Friday, November 18, 2016



Arepalli Naga Babu, a visually-challenged IDIA scholar from Machilipatnam in Andhra Pradesh, has yet again strengthened the well-known belief that the only disability in life is lack of will and fortitude. Acting on his petition, the Hyderabad High Court has directed the authorities to accept his application and permit him to write the Judicial Service Exam to be held on 27th of this month, which he was denied earlier.

The court also directed that he be allowed to take the examination in a separate room with the assistance of a scribe and be granted 20 minutes extra for every hour to compensate for the disability.

A division bench comprising Chief Justice Ramesh Ranganathan and Justice A. Shankar Narayana affirmed that he cannot be denied participation in the selection process under the open category merely on account of his handicap(blindness) and stated that ‘there does not appear to be any prohibition in the Andhra Pradesh State Judicial Service Rules 2007 prohibiting visually-challenged candidates from participating in the selection process for appointment to the posts in the AP State Judicial Service’.

Naga Babu, a law graduate from National Law University, Odisha, and a practising advocate of the high court, said the exam notification issued for the Andhra Pradesh and Telangana Judicial Services Exam confined the benefit of reservation only to the orthopedically handicapped and excluded the visually impaired persons.

 He stated that after he applied for the exam, he was informed that his application would be rejected as he was not entitled to write the exam and is neither eligible for reservation as per the rules.

The petitioner challenged the constitutional validity of Rule 7 of the Andhra Pradesh State Judicial Service Rules 2007, and sought its suspension.

He also pleaded the court to permit his to write the exam pending disposal of the writ petition. He contended that Rule 7 is violative of Article 14 and Article 21, as it specifically excludes reservation for the visually -challenged and for the same reason is ultra vires the provisions of The Persons with Disabilities (Equal Opportunities, Protection of rights and Full Participation) Act 1995. While he won the right to take the exam in open category, the high court, however, stopped short of declaring Rule 7 as ultra vires the Act of 1995.

 It stated that it could be examined only after a counter affidavit was filed by the respondents. The high court said the question whether reservation should be provided needed further examination.

In his petition, he had put forth that as per the Persons with Disabilities Act of 1995, the state government is obliged to identify and reserve not less 3 per cent posts for persons with disability. Out of which, 1 per cent posts have to be reserved for the visually-impaired.

The petitioner’s counsel referred to the Delhi High Court order directing provision of 3 per cent reservation for the persons with disability, followed by the 2015 notification, which extended reservation in favour of visually handicapped in the Delhi Judicial service Examination 2015.

He also submitted that Rajasthan High Court has also issued notification providing reservation for the blind.

Hailing from a modest background, resolute and talented Arepalli never got bogged down in the face of economic constraints and visual impairment. He passed 10th grade from his village and secured 80 per cent marks in state board exams.

With the all-encompassing support of Increasing Diversity by Increasing Access (IDIA), he took to legal profession and cleared CLAT securing all-India rank 4. After completing his law graduation from National Law University, Odisha, he has been practising in the high court ever since. The promising former IDIA scholar is also an IAS aspirant and wishes to lead his community to a bright future.




The Supreme Court today reserved its judgment in the case of Krishna Kumar Singh v State of Bihar, after grilling the counsel on both the sides on the propriety of promulgating an ordinance, and not placing it in the legislature to seek its approval, within the prescribed period.

Under Article 123(2)(a), an ordinance shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions.

Article 213(2) (a) has a similar provision with regard to the validity of ordinances promulgated by the Governor of a State, during the recess of state legislature.

Senior advocate, Salman Khurshid, appearing for one of the petitioners, argued that the focus in the case is on repromulgation of ordinances, and therefore, the question whether a Government can avoid placing an ordinance in a legislature, to seek its approval to it, after promulgation, is a minor issue. This prompted the Chief Justice T.S.Thakur to remark that power can’t be exercised without concomitant obligation.

Khurshid then asked the bench to lay down grounds which would ensure that certain effects of an ordinances would endure, even after its expiry. Khurshid suggested that whatever the ruling of the bench in this case, it should apply prospectively, so that the petitioners’ prayer is granted.

When Justice Chandrachud pointed out that the Constitution mandates that the Government should place the Ordinance in the House, senior advocate, Amarendra Sharan, also appearing for a petitioner, suggested that every Ordinance should be treated as a separate ordinance, even if there is a series of repromulgated Ordinances. Therefore, the question of the first Ordinance losing its validity because of the Government’s failure to place it in the legislature, and thereby making the subsequent repromulgated ones vulnerable, does not arise, he contended.

