

Narendra Modi is not a friend of Chief Justice D Y Chandrachud; nor is he a family member of the CJI. Had Modi fulfilled either of the conditions, his presence at the Ganesh Pooja organized by the Chief Justice would have been fine. Considering that the CJI is also a private person, there is nothing wrong with his performing the pooja, but inviting the prime minister for the event is the height of indiscretion on the part of the CJI, surpassed only by Modi’s acceptance of the invitation.

The BJP has defended Modi’s attendance as a cultural gesture rather than any kind of political engagement. However, the optics of the Prime Minister participating in such an event have inevitably been compared to his role in the Ram Mandir consecration at Ayodhya. The symbolism of Modi’s presence in both contexts raises questions about the potential for these events to influence political dynamics and perceptions.

The presence of a sitting Prime Minister at a religious ceremony hosted by the Chief Justice is unprecedented. On one hand, it can be seen as an attempt to bridge the gap between the political and judicial spheres through shared cultural practices. On the other, it risks undermining the neutrality and independence that are cornerstones of the judiciary’s role in a democracy.

Senior legal experts and commentators have expressed concerns regarding this event. They argue that inviting a high-profile political figure like Modi could be perceived as compromising the Chief Justice’s impartiality. The judicial system relies heavily on public perception of its neutrality; thus, any action that might suggest otherwise can have far-reaching consequences.

Activist advocate Indira Jaising, criticised the visit on social media, claiming it compromised the independence of the judiciary. She went to the extent of calling upon the Supreme Court Bar Association to condemn the event, asserting that such public displays blur the lines between the judiciary and the executive.

Prashant Bhushan described the development as a ‘bad signal’ about judiciary’s responsibility to safeguard citizens’ fundamental rights and ensure the government adheres to the Constitution. He further cited a ‘Code of Conduct for Judges’, which required a judge to practice a degree of aloofness consistent with the dignity of the office and implied that the CJI’s conduct was ‘unbecoming of the high office he occupies and the public esteem in which that office is held’.

The BJP’s justification of Modi’s attendance as a cultural engagement simply fails to make the grade. While cultural engagement is an integral part of Indian society, the context of the event and the roles involved are crucial. The Chief Justice, by virtue of his position, represents the judiciary, which is expected to maintain a certain distance from political influences. Modi, as the head of the government, represents the executive branch. Their intersection at such an event could be seen as a tacit endorsement or endorsement of mutual interests, whether intended or not. It is essential for both the judiciary and the executive to maintain a clear distinction between their roles and responsibilities to uphold the principles of democracy and fairness.

Uddhav Thackeray’s Shiv Sena has used the development to take potshots at both the CJI and the prime minister. Shiv Sena MP Sanjay Raut asserted it created doubts in the minds of people about the impartiality of the judiciary. Thackeray’s Sena has every reason to feel upset as a bench headed by the Chief Justice is hearing the crucial case in which it has challenged the Maharashtra Speaker’s decision to recognize the faction led by chief minister Eknath Shinde.

In fact, Raut has asked the CJI to recuse himself from the case as PM is a party to the case as BJP is a partner in the Eknath Shinde government. “Our case of Maharashtra… the hearing is going on before CJI Chandrachud, so we have doubts if we will get justice because the PM is the other party in the case. The Chief Justice should distance himself from this case because his relation with the other party in the case is openly visible. Will CJI Chandrachud be able to give us justice in such a situation?” Raut wondered.

The Ganesh Pooja controversy has thus an unseemly context. it is crucial for public figures to be mindful of the implications of their actions. The separation of powers and the independence of institutions are fundamental to the functioning of a democratic society. Ensuring that these principles are upheld requires careful consideration of the optics and potential consequences of high-profile engagements. (IPA Service)

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By K Raveendran

Even five years after the historical ‘national duty’ press conference by four judges alleging undesirable practices including ‘bench hunting’, the problem continues to be the bane of Indian judiciary. All the four judges have retired for long, but many of the problems they raised persist, undermining people’s faith in the system.

Bench hunting works both ways, sometimes in looking for pliable benches and at other times in avoiding judges or benches whose perceived independence can be detrimental for the interests of those who want judgments to go in a certain way. It was only the other day that Justice K M Joseph, hearing Gujarat riot rape victim Bilkis Bano’s petition challenging the remission of jail term of convicts by the state government, along with fellow judge B V Nagarathna, expressed anguish at the way the proceedings were sought to be thwarted on behalf of the convicts through what senior counsel Indira Jaising described as bamboozling tactics.

