The Hindu October 17,2007
Before issuing warrants, says court
New Delhi: Issuing guidelines to trial courts and the High Courts, the Supreme Court has said a non-bailable warrant (NBW) should be issued to bring a person to court when a bailable warrant is unlikely to have the desired result.
“This could be when: it is reasonable to believe that the person will not voluntarily appear in court; or police authorities are unable to find the person to serve him with a summons; or it is considered that the person could harm someone if not placed in custody immediately,” said a Bench comprising Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran and Dalveer Bhandari.
Order set aside
The Bench was setting aside an order of the Uttarakhand High Court, which issued NBWs to secure the presence of two office-bearers of the Sanatan Dharma Pratinidhi Sabha on the basis of a criminal complaint against them.
Writing the judgment, Justice Bhandari said personal liberty was paramount. “Therefore, we caution courts to refrain from issuing NBWs. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants.”
The Bench said, “There cannot be any straightjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of a heinous crime and it is feared that he is likely to tamper with or destroy evidence or is likely to evade the process of law, issuance of NBWs should be avoided.”
It said, “As far as possible, if the court is of the opinion that a summons will suffice in getting the appearance of the accused in the court, summons or bailable warrants should be preferred. Warrants, either bailable or non-bailable, should never be issued without proper scrutiny of facts and complete application of mind, due to serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.”
Wednesday, October 17, 2007
Friday, August 03, 2007
Report of NHRC Committee on Missing Children
July 2, 2007
Deeply concerned with the manner in which young children went missing from Nithari village in Noida, UP, the National Human Rights Commission constituted a Committee on February 12, 2007 to examine the issue in depth. The Committee was also to evolve simple and practical guidelines so that the Commission can come up with appropriate recommendations. The Committee held wide ranging consultations with various stakeholders in government, including Ministry of Home Affairs, Ministry of Women & Child Development, Ministry of Labour, Ministry of Social Welfare, Delhi Government, Delhi Police, National Crime Records Bureau, UNICEF and leading NGOs in India working in this field and also experts having indepth knowledge of the subject.
After carrying out intensive consultations the NHRC committee came out with the following recommendations which would be forwarded to relevant authorities across the States and Union Territories and also to the Government of India so that tracing and restoring missing children back to their families would become an easier task.
Recommendations/Suggestions of the NHRC Committee
1. PRIORTY ISSUE: Irrefutably, the problem of 'Missing Children' is a grave matter which is also a human rights issue. It is acknowledged that it has not been received the attention it deserves from the government and society at large. Therefore, this issue needs to be made a "priority issue" by all stakeholders, especially the law enforcement agencies. The Directors General of Police of States should take appropriate steps to issue police orders/circulars/standing instructions etc., sensitize all officers in this regard and also make them accountable.
2. MISSING PERSONS SQUAD/DESK IN POLICE STATIONS: The Committee recommends that every Police Station across the country should have Special Squad/Missing Persons Desk to trace missing children. This Squad/Desk should have a Registering Officer who should be made responsible of registering complaints of missing children. He/she should maintain complete records of efforts made by them to trace missing children as well as by the Special Squad. The Registering Officer should also write incident reports and keep them on record in Station Diary/case diary, as the case may be. In addition to this, the Registering Officer should also work as an Enquiry Officer whereby he/she should be made responsible for following up the entire procedure of tracing/tracking the missing child. The JAPU (Juvenile Aid police Unit) can, if required, be utilized for addressing the issue of missing children, even though the children who are missing can never be labeled as juveniles, but are, in fact, children in need of care and attention. The functioning of this unit/squad should be regularly monitored/ reviewed by Senior Officers and wherever necessary timely instructions and assistance should be provided to the Registering-cum-Enquiry Officer.
3. COURT DIRECTIVES: There is a need to reiterate the implementation of the Supreme Court Guidelines given on 14/11/2002 in Writ Petition (Cri.) No 610 of 1996 filed by Horilal Vs. Commissioner of Police, Delhi & Ors. in all police stations across the country. This would entail prompt and effective steps for tracing missing children.
As per the directions given by the Delhi High Court, a Cell relating to missing persons/children was set up in the Central Bureau of Investigation (CBI). This Cell has been functioning ever since but due to lack of adequate resources, desired results could not be achieved. Since the CBI is a Central investigating agency having powers and jurisdiction to take up cases of inter-state and international ramifications, it would be desirable to strengthen this Cell to enhance its capacity to coordinate and investigate criminal cases relating to missing children and persons.
4. ROLE OF DISTRICT ADMINISTRATION: The legislation enjoins upon the district administration in the country to get places where children are employed, periodically inspected. The Committee notices with deep anguish that in this task the district administration all over the country has failed. This is evident from the fact that even today, the number of children found engaged as domestic help and bonded /child labour is enormous. Again, it is a matter of concern that in the identified cases of child labour and bonded labour in which prosecutions are launched against the employer the conviction rate is not even 1 per cent which obviously has resulted due to lack of supervision. Such an apathy towards this vital issue has to be curbed in favour of a proactive approach. The Committee urges the authorities concerned to hold district administration accountable for dereliction in discharging this responsibility.
The Committee is of the opinion that this exercise of regular inspections, if undertaken with all earnest, will ensure linking back a large number of children missing from their homes.
5. MANDATORY REPORTING: The State Police Headquarters should evolve a system of mandatory reporting whereby all incidents of missing children across the country should be reported to the newly constituted National Commission for Protection of Child Rights (NCPCR) within 24 hours of occurrence. Failure to report promptly would give rise to the presumption that there was an attempt to suppress the incident. The reporting should be done promptly and the procedure could be the same as is being followed by the concerned authorities for reporting custodial death cases to the NHRC.
6. INVOLVING PANCHAYAT RAJ INSTITUTIONS (PRIs) ETC: In order to make the investigative procedures concerning missing children more transparent and user-friendly, it would be preferable for the police investigating team to involve the community at large, such as representatives of Panchayati Raj Institutions / Municipal Committees/ Neighbourhood Committees/Resident Welfare Associations, etc, in addition to existing help lines. This will enable the community to get fully involved along with the police in tracing missing children. The Directors-General of Police should seriously consider taking full advantage of these agencies in the task of not only investigating crimes relating to children but also in tracking down missing children. The role of Panchayats and such bodies should be extended to:
· Prompt reporting of missing children;
· Prompt dissemination of intelligence, if any, to the law enforcement agencies;
· Rendering assistance to law enforcement agencies for tracing children;
· Provide timely feed-back to the law enforcement agencies about the return of the child..
7. INVOLVING NGO's: In places where vulnerable groups of children are found in large numbers, there is need for enforcement agencies to evolve some kind of a mechanism in partnership with non-governmental organizations and social workers, whereby apart from rendering counseling to them, awareness raising activities are also carried out. This would not only instill confidence in them but also strengthen them and give them special protection so that they are in no way lured by external agencies/factors. This initiative could be taken by the Missing Children Squad/Cell in the Districts. The DGPs need to ensure action on this initiative.
8. NATIONAL DATABASE AND MONITORING: NCRB should establish a National Tracking System that would encompass the grass-root level in locating and tracing missing children. There should be prompt reporting of not only missing children cases, but also of return/rescue/recovery. All instances where children are rescued from places of exploitation including places of sexual exploitation and also exploitative labour, should be dovetailed into the NCRB data base. The database should be updated on a regular and systematic basis. This also involves revising the reporting format with respect to the rescue and recovery of persons who have been trafficked. The Director NCRB should liaise with the Project Coordinator, Anti Human Trafficking UNODC, New Delhi and workout the format as the UNODC is working in the field of empowering law enforcement agencies and developing appropriate projects etc. with respect to Anti Human Trafficking and related issues. This could be made effective through web-based and other intra and inter State networking linkages. The information that is gathered ought to be appropriately disseminated. It is suggested that the NCRB evolve one-page useful position papers that has information with regard to various crimes, including the relevant statistics. This could be useful and accessible tool for different agencies that are dealing with a particular problem. For example, relevant information relating to missing children, if it is put in a page or two will be far more accessible and readable for all stakeholders than information complied as part of a voluminous report prepared by the NCRB.
9. SCRB/DCRB: There is an urgent need to revive State/District Crime Records Bureax. The database on missing persons, their return and the processes involved should be properly documented. The State Missing Person's Bureax (MPB), needs to be revamped, made functional and strengthened. The officers should be well trained and knowledgeable to address the issues in an analytical manner and from the perspective of Human Rights. The SCRB and the MPB should have proper liaison between them, so that the database of SCRB and NCRB are dovetailed to the functioning of MPB and the Special cell/ squad to be set up in the Police Stations. The MPB data should be specifically updated with the data of rescued children from trafficking crimes.
10. HELPLINE: There is a need to establish a Child Helpline through NGOs/PRIs/other agencies with adequate support from Government in all the districts. The Department of Women & Child Development, Govt. of India, may take the initiative to set up such a national network.
11. OUTSOURCING PRELIMINARY INQUIRY TO NGOs: The NHRC Committee came to know about several instances where NGOs are actively functional, delivering the best results, in tracing missing children and also documenting them. Such efforts and initiatives have supplemented the work of the law enforcement agencies. The synergy of police and NGOs can be of immense help in addressing this issue and in providing tremendous support to the police agencies who are preoccupied with several other tasks, especially in those places where the police station strength is very poor. Therefore, Preliminary Inquiry into missing persons could be outsourced to NGOs, who are willing to undertake this task. MHA may issue appropriate guidelines to the States in this regard. Each State can identify a few such NGOs and notify them if required. As of today nothing stops NGOs from causing such inquiries and many are already doing this work. Therefore, the best option, in the given situation, is to develop synergy between the law enforcement agencies and the NGOs and institutionalize this partnership.
12. COGNIZABILITY OF THE EVIDENCE: As of now the issue of missing children is not a cognizable offence and the very fact of missing of a child does not convey occurrence of a crime. However, some States like Andhra Pradesh, Tamil Nadu allow police to register FIRs and take up investigation. In order to facilitate proper enquiry/investigation, it is advisable that an FIR is registered by the police with respect to the issue of missing children. However, experience shows that in many cases a child may not have gone missing and the panic reaction of the parents or wards lead to such reporting. Therefore, all such issues may not warrant registration of an FIR immediately. Nevertheless, it is advisable to register FIR if a missing child does not come back or is not traced within a reasonable time. The State Governments are advised to consider issue of appropriate directions to the law enforcement agencies to set a time limit of 15 days from the date of reporting that if a missing child is not traced back within 15 days, a presumption may be made of some malafide and an FIR registered with respect to all such issues of missing children.
13. SENSITIZATION OF STAKE HOLDERS: There is a need to sensitize all ranks of police personnel and other stakeholders to the issue of missing children. For this a two-day module be designed by BPRD, so that uniform training is imparted to all concerned. Along with this, there is a need to prepare suitable reading material that includes good practices about missing children from other States/Union Territories as well as other countries.
14. RESCUE OF CHILDREN IN NEED OF CARE AND ATTENTION: There is a need to identify "run away children", "abandoned children" "neglected children" and such "vulnerable children" who are often found roaming around places where they are particularly exposed to abuse and exploitation such as railway stations, traffic junction etc. Their vulnerability increases due to a lack of support structures - family or otherwise. Proper identification, provision of care and support, and a 'safe place' is vital for them. These children are, under the JJ Act, are the children in need of care and attention which they should be given. This can be achieved by producing them before CWC and ensuring proper care in the concerned Homes. If Government Homes are not available, Government agencies should support appropriate NGOs to set up such Homes. The State Governments are called upon to notify such NGOs immediately so that they can become functional without delay. States should ensure that such notifications are done on a time frame of one month from the date of application by the NGOs.
15. I-CARD FOR CHIDREN: The local administration should facilitate the schools to keep a watch on their children, especially when they become untraced or become dropouts. Schools and old teaching institutions should introduce photo identity cards of children, so that tracing is possible. All such photos with identity particulars be documented and data base be developed urgently. The State Governments and the Central Government should take initiatives in this regard. Schools should embark on a programme of empowering the children on their rights, legal strengths and defence mechanisms in case of need.
16. POVERTY ALLEVIATION MEASURES: It is acknowledged that poverty is one of the main factors in pushing children into inhospitable conditions and making them vulnerable for exploitation. The Central and State Governments have introduced several schemes to be implemented at Gram Panchayat level with the object of providing job opportunities to the poor and the disadvantaged and elevating them from the poverty line. All these programmes, especially concerning children welfare should be properly planned at the Gram Sabha level following the Antyodaya approach. Schemes such as Mid-day Meal Scheme, Sarva Siksha Abhiyaan, Health Immunization etc. deserve to be properly monitored for achieving optimum results. Proper implementation of these poverty alleviation programs are indeed a human rights approach. If such schemes and programmes of the Government are implemented it can be reasonably expected that the vulnerable sections will become empowered to resist exploitation that often takes place now.
17. ROLE OF STATE COMMISSIONS: There is a need to involve State Human Rights Commissions, Women Commission of State/ Centre etc., with regard to the issue of missing children. Such bodies have tremendous overarching influence on all stakeholders in addressing the issues appropriately in their respective jurisdictions.
18. ROLE OF MEDIA: In view of the current dreadful situation, the media can play an important role in increasing public awareness of missing children and the plight of the thousands of hapless families whose children are listed as untraced. This could be achieved as follows:
§ At the newsroom level, crime reporters and metro editors need to include the category of missing children as a regular beat and as part of their daily news grind.
· These stories need to be followed up and tracked regularly just like other stories of murder, human trafficking, etc. A LOST and FOUND series could be commenced. The cases of missing children being traced/returned home should be treated as the ``good news" stories which will also encourage the police/local authorities to step up their actions.
· The large picture story on the enormity of the continuing malaise of missing children, could coincide with Human Rights Day, Children's Day and so on.
· Newspapers can make a separate section in their classified sections on missing children. The notices and advertisements on missing children need to have a better display and be given more prominence and space in newspapers and TV bulletins.
· Just as some newspapers carry a daily/weekly count of say, victims of terrorism, a new slot of missing children in the city/country can be commenced.
· Newspapers or TV channels with an emphasis on local news can have an arrangement with either the police or a local NGO, which has worked in the area to print without charge announcements and advertisements on missing children.
· The missing child story should also be picked up for the daily crime shows many TV channels have commenced. Just as investigative stories are done on the flesh trade, on organ smuggling etc. case studies of how missing children end up in brothels or factories can be carried. Cases can be picked from solved cases or; where children were smuggled across borders. Identities can be masked if need be.
· Media organizations like media unions, the women's press corps and so on can collaborate with agencies like the NHRC and other NGOs working on children's rights issues to hold seminars and symposiums on the subject.
19. ATTENTION TO TRANSIT POINTS OF TRAFFICKING: There is a need to keep special vigils at railway stations, bus-stands, airports, sea- ports and such other places, which act as transit points for missing children, including children who run away or are made to run away. In this context, the Government Railway Police, the Railway Protection Force, Airport and Seaport authorities needs to be oriented about the issue of missing children.
20. MISSING CHILDREN FROM ACROSS BORDER: This is a grey area, which largely remains unaddressed. It has been reported that several foreign children who have been trafficked into India have been punished as illegal immigrants and are made to suffer. NHRC recommends the state governments to undertake review of all such cases and provide relief to such children, as all trafficked children, irrespective of their nationality, are children in need of care and attention. Moreover, there is a need of developing a Protocol on this issue. It is learnt that UNODC in its anti human trafficking project can provide the required technical assistance. In this regard the Ministry of Women and Child Development can utilize the technical assistance of UNODC and in close coordination with the MEA, develop a protocol on this topic. The Project Coordinator, UNODC may provide the required technical assistance.
21. SURVEY AND RESEARCH: The world of missing children is unknown and there is no proper study or research on this issue. Even today the exact figures of missing or traced children are not available. The existing legislation requires the State and district authorities to periodically carry out inspections/surveys of places where children are employed with a view to identifying missing children and those engaged in bonded labour/child labour. This task has remained a low priority area. There is an urgent need for the State administration to undertake micro studies especially at the places where children are reportedly vulnerable.