 Earlier, the Solicitor General, Ranjit Kumar, suggested that whether the effects of an Ordinance would endure after its expiry would differ from case to case. He showed his agreement with Justice Sujata Manohar who said in her 1998 judgment that the effect of an Ordinance can be considered as permanent when that effect is irreversible or possibly when it would be highly impractical or against public interest to reverse it, e.g. an election which is validated should not again become invalid.

 The Solicitor General’s view came as a disappointment to many petitioners, who are retired Sanskrit teachers, and who were present in the Court today.

The Bihar Government, through an Ordinance, had granted them the status of government employees, and allowed the Ordinance to lapse subsequently, after repromulgating it a few times. The principle of reversibility would mean that their status as government employees could be reversed, by virtue of the expiry of the Ordinance.



The Supreme Court’s seven-Judge Constitution bench will hear on Thursday arguments on whether it or a nine-Judge bench should review the definition of “industry” as interpreted by Justice Krishna Iyer, as part of another seven Judge Bench, way back in 1978.

The seven Judge bench comprises the Chief Justice T.S.Thakur, and Justices Madan B.Lokur, S.A.Bobde, Adarsh Kumar Goel, Uday Umesh Lalit, D.Y.Chandrachud, and L.Nageswara Rao.

 In the landmark Bangalore Water Supply and Sewerage Board v A.Rajappa, decided by the seven Judge bench, Justice V.R.Krishna Iyer, had amplified the definition of “industry”, as the result of disputes arising in establishments that are not manufacturing industry, but belong to categories such as hospitals, educational and research institutions, government departments, public utilities, professions and clubs.

 The bench, presided by the then CJI, Justice M.H.Beg, included justices Y.V.Chandrachud, P.N.Bhagwati, Krishna Iyer, Jaswant Singh, V.D.Tulzapurkar, and D.A.Desai.

 Of the five Judges who constituted the majority, three had given a common opinion, but two others gave separate opinions, projecting a view partly different from the views expressed by the other three Judges.

Justice Beg, having retired in the mean time, had no opportunity to see the opinions delivered by the other Judges subsequent to his retirement.

 Justice Krishna Iyer, and the two Judges who spoke through him, did not have the benefit of the dissenting opinion of the other two Judges (Justices Jaswant Singh and Tulzapurkar) and the separately partly dissenting opinion of Justice Chandrachud, as those opinions were prepared and delivered subsequent to the delivery of the judgment.

The majority judgment, authored by Justice Krishna Iyer, was delivered by him and on behalf of justices Beg, Bhagwati, and Desai.

Justice Krishna Iyer had expanded the definition of “industry” for the purposes of interpretation of Section 2(j) of the Industrial Disputes Act (IDA), to cover most establishments that involved employer-employee relationship, irrespective of the objectives of the organisation concerned and its ownership and structure.

In 1982, Parliament amended the IDA, to exclude many kinds of establishments from the definition. However, the amendment was never notified. The official reason for not notifying the amendment was that no alternative machinery for redress of grievances of employees in establishments excluded by the amendment had been provided.

In 2005, a five Judge bench, headed by Justice N.Santosh Hegde, referred the case to a larger bench, in State of Uttar Pradaesh v. Jai Bir Singh. The other members of this bench were justices K.G.Balakrishnan, D.M.Dharmadhikari, Arun Kumar and B.N.Srikrishna.

The Hegde bench favoured a review of the 1978 judgment, because it felt it carries an “overemphasis on the rights of workers” in industrial law, and that this has resulted in payment of “huge amounts as back wages” to workers illegally terminated or retrenched and that these awards sometimes “take away the very substratum of industry”.

The Hegde bench also assumed that an over-expansive interpretation of the definition of industry might be a deterrent to private enterprise in India where public employment opportunities are scarce.

The question before the Hegde bench was whether ‘social forestry’ department of State, which is a welfare scheme undertaken for improvement of the environment, would be covered by the definition of “industry” under Section 2(j) of the IDA.