“It is apparent that the counsel appearing for the convicts do not want this hearing to take place. Every time the matter will be called up, one person or the other will come and say that he needs time to file a reply. It is more than obvious,” Justice Joseph said. “It is somewhat clear what is being attempted here. It is obvious, rather more than obvious, that you all do not want the hearing to be conducted by this bench,” the judge, whose last working day retiring on the 19th of this month before the court closes for summer vacation, said in frustration.

It was the bench headed by Justice Joseph that admitted Bilkis Bano’s petition, after the Supreme Court itself had rejected several other similar pleas challenging the remission of jail sentence of the convicts. The bench of Justices Joseph and Nagarathna issued notice to the Union government and the state government, calling for all the relevant files, but both governments failed to do that, saying they were planning to move a petition for reviewing the decision. But given that Justice Joseph is set to retire before the petition is taken to its logical conclusion, solicitor general Tushar Mehta informed the court that the records would be produced before the court.

Why the governments want to avoid Justice Joseph’s bench is quite obvious. He has been credited with several judgments of far-reaching political implications, including his 2016 ruling which struck down president’s rule in Uttarakhand and paved the way for Harish Rawat-led Congress government to come back to power. Justice K M Joseph’s rulings have set important precedents in a variety of areas, from constitutional law to civil liberties to environmental protection to human rights. His judgments have had a profound impact on the Indian legal system through his pattern-based judgments. His judgments have been characterized by a focus on the larger picture, rather than on the individual facts of a case. This approach has enabled him to make decisions that are more consistent with the principles of justice and fairness.

Justice Joseph’s strong stance on hate speech, calling it a ‘cancer’ that must be eradicated from society, will be considered a landmark in judicial activism. In a recent ruling, Justice Joseph declared that hate speech is a serious threat to the social fabric of our nation and that it must be addressed with utmost urgency and that the government must take steps to ensure that hate speech is not tolerated in any form. The ruling is particularly significant as hate speech is being increasingly used to incite hatred and violence against people based on their race, religion, gender, or other characteristics.

It is high time the Supreme Court addressed attempts by perpetrators to subvert due process of law by misusing the court’s leniency and rules of procedure to restore the faith and confidence of citizens in the country’s judiciary.  A case before the highest court of the land involving the possible trial of a serving chief minister has been continuously postponed for the 33rd time on one pretext or the other, raising serious doubts about the independence of judiciary. It is not enough that justice is done, it has to be seen to be done if the judiciary expects people to have faith in it.

While there is an obsession on the part of all concerned about the rights of the defendants, the same consideration is often denied to the victims, making the entire system lopsided. It is high time this aberration is corrected so that the highest judiciary performs the exalted role that people expect it to play in the interest of justice and fairness. (IPA Service)

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By Indira Jaising

On January 10,  a curative petition was filed by the Union of India versus the Union Carbide Corporation (‘UCC’), and American Chemical Corporation now owned by Dow Chemical Company, an American multinational chemical corporation, pertaining to the Bhopal Gas Disaster.

The disaster occurred on December 3-4, 1984 and the victims have been agitating for compensation and medical treatment since then. The case wound itself through several courts, both in the U.S.A. and in India. In 1985, Judge J.F. Keenan of a district court in New York held on the basis of the doctrine of forum non convenience that the forum to hear the cases for compensation was India and not the U.S.A., although UCC was headquartered in the U.S.A. and all the evidence of standards of safety to be maintained at the gas plant in Bhopal was available in the U.S.A. at the UCC plant. Eminent lawyer, the late jurist and economist Nani Palkhiwala had filed an affidavit in the U.S. court to the effect that India had the necessary legal infrastructure to hear the case and hence the case should be heard in India.

It was only after this that the claims came to be heard in Indian courts. One wonders whether his analysis was at all correct, having regard to the fact that 38 years later, the Supreme Court today heard a curative petition asking for the reopening of the settlement between the Union of India and UCC.

It was jurist and senior advocate Fali S. Nariman who represented UCC at that time in the Supreme Court of India on a special leave petition filed by the Union of India against the interim order of the High Court, upholding the order of the district court granting interim compensation to the victims. The district court had ordered 350 crore rupees to be disbursed to the victims, which on appeal was upheld, but the amount was reduced to 250 crore rupees. This was challenged by the Union of India and the UCC.

It is worth recalling that since then, Nariman has regretted taking up the brief. However, neither UCC nor Dow acknowledge the criminal negligence that led to the death and destruction caused on that account and continue to oppose the reposing of the settlement tooth and nail. It is also worth recalling that the interim order was truly unique in that the district judge and the high court had both relied on the fact that it was now a matter of routine in the United Kingdom in suits for damages for personal injury to grant interim damages, and the interim order had a sound legal basis.