A village-wise survey of all children who have gone missing or even recovered is an urgent need to understand the realistic dimensions of the problem. Studies by academic institutions into various factors behind the vulnerability of children are recommended in order to generate right response.
Deeply concerned with the manner in which young children went missing from Nithari village in Noida, UP, the National Human Rights Commission constituted a Committee on February 12, 2007 to examine the issue in depth. The Committee was also to evolve simple and practical guidelines so that the Commission can come up with appropriate recommendations. The Committee held wide ranging consultations with various stakeholders in government, including Ministry of Home Affairs, Ministry of Women & Child Development, Ministry of Labour, Ministry of Social Welfare, Delhi Government, Delhi Police, National Crime Records Bureau, UNICEF and leading NGOs in India working in this field and also experts having indepth knowledge of the subject.
After carrying out intensive consultations the NHRC committee came out with the following recommendations which would be forwarded to relevant authorities across the States and Union Territories and also to the Government of India so that tracing and restoring missing children back to their families would become an easier task.
Recommendations/Suggestions of the NHRC Committee
1. PRIORTY ISSUE: Irrefutably, the problem of 'Missing Children' is a grave matter which is also a human rights issue. It is acknowledged that it has not been received the attention it deserves from the government and society at large. Therefore, this issue needs to be made a "priority issue" by all stakeholders, especially the law enforcement agencies. The Directors General of Police of States should take appropriate steps to issue police orders/circulars/standing instructions etc., sensitize all officers in this regard and also make them accountable.
2. MISSING PERSONS SQUAD/DESK IN POLICE STATIONS: The Committee recommends that every Police Station across the country should have Special Squad/Missing Persons Desk to trace missing children. This Squad/Desk should have a Registering Officer who should be made responsible of registering complaints of missing children. He/she should maintain complete records of efforts made by them to trace missing children as well as by the Special Squad. The Registering Officer should also write incident reports and keep them on record in Station Diary/case diary, as the case may be. In addition to this, the Registering Officer should also work as an Enquiry Officer whereby he/she should be made responsible for following up the entire procedure of tracing/tracking the missing child. The JAPU (Juvenile Aid police Unit) can, if required, be utilized for addressing the issue of missing children, even though the children who are missing can never be labeled as juveniles, but are, in fact, children in need of care and attention. The functioning of this unit/squad should be regularly monitored/ reviewed by Senior Officers and wherever necessary timely instructions and assistance should be provided to the Registering-cum-Enquiry Officer.
3. COURT DIRECTIVES: There is a need to reiterate the implementation of the Supreme Court Guidelines given on 14/11/2002 in Writ Petition (Cri.) No 610 of 1996 filed by Horilal Vs. Commissioner of Police, Delhi & Ors. in all police stations across the country. This would entail prompt and effective steps for tracing missing children.
As per the directions given by the Delhi High Court, a Cell relating to missing persons/children was set up in the Central Bureau of Investigation (CBI). This Cell has been functioning ever since but due to lack of adequate resources, desired results could not be achieved. Since the CBI is a Central investigating agency having powers and jurisdiction to take up cases of inter-state and international ramifications, it would be desirable to strengthen this Cell to enhance its capacity to coordinate and investigate criminal cases relating to missing children and persons.
4. ROLE OF DISTRICT ADMINISTRATION: The legislation enjoins upon the district administration in the country to get places where children are employed, periodically inspected. The Committee notices with deep anguish that in this task the district administration all over the country has failed. This is evident from the fact that even today, the number of children found engaged as domestic help and bonded /child labour is enormous. Again, it is a matter of concern that in the identified cases of child labour and bonded labour in which prosecutions are launched against the employer the conviction rate is not even 1 per cent which obviously has resulted due to lack of supervision. Such an apathy towards this vital issue has to be curbed in favour of a proactive approach. The Committee urges the authorities concerned to hold district administration accountable for dereliction in discharging this responsibility.
The Committee is of the opinion that this exercise of regular inspections, if undertaken with all earnest, will ensure linking back a large number of children missing from their homes.
5. MANDATORY REPORTING: The State Police Headquarters should evolve a system of mandatory reporting whereby all incidents of missing children across the country should be reported to the newly constituted National Commission for Protection of Child Rights (NCPCR) within 24 hours of occurrence. Failure to report promptly would give rise to the presumption that there was an attempt to suppress the incident. The reporting should be done promptly and the procedure could be the same as is being followed by the concerned authorities for reporting custodial death cases to the NHRC.
6. INVOLVING PANCHAYAT RAJ INSTITUTIONS (PRIs) ETC: In order to make the investigative procedures concerning missing children more transparent and user-friendly, it would be preferable for the police investigating team to involve the community at large, such as representatives of Panchayati Raj Institutions / Municipal Committees/ Neighbourhood Committees/Resident Welfare Associations, etc, in addition to existing help lines. This will enable the community to get fully involved along with the police in tracing missing children. The Directors-General of Police should seriously consider taking full advantage of these agencies in the task of not only investigating crimes relating to children but also in tracking down missing children. The role of Panchayats and such bodies should be extended to:
· Prompt reporting of missing children;
· Prompt dissemination of intelligence, if any, to the law enforcement agencies;
· Rendering assistance to law enforcement agencies for tracing children;
· Provide timely feed-back to the law enforcement agencies about the return of the child..
7. INVOLVING NGO's: In places where vulnerable groups of children are found in large numbers, there is need for enforcement agencies to evolve some kind of a mechanism in partnership with non-governmental organizations and social workers, whereby apart from rendering counseling to them, awareness raising activities are also carried out. This would not only instill confidence in them but also strengthen them and give them special protection so that they are in no way lured by external agencies/factors. This initiative could be taken by the Missing Children Squad/Cell in the Districts. The DGPs need to ensure action on this initiative.
8. NATIONAL DATABASE AND MONITORING: NCRB should establish a National Tracking System that would encompass the grass-root level in locating and tracing missing children. There should be prompt reporting of not only missing children cases, but also of return/rescue/recovery. All instances where children are rescued from places of exploitation including places of sexual exploitation and also exploitative labour, should be dovetailed into the NCRB data base. The database should be updated on a regular and systematic basis. This also involves revising the reporting format with respect to the rescue and recovery of persons who have been trafficked. The Director NCRB should liaise with the Project Coordinator, Anti Human Trafficking UNODC, New Delhi and workout the format as the UNODC is working in the field of empowering law enforcement agencies and developing appropriate projects etc. with respect to Anti Human Trafficking and related issues. This could be made effective through web-based and other intra and inter State networking linkages. The information that is gathered ought to be appropriately disseminated. It is suggested that the NCRB evolve one-page useful position papers that has information with regard to various crimes, including the relevant statistics. This could be useful and accessible tool for different agencies that are dealing with a particular problem. For example, relevant information relating to missing children, if it is put in a page or two will be far more accessible and readable for all stakeholders than information complied as part of a voluminous report prepared by the NCRB.
9. SCRB/DCRB: There is an urgent need to revive State/District Crime Records Bureax. The database on missing persons, their return and the processes involved should be properly documented. The State Missing Person's Bureax (MPB), needs to be revamped, made functional and strengthened. The officers should be well trained and knowledgeable to address the issues in an analytical manner and from the perspective of Human Rights. The SCRB and the MPB should have proper liaison between them, so that the database of SCRB and NCRB are dovetailed to the functioning of MPB and the Special cell/ squad to be set up in the Police Stations. The MPB data should be specifically updated with the data of rescued children from trafficking crimes.
10. HELPLINE: There is a need to establish a Child Helpline through NGOs/PRIs/other agencies with adequate support from Government in all the districts. The Department of Women & Child Development, Govt. of India, may take the initiative to set up such a national network.
11. OUTSOURCING PRELIMINARY INQUIRY TO NGOs: The NHRC Committee came to know about several instances where NGOs are actively functional, delivering the best results, in tracing missing children and also documenting them. Such efforts and initiatives have supplemented the work of the law enforcement agencies. The synergy of police and NGOs can be of immense help in addressing this issue and in providing tremendous support to the police agencies who are preoccupied with several other tasks, especially in those places where the police station strength is very poor. Therefore, Preliminary Inquiry into missing persons could be outsourced to NGOs, who are willing to undertake this task. MHA may issue appropriate guidelines to the States in this regard. Each State can identify a few such NGOs and notify them if required. As of today nothing stops NGOs from causing such inquiries and many are already doing this work. Therefore, the best option, in the given situation, is to develop synergy between the law enforcement agencies and the NGOs and institutionalize this partnership.
12. COGNIZABILITY OF THE EVIDENCE: As of now the issue of missing children is not a cognizable offence and the very fact of missing of a child does not convey occurrence of a crime. However, some States like Andhra Pradesh, Tamil Nadu allow police to register FIRs and take up investigation. In order to facilitate proper enquiry/investigation, it is advisable that an FIR is registered by the police with respect to the issue of missing children. However, experience shows that in many cases a child may not have gone missing and the panic reaction of the parents or wards lead to such reporting. Therefore, all such issues may not warrant registration of an FIR immediately. Nevertheless, it is advisable to register FIR if a missing child does not come back or is not traced within a reasonable time. The State Governments are advised to consider issue of appropriate directions to the law enforcement agencies to set a time limit of 15 days from the date of reporting that if a missing child is not traced back within 15 days, a presumption may be made of some malafide and an FIR registered with respect to all such issues of missing children.
13. SENSITIZATION OF STAKE HOLDERS: There is a need to sensitize all ranks of police personnel and other stakeholders to the issue of missing children. For this a two-day module be designed by BPRD, so that uniform training is imparted to all concerned. Along with this, there is a need to prepare suitable reading material that includes good practices about missing children from other States/Union Territories as well as other countries.
14. RESCUE OF CHILDREN IN NEED OF CARE AND ATTENTION: There is a need to identify "run away children", "abandoned children" "neglected children" and such "vulnerable children" who are often found roaming around places where they are particularly exposed to abuse and exploitation such as railway stations, traffic junction etc. Their vulnerability increases due to a lack of support structures - family or otherwise. Proper identification, provision of care and support, and a 'safe place' is vital for them. These children are, under the JJ Act, are the children in need of care and attention which they should be given. This can be achieved by producing them before CWC and ensuring proper care in the concerned Homes. If Government Homes are not available, Government agencies should support appropriate NGOs to set up such Homes. The State Governments are called upon to notify such NGOs immediately so that they can become functional without delay. States should ensure that such notifications are done on a time frame of one month from the date of application by the NGOs.
15. I-CARD FOR CHIDREN: The local administration should facilitate the schools to keep a watch on their children, especially when they become untraced or become dropouts. Schools and old teaching institutions should introduce photo identity cards of children, so that tracing is possible. All such photos with identity particulars be documented and data base be developed urgently. The State Governments and the Central Government should take initiatives in this regard. Schools should embark on a programme of empowering the children on their rights, legal strengths and defence mechanisms in case of need.
16. POVERTY ALLEVIATION MEASURES: It is acknowledged that poverty is one of the main factors in pushing children into inhospitable conditions and making them vulnerable for exploitation. The Central and State Governments have introduced several schemes to be implemented at Gram Panchayat level with the object of providing job opportunities to the poor and the disadvantaged and elevating them from the poverty line. All these programmes, especially concerning children welfare should be properly planned at the Gram Sabha level following the Antyodaya approach. Schemes such as Mid-day Meal Scheme, Sarva Siksha Abhiyaan, Health Immunization etc. deserve to be properly monitored for achieving optimum results. Proper implementation of these poverty alleviation programs are indeed a human rights approach. If such schemes and programmes of the Government are implemented it can be reasonably expected that the vulnerable sections will become empowered to resist exploitation that often takes place now.
17. ROLE OF STATE COMMISSIONS: There is a need to involve State Human Rights Commissions, Women Commission of State/ Centre etc., with regard to the issue of missing children. Such bodies have tremendous overarching influence on all stakeholders in addressing the issues appropriately in their respective jurisdictions.
18. ROLE OF MEDIA: In view of the current dreadful situation, the media can play an important role in increasing public awareness of missing children and the plight of the thousands of hapless families whose children are listed as untraced. This could be achieved as follows:
§ At the newsroom level, crime reporters and metro editors need to include the category of missing children as a regular beat and as part of their daily news grind.
· These stories need to be followed up and tracked regularly just like other stories of murder, human trafficking, etc. A LOST and FOUND series could be commenced. The cases of missing children being traced/returned home should be treated as the ``good news" stories which will also encourage the police/local authorities to step up their actions.
· The large picture story on the enormity of the continuing malaise of missing children, could coincide with Human Rights Day, Children's Day and so on.
· Newspapers can make a separate section in their classified sections on missing children. The notices and advertisements on missing children need to have a better display and be given more prominence and space in newspapers and TV bulletins.
· Just as some newspapers carry a daily/weekly count of say, victims of terrorism, a new slot of missing children in the city/country can be commenced.
· Newspapers or TV channels with an emphasis on local news can have an arrangement with either the police or a local NGO, which has worked in the area to print without charge announcements and advertisements on missing children.
· The missing child story should also be picked up for the daily crime shows many TV channels have commenced. Just as investigative stories are done on the flesh trade, on organ smuggling etc. case studies of how missing children end up in brothels or factories can be carried. Cases can be picked from solved cases or; where children were smuggled across borders. Identities can be masked if need be.
· Media organizations like media unions, the women's press corps and so on can collaborate with agencies like the NHRC and other NGOs working on children's rights issues to hold seminars and symposiums on the subject.
19. ATTENTION TO TRANSIT POINTS OF TRAFFICKING: There is a need to keep special vigils at railway stations, bus-stands, airports, sea- ports and such other places, which act as transit points for missing children, including children who run away or are made to run away. In this context, the Government Railway Police, the Railway Protection Force, Airport and Seaport authorities needs to be oriented about the issue of missing children.
20. MISSING CHILDREN FROM ACROSS BORDER: This is a grey area, which largely remains unaddressed. It has been reported that several foreign children who have been trafficked into India have been punished as illegal immigrants and are made to suffer. NHRC recommends the state governments to undertake review of all such cases and provide relief to such children, as all trafficked children, irrespective of their nationality, are children in need of care and attention. Moreover, there is a need of developing a Protocol on this issue. It is learnt that UNODC in its anti human trafficking project can provide the required technical assistance. In this regard the Ministry of Women and Child Development can utilize the technical assistance of UNODC and in close coordination with the MEA, develop a protocol on this topic. The Project Coordinator, UNODC may provide the required technical assistance.
21. SURVEY AND RESEARCH: The world of missing children is unknown and there is no proper study or research on this issue. Even today the exact figures of missing or traced children are not available. The existing legislation requires the State and district authorities to periodically carry out inspections/surveys of places where children are employed with a view to identifying missing children and those engaged in bonded labour/child labour. This task has remained a low priority area. There is an urgent need for the State administration to undertake micro studies especially at the places where children are reportedly vulnerable.
A village-wise survey of all children who have gone missing or even recovered is an urgent need to understand the realistic dimensions of the problem. Studies by academic institutions into various factors behind the vulnerability of children are recommended in order to generate right response.
NHRC Calls For Forceful Implementation Of
New Delhi, February 4, 2007
'NHRC commits to enforcement of Rights of Children', this was stated by Dr. Justice Shivaraj V. Patil, Acting Chairperson of NHRC at the valedictory function of a two-day National Conference on Juvenile Justice System in India organized by the Commission. Dr. Patil said that the provisions of Juvenile Justice Act, 2000 along with its amendments in 2006 have to be looked into and forcefully enforced to get the maximum result. He said there has to be a development-oriented culture for the Rights of Children.