The bench of three Judges in the case of Chief Conservator of Forests v. Jagannath Maruti Kondhare concluded that social forestry department is covered by the definition of “industry” whereas a bench of two Judges in State of Gujarat v Pratamsingh Narsinh Parmar took a different view. This had led to a debate whether the two Judge bench was not bound to follow the precedent set by a three Judge bench earlier.

 The Hegde bench attributed the non-notification of the amendment to the IDA, defining “industry”, to lack of will on the part of the Legislature and the Executive.

Senior advocates, Indira Jaising and Colin Gonsalves, appearing for the employees, had vehemently opposed the prayer made on behalf of the employers for referring the matter to a larger Bench for reconsideration of the judgment in the Bangalore Water case.

The question before the Hegde bench was whether the amended definition, which is now a part of the statute, although not enforced, was a relevant piece of subsequent legislation which could be taken aid of to amplify or restrict the ambit of the definition of “industry” in Section 2(j) of the IDA as it stands in its original form.

 On behalf of the employees, it was urged before the Hegde bench that the unamended definition of industry, as interpreted by the Bangalore Water case, has been the settled law of the land in the industrial field. The settled legal position, it was urged, had operated well, and no better enunciation of scope and effect of the ‘definition’ could be made either by the legislature or by the Indian Labour Organization in its report.

The Hegde bench also took the view that judicial interpretation of the word “industry” in Bangalore Water Supply case was one of the inhibiting factors in the enforcement of the amended definition of the IDA.

 However, the Hegde bench left it to the larger bench to give such meaning and effect to the definition clause in the present context with the experience of all these years and keeping in view the fact that the amended definition of industry was kept dormant all these years.
“Pressing demands of the competing sectors of employers and employees and helplessness of legislature and executive in bringing into force the Amendment Act compel us to make this reference”, the Hegde bench said while referring the case for reconsideration by a larger bench.

The Supreme Court is still struck on the question of the size of the bench to reconsider the 1978 judgment in the Bangalore Water Supply case, it is likely to decide this preliminary issue first, before proceeding further.




“Whether one is going to have a boy or a girl, that kind of information is not necessary in India. The sex ratio is going down in the country and we are concerned about that. Whether you are making money or not we are not concerned with that”

- Supreme Court

Supreme Court today (16/11/2016) directed Microsoft, Google and Yahoo to block all pre-natal sex determination advertisements hosted by them as it was a violation of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 as per which sex determination of the foetus is prohibited in India.

A bench headed by Justice Dipak Misra asked the search engines to do so within 36 hours of a nodal agency of the Centre, which is to be appointed, pointed out to them each such advertisements.

 The nodal agency is also empowered to receive complaints from the general public:
 “Union of India shall constitute a nodal agency which would give advertisments on TV, radio and in newspapers that if anybody comes across anything which identify a girl or a boy (at pre-natal stage), it should be brought to the notice of the nodal agency. Once it is brought to the notice of the nodal agency, it shall inform the search engines and they, after receiving the information, are obliged to delete it within 36 hours and inform the nodal agency, the bench said.

The apex court, which fixed the matter for further hearing on February 17 next year, said the interim arrangement would continue till the issue pertaining to advertisements relating to pre-natal sex determination was debated upon before it.

The apex court was acting on a petition filed by Sabu Mathew George who is a member of the National Inspection and Monitoring Committee set up by the SC in 2003 to inspect and report the implementation of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.

 The plea said such advertisements flooded the internet after the Pre-Natal Diagnostics Technique (PNDT) Act, which came into force in 1994 to crack down on female foeticide, and banned the publication of such ads in the print media.

According to the latest estimates, five lakh female foetuses are aborted annually.

UNICEF, in a recent report, said that India has lost over one crore girls since 2007.

Eighty per cent of the districts in India have recorded an increasingly skewed sex ratio since 1991, the report said.

The 1994 (Pre-Conception and Pre-Natal Diagnostic Techniques) Act says nobody shall propagate (pre-natal sex determination) and if anyone is propagating, it has to be stopped, it said. Whatever is prohibited under the Act cannot go through it (websites), the bench observed, adding, If anyone comes across anything which offends or has an impact on the sex ratio in India, it shall be removed by the search engines within 36 hours. Senior advocate Abhishek Manu Singhvi, who was appearing for Google India Pvt Ltd, said they have complied with the earlier order passed by the apex court in the matter and they have already taken steps to block any such advertisements.
The counsel appearing for the other search engines also said that they have taken steps to comply with the provisions of the Act. However, they contended that the matter requires further debate.
Copy of Order is attached.




