SUCHIT DAVE - ATTORNEY, SUPREME COURT OF INDIA

Internal notes - no longer immune under Section 8 of RTI

2012-01-14T19:01:00.004Z

Best subterfuge to avert a law could be to tamper the definition of terms specified. Definition demarcates the boundaries. The moment the boundaries are altered, the rules of game change. Any public worker having worked on the RTI laws has had this experience so often. Section 2(f) defines information. Question was: What should information constitute? The fate of any RTI application must hinge on the implication of information. CIC Gujarat RN Das has done a wonderful work. In a case of Premshankar Bhatt V/s. Urban Development Department, Das has so well explained the law and included internal department notes within ambit of RTI.

In yet another beautiful judgment, it is heart-warming to see the Apex Court fortify our rights. In a democratic republic - the Apex Court has been so eloquent in its interpretation that soothes anybody who may feel disdained on account of executive apathy. The judgment is useful and beyond that beautiful - but the question is whether we will ever learn to work without the indulgence of Supreme Court but on moral authority of Supreme God in each one of us. Certainly since God is so great, things can only be fruitful and good in the future to come.

Supreme Court of India
Central Board Of Sec.Education & ... vs Aditya Bandopadhyay & Ors. on 9 August, 2011
Author: R.V.Raveendran
Bench: R.V. Raveendran, A.K. Patnaik
IN THE SUPREME COURT OF INDIA
CIVIL APPELALTE JURISDICTION
CIVIL APPEAL NO.6454 OF 2011
[Arising out of SLP [C] No.7526/2009]
Central Board of Secondary Education & Anr. ... Appellants Vs.
Aditya Bandopadhyay & Ors. ... Respondents With
CA No. 6456 of 2011 (@ SLP (C) No.9755 of 2009)
CA Nos.6457-6458 of 2011 (@ SLP (C) Nos.11162-11163 of 2009) CA No.6461 of 2011 (@ SLP (C) No.11670 of 2009)
CA Nos.6462 of 2011 (@ SLP (C) No.13673 of 2009)
CA Nos.6464 of 2011 (@ SLP (C) No.17409 of 2009)
CA Nos. 6459 of 2011 (@ SLP (C) No.9776 of 2010)
CA Nos.6465-6468 of 2011 (@ SLP (C) Nos.30858-30861 of 2009) J U D G M E N T
R.V.RAVEENDRAN, J.
Leave granted. For convenience, we will refer to the facts of the first case.
2. The first respondent appeared for the Secondary School Examination, 2008 conducted by the Central Board of Secondary Education (for short 2
`CBSE' or the `appellant'). When he got the mark sheet he was disappointed with his marks. He thought that he had done well in the examination but his answer-books were not properly valued and that improper valuation had resulted in low marks. Therefore he made an application for inspection and re-evaluation of his answer-books. CBSE rejected the said request by letter dated 12.7.2008. The reasons for rejection were:
(i) The information sought was exempted under Section 8(1)(e) of RTI Act since CBSE shared fiduciary relationship with its evaluators and maintain confidentiality of both manner and method of evaluation. (ii) The Examination Bye-laws of the Board provided that no candidate shall claim or is entitled to re-evaluation of his answers or disclosure or inspection of answer book(s) or other documents.
(iii) The larger public interest does not warrant the disclosure of such information sought.
(iv) The Central Information Commission, by its order dated 23.4.2007 in appeal no. ICPB/A-3/CIC/2006 dated 10.2.2006 had ruled out such disclosure."
3. Feeling aggrieved the first respondent filed W.P. No.18189(W)/2008 before the Calcutta High Court and sought the following reliefs : (a) for a declaration that the action of CBSE in excluding the provision of re- evaluation of answer-sheets, in regard to the examinations held by it was illegal, unreasonable and violative of the provisions of the Constitution of 3
India; (b) for a direction to CBSE to appoint an independent examiner for re- evaluating his answer-books and issue a fresh marks card on the basis of re- evaluation; (c) for a direction to CBSE to produce his answer-books in regard to the 2008 Secondary School Examination so that they could be properly reviewed and fresh marks card can be issued with re-evaluation marks; (d) for quashing the communication of CBSE dated 12.7.2008 and for a direction to produce the answer-books into court for inspection by the first respondent. The respondent contended that section 8(1)(e) of Right to Information Act, 2005 (`RTI Act' for short) relied upon by CBSE was not applicable and relied upon the provisions of the RTI Act to claim inspection.
4. CBSE resisted the petition. It contended that as per its Bye-laws, re- evaluation and inspection of answer-books were impermissible and what was permissible was only verification of marks. They relied upon the CBSE Examination Bye-law No.61, relevant portions of which are extracted below:
"61. Verification of marks obtained by a Candidate in a subject (i) A candidate who has appeared at an examination conducted by the Board may apply to the concerned Regional Officer of the Board for verification of marks in any particular subject. The verification will be restricted to checking whether all the answer's have been evaluated and that there has been no mistake in the totalling of marks for each question in that subject and that the marks have been transferred correctly on the title page of the answer book and to the award list and whether the 4
supplementary answer book(s) attached with the answer book mentioned by the candidate are intact. No revaluation of the answer book or supplementary answer book(s) shall be done.
(ii) Such an application must be made by the candidate within 21 days from the date of the declaration of result for Main Examination and 15 days for Compartment Examination.
(iii) All such applications must be accompanied by payment of fee as prescribed by the Board from time to time.
(iv) No candidate shall claim, or be entitled to, revaluation of his/her answers or disclosure or inspection of the answer book(s) or other documents.
xxxx
(vi) In no case the verification of marks shall be done in the presence of the candidate or anyone else on his/her behalf, nor will the answer books be shown to him/her or his/her representative.
(vii) Verification of marks obtained by a candidate will be done by the officials appointed by or with the approval of the Chairman. (viii) The marks, on verification will be revised upward or downward, as per the actual marks obtained by the candidate in his/her answer book. xxxx
62. Maintenance of Answer Books
The answer books shall be maintained for a period of three months and shall thereafter be disposed of in the manner as decided by the Chairman from time to time."
(emphasis supplied)
CBSE submitted that 12 to 13 lakhs candidates from about 9000 affiliated schools across the country appear in class X and class XII examinations conducted by it and this generates as many as 60 to 65 lakhs of answer- books; that as per Examination Bye-law No.62, it maintains the answer 5
books only for a period of three months after which they are disposed of. It was submitted that if candidates were to be permitted to seek re-evaluation of answer books or inspection thereof, it will create confusion and chaos, subjecting its elaborate system of examinations to delay and disarray. It was stated that apart from class X and class XII examinations, CBSE also conducts several other examinations (including the All India Pre-Medical Test, All India Engineering Entrance Examination and Jawahar Navodaya Vidyalaya's Selection Test). If CBSE was required to re-evaluate the answer-books or grant inspection of answer-books or grant certified copies thereof, it would interfere with its effective and efficient functioning, and will also require huge additional staff and infrastructure. It was submitted that the entire examination system and evaluation by CBSE is done in a scientific and systemic manner designed to ensure and safeguard the high academic standards and at each level utmost care was taken to achieve the object of excellence, keeping in view the interests of the students. CBSE referred to the following elaborate procedure for evaluation adopted by it : "The examination papers are set by the teachers with at least 20 years of teaching experience and proven integrity. Paper setters are normally appointed from amongst academicians recommended by then Committee of courses of the Board. Every paper setter is asked to set more than one set of question papers which are moderated by a team of moderators who are appointed from the academicians of the University or from amongst the Senior Principals. The function of the moderation team is to ensure correctness and consistency of different sets of question papers with the curriculum and to assess the difficulty level to cater to the students of 6
different schools in different categories. After assessing the papers from every point of view, the team of moderators gives a declaration whether the whole syllabus is covered by a set of question papers, whether the distribution of difficulty level of all the sets is parallel and various other aspects to ensure uniform standard. The Board also issues detailed instructions for the guidance of the moderators in order to ensure uniform criteria for assessment.
The evaluation system on the whole is well organized and fool-proof. All the candidates are examined through question papers set by the same paper setters. Their answer books are marked with fictitious roll numbers so as to conceal their identity. The work of allotment of fictitious roll number is carried out by a team working under a Chief Secrecy Officer having full autonomy. The Chief Secrecy Officer and his team of assistants are academicians drawn from the Universities and other autonomous educational bodies not connected with the Board. The Chief Secrecy Officer himself is usually a person of the rank of a University professor. No official of the Board at the Central or Regional level is associated with him in performance of the task assigned to him. The codes of fictitious roll numbers and their sequences are generated by the Chief Secrecy Officer himself on the basis of mathematical formula which randomize the real roll numbers and are known only to him and his team. This ensures complete secrecy about the identification of the answer book so much so, that even the Chairman, of the Board and the Controller of Examination of the Board do not have any information regarding the fictitious roll numbers granted by the Chief Secrecy Officer and their real counterpart numbers.
At the evaluation stage, the Board ensures complete fairness and uniformity by providing a marking scheme which is uniformity applicable to all the examiners in order to eliminate the chances of subjectivity. These marking schemes are jointly prepared at the Headquarters of the Board in Delhi by the Subject Experts of all the regions. The main purpose of the marking scheme is to maintain uniformity in the evaluation of the answer books.
The evaluation of the answer books in all major subjects including mathematics, science subjects is done in centralized "on the spot" evaluation centers where the examiners get answer book in interrupted serial orders. Also, the answer books are jumbled together as a result of which the examiners, say in Bangalore may be marking the answer book of a candidate who had his examination in Pondicherry, Goa, Andaman and Nicobar islands, Kerala, Andhra Pradesh, Tamil Nadu or Karnataka itself but he has no way of knowing exactly which answer book he is examining. The answer books having been marked with fictitious roll numbers give no clue to any examiner about the state or territory it 7
belongs to. It cannot give any clue about the candidate's school or centre of examination. The examiner cannot have any inclination to do any favour to a candidate because he is unable to decodify his roll number or to know as to which school, place or state or territory he belongs to. The examiners check all the questions in the papers thoroughly under the supervision of head examiner and award marks to the sub parts individually not collectively. They take full precautions and due attention is given while assessing an answer book to do justice to the candidate. Re- evaluation is administratively impossible to be allowed in a Board where lakhs of students take examination in multiple subjects. There are strict instructions to the additional head examiners not to allow any shoddy work in evaluation and not to issue more than 20-25 answer books for evaluation to an examiner on a single day. The examiners are practicing teachers who guard the interest of the candidates. There is no ground to believe that they do unjust marking and deny the candidates their due. It is true that in some cases totaling errors have been detected at the stage of scrutiny or verification of marks. In order to minimize such errors and to further strengthen and to improve its system, from 1993 checking of totals and other aspects of the answers has been trebled in order to detect and eliminate all lurking errors.
The results of all the candidates are reviewed by the Results Committee functioning at the Head Quarters. The Regional Officers are not the number of this Committee. This Committee reviews the results of all the regions and in case it decides to standardize the results in view of the results shown by the regions over the previous years, it adopts a uniform policy for the candidates of all the regions. No special policy is adopted for any region, unless there are some special reasons. This practice of awarding standardized marks in order to moderate the overall results is a practice common to most of the Boards of Secondary Education. The exact number of marks awarded for the purpose of standardization in different subjects varies from year to year. The system is extremely impersonalized and has no room for collusion infringement. It is in a word a scientific system."
CBSE submitted that the procedure evolved and adopted by it ensures fairness and accuracy in evaluation of answer-books and made the entire process as foolproof as possible and therefore denial of re-evaluation or 8
inspection or grant of copies cannot be considered to be denial of fair play or unreasonable restriction on the rights of the students.
5. A Division Bench of the High Court heard and disposed of the said writ petition along with the connected writ petitions (relied by West Bengal Board of Secondary Education and others) by a common judgment dated 5.2.2009. The High Court held that the evaluated answer-books of an examinee writing a public examination conducted by statutory bodies like CBSE or any University or Board of Secondary Education, being a `document, manuscript record, and opinion' fell within the definition of "information" as defined in section 2(f) of the RTI Act. It held that the provisions of the RTI Act should be interpreted in a manner which would lead towards dissemination of information rather than withholding the same; and in view of the right to information, the examining bodies were bound to provide inspection of evaluated answer books to the examinees. Consequently it directed CBSE to grant inspection of the answer books to the examinees who sought information. The High Court however rejected the prayer made by the examinees for re-evaluation of the answer-books, as that was not a relief that was available under RTI Act. RTI Act only provided a right to access information, but not for any consequential reliefs. 9
Feeling aggrieved by the direction to grant inspection, CBSE has filed this appeal by special leave.
6. Before us the CBSE contended that the High Court erred in (i) directing CBSE to permit inspection of the evaluated answer books, as that would amount to requiring CBSE to disobey its Examination Bye-law 61(4), which provided that no candidate shall claim or be entitled to re-evaluation of answer books or disclosure/inspection of answer books; (ii) holding that Bye-law 61(4) was not binding upon the examinees, in view of the overriding effect of the provisions of the RTI Act, even though the validity of that bye-law had not been challenged; (iii) not following the decisions of this court in Maharashtra State Board of Secondary Education vs. Paritosh B. Sheth [1984 (4) SCC 27], Parmod Kumar Srivastava vs. Chairman, Bihar PAC [2004 (6) SCC 714], Board of Secondary Education vs. Pavan Ranjan P [2004 (13) SCC 383], Board of Secondary Education vs. S [2007 (1) SCC 603] and Secretary, West Bengal Council of Higher Secondary Education vs. I Dass [2007 (8) SCC 242]; and (iv) holding that the examinee had a right to inspect his answer book under section 3 of the RTI Act and the examining bodies like CBSE were not exempted from disclosure of information under section 8(1)(e) of the RTI Act. The appellants contended that they were holding the "information" (in this case, the evaluated answer 10
books) in a fiduciary relationship and therefore exempted under section 8(1)(e) of the RTI Act.
7. The examinees and the Central Information Commission contended that the object of the RTI Act is to ensure maximum disclosure of information and minimum exemptions from disclosure; that an examining body does not hold the evaluated answer books, in any fiduciary relationship either with the student or the examiner; and that the information sought by any examinee by way of inspection of his answer books, will not fall under any of the exempted categories of information enumerated in section 8 of the RTI Act. It was submitted that an examining body being a public authority holding the `information', that is, the evaluated answer-books, and the inspection of answer-books sought by the examinee being exercise of `right to information' as defined under the Act, the examinee as a citizen has the right to inspect the answer-books and take certified copies thereof. It was also submitted that having regard to section 22 of the RTI Act, the provisions of the said Act will have effect notwithstanding anything inconsistent in any law and will prevail over any rule, regulation or bye law of the examining body barring or prohibiting inspection of answer books. 11
8. On the contentions urged, the following questions arise for our consideration :
(i) Whether an examinee's right to information under the RTI Act includes a right to inspect his evaluated answer books in a public examination or taking certified copies thereof?
(ii) Whether the decisions of this court in Maharashtra State Board of Secondary Education [1984 (4) SCC 27] and other cases referred to above, in any way affect or interfere with the right of an examinee seeking inspection of his answer books or seeking certified copies thereof?
(iii) Whether an examining body holds the evaluated answer books "in a fiduciary relationship" and consequently has no obligation to give inspection of the evaluated answer books under section 8 (1)(e) of RTI Act?
(iv) If the examinee is entitled to inspection of the evaluated answer books or seek certified copies thereof, whether such right is subject to any limitations, conditions or safeguards?
Relevant Legal Provisions
9. To consider these questions, it is necessary to refer to the statement of objects and reasons, the preamble and the relevant provisions of the RTI 12
Act. RTI Act was enacted in order to ensure smoother, greater and more effective access to information and provide an effective framework for effectuating the right of information recognized under article 19 of the Constitution. The preamble to the Act declares the object sought to be achieved by the RTI Act thus:
"An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
Whereas the Constitution of India has established democratic Republic; And whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;
And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information; And whereas it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal." Chapter II of the Act containing sections 3 to 11 deals with right to information and obligations of public authorities. Section 3 provides for right to information and reads thus: "Subject to the provisions of this Act, all citizens shall have the right to information." This section makes it clear 13
that the RTI Act gives a right to a citizen to only access information, but not seek any consequential relief based on such information. Section 4 deals with obligations of public authorities to maintain the records in the manner provided and publish and disseminate the information in the manner provided. Section 6 deals with requests for obtaining information. It provides that applicant making a request for information shall not be required to give any reason for requesting the information or any personal details except those that may be necessary for contacting him. Section 8 deals with exemption from disclosure of information and is extracted in its entirety:
"8. Exemption from disclosure of information -- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; (d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
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(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; (f) information received in confidence from foreign Government;
(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
(h) information which would impede the process of investigation or apprehension or prosecution of offenders; (i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:
Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.
(3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before 15
the date on which any request is made under secton 6 shall be provided to any person making a request under that section:
Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act."
(emphasis supplied)
Section 9 provides that without prejudice to the provisions of section 8, a request for information may be rejected if such a request for providing access would involve an infringement of copyright. Section 10 deals with severability of exempted information and sub-section (1) thereof is extracted below:
"(1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information." Section 11 deals with third party information and sub-section (1) thereof is extracted below:
"(1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to 16
disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party."
The definitions of information, public authority, record and right to information in clauses (f), (h), (i) and (j) of section 2 of the RTI Act are extracted below:
"(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
(h) "public authority" means any authority or body or institution of self- government established or constituted-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any-
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government; 17
(i) "record" includes-
(a) any document, manuscript and file;
(b) any microfilm, microfiche and facsimile copy of a document; (c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and
(d) any other material produced by a computer or any other device; (j) "right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to-
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of documents or records; (iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;
Section 22 provides for the Act to have overriding effect and is extracted below:
"The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
10. It will also be useful to refer to a few decisions of this Court which considered the importance and scope of the right to information. In State of Uttar Pradesh v. Raj Narain - (1975) 4 SCC 428, this Court observed: 18