The Acting Chairperson said Section IV of the Act as amended makes its mandatory for the Constitution of Juvenile Justice Board in every district in a time period of one year. He said we should take a cue from this and exercise our legal rights if no such board is established at the expire of one year on August 22, 2007. He said the distinguish gathering which deliberated the issue for two days can always sit together again and discuss legal and constitutional angles threadbare so that we can come out with few but concrete recommendations which will go a long way in brining about difference in the life of juveniles. He said these recommendations have to be vital, meaningful and effective for the enforcement of the Juvenile Justice Act. Referring to the NGOs, he said they are the eyes and ears of the Commission on what is happening in the field and with their experience can enrich the tasks which will be taken up by the Commission. He called for sensitizing the field functionary so that no juvenile is treated as an accused but helped to join the mainstream of the society.
The experts in the field who deliberated for two-days came out with a number of suggestions, they include:-
· Juvenile Justice System (JJS) must become an integral part of human resource development planning and kept apart from criminal justice system to ensure development opportunities for children in conflict with law and in need of care and protection, without alienating them from social mainstream, the participants at the two-day conference on JJS suggested.
· The conference felt that there is an urgent need to ensure that appropriate bodies are constituted in every district of every State and UT to expeditiously take up cases relating to juveniles and children in need of care and protection. The participants perceived that the Juvenile Justice Board (JJB) should protect the best interests of the juveniles and in no way function as a criminal court. The delegates stressed that to achieve this sensitizing personnel responsible for the implementation of Juvenile Justice System is essential. They were of the view that a variety of measures suggested in the Juvenile Justice Act 2000 with its amendments of 2006 should be effectively executed to ensure better care and rehabilitation of the juveniles.
NHRC which is currently monitoring the status of implementation of JJ Act, 2000 has felt that majority of the States have not constituted the required number of these Institutions / Boards as prescribed in the Act.
· The Conference felt unanimously that the number of homes/institutions catering to the needs of juveniles, their capacity and the financial allocations were not in tune with the requirement. The amount spent on vocational training, health and recreation was negligible and there was a need to converge all the resources for this purpose. They felt that there is a need to set up adequate number of institutions like Observation Homes, Special Homes, Children Homes, Shelter Homes and After Care Organizations to ensure holistic rehabilitation and reintegration of such children. The Commission has said that there is an urgent need to reconstitute Central, State, District and City Advisory Boards in compliance with Sec 62 A of the JJA 2000. The Commission's monitoring has further revealed the absence of rules in many States and Union Territories under the JJA 2000.
· Keeping in view the NHRC's observations, it was felt that the Commission can direct all the State Governments / Union Territories to frame the required rules under the amended Act within three months. And also ask them to constitute Child Protection Units in every district to take up matters related to such children.
· All the speakers strongly supported the idea that under no circumstance, a juvenile or a child should be lodged in a police lock up or a jail and at least one police officer should be designated as the juvenile or child welfare officer. Such officer should be given training to deal with juveniles or children. They also felt the need that the Special Juvenile Police Unit should inform a Member of JJB, the probation officer, the parents/ guardian of the juvenile placed under their charge.
· As per the amended JJA, the State Govt./ JJB should review all cases where a juvenile is undergoing sentence. It should also be ensured that child friendly measures for keeping the child integrated with the family and mainstream of the society are adopted. They said such a move would not push the juveniles back to commit any offence and prevent them from becoming hardened criminals.
· They were of the view that a variety of dispositions as suggested in the 2000 and the amended Juvenile Justice Act 2006 should be effectively executed to ensure better care and rehabilitation of the juveniles. The Conference said probation played a significant role in the treatment and rehabilitation of juveniles. All the delegates felt that probation could be used as an effective alternative rather than sentencing the juveniles or confining them to some institutions. They also emphasized the need to ensure free legal aid to juveniles and a patient hearing in all legal proceedings against them taking into account their dignity and best interest.
· The delegates also stressed the need for formulating minimum standards for various community and institutional services for juveniles/children under the amended act and suggested that the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (Beijing Rules) be the basis for formulating these standards.
· The conference also highlighted the need for specialized training modules for persons involved in the implementation of Juvenile Justice System. All concerned must be imparted specialized knowledge about the philosophy of juvenile justice and the Juvenile Justice (Care and Protection of Children) Act under which they operate besides international human rights standards and instrument relating to administration of juvenile justice.
The two-day Conference on February 3 & 4, 2007 deliberated on a number of issues including situational analysis of children, emerging issues in Juvenile Justice System, children in conflict with law: adjudication and dispositional alternatives, Community based models for care and protection of children and Preparation of action plan on Juvenile Justice. Hundred participants from all over the country comprising Judicial Officers, Chairpersons/Members of Juvenile Justice Board/Welfare Committees, Academicians, Government Officials, Police Officials, Social Activist and Senior representatives of voluntary organizations joined the Conference to exchange their views on the issue.
'NHRC commits to enforcement of Rights of Children', this was stated by Dr. Justice Shivaraj V. Patil, Acting Chairperson of NHRC at the valedictory function of a two-day National Conference on Juvenile Justice System in India organized by the Commission. Dr. Patil said that the provisions of Juvenile Justice Act, 2000 along with its amendments in 2006 have to be looked into and forcefully enforced to get the maximum result. He said there has to be a development-oriented culture for the Rights of Children.
The Acting Chairperson said Section IV of the Act as amended makes its mandatory for the Constitution of Juvenile Justice Board in every district in a time period of one year. He said we should take a cue from this and exercise our legal rights if no such board is established at the expire of one year on August 22, 2007. He said the distinguish gathering which deliberated the issue for two days can always sit together again and discuss legal and constitutional angles threadbare so that we can come out with few but concrete recommendations which will go a long way in brining about difference in the life of juveniles. He said these recommendations have to be vital, meaningful and effective for the enforcement of the Juvenile Justice Act. Referring to the NGOs, he said they are the eyes and ears of the Commission on what is happening in the field and with their experience can enrich the tasks which will be taken up by the Commission. He called for sensitizing the field functionary so that no juvenile is treated as an accused but helped to join the mainstream of the society.
The experts in the field who deliberated for two-days came out with a number of suggestions, they include:-
· Juvenile Justice System (JJS) must become an integral part of human resource development planning and kept apart from criminal justice system to ensure development opportunities for children in conflict with law and in need of care and protection, without alienating them from social mainstream, the participants at the two-day conference on JJS suggested.
· The conference felt that there is an urgent need to ensure that appropriate bodies are constituted in every district of every State and UT to expeditiously take up cases relating to juveniles and children in need of care and protection. The participants perceived that the Juvenile Justice Board (JJB) should protect the best interests of the juveniles and in no way function as a criminal court. The delegates stressed that to achieve this sensitizing personnel responsible for the implementation of Juvenile Justice System is essential. They were of the view that a variety of measures suggested in the Juvenile Justice Act 2000 with its amendments of 2006 should be effectively executed to ensure better care and rehabilitation of the juveniles.
NHRC which is currently monitoring the status of implementation of JJ Act, 2000 has felt that majority of the States have not constituted the required number of these Institutions / Boards as prescribed in the Act.
· The Conference felt unanimously that the number of homes/institutions catering to the needs of juveniles, their capacity and the financial allocations were not in tune with the requirement. The amount spent on vocational training, health and recreation was negligible and there was a need to converge all the resources for this purpose. They felt that there is a need to set up adequate number of institutions like Observation Homes, Special Homes, Children Homes, Shelter Homes and After Care Organizations to ensure holistic rehabilitation and reintegration of such children. The Commission has said that there is an urgent need to reconstitute Central, State, District and City Advisory Boards in compliance with Sec 62 A of the JJA 2000. The Commission's monitoring has further revealed the absence of rules in many States and Union Territories under the JJA 2000.
· Keeping in view the NHRC's observations, it was felt that the Commission can direct all the State Governments / Union Territories to frame the required rules under the amended Act within three months. And also ask them to constitute Child Protection Units in every district to take up matters related to such children.
· All the speakers strongly supported the idea that under no circumstance, a juvenile or a child should be lodged in a police lock up or a jail and at least one police officer should be designated as the juvenile or child welfare officer. Such officer should be given training to deal with juveniles or children. They also felt the need that the Special Juvenile Police Unit should inform a Member of JJB, the probation officer, the parents/ guardian of the juvenile placed under their charge.
· As per the amended JJA, the State Govt./ JJB should review all cases where a juvenile is undergoing sentence. It should also be ensured that child friendly measures for keeping the child integrated with the family and mainstream of the society are adopted. They said such a move would not push the juveniles back to commit any offence and prevent them from becoming hardened criminals.
· They were of the view that a variety of dispositions as suggested in the 2000 and the amended Juvenile Justice Act 2006 should be effectively executed to ensure better care and rehabilitation of the juveniles. The Conference said probation played a significant role in the treatment and rehabilitation of juveniles. All the delegates felt that probation could be used as an effective alternative rather than sentencing the juveniles or confining them to some institutions. They also emphasized the need to ensure free legal aid to juveniles and a patient hearing in all legal proceedings against them taking into account their dignity and best interest.
· The delegates also stressed the need for formulating minimum standards for various community and institutional services for juveniles/children under the amended act and suggested that the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (Beijing Rules) be the basis for formulating these standards.
· The conference also highlighted the need for specialized training modules for persons involved in the implementation of Juvenile Justice System. All concerned must be imparted specialized knowledge about the philosophy of juvenile justice and the Juvenile Justice (Care and Protection of Children) Act under which they operate besides international human rights standards and instrument relating to administration of juvenile justice.
The two-day Conference on February 3 & 4, 2007 deliberated on a number of issues including situational analysis of children, emerging issues in Juvenile Justice System, children in conflict with law: adjudication and dispositional alternatives, Community based models for care and protection of children and Preparation of action plan on Juvenile Justice. Hundred participants from all over the country comprising Judicial Officers, Chairpersons/Members of Juvenile Justice Board/Welfare Committees, Academicians, Government Officials, Police Officials, Social Activist and Senior representatives of voluntary organizations joined the Conference to exchange their views on the issue.
Wednesday, August 01, 2007
NHRC - DRAFT GUIDELINES FOR SPEEDY DISPOSAL OF CHILD RAPE CASES.
(i) The complaint relating to child rape cases shall be recorded promptly as well as accurately. The complaint can be filed by the victim or an eyewitness or anyone, including a representative of non-governmental organization, who has received information of the commission of the offence. The case should be taken as follows:
a) Officer not below the rank of SI and preferably lady police officer.
b) Recording should be verbatim
c) Person recording to be in civil dress
d) Recording should not be insisted in police station, it can be at the residence of the victim.
(ii) If the complainant is the child victim, then it is of vital importance that the reporting officer must ensure that the child victim is made comfortable before proceeding to record the complaint. This would help in ensuring accurate narration of the incident covering all relevant aspects of the case. If feasible, assistance of psychiatrist should be taken;
(iii) The Investigating Officer shall ensure that medical examination of the victim of sexual assault and the accused is done preferably within 24 hours in accordance with Cr. PC Sec. 164 A. Instruction be issued that the Chief Medical Officer ensures the examination of victim immediately on receiving request from I.O. The gynecologist, while examining the victim should ensure recording the history of incident;
(iv) Immediately after the registration of the case, the investigation team shall visit the scene of crime to secure whatever incriminating evidence is available there. If there are tell-tale signs of resistance by the victim or use of force by the accused those should be photographed;
(v) The Investigation Officer shall secure the clothes of the victim as well as the clothes of the accused, if arrested, and send them within 10 days for forensic analysis to find out whether there are traces of semen and also obtain report about the matching of blood group and if possible DNA profiling;
(vi) The forensic lab should analyze the evidences on priority basis and send report within couple of months;
(vii) The investigation of the case shall be taken up by an officer not below the rank of S.I. on priority basis and, as far as possible, investigation shall invariably be completed within 90 days of registration of the case. Periodical supervision should be done by senior officers to ensure proper and prompt investigation;
(viii) Wherever desirable, the statement of the victims u/s 164 Cr. PC shall be recorded expeditiously;
(ix) Identity of the victim and the family shall be kept secret and they must be ensured of protection. IOs / NGOs to exercise more caution of the issue.
TRIAL COURT
i) Fast Track courts preferably presided over by a lady judge and trial to be held in camera;
ii) Atmosphere in the court should be child friendly;
iii) If possible, the recordings be done in video conferencing / in conducive manner so that victim is not subjected to close proximity of accused;
iv) Magistrate should commit case to session within 15 days after the filing of the charge sheet.
a) Officer not below the rank of SI and preferably lady police officer.
b) Recording should be verbatim
c) Person recording to be in civil dress
d) Recording should not be insisted in police station, it can be at the residence of the victim.
(ii) If the complainant is the child victim, then it is of vital importance that the reporting officer must ensure that the child victim is made comfortable before proceeding to record the complaint. This would help in ensuring accurate narration of the incident covering all relevant aspects of the case. If feasible, assistance of psychiatrist should be taken;
(iii) The Investigating Officer shall ensure that medical examination of the victim of sexual assault and the accused is done preferably within 24 hours in accordance with Cr. PC Sec. 164 A. Instruction be issued that the Chief Medical Officer ensures the examination of victim immediately on receiving request from I.O. The gynecologist, while examining the victim should ensure recording the history of incident;
(iv) Immediately after the registration of the case, the investigation team shall visit the scene of crime to secure whatever incriminating evidence is available there. If there are tell-tale signs of resistance by the victim or use of force by the accused those should be photographed;
(v) The Investigation Officer shall secure the clothes of the victim as well as the clothes of the accused, if arrested, and send them within 10 days for forensic analysis to find out whether there are traces of semen and also obtain report about the matching of blood group and if possible DNA profiling;
(vi) The forensic lab should analyze the evidences on priority basis and send report within couple of months;
(vii) The investigation of the case shall be taken up by an officer not below the rank of S.I. on priority basis and, as far as possible, investigation shall invariably be completed within 90 days of registration of the case. Periodical supervision should be done by senior officers to ensure proper and prompt investigation;
(viii) Wherever desirable, the statement of the victims u/s 164 Cr. PC shall be recorded expeditiously;
(ix) Identity of the victim and the family shall be kept secret and they must be ensured of protection. IOs / NGOs to exercise more caution of the issue.
TRIAL COURT
i) Fast Track courts preferably presided over by a lady judge and trial to be held in camera;
ii) Atmosphere in the court should be child friendly;
iii) If possible, the recordings be done in video conferencing / in conducive manner so that victim is not subjected to close proximity of accused;
iv) Magistrate should commit case to session within 15 days after the filing of the charge sheet.
Saturday, July 14, 2007
Govt drags feet on 'coming-of-age' law
13 Jul 2007, 0320 hrs IST,Dhananjay Mahapatra,TNN
NEW DELHI: Last year, a petition filed by National Commission for Women (NCW) had raised questions about when a young girl come of age in India. Responding to the court’s notice, Centre through additional solicitor-general Gopal Subramaniam, had assured on January 3 this year that the government is in the process of removing anomalies and so sought time for bringing a clear legislation in this regard.
Yet, after the budget session of Parliament, the promised action to rectify the anomalies has yet to emerge from Centre’s legislative closet, a possible reason why the apex court once again sought a response from government.
The seeds of confusion lie in provisions of Child Marriage (Restraint) Act, 1929, Hindu Marriage Act, 1955, the exception to rape in Indian Penal Code and Immoral Traffic (Prevention) Act.
The Child Marriage (Restraint) Act, 1929, says a child is a person, who if a male, has not completed 21 years of age, and if a female, has not completed 18 years
The Hindu Marriage Act, 1955, says a female has to be 18 years before she can legally marry
However, the Indian Penal Code, while defining rape in Section 375, exempts a person from this charge if he has forcible sexual intercourse with his wife who is above 15 years of age
Under the Immoral Traffic (Prevention) Act, 1986, a child means a person who has not completed the age of 16 years and a minor means who has completed the age of 16 years and not completed 18 years
The Indian Majority Act says a person is a major if he/she has completed 18 years
These legal prescriptions about adulthood of a female and her marriageable age, coupled with the exception set out under Section 375 of IPC, complains Sharma in his petition, has encouraged "Romeos" to lure girls who are above 15 years of age. The petition’s concern is obvious — that girls not quite able to take a mature decision on marriage may fall prey to a passing fancy or the glib talk of an older man.