"Those who expect to reap the blessing of freedom must undertake to support it.” 

Thomas Paine

Art. 19(1)(a) of the Constitution guarantees freedom of speech & expression. It is also guaranteed under Liberty clause to the preamble. The major international & regional instruments on civil & political rights – the International Covenant on Civil & Political Rights (ICCPR), the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR), & African Charter on Human & People’s Right (ACHPR) – all protect both “freedom of expression” and the “administration of justice.” Freedom of expression is protected in Art.19 of the ICCPR as follows:

1)      Everyone shall have the right to hold opinions without interference.
2)      Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
The permissible restrictions on freedom of expression are expressed in similar terms in the international and regional instruments. Article 19(3) of the ICCPR & the glimpse of same can be seen under Art. 19(2) of the Indian Constitution. It says;
The exercise of the rights provided in article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by ‘law’ and are ‘necessary’; 
  (a) For respect of the rights and reputations of others;  
 (b) For the protection of national security, public order, public health, morals, &‘contempt of court.’
Case Analysis
In the Australian case of Attorney-General for N.S.W. v. Mundey ([1972] 2 NSWLR 887,p.809), Hope J stated:
 There is no more reason why the acts of courts should not be trenchantly criticised than the acts of public institutions, including parliaments. The truth is of course that public institutions in a free society must stand upon their own merits: they cannot be propped up if their conduct does not command the respect and confidence of the community; if their conduct justifies the respect and confidence of a community they do not need the protection of special rules to protect them from criticism.
In the United Kingdom, Australia and New Zealand, the common law test of liability requires a real risk, as opposed to a remote possibility, that public confidence in the judicial system would be undermined [Solicitor-General v. Radio Avon Ltd. [1978] 1 NZLR 225, p.234]. By contrast, in the United States, the offence of “scandalising the court” has been limited in application for several decades. The Supreme Court has made it clear, in a series of cases, that the publication must create a “clear and present danger” to the administration of justice [Bridges v. California, 314US 252].

Since the purpose of this branch of contempt law is to maintain public confidence in the administration of justice, it seems logical that criticisms of judges as individuals, rather than as judges, should not be subject to contempt of court proceedings. This was confirmed in In the Matter of a Special Reference from the Bahama Islands [[1893] AC 138], where the Privy Council ruled that criticisms of the Chief Justice which were not directed at him in his official capacity as a judge were not contempt.

Long back the Privy Council in Ambard [Ambard v. Attorney-General for Trinidad and Tobago [(1936) AC 322]] held that reasoned or legitimate criticism of judges or courts is not contempt of court.

The Privy Council held: The path of criticism is a public way; the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

1)      In Wills [Nationwide News Pty. Ltd. v. Wills [(1992) 177 CLR 1]] the High Court of Australia suggested that truth could be a defence if the comment was also for the public benefit. It said, “…The revelation of truth – at all events when its revelation is for the public benefit – and the making of a fair criticism based on fact do not amount to a contempt of court though the truth revealed or the criticism made is such as to deprive the court or judge of public confidence…”.
2)       In Duda P.N. v. Shivshankar, P., the Supreme Court observed that the contempt jurisdiction should not be used by Judges to uphold their own dignity. In the free market places of ideas, criticism about the judicial system or the Judges should be welcomed, so long as criticisms do not impair or hamper the “administration of justice”.
3)      In Auto Shankars’ Case, Jeevan Reddy J., invoked the famous “Sullivan doctrine” that public persons must be open to stringent comments and accusations as long as made with bonafide diligence, even if untrue.
4)      In Arundhati Roy, In re, the Supreme Court observed that a fair criticism of the conduct of a Judge, the institution of the judiciary and its functioning may not amount to contempt, if made in good faith and in public interest.
5)      In Indirect Tax practitioners’ Association v. R.K. Jain, the S.C. observed that the Court may now permit truth as a defence if two things are satisfied, viz., (i) it is in public interest and (ii) the request for invoking said defence is bona fide. (S.13 ,Contempt of Courts Act,1971).
a)      Is it Art. 19(1)(a) v. rest of the provisions which perhaps imposes reasonable restrictions & curb the speech & expression given under the above provision r/w Liberty clause to the Preamble.
b)     Can a persons’ right to express himself be curtailed for the reasons which perhaps are driven by ones’ own sense of wisdom !
c)       Can a emerging democracy or a power like us afford to put someones’ right of expression in rest by using any tool given under Art.19(2) !
d)     Whether it is advisable in a country like ours to put the expression or speech to rest by using this & that tool for the most minuscule of the reasons. Whether it be curtailed but only in the exceptional of the exceptional circumstances.
Freedom to express is not just fundamental but it is natural also. Taking into consideration the various acts & treaties & the law laid down by various Courts across the various jurisdictions, Free speech & restrictions on it…, we cannot balance the two interests as if they are of equal weight.