In the Supreme Court, without notice to the victims, the Union of India, represented by the then Attorney General for India K. Parasaran, entered into a settlement dated February 14-15, 1989 with UCC. The parties agreed that all criminal proceedings would be dropped and a sum of USD 470 million dollars would be given to all victims in a “full and final” settlement of all dues The brief written settlement was accepted by a Supreme Court bench headed by then Chief Justice R.S. Pathak, who later become a judge of the International Court of Justice.

The victims were so outraged that they approached the court to reopen the case on multiple grounds, including primarily that they were not heard and that the number of victims was not quantified.

Meanwhile, a petition filed by the late journalist RajkumarKeswani (the only journalist who had warned a few months earlier, in a series of three articles, that there was a disaster waiting to happen at UCC Bhopal due to neglect of the plant) challenging the validity of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 was pending at the Supreme Court and was yet to be decided when the settlement was signed. The challenge was to the power of the Union of India to supplant the victims and give to it the authority to litigate on their behalf .It was by virtue of this authority that the settlement was signed by the then Attorney General on behalf of the victims. They were never heard and the order of the court was delivered behind closed doors in the chambers. The victims learnt through the press that all their claims were “settled”

The Bhopal Gas Pidit Mahila Udhyog Sangathan filed a review petition on the ground that they were not heard, and the Bhopal Gas Pidit Sangharsh Sahyog Samiti filed a writ petition challenging the settlement. The Union of India then filed a review petition, led by the late jurist Soli J. Sorabjee, who was then the Attorney General for India. In an ex post facto justification, a Constitution bench of five judges, on May 4, 1989 held that it was informed in chambers that the figure of USD 470 million dollars was for 1,02,000 injured and 3,000 dead persons.(these figured of injured and dead came on record for the first time in the review petition ). It further held that in the event that it was established that the figures exceeded this, the claims could be reopened.

“If, owing to the pre-settlement procedures being limited to the main contestants in the appeal, the benefit of some contrary or supplemental information or material, having a crucial bearing on the fundamental assumptions basic to the settlement, have been denied to the court and that, as a result, serious miscarriage of justice, violating the constitutional and legal rights of the persons affected, has been occasioned, it will be the endeavour of this Court to undo any such injustice. But that, we reiterate, must be by procedures recognised by law. Those who trust this Court will not have cause for despair.”

Obviously, the challenge to the validity of the Act authorising the right to represent the victims should have been heard before the settlement was signed. Hence the settlement was kept in abeyance while the validity of the Act was decided. On December 22, 1989, a Constitution bench of the Supreme Court held that the Act was valid, subject to the condition that victims were heard and interim relief was given to the victims by the Union Government of India (The court further held that the victims should have been heard before the settlement was entered into).

It is this observation which is the basis of the instant curative petitions in which the Union Government argues that the number to victims far exceeds the number anticipated in the settlement, and hence, there is a caste of reopening the settlement and direct UCC or its successor-in-interest, Dow Chemicals, to increase the amount of settlement commensurate with the number of victims found to be injured or dead.

In a separate judgement dated October 3, 1991, the court held that the parties had no right to agree to quash of the criminal proceedings and hence, they were restored. It is a matter of great concern that criminal proceedings are pending before the Sessions court in Bhopal, while American businessman Warren Anderson, the Chairman of UCC, was allowed to escape to the U.S. He has since died, and the criminal proceedings against him have abated.

Meanwhile, from 1992 to 2004, the actual claim of the victims running into one million in number were adjudicated, and a final figure of 5,75,000 victims were recognised as having suffered various degrees of injury and died. The number of victims was considerably higher compared to the number on which the settlement was based. Obviously, there was a case for re-opening of the settlement based on the Supreme Court order of May 4, 1989.

On December 22, 2010, two curative petitions were filed, one seeking a reopening of the settlement of 1989 on the ground that the actual number of victims far exceeded the estimated number; the other sought to change the prosecution from being under Section 304A (causing death by negligence) of the Indian Penal Code to Section 304(ii) (punishment for culpable homicide not amounting to murder). The latter was rejected.

What survives to be decided is the curative petition to enhance the compensation on the fact that the number found to be injured and dead is 5,75,000, which is far more than the estimated number on which the settlement was based .

The Union of India, represented by Attorney General R. Venkatramani, has informed the court that it intends to pursue the curative petition and demand a reopening to enhance the compensation on the ground that the number of victims exceeds the estimated number. Impleadment applications have been filed by the victims organisation. It is these petitions which came up for hearing today.