On the other hand, the ostensible concern of high courts which ruled on 15 being the "age of discretion" was whether intercourse in an "underage" marriage could amount to the criminal offence of rape given that the girl had consented to marriage.
The courts have refrained from making things clearer when dealing with cases of a young couple where the girl has completed 15 years of age, Sharma’s counsel Daya Krishan Sharma pleaded, citing the Andhra Pradesh HC and the Delhi HC rulings.
In both these cases, HCs had refused to proceed on rape charges against the husbands though the girls were not of marriageable age as per the Hindu Marriage Act. The HCs had ruled that the girls, having completed 15 years of age, had reached the "age of discretion".
During hearing of the NCW petition, the apex court took a "humanitarian" approach and clarified that it would not set aside these two HC orders as it would unsettle the lives of the young couples.
NEW DELHI: Last year, a petition filed by National Commission for Women (NCW) had raised questions about when a young girl come of age in India. Responding to the court’s notice, Centre through additional solicitor-general Gopal Subramaniam, had assured on January 3 this year that the government is in the process of removing anomalies and so sought time for bringing a clear legislation in this regard.
Yet, after the budget session of Parliament, the promised action to rectify the anomalies has yet to emerge from Centre’s legislative closet, a possible reason why the apex court once again sought a response from government.
The seeds of confusion lie in provisions of Child Marriage (Restraint) Act, 1929, Hindu Marriage Act, 1955, the exception to rape in Indian Penal Code and Immoral Traffic (Prevention) Act.
The Child Marriage (Restraint) Act, 1929, says a child is a person, who if a male, has not completed 21 years of age, and if a female, has not completed 18 years
The Hindu Marriage Act, 1955, says a female has to be 18 years before she can legally marry
However, the Indian Penal Code, while defining rape in Section 375, exempts a person from this charge if he has forcible sexual intercourse with his wife who is above 15 years of age
Under the Immoral Traffic (Prevention) Act, 1986, a child means a person who has not completed the age of 16 years and a minor means who has completed the age of 16 years and not completed 18 years
The Indian Majority Act says a person is a major if he/she has completed 18 years
These legal prescriptions about adulthood of a female and her marriageable age, coupled with the exception set out under Section 375 of IPC, complains Sharma in his petition, has encouraged "Romeos" to lure girls who are above 15 years of age. The petition’s concern is obvious — that girls not quite able to take a mature decision on marriage may fall prey to a passing fancy or the glib talk of an older man.
On the other hand, the ostensible concern of high courts which ruled on 15 being the "age of discretion" was whether intercourse in an "underage" marriage could amount to the criminal offence of rape given that the girl had consented to marriage.
The courts have refrained from making things clearer when dealing with cases of a young couple where the girl has completed 15 years of age, Sharma’s counsel Daya Krishan Sharma pleaded, citing the Andhra Pradesh HC and the Delhi HC rulings.
In both these cases, HCs had refused to proceed on rape charges against the husbands though the girls were not of marriageable age as per the Hindu Marriage Act. The HCs had ruled that the girls, having completed 15 years of age, had reached the "age of discretion".
During hearing of the NCW petition, the apex court took a "humanitarian" approach and clarified that it would not set aside these two HC orders as it would unsettle the lives of the young couples.
Adoption norms to be streamlined
July 11,Hindustan Times
The government, in a new set of regulations for child adoption, have proposed that parents who have given their children up for adoption cannot claim them back again.
The draft guidelines on the adoption of Indian children without parental care, released on Wednesday, proposes to bring adoption of orphaned, abandoned or surrendered children under the Juvenile Justice Act, 2006, thereby giving legal sanctity to the adoption process.
JK Mittal, chairperson of the Central Adoption Resource Agency (CARA), said: “Once child adoption comes under the JJ Act, there will be uniformity in the child adoption process in the country.
Secondly, adoption will mean legal separation of the child from his or her biological parents.”
Under the new guidelines, the time required for adoption has been reduced to three months from the existing six months. “The courts will have to settle adoption claims in two months as per the JJ Act,” Mittal said.
The government also wants to adopt the international child adoption standards. For this, Hague convention regulations have been incorporated in the proposed guidelines. It will result in the child getting citizenship immediately after touching the country of his or her adoption. Normally, it takes two-three months.
Inter-country adoption will not be allowed through an agency anymore. Foreigners will have to apply directly to CARA, which will then direct them to a registered agency for child adoption. “It will break the nexus between agencies,” Mittal said.
The guidelines also propose mandatory state government registration of all childcare homes. Women and Child Development Minister Renuka Chowdhury said the Centre will make HIV/AIDS test mandatory for all children admitted by the adoption agencies. CARA will also create a central data bank on children for adoption within India and outside.
The government, in a new set of regulations for child adoption, have proposed that parents who have given their children up for adoption cannot claim them back again.
The draft guidelines on the adoption of Indian children without parental care, released on Wednesday, proposes to bring adoption of orphaned, abandoned or surrendered children under the Juvenile Justice Act, 2006, thereby giving legal sanctity to the adoption process.
JK Mittal, chairperson of the Central Adoption Resource Agency (CARA), said: “Once child adoption comes under the JJ Act, there will be uniformity in the child adoption process in the country.
Secondly, adoption will mean legal separation of the child from his or her biological parents.”
Under the new guidelines, the time required for adoption has been reduced to three months from the existing six months. “The courts will have to settle adoption claims in two months as per the JJ Act,” Mittal said.
The government also wants to adopt the international child adoption standards. For this, Hague convention regulations have been incorporated in the proposed guidelines. It will result in the child getting citizenship immediately after touching the country of his or her adoption. Normally, it takes two-three months.
Inter-country adoption will not be allowed through an agency anymore. Foreigners will have to apply directly to CARA, which will then direct them to a registered agency for child adoption. “It will break the nexus between agencies,” Mittal said.
The guidelines also propose mandatory state government registration of all childcare homes. Women and Child Development Minister Renuka Chowdhury said the Centre will make HIV/AIDS test mandatory for all children admitted by the adoption agencies. CARA will also create a central data bank on children for adoption within India and outside.
Friday, June 22, 2007
IPC 2008
Fast-Tracking Justice
The Outlook
Menon committee recommends:
· Crimes to be reclassified under four codes; tackling marginal offences via civil/administrative procedures
· Online registration of FIRs
· Statements to police on audio or video be made admissible evidence
· Code of Ethics for criminal lawyers; legal help for the poor and weaker sections; better witness protection
· Liberal use of bail and probation, to avoid short-term imprisonment.
***Few may remember the six persons mowed down by Sanjeev Nanda's BMW eight years back. But it's tough forgetting images of defence and prosecution lawyers subverting justice on TV. The delays, witnesses turning hostile and the lawyers shielding the influential accused ...the motifs recur every time a high-profile case comes to court. The verdicts in the Jessica Lall and Priyadarshini Mattoo cases held out the first glimmer of hope. Then a committee was set up in June 2006 to draft a national policy on criminal justice. Headed by Dr N.R. Madhava Menon, director, National Judicial Academy, Bhopal, the panel's other members were Anil Chowdhry, former secretary, internal security; Kamal Kumar, director, National Police Academy; M.D. Rijhwani, senior member, Bombay Bar; and Dr P.K. Seth, joint secretary, judicial.One year on, the panel has submitted its deliberations to the government. These have now been sent for examination by a consultative committee of the Union home ministry. Suggesting sweeping changes, the underlying criterion of the policy is to have a "justice delivery system which is faster, fairer, uncomplicated and inexpensive".One of its most basic but significant recommendations is online registration of FIRs. Most police stations in the metros have already been computerised; the process of modernisation of police stations elsewhere is on. Online FIRs would to a large extent circumvent the problem of the police turning away victims and refusing to register FIRs.The policy also seeks to redefine and reclassify crimes to reduce the burden on courts and prisons. It recommends a fourfold code-based classification of all offences presently covered by the Indian Penal Code (IPC) and local laws.The reclassification revolves around bunching together offences with similar punishments. Thus, marriage disputes and other civil offences have been brought under a Social Welfare Offences Code, along with prohibition offences, vagrancy and minor campus indiscipline. Arrest and detention in these cases is not necessary. "Compensation and community service can better meet the ends of justice," notes the committee.More serious offences that require some level of police intervention have been classified under a Correctional Offences Code. These include offences punishable with up to three-year imprisonment and/or fines. Such offences can in most cases be handled by Lok Adalats which could impose fines, probation or short-term imprisonment.Only grave offences, punishable with imprisonment beyond three years and the death penalty, says the panel, should be included in the IPC. It's in these cases that the panel wants the state to spend its maximum energy, time and resources, keeping in mind a "need for efficiency, effectiveness and fairness".The final classification relates to the Economic Offences Code. This would cover select financial offences, the investigation of which requires multi-disciplinary, inter-state and international effort. The committee also makes a strong case for certain international crimes and acts of terror to be designated as federal offences, so that they can be dealt with more effectively by an all-India law enforcement agency rather than being left to the state police.Having categorised the crimes, the committee moves on to dispensation of justice. Admitting the prosecution "to be the weakest link of the criminal justice system", it emphasises the need to draw up a separate code of ethics for lawyers serving this wing of law. Bar councils and criminal courts are to be entrusted with jointly enforcing it. The committee calls for special care to be taken for prosecutor selection, training, service conditions and supervision.There is no rest for the defence either. Noting that the "justice system seems heavily geared towards the rich and the powerful", the committee urges the setting up of a Public Defender System to make legal services available to those who cannot afford an expensive defence. Besides, the committee enjoins upon the criminal justice administration to adopt proactive policies to protect the weaker sections of society, including women, children and SC/STs.Criminal courts figure next. They have an obligation to give speedy justice by expediting all processes, note Menon and his men. "Day-to-day trial has to be restored," with the government providing the courts with better resources and infrastructure to speed up trial procedures. Victim and witness protection too is emphasised, with the panel recommending facilities for victims and witnesses in criminal courts and that they be "treated with due courtesy". The need for a witness protection law, as suggested by the Law Commission, is reiterated even as it advocates punishment for false testimonies.The committee also tenders a solution to prevent the overcrowding of jails. It suggests that undertrial prisoners be kept in separate institutions. Bail and probation should be made available to keep the prison population within reasonable limits. The panel recognises the need for the police to speed up the process of investigations, proposes that they be allowed to use electronic surveillance more liberally than now, but frowns upon custodial violence, and suggests it be dealt with most severely. The panel also feels that statements made to the police on video or audio be made admissible as evidence provided a lawyer has been made available to the accused.Finally, to ensure the smooth functioning of the system, an independent, professionally managed department of criminal justice under the MHA is advocated. The department will have two major divisions: a bureau of criminal justice statistics to collate all information relating to crime, and a research and monitoring division to analyse data and engage in pilot projects.
The Outlook
Menon committee recommends:
· Crimes to be reclassified under four codes; tackling marginal offences via civil/administrative procedures
· Online registration of FIRs
· Statements to police on audio or video be made admissible evidence
· Code of Ethics for criminal lawyers; legal help for the poor and weaker sections; better witness protection
· Liberal use of bail and probation, to avoid short-term imprisonment.
***Few may remember the six persons mowed down by Sanjeev Nanda's BMW eight years back. But it's tough forgetting images of defence and prosecution lawyers subverting justice on TV. The delays, witnesses turning hostile and the lawyers shielding the influential accused ...the motifs recur every time a high-profile case comes to court. The verdicts in the Jessica Lall and Priyadarshini Mattoo cases held out the first glimmer of hope. Then a committee was set up in June 2006 to draft a national policy on criminal justice. Headed by Dr N.R. Madhava Menon, director, National Judicial Academy, Bhopal, the panel's other members were Anil Chowdhry, former secretary, internal security; Kamal Kumar, director, National Police Academy; M.D. Rijhwani, senior member, Bombay Bar; and Dr P.K. Seth, joint secretary, judicial.One year on, the panel has submitted its deliberations to the government. These have now been sent for examination by a consultative committee of the Union home ministry. Suggesting sweeping changes, the underlying criterion of the policy is to have a "justice delivery system which is faster, fairer, uncomplicated and inexpensive".One of its most basic but significant recommendations is online registration of FIRs. Most police stations in the metros have already been computerised; the process of modernisation of police stations elsewhere is on. Online FIRs would to a large extent circumvent the problem of the police turning away victims and refusing to register FIRs.The policy also seeks to redefine and reclassify crimes to reduce the burden on courts and prisons. It recommends a fourfold code-based classification of all offences presently covered by the Indian Penal Code (IPC) and local laws.The reclassification revolves around bunching together offences with similar punishments. Thus, marriage disputes and other civil offences have been brought under a Social Welfare Offences Code, along with prohibition offences, vagrancy and minor campus indiscipline. Arrest and detention in these cases is not necessary. "Compensation and community service can better meet the ends of justice," notes the committee.More serious offences that require some level of police intervention have been classified under a Correctional Offences Code. These include offences punishable with up to three-year imprisonment and/or fines. Such offences can in most cases be handled by Lok Adalats which could impose fines, probation or short-term imprisonment.Only grave offences, punishable with imprisonment beyond three years and the death penalty, says the panel, should be included in the IPC. It's in these cases that the panel wants the state to spend its maximum energy, time and resources, keeping in mind a "need for efficiency, effectiveness and fairness".The final classification relates to the Economic Offences Code. This would cover select financial offences, the investigation of which requires multi-disciplinary, inter-state and international effort. The committee also makes a strong case for certain international crimes and acts of terror to be designated as federal offences, so that they can be dealt with more effectively by an all-India law enforcement agency rather than being left to the state police.Having categorised the crimes, the committee moves on to dispensation of justice. Admitting the prosecution "to be the weakest link of the criminal justice system", it emphasises the need to draw up a separate code of ethics for lawyers serving this wing of law. Bar councils and criminal courts are to be entrusted with jointly enforcing it. The committee calls for special care to be taken for prosecutor selection, training, service conditions and supervision.There is no rest for the defence either. Noting that the "justice system seems heavily geared towards the rich and the powerful", the committee urges the setting up of a Public Defender System to make legal services available to those who cannot afford an expensive defence. Besides, the committee enjoins upon the criminal justice administration to adopt proactive policies to protect the weaker sections of society, including women, children and SC/STs.Criminal courts figure next. They have an obligation to give speedy justice by expediting all processes, note Menon and his men. "Day-to-day trial has to be restored," with the government providing the courts with better resources and infrastructure to speed up trial procedures. Victim and witness protection too is emphasised, with the panel recommending facilities for victims and witnesses in criminal courts and that they be "treated with due courtesy". The need for a witness protection law, as suggested by the Law Commission, is reiterated even as it advocates punishment for false testimonies.The committee also tenders a solution to prevent the overcrowding of jails. It suggests that undertrial prisoners be kept in separate institutions. Bail and probation should be made available to keep the prison population within reasonable limits. The panel recognises the need for the police to speed up the process of investigations, proposes that they be allowed to use electronic surveillance more liberally than now, but frowns upon custodial violence, and suggests it be dealt with most severely. The panel also feels that statements made to the police on video or audio be made admissible as evidence provided a lawyer has been made available to the accused.Finally, to ensure the smooth functioning of the system, an independent, professionally managed department of criminal justice under the MHA is advocated. The department will have two major divisions: a bureau of criminal justice statistics to collate all information relating to crime, and a research and monitoring division to analyse data and engage in pilot projects.
Tuesday, May 29, 2007
The dynamics of access to justice
V.R. Krishna Iyer, Justice , The Hindu 29 May 2007
An effective free legal aid system and speedy disposal of cases are ways to improve the present situation.
THE JUSTICE system across the nation must be made accessible to the poor and the handicapped who are currently priced out of the courts and tribunals. A fundamental restructuring of the judicial administration is needed for this. We have still not departed from the British-Indian pattern of justice administration. The current system is dilatory, multi-tiered, alien to, and expensive for, the average Indian.