"In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security."
(emphasis supplied)
In Dinesh Trivedi v. Union of India - (1997) 4 SCC 306, this Court held: "In modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare. However, like all other rights, even this right has recognised limitations; it is, by no means, absolute. ..................Implicit in this assertion is the proposition that in transaction which have serious repercussions on public security, secrecy can legitimately be claimed because it would then be in the public interest that such matters are not publicly disclosed or disseminated.
To ensure the continued participation of the people in the democratic process, they must be kept informed of the vital decisions taken by the Government and the basis thereof. Democracy, therefore, expects openness and openness is a concomitant of a free society. Sunlight is the best disinfectant. But it is equally important to be alive to the dangers that lie ahead. It is important to realise that undue popular pressure brought to bear on decision-makers is Government can have frightening side-effects. If every action taken by the political or executive functionary is transformed into a public controversy and made subject to an enquiry to soothe popular sentiments, it will undoubtedly have a chilling effect on the independence of the decision-maker who may find it safer not to take any decision. It will paralyse the entire system and bring it to a grinding halt. So we have two conflicting situations almost enigmatic and we think the answer is to maintain a fine balance which would serve public interest." In People's Union for Civil Liberties v. Union of India - (2004) 2 SCC 476, this Court held that right of information is a facet of the freedom of "speech 19
and expression" as contained in Article 19(1)(a) of the Constitution of India and such a right is subject to any reasonable restriction in the interest of the security of the state and subject to exemptions and exceptions. Re : Question (i)
11. The definition of `information' in section 2(f) of the RTI Act refers to any material in any form which includes records, documents, opinions, papers among several other enumerated items. The term `record' is defined in section 2(i) of the said Act as including any document, manuscript or file among others. When a candidate participates in an examination and writes his answers in an answer-book and submits it to the examining body for evaluation and declaration of the result, the answer-book is a document or record. When the answer-book is evaluated by an examiner appointed by the examining body, the evaluated answer-book becomes a record containing the `opinion' of the examiner. Therefore the evaluated answer-book is also an `information' under the RTI Act.
12. Section 3 of RTI Act provides that subject to the provisions of this Act all citizens shall have the right to information. The term `right to information' is defined in section 2(j) as the right to information accessible 20
under the Act which is held by or under the control of any public authority. Having regard to section 3, the citizens have the right to access to all information held by or under the control of any public authority except those excluded or exempted under the Act. The object of the Act is to empower the citizens to fight against corruption and hold the Government and their instrumentalities accountable to the citizens, by providing them access to information regarding functioning of every public authority. Certain safeguards have been built into the Act so that the revelation of information will not conflict with other public interests which include efficient operation of the governments, optimum use of limited fiscal resources and preservation of confidential and sensitive information. The RTI Act provides access to information held by or under the control of public authorities and not in regard to information held by any private person. The Act provides the following exclusions by way of exemptions and exceptions (under sections 8, 9 and 24) in regard to information held by public authorities: (i) Exclusion of the Act in entirety under section 24 to intelligence and security organizations specified in the Second Schedule even though they may be "public authorities", (except in regard to information with reference to allegations of corruption and human rights violations).
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(ii) Exemption of the several categories of information enumerated in section 8(1) of the Act which no public authority is under an obligation to give to any citizen, notwithstanding anything contained in the Act [however, in regard to the information exempted under clauses (d) and (e), the competent authority, and in regard to the information excluded under clause (j), Central Public Information Officer/State Public Information Officer/the Appellate Authority, may direct disclosure of information, if larger public interest warrants or justifies the disclosure].
(iii) If any request for providing access to information involves an infringement of a copyright subsisting in a person other than the State, the Central/State Public Information Officer may reject the request under section 9 of RTI Act.
Having regard to the scheme of the RTI Act, the right of the citizens to access any information held or under the control of any public authority, should be read in harmony with the exclusions/exemptions in the Act.
13. The examining bodies (Universities, Examination Boards, CBSC etc.) are neither security nor intelligence organisations and therefore the exemption under section 24 will not apply to them. The disclosure of information with reference to answer-books does not also involve infringement of any copyright and therefore section 9 will not apply. 22
Resultantly, unless the examining bodies are able to demonstrate that the evaluated answer-books fall under any of the categories of exempted `information' enumerated in clauses (a) to (j) of sub-section (1) section 8, they will be bound to provide access to the information and any applicant can either inspect the document/record, take notes, extracts or obtain certified copies thereof.
14. The examining bodies contend that the evaluated answer-books are exempted from disclosure under section 8(1)(e) of the RTI Act, as they are `information' held in its fiduciary relationship. They fairly conceded that evaluated answer-books will not fall under any other exemptions in sub- section (1) of section 8. Every examinee will have the right to access his evaluated answer-books, by either inspecting them or take certified copies thereof, unless the evaluated answer-books are found to be exempted under section 8(1)(e) of the RTI Act.
Re : Question (ii)
15. In Maharashtra State Board, this Court was considering whether denial of re-evaluation of answer-books or denial of disclosure by way of inspection of answer books, to an examinee, under Rule 104(1) and (3) of 23
the Maharashtra Secondary and Higher Secondary Board Rules, 1977 was violative of principles of natural justice and violative of Articles 14 and 19 of the Constitution of India. Rule 104(1) provided that no re-evaluation of the answer books shall be done and on an application of any candidate verification will be restricted to checking whether all the answers have been examined and that there is no mistake in the totalling of marks for each question in that subject and transferring marks correctly on the first cover page of the answer book. Rule 104(3) provided that no candidate shall claim or be entitled to re-evaluation of his answer-books or inspection of answer- books as they were treated as confidential. This Court while upholding the validity of Rule 104(3) held as under :
".... the "process of evaluation of answer papers or of subsequent verification of marks" under Clause (3) of Regulation 104 does not attract the principles of natural justice since no decision making process which brings about adverse civil consequences to the examinees in involved. The principles of natural justice cannot be extended beyond reasonable and rational limits and cannot be carried to such absurd lengths as to make it necessary that candidates who have taken a public examination should be allowed to participate in the process of evaluation of their performances or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer-books and determining whether there has been a proper and fair valuation of the answers by the examiners."
So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations.... The Legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act ... 24
and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution.
It was perfectly within the competence of the Board, rather it was its plain duty, to apply its mind and decide as a matter of policy relating to the conduct of the examination as to whether disclosure and inspection of the answer books should be allowed to the candidates, whether and to what extent verification of the result should be permitted after the results have already been announced and whether any right to claim revaluation of the answer books should be recognised or provided for. All these are undoubtedly matters which have an intimate nexus with the objects and purposes of the enactment and are, therefore, with in the ambit of the general power to make regulations...."
This Court held that Regulation 104(3) cannot be held to be unreasonable merely because in certain stray instances, errors or irregularities had gone unnoticed even after verification of the concerned answer books according to the existing procedure and it was only after further scrutiny made either on orders of the court or in the wake of contentions raised in the petitions filed before a court, that such errors or irregularities were ultimately discovered. This court reiterated the view that "the test of reasonableness is not applied in vacuum but in the context of life's realities" and concluded that realistically and practically, providing all the candidates inspection of their answer books or re-evaluation of the answer books in the presence of the candidates would not be feasible. Dealing with the contention that every 25
student is entitled to fair play in examination and receive marks matching his performance, this court held :
"What constitutes fair play depends upon the facts and circumstances relating to each particular given situation. If it is found that every possible precaution has been taken and all necessary safeguards provided to ensure that the answer books inclusive of supplements are kept in safe custody so as to eliminate the danger of their being tampered with and that the evaluation is done by the examiners applying uniform standards with checks and crosschecks at different stages and that measures for detection of malpractice, etc. have also been effectively adopted, in such cases it will not be correct on the part of the Courts to strike down, the provision prohibiting revaluation on the ground that it violates the rules of fair play. It appears that the procedure evolved by the Board for ensuring fairness and accuracy in evaluation of the answer books has made the system as fool proof as can be possible and is entirely satisfactory. The Board is a very responsible body. The candidates have taken the examination with full awareness of the provisions contained in the Regulations and in the declaration made in the form of application for admission to the examination they have solemnly stated that they fully agree to abide by the regulations issued by the Board. In the circumstances, when we find that all safeguards against errors and malpractices have been provided for, there cannot be said to be any denial of fair play to the examinees by reason of the prohibition against asking for revaluation.... " This Court concluded that if inspection and verification in the presence of the candidates, or revaluation, have to be allowed as of right, it may lead to gross and indefinite uncertainty, particularly in regard to the relative ranking etc. of the candidate, besides leading to utter confusion on account of the enormity of the labour and time involved in the process. This court concluded :
26
"... the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded."
16. The above principles laid down in Maharashtra State Board have been followed and reiterated in several decisions of this Court, some of which are referred to in para (6) above. But the principles laid down in decisions such as Maharashtra State Board depend upon the provisions of the rules and regulations of the examining body. If the rules and regulations of the examining body provide for re-evaluation, inspection or disclosure of the answer-books, then none of the principles in Maharashtra State Board or other decisions following it, will apply or be relevant. There has been a gradual change in trend with several examining bodies permitting inspection and disclosure of the answer-books.
17. It is thus now well settled that a provision barring inspection or disclosure of the answer-books or re-evaluation of the answer-books and restricting the remedy of the candidates only to re-totalling is valid and binding on the examinee. In the case of CBSE, the provisions barring re- 27
evaluation and inspection contained in Bye-law No.61, are akin to Rule 104 considered in Maharashtra State Board. As a consequence if an examination is governed only by the rules and regulations of the examining body which bar inspection, disclosure or re-evaluation, the examinee will be entitled only for re-totalling by checking whether all the answers have been evaluated and further checking whether there is no mistake in totaling of marks for each question and marks have been transferred correctly to the title (abstract) page. The position may however be different, if there is a superior statutory right entitling the examinee, as a citizen to seek access to the answer books, as information.
18. In these cases, the High Court has rightly denied the prayer for re- evaluation of answer-books sought by the candidates in view of the bar contained in the rules and regulations of the examining bodies. It is also not a relief available under the RTI Act. Therefore the question whether re- evaluation should be permitted or not, does not arise for our consideration. What arises for consideration is the question whether the examinee is entitled to inspect his evaluated answer-books or take certified copies thereof. This right is claimed by the students, not with reference to the rules or bye-laws of examining bodies, but under the RTI Act which enables them 28
and entitles them to have access to the answer-books as `information' and inspect them and take certified copies thereof. Section 22 of RTI Act provides that the provisions of the said Act will have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Therefore the provisions of the RTI Act will prevail over the provisions of the bye-laws/rules of the examining bodies in regard to examinations. As a result, unless the examining body is able to demonstrate that the answer-books fall under the exempted category of information described in clause (e) of section 8(1) of RTI Act, the examining body will be bound to provide access to an examinee to inspect and take copies of his evaluated answer-books, even if such inspection or taking copies is barred under the rules/bye-laws of the examining body governing the examinations. Therefore, the decision of this Court in Maharashtra State Board (supra) and the subsequent decisions following the same, will not affect or interfere with the right of the examinee seeking inspection of answer-books or taking certified copies thereof.
Re : Question (iii)
19. Section 8(1) enumerates the categories of information which are exempted from disclosure under the provisions of the RTI Act. The 29
examining bodies rely upon clause (e) of section 8(1) which provides that there shall be no obligation on any public authority to give any citizen, information available to it in its fiduciary relationship. This exemption is subject to the condition that if the competent authority (as defined in section 2(e) of RTI Act) is satisfied that the larger public interest warrants the disclosure of such information, the information will have to be disclosed. Therefore the question is whether the examining body holds the evaluated answer-books in its fiduciary relationship.
20. The term `fiduciary' and `fiduciary relationship' refer to different capacities and relationship, involving a common duty or obligation. 20.1) Black's Law Dictionary (7th Edition, Page 640) defines `fiduciary relationship' thus:
"A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships - such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client - require the highest duty of care. Fiduciary relationships usually arise in one of four situations : (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer." 30
20.2) The American Restatements (Trusts and Agency) define `fiduciary' as one whose intention is to act for the benefit of another as to matters relevant to the relation between them. The Corpus Juris Secundum (Vol. 36A page 381) attempts to define fiduciary thus :
"A general definition of the word which is sufficiently comprehensive to embrace all cases cannot well be given. The term is derived from the civil, or Roman, law. It connotes the idea of trust or confidence, contemplates good faith, rather than legal obligation, as the basis of the transaction, refers to the integrity, the fidelity, of the party trusted, rather than his credit or ability, and has been held to apply to all persons who occupy a position of peculiar confidence toward others, and to include those informal relations which exist whenever one party trusts and relies on another, as well as technical fiduciary relations.
The word `fiduciary,' as a noun, means one who holds a thing in trust for another, a trustee, a person holding the character of a trustee, or a character analogous to that of a trustee, with respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires; a person having the duty, created by his undertaking, to act primarily for another's benefit in matters connected with such undertaking. Also more specifically, in a statute, a guardian, trustee, executor, administrator, receiver, conservator, or any person acting in any fiduciary capacity for any person, trust, or estate. Some examples of what, in particular connections, the term has been held to include and not to include are set out in the note."
20.3) Words and Phrases, Permanent Edition (Vol. 16A, Page 41) defines `fiducial relation' thus :
"There is a technical distinction between a `fiducial relation' which is more correctly applicable to legal relationships between parties, such as guardian and ward, administrator and heirs, and other similar relationships, and `confidential relation' which includes the legal relationships, and also every other relationship wherein confidence is rightly reposed and is exercised.
Generally, the term `fiduciary' applies to any person who occupies a position of peculiar confidence towards another. It refers to integrity and 31
fidelity. It contemplates fair dealing and good faith, rather than legal obligation, as the basis of the transaction. The term includes those informal relations which exist whenever one party trusts and relies upon another, as well as technical fiduciary relations." 20.4) In Bristol and West Building Society vs. Mothew [1998 Ch. 1] the term fiduciary was defined thus :
"A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty..... A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal."
20.5) In Wolf vs. Superior Court [2003 (107) California Appeals, 4th 25] the California Court of Appeals defined fiduciary relationship as under : "any relationship existing between the parties to the transaction where one of the parties is duty bound to act with utmost good faith for the benefit of the other party. Such a relationship ordinarily arises where confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interests of the other party without the latter's knowledge and consent."
21. The term `fiduciary' refers to a person having a duty to act for the benefit of another, showing good faith and condour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term `fiduciary relationship' is used to describe a situation or 32
transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction/s. The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and expected not to disclose the thing or information to any third party. There are also certain relationships where both the parties have to act in a fiduciary capacity treating the other as the beneficiary. Examples of these are : a partner vis-`-vis another partner and an employer vis-`-vis employee. An employee who comes into possession of business or trade secrets or confidential information relating to the employer in the course of his employment, is expected to act as a fiduciary and cannot disclose it to others. Similarly, if on the request of the employer or official superior or the head of a department, an employee furnishes his personal details and information, to be retained in confidence, the employer, the official superior or departmental head is expected to hold such personal information in confidence as a fiduciary, to be made use of or disclosed only 33
if the employee's conduct or acts are found to be prejudicial to the employer.
22. In a philosophical and very wide sense, examining bodies can be said to act in a fiduciary capacity, with reference to students who participate in an examination, as a government does while governing its citizens or as the present generation does with reference to the future generation while preserving the environment. But the words `information available to a person in his fiduciary relationship' are used in section 8(1)(e) of RTI Act in its normal and well recognized sense, that is to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary - a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/physically/infirm/mentally challenged, a parent with reference to a child, a lawyer or a chartered accountant with reference to a client, a doctor or nurse with reference to a patient, an agent with reference to a principal, a partner with reference to another partner, a director of a company with reference to a share-holder, an executor with reference to a legatee, a receiver with reference to the parties to a lis, an employer with reference to the confidential information relating to the employee, and an employee with reference to business dealings/transaction of the employer. We do not find that kind of fiduciary relationship between 34
the examining body and the examinee, with reference to the evaluated answer-books, that come into the custody of the examining body.
23. The duty of examining bodies is to subject the candidates who have completed a course of study or a period of training in accordance with its curricula, to a process of verification/examination/testing of their knowledge, ability or skill, or to ascertain whether they can be said to have successfully completed or passed the course of study or training. Other specialized Examining Bodies may simply subject candidates to a process of verification by an examination, to find out whether such person is suitable for a particular post, job or assignment. An examining body, if it is a public authority entrusted with public functions, is required to act fairly, reasonably, uniformly and consistently for public good and in public interest. This Court has explained the role of an examining body in regard to the process of holding examination in the context of examining whether it amounts to `service' to a consumer, in Bihar School Examination Board vs. Suresh Prasad Sinha - (2009) 8 SCC 483, in the following manner: "The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its "services" to any candidate. Nor does a 35
