Who will rule the rulers, who will police the police and who will judge the judges are questions which must have been haunting the democracy – if she has a soul and a life. Innumerable questions, issues and controversies surround the judiciary as of now. A law student sometimes is compelled to think that the nicely worded judgments which seem to have a natural flow of reasons and logics strictly following the path treaded by democracy seem opaque and doubtful once we try to go behind the mere words and look into the actual sequence of events. The meaning hidden between the lines gets revealed. Saying this may sound ridiculous, even contemptuous, but if it is to be said, must be said, like the Supreme Court Judge in a judgment had once declared, dissent is the safety valve of democracy.

Let us try to get through the details of this, through few recent examples.

The Urban Naxals Case

Discretion in Justice

Prashant Bhushan, Abhishek Manu Singhvi-the Congress Lawyers filed this petition and the day it was filed, it was heard by the Supreme Court.

Without assigning any reasons, Supreme Court ordered for ‘House Arrest’ at the request of the petitioners. The order seems to be granted at the drop of the hat. This House Arrest went on for almost a month.

Where do we find the provision of House Arrest in the Criminal Procedure Code ? Nowhere. Indian Penal Code or any other such Law ? Nowhere. The Supreme Court, heard the petition on that very day when it was filed, and without giving any reasons, extended the house arrest of Guatam Navalakha and Sudha Bhardwaj and allowed the prayer of the petitioners that in case Varavara Rao, Arun Farreira and Varnon Gonsalvis, are arrested, also be kept under House Arrest. The direction has come without any reasons .

The same Supreme Court has a number of times directed its subordinate Courts to give reasons while passing any orders.

It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration justice – delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is thonly indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind. “

(Supreme Court – The Secretary & Curator, Victoria Memorial v. Howrah Ganatantrik Nagrik Samity and ors., JT 2010(2)SC 566 para 31 to 33 )

The arrests and remands fall exclusively within the domain of the Magistrate Court called as the ‘remand court’. Without any apparent reason nor assigning any reason the Supreme Court went on to hear the case which should have been dismissed at the threshold. This allowed the media to officially keep it in limelight, allowing the beneficiaries to take advantage and politicize the issue to it’s maximum.

(Of course, this is not probably the first time wherein Supreme Court has passed order violating it’s own principles. It granted bail to Dr. Vinayak Sen in 2011 who was convicted for Unlawful Activities and sent to life imprisonment, without assigning any reasons.)

Justice delayed is Justice denied!

After a sufficient period of time, Supreme Court dismissed the petition. It had to be dismissed. The law is already settled that investigation is the exclusive domain of the executive and Courts should refrain from interfering in it. Did the House Arrest period not adversely affect the investigation? Why house arrests ? I googled the history of house arrests in India. Google showed me the line ‘house arrest cases in India’, but there was no such case in the history of India atleast as per Google.

If necessitated, the Supreme Court could have granted bail, constituted a Special Investigation Team or passed any such order. But, after hearing the case, why house arrest, and that too, at the very first instance, without assigning reason! It is the settled legal position, that when there is competent court, Constitutional Courts should not interfere, then why a  hurried interference  for this case?

The case was ultimately dismissed, with whatever fruits of house arrests delaying the investigation to the accused or their accomplices. Justice Chandrachud dissented with the majority consisting of the then Chief Justice and Justice Khanwilkar, both being senior to Justice Chandrachud at that time. In his opinion, constitution of SIT was necessary, keeping the options of who should lead the investigation, open.

Setting wrong precedents

His dissenting judgment further puzzles a common man. At one point he writes,

‘A brief historical background is necessary. On 1 January 1818, a few hundred soldiers of the East India Company comprising of Dalits, tribals, Muslims, Christians and backward communities defeated the Peshwa Army led by Bajirao II at Koregaon, on the banks of the Bhima river near Pune. Like many of its genre, the battle has assumed a legendary status primarily because of the victory of the Dalits’.

The victory of Dalits! From which angle My Lords ? Dalits fought for and under the leadership of the British. The victory of the British Army is termed as the Victory of Dalits! Against whom then ? Marathas ? Obviously, because Peshawa Army did not consist of only Bramhins. Does Justice Chandrachud try to interpret it this way ? And since when the domain of history became area of expertise of the Supreme Court judges ?

Interestingly, Anand Teltumbde, another recently arrested accused in the same case and hailed as intellectual face of Dalit Movement takes exactly opposite view. In his words, ‘battle between Peshwas and British had taken place when the soldiers had fought merely for their employers. The caste of soldiers was never an issue’.

So is it an attitude of a biased mind or the effort to spread the bias further ? We are unable to find the answers and questions remain which we need to bury deep down in our mind for the maxim that the ‘King can do no wrong’ has been followed in our country except the Kings are replaced by the Supreme Court.

Further, according to Justice Chandrachud, Constitution of Special Investigation Team was a necessity. A common man can cull out the following reasons which weighed 1. The petition is filed by 5 distinguished scholars including Romila Thapar. 2. After the orders of the Supreme Court – Pune Police held press conference and released some data to the media. [3. Nothing more.]

Chief Justice Chandrachud has delivered judgments which have changed the shape of country in the recent past. His studiousness and intellectual prowess are praiseworthy. His judgments can be analyzed someday later. We will take up our own confusions further of which Urban Naxal Case was a part.