When people talk about access to justice, they may mean many different things depending on their ethos and socio-economic history, and developmental potential. But every discussion assumes a goal called "justice," and assumes further that some group or individual in a society finds the door to justice closed, or at least too stiff to move on its hinges. The ways in which justice is denied are various — it costs too much, or is, for whatever reason, too difficult, too alien, or too slow for the group or individual shut out. The sufferers may be, in general, the poor, or the lower class, or some other disadvantaged section. In some societies, it is a racial minority or an ethnic group, or simply the working class. Many people, in recent years, have also come to feel the problem extends as well to groups with more diffused interests — the general consumer, or the man and woman on the street. This last idea, that those with diffused or general interests have trouble accessing the levers of the law, is one of underpinnings of the "public interest" law movement in the United States.
In India, we have a system that ends up with the two sides to a dispute being represented by professional advocates. Our British-Indian heritage, which remains the same after Independence, involves the Bar as integral to the system. Therefore, access to justice makes access to the Bar a sine qua non. If advocates and the other formalities become too expensive, a large majority of the poor are priced out of the judicial market. Good lawyers have to be paid high. The complicated procedures demand investment beyond the means of the indigent litigant who belongs to weaker classes while the opposite party hires expensive lawyers and vanquishes the handicapped, although justice may be on his or her side.
What is the solution? An effective free legal aid system that will provide Adivasis and other backward classes with lawyers of competence and commitment. A comprehensive national scheme sensitive to the disadvantaged is necessary. The statutory scheme now operative is altogether inadequate, limited, and alien to the illiterate and indigent. A dynamic system accessible to the humblest must be brought in. The all-India Bar has a catalyst role in this regard. Every Bar Association must set up a panel of legal activists who have concern for equal justice for the underprivileged, who will render efficient free service in court and by way of consultation and advice and promotion of settlement of the issues. The Bar Council must subsidise this panel. Free legal aid is no charity but incidental to fundamental rights, rather human rights in their holistic perspective.
Another serious flaw is the provision for too many appeals, revisions, and reviews that end up emptying the pockets of the poor. Early and, if possible, just settlement of disputes are the requisite of a healthy legal system. Today, the trial court, with heavy court fee, is the beginning of a litigative battle that never sees an end even after decades. Cases pending in the high courts after decades of delay in the lower courts is pathetic injustice. There is no reason why the procedure should not be simplified — revisions abolished, number of appeals reduced, cases finished in the course of a year. Why not evening courts and attempts at settlement by advocates and judges? There are many ways of eliminating litigation by the advocates on either side — reducing the play of technicality to reach a fair arrangement. This is never done these days and courts are lost in leisurely hearing and long arguments. Even judgments after arguments take considerable time, sometimes years. The victim in all such cases is the economically backward party. Judge Learned Hand has cynically remarked that a party must execute a will before he goes to court, because who knows he will survive by the time the case is over. The Bar has an activist role in making the legal process more streamlined, simple and economical.
The rules of interpretation of statutes are too technical, arcane, sometimes fossilised making the meaning of the law beyond plain understanding. This also affects the poor who cannot afford to consult lawyers for every riddle in the law. Our jurisprudence must be more plain and promotive of justice, not legalistic and wrapped in a mystery inside an enigma. Labour law, real estate legislation, and confusing plurality of precedents make social justice an imbroglio. The social philosophy of the Bench and the Bar must accord with the pro-humanism of the supreme law.
The tryst with destiny made when India won independence emphasised the alleviation of poverty and inequality, which are aspects of economic injustice. Therefore, our jurisprudence must possess a vision of this social philosophy. The judicature must be an instrumentality to fulfil the sublime objective of "wiping every tear from every eye." This message must inform the interpretation of law, the compassion of the statute book, and access to justice in this dynamic dimension. The spiritual-material ethos must be humanity more than legality.
(The writer is a former Judge of the Supreme Court of India.)
An effective free legal aid system and speedy disposal of cases are ways to improve the present situation.
THE JUSTICE system across the nation must be made accessible to the poor and the handicapped who are currently priced out of the courts and tribunals. A fundamental restructuring of the judicial administration is needed for this. We have still not departed from the British-Indian pattern of justice administration. The current system is dilatory, multi-tiered, alien to, and expensive for, the average Indian.
When people talk about access to justice, they may mean many different things depending on their ethos and socio-economic history, and developmental potential. But every discussion assumes a goal called "justice," and assumes further that some group or individual in a society finds the door to justice closed, or at least too stiff to move on its hinges. The ways in which justice is denied are various — it costs too much, or is, for whatever reason, too difficult, too alien, or too slow for the group or individual shut out. The sufferers may be, in general, the poor, or the lower class, or some other disadvantaged section. In some societies, it is a racial minority or an ethnic group, or simply the working class. Many people, in recent years, have also come to feel the problem extends as well to groups with more diffused interests — the general consumer, or the man and woman on the street. This last idea, that those with diffused or general interests have trouble accessing the levers of the law, is one of underpinnings of the "public interest" law movement in the United States.
In India, we have a system that ends up with the two sides to a dispute being represented by professional advocates. Our British-Indian heritage, which remains the same after Independence, involves the Bar as integral to the system. Therefore, access to justice makes access to the Bar a sine qua non. If advocates and the other formalities become too expensive, a large majority of the poor are priced out of the judicial market. Good lawyers have to be paid high. The complicated procedures demand investment beyond the means of the indigent litigant who belongs to weaker classes while the opposite party hires expensive lawyers and vanquishes the handicapped, although justice may be on his or her side.
What is the solution? An effective free legal aid system that will provide Adivasis and other backward classes with lawyers of competence and commitment. A comprehensive national scheme sensitive to the disadvantaged is necessary. The statutory scheme now operative is altogether inadequate, limited, and alien to the illiterate and indigent. A dynamic system accessible to the humblest must be brought in. The all-India Bar has a catalyst role in this regard. Every Bar Association must set up a panel of legal activists who have concern for equal justice for the underprivileged, who will render efficient free service in court and by way of consultation and advice and promotion of settlement of the issues. The Bar Council must subsidise this panel. Free legal aid is no charity but incidental to fundamental rights, rather human rights in their holistic perspective.
Another serious flaw is the provision for too many appeals, revisions, and reviews that end up emptying the pockets of the poor. Early and, if possible, just settlement of disputes are the requisite of a healthy legal system. Today, the trial court, with heavy court fee, is the beginning of a litigative battle that never sees an end even after decades. Cases pending in the high courts after decades of delay in the lower courts is pathetic injustice. There is no reason why the procedure should not be simplified — revisions abolished, number of appeals reduced, cases finished in the course of a year. Why not evening courts and attempts at settlement by advocates and judges? There are many ways of eliminating litigation by the advocates on either side — reducing the play of technicality to reach a fair arrangement. This is never done these days and courts are lost in leisurely hearing and long arguments. Even judgments after arguments take considerable time, sometimes years. The victim in all such cases is the economically backward party. Judge Learned Hand has cynically remarked that a party must execute a will before he goes to court, because who knows he will survive by the time the case is over. The Bar has an activist role in making the legal process more streamlined, simple and economical.
The rules of interpretation of statutes are too technical, arcane, sometimes fossilised making the meaning of the law beyond plain understanding. This also affects the poor who cannot afford to consult lawyers for every riddle in the law. Our jurisprudence must be more plain and promotive of justice, not legalistic and wrapped in a mystery inside an enigma. Labour law, real estate legislation, and confusing plurality of precedents make social justice an imbroglio. The social philosophy of the Bench and the Bar must accord with the pro-humanism of the supreme law.
The tryst with destiny made when India won independence emphasised the alleviation of poverty and inequality, which are aspects of economic injustice. Therefore, our jurisprudence must possess a vision of this social philosophy. The judicature must be an instrumentality to fulfil the sublime objective of "wiping every tear from every eye." This message must inform the interpretation of law, the compassion of the statute book, and access to justice in this dynamic dimension. The spiritual-material ethos must be humanity more than legality.
(The writer is a former Judge of the Supreme Court of India.)
Tuesday, May 22, 2007
Basic structure of the Constitution revisited
Basic structure of the Constitution revisited
T.R. Andhyarujina ,The Hindu May 21,2007
The basic structure theory plays a useful part in our constitutional jurisprudence. But was there truly a judicial formulation by the Supreme Court of India of the basic structure doctrine in the Kesavananda Bharati case? An insider's unravelling of a fascinating story.
THIRTY-FOUR years ago, on April 24, 1973, thirteen judges of the Supreme Court assembled in the Chief Justice's court packed to its capacity with lawyers and laypersons. They delivered eleven judgments in India's most celebrated case in constitutional law — the Kesavananda Bharati case. For over three decades we have believed that in that case a majority of judges decided that Parliament has no power to amend the basic structure of the Constitution.
Revelations of how the Kesavananda case was decided have been disclosed in later interviews with those who were involved in the case, writings of scholars, and by a revealing autobiography of Justice Jaganmohan Reddy, one of the judges in that case. This writer, a counsel in the case, kept detailed notes of the proceedings of the case. We can now piece together a collated account of how the case was decided. At the end of it, the question arises — was there truly a judicial formulation of the theory of basic structure in that case, as it has come to mean today; and was the case decided in an atmosphere conducive to a detached determination of a highly contentious matter with political overtones?
To reverse the Golak Nath case (1967), which had held that Parliament had no power to amend fundamental rights, and in anticipation of a major constitutional battle, we now know that the government carefully selected some judges who would not be obstructive to its reversal. The case became a contest not only between the rival parties but apparently among some of the judges who were committed to their own strong views on Parliament's power to amend the Constitution. Justice Jaganmohan Reddy records this about some his colleagues: "I got the impression [from the first day] that minds were closed and views were determined."
The case was essentially a political fight in a court of law with a political background. It was conducted under continuous and intense pressure the likes of which it is hoped will never be seen again. One author has described the atmosphere of the court as "poisonous." A judge on the bench later spoke about the "unusual happenings" in the case. If the several "unusual happenings" in the case are related in detail, they will make one doubt if the decision in the case was truly a judicial one — expected from judges with detachment from the results of the controversy before them.
On April 24, 1973, the eleven separate judgments were delivered by nine judges; collectively these ran into more than 1000 printed pages. Six judges — Chief Justice S.M. Sikri and Justices J.M. Shelat, K.S. Hegde, P. Jaganmohan Reddy, A.N. Grover, and S. Mukherjea — were of the opinion that Parliament's power was limited because of implied and inherent limitations in the Constitution, including those in fundamental rights. Six other judges — Justices A.N. Ray, D.G. Palekar, K.K. Mathew, S.N. Dwivedi, M.H. Beg, and Y.V. Chandrachud — were of the opinion that there were no limitations at all on Parliament's power to amend the Constitution. But one judge — Justice H.R. Khanna — took neither side. He held that Parliament had the full power of amending the Constitution; but because it had the power only "to amend," it must leave "the basic structure or framework of the Constitution" intact. It was a hopelessly divided verdict after all the labour and contest of five months. No majority, no minority, nobody could say what was the verdict.
How was it then said that the Court by a majority held that Parliament had no power to amend the basic structure of the Constitution? Thereby hangs a tale not generally known. Immediately after the eleven judges finished reading their judgments, Chief Justice Sikri, in whose opinion Parliament's power was limited by inherent and implied limitations, passed on a hastily prepared paper called a "View of the Majority" for signatures by the thirteen judges on the bench. One of the conclusions in the "View of the Majority" was that "Parliament did not have the power to amend the basic structure or framework of the Constitution." This was lifted from one of the conclusions in the judgment of Justice H.R. Khanna. Nine judges signed the statement in court. Four others refused to sign it.
By any reading of the eleven judgments, this conclusion could not have been the view of the majority. It was only the view of one judge — Justice H.R. Khanna. Some judges had no time to read all the eleven judgments as they were prepared under great constraints of time owing to the retirement of the Chief Justice the next day. Justice Chandrachud confessed that he had a chance hurriedly to read four draft judgments of his colleagues. No conference was called of all judges for finding out the majority view. The one conference called by the Chief Justice excluded those judges who were of the opinion that there were no limitations on the amending powers. Nor was the conclusion debated in court, as it ought to have been. The Chief Justice's action has been described by some as an act of statesmanship. Others believe it was a manoeuvre to create a majority that did not exist.
The verdict would have remained in this uncertain state but for accidental events following the decision. On August 1, 1975, with lightning speed and by an outrageous abuse of the amending power during the Emergency, Parliament made the 39th Amendment to the Constitution. This introduced Article 329 A of the Constitution — which sought to validate Indira Gandhi's election set aside by a judge of the Allahabad High Court without any contest, including her pending appeal in the Supreme Court.
On August 11, 1975, Indira Gandhi's election appeal against her disqualification was heard by five judges presided over by Chief Justice A.N. Ray. He had been appointed Chief Justice of India by the government the day after the judgments in the Kesavanada case — superseding three other judges who had decided against the unlimited power of Parliament to amend the Constitution. The government believed that with the amendment to Article 329A of the Constitution, her appeal would simply be allowed. But so outrageous was the amendment that all five judges declared it bad as it violated "the basic structure." Nevertheless, Indira Gandhi's appeal was allowed by an amendment made to the Representation of the People Act, 1951, which cured all illegalities in her election. The court could strike down constitutional law but not an ordinary law that carried out the same purpose. To many this seemed perplexing.
Everyone took it that the court had now approved the basic structure theory by striking down the amendment to Article 329A — everyone, that is, except Chief Justice A.N. Ray. He had stated in Indira Gandhi's case that the hearing would proceed "on the assumption that it was not necessary to challenge the majority view in Kesavananda Bharati case." On November 9, 1975, two days after the Indira Gandhi case was decided, the Chief Justice constituted a new bench of thirteen judges to review the Kesavananda Bharati case.
For two days, N.A. Palkhivala made the most eloquent and passionate argument against the review. On November 12, the third day, the Chief Justice announced suddenly at the very outset of hearing: "The bench is dissolved." Thus ended an inglorious attempt to review the Kesavananda judgment. Whatever the reasons for the dissolution of the bench, Chief Justice Ray's maladroit attempt to review the basic structure limitation gave it a legitimacy that no subsequent affirmation of it could have given.
But the problem could not be avoided. In 1980, in the Minerva Mills case, the question was raised whether there was indeed a majority view on the limitation of the basic structure. Justice Bhagwati said that the statement signed by nine judges had no legal effect at all and could not be regarded as the law declared by the Supreme Court. He said the so-called majority view was an unusual exercise that could not have been done by judges who had ceased to have any function after delivering their judgments and who had no time to read the judgments. However Justice Bhagwati relieved himself from deciding what he called "a troublesome question" by saying that Indira Gandhi's case had accepted the majority view that Parliament's power of amendment was limited. This was not correct as that case was decided on the assumption that it was not necessary to challenge the majority view.
So a single judge's opinion — Justice Khanna's of a limitation of the basic structure on Parliament's power — has passed off as the law. But Justice Khanna was responsible for another vital dimension of the basic structure two years after the case was decided. In the Kesavananda case, he did not say that fundamental rights were part of the basic structure of the Constitution, although six other judges said that and the case was entirely about the validity of amending fundamental rights by the challenged constitutional amendments. Three of Justice Khanna's brother judges in the Kesavananda case were clearly of the opinion that Justice Khanna had not held that fundamental rights were part of the basic structure in the Kesavananda Bharati case.
But in Indira Gandhi's election case two years later, Justice Khanna "clarified" his judgment in the Kesavananda case. He now said that he had given clear indications in his judgment that fundamental rights were part of the basic structure. By so clarifying his judgment, Justice Khanna did not realise that this clarification rendered his judgment in the Kesavananda case hopelessly self-contradictory, as he had held unconditionally valid two constitutional amendments that nullified vital fundamental rights. With that dubious exercise, Justice Khanna's "clarification" is now a vital part of the basic structure. Fundamental rights are now immune to an amendment if it violates the basic structure of the Constitution.