Free Speech has a greater weight in this balance that finds itself in various cases delivered by the Supreme Court of India itself. And whenever there is a curb which is being put on free speech, it does then have chilling effects on the very ethos of the Constitution. 


[Published in Livelaw]



The aftermath of the recent Bhopal jailbreak and the subsequent police encounter epitomizes how the rule of law runs the risk of being forsaken at the altar of the modern day discourse around the idea of nationalism in India. The Constitution of India guarantees to every person who is accused regardless of the nature of crime, the right to fair trial and this is further bolstered by the one of the most fundamental principles of in Criminal Law which provides for the presumption of innocence unless proven guilty in the court of law. Therefore, the fact that a person is accused of an act of terrorism does not entitle the State to make any inroads into his constitutionally guaranteed fundamental rights. However, this incident is certainly not a case of denial of fair trial only; in fact it directly pertains to the right to life and human dignity guaranteed to every person under Article 21 of the Constitution of India.

Let us try and break up the reasons why fake encounters pose a threat to the idea of rule of law. The conclusion of a criminal trial will either result in acquittal or conviction of the accused and if convicted for an offence for which death penalty is an alternative punishment, the convict can be sentenced to death by the court, if the case falls in the category of rarest of rare. Thereafter, there is the provision for the mandatory appeal to the High Court, as a person sentenced to death by the trial court cannot be executed without High Court having assented to it. Then if the High Court also affirms the conviction and death sentence, the leave to appeal to the Supreme Court lies and thereafter only if the Supreme Court also affirms the conviction and death sentence, the judicial process culminates, however, the discretionary remedy for the convict at the behest of the Supreme Court still exists in the form of a review petition and in the event of rejection of the review petition, a curative writ petition.

If this judicial process comes to fruition by way of death sentence for the convict; the convict can file a clemency petition before the President of India or the Governor of the State and only after the rejection of mercy petition that the convict can be finally executed. However, even the decision of the President and the Governor is amenable to judicial review before the Supreme Court and High Courts, and most significantly on account of the inordinate and unreasonable delay in the disposal of the mercy petition. Then the exercise of this option of judicial review if done by the High Court can again be challenged in the Supreme Court and Supreme Court’s verdict can still be sought to be reviewed by way of review petitions and in case of rejection of mercy petitions by way of curative writ petitions. This makes the picture of our judicial and constitutional process very onerous and cumbersome on the State, in so far as a person is to be sentenced to death and in relation to the execution of the death sentence. But these are the safeguards which make the retention of death penalty in the statute book, constitutional in India and therefore death of under trials or suspects at the hands of Police must always be viewed with circumspect eyes and not by the expression of jubilation, euphoria and hero worship for the police personnel involved in the incident, regardless of the nature of crime for which the persons killed were suspects or accused. An encounter is no substitute for the legal and constitutional process of dealing with an accused or suspect.

Death of any person in a Police encounter legitimately raises the suspicion about the commission of a cognizable offence; however, in such encounters because of the involvement of Police, death of the accused or suspects by the Police is not taken prima facie as a case which legitimately raises suspicion about the commission of a cognizable offence. A three judge bench of the Supreme Court of India, speaking through the then Chief Justice of India R. M. Lodha in People’s Union for Civil Liberties v. State of Maharashtra, [(2014)10SCC635] lamented the absence of structured guidelines and procedures when a police officer is involved in shooting as is the case in some of the countries. The Court therefore framed guidelines to be followed in case of such incidents and emphasised that doing so is the constitutional duty of the Supreme Court and specifically declared the guidelines to be law as per Article 141 of the Constitution of India.