Even if the court does reopen the settlement, the litigation is not likely to end there.

It remains to be seen whether the Supreme Court will honour the pledge made to the victims on May 4, 1989, in some measure, undoing the damage that was done by the acceptance of settlement signed behind their back. In 2010, the Union of India estimated the amount to be around 7,000 crore rupees.

Even if the court does reopen the settlement, the litigation is not likely to end there. There is a special leave petition filed by the victims still pending in the Supreme Court, in which they argue that the government has underestimated the injury caused to them. Those who have suffered major injury have been categorised as having suffered minor injury, and the number of dead is far larger than those who are acknowledged as dead. If the victims succeed in their contention, the settlement will require yet another reassessment.

Medical records which were directed by the Supreme Court to be computerised have not yet been computerised. As a result, the true picture of injured and dead is not before the court. Contempt proceedings have been initiated before the Madhya Pradesh High Court, which are still pending. Meanwhile, the victims question the categorisation of the nature of the injury suffered by them, as recorded in the order of the claims court. The end of the tragedy, which took place on December 3 and 4 in 1984, is nowhere in sight. (IPA Service)

Courtesy: The Leaflet

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By K Raveendran

Supreme Court Chief Justice D Y Chandrachud has elucidated his concept of ‘equal‘ and ‘modern’ judiciary, free from colonial hangovers, in which there would not be any subordinate judges, often used in the context of district courts, but only judges of equal worth, irrespective of where they serve.

The district judiciary is the core and cornerstone of the judicial system and there is need to inculcate a sense of worth at that level, the CJI emphasised, at the same time noting that there is a generational as well as demographic shift in judiciary, in which the new generation of young judges talk to the members of the higher courts on a footing of equality because that shows ‘where India is going’.

While the exposition leaves hint to what is generally the approach of the new chief justice, whose tenure is looked upon by legal circles as one that is going to be epoch-making, it also provides insights into how Justice Chandrachud looks at issues that come up before the apex court in the days to come. A liberal to the core, he has already delivered judgments that stand out in terms of commitment to constitutional guarantees, right from personal freedom and liberty to the functioning of the state. Many more such landmark judgments may be in store as the incumbent CJI has a tenure with unmatched longevity going by the frequent changes at the top of Indian judiciary in recent years.

Justice Chandrachud has to content with issues of colonial hangover in his own court, where there is a lot of discrimination among lawyers in the name of seniority. Designation of senior judges has been a controversial practice ever since the transfer of power from the colonialists to the natives, who are finding it difficult to let go of some of the prejudices and privileges followed by their erstwhile masters.

The process of designating senior advocates has been attacked time and again by legal circles and academicians who find  in it vestiges of an archaic and feudal order, nourished by unhealthy tendencies such as arbitrariness, favouritism, nepotism and elitism that leads to exclusion of a large section of lawyers who cannot claim legacy to any parentage of standing or exposure. It has been notoriously bracketed with the British system of Queen’s Counsel, a kind of ‘old boys club’ of highly-paid barristers.

Senior as a prefix brings certain exclusive privileges to the claimants, ensuring priority treatment at official functions and more seriously the right to first audience in court hearings. This even has a bearing on the public perception about the seniors, with litigants feeling more secure due to the apparent clout that they enjoy in the system. Even to visually distinguish the seniors, their gowns have a different style of their own.

The son of a former chief justice of India himself, it will be a tough call for Justice Chandrachud to move against the highly abused system of senior advocates in the Supreme Court as well as high courts.  Over the years, the Supreme Court has made attempts to reform the system, but problems in the selection process persist, with the general conditions for eligibility as senior advocate continue to be as vague and opaque as before.

It has been found that process lacks consistency in the criteria followed in the designation of senior advocates, in which considerations other than merit acquired more weightage. Activist advocate Indira Jaising, a senior herself, has been in the forefront of fighting the system of designating senior advocates as arbitrary, discriminatory and violative of equality before law. What matter most in deciding eligibility often turn out to be the networking ability and contacts of the aspirants rather than calibre.

A PIL filed by Indira Jaising had complained that the current system leads to the monopoly of a few senior counsels at the bar, which in turn made legal services by senior lawyers unaffordable and out of the reach of the ordinary people.

This is a fit case for Justice Chandrachud’s ‘equal and modern’ judiciary to be taken up as a priority because any more time lapsed will mean perpetuation of injustice and inequality and going further and further away from the concept elucidated by the new CJI. (IPA Service)

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