In the latest judgment, delivered on January 11, 2007, by nine judges of the Court on the Ninth Schedule to the Constitution, the basic structure limitation has been stated to be "an axiom of our constitutional law." An axiom means a self-evident truth. So be it. Whatever its origins, the basic structure theory plays a useful part in our constitutional jurisprudence. Parliament does not and should not have an unlimited power to amend the Constitution. However, in the glorification of the basic structure theory, it is important to bear in mind its infirm roots and how predilections and prejudices of judges, chance, and accidental circumstances have played a greater part rather than any logic or conscious formulation of it.
(The writer is a former Solicitor-General of India. This article is based on his lecture, which was presided over by Lok Sabha Speaker Somnath Chatterjee, to the Supreme Court Bar Association on April 4, 2007.)
T.R. Andhyarujina ,The Hindu May 21,2007
The basic structure theory plays a useful part in our constitutional jurisprudence. But was there truly a judicial formulation by the Supreme Court of India of the basic structure doctrine in the Kesavananda Bharati case? An insider's unravelling of a fascinating story.
THIRTY-FOUR years ago, on April 24, 1973, thirteen judges of the Supreme Court assembled in the Chief Justice's court packed to its capacity with lawyers and laypersons. They delivered eleven judgments in India's most celebrated case in constitutional law — the Kesavananda Bharati case. For over three decades we have believed that in that case a majority of judges decided that Parliament has no power to amend the basic structure of the Constitution.
Revelations of how the Kesavananda case was decided have been disclosed in later interviews with those who were involved in the case, writings of scholars, and by a revealing autobiography of Justice Jaganmohan Reddy, one of the judges in that case. This writer, a counsel in the case, kept detailed notes of the proceedings of the case. We can now piece together a collated account of how the case was decided. At the end of it, the question arises — was there truly a judicial formulation of the theory of basic structure in that case, as it has come to mean today; and was the case decided in an atmosphere conducive to a detached determination of a highly contentious matter with political overtones?
To reverse the Golak Nath case (1967), which had held that Parliament had no power to amend fundamental rights, and in anticipation of a major constitutional battle, we now know that the government carefully selected some judges who would not be obstructive to its reversal. The case became a contest not only between the rival parties but apparently among some of the judges who were committed to their own strong views on Parliament's power to amend the Constitution. Justice Jaganmohan Reddy records this about some his colleagues: "I got the impression [from the first day] that minds were closed and views were determined."
The case was essentially a political fight in a court of law with a political background. It was conducted under continuous and intense pressure the likes of which it is hoped will never be seen again. One author has described the atmosphere of the court as "poisonous." A judge on the bench later spoke about the "unusual happenings" in the case. If the several "unusual happenings" in the case are related in detail, they will make one doubt if the decision in the case was truly a judicial one — expected from judges with detachment from the results of the controversy before them.
On April 24, 1973, the eleven separate judgments were delivered by nine judges; collectively these ran into more than 1000 printed pages. Six judges — Chief Justice S.M. Sikri and Justices J.M. Shelat, K.S. Hegde, P. Jaganmohan Reddy, A.N. Grover, and S. Mukherjea — were of the opinion that Parliament's power was limited because of implied and inherent limitations in the Constitution, including those in fundamental rights. Six other judges — Justices A.N. Ray, D.G. Palekar, K.K. Mathew, S.N. Dwivedi, M.H. Beg, and Y.V. Chandrachud — were of the opinion that there were no limitations at all on Parliament's power to amend the Constitution. But one judge — Justice H.R. Khanna — took neither side. He held that Parliament had the full power of amending the Constitution; but because it had the power only "to amend," it must leave "the basic structure or framework of the Constitution" intact. It was a hopelessly divided verdict after all the labour and contest of five months. No majority, no minority, nobody could say what was the verdict.
How was it then said that the Court by a majority held that Parliament had no power to amend the basic structure of the Constitution? Thereby hangs a tale not generally known. Immediately after the eleven judges finished reading their judgments, Chief Justice Sikri, in whose opinion Parliament's power was limited by inherent and implied limitations, passed on a hastily prepared paper called a "View of the Majority" for signatures by the thirteen judges on the bench. One of the conclusions in the "View of the Majority" was that "Parliament did not have the power to amend the basic structure or framework of the Constitution." This was lifted from one of the conclusions in the judgment of Justice H.R. Khanna. Nine judges signed the statement in court. Four others refused to sign it.
By any reading of the eleven judgments, this conclusion could not have been the view of the majority. It was only the view of one judge — Justice H.R. Khanna. Some judges had no time to read all the eleven judgments as they were prepared under great constraints of time owing to the retirement of the Chief Justice the next day. Justice Chandrachud confessed that he had a chance hurriedly to read four draft judgments of his colleagues. No conference was called of all judges for finding out the majority view. The one conference called by the Chief Justice excluded those judges who were of the opinion that there were no limitations on the amending powers. Nor was the conclusion debated in court, as it ought to have been. The Chief Justice's action has been described by some as an act of statesmanship. Others believe it was a manoeuvre to create a majority that did not exist.
The verdict would have remained in this uncertain state but for accidental events following the decision. On August 1, 1975, with lightning speed and by an outrageous abuse of the amending power during the Emergency, Parliament made the 39th Amendment to the Constitution. This introduced Article 329 A of the Constitution — which sought to validate Indira Gandhi's election set aside by a judge of the Allahabad High Court without any contest, including her pending appeal in the Supreme Court.
On August 11, 1975, Indira Gandhi's election appeal against her disqualification was heard by five judges presided over by Chief Justice A.N. Ray. He had been appointed Chief Justice of India by the government the day after the judgments in the Kesavanada case — superseding three other judges who had decided against the unlimited power of Parliament to amend the Constitution. The government believed that with the amendment to Article 329A of the Constitution, her appeal would simply be allowed. But so outrageous was the amendment that all five judges declared it bad as it violated "the basic structure." Nevertheless, Indira Gandhi's appeal was allowed by an amendment made to the Representation of the People Act, 1951, which cured all illegalities in her election. The court could strike down constitutional law but not an ordinary law that carried out the same purpose. To many this seemed perplexing.
Everyone took it that the court had now approved the basic structure theory by striking down the amendment to Article 329A — everyone, that is, except Chief Justice A.N. Ray. He had stated in Indira Gandhi's case that the hearing would proceed "on the assumption that it was not necessary to challenge the majority view in Kesavananda Bharati case." On November 9, 1975, two days after the Indira Gandhi case was decided, the Chief Justice constituted a new bench of thirteen judges to review the Kesavananda Bharati case.
For two days, N.A. Palkhivala made the most eloquent and passionate argument against the review. On November 12, the third day, the Chief Justice announced suddenly at the very outset of hearing: "The bench is dissolved." Thus ended an inglorious attempt to review the Kesavananda judgment. Whatever the reasons for the dissolution of the bench, Chief Justice Ray's maladroit attempt to review the basic structure limitation gave it a legitimacy that no subsequent affirmation of it could have given.
But the problem could not be avoided. In 1980, in the Minerva Mills case, the question was raised whether there was indeed a majority view on the limitation of the basic structure. Justice Bhagwati said that the statement signed by nine judges had no legal effect at all and could not be regarded as the law declared by the Supreme Court. He said the so-called majority view was an unusual exercise that could not have been done by judges who had ceased to have any function after delivering their judgments and who had no time to read the judgments. However Justice Bhagwati relieved himself from deciding what he called "a troublesome question" by saying that Indira Gandhi's case had accepted the majority view that Parliament's power of amendment was limited. This was not correct as that case was decided on the assumption that it was not necessary to challenge the majority view.
So a single judge's opinion — Justice Khanna's of a limitation of the basic structure on Parliament's power — has passed off as the law. But Justice Khanna was responsible for another vital dimension of the basic structure two years after the case was decided. In the Kesavananda case, he did not say that fundamental rights were part of the basic structure of the Constitution, although six other judges said that and the case was entirely about the validity of amending fundamental rights by the challenged constitutional amendments. Three of Justice Khanna's brother judges in the Kesavananda case were clearly of the opinion that Justice Khanna had not held that fundamental rights were part of the basic structure in the Kesavananda Bharati case.
But in Indira Gandhi's election case two years later, Justice Khanna "clarified" his judgment in the Kesavananda case. He now said that he had given clear indications in his judgment that fundamental rights were part of the basic structure. By so clarifying his judgment, Justice Khanna did not realise that this clarification rendered his judgment in the Kesavananda case hopelessly self-contradictory, as he had held unconditionally valid two constitutional amendments that nullified vital fundamental rights. With that dubious exercise, Justice Khanna's "clarification" is now a vital part of the basic structure. Fundamental rights are now immune to an amendment if it violates the basic structure of the Constitution.
In the latest judgment, delivered on January 11, 2007, by nine judges of the Court on the Ninth Schedule to the Constitution, the basic structure limitation has been stated to be "an axiom of our constitutional law." An axiom means a self-evident truth. So be it. Whatever its origins, the basic structure theory plays a useful part in our constitutional jurisprudence. Parliament does not and should not have an unlimited power to amend the Constitution. However, in the glorification of the basic structure theory, it is important to bear in mind its infirm roots and how predilections and prejudices of judges, chance, and accidental circumstances have played a greater part rather than any logic or conscious formulation of it.
(The writer is a former Solicitor-General of India. This article is based on his lecture, which was presided over by Lok Sabha Speaker Somnath Chatterjee, to the Supreme Court Bar Association on April 4, 2007.)
Saturday, April 07, 2007
‘The Constitution does not envisage judicial review as the only way to correct every wrong’
J. S. Verma, Former Chief Justice of India
Posted online: Saturday, April 07, 2007 at 0000 hrs Indian Express
The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large-scale sealing operations of commercial premises in unauthorised areas of Delhi.
The implications of the judiciary’s involvement in this process, which is essentially an executive function, are wide. Several questions arise: What and where is the remedy for any illegality committed in these operations? Are there judicially manageable standards for this exercise? The judiciary having no machinery for implementation of the orders, what happens in the event of refusal or failure of the executive to co-operate? Has the judiciary kept in view the provisions of the general law, particularly the Specific Relief Act which provides that in certain circumstances the discretionary relief must be refused, even though it is legal to grant it? Without considering these and related questions, judicial intervention may attract the vice of ad hocism or tyranny. It would then suffer from the defect of want of juristic base to have precedent value. Inconsistency of decisions in such matters resulting in discrimination is another aspect. Want of legitimacy of judicial intervention is the casualty. These pitfalls must be avoided.
Reference to instances of judicial intervention, which have had a positive effect on the quality of governance, is apposite in this context.
A glaring instance of positive impact is that relating to environment and forests. The state obligation for protection and improvement of environment and safeguarding of forests and wildlife is a principle fundamental in governance under Article 48A; and this is also a fundamental duty of every citizen under Article 51A. A serious global threat to the environment and forests, coupled with the apathy and inertia of the executive to take prompt precautionary measures compelled judicial intervention. The orders made by the Supreme Court in TN Godavarman, AIR 1997 SC 1228 and the other related cases had the desired positive effect, which is self-evident.
I believe there is a similar positive response of the other branches to the Supreme Court decision in the Vishakha case, AIR 1997 SC 3011, which defines ‘sexual harassment’ and gives directions to curb the social evil at workplaces. The executive has taken the steps, accordingly; and there is a move to enact the needed legislation to cover the field. The decision clearly says that it would operate only till enactment of the needed legislation, which was a clear statement that the judiciary was operating in virgin territory for the enforcement of fundamental rights, and not in the occupied field.
Legislative functions
The main areas of apprehension of conflict between the judiciary and the legislature relate to the speaker’s jurisdiction under the Anti-Defection Law; administration of the secretariat of the legislatures; the proceedings in the legislatures, and privileges of the members of the Parliament and the state legislatures; judicial review of the proclamation under Article 356; and judicial review of the laws.
The Constitution gives a clear indication of the desired mutual respect and comity between the judiciary and the legislatures by the provisions in Articles 121, 122, 211, 212 and 361. These provisions restrict any discussion in the Parliament or a state legislature with respect to the conduct of any judge of the Supreme Court or of a high court in the discharge of his duties except upon a motion for the removal of the judge; similarly, the proceedings in Parliament or a state legislature shall not be called in question in courts on the ground of any alleged irregularity of procedure, nor any officer or member shall be subject to any court’s jurisdiction in respect of the exercise by him of those powers; and immunity from courts is provided to the president and governor for the exercise and performance of the powers and duties of his office. This is the broad feature of the area of exclusive dominance of legislative and judicial power, which must guide both branches in this debate.
Jharkhand order
The recent Interim Order dated 9 March 2005 made by the Supreme Court in the Jharkhand Assembly case has been subject to considerable adverse comment, not only by the Speaker of Lok Sabha, but also by some eminent lawyers and jurists. With due respect, I am inclined to agree with them on this issue. By its order, the court fixed the date for the session of the legislature, its one-point agenda to have a floor test; issued directions to the speaker relating to conduct of the proceedings; and ordered video-recording of the proceedings with direction to send a copy to the court.
It is sufficient to say that the court overlooked the earlier binding decisions of larger benches laying down the parameters of separation of powers between the judiciary and the legislatures relating to immunity of the proceedings from judicial review. It was not a matter amenable to judicial intervention. If the court felt that ‘judicial hands off’ was not warranted to save the democratic process, it could have asked counsel to take instructions from the governor and report the same day whether he would prepone the date of the session and direct the floor test. I am sure the governor would have taken the hint and done the needful making court intervention unnecessary. That would have been an act of judicial statesmanship. I do hope the Supreme Court itself would soon correct the aberration of the above orders in the Jharkhand and UP cases.
‘Cash for query’ case
This is another sensitive area. It continues so, because of the failure to codify the privileges as required by Articles 105 and 194. Naturally, whenever there is a claim of a new privilege that is not specifically recognised, the need is to interpret the Constitution to decide that question. Once a privilege is so recognised, the exercise of that privilege is to be controlled by the legislature, immune from judicial review. Supreme Court being the final arbiter of the meaning of the Constitution, decision on the question of existence of the privilege is in the domain of the judiciary; and, thereafter, its exercise is within the legislature’s domain. This is the basic constitutional premise.
The recent judgment dated 10 January 2007 in the matter relating to expulsion of some members of Parliament for taking bribes to put questions in Parliament, labeled as ‘cash for query’ case, has evoked a mixed response. The court held that legislatures must have the power to expel members for misconduct as a self-cleansing measure. Thus, this privilege was upheld rejecting the challenge of absence of such a power in the House. This has been duly acclaimed.
The other part of the judgment holding that legislatures cannot claim immunity from limited judicial review of the exercise of that power causes concern. Howsoever limited be the judicial scrutiny, availability of judicial review in that area erodes the separation of powers and immunity of the proceedings asserted by the Constitution. I do hope the court will have occasion to re-examine this part of the judgment, and it will remove the area of potential conflict.
Judicial review of Article 356
The Supreme Court in S.R. Bommai, AIR 1994 SC 1918, has upheld justiciability of the proclamation under Article 356. There is unanimity on the broad issue of justiciability, even though there is difference in the separate opinions on the scope and extent of permissible judicial review. In my separate opinion in that case, I have upheld only a limited judicial review confined to cases amenable to the strict objective test, calling for ‘judicial hands off’ in the remaining cases wherein even an element of subjectivity is involved in the decision to invoke Article 356. I also relied on the test of judicially manageable standards to determine the area of justiciability.
In my view, the Constitution does not envisage judicial review as the only mode for the correction of every wrong, and it has left that task in the political matters, which have no judicially manageable standards, for correction by the political process that is better equipped for the purpose. This part of the constitutional scheme is to be remembered by all branches.
The invocation of the power under Article 356 recently in relation to Bihar and the Supreme Court decision in 2006 on its validity is a case needing specific mention. The proclamation under Article 356 and dissolution of the Bihar Assembly were challenged in the Supreme Court. The challenge was entertained and fresh elections were not interrupted. The fresh electoral verdict was clearly against the exercise of power under Article 356.