Key features of the guidelines framed by the Supreme Court:

ü  When death is caused by a firearm used by the Police, an FIR is to be registered to that effect and the same must be forwarded to the Magistrate under section 157 of CrPC in accordance with section 158 of CrPC.
ü  The Court further stated that the investigation is to be conducted by CID or Police team of another Police Station under the supervision of a senior Police Officer who is at least one rank above the head of the Police party involved in the incident to be investigated.
ü  A magisterial inquiry under section 176 CrPC must invariably be done and the report of the inquiry must be sent to the Magistrate competent to take cognizance as per section 190 of CrPC.
ü  Information of the incident must be sent to the National Human Rights Commission or the State Human Rights Commission.
ü   It should be ensured that there is no delay in sending FIR, diary entries, panchnamas, sketch etc. to the Court concerned.
ü   After thorough investigation, the Police report must be sent to the competent court under section 173 CrPC and the trial must be concluded expeditiously.
ü  If on the conclusion of the investigation there are material evidences to show that the use of the firearm by a police officer amounts to commission of an offence under IPC, then the disciplinary action must be promptly initiated against such officer and such officer must be placed under suspension.
ü   The Police officers concerned must surrender their weapon or any other thing for forensic and ballistic analysis.
ü  No out of turn promotions or instant gallantry rewards are to be given, the same can only be given when the gallantry of the officer concerned is proved beyond doubt.

Apart from these measures to be followed in the aftermath of a Police encounter resulting in death of a person, the Court also mandated that a six monthly report of each of such incidents in a standard format is to be sent to the NHRC by the DGP of the State.

The Supreme Court also stated that if the family member of a victim finds that these guidelines are not followed, then he can make a complaint before the Sessions Judge of the district having the territorial jurisdiction over the place of incident and the Sessions Judge must accordingly deal with the merits of the case and proceed further. The Court also stated that these guidelines are to be adhered to both in cases of death and grievous injury.

On July 8, a Supreme Court bench, comprising justices Madan B. Lokur and Uday Umesh Lalit, gave a detailed judgment in Extra Judicial Execution Victim Families Association (EEVFAM) v Union of India explaining why even in a disturbed area in the State of Manipur under Armed Forces Special Powers Act, armed personnel including Indian Army and Manipur Police cannot claim any immunity from prosecution against the allegation of extra judicial killings. The Court has decided to look into the allegations of extra judicial killings in 1590 such cases as alleged by the petitioner in the State of Manipur.

The gulf between the law and reality could not have been starker in the aftermath of the Bhopal Police encounter. Till date we have only heard about the constitution of a one member inquiry commission headed by Justice (Retd.) S. K Pande under the Commissions of Inquiry Act. Earlier, the Chief Minister had prematurely announced that the Home Minister of India has agreed for an investigation by the National Investigation Agency and therefore NIA will now be investigating this matter. The Police officer involved in the encounter have been publicly praised and felicitated by no less than the Chief Minister of Madhya Pradesh. The Chief Minister even announced a cash award of rupees two lakh for each of the Police officers involved and one lakh for those involved in tracking the location of the prisoners who escaped from the Bhopal jail, which thankfully has now been withheld after the constitution of the inquiry commission. The portrayal of those demanding investigation into this incident as terrorist sympathizers is a sinister campaign to stop those voices. We must not allow these voices to be drowned in the din of this ostensible show of perverted nationalism.

[Source: Livelaw]




“There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed.  We are not final because we are infallible, but we are infallible only because we are final.”
-Justice Robert Jackson

Hearing in Courtroom No. 6 of the Supreme Court on 11/11/2016 displayed a series of interesting events reverberating with judicial thunder when the Supreme Court issued contempt notice to a retired yet vocal veteran of the same court. In my view the Justice Katju calling order was violative of Article 124(7) and the only provision permitting the Court to do so was Section 32 of the Advocates Act, 1961.

In a nutshell, the Supreme Court’s bench speaking through Justices Gogoi, Pant & Lalit had requested Justice Katju in review petitions filed by the State and deceased girl’s mother after hearing the Attorney General and Siddarth Luthra on merits, to appear in person before it and participate in the proceedings to debate upon whether the Judgment passed by the bench suffered from any fundamental flaw. After the hearing, the Supreme Court converted it into a suomotu criminal review petition on the Blog written by Justice Katju criticizing the judgment. The case was consequently numbered as a Suo Motu Review (SMR) petition titled as In Re blog published by Justice Markandey Katju in Facebook. The bench on 11/11/2016 allowed Justice Katju to argue on merits and gave him an hour to represent his case. Justice Katju finished his arguments and the Review petition was dismissed. Justice Gogoi took out 2 blogs written by Justice Katju and asked if he had authored the contents therein, on his nod and after the Attorney General called it scandalous and later intemperate, the bench issued contempt notice to Justice Katju.