student who participates in the examination conducted by the Board, hires or avails of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-a- vis other examinees. The process is not therefore availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination.......... The fact that in the course of conduct of the examination, or evaluation of answer-scripts, or furnishing of mark-books or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service-provider for a consideration, nor convert the examinee into a consumer ........."
It cannot therefore be said that the examining body is in a fiduciary relationship either with reference to the examinee who participates in the examination and whose answer-books are evaluated by the examining body.
24. We may next consider whether an examining body would be entitled to claim exemption under section 8(1)(e) of the RTI Act, even assuming that it is in a fiduciary relationship with the examinee. That section provides that notwithstanding anything contained in the Act, there shall be no obligation to give any citizen information available to a person in his fiduciary relationship. This would only mean that even if the relationship is fiduciary, the exemption would operate in regard to giving access to the information 36
held in fiduciary relationship, to third parties. There is no question of the fiduciary withholding information relating to the beneficiary, from the beneficiary himself. One of the duties of the fiduciary is to make thorough disclosure of all relevant facts of all transactions between them to the beneficiary, in a fiduciary relationship. By that logic, the examining body, if it is in a fiduciary relationship with an examinee, will be liable to make a full disclosure of the evaluated answer-books to the examinee and at the same time, owe a duty to the examinee not to disclose the answer-books to anyone else. If A entrusts a document or an article to B to be processed, on completion of processing, B is not expected to give the document or article to anyone else but is bound to give the same to A who entrusted the document or article to B for processing. Therefore, if a relationship of fiduciary and beneficiary is assumed between the examining body and the examinee with reference to the answer-book, section 8(1)(e) would operate as an exemption to prevent access to any third party and will not operate as a bar for the very person who wrote the answer-book, seeking inspection or disclosure of it.
25. An evaluated answer book of an examinee is a combination of two different `informations'. The first is the answers written by the examinee and 37
second is the marks/assessment by the examiner. When an examinee seeks inspection of his evaluated answer-books or seeks a certified copy of the evaluated answer-book, the information sought by him is not really the answers he has written in the answer-books (which he already knows), nor the total marks assigned for the answers (which has been declared). What he really seeks is the information relating to the break-up of marks, that is, the specific marks assigned to each of his answers. When an examinee seeks `information' by inspection/certified copies of his answer-books, he knows the contents thereof being the author thereof. When an examinee is permitted to examine an answer-book or obtain a certified copy, the examining body is not really giving him some information which is held by it in trust or confidence, but is only giving him an opportunity to read what he had written at the time of examination or to have a copy of his answers. Therefore, in furnishing the copy of an answer-book, there is no question of breach of confidentiality, privacy, secrecy or trust. The real issue therefore is not in regard to the answer-book but in regard to the marks awarded on evaluation of the answer-book. Even here the total marks given to the examinee in regard to his answer-book are already declared and known to the examinee. What the examinee actually wants to know is the break-up of marks given to him, that is how many marks were given by the examiner to 38
each of his answers so that he can assess how is performance has been evaluated and whether the evaluation is proper as per his hopes and expectations. Therefore, the test for finding out whether the information is exempted or not, is not in regard to the answer book but in regard to the evaluation by the examiner.
26. This takes us to the crucial issue of evaluation by the examiner. The examining body engages or employs hundreds of examiners to do the evaluation of thousands of answer books. The question is whether the information relating to the `evaluation' (that is assigning of marks) is held by the examining body in a fiduciary relationship. The examining bodies contend that even if fiduciary relationship does not exist with reference to the examinee, it exists with reference to the examiner who evaluates the answer-books. On a careful examination we find that this contention has no merit. The examining body entrusts the answer-books to an examiner for evaluation and pays the examiner for his expert service. The work of evaluation and marking the answer-book is an assignment given by the examining body to the examiner which he discharges for a consideration. Sometimes, an examiner may assess answer-books, in the course of his employment, as a part of his duties without any specific or special 39
remuneration. In other words the examining body is the `principal' and the examiner is the agent entrusted with the work, that is, evaluation of answer- books. Therefore, the examining body is not in the position of a fiduciary with reference to the examiner. On the other hand, when an answer-book is entrusted to the examiner for the purpose of evaluation, for the period the answer-book is in his custody and to the extent of the discharge of his functions relating to evaluation, the examiner is in the position of a fiduciary with reference to the examining body and he is barred from disclosing the contents of the answer-book or the result of evaluation of the answer-book to anyone other than the examining body. Once the examiner has evaluated the answer books, he ceases to have any interest in the evaluation done by him. He does not have any copy-right or proprietary right, or confidentiality right in regard to the evaluation. Therefore it cannot be said that the examining body holds the evaluated answer books in a fiduciary relationship, qua the examiner.
27. We, therefore, hold that an examining body does not hold the evaluated answer-books in a fiduciary relationship. Not being information available to an examining body in its fiduciary relationship, the exemption under section 8(1)(e) is not available to the examining bodies with reference to evaluated answer-books. As no other exemption under section 8 is 40
available in respect of evaluated answer books, the examining bodies will have to permit inspection sought by the examinees.
Re : Question (iv)
28. When an examining body engages the services of an examiner to evaluate the answer-books, the examining body expects the examiner not to disclose the information regarding evaluation to anyone other than the examining body. Similarly the examiner also expects that his name and particulars would not be disclosed to the candidates whose answer-books are evaluated by him. In the event of such information being made known, a disgruntled examinee who is not satisfied with the evaluation of the answer books, may act to the prejudice of the examiner by attempting to endanger his physical safety. Further, any apprehension on the part of the examiner that there may be danger to his physical safety, if his identity becomes known to the examinees, may come in the way of effective discharge of his duties. The above applies not only to the examiner, but also to the scrutiniser, co-ordinator, and head-examiner who deal with the answer book. The answer book usually contains not only the signature and code number of the examiner, but also the signatures and code number of the scrutiniser/co- ordinator/head examiner. The information as to the names or particulars of the examiners/co-ordinators/scrutinisers/head examiners are therefore 41
exempted from disclosure under section 8(1)(g) of RTI Act, on the ground that if such information is disclosed, it may endanger their physical safety. Therefore, if the examinees are to be given access to evaluated answer- books either by permitting inspection or by granting certified copies, such access will have to be given only to that part of the answer-book which does not contain any information or signature of the examiners/co- ordinators/scrutinisers/head examiners, exempted from disclosure under section 8(1)(g) of RTI Act. Those portions of the answer-books which contain information regarding the examiners/co-ordinators/scrutinisers/head examiners or which may disclose their identity with reference to signature or initials, shall have to be removed, covered, or otherwise severed from the non-exempted part of the answer-books, under section 10 of RTI Act.
29. The right to access information does not extend beyond the period during which the examining body is expected to retain the answer-books. In the case of CBSE, the answer-books are required to be maintained for a period of three months and thereafter they are liable to be disposed of/destroyed. Some other examining bodies are required to keep the answer- books for a period of six months. The fact that right to information is available in regard to answer-books does not mean that answer-books will have to be maintained for any longer period than required under the rules 42
and regulations of the public authority. The obligation under the RTI Act is to make available or give access to existing information or information which is expected to be preserved or maintained. If the rules and regulations governing the functioning of the respective public authority require preservation of the information for only a limited period, the applicant for information will be entitled to such information only if he seeks the information when it is available with the public authority. For example, with reference to answer-books, if an examinee makes an application to CBSE for inspection or grant of certified copies beyond three months (or six months or such other period prescribed for preservation of the records in regard to other examining bodies) from the date of declaration of results, the application could be rejected on the ground that such information is not available. The power of the Information Commission under section 19(8) of the RTI Act to require a public authority to take any such steps as may be necessary to secure compliance with the provision of the Act, does not include a power to direct the public authority to preserve the information, for any period larger than what is provided under the rules and regulations of the public authority.
30. On behalf of the respondents/examinees, it was contended that having regard to sub-section (3) of section 8 of RTI Act, there is an implied duty on 43
the part of every public authority to maintain the information for a minimum period of twenty years and make it available whenever an application was made in that behalf. This contention is based on a complete misreading and misunderstanding of section 8(3). The said sub-section nowhere provides that records or information have to be maintained for a period of twenty years. The period for which any particular records or information has to be maintained would depend upon the relevant statutory rule or regulation of the public authority relating to the preservation of records. Section 8(3) provides that information relating to any occurrence, event or matters which has taken place and occurred or happened twenty years before the date on which any request is made under section 6, shall be provided to any person making a request. This means that where any information required to be maintained and preserved for a period beyond twenty years under the rules of the public authority, is exempted from disclosure under any of the provisions of section 8(1) of RTI Act, then, notwithstanding such exemption, access to such information shall have to be provided by disclosure thereof, after a period of twenty years except where they relate to information falling under clauses (a), (c) and (i) of section 8(1). In other words, section 8(3) provides that any protection against disclosure that may be available, under clauses (b), (d) to (h) and (j) of section 8(1) will cease to 44
be available after twenty years in regard to records which are required to be preserved for more than twenty years. Where any record or information is required to be destroyed under the rules and regulations of a public authority prior to twenty years, section 8(3) will not prevent destruction in accordance with the Rules. Section 8(3) of RTI Act is not therefore a provision requiring all `information' to be preserved and maintained for twenty years or more, nor does it override any rules or regulations governing the period for which the record, document or information is required to be preserved by any public authority.
31. The effect of the provisions and scheme of the RTI Act is to divide `information' into the three categories. They are :
(i) Information which promotes transparency and accountability in the working of every public authority, disclosure of which may also help in containing or discouraging corruption (enumerated in clauses (b) and (c) of section 4(1) of RTI Act).
(ii) Other information held by public authority (that is all information other than those falling under clauses (b) and (c) of section 4(1) of RTI Act).
(iii) Information which is not held by or under the control of any public authority and which cannot be accessed by a public authority under any law for the time being in force.
Information under the third category does not fall within the scope of RTI Act. Section 3 of RTI Act gives every citizen, the right to `information' held 45
by or under the control of a public authority, which falls either under the first or second category. In regard to the information falling under the first category, there is also a special responsibility upon public authorities to suo moto publish and disseminate such information so that they will be easily and readily accessible to the public without any need to access them by having recourse to section 6 of RTI Act. There is no such obligation to publish and disseminate the other information which falls under the second category.
32. The information falling under the first category, enumerated in sections 4(1)(b) & (c) of RTI Act are extracted below : "4. Obligations of public authorities.-(1) Every public authority shall-- (a) xxxxxx
(b) publish within one hundred and twenty days from the enactment of this Act,-- (i) the particulars of its organisation, functions and duties; (ii) the powers and duties of its officers and employees; (iii) the procedure followed in the decision making process, including channels of supervision and accountability;
(iv) the norms set by it for the discharge of its functions; (v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions;
(vi) a statement of the categories of documents that are held by it or under its control;
46
(vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof;
(viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public;
(ix) a directory of its officers and employees;
(x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations;
(xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and
reports on disbursements made;
(xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes;
(xiii) particulars of recipients of concessions, permits or authorisations granted by it;
(xiv) details in respect of the information, available to or held by it, reduced in an electronic form;
(xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use;
(xvi) the names, designations and other particulars of the Public Information Officers;
(xvii) such other information as may be prescribed; and thereafter update these publications every year;
(c) publish all relevant facts while formulating important policies or announcing the decisions which affect public;
(emphasis supplied)
47
Sub-sections (2), (3) and (4) of section 4 relating to dissemination of information enumerated in sections 4(1)(b) & (c) are extracted below: "(2) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.
(3) For the purposes of sub-section (1), every information shall be disseminated widely and in such form and manner which is easily accessible to the public.
(4) All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State Public Information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed.
Explanation.--For the purposes of sub-sections (3) and (4), "disseminated" means making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public authority."
(emphasis supplied)
33. Some High Courts have held that section 8 of RTI Act is in the nature of an exception to section 3 which empowers the citizens with the right to information, which is a derivative from the freedom of speech; and that therefore section 8 should be construed strictly, literally and narrowly. This may not be the correct approach. The Act seeks to bring about a balance between two conflicting interests, as harmony between them is essential for preserving democracy. One is to bring about transparency and accountability by providing access to information under the control of public authorities. 48
The other is to ensure that the revelation of information, in actual practice, does not conflict with other public interests which include efficient operation of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information. The preamble to the Act specifically states that the object of the Act is to harmonise these two conflicting interests. While sections 3 and 4 seek to achieve the first objective, sections 8, 9, 10 and 11 seek to achieve the second objective. Therefore when section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals.
34. When trying to ensure that the right to information does not conflict with several other public interests (which includes efficient operations of the governments, preservation of confidentiality of sensitive information, optimum use of limited fiscal resources, etc.), it is difficult to visualise and enumerate all types of information which require to be exempted from disclosure in public interest. The legislature has however made an attempt to do so. The enumeration of exemptions is more exhaustive than the enumeration of exemptions attempted in the earlier Act that is section 8 of Freedom to Information Act, 2002. The Courts and Information 49
Commissions enforcing the provisions of RTI Act have to adopt a purposive construction, involving a reasonable and balanced approach which harmonises the two objects of the Act, while interpreting section 8 and the other provisions of the Act.
35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of `information' and `right to information' under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non- available information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' 50
in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.
36. Section 19(8) of RTI Act has entrusted the Central/State Information Commissions, with the power to require any public authority to take any such steps as may be necessary to secure the compliance with the provisions of the Act. Apart from the generality of the said power, clause (a) of section 19(8) refers to six specific powers, to implement the provision of the Act. Sub-clause (i) empowers a Commission to require the public authority to provide access to information if so requested in a particular `form' (that is either as a document, micro film, compact disc, pendrive, etc.). This is to secure compliance with section 7(9) of the Act. Sub-clause (ii) empowers a Commission to require the public authority to appoint a Central Public Information Officer or State Public Information Officer. This is to secure compliance with section 5 of the Act. Sub-clause (iii) empowers the Commission to require a public authority to publish certain information or categories of information. This is to secure compliance with section 4(1) and (2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public 51
authority to make necessary changes to its practices relating to the maintenance, management and destruction of the records. This is to secure compliance with clause (a) of section 4(1) of the Act. Sub-clause (v) empowers a Commission to require the public authority to increase the training for its officials on the right to information. This is to secure compliance with sections 5, 6 and 7 of the Act. Sub-clause (vi) empowers a Commission to require the public authority to provide annual reports in regard to the compliance with clause (b) of section 4(1). This is to ensure compliance with the provisions of clause (b) of section 4(1) of the Act. The power under section 19(8) of the Act however does not extend to requiring a public authority to take any steps which are not required or contemplated to secure compliance with the provisions of the Act or to issue directions beyond the provisions of the Act. The power under section 19(8) of the Act is intended to be used by the Commissions to ensure compliance with the Act, in particular ensure that every public authority maintains its records duly catalogued and indexed in the manner and in the form which facilitates the right to information and ensure that the records are computerized, as required under clause (a) of section 4(1) of the Act; and to ensure that the information enumerated in clauses (b) and (c) of sections 4(1) of the Act are published and disseminated, and are periodically updated as provided in sub- 52
sections (3) and (4) of section 4 of the Act. If the `information' enumerated in clause (b) of section 4(1) of the Act are effectively disseminated (by publications in print and on websites and other effective means), apart from providing transparency and accountability, citizens will be able to access relevant information and avoid unnecessary applications for information under the Act.
37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. But in regard to other information,(that is information other than those enumerated in section 4(1)(b) and (c) of the Act), equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of governments, etc.). Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and 53
eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising `information furnishing', at the cost of their normal and regular duties.
Conclusion
38. In view of the foregoing, the order of the High Court directing the examining bodies to permit examinees to have inspection of their answer books is affirmed, subject to the clarifications regarding the scope of the RTI 54
Act and the safeguards and conditions subject to which `information' should be furnished. The appeals are disposed of accordingly.
............................J
[R. V. Raveendran]
............................J
[A. K. Patnaik]
New Delhi;
August 9, 2011.