Selective investigations

Vineet Narain’s case – It is the Havala Case that created tremors in the Country. The case is quite forgotten by the present generation. In 1991, an arrest linked to militants in Kashmir led to a raid on hawala brokers, revealing evidence of large-scale payments to national politicians. On 25 March 1991, as per the court proceedings published by the Supreme court of India, Ashfak Hussain Lone, a person alleged to be an official of the terrorist organisation Hizbul Mujahideen, was arrested in Delhi. During his interrogation, the police learnt that his organisation was funded through hawala, using Surendra Kumar Jain and his family as a conduit. Based on this and further information received during Lone’s interrogation, the Central Bureau of Investigation (CBI) conducted raids on the premises of Surendra Kumar Jain, his brothers, relatives and businesses. During the raids, the CBI seized Indian and foreign currency, two diaries and two note books in their premises. These diaries contained detailed accounts of vast payments made to people identified only by initials. The initials corresponded to the initials of high ranking politicians, both in power and out of power, and of high ranking beaurocrats. At this stage, the investigation stopped at the CBI and neither the Jain’s, nor the contents of their diaries were investigated by the CBI. Meanwhile, officers of the CBI involved in the investigation were transferred to other places by orders from ruling politicians.

At this stage, on 4th October 1993, a journalist Vineet Narain filed a petition under Article 32 of the Constitution of India, before Supreme Court. It was heard by the Supreme Court and it passed various orders as well. If one reads the final judgment, he finds the great concern about necessity to conduct proper investigation and therefore forging a tool of continuous writ of mandamus to monitor the investigation without interfering in it. By passing the final order, Chief Justice Jagdish Saran Varma, known as conscience keeper of the Indian Judiciary created mechanism for appointment of the Director of CBI and for many other issues. The method of monitoring of investigation which is absent in the constitution was invented in this petition by forging the tool of ‘continuing mandamus’. This paved way for the courts to monitor the investigations.

Politically motivated investigations

Though it may be a great contribution to the evolving justice rendering system, reference needs also to be made about a judgment passed by the same Justice J.S. Varma in Saint Kitts Case. Briefly stating, V.P. Singh, the then prominent leader and one time Prime Minister was accused of having transferred funds to a bank of Saint Kitts Island. Allegation of corruption again rocked the nation, investigation was transferred to CBI. According to the prosecution, during the period 1988 to October 1989 Chandraswami, P.V. Narsimha Rao, K.K. Tewari, A.P. Nanday and George D. McLean and other public servants/private persons entered into a criminal conspiracy for committing illegal acts of forgery and creating false evidence of the opening of an account by Shri Ajeya Singh (Son of V.P. Singh – the then Prime Minister) with the First Trust Corporation Limited (FTCL) at St. Kitts, Carabian Island, showing Shri Vishwanath Pratap Singh as a beneficiary thereof in order to ruin the political career of V.P. Singh. Someday a news was published in Gulf country to defame Mr. V.P. Singh.

Misuse of power to affect justice

Prosecution N. K. Singh was the Joint Director of CBI, praised by Chandrashekhar who became Prime Minister by toppling the V. P. Singh government for arresting Indira Gandhi in some cases. But after becoming Prime Minster, he had his own issues to sort. It is alleged that Chandraswami was very close to Chandrashekhar. N.K. Singh writes in his biography, ‘The Plain Truth: Memoirs of a CBI Officer’ that he came to know he was being transferred for he would not mend ways and compromise the investigation in Saint Kitts Case. He was transferred to the Border Security Force, knowing it to be an effort to drag, delay and scuttle the investigation of Saint Kitts Case for the benefit of the accused like Chandraswami, P.V. Narsimha Rao, K.K. Tewari etc.

N.K. Singh challenged his transfer before the Central Administrative Tribunal which dismissed his petition. He challenged the decision of the Central Administrative Tribunal to the Supreme Court. His principle contention was that the transfer was made only to scuttle the investigation. Issue was quite serious, known to general public, obvious to the Supreme Court.

It was very same Justice J.S. Varma who dismissed the petition on the simple ground that N.K.Singh’s personal career did not suffer and therefore he was not supposed to concern himself with the investigation of the cases. If no aspersion is cast upon his successor in CBI, then it was not for him to question the reasons and motives behind his transfer but to leave behind all the investigation and its clues.

Unsettling the justice

Was it not a serious case ? In Jain Hawala case, the allegation of delay in investigation by a press reporter, is entertained by Supreme Court. The reporter was not asked to confine himself to his job of writing stories and columns in his newspaper and get his salary. In Saint Kitts case, the investigating officer was coming to the Court and expressing the same concern. But he was then only left to take care of his career and if it was not falling apart, he was not bothered about the possible outcome of a case. (N.k.Singh V/s Union of India 1995 AIR 423). Court also accepted that the order of the Central Administrative Tribunal was improper but didn’t disturb it.

In Jain Diary judgment, Justice J. S. Varma mentions about chargesheet being filed in Saint Kitts Case and leaves it there. One is compelled to conclude the evidences of the crime must have evaporated and case must have died after such decisions.

Rightly so, P. V. Narsimha Rao was arrested, got bail and subsequently discharged from the case as also Chandraswami was acquitted in 2004. A case which created political turmoil and would have exposed the feigned innocence of people, could have sacked government employees just evaporated into thin air.

Moral of the story – A press reporter can’t be told on his face that he should only publish the news and not bother with the outcomes of any case and sent back home but an investigation officer with an impeccable record can be thrown out of the court telling him only to worry about his own career – though the case is important and allegations are all the more serious for public interest?

Questions do exist, lets ask them so that we try to make a better Nation!

– By Virendra Ichalkaranjikar, President, Hindu Vidhidnya Parishad

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