 Among so many interesting questions this curious case has created, the chief are; Whether the previous order of the court breached Article 124(7), Whether Article 129 has supremacy over Article 19(1)(a) and Whether what Justice Katju wrote was a scurrilous attack intended to scandalise the court and can he be held liable for contempt.

I had opined that the order breached the mandate in Article 124(7) and that in fact the article created a surrounding of immunity for retired Supreme Court judges. Coming to the second question; Article 19(1)(a) gives every citizen the freedom of speech and expression which can be reasonably restricted by the state by enacting a suitable legislation for 8 reasons including contempt of court. Further, Article 129 grants a power to the Supreme Court to punish for contempt of itself. Section 2(c) of the Contempt of Courts Act, 1971 defines criminal contempt to mean and include publication of any matter which scandalises or tends to scandalise, or lowers or tends to lower the authority of any court. A 2006 amendment to the Contempt of Courts Act, 1971 clarifies that the Court may impose punishment for contempt only when it is satisfied that substantially interferes, or tends to substantially interfere with the due course of justice. It is trite law that Article 19(1)(a) is subject to Articles 19(2) and 129 (Dr D.C.Saxena v CJI – 1996 5 SCC 216). Contempt of Court was a later addition in Article 19(2).There are plethora of cases dealing with the subject of fair criticism, power of Supreme Court to punish for contempt and permissible use of contemptuous language. However, here I make an attempt to dwell into whether what Justice Katju wrote was scandalous in nature.

Alexander Hamilton in Federalist Papers pointed out that the weakest or the least dangerous branch of the Government was Judiciary as they depend upon voluntary compliance and can’t generally compel obedience. Justice Robert Jackson famously wrote – “There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed.  We are not final because we are infallible, but we are infallible only because we are final.” The width and scope of Supreme Court’s power on contempt can be seen from the SEBI-Sahara saga wherein for disobeying Court’s Order a massive penalty of Rs 10,000/- Crore was crafted for bailing him out. The Writ petition filed against this order was dismissed as not maintainable as the Supreme Court cannot issue a writ to itself under Article 32. In the present case, however, if one reads what Justice Katju wrote in the two blogs criticizing the Saumya Rape-Murder judgment, there is nothing scandalous enough so as to constitute the offence of criminal contempt. It is his view that the judgment suffers from grave error and the accused should have been convicted for murder, the bench disagreed and dismissed the review. However, commenting upon intellectual level of judges and specifically Justice Gogoi, who in the order has extended that comment to other 2 members of the bench as well, may not be totally correct for a retired judge to say, if not scandalous prima facie.

Firstly, the Supreme Court ought to have refrained from asking justice Katju to come in person and participate in the proceedings.

Secondly, there is absolutely nothing in the blog criticizing the judgment for which Justice Katju may be tried for criminal contempt of the Court but the other blog commenting upon intellectual level of judges and specific comment on Justice Gogoi cannot be termed as correct.

The Supreme Court need not be over sensitive and must look out of the window to have a bigger picture on one hand, whereas on the other hand, it must make sure that the dignity of the institution remains intact and the prestige our judiciary has earned does not gets flushed away by anybody, be it a retired Supreme Court Judge.

 In a classic case of conflict, I hope law prevails. Nevertheless, Justice Katju has 6 weeks to reply.

[Source: Livelaw]




Supreme Court issues contempt notice to Justice Katju, after hearing him on the Govindasamy sentencing case, amidst an ugly spat between him and Justice Gogoi

 Former Judge of the Supreme Court, Justice Markandey Katju, created history today, by appearing in the Court and arguing himself, in defence of the blog post he had written  on the judgment in the Govindasamy case.

 The Supreme  Court, however, appeared to be on the wrong side of history, by issuing a contempt notice to him at the end of the proceedings -ignoring his protests – for writing the blog post critical of the judgment, in a language, which the Attorney General, Mukul Rohatgi, said was intemperate.