The Supreme Court delivered a divided judgment after the electoral verdict. The majority opinion, in substance, held invalid the invocation of Article 356 and fastened the blame on the Bihar Governor for his report saying that it misled the Union government. However, the governor alone was criticised and not the Union government. It further said, that in the circumstances of the case no further relief need be granted. The separate minority opinion of K.G. Balakrishnan J. (as he then was) relied on my opinion in S.R. Bommai case to differ from the majority saying that the case was not amenable to judicial intervention.
The doubts arising from the majority view are many: If the proclamation could be held invalid and the governor faulted for his report, why was the Union government spared, when it was the deciding authority not bound to act merely on the governor’s report? What useful purpose was served by entertaining the petition and not stopping fresh elections, which were bound to complicate the issue of ultimate relief if the challenge succeeded, as it did? Does this case not indicate the lack of judicially manageable standards on the basis of the larger scope of judicial intervention according to the majority view in S.R. Bommai’s case? Is there not the need to re-examine the scope of judicial review of a proclamation under Article 356 in the light of the recent experience in the Bihar case?
The facts of the Bihar case show that an element of subjectivity was involved in taking the final decision to invoke Article 356 and the strict objective test was not available. There were no judicially manageable standards to enable judicial intervention. The correction could be made politically by a fresh electoral verdict, as did happen. This would appear to be the real reason for the inability to grant any substantial relief even after upholding the allegation of misuse of power. The final outcome on this occasion, despite judicial intervention was the same, that is, correction by the political remedy of electoral verdict.
For the present it is better to leave this issue at this stage with a note of caution expecting the different branches to be more circumspect in the exercise of their respective power.
Conclusion
The scheme of separation of powers in its essence, and not with rigidity is indication of a culture of joint responsibility of all branches of governance to work together for serving the common purpose indicated in the directive principles, which are the principles fundamental in governance to guide them. Certain gaps and grey areas in the Constitution are constitutional abeyances or hedges to prevent rigid postures and to promote a spirit of co-operation with mutual respect. Healthy conventions developed in the working of the Constitution are intended to fill those gaps. This has been done to a great extent till now, and the effort needs to continue.
Excerpted from the Pandit Kunji Lal Dubey Memorial Lecture, 2007, at Rani Durgavati Vishwavidyalaya, Jabalpur on March 24
Posted online: Saturday, April 07, 2007 at 0000 hrs Indian Express
The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large-scale sealing operations of commercial premises in unauthorised areas of Delhi.
The implications of the judiciary’s involvement in this process, which is essentially an executive function, are wide. Several questions arise: What and where is the remedy for any illegality committed in these operations? Are there judicially manageable standards for this exercise? The judiciary having no machinery for implementation of the orders, what happens in the event of refusal or failure of the executive to co-operate? Has the judiciary kept in view the provisions of the general law, particularly the Specific Relief Act which provides that in certain circumstances the discretionary relief must be refused, even though it is legal to grant it? Without considering these and related questions, judicial intervention may attract the vice of ad hocism or tyranny. It would then suffer from the defect of want of juristic base to have precedent value. Inconsistency of decisions in such matters resulting in discrimination is another aspect. Want of legitimacy of judicial intervention is the casualty. These pitfalls must be avoided.
Reference to instances of judicial intervention, which have had a positive effect on the quality of governance, is apposite in this context.
A glaring instance of positive impact is that relating to environment and forests. The state obligation for protection and improvement of environment and safeguarding of forests and wildlife is a principle fundamental in governance under Article 48A; and this is also a fundamental duty of every citizen under Article 51A. A serious global threat to the environment and forests, coupled with the apathy and inertia of the executive to take prompt precautionary measures compelled judicial intervention. The orders made by the Supreme Court in TN Godavarman, AIR 1997 SC 1228 and the other related cases had the desired positive effect, which is self-evident.
I believe there is a similar positive response of the other branches to the Supreme Court decision in the Vishakha case, AIR 1997 SC 3011, which defines ‘sexual harassment’ and gives directions to curb the social evil at workplaces. The executive has taken the steps, accordingly; and there is a move to enact the needed legislation to cover the field. The decision clearly says that it would operate only till enactment of the needed legislation, which was a clear statement that the judiciary was operating in virgin territory for the enforcement of fundamental rights, and not in the occupied field.
Legislative functions
The main areas of apprehension of conflict between the judiciary and the legislature relate to the speaker’s jurisdiction under the Anti-Defection Law; administration of the secretariat of the legislatures; the proceedings in the legislatures, and privileges of the members of the Parliament and the state legislatures; judicial review of the proclamation under Article 356; and judicial review of the laws.
The Constitution gives a clear indication of the desired mutual respect and comity between the judiciary and the legislatures by the provisions in Articles 121, 122, 211, 212 and 361. These provisions restrict any discussion in the Parliament or a state legislature with respect to the conduct of any judge of the Supreme Court or of a high court in the discharge of his duties except upon a motion for the removal of the judge; similarly, the proceedings in Parliament or a state legislature shall not be called in question in courts on the ground of any alleged irregularity of procedure, nor any officer or member shall be subject to any court’s jurisdiction in respect of the exercise by him of those powers; and immunity from courts is provided to the president and governor for the exercise and performance of the powers and duties of his office. This is the broad feature of the area of exclusive dominance of legislative and judicial power, which must guide both branches in this debate.
Jharkhand order
The recent Interim Order dated 9 March 2005 made by the Supreme Court in the Jharkhand Assembly case has been subject to considerable adverse comment, not only by the Speaker of Lok Sabha, but also by some eminent lawyers and jurists. With due respect, I am inclined to agree with them on this issue. By its order, the court fixed the date for the session of the legislature, its one-point agenda to have a floor test; issued directions to the speaker relating to conduct of the proceedings; and ordered video-recording of the proceedings with direction to send a copy to the court.
It is sufficient to say that the court overlooked the earlier binding decisions of larger benches laying down the parameters of separation of powers between the judiciary and the legislatures relating to immunity of the proceedings from judicial review. It was not a matter amenable to judicial intervention. If the court felt that ‘judicial hands off’ was not warranted to save the democratic process, it could have asked counsel to take instructions from the governor and report the same day whether he would prepone the date of the session and direct the floor test. I am sure the governor would have taken the hint and done the needful making court intervention unnecessary. That would have been an act of judicial statesmanship. I do hope the Supreme Court itself would soon correct the aberration of the above orders in the Jharkhand and UP cases.
‘Cash for query’ case
This is another sensitive area. It continues so, because of the failure to codify the privileges as required by Articles 105 and 194. Naturally, whenever there is a claim of a new privilege that is not specifically recognised, the need is to interpret the Constitution to decide that question. Once a privilege is so recognised, the exercise of that privilege is to be controlled by the legislature, immune from judicial review. Supreme Court being the final arbiter of the meaning of the Constitution, decision on the question of existence of the privilege is in the domain of the judiciary; and, thereafter, its exercise is within the legislature’s domain. This is the basic constitutional premise.
The recent judgment dated 10 January 2007 in the matter relating to expulsion of some members of Parliament for taking bribes to put questions in Parliament, labeled as ‘cash for query’ case, has evoked a mixed response. The court held that legislatures must have the power to expel members for misconduct as a self-cleansing measure. Thus, this privilege was upheld rejecting the challenge of absence of such a power in the House. This has been duly acclaimed.
The other part of the judgment holding that legislatures cannot claim immunity from limited judicial review of the exercise of that power causes concern. Howsoever limited be the judicial scrutiny, availability of judicial review in that area erodes the separation of powers and immunity of the proceedings asserted by the Constitution. I do hope the court will have occasion to re-examine this part of the judgment, and it will remove the area of potential conflict.
Judicial review of Article 356
The Supreme Court in S.R. Bommai, AIR 1994 SC 1918, has upheld justiciability of the proclamation under Article 356. There is unanimity on the broad issue of justiciability, even though there is difference in the separate opinions on the scope and extent of permissible judicial review. In my separate opinion in that case, I have upheld only a limited judicial review confined to cases amenable to the strict objective test, calling for ‘judicial hands off’ in the remaining cases wherein even an element of subjectivity is involved in the decision to invoke Article 356. I also relied on the test of judicially manageable standards to determine the area of justiciability.
In my view, the Constitution does not envisage judicial review as the only mode for the correction of every wrong, and it has left that task in the political matters, which have no judicially manageable standards, for correction by the political process that is better equipped for the purpose. This part of the constitutional scheme is to be remembered by all branches.
The invocation of the power under Article 356 recently in relation to Bihar and the Supreme Court decision in 2006 on its validity is a case needing specific mention. The proclamation under Article 356 and dissolution of the Bihar Assembly were challenged in the Supreme Court. The challenge was entertained and fresh elections were not interrupted. The fresh electoral verdict was clearly against the exercise of power under Article 356.
The Supreme Court delivered a divided judgment after the electoral verdict. The majority opinion, in substance, held invalid the invocation of Article 356 and fastened the blame on the Bihar Governor for his report saying that it misled the Union government. However, the governor alone was criticised and not the Union government. It further said, that in the circumstances of the case no further relief need be granted. The separate minority opinion of K.G. Balakrishnan J. (as he then was) relied on my opinion in S.R. Bommai case to differ from the majority saying that the case was not amenable to judicial intervention.
The doubts arising from the majority view are many: If the proclamation could be held invalid and the governor faulted for his report, why was the Union government spared, when it was the deciding authority not bound to act merely on the governor’s report? What useful purpose was served by entertaining the petition and not stopping fresh elections, which were bound to complicate the issue of ultimate relief if the challenge succeeded, as it did? Does this case not indicate the lack of judicially manageable standards on the basis of the larger scope of judicial intervention according to the majority view in S.R. Bommai’s case? Is there not the need to re-examine the scope of judicial review of a proclamation under Article 356 in the light of the recent experience in the Bihar case?
The facts of the Bihar case show that an element of subjectivity was involved in taking the final decision to invoke Article 356 and the strict objective test was not available. There were no judicially manageable standards to enable judicial intervention. The correction could be made politically by a fresh electoral verdict, as did happen. This would appear to be the real reason for the inability to grant any substantial relief even after upholding the allegation of misuse of power. The final outcome on this occasion, despite judicial intervention was the same, that is, correction by the political remedy of electoral verdict.
For the present it is better to leave this issue at this stage with a note of caution expecting the different branches to be more circumspect in the exercise of their respective power.
Conclusion
The scheme of separation of powers in its essence, and not with rigidity is indication of a culture of joint responsibility of all branches of governance to work together for serving the common purpose indicated in the directive principles, which are the principles fundamental in governance to guide them. Certain gaps and grey areas in the Constitution are constitutional abeyances or hedges to prevent rigid postures and to promote a spirit of co-operation with mutual respect. Healthy conventions developed in the working of the Constitution are intended to fill those gaps. This has been done to a great extent till now, and the effort needs to continue.
Excerpted from the Pandit Kunji Lal Dubey Memorial Lecture, 2007, at Rani Durgavati Vishwavidyalaya, Jabalpur on March 24
‘Judicial activism should be neither judicial ad hocism nor judicial tyranny’
J. S. VERMA, Former Chief Justice of India
Posted online: Friday, April 06, 2007 at 0000 hrs Indian Express
I see no reason for any conflict between the different limbs of governance, which are all meant to serve the common purpose of public good deriving their authority from the common source — the Constitution of India depicting the will of the political sovereign, ‘We the People of India’. Each limb has a clear role in the constitutional scheme. Hence, this topic for the talk because of the emerging current debate on the issue.
Separation of powers
In India, the doctrine of separation of powers is not adopted in its absolute rigidity, but the ‘essence’ of that doctrine with the doctrine of constitutional limitation and trust implicit in the scheme was duly recognised in the Delhi Laws case, AIR 1951 SC 332. Separation of judiciary from the executive is mandated in article 50 of the Constitution, with the independence of judiciary as a necessary corollary: Chandra Mohan v. State of U.P., AIR 1966 SC 1987. Later, the doctrine of separation of powers was elevated to the status of a basic feature of the Constitution in Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, wherein it was observed, thus: “... the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances”.
This concept is now a recognised part of the basic structure of the Constitution, and is at the core of the constitutional scheme: State of Bihar v. Bal Mukund, AIR 2000 SC 1296.
There are inherent checks and balances to keep every organ within the limits of constitutional power. The grey areas are meant to be covered by healthy conventions developed on the basis of mutual respect keeping in view the common purpose to be served by the exercise of that power. Many such conventions have been developed, those remaining need to be expedited to avoid any semblance of conflict.
Areas of concern
Some areas of concern giving rise to the impression of a potential for conflict between the judiciary and the other organs in the context of separation of powers need a closer look. The Lok Sabha Speaker, Somnath Chatterjee, an eminent lawyer, has voiced this concern in recent times. Many other knowledgeable persons whose views cannot be ignored share a similar impression. In an article titled ‘With due respect, Lordships’, published in The Indian Express, dated 12 March 2007, Pratap Bhanu Mehta, president of the Centre for Policy Research has said: “The evidence of judicial overreach is now too overwhelming to be ignored”; and he concludes: “It has to be admitted that the line between appropriate judicial intervention and judicial overreach is often tricky... courts are doing things because they can, not because they are right, legal or just”. Indeed, strong words requiring urgent circumspection by the judiciary.
There can be no quarrel with the above observation that ‘the line between appropriate judicial intervention and judicial overreach is often tricky’. For that reason, greater expertise and self restraint of the judiciary is needed in the borderline cases eschewing personal predilections and emotive responses. Inappropriate judicial intervention results in judicial ad hocism or judicial tyranny because of inadequate expertise in dealing with the matter. Judiciary itself must provide the solution for this aberration. Continuing judicial education may be the answer! It appears, the National Judicial Academy at Bhopal has now commenced that process.
Such matters come to the judiciary in the garb of public interest litigation, which need greater scrutiny to satisfy the test of bonafides of the cause as well as of the petitioner. It is time the Supreme Court framed rules to ensure consistency in the approach of the court in all PILs giving statutory force to the several judicial orders made in this behalf. The high courts should follow the same practice by amending their rules to prevent ad hocism and inconsistency. A decade ago, an exercise to amend the Supreme Court Rules was made for this purpose and a draft was duly prepared during my tenure. I am not aware of the further steps that remained to be taken for its implementation. That draft with modification, if necessary in the light of future experience, needs to be resurrected.
A related aspect pertains to deliberate misuse of the judicial process by some vested interests to settle political scores, or to shift the responsibility to the judiciary for deciding some delicate political issue found inconvenient by the political executive for decision.
Judicial activism
Judicial intervention is legitimate when it comes within the scope of permissible judicial review. The thin dividing line demarcating appropriate and inappropriate judicial intervention is drawn on the basis of functions allocated to the different branches by the Constitution. In the borderline cases, a legal question at the core determines the need for judicial intervention. Purely political questions and policy matters not involving decision of a core legal issue are outside the domain of judiciary.
The US Supreme Court laid down a pragmatic test in Baker v. Carr, 369 US 186 (1962) for judicial intervention in matters with a political hue, apart from those expressly allocated to another branch. It held that the controversy before the court must have a ‘justiciable cause of action’ and should not suffer from ‘a lack of judicially discoverable and manageable standards for resolving it’. This is a pre-requisite for judicial intervention. Otherwise, the policy of ‘judicial hands-off’ should govern, because such a matter is required to be dealt with by another branch. The position under the Indian Constitution is similar. I had taken the same restricted view in my separate opinion relating to judicial review of a proclamation under article 356 of the Constitution in SR Bommai v. Union of India, AIR 1994 SC 1918, dissociating from the wider view taken in the majority opinion.
Instances abound of resort to the judicial process because of the failure or inaction of the designated authority to discharge its legal obligation. Absence of any remedy in that situation would drive the aggrieved to resort to some extra-legal remedy leading to the negation of the rule of law, unless the judiciary intervened. More often, it is the judicial intervention in such situations that causes the apprehension of judicial ascendancy disturbing the delicate balance of separation of powers.