Is Mr. Anna Hazare defying democracy or is he helping us?

2011-08-17T07:56:00.001+01:00

Before I say anything further, I must confess that I am a Member of the Indian National Congress as well as Vice-President of the Dist. Congress Committee at Surendranager (Gujarat).

Obviously, my heart lies with Congress.

But should that mean that I lose all my right to speak what I feel is right. Or do I become a blind follower of leaders who have become morally deprived?

Congress became the ruling party because of people like Gandhi and Patel in it. These people spoke truth, lived with simplicity and were heroes of this nation.
Do we have same Congress Party today?

Answer upon my cursory observation is obviously NO.

The political dignity has deteriorated. Politicians are looked upon as scoundrels rather then people with virtues.

The Congress argues that Hazare is defying democracy and undermining Parliament. In an argument of this sort, there lies an intrinsic presumption that the Parliament is constituted of people with high dignity, high level of ethics, fair-play and people with excellent qualities. These people whom we recognize as Parliamentarians are our leaders who excel in quality and spirit of democracy.

People of this description, if they constitute parliament, make Parliament an august institution.

But do we have parliamentarians of that sort? No. To the contrary, Parliamentarians are people who qualify in all sorts of crookedness. They go to parliament. They have no answerability as to what they did. They literally sleep in parliament and get caught in TV Cameras. There is nobody to question. They use their grants, there can be no questions. They have no listed constitutional duties. There are no punishments fixed, no standards of performance, nothing of that sort. So what parliament are we talking about? A Parliament that has criminals into it – Parliament that crushes any voice of opposition? Is that an august Parliament?

The Moral science lessons that we were taught in school stated that “Respect is commanded - not demanded”. But what the Congress has resorted is begging for respect. They are simply harping of parliament and shadow boxing. They are hiding behind a smoke screen and putting fallacies with an expectation that people are going to buy their argument.

Manmohan – a man whom we thought was so honest. Now being analytical by nature, we may be forced to rethink. You know what happened to Bhisma – a Minister in the King’s Court who mutely saw a woman being stripped off her clothes. How is Manmohan no different from him? Or more bluntly, is he a wolf in a sheep’s disguise?
And what is Anna asking for? Is he asking for too much? What is wrong in saying that Corrupt should be removed? What is wrong in saying that the Government Lok Pal is a watered down useless piece of legislation that seeks to punish those who try to get corrupt people into the cage?

What does democracy mean to the government? Simply getting elected once in five years? No answerability? No right of people to protest? Misuse of Criminal Law? Misuse of Police? Misuse of CBI, Income Tax and every power to crush any voice of Protest. Open defiance of Court and misuse of 144? Is that governance? Did Gandhiji give his life for a purpose of this sort.

I would not have been surprised if people like Bal Thakeray or Narendra Modi behaved in this fashion – because they are fascist, supports of Hitler who have all affinity to stranglehold democracy. I would not have been surprised, if BJP did this.
But Congress? Now it looks – all in the pool are without clothes.

May God give long life to Anna, Kejriwal, Bedi, Bhusans and their group.
Meanwhile I am reproducing critique of the Government Lok Pal Bill as available on the India Against Corruption Website.

Here it Goes:

Critique of Government’s Lokpal Bill 2010

(Proposed to be passed as an ordinance by the Central government)

UPA government has been under constant attack due to exposure of one scam after the other on the issue of corruption. In order to salvage its image, the government proposes to set up an institution of Lokpal to check corruption at high places. However the remedy seems to be worse than the disease. Rather than strengthening anti corruption systems, this bill if passed, will end up weakening whatever exists in the name of anti corruption today.

The principal objections to government’s proposal are as follows:

• Lokpal will not have any power to either initiate action suo motu in any case or even receive complaints of corruption from general public. The general public will make complaints to the speaker of Lok Sabha or chairperson of Rajya Sabha. Only those complaints forwarded by Speaker of Lok Sabha/ Chairperson of Rajya Sabha to Lokpal would be investigated by Lokpal. This not only severely restricts the functioning of Lokpal, it also provides a tool in the hands of the ruling party to have only those cases referred to Lokpal which pertain to political opponents (since speaker is always from the ruling party). It will also provide a tool in the hands of the ruling party to protect its own politicians.

• Lokpal has been proposed to be an advisory body. Lokpal, after enquiry in any case, will forward its report to the competent authority. The competent authority will have final powers to decide whether to take action on Lokpal’s report or not. In the case of cabinet ministers, the competent authority is Prime Minister. In the case of PM and MPs the competent authority is Lok Sabha or Rajya Sabha, as the case may be. In the coalition era when the government of the day depends upon the support of its political partners, it will be impossible for the PM to act against any of his cabinet ministers on the basis of Lokpal’s report. For instance, if there were such a Lokpal today and if Lokpal made a recommendation to the PM to prosecute A. Raja, obviously the PM will not have the political courage to initiate prosecution against A. Raja. Likewise, if Lokpal made a report against the PM or any MP of the ruling party, will the house ever pass a resolution to prosecute the PM or the ruling party MP? Obviously, they will never do that.

• The bill is legally unsound. Lokpal has not been given police powers. Therefore Lokpal cannot register an FIR. Therefore all the enquiries conducted by Lokpal will tantamount to “preliminary enquiries”. Even if the report of Lokpal is accepted, who will file the chargesheet in the court? Who will initiate prosecution? Who will appoint the prosecution lawyer? The entire bill is silent on that.

• The bill does not say what will be the role of CBI after this bill. Can CBI and Lokpal investigate the same case or CBI will lose its powers to investigate politicians? If the latter is true, then this bill is meant to completely insulate politicians from any investigations whatsoever which are possible today through CBI.

• There is a strong punishment for “frivolous” complaints. If any complaint is found to be false and frivolous, Lokpal will have the power to send the complainant to jail through summary trial but if the complaint were found to be true, the Lokpal will not have the power to send the corrupt politicians to jail! So the bill appears to be meant to browbeat, threaten and discourage those fighting against corruption.

• Lokpal will have jurisdiction only on MPs, ministers and PM. It will not have jurisdiction over officers. The officers and politicians do not indulge in corruption separately. In any case of corruption, there is always an involvement of both of them. So according to government’s proposal, every case would need to be investigated by both CVC and Lokpal. So now, in each case, CVC will look into the role of bureaucrats while Lokpal will look into the role of politicians. Obviously the case records will be with one agency and the way government functions it will not share its records with the other agency. It is also possible that in the same case the two agencies arrive at completely opposite conclusions. Therefore it appears to be a sure way of killing any case.

• Lokpal will consist of three members, all of them being retired judges. There is no reason why the choice should be restricted to judiciary. By creating so many post retirement posts for judges, the government will make the retiring judges vulnerable to government influences just before retirement as is already happening in the case of retiring bureaucrats. The retiring judges, in the hope of getting post retirement employment would do the bidding of the government in their last few years.

• The selection committee consists of Vice President, PM, Leaders of both houses, Leaders of opposition in both houses, Law Minister and Home minister. Barring Vice President, all of them are politicians whose corruption Lokpal is supposed to investigate. So there is a direct conflict of interest. Also selection committee is heavily loaded in favor of the ruling party. Effectively ruling party will make the final selections. And obviously ruling party will never appoint strong and effective Lokpal.

• Lokpal will not have powers to investigate any case against PM, which deals with foreign affairs, security and defence. This means that corruption in defence deals will be out of any scrutiny whatsoever. It will become impossible to investigate into any Bofors in future.
Therefore, the draft Lokpal ordinance is eyewash, a sham. It is sad that despite so much of embarrassment caused to UPA due to so many scams, UPA is still making a fool of the people in the form of this draft ordinance.

Value of Human Life!

2011-08-08T21:31:00.001+01:00

It is almost three hours past midnight. I have begun completing my work. Fortnight back one of my friend lost his father. He had a massive heart attack. I have known the friend from the time we were in school. We spent around three years with one other and by that time our families begun to know each other well. This is somewhere in 1985 or so. Well that is about twenty five years. I have known my friend’s father since that time. Time of childhood. I remember how he would come on his scooter to drop that friend. That used to be so routine those days. If I just closed my eyes I can see those gardens of RKC so well. That gate which is still there – yes a time of 25 years has passed. Fortnight back I had received the news. All those days flashed before my eyes when I had seen his father full of energy.

I had last seen him at the Ram Krishna Math. He was looking pale and dull. He had lost almost all that energy. Twenty five years changes a lot. But then in the speed of life we forget. In fact we have no time to peep back into past. Why should we? It is always a good idea to live in present. There makes little sense in looking back at the past.

A generation that has raised us has begun to go. Some of them at least have started moving toward eternal while, we have moved on into the youth full of ideas and life forward. Perhaps some cycle is simply repeating. The biological clock is moving. We too are.

Today night when I had just finished my work, these thoughts of my friend arose to my mind. Well it was not that I was too close to that friend or too attached with his father. But there certainly was one connect. That connect was with my childhood and my having seen that gentleman since 25 years or so.

In the whole picture of those days, I remembered how my father and his father would speak to one another, how his parents would come to my house and spend that half an hour or so chatting about different things in life.

My friend is indeed too busy to think about all this. I too am. But, when there is time to retire to bed, these things strike. In a flash of five minutes hundreds of thoughts pass over the reader in mind and lot of pictures flash through. These are a mixed feeling of emotions, memory and identification of self with people and in turn evaluating the feelings and reactions.

My friend had called me up. He had few questions about the Letter of Administration and Order of the court he could not understand. He was busy taking inventory of the fixed assets, bank balances and all those physical things that had financial value attached to them. I had given technical answers to the questions that he had put to me.

In our region, we have a system of “Besna”. It is a sort of gathering where people mourn over death of deceased. It is thought to be a gathering of people who shared emotional values with the family of deceased. But that is not so in reality. Here the gathering has no connect. It is rather a sort of social ritual that most of those who attend follow with no heart in it.

It is the family or close emotional and spiritual relations that suffer upon a death. No body else gets bothered. In gathering of observances post death, people talk of business. People refresh old contacts. If there are funeral gathering of a politician or some highly placed individual, these gathering become discussion place of who succeeds next.

It is simply like those herds of wild bison moving. One dies and the others take no notice of it. Yes, there is one difference. Bison does not leave assets behind, human does. So now the question is about distribution of property, who will get what share and so on. The lawyers get some more clients. That is the value of life and memory in most of our routine affairs that are like dry transactions. Here life is nothing more then a balance sheet or a profit and loss account statement. Relations are evaluated on these terms. If an influential man dies, thousands of them accumulate. Not to share the grief but to show the face and register presence. Perhaps some day if there is some need, the contact can be “used”.

Value of human life is so subtle here. It does not matter how nice a man who passed away was. It does matter, what was his position, and status. Recently relative of some royal family had passed away at Bhavnagar. He had called Amitabh Bachchan and Aishwarya Rai on the occasion of Besna through Amar Singh (cash for vote man). In deaths, there is a competition. How many people attended whose funeral? Here is a right time to show muscle, power and strength. There is a savage feeling of gratification in being able to call people. More the number, better it is! Then the question is who came.

Recently University’s Vice Chancellor’s mother passed away. There were hundreds of people who queued up to attend the Besna. The Vice Chancellor happens to be old friend of my father. I had an occasion to attend that Besna. There were about 4000 people. But same culture prevailed. Little was the affiliation of those who attended with the occasion. More was a race of registering presence. I could see mobile phones ringing. People postponing schedules, boasting on phone that they are in the mourning observance of Vice Chancellor. Some talking about business. Some talking about politics, local issues and so on. Hardly 1 per cent of them actually involved.

What hypocrisy are we enduring!!!

I think that is the way of life. It has to be accepted. We have no choice, No choice for people who think or believe otherwise. In a gathering of blinds, a man with eyes is abnormal. Same is the case with a gathering of logic bounded humans, here human as human is abnormal.

NATIONALITY – HERO WORSHIPING V/s. Humanity in the Human Pageant:

2011-07-31T07:38:00.000+01:00

NATIONALITY – HERO WORSHIPING V/s. Humanity in the Human Pageant:

Often I have felt that the purpose of writing these posts is to help myself remember the truth of life and its virtues that I so often forget. There are so many great men and women born on this earth. Many are now worshiped as god. Take for example Ram or Krishna or Buddha or Christ for example. These were just mortal men like us. But they are worshiped because of beautiful thought provoking messages they have conveyed.

One problem with worshipping is glory and that magnificent light that surrounds these men of substance. Light and glory are good. But the side effect is blurring of the message that these men of substance sought to convey. So here is an idol we have. The idol is beautiful. It is serene and we must enjoy worshiping the idol. But in the meanwhile, the message that the man Krishna or Ram or Buddha or Christ wanted to give gets lost. Then remains the form; a form so thoughtless, so empty. There are hundreds of Bhaktas – the devotees. These devotees pile up and line up. These devotees are full of e motions. They are full of Bhakti. But the thoughts are lost. The message is lost. So we have devotees of lot of religion and dharmas doing things exactly opposite to what their heroes taught them to do. For example Jains practice fasting. Fasting perhaps may have a purpose of “Atma Suddhi”. The cleansing of soul. But then that should entail with it lot of forgiveness and mental peace. But that is not the case. Fast then become a ritual. Fasting now is a religious ceremony. It is performed without any intention of “Atma Suddhi”. The thoughts do not change. Thoughts remain self-same. There is so much of disgruntled feeling. And fasting adds to that irritability. The purpose is lost. Religion survives. God dies.

When I was in school – long back, we were taught songs of Patriotism. It was a feeling of India V/s. World. We were taught of the long standing freedom struggle that we have undertaken as a nation. There were men and women of substance who laid their lives for us. We sang songs about Gandhi, Bhagat Singh and lot of other heroes. There was a feeling of nationality particularly being a grandson of a freedom-fighter who never claimed any pension from government. As age advanced, as knowledge of world, economy, polity increased; these feelings changed.

Slowly but steadily there came a feeling of lack of national oneness. Here was not a nation – but a group of people who were using the emotions of thousands of people. This group of people was shrewd. It was essentially power and money game and nothing more. Post 1991 – in the liberalized economy, I was a strong patron of Narasimha Rao – then Prime Minister. The pathetic government managed institutions justified need of ushering privatization at the national platform. Perhaps basic idea was good governance and honest administration away from corruption. But after 20 years we have a Prime Minister - Dr. Manmohan Singh who looks more like a representative of the US Senate rather then the head of Indian Government. Was Rao no different?

While I write this, I do admit my affiliation and complete inclination towards the Congress Party. But so what? Do I lose my right as an individual to speak out my view? While this is true, I must say and admit that BJP will make no difference if it is in power. Rather they have better potential to make it worst. Whatever, the very idea of national leader sounds redundant? That is false and it cannot be so! Here we have no leader since leadership means unity of purpose. Are we heading towards any purpose? I have serious doubts. It is just a corporate business that we are into. A corporate business!

At the party level, I have felt that there is hero worshiping. We all have leaders. The local leaders have state level affiliations and state leaders have national level affiliations. There is a gang. The purpose of gang is to accumulate power; to get into positions by using all means. This is just not true for one political party but true across the board.

Same is the case with personal lives of people. Here we have heroes like Ram or Krishna. More then these heroes we have agents who proclaim peace and prosperity in our lives. These agents claim to know God. They claim to have ability to help us go closer to God. I do not know about people or the devotees, but the god-men or heads of religious institution definitely improve their quality of life. They get into better bargaining powers with the government and with everybody around them. They muster wealth beyond imagination and live luxuries that are unknown to most of those living on this earth. All this goes on in the name of God. Poor God! He has permitting these God men to rule us in His name. And now God must wait for all the communities to get sufficiently aware so to thwart these religious leaders from doing further loss. And what a fine business is religion. In India all income by religious institution is tax free. Does not this sound like a great business? Well – it is.

I was reading Einstein’s Book – “The world as I see it”. Although the original version where he may have written relativity is beyond my intellectual comprehension which I must admit, but there are sections that are just great.

These sections reflect what a man of depth Einstein must have been. On his ideas of patriotism, Einstein writes and I quote from his book:

“…This topic brings me to that worst outcrop of the herd nature, the military system, which I abhor. That a man can take pleasure in marching in formation to the strains of a band is enough to make me despise him. He has only been given his big brain by mistake; a backbone was all he needed. This plague-spot of civilization ought to be abolished with all possible speed.

Heroism by order, senseless violence, and all the pestilent nonsense that does by the name of patriotism--how I hate them! War seems to me a mean, contemptible thing: I would rather be hacked in pieces than take part in such an abominable business. And yet so high, in spite of everything, is my opinion of the human race that I believe this bogey would have disappeared long ago, had the sound sense of the nations not been systematically corrupted by commercial and political interests acting through the schools and the Press…”

EXPERIENCE WITH BHART SANCHAR NIGAM LIMITED – THE TALE OF INDIAN BUREAUCRACY:

2011-07-20T20:28:00.002+01:00

Many a times little incidences teach us a lot. These incidences are little because of the Value attached to them. Value could be financial value or value in terms of importance in daily life.

We live in India that harps of magnificent progress. Our country is amazing. Its political leaders foresee India as a global super power when in fact we have millions of our brothers in villages starving and hundreds of farmers committing suicide. However, with a section of our people in India, talking adversely about our country is a sin. So taking that sin in my account of life, I am narrating one experience that I recently had with telephone department of our nation. The BSNL – although now autonomous is not private. It happens to be part of the government organizations in India.

With on set of monsoons many of those who live in India or have lived in India know that phones go dead. One such incidence happened with one of our land line numbers.

So how do you get the line to work back? Call up the complaint division. Some technician comes from the company; repairs the phone. Is it over?

No. BSNL does not work that way.

The BSNL phone line was completely dead – it did not function. Routine complaint number for BSNL is 198. Years back when machines were not in vogue, people – I mean human beings used to pick up 198. So you could call up the complaint number and speak to the individual on the other side. With greater technology, greater problems have visited BSNL. The leaders of BSNL have replaced human operator with machine operator. Calling 198 now is a nightmare. The machine first of all picks up the phone and it gives you multiple options of languages that you may want to choose from. Once the redundant exercise is over, it simple gives you hell lot of options regarding your complaint. This way the roller coaster ride begins and the consumer is asked to dial the area code and then the phone number and such stuff. By the end of it, when you are looking forward for receiving your complaint number the machine hangs the phone in between. If you try again, same thing happens. Try again – no difference.

So our people tried the complaint number and all bombed. There was nobody to register the complaint. Somehow our old diaries have had some alternative complaint numbers. So we tried those numbers. Those numbers too were not available. They were busy. We assigned the Herculean task of lodging the complaint to one of us who was trying to get the complaint numbers. But the numbers were busy for as long as 10 hours.

Since we did not find access to complaint numbers, we called up another number that belonged to the supervisor. When the supervisor was called, he refused to accept that the BSNL numbers could be dysfunctional. Well – we did not have hobby of passing time. May be supervisors did not understand this. The supervisor somehow said that try the number again and you will get it. He sounded confident. After 5-10 minutes, the complaint phone number (alternative number) was available with the operator on line! Oh! Great. At least we heard a human voice from the complaint resolution department (I don’t know if they have such a department at all). We felt that supervisor had a switch and once the switch was pressed on – the complaint receiving phone number started accepting phones. The complaint was lodged. A complaint number was given. We thought that the matter would get settled and solved within a day. Next day a line man (guy who repairs phone lines) came. He examined the lines. He said the line is okay but there was some water in the wall socket that was causing the problem. He had cleaned the water. His assurance that “the matter will get solved” turned wrong. Next day the phone was not working. Once again another complaint was lodged. The line man came next and this time he identified fault with a devise called “splitter”. He said the splitter needs to be changed. We said okay – do it. The line man smiled and said BSNL does not supply splitters. So it’s like going to barber and the barber says go and get scissors from market and I will cut your hair. From our office, phone was made to the immediate supervisor of lineman. They call it Junior Telephone Officer. That guy happily informed that lineman was right. He added that they were honest and he did not want people to accuse him of selling BSNL instruments that were given for free. He felt BSNL was corruption free organization in India. Ultimately we had to send somebody to the market at a place suggested by the BSNL guy to get splitter. Another one day passed and the lineman came to change the splitter. He changed the splitter. The problem still continued. By this time, we had lodged almost about 5-6 complaints with BSNL.

Since the matter did not get resolved once again the line man came and this time, he said that exercise of changing splitter was not necessary but that our internal wiring of phone lines was defective and needed a change. He asked us to change the concealed line wiring. Since the lineman had gone wrong twice, this time we had little reason to believe what he said. Therefore more then a trouble with phone line we felt there was a trouble with his intentions. Therefore, we lodged complaint with the General Manager and the Manager of the City explaining the array of events that had taken place. A copy was marked to our legal section, to take up the matter with court, if needed. The seniors happened to be good. Therefore, they sent the divisional engineer next day to examine and solve the problem. The divisional engineer came and it took 15 minutes to solve the problem that had taken more then 10 days of waiting time, 12-15 complaints and more then 4 calls to the supervisors.

This is a way our bureaucracy functions. Recently a Minister’s wife had lost a purse at the train station containing 40000 INR and some credit cards. Within 7 days the police – cops got the purse back. But there are thousands of mothers whose daughters have got lost to be pushed to brothels. There are thousands of children who get lost and their limbs are cut off so that they can be made to beg on roads. Our police are not able to find them. Our police can hit sticks to mobs, fire tear gas on assembly of people who assemble peacefully, but they cannot fight terrorist or detect bombs. We must seek permission from police to assemble peacefully!!!! What a nation we are building up? Good heavens, there are some like Anna Hazare or Arvind Kejriwal who are born as anomaly in this nation. For rest of us, it is a routine business… who cares?

We feel that we are living in a country whose officers have powers without answerability. Bribe is an rooted culture here. It starts from the first day we visit temple. We give gifts to God to do us favors more then our symbol of love. The culture of bribery comes by birth. I do not know, if we will ever get rid of the spoilage we have created. But the little incidence of BSNL was amusing particularly in case of a phone line that was of little use to us!

Gandhi on “Hoarding”

2010-12-04T11:26:00.000Z

Gandhi at Mangalprabhat PP 18-20, talks about hoarding – he calls it the other way “Aparigruh” – it is an act of not hoarding something.

Hoarding here is stocking something that you do not need for the time being. It is like gathering unnecessary things. According to Gandhi – “if you stock things that are unnecessary – it is just a theft. God does not stock things. God creates all that He needs and as He needs everyday. If we trust God then He furnishes us with necessities of our daily life. Perhaps saints or incarnations experience this. The natural law of creating things that you need at a time you need is unknown to man and if known he does not wish to follow it. Due to this habit of hoarding things, we invite unhappiness and pain. Rich hoard things that get spoilt and lost without being used and many who need simply suffer without some basic necessity. If people take things that they need and do not run after things that they do not basically need, there will be no pain. Today both rich and poor are suffering. Millionaires want to be billionaires and billionaires are in higher competition. The poor who get enough to eat are not happy because they want more of other amenities. No one should be without food and it is a duty of people to make sure that no one sleeps hungry. The rich should come forward. The rich should give up enough so that poor get enough for their basic needs and later both have to learn about complacence.”

Gandhi further says – “In context of soul – the body is redundant – thoughts in this context can lead us to sacrifice of supreme nature. The body should be used for service and to such an extent that service becomes true food for the body. The body should wake up, sleep, eat, sit and do every act for the sake of service. Happiness out of such a state is true happiness”.

Gandhi in a Gujarati book called “Gandhi Ni Vichar Shrushti” at p.52 says “Nature produces sufficient for all of us and if each of us just take what we need and no more, there will be no poverty in this world. There will be no starvation. The existence of inequalities implies existence of theft. I am not a socialist. I am not asking the rich to donate away their properties. But I can say those who want to move to light from darkness should stop theft. I do not ask you to leave your possessions. If I do so, I am leaving the path of “Ahimsa – Non violence”. If somebody has more than I do, be it so. But to reorder my life, I can say I do not keep things I do not need. Do you know that in India there are thirty million people who eat only once every day? They eat flat bread of millet and a pinch of salt. Until these three million people have sufficient clothes and food we have no right to hoard things. We should try to make changes in our basic necessity. If necessary, we may voluntarily starve so that we can maintain those people, so that we can give food and clothes to them”.

MY INTERPRETATION ON GANDHI THOUGHTS:

I think Gandhi’s thoughts are mind boggling. Sometimes they are too difficult to digest but they are great in intuition, great in ideas, great in life and great to experience. They are intoxicating in spiritual aspects – once you get used to it – you would never want to leave it.

Look at the big houses some of us live in; those splendid cars and the air travels are hard to leave, staying in hotels and eating good food is a joy of life. Partying late night and boozing makes our lives complete. Now by contrast – the teachings of Gandhi sound redundant. They seem obsolete. What about our aims, our ambitions of high pay, high perks and for those yet to get married boys – beautiful women and cushy life. For those girls in their teens: what about those entertainments of life that they dream or enjoy every day?

You know what – says our mind – Gandhi lived in a different age and what he talks is just not applicable. Many of us live in surroundings where poverty is intriguing term. We do not know about hardships and even if such hardships do exists – why should we care? These are some of basic questions that rise to our mind and for many they have not time to think about all these – care a hang!

Okay – what gets picturised in our mind is a sort of soundless black and white film of eary 20th century in contrast to those high resolution movies we see now. Obviously – the former is lackluster.

To my understanding, people like Gandhi are incarnations. You can read Bible or Bhagwat Gita or any such holy book and all that sounds unappealing when you have fullness and happiness of life. These appear to some extent boring. Disease in eyes cause no change in the surroundings that eye looks at – same way distortions in our thoughts do not change basic eternal facts of life that become valuable during times of crisis all of us at some point of life have to pass – be such crisis of nature that are different. Crises does not only mean financial crisis but could extent to mental, emotional and spiritual crisis.

If thoughts of Gandhi must be enjoyed, they have to be interpreted correctly.
It is true that Gandhi lived in a time when there were high problems of food and people were starving. But as human race, we do not have much to brag because starvation is still a basic problem in many nations and many places in nations that seem developing or the third world countries.

We may write off starvation for the moment in personal lives because that problem does not immediately or in near future affect us. In such a situation obvious question that may come to our heart is how is Gandhi and all his thoughts on “Hoarding” or not-to-hoard philosophy useful to us?

There is saying “Wise man points at the star and fool looks at the finger”. Misinterpreting or interpreting sayings or teachings of wise men like Gandhi (people like me may like to call him incarnation) or other men like Christ – Buddha – Krishna – Ram or call by any name you like are similar & contain secrets of happiness, bliss and spirituality. But we must learn to interpret them.

Now take the teachings of Gandhi on hoarding. Can we extent the concept of hoarding to non-physical parlance. Hoarding thoughts that are not necessary –hoarding ideas that are unnecessary – hoarding plans that are useless?

Say for example somebody tells you things that are unkind – you hoard those words in your life and those words simply resonate in your mind hundreds of times. The words were not big. The unkindness was not too severe to kill you. But you allowed the words to resonate. You hoarded them. Instead of dumping anything bad you or I simply stock them perfectly preserved for years and years. Even after years of our lives we are sometimes full of complaints. Why?

We feel our lives are a misery because we do not wish to see lives of more miserable people. What is misery? Is it a state of things around you or a state of your own mind. You are a scientist and placed on a high position earning lot of money to support your family or you are a lawyer or a public accountant or an engineer or whatever. Your profession and vocation is giving you enough. You have enough to buy a house, buy a car, buy a school seat for your child or a college admission or enough of ornaments. Now you see your neighbor driving a better car than you do and you see another colleague in your college whose child is faring better then yours and you see a woman more sensual then your wife. There comes misery. These are derived misery. Those misery that did not exist but you created them out of your extraordinary capacity to nurture dissatisfaction. “You” here does not just mean “you” but I include myself in this “you”.

So what happens – we start comparisons and we call these comparisons healthy because we feel our excellence is promoted by such social or financial comparisons. What a logic? Gosh. You know you can call such ideas “bad ideas” because they are unnatural. God does not create excellence because He has to compare. He creates excellence because that is His nature. But we are hoarding. We want to show off. We want to impress people. We want two houses if our competitor has one and three if our neighbor has two. Our necessities keep expanding upon the necessities of our neighbors and theirs expand seeing ours.

We start expansion and hoarding in our expectations out of other people. We hoard expectations. We create expectations that are unnatural. We encroach upon liberty of others and we call them our “rights”. We carry expectations and when they break we blame. We find people whom we can accuse of breaking the expectations. Then there is a lunatic whom you or I can see. There are others of us who look okay but are not okay basically. May be we can bracket ourselves in those “others” – we are normal at times and not-normal at other times. But the problem is very fundamental. These are some pigeon holes. They exist eternally with our evolution until we will find ways to subside and destroy them permanently and merge with unity. But that is all about spiritual journey. We are too far and so we do not want to discuss all that right now. Let us get back to our world. This world where we live in. The world which Gandhi talks about amongst other things.

So we talk about hoarding right now. What is this? Is it just physical and if applied we may extend this concept to meta-physical states that we just discussed. But where to start? We are like a novice finding way in an unknown town. We have to ask – keep asking until we reach our destination of choice. Gandhi from a plain interpretation talks about hoarding physical things like wealth, food and consumables. So he is asking us to give up our habit of hoarding these physical things. He is asking us to use as much as we need and leave rest for others who may need it.

The physical aspect that Gandhi talks about must not be mistaken to be constricted only to physical realm of things. But that point could be first point to start. It could be a point where we can begin the journey. Since the mental and spiritual levels of human life are on different stage we can say that physical state is most palpable. It is something we can feel and experience more immediately. Therefore first the lust has to be ridden over. There is a human life and an animal life. The difference is in existence.

The human life is existing in mental and the spiritual state and perhaps has potential to coexist together (whether or not it may really coexist). Therefore when we talk of human life it could mean three parallel stages coexisting. But since we are so clouded by lust, greed, fear, envy and so many of disorders that we have created or contracted ourselves, we must first start with the physical stage – that stage being most natural to us. It is this stage where we learn to train the mind. It is like the “Upvas” – sort of fasts that some religions like Hindu or Muslim or Jain preach. The importance is not on fasting but it is a control. It is a method by which we learn to balance. The physical aspect is therefore important particularly for the beginners. So it is a habit of restraint that we must cultivate. Restraint may not be misinterpreted as denial of self pleasures, denial of sex, denial of good food. But there is a balance. The moment we catch that term “balance” we understand that there is no denial. Denial itself may hide deep desire and a fear of desire overcoming self. Therefore we can say we are not talking about denial when we talk about balance. Balance is not falling either way. It is not a strict denial and not a complete seduction. So once we learn to balance, we can have a pudding and there is nothing wrong with that. But there is no lust for pudding. We may want to drive in a great car, but that car does not become a source of happiness. It could only be a minor instrument of use.

The concept of teaching children to share is important. It encompasses the concept of not hoarding. But teaching children is easy and perhaps gratifying. But teaching self is difficult. We are always in a state of battle with self that we lose. This is because we often deny our weaknesses. Why should we admit where we were going wrong? Can I go wrong? Never. Yes – that is perhaps a starting point – me and not you. So here we can just learn to control our desires, our lust, our greed and our expectations. Once we do that in physical terms, and once we are more acquainted with the physical part – we then delve up to mental standard. Then there will be little reason to complain. We will start attaching less importance to gifts and more importance to people. Then the financial value of things will not be so important.
So what do we want to say – do we say money is not important – certainly no. Gandhi was a great lawyer and a great manager managing various institutions. But he did that with a feeling of detachment. The moment you are I are detached in real sense, we are away from all emotional stress that is attached with failure or success of things.

The concept of hoarding and the philosophy of not-to-hoard therefore to my mind is very appealing.

Courage and Theft - 2

2010-11-21T18:50:00.000Z

Theft:

What should we mean by theft? Is it just stealing somebody’s thing? Is it just connected with a criminal whom cops look for?

Gandhi gives a stricter meaning to theft. I am referring to Mangalprabhat – page 15-11. Here Gandhi talks about concept of “ASTAY” – “Not to steal”. Gandhi says that normal notion is that a thief cannot practice truth and love. Yet if we evaluate, we are to some or greater extent involved with some or other kind of theft. How?

For example: if we pick up something not belonging to anybody – Gandhi calls such an action – “Theft”. The concept does not restrict to picking up things – but goes beyond that in a sense keeping or hoarding things not needed is theft. According to Gandhi eating more then necessary is theft ! We expand our needs beyond our necessities. So unknowingly we become thieves.

Gandhi points out towards introspection. He is asking us to evaluate. He is asking us to evaluate our needs. Gandhi points towards a vow of “Astay”.

He says if you take such a vow - you will find constricting your needs. You won’t need to worry about your future and cultivate a tendency to hoard. Gandhi cautions.

He says “Astay” does not mean merely not gathering unwanted things – but not getting attracted by such things. Since the source of all activity is mind. If you are innerly attracted by things that you do not need, if will be difficult for you to control your desire to run after them.

Gandhi extends conceopt of “Astay” to thoughts. He says just as you can steal things – you can even steal thoughts. Branding thoughts of others and proclaiming originality in them is theft.

Gandhi concludes here that somebody vouching “Astay” will be humble, thoughtful, cautious and simple in his lifestyle.

My Interpretation of Gandhi’s thoughts:

Prima facie it may be a bit difficult to accept Gandhi’s thoughts on theft. How come eating more is theft – we may ask?

Probably Gandhi said this at a time when food was scarce in India and lot of people were starving. Today in global context may be this not appealing – nevertheless true.

It is more a question of habits and mind-set rather then measurement of food and its availability.

Why do we buy loans? Are we thrusting into loan based world? Is the decision of loan a good financial decision? Is loan taken for buying house and stuff that increase in value or is it just taken for buying consumables? Are we indeed expanding our wish list without understanding whether the list is rational or not?

May be – these things are important during recession. But should we wait for being chopped off and learn after bruising? Or should we learn before water flows over head?

Are we trying to flaunt big things to our neighbors or relatives or friends? What is the purpose of expenditures? What are we teaching to our children by our conduct?

Gandhi in his life of simplicity and message on theft gives us an economic model. There is no harm in eating good food or dining in a good hotel – if your pockets can afford. But every thing has a balance. Abundance of things don’t necessarily proportionately increase satisfaction and happiness. Rather there is a rule of diminishing returns.

Perhaps understanding Gandhi’s economic model is helpful.

Courage and Theft - 1

2010-10-06T07:00:00.002+01:00

Gandhi in “Mangal Prabhat” p 21 & pp 15-7 talks about two words. They are “Abhay” and “Astay”.

Abhay means fearlessness. Astay means “no theft”.

Gandhi says that these two words are interconnected. There isn’t any asset greater then being fearless. Without being fearless – you cannot practice non-violence. God’s way is a way of courage and fearless – cowards cannot follow it. Truth is God and you can call it Ram, Narayan, Vasudev – whatever. Cowards fear things and people – braves are fearless.

My Interpretation on Gandhi Thoughts and their application in every day life:

Gandhi is very clear in his thoughts. There could be two reasons backing non-violence. Being fearless is a good reason for being non-violent. You don’t hurt, because you do not want to hurt. Your value system refuses you to hurt.

There is yet another reason why people practice fake non-violence. That reason is fear and weakness. According to Gandhi – non-violence cannot coexist with fear. In that sense, we may say that such a non-violence is fake.

Imagine a situation where in a wood you stand ten feet from a lion unarmed and you harp of non-violence. You know you will be over-powered by lion and it’s going to tear you to pieces. In this situation, non-violence is a camouflage of inability to act. Not reacting due to incapacity is an act of cowardice and has nothing to do with non-violence.

Gandhi does not talk about this sort of non-violence. His concept of non-violence is very powerful. It is being non-violent amidst strength. It is an act of bravery. To reinforce his concept of non-violence, Gandhi talks about bravery. He says that braves can follow God. Cowards have nothing to do with religion.

Corollary to interrelation of non-violence with bravery is relationship of cowardice with violence. This way terrorist who kill innocent (irrespective of their faith – Hindu or Muslim or Christians or whatever) are cowards. They fear their existence. They have no faith on God and have nothing to do with religion.

We as humans tend to rationalize our mistakes. It is not that we tell lie to others. It is that we lie to ourselves.

I have often learned one thing in life. The moment you write what is truth on a piece of paper – many doubts are resolved. But you have to muster huge courage to right that truth. Perhaps hear that little whisper from within – perhaps clear a little fog in your mind to open a door of that inner spirit.

For instance, you don’t like somebody. May be he flaunts too much in self-appreciation and you simply cannot take it. You like a way of sobriety and person right in front of you is harping about things that are totally untrue and may be you know or think them to be untrue. You feel angered from within. You get a feeling of despise for that person.

This sort of feeling is in backdrop of a possible framework that you are sober and the other person extravagant. You don’t like extravagance. May be you feel that other one is trying to belittle you. You disapprove this behavior. You get a tinge of bitterness somewhere deep within.

Although, this situation looks distant from fearlessness or from non-violence, it is very proximal.

Now just look at the whole situation from this angle: A small child of 10 years harps how brave he is to an Army Commander. The Commander knows that the child is lying. Do you think the Commander will feel bitter and agitated towards that child? No. What does he do? The Commander simply ignores that child or maybe laughs with all affection for that child – the commander plays with that child.

You know why? That is because the commander knows he is a commander and the child is a child. The commander comfortably ignores the child because he is sitting on a pedestal of his efforts and hard-work and experience. The child does not bother him! May be the commander’s heart is full of love for that little tot. Here – although, it appears that the principles of non-violence do not play any role – they do play a role because the commander is brave – he does not care for the child and his braveness gives birth to non-violence – although he can overpower the child by his talks or by his hand, he simply tolerates the child – plays with the child and may be in the process of that playing the commander teaches the child some lesson of humbleness.

If the commander fears the child or feels that the child is belittling him, a feeling of competition comes from within of that commander and the commander may simply react to the child with a child-like way.

Now come back to your situation – you and some other person sitting in front of you harping of his achievements. If you get into competition with that person, a feeling comes that he is trying to belittle you. That feeling is a manifestation of inner fear. Just like a commander is fearless about that child, if you are fearless and sitting on pedestal of your work, experience and efforts, you simply get a capacity to ignore such talks. Remember, you cannot ignore things by simply overlooking them outwardly, but the moment you stop feeling uncomfortable with things, they stand ignored!

Now your height is like a commander. You are fearless. You have courage. That moment, you will have no complaints for other person. You don’t feel he is belittling you. You don’t feel that he is trying to grow taller then he is. You don’t feel like cutting him to size. You feel just nothing! How great? You are inert. You are near God. You are focused. You know what you have to do and you just do that and nothing more, nothing less.

I think fearless is a basic trait. Obviously, we will turn divine, if we get into such a state permanently. It is not possible in real sense. But we can try. Can’t we? We can understand Gandhi’s words and try to follow it. It is not bad to get slipped. You commit no sin if you slip or slid in life. That is how we learn. Just like a child learns to crawl and get up, we learn the way of emotional maturity and someday we will fully understand Gandhi and someday we will be nearer to God who loves us so much!

Flawed "Bhramcharya" - Simply abstaining from Sex!

2010-09-30T06:23:00.002+01:00

Gandhi and Bhramcharya

Bhramcharya in context of Gandhi and my interpretation:

“Bhramcharya” is a word that can be found both in Hindi and Gujarati. It has same meaning in both languages. Literally it means “Bhram” – God and “Charya” means Proximity.

To sum up: “Bhramcharya” means being in proximity to God.

Often in India and elsewhere people connect Bhramcharya as abstaining from sex. This is a popular yet wrong meaning attached to this word.

If evaluated, in terms of physical senses and perceptions, this word only means keeping your senses under control.

Gandhi has written about Bhramcharya in Harijan Bandhu on 21/06/1936 and again about this topic in Mangal Prabhat, Page #11.

Bhramcharya essentially is a process of control – but a control over sense. It is a control over self. Gandhi calls it as control over all sense including craving for food. He says craving for food and taste buds must be controlled. If we can control our lust for food, we can also control our desire over sex and desire to eat has great proximity with Bhramcharya.

So far as Gandhi’s opinion on marriage is concerned, I don’t know, if I am mistaken but referring to Mangal Prabhat Page #7-8, he says husband and wife should live like brother and sister. In fact, he is asking not to indulge in sexual activities.

For control to be absolute, Gandhi feels that people inclined towards Bhramcharya should not marry.

MY INTERPRETATION:

As usual before embarking on my interpretation, I feel when I sit to measure what Gandhi said, it is probably like a little ant trying to measure elephant. Therefore, my interpretation may be flawed or totally conceived incorrectly.

Nevertheless, I feel I must express my feelings. When Gandhi says something, probably it does not matter if it is 1910 or 2010. He is trying to point at universal laws. They hold true for centuries.

His idea of Bhramcharya is appealing. It is controlling sense – those senses of eyes, nose, touch, speech and ears. Within these senses is comprised a need for sex and perhaps derived habit of taste.

We all tend to control others. In fact: our thought process from dawn to dusk centers around controlling others. Parents try to control children. Boss tries to control his employee. Name a relation and you will find a mechanism of control operating right there. We feel we have things and people under control and we feel desperate when we lose control.

But, under natural law, we must realize that smallest constituent of any matter is atom. Same way, first point of control should be self and not others.

As humans, animal instincts have not died in us. We feel and enjoy a savage satisfaction in controlling others, firing others, and this gives a feeling of superiority. These feelings are external. In reality, if there is a hollow, we would not even control ourselves. Then the external controls are illusory and transient. That is why people with great success and talent commit suicide. There is an inner hollowness.

If we cannot control our senses, we cannot control our emotions. We jump to subjectivity and call ourselves objective.

We start looking at things by taking our ideas and expectations into first place. Basically, we are moving out rather then inner correction.

Here is where most Gandhians (followers of Gandhi) reside, in a zone of external control. They wear Khadi – they keep photo of Gandhi and make a hue of falling ethics and declining values. We also like them tend to complain about things or people when they exist or behave contrary to our expectations.

We are unable to control our expectations. Here is a point where bhramcharya plays a role. It controls the senses as well as expectations that arise from senses. Here is a place where Gita teaches principals of “Karma”.

The moment we stop our efforts of controlling results, but push efforts for controlling our self and our actions, we practice “Bhramcharya” – the inner control – control of self.

Gandhi, as pointed hitherto links to Bhramcharya a concept of marriage. I feel probably Gandhi was not in his 20s or 30s when he first asked people not to marry. May be his testosterone levels had settled by the time he had four kids. So he was comfortable when he said “Don’t Marry”.

From my personal experience, I feel marriage does not hurt Bhramcharya. Even having sex does not hurt Bhramcharya.

You may argue that having and practicing Bhramcharya is like having food and saying I am fasting. They are two opposites that cannot coexist.

But to my belief, that argument is incomplete and therefore untrue. Such an argument emanates from misconception about Bhramcharya.

To clarify, Bhramcharya does not mean eliminating the senses, it means controlling the sense. It does not and cannot mean eliminating or destroying senses and self. This cannot be right interpretation.

Controlling taste is like eating cucumber when you have an option to eat cake. Nevertheless, it does not mean starving yourself to death – Gandhi would never mean anything like that and ascribing Gandhi like that to my understanding would be incorrect.

Same way, controlling sex, does not mean stopping it completely. I mean if that was intention of God, he would not have taken a deep trouble of creating male and female sex organs and sex hormones. In that case, we would be born as asexual organisms. But God gave the organs to use just as he gave mouth to eat.

Excessive eating leads to obesity and therefore loss of health – same is with sex. It leads to loss of health and loss of focus. Eating moderate food having right combination of nutrients and fibers leads to good health. Same way using your sex energies may lead to their transmutation. Sex with spouse is not bad and does not a bad idea and does not hurt bhrancharya – but going to brothel must be shunned.

Gandhi - Truth & Nonviolence - Practical Application

2010-09-25T14:16:00.000+01:00

Truth and Nonviolence

At Page #5-6 – Mangalprabhat – Gandhiji talks about Satya – Truth and “Ahinsa” – Nonviolence.

Gandhiji says that normally when we talk of Non-violence – we carry a belief of physical non-injury. It means, if you are not injuring or hurting somebody physically – you feel that you have practiced non-violence. This is a broader perspective.

But Gandhi wants to extend the concept of non-violence. He gives some examples. He says bad thoughts constitute violence. False talks are violence. Jealousy is violence. Praying for somebody’s ill is violence. Being possessive is also a form of violence.

Truth and non-violence are interwoven. They are two parts of a same coin. They are inseparable. Truth is the end and non-violence – may be means to an end.

Since we can control the means, which is handier. Non-violence is the first step. In that sense, truth is God. If we don’t worry about the end (God), but if we cling onto the means – non-violence, probably some day we will reach at a point where we meet God.

According to Gandhiji, Non-violence is not a discrete happening. You practice it one day or for one person and leave it next day or for some other person – it does not work that way. Non-violence has to appear in each act of life. He felt that non-violence is good for individual as well as for larger sect of people.

Gandhi to support his views cites historical events. He says let us peep back into the history and we find that human as a race is getting non-violent by and by. Look at this: we had been hunting during initial years of civilization. Some of us were even cannibals. Later we realized better ways beyond hunting. We started agriculture. We settled down from nomadic state. We, as humans built cities and towns. The world has witnessed various prophets and priests all of whom have taught non-violence. This was natural since violence could only lead to an end of this world and extinction of humans.

My Interpretation:

OUR DOUBTS:

Normally when we hear about non-violence, our paradigm revolves around the fact that we must not resort to physical fights.

The physical aspect of non-violence is fairly convincing to most of us. So every day street fights and murders are not so rampant. Though physical violence occurs, but in comparison to total number of people and interactions happening every day, they are few.

It is also true that we no longer take out daggers and swords every now and then. Neither do we run to kill our opponents in every day life.

Gandhiji, however talks about other part of nonviolence that extends in the mental and spiritual part.

This part of non-violence is not very convincing at the first instance. To those whom this aspect convinces, find great difficulty in practicing it.

Applicability of non-violence and its benefits in legal, corporate and personal worlds:

As pointed out earlier, the principals of non-violence and truth sound archaic.
Very first questions that we may want to push on the table, if we open our heart and tell out our feelings honestly are:

1. How is non violence going to help me?
2. My opponents don’t practice it – why should I?
3. I cannot survive if I try to step into shoes of saint – and you talk of non-violence!
4. In a world of business, we have to tell lies, we have to fool others, and we have to respond to events in a way they react to us…
5. These things look great in books – they are useless in practice!
6. Non-violence is a word used by cowards and sadist who have no ability to respond.

The points raised above are very genuine. They are not wrong and they make more sense then nonviolence. But, I must say after lending analysis that they are incomplete and represent single dimension that is misleading.

When I hear Gandhians (followers of Gandhi) talking about Gandhi’s principals, I find amazing stiffness – sort of sadist people in them. They are a fracas of “Tanpura” (Indian Musical Instrument). But can we add spice and hip hop to his great ideas without losing its great flavor and benefits it offers? Let us see.

When I read first these thoughts, I was deeply inspired, but doubts came in. I must confess. It did not simply work – I thought how is this going to apply? I mean for example, lawyers take wrong adjournments, they fool their clients – bill them extra hours, they give advice that encourage people to litigate and even if they do pre litigation review, they do it many times even if they are sure about legal position and a clear advice without pretending to research could clear off the matter. They write articles in journals, not with an intention of educating people, but to attract clients. Don’t lawyers envy each other? Can a lawyer openly confess to his client and say – he believes that opponent has a better lawyer? Doesn’t each of us do it in some form or other? For example, a known person suddenly becoming very successful and we find no happiness or admiration for that success. Rather may not even like to hear that! That is envy!

May be this is smoke that clouds our minds.

Not only lawyer but all of us in different parts of life in different professions do this thing often, knowingly or unknowingly.

We tend to be self centered. But the difficulty comes, when we are not truly self-centered. We don’t even know what is good for us from a selfish standpoint – be it selfish.

One thing that we must accept is a fact that genetically we are in a race for survival and the fittest survives – one who can adapt to change survives most.

But a survival of uncivilized is different from civilized. Once in higher state of mental standards the rules of game become different – although the principal of survival continues.

When we talk about rules of game – what do we want? We want honestly for us. We want people to be honest to us. When we buy car or a house we don’t want to be dumped with crap lot. In relations we want our wife to practice fidelity. We want our child to work hard and grow up shouldering responsibility. We want our business associate to be honest to us. We want our debtors to make timely payment to us and so on is the list. Yeah!

But how are we going built up a rendezvous like that? I mean if you go to a church or temple you meet people who like to worship and you go to a brothel you meet people having physical cravings.

You shall reap what you sow – there are no short cuts. Now if you are a person intrinsically supporting violence or back stabbing, you will be supported by people who also enjoy that. May be, if you are too good at creating designs for trapping people – you lead your band. It is great to be a gang of that sort because, things work right. A devil team resounds well because they manage to subdue people. But – when you do that remember you are never surrounded by people with high ethics or sense of integrity. You will built a mess around you and survive so long as you can handle the mess. The moment your evil team finds you weak, they withdraw support you – they tear you to pieces because that is a rule of game you play. You enjoyed the rules when you won and you must not complain foul when others practice same sins you patronaged.

Say in the group of lions – those carnivorous – moment principal lion is injured or incapacitated, he is ousted and sometimes in such a great misery that wolves tear off lions. Now remember human counterparts – all of us care for older ones – don’t we? So in a human concept growing physically old does not necessarily by implication mean death – of course unless you have sown distrust, selfishness, lack of attention in your children – you get great results.

Here the principal of survival - the natural principal remains intact. That principal is not wrong and neither invalid. But the rules of game change.

Gandhi’s ideas to my understanding should be applied for changing the rules of the game. The rules of the game that Gandhi talks support the basic principal of survival. Rather that old man quietly whispers – if you want survival – you have to practice non-violence.

If you want your friends and your associates, customers and your family viz. wife, child and all others around you to be honest to you – first give honesty. Shun people who cannot simply accept honestly as a basic idea. If you do that you built a long lasting relation. Relation – where you eat mangoes you have sown for years.

So from selfish point of view – Gandhi’s principals are very appealing and make sense.

Gandhi Sarvodaya – Possessions / things:

2010-08-16T19:05:00.002+01:00

I am referring to article by Mahatma Gandhi in Amritbazar Patrika dtd. 17/09/1933.

Gandhiji in this article said that we have to be clear about our purpose and about our means of achieving that purpose. Just knowing purpose is not enough. We have to be clear about the means. We have to be clear about the ways by which we will reach up to that purpose.

Gandhiji said that he has always been careful about preserving the ways of achieving purpose. He has been keen to use the means in right way so that the intended purpose is well achieved.

If the ways / means of reaching the purpose are well preserved and well used, the purpose can be achieved.
If our means are pure our purpose can be achieved. Corollary to his is – our purpose is achieved to the extent of purity of our means.

My interpretation:

Gandhiji said some things that look redundant in to-days time, but are not so.

Gandhiji refers to means of purpose. Preserving means is very important. What is organizational budgeting all about? We have to monitor what resources are deployed and how are they deployed. None of us can use our resources the way governments in developing nations do. They nearly squander everything resulting in huge fiscal deficit.

Here the concept proposed by Gandhiji gains importance. Is your child preparing for exam? Are you preparing for project? Are you starting some new venture? Concept given by Gandhiji is very practical and can be put to use right away.

A child has to be clear about his purpose – passing exam. He has to be clear about means – the tool – his books and his studies. He must preserve books, he must work hard. He has to be honest. This is child’s purity of means. If he is more pure, he is certain to reach his goal of passing exams.

Same is a case with entrepreneur. He has to be innovative. His purpose is success in product launch. His tools are his innovativeness and his creativity. More creative – more clear about market means more success in product launch. So – Gandhiji’s description about purpose and preservation of means for achieving that purpose is very important.

Rest for some other time.

ndhi and Sarvodaya – Panchayati Raj

2010-08-16T19:04:00.000+01:00

Ga

In Harijanbandhu - a publication by Mahatma Gandhi – on 18/01/1948, Gandhi-ji had written about Panchayati Raj. According to him true purpose of Panchayati Raj was to empower last man in the queue. He said that smallest Indian (meaning an Indian who is impoverished – destitute and powerless) should have same rights as that of elite. Every Indian has to become pure (pure probably had very versatile meaning for Gandhiji).

He believed that pureness means being away from Cast, creed, color. He believed pureness to be synonym of love – one who gives love to all. He believed pureness means not considering anybody untouchable (India had history of untouchables where some elite considered others to be untouchables). To a pure Indian, according to Gandhi – both worker and owners were on same footing. Pureness is keeping away from wine and other narcotics. Pureness to Gandhiji was fidelity to spouse. Fidelity meant to him not fidelity in actions but fidelity in mind. Pureness to Gandhiji meant total non-violence.

My Interpretation:

Interpretation may vary from one person to another. Hence, there is no doubt that my interpretation may be materially different.

One thing is certain, when we read stuff like this – like talking about fidelity, equality – we feel that these are propositions fit to be forgotten with books in which they are written. Many of us may feel it is a waste of time to give a thought to these things.

Yet, when we work in our workplace, courts, government offices and all such places, we probably run for equality. Some more successful and established make out ways by which - they push others down the line to make more space for them at cost of others.

Nature by itself has not created any equality. Look at the lion and a deer. The deer is clawed by lion and the helpless creature can do nothing. Where is equality? Why should we as humans propose a concept of equality when nature just says – “Survival of fittest”.

Logically this proposition looks true and more convincing. But in that case, strongest should survive and weaker should perish as happens in animal kingdom. In that case Gandhiji was was so feeble – a short man with no physical strength should die. Same way lot of scientist who are physically weak should also perish and those Sumos of Japan and likes of Bruce lees should survive. Army should prevail over civilians and weapons over peace.

Do we want a world like that? “NO” – probably answer for most of us. We prefer peace over war. Love over hatred. We are traveling away from pure animal instincts. A lion may kill cubs of lioness to mate with her. Can we think of doing this to any lady? No.

In a corporate context, this concept is useful because, attention is given to what is said rather than who said it. Many times best suggestions come from bottom because they are people who understand problem at its zenith. We have to value all. How can we be oblivious to people around us. How can we achieve team spirit if we undermine somebody? How can we be happy by mocking on others? Sometimes best things do not come in best package.

From physical paradigm, we traverse to mental paradigm. From mental paradigm we travel to spiritual awareness. Probably Gandhiji was in a different world that we are yet to see.

Rest for some other time.

Gandhi and Sarvodaya

2010-08-15T13:25:00.000+01:00

A question may arise - what has a lawyer to do with Mahatma Gandhi. Gandhi was a barrister - a lawyer. But a lawyer, who was honest. We cannot say that he did not lie because in his modesty he has so many times made statements that under-estimate his ability. Nevertheless, this man had a dream of a world that we may called day time fantacy.

Yet it will be right to say that what Gandhi said was not a day time fantacy. If there are right people governin nation - right leaders - Sarvodaya - a world of Gandhi can come true. I felt it was necessary to touch upon Gandhiji's concept of Sarvodaya and therefore this write up.
Sarvodaya - Gandhian Ideology.

Meaning of Sarvodaya:

This was a dream world for Gandhi - India's father of Nation. According to Gandhi, Sarvodaya meant:

1. In well being of all lies well being of mine.
2. A Lawyer and a barber have same right of livelihood.
3. Real life is a life of simplicity.

Gandhi in his book "Sarvodaya Parichay" admits that his habit of reading books was nearly zero during his student age. After getting into work, he had little time to study. There were only few books that he studied. They included "Unto the last" by Ruskin. Gandhi acknowledged being deeply influenced by that book.

He said that Ruskin deeply influenced him and what laid deep beneath him was dug off by that book of Ruskin.

On 12/12/1926, in a publication called Navjivan, Gandhi said that industrialization cannot be blindly supported. He was against communism because he considered communism employing same means as capitalizm although in different form.

A proponent of non-violence according to Gandhi should support entire life on the earth. While he mentioned something like "Shrey wadi" (that is a Gujarati word) - but I could not follow what it meant.

Rest for some other time.

REPORT TO PEOPLE GRIEVANCE CELL UNDER PUBLIC WORK

2010-08-06T19:11:00.003+01:00

(Reproduced under Permission from LFM)

Report Prepared under Instruction of People Grievance Cell for promoting public interest.

PRELIMINARY:

The newspapers and the media are flooded now days in Gujarat with the issue of Gujarat’s Home Minister involvement in the fake encounter case of Sohrabuddin Sheikh. Some more influential than Ex-Home Minister are now fearing that they may also get involved.

BJP says Congress is behind all this. Congress defends itself by saying that Supreme Court Ordered CBI investigation. A common question that occurs is – Why CBI when we have such competent local police Force. Why should SC pass such an Order? Why has CBI called Geetha Johri in this month? What is it that she can tell CBI? What was her investigation in the matter? The Supreme Court has itself clarified the reasons why it has reached to conclusion for CBI inquiry.

One thing is clear that we live in a world having rule of law (kayda nu shashan). This rule of law is fairly impartial. Supreme court has directed CBI investigation and same Supreme Court had rejected demand for CBI investigation for three years in spite of repeated demands. Courts are governed not from hear-say but material on record. Just see, when so many people want Amit Shah to be taken on remand, the Court has rejected the application . On this people say that CBI has turned lax. Really - is it lax attitude or a strategic move ? Time will say.

The spate of incidences include a period from 21st January 2007 to 12th January 2010 before the Supreme Court and is now important in background of the fact that Geetha Johri is scheduled to appear before CBI and entire incidence may get new turns while OP Mathur has already been grilled.

Letter of Rubab and 6 months delay in appointment of Investigation

Supreme Court received a letter addressed to Chief Justice of India by Rubab in which he complained that his brother had been killed in a fake encounter by Gujarat Anti-Terrorist Squad and Rajasthan Special Task Force. The Supreme Court registry wrote a letter dtd. 21/01/07 to Gujarat DGP to take actions in the matter based on letter of Rubab. The Gujarat DGP took no actions in spite of the letter from the SC registry. Registry issued several reminders for six months. After six months, because of several reminders, DGP appointed Geetha Johri IG Police – Crime to investigate the matter. Upon this inquiry case no. 66/2007 was registered.

On 22/01/07 notice was issued to Central Government. On 19/03/07 a notice was issued to Gujarat Government in this matter. On 23/07/07, Additional Solicitor General had filed his report in sealed cover in Supreme Court. Gujarat State had filed interim report on 03/05/07 before Supreme Court. In all there were eight action taken report filed with the Supreme Court by the Gujarat Police. In the entire events, four reports of VL Solanki – PI working under Geetha Johri became important to Supreme Court.

Sudden change in police personnel:

When the matter was going on before the Supreme Court all of a sudden charge was taken away from Mr. Raigar and in his place Add. DGP OP Mathur was given charge of CID head. Same way Geetha Johri was also removed from investigation and in her place Mr. Rajnish Rai was installed. These events during pending case at Supreme Court caught attention of the court.

Rejection for CBI Investigation by SC during 2007 and therefore from 2007-10 investigation was done by State Police:

When we hear that Supreme Court (SC) has Ordered CBI investigation –we feel that the Court did this straight away. That is a wrong hypothesis. Right thing is that for three years, Supreme Court had not Ordered CBI investigation. Rather initially SC was of a clear opinion that CBI investigation was not needed in this case. It is not that State Police was not given a chance to investigate the matter. Rubab repeatedly requested SC for the CBI investigation. Same way supporting Rubab Attorney General also requested investigation by CBI. But SC stated that since State Investigation Agency was working in right direction, CBI investigation is not at all required. Not only that – Rubab also requested that Ms. Geetha Johri and Rai to include in investigation – but SC refused to do so about three years back. Rather SC stated that State Investigation Agency will investigate the matter and it shall not take DGP’s permission in the matter. DGP should also not interfere in the case. Supreme Court felt that this will be enough to carry out fair and transparent investigation.

What happened that Supreme Court changed it’s view?

Before knowing why did Supreme Court change it’s initial view that CBI investigation was not needed, it is necessary to understand in brief what was the case of Gujarat State / Police in the court.

Stand of Police / Gujarat State in Court:

On 12/05/07 Geetha Johri gave a report to SC in which she clearly expressed that there was uncertainty and discrepancy (tafawat) regarding the presence of Kauserbi at A’bad and Sorab at Hyderabad. Johri also stated that the identity of so called police who picked up Shorab, Kauserbi and “third” person was not found. Johri also stated that investigation is necessary for knowing what happened to Kauser after 22/11/05. On one hand when she was seeking permission to interrogate Tulsiram on other hand record showed that FIR dtd. 27/12/06 reported Tulsiram’s encounter.

Police also said SC that they were taking Forensic assistance. Narco test of Senior officers like Vanjara, Dinesh MN and Pandyan was sought and matter was pending with Session’s court. Police stated that they had examined 194 witnesses. AP officials had cooperated and had denied their involvement. The Metropolitan Magistrate had denied Narco test and matter was pending with Sessions Court. Forensic report stated that nothing incriminating (gunahit vastu) was found. Within prescribed period Charge-sheet will be filed. In the Seventh Action taken report – Police stated that out of three persons mentioned in Johri’s report, third person could be Kalammuddin – a police informer. Phone call analysis was put forth by police in the Supreme Court.
As per Eight action taken report, police asserted that phone call report analysis was made. High Court was approached for Narco Analysis case. All this was stated in various ATRs upto 15/10/8

Questions before Supreme Court:

1. Whether CBI Investigation should be directed after chargesheet has been submitted and trial started?
2. What were facts that lead court to direct CBI investigation?
3. Whether after 8 Action reports, it could be said that investigation was carried out properly?

Legal Question Answered by SC were hereunder:

1. Legally CBI investigation can be directed even after submitting charge-sheet in court and this was not first case. Hitherto in various crimes this had been done by Supreme Court and approach in this case was not new or first one. Supreme Court had stated that for instilling public confidence, confidence of victims and total justice CBI investigation was needed looking to facts of the case;
2. Normally view of SC is consistent in that when the accusation was against local police and high police officers CBI investigation being independent agency is needed;
3. Why only relative of deceased – even local public may come and ask for CBI investigation in such a case;

Whether investigation should be transferred to looking to facts of the case – the court answered on 12/01/2010:

1. The SC has gone through all eight action taken reports in the case;
2. The Eight action taken reports submitted by government had large & various discrepancies in comparison to investigation carried out by State Police and the Charge sheet filed by State Investigating Agency and that (virodhabhas) and it appears that investigation is not running in right direction.
3. On one hand charge-sheet stated that Shorab and two others were picked up by Gujarat Police Personnel and accompanied by 7 other AP policeman. But on other hand, charge-sheet did not reveal identity of police personnel of AP.
4. On one hand charge-sheet stated that Kauser was taken in one of the two tata Sumo Jeeps in which AP police personnel accompanied accused, but on other hand non of the AP police personnel were listed as Accused.
5. Charge-sheet states that third person was sent “somewhere”. But gujarati translation thereof would mean that he was “anyhow made to disappear”.
6. We are satisfied that attempts are made to mislead us;
7. The charge-sheet does not mention name of Dr. NK Amin (accused 12) who was mentioned in original charge-sheet;
8. ATR only say that Kauser was last seen in company of ATS on 26/11/2005 and cremated on 29/11/2005 but it is totally silent as to what happened in between that;
9. The mode of killing of Kauser was totally silent;
10. The Sessions judge had permitted narco analysis but the investigating authority of Gujarat have made false accuse of not conducting Narco Analysis by saying that the matter was pending with court – the Investigation only put forth excuses for not proceeding with Kauser’s death investigation;
11. Third person was identified as Kamalludin in the reports. That’s it – but it was totally silent as to what happened to him after that.
12. The possibility of third person being Tulsiram cannot be ruled out although all efforts were made by police to show that he was not third person;
13. Tulsiram’s death causes strong suspicion of elimination of human witness;
14. The phone records of three senior police officer were not analyzed properly in connection with death of Sorab and Tulsiram;
15. “Motive” – reasons behind crime are very important in investigation reports and it was not properly investigated. Name and fame and promotion cannot be motives in the case. Motive is very important when case is resting on circumstantial evidence – investigation is silent on this point;
16. On one hand in the Charge-sheet filed with Metropolitan Magistrate’s court 13 person were charge sheeted for criminal conspiracy. 13 were arrested. But NV Chauhan was mentioned in Action Taken report as “yet to be arrested”. Same way one Jadeja Police Constable – driver who was supposed to be arrested as per Action Taken Report did not appear amongst the name of accused persons who were arrested. Obviously, he had not been charge-sheeted. From these discrepancies, it is clear that the Gujarat Police has not carried out investigation in fair and impartial way as we initially wanted them to do.
So far as Geetha’s Johri’s investigation is concerned, SC state following:
1. Johri walked out of Tulsiram’s case even without informing court. Why? No justification is found;
2. Records show that VL Solanki was carrying out investigation in right manner, but Johri has not carried out investigation in right way.
3. Johri did not make reference to second report of Solanki. Though the first report was attached with one of her reports, it was not forwarded to the court.
4. Johri’s mentioned about criminal antecedents of Shorab and this was done with a view to obfuscate (dhundhlu) the inquiry.
5. Investigation is done outside the procedure of Cr.P.C. section 154-176.
6. No fresh FIR has been filed in spite of inquiry case no. 66 to make the same base for investigation and trial;
7. FIR dtd. 16/11/2005 could not for basis of real investigation since it was following a fabricated encounter.
8. Johri in her report herself conceded (admit) that ATS was not a regular police station where FIR should have been filed;
The CBI questions may rotate around above in forthcoming days. Political guys in Gandhinagar may be probed deeply looking to the facts above.

List of date and events for legal maneuver is hereunder:

DATE
EVENTS
21/01/2007
registry’s letter to gujarat state – gs

22/01/07
notice to central govt.

19/03/07
notice to guj. govt.

inquiry case no. 66/06
case registered by geetha johri

23/03/07
sc order saying :

report by add.soli.gen. taken on record in sealed cover.
guj. counsel says that they will submit report after collecting details and three week time was granted to them.

20/04/07
sc order allowing time to guj. state to make submissions on add.sol.gen. report

27/04/07 & 03/05/10
At the Supreme Court:
interim report submitted by KTS tulsi from side of gujarat government.
tulsi asked for more time to submit comprehensive report and action taken report no. 4 was filed after 03/05/07
attorney gen. objected to this request of tulsi and asked for cbi investigation
sc wanted to issues rule nisi to guj. state and cen. gov. why prayer should not be granted but tulsi told sc that the action taken report dtd. 30/04/07 stated that kauser’s body was disposed off by burning in village sabarkantha
observation made that geetha johri submitted interim reports but why she was withdrawn from investigation – sc directed gujarat to make submission also. Matter adjourned to 15th may 07

01/09/06-22/01/07
four interim reports for this period by VL Solanki, Police Inspector working under Geetha Johri.

12/05/07
Geetha Johri says in her report that (1). There was discrepancy (uncertainty) of facts regarding presence of Kauser and Sorab at Ahmedabad and Hyderab. (2). Who were person who claimed to be police who picked up Sorab, Kauser and third unknown person (Tulsiram?)
(3). What happened to Kauser after 22/11/2005?
(4). Permission to interrogate Tulsiram in Rajasthan Jail was asked by Johri.

14/05/07
Action taken report no. 4 submitted in Supreme Court. It said (para 9 order 170507)

Forensic assistance was asked to investigate exhibits from scene of offense;
Narco Analysis of Vanjara, Dinesh MN, Pandyan asked;
Matter adjourned to 28/05/07;
Remains of Kauser from well were sent for forensic investigation;
Investigation remained pending on following matters:
AP policeman who helped ATS Gujarat were to be identified;
Rajasthan DGP’s help was required for finding out accused from Rajasthan;
Forensic reports were pending;
Method by which Kauser died were to be identified;
Farm house where Kauser was shifted was yet to be identified;

16/05/07
Out of four reports of VL Solanki, PI remaining three reports submitted off late to Supreme Court;

17/05/07
SC remarks:

SC remarked that records show that Tulsiram was killed in an encounter and FIR dtd.27/28-12/06 to that effect was found in records. (although Johri was asking permission to interrogate him in SC vide her report of 12/05/07)
SC remarked that Raigar CID Head and Add. DGP was replaced by OP Mathur who was also Add. DGP and in charge of Police Prisons.
Geetha Johri removed from Sorab’s investigation was replaced by Rajnish Rai when in fact notice was issued only to Central Government.
Attorney Gen. asked for CBI investigation. Ahmedi (for rubab) also said the same thing + Johri should also be kept jointly in investigation team and Add.Solicitor General also asked for same thing.
after taking the action taken report no. 4 – it was not possible to come to a conclusion that matter was not rightly investigated and therefore CBI investigation is not needed.
Johri / Raigar will not be restored in investigation at this stage although demanded;
Tulsi said that he will submit final report within 4-6 weeks of 15/05/07;

SC Ordered:
Guj. to submit final report on 03/07/07;
Remaining items to be investigated in Action Taken report no. 4 to be completed and report to be submitted by guj. on next hearing;
guj. to file appropriate affidavits in matter;
Andhra, Rajasthan to Cooperate Gujarat for knowing motive of murder that was very important in investigation;
Investigating agency shall not take DGP’s permission.
DGP will not interfere in the investigation;
SC remarked that Kauser’s body was not found and no evidence to that effect was submitted to supreme court and law presumes death only after 7 years of inability to find body of a person.
Matter adjourned to 16/07/07

02/07/07
Fifth Action Taken Report submitted in SC

ATR says:
194 witnesses were examined
AP officials denied any official involvement;
MMFC had denied Narco Test – Appeal was pending in Sessions Court
Kauser’s body cremated on 29/11/05;
Forensic report dtd. 28/05/07 stated that nothing incriminating was found;
Investigation was pending for identifying AP Policeman who unofficially helped ATS and regarding two other police personnel;
Charge sheet will be filed within prescribed time-frame against arrested accused;

16/07/07 (derived from order of sc dtd. 12/01/10)
SC directed:

Sixth Action taken report dtd. 14/07/07 filed;
Copy of Charge-sheet should be provided to Addl. Solicitor General of India;

SC Remarked:

Sixth ATR reiterated that AP Police did not help ATS
Charge sheet was filed against 13 accused;
Out of 13 accused one was NV Chauhan who in previous ATR was reported as yet to be arrested;
Jadeja – Driver PC named in previous ATR was not arrested and not charge-sheeted (his name was missing in the list of arrested accused in the sixth ATR).
Name fame promotion were motives of Shorab’s death and destruction of evidence;
6th ATR stated that no link of Tulsiram was established in the case – third person missing as per Johri’s 12/05 investigation was not Tulsiram;
Ms. Johri stated that investigation was fair and impartial under her supervision;

02/08/07
(derived from order of sc dtd. 12/01/10)
Seventh Action Taken report was filed and following was stated in it:
It was stated that third person (as per Johri’s report was Kalimmuddin – police informer)
CID reiterated that non would be spared – anti bail was granted to non – police officers were witness against their colleagues – people from various ranks were arrested;
Jadeja was the one had first revealed name of Amin on 26/04/07;
Narco analysis matter was pending in court;
Phone call analysis was voluminous & will take time;
Habeas Corpus matter stands cannot survive since Kauser’s body was found;

15/09/08
(derived from order of sc dtd. 12/01/10)
Eight Action report was filed

Supplementary charge sheet was filed on 10/12/07;
Details of bail application status were given;
IO DH Trivedi was directed by Sessions Court for further investigation u/s. 173(8) within 90 days upon application by accused in that court;
Communication details between Crane owner (who was sent to pull out bogged tempo carrying firewood for cremation of Kauser’s body) were revealed;
Phone details of accused, their connection and wrong confinement of Kauser and Shorab at Disha farm were revealed.
For establishing motive (name /fame /promotion) criminal antecedents of Shorab in 15 cases were collected;
Kallimuddin (third person missing in Johri’s report) was not traced to get support in efforts were made to identify men from AP although no involvement of AP police personnel was suspected;
Narco matter was reserved by court;
FSL Gujarat stated that Narco analysis would be conducted with permission of accused and IO was asked to move high court in matter;

12/01/07
Supreme Court Judgment given.

Questions were:

Whether CBI Investigation should be directed?
Whether in law this could be directed?
What were facts that lead court to direct CBI investigation?

Lawyers appearing:

Dushyant Dave – for petitioner;
G Subramaniam – Solicitor General;
Mukul Rohtagi - Gujarat State.

Questions of Law:

Whether after submitting charge sheet by police and on-going trial – can CBI investigation be directed?
Whether after eight action taken reports on record, investigation was not properly being done?

Legal Question Answered by SC were hereunder:

Legally CBI investigation can be directed even after submitting charge-sheet in court and this was not first case. Hitherto in various crimes this had been done by Supreme Court and approach in this case was not new or first one. Supreme Court had stated that for instilling public confidence, confidence of victims and total justice CBI investigation was needed looking to facts of the case;
Normally view of SC is consistent in that when the accusation was against local police and high police officers CBI investigation being independent agency is needed;
Why only relative of deceased – even local public may come and ask for CBI investigation in such a case;

Whether investigation should be transferred to looking to facts of the case – the court answered:

The SC has gone through all eight action taken reports in the case;
The Eight action taken reports submitted by government had large & various discrepancies in comparison to investigation carried out by State Police and the Charge sheet filed by State Investigating Agency and that (virodhabhas) and it appears that investigation is not running in right direction.
On one hand charge-sheet stated that Shorab and two others were picked up by Gujarat Police Personnel and accompanied by 7 other AP policeman. But on other hand, charge-sheet did not reveal identity of police personnel of AP.
On one hand charge-sheet stated that Kauser was taken in one of the two tata Sumo Jeeps in which AP police personnel accompanied accused, but on other hand non of the AP police personnel were listed as Accused. This made Gopal Subramaniam to say that no honest investigating agency will plead inability to identify seven policeman of the state.
Charge-sheet states that third person was sent “somewhere”. But gujarati translation thereof would mean that he was “anyhow made to disappear”.
We are satisfied that attempts are made to mislead us;
The charge-sheet does not mention name of Dr. NK Amin (accused 12) who was mentioned in original charge-sheet;
ATR only say that Kauser was last seen in company of ATS on 26/11/2005 and cremated on 29/11/2005 but it is totally silent as to what happened in between that;
The mode of killing of Kauser was totally silent;
The Sessions judge had permitted narco analysis but the investigating authority of Gujarat have made false accuse of not conducting Narco Analysis by saying that the matter was pending with court – the Investigation only put forth excuses for not proceeding with Kauser’s death investigation;
Third person was identified as Kamalludin in the reports. That’s it – but it was totally silent as to what happened to him after that.
The possibility of third person being Tulsiram cannot be ruled out although all efforts were made by police to show that he was not third person;
Tulsiram’s death causes strong suspicion of elimination of human witness;
The phone records of three senior police officer were not analyzed properly in connection with death of Sorab and Tulsiram;
“Motive” – reasons behind crime are very important in investigation reports and it was not properly investigated. Name and fame and promotion cannot be motives in the case. Motive is very important when case is resting on circumstantial evidence – investigation is silent on this point;
Johri walked out of Tulsiram’s case even without informing court. Why? No justification is found;
On one hand in the Charge-sheet filed with Metropolitan Magistrate’s court 13 person were charge sheeted for criminal conspiracy. 13 were arrested. But NV Chauhan was mentioned in Action Taken report as “yet to be arrested”. Same way one Jadeja Police Constable – driver who was supposed to be arrested as per Action Taken Report did not appear amongst the name of accused persons who were arrested. Obviously, he had not been charge-sheeted. From these discrepancies, it is clear that the Gujarat Police has not carried out investigation in fair and impartial way as we initially wanted them to do.
Records show that VL Solanki was carrying out investigation in right manner, but Johri has not carried out investigation in right way.
Johri did not make reference to second report of Solanki. Though the first report was attached with one of her reports, it was not forwarded to the court.
Johri’s mentioned about criminal antecedents of Shorab and this was done with a view to obfuscate (dhundhlu) the inquiry.
Investigation is done outside the procedure of Cr.P.C. section 154-176.
No fresh FIR has been filed in spite of inquiry case no. 66 to make the same base for investigation and trial;
FIR dtd. 16/11/2005 could not for basis of real investigation since it was following a fabricated encounter.
Johri in her report herself conceded (admit) that ATS was not a regular police station where FIR should have been filed;

Beyond Rumors!

2010-07-31T08:50:00.002+01:00

We as humans enjoy gossip. This is natural. This habit is omnibus and so banal that people not having slightest conversance with subject matter make statements and give opinion - many times on blogs, news sites etc.

Recently political atmosphere has heated up with ex minister Amit Shah joining the brigade of accused involving very serious offenses. Mr. Shah is from BJP - ruling party of the Gujarat State Government and had to step down off late recently.

The BJP claims that the investigation is Congress sponsored (a rival party to BJP and ruling the Central Government). The CBI is being misused says BJP. The Congress in turn responded by saying it had nothing to do with the issue and what happened has hapened on directions of Supreme Court of India.

The question is - What did Supreme Court say in the matter?

Answer can be found from the reportable judgment given and reproduced hereunder. For those interested beyong rumors and street gossips, the judgment is produced hereunder.

Speaking while standing apart from political stochasticity - for a moment all those not connected with politics must realize importance of respecting verdict of Supreme Court and following what it said. Politicians as they are - will remain what they and they cut across all party lines. So let us read and understand - what the Court stated.

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO.6 OF 2007

Rubabbuddin Sheikh ...Petitioner

Versus

State of Gujarat & Ors. ...Respondents

WITH

WRIT PETITION (CRL.) NO.115 OF 2007

WITH

CONTEMPT PETITION (CRL.)NO.8 OF 2007 IN WRIT PETITION (CRL.)
NO.6 of 2007

JUDGMENT

TARUN CHATTERJEE, J.

1. Acting on a letter written by the writ petitioner,

Rubabbuddin Sheikh, to the Chief Justice of India about the

killing of his brother, Sohrabuddin Sheikh in a fake encounter

and disappearance of his sister-in-law Kausarbi at the hands

of the Anti Terrorist Squad (ATS) Gujarat Police and Rajasthan

Special Task Force (RSTF), the Registry of this Court

forwarded the letter to the Director General of Police, Gujarat

to take action. This letter of the Registry of this Court was

issued on 21st of January, 2007. After about six months and

after several reminders, the Director General, Police, Gujarat,

directed Ms. Geetha Johri, Inspector General, Police (Crime),

to inquire about the facts stated in the letter. A case was

registered as Enquiry No. 66 of 2006. From 11th of September,

2006 to 22nd of January, 2007 four Interim Reports were

submitted by one V.L. Solanki, Police Inspector, working

under Ms. Johri.

2. In the present writ petition, the writ petitioner seeks a

direction for investigation by the Central Bureau of

Investigation (in short the `CBI') into the alleged abduction and

fake encounter of the brother of the writ petitioner

Sohrabuddin by the Gujarat Police Authorities. The writ

petitioner also seeks the registration of an offence and

investigation by the CBI into the alleged encounter of one

Tulsiram, a close associate of Sohrabuddin, who was allegedly