When the ugly spat between Justice Gogoi and Justice Katju appeared to cross all norms of decency,  Justice Gogoi asked whether there was anyone in the court room to escort Katju out of the court.   This led to loud protests among the lawyers that ‘this is all wrong, this is all wrong’.

 The unexpected notice to Justice Katju came after two hour-long proceedings, in which Justice Katju, Rohatgi, and  the bench put forth their contentions. With occasional and repetitive  barbs from Justice Katju, that the bench lacked “common sense”, it appeared as if the bench, by not getting provoked by such comments, was taking them lightly.

 Once Justice Gogoi began to dictate his order, he separated the arguments on whether Govindasamy was guilty of murder, from whether Justice Katju was prima facie guilty of contempt of court, by making intemperate remarks in his blog post, which the bench had underlined, and sought the AG’s response.

Rohatgi first said the post was scandalous.  However, when he sensed that the bench was likely to issue contempt notice, he revised his view, and said the underlined portion only suggested he was intemperate, and nothing beyond.

Justice Katju told Justice Gogoi: “Mr.Gogoi, You are provoking me.  This is not the way to treat me.  Don’t try to threaten me. Don’t act funny.  I came here because of your request, out of respect.  Am I to be treated like this?”

 Justice Gogoi to Justice Katju: “You are provoking us. Your blog post is an assault, not only on me, but on the other Judges on the bench.”

How it all began

The proceedings in the packed court room No.6 of the Supreme Court began at 2.10 p.m. with a lot of excitement and suspense, with Justice Katju entering the court room like any other litigant, and taking his seat among others.

The bench comprising justices Ranjan Gogoi, Prafulla C Pant and U.U.Lalit, first gave Justice Katju 30 minutes to make his submissions.  But when he insisted an hour, the bench readily granted it.

When Justice Katju began to talk on the fallibility of Judges, and how he himself admitted to errors in his judgments, Justice Gogoi told him the bench reads his judgments every day, and it knew that it is not infallible.  Therefore, he could well confine himself to the arguments on the case, and why he thinks the bench was erroneous in its judgment, holding Govindaswamy not guilty of murdering Soumya.

 Justice Katju then explained that the bench ignored the relevance of the third and fourth  parts of Section 300 IPC, which do not require an intention on the part of the accused to murder the victim.

On the doctor’s evidence that her first injury was not fatal, and therefore, her second injury was not a consequence of her first injury, Justice Katju said, there was something like common sense, which would explain this seeming inconsistency.

 Justice Katju said that the accused was responsible for her jumping, because of the mortal fear created by him. Does it make a difference whether she fell on her own or thrown out?, he asked the bench repeatedly.

On the statement of the bystander, and the exception to hearsay evidence in Section 6 of the Indian Evidence Act, Justice Katju said the bystander evidence, is no doubt, admissible, but the bench has to decide whether it is also credible.

 Disagreeing with Justice Lalit, he said the bystander evidence can be partly credible and partly not credible. Justice Lalit, however, maintained that once it is an admissible evidence, it cannot be discarded.

 Justice Katju said that part of the bystander statement that she jumped and she escaped, can be disbelieved.  There is no such thing that if you believe one part of the statement, you have to believe the other part also. “I believe you make a grave error”, he told the bench.

 Justice Lalit expressed the difficulty that the bench cannot improve upon the case of the prosecution.  Justice Katju said she had no choice, but to jump or fall.  Therefore, the accused was responsible for her first and second injuries, he explained.

 Rohatgi took objection to the use of the word ‘dazed’ by Justice Lalit to describe Soumya’s condition after her first injury, and brought to the notice that she had suffered the fracture of her brain in the first injury.

When Justice Lalit began to refer to dowry deaths, and the presumption of abetment in Section 113A of the Evidence Act in dowry deaths, and how Section 300 does not have similar presumption, Justice Katju asked him not to mix up suicide with this, and use common sense.  “It was a desperate situation of dire death”, he told the bench.

 Justice Katju said there are two types of jumping from the train, and Soumya’s was not ordinary jumping.  The onus is on us to use our common sense to understand this distinction, he told the bench.

The Katju story, which is a by-product of Govindaswamy review case, is likely to trouble the Supreme Court’s conscience for long: Did it go too far by inviting him to assist the bench first on the nuances of the Soumya case, and deliver a surprise contempt notice to him at the end by keeping him in the dark is the question which will be debated in the coming weeks.