The power of the superior judiciary to issue ‘mandamus’ or a suitable direction to the concerned public authority commanding performance of its legal obligation is the remedy in the case of such institutional failure. However, there is a clear distinction between commanding performance by the concerned authority and the judiciary taking over that function itself. The former, and not the latter, is legitimate judicial intervention. The judiciary to retain its credibility must not obliterate this fine distinction.
The principles of general law must govern the exercise of judicial power even under articles 32 and 226 of the Constitution because they are the constitutional remedies for the enforcement of constitutional and other legal rights. For this reason, a fair insight into the general law is a part of the requisite equipment for proper exercise of that power. The principles regulating the exercise of the discretionary power under the Specific Relief Act and the circumstances in which the court would decline relief must be borne in mind. It is settled that the court would not issue an infructuous writ or make an order incapable of enforcement by it, or for which there are no judicially manageable standards. Adhering to these basic norms to avoid the pitfalls can prevent legitimate criticism of some judicial interventions.
A classic instance of accepted legitimate judicial intervention in a situation of this kind is the well-known Hawala case, AIR 1998 SC 889, which has withstood the test of times. In that case the Supreme Court developed the new concept of ‘continuing mandamus’ to compel the CBI to investigate the criminal charges leveled against some high dignitaries because of its inaction for years, which was a clear violation of at least article 14. However, the court rejected the repeated plea for taking over the investigation and having it done by a new body under its supervision, instead of by the CBI. Acceptance of that plea would have been an inappropriate judicial intervention. In order to avoid any possible misuse of the judicial process by any vested interest, the court appointed a senior advocate as amicus curiae denuding the original petitioners of the status of dominus litus to control the proceedings. This practice has come to be followed in similar matters.
The Hawala case had a larger impact on the polity. It reinforced the need for probity in public life and of accountability of public men; and affirming people’s fundamental right to corruption-free governance it evolved a public law remedy for the enforcement of that right with accountability of public men. It also triggered the process for systemic improvement in the quality of governance by giving autonomy to the CBI in the performance of its statutory function, and stressing the need for similar improvement of the entire police force and other law enforcement agencies. However, the ultimate performance will depend on the quality of the men who work the system.
Appropriate judicial intervention or legitimate judicial activism is that which is founded on an established or evolved juristic principle having precedent value and performed within judicially manageable standards. It should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the judiciary of the function allocated to another branch is inappropriate. In a complex matter combining several functions, and having a core legal issue that is separable and amenable to judicial review, the judiciary must entertain only the legitimate part leaving the rest for the consequential action by the concerned branch. The famous US Supreme Court decision of Marshall C.J. in Marbury v. Madison, (1803) 5 US 137 asserting the power of judicial review without risking non-compliance of its order, is an example of judicial statesmanship.
Judicial activism is appropriate when it is in the domain of legitimate judicial review. It should be neither judicial ad hocism nor judicial tyranny. In my view, these are the broad parameters for testing the propriety and legitimacy of judicial interventions.
Some significant specific instances of judicial interventions that have invited criticism, and a few in which the judiciary was deliberately misused by some vested interest, may now be referred. Objectivity being a basic trait expected of the judiciary, it must govern the needed introspection, occasioned by the criticism leveled against some of its recent interventions on the ground of erosion of the constituent principle of separation of powers.
Executive functions
Instances are cited of judicial intervention in matters entirely within the domain of the executive, including policy decisions. If the judicial dictate is only to compel the executive to perform its function, without taking over the task itself, it cannot be faulted because the power to issue a ‘mandamus’ is vested in the judiciary. The scrutiny is needed only of the acts of the judiciary seen as transgressing the dividing line.
Some instances attracting legitimate criticism need mention to illustrate the point. Judiciary has intervened to question a ‘mysterious car’ racing down Tughlaq Road in Delhi, allotment of a particular bungalow to a judge, specific bungalows for the judge’s pool, monkeys capering in colonies to stray cattle on the streets, cleaning public conveniences, and levying congestion charges at peak hours at airports with heavy traffic etc., under the threat of use of contempt power to enforce compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance.
Another category relates to illegal constructions or encroachments on public lands and in the Lutyen’s Bungalow Zone in Delhi. The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large scale sealing operations of commercial premises in unauthorised areas of Delhi.
Posted online: Friday, April 06, 2007 at 0000 hrs Indian Express
I see no reason for any conflict between the different limbs of governance, which are all meant to serve the common purpose of public good deriving their authority from the common source — the Constitution of India depicting the will of the political sovereign, ‘We the People of India’. Each limb has a clear role in the constitutional scheme. Hence, this topic for the talk because of the emerging current debate on the issue.
Separation of powers
In India, the doctrine of separation of powers is not adopted in its absolute rigidity, but the ‘essence’ of that doctrine with the doctrine of constitutional limitation and trust implicit in the scheme was duly recognised in the Delhi Laws case, AIR 1951 SC 332. Separation of judiciary from the executive is mandated in article 50 of the Constitution, with the independence of judiciary as a necessary corollary: Chandra Mohan v. State of U.P., AIR 1966 SC 1987. Later, the doctrine of separation of powers was elevated to the status of a basic feature of the Constitution in Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, wherein it was observed, thus: “... the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances”.
This concept is now a recognised part of the basic structure of the Constitution, and is at the core of the constitutional scheme: State of Bihar v. Bal Mukund, AIR 2000 SC 1296.
There are inherent checks and balances to keep every organ within the limits of constitutional power. The grey areas are meant to be covered by healthy conventions developed on the basis of mutual respect keeping in view the common purpose to be served by the exercise of that power. Many such conventions have been developed, those remaining need to be expedited to avoid any semblance of conflict.
Areas of concern
Some areas of concern giving rise to the impression of a potential for conflict between the judiciary and the other organs in the context of separation of powers need a closer look. The Lok Sabha Speaker, Somnath Chatterjee, an eminent lawyer, has voiced this concern in recent times. Many other knowledgeable persons whose views cannot be ignored share a similar impression. In an article titled ‘With due respect, Lordships’, published in The Indian Express, dated 12 March 2007, Pratap Bhanu Mehta, president of the Centre for Policy Research has said: “The evidence of judicial overreach is now too overwhelming to be ignored”; and he concludes: “It has to be admitted that the line between appropriate judicial intervention and judicial overreach is often tricky... courts are doing things because they can, not because they are right, legal or just”. Indeed, strong words requiring urgent circumspection by the judiciary.
There can be no quarrel with the above observation that ‘the line between appropriate judicial intervention and judicial overreach is often tricky’. For that reason, greater expertise and self restraint of the judiciary is needed in the borderline cases eschewing personal predilections and emotive responses. Inappropriate judicial intervention results in judicial ad hocism or judicial tyranny because of inadequate expertise in dealing with the matter. Judiciary itself must provide the solution for this aberration. Continuing judicial education may be the answer! It appears, the National Judicial Academy at Bhopal has now commenced that process.
Such matters come to the judiciary in the garb of public interest litigation, which need greater scrutiny to satisfy the test of bonafides of the cause as well as of the petitioner. It is time the Supreme Court framed rules to ensure consistency in the approach of the court in all PILs giving statutory force to the several judicial orders made in this behalf. The high courts should follow the same practice by amending their rules to prevent ad hocism and inconsistency. A decade ago, an exercise to amend the Supreme Court Rules was made for this purpose and a draft was duly prepared during my tenure. I am not aware of the further steps that remained to be taken for its implementation. That draft with modification, if necessary in the light of future experience, needs to be resurrected.
A related aspect pertains to deliberate misuse of the judicial process by some vested interests to settle political scores, or to shift the responsibility to the judiciary for deciding some delicate political issue found inconvenient by the political executive for decision.
Judicial activism
Judicial intervention is legitimate when it comes within the scope of permissible judicial review. The thin dividing line demarcating appropriate and inappropriate judicial intervention is drawn on the basis of functions allocated to the different branches by the Constitution. In the borderline cases, a legal question at the core determines the need for judicial intervention. Purely political questions and policy matters not involving decision of a core legal issue are outside the domain of judiciary.
The US Supreme Court laid down a pragmatic test in Baker v. Carr, 369 US 186 (1962) for judicial intervention in matters with a political hue, apart from those expressly allocated to another branch. It held that the controversy before the court must have a ‘justiciable cause of action’ and should not suffer from ‘a lack of judicially discoverable and manageable standards for resolving it’. This is a pre-requisite for judicial intervention. Otherwise, the policy of ‘judicial hands-off’ should govern, because such a matter is required to be dealt with by another branch. The position under the Indian Constitution is similar. I had taken the same restricted view in my separate opinion relating to judicial review of a proclamation under article 356 of the Constitution in SR Bommai v. Union of India, AIR 1994 SC 1918, dissociating from the wider view taken in the majority opinion.
Instances abound of resort to the judicial process because of the failure or inaction of the designated authority to discharge its legal obligation. Absence of any remedy in that situation would drive the aggrieved to resort to some extra-legal remedy leading to the negation of the rule of law, unless the judiciary intervened. More often, it is the judicial intervention in such situations that causes the apprehension of judicial ascendancy disturbing the delicate balance of separation of powers.
The power of the superior judiciary to issue ‘mandamus’ or a suitable direction to the concerned public authority commanding performance of its legal obligation is the remedy in the case of such institutional failure. However, there is a clear distinction between commanding performance by the concerned authority and the judiciary taking over that function itself. The former, and not the latter, is legitimate judicial intervention. The judiciary to retain its credibility must not obliterate this fine distinction.
The principles of general law must govern the exercise of judicial power even under articles 32 and 226 of the Constitution because they are the constitutional remedies for the enforcement of constitutional and other legal rights. For this reason, a fair insight into the general law is a part of the requisite equipment for proper exercise of that power. The principles regulating the exercise of the discretionary power under the Specific Relief Act and the circumstances in which the court would decline relief must be borne in mind. It is settled that the court would not issue an infructuous writ or make an order incapable of enforcement by it, or for which there are no judicially manageable standards. Adhering to these basic norms to avoid the pitfalls can prevent legitimate criticism of some judicial interventions.
A classic instance of accepted legitimate judicial intervention in a situation of this kind is the well-known Hawala case, AIR 1998 SC 889, which has withstood the test of times. In that case the Supreme Court developed the new concept of ‘continuing mandamus’ to compel the CBI to investigate the criminal charges leveled against some high dignitaries because of its inaction for years, which was a clear violation of at least article 14. However, the court rejected the repeated plea for taking over the investigation and having it done by a new body under its supervision, instead of by the CBI. Acceptance of that plea would have been an inappropriate judicial intervention. In order to avoid any possible misuse of the judicial process by any vested interest, the court appointed a senior advocate as amicus curiae denuding the original petitioners of the status of dominus litus to control the proceedings. This practice has come to be followed in similar matters.
The Hawala case had a larger impact on the polity. It reinforced the need for probity in public life and of accountability of public men; and affirming people’s fundamental right to corruption-free governance it evolved a public law remedy for the enforcement of that right with accountability of public men. It also triggered the process for systemic improvement in the quality of governance by giving autonomy to the CBI in the performance of its statutory function, and stressing the need for similar improvement of the entire police force and other law enforcement agencies. However, the ultimate performance will depend on the quality of the men who work the system.
Appropriate judicial intervention or legitimate judicial activism is that which is founded on an established or evolved juristic principle having precedent value and performed within judicially manageable standards. It should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the judiciary of the function allocated to another branch is inappropriate. In a complex matter combining several functions, and having a core legal issue that is separable and amenable to judicial review, the judiciary must entertain only the legitimate part leaving the rest for the consequential action by the concerned branch. The famous US Supreme Court decision of Marshall C.J. in Marbury v. Madison, (1803) 5 US 137 asserting the power of judicial review without risking non-compliance of its order, is an example of judicial statesmanship.
Judicial activism is appropriate when it is in the domain of legitimate judicial review. It should be neither judicial ad hocism nor judicial tyranny. In my view, these are the broad parameters for testing the propriety and legitimacy of judicial interventions.
Some significant specific instances of judicial interventions that have invited criticism, and a few in which the judiciary was deliberately misused by some vested interest, may now be referred. Objectivity being a basic trait expected of the judiciary, it must govern the needed introspection, occasioned by the criticism leveled against some of its recent interventions on the ground of erosion of the constituent principle of separation of powers.
Executive functions
Instances are cited of judicial intervention in matters entirely within the domain of the executive, including policy decisions. If the judicial dictate is only to compel the executive to perform its function, without taking over the task itself, it cannot be faulted because the power to issue a ‘mandamus’ is vested in the judiciary. The scrutiny is needed only of the acts of the judiciary seen as transgressing the dividing line.
Some instances attracting legitimate criticism need mention to illustrate the point. Judiciary has intervened to question a ‘mysterious car’ racing down Tughlaq Road in Delhi, allotment of a particular bungalow to a judge, specific bungalows for the judge’s pool, monkeys capering in colonies to stray cattle on the streets, cleaning public conveniences, and levying congestion charges at peak hours at airports with heavy traffic etc., under the threat of use of contempt power to enforce compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance.
Another category relates to illegal constructions or encroachments on public lands and in the Lutyen’s Bungalow Zone in Delhi. The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large scale sealing operations of commercial premises in unauthorised areas of Delhi.
Tuesday, April 03, 2007
Ban on sex determination needed: Centre
[ 27 Mar, 2007 0309hrs ISTTIMES NEWS NETWORK ]
MUMBAI: The Union of India told the Bombay high court (HC) that there was no question of lifting the ban on pre-natal sex determination tests. The government was responding to a public interest litigation filed by a Mumbai couple seeking relaxation of the ban. In an affidavit, Sushma Rath, under secretary, Union ministry of health and family welfare, said that sections of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 2002, that enforced the ban, was in accordance with the law. The Act, the affidavit said, was enacted by Parliament to check the rising incidents of female foeticide. "The government of India, anticipating a catastrophe in the form of severe imbalance in the male-female ratio, has passed the Act," said the affidavit, pointing out that the sex ratio in the country of the population in the 0 to 6 age group was adversely against the girl child. The infant child ratio has come down from 945 (for every 1,000 male children) as per the 1991 census to 927 in 2001. The problem was especially bad in affluent states like Punjab (798), Haryana (819), Chandigarh (845), Delhi (868), Gujarat (883) and Himachal Pradesh (896). The couple, who have two girls and now want a son, have questioned the constitutional validity of the ban. They have sought a relaxation of the ban for couples who already have one child. The affidavit, however, said that the ban was a policy decision of the government. “Balancing the sex ratio in the society is more important than balancing the sex ratio within the family," the affidavit affirmed. "Any imbalance in the sex ratio of the society will adversely affect the overall well-being of women in the society." The PIL is scheduled to come for hearing later this week.
MUMBAI: The Union of India told the Bombay high court (HC) that there was no question of lifting the ban on pre-natal sex determination tests. The government was responding to a public interest litigation filed by a Mumbai couple seeking relaxation of the ban. In an affidavit, Sushma Rath, under secretary, Union ministry of health and family welfare, said that sections of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 2002, that enforced the ban, was in accordance with the law. The Act, the affidavit said, was enacted by Parliament to check the rising incidents of female foeticide. "The government of India, anticipating a catastrophe in the form of severe imbalance in the male-female ratio, has passed the Act," said the affidavit, pointing out that the sex ratio in the country of the population in the 0 to 6 age group was adversely against the girl child. The infant child ratio has come down from 945 (for every 1,000 male children) as per the 1991 census to 927 in 2001. The problem was especially bad in affluent states like Punjab (798), Haryana (819), Chandigarh (845), Delhi (868), Gujarat (883) and Himachal Pradesh (896). The couple, who have two girls and now want a son, have questioned the constitutional validity of the ban. They have sought a relaxation of the ban for couples who already have one child. The affidavit, however, said that the ban was a policy decision of the government. “Balancing the sex ratio in the society is more important than balancing the sex ratio within the family," the affidavit affirmed. "Any imbalance in the sex ratio of the society will adversely affect the overall well-being of women in the society." The PIL is scheduled to come for hearing later this week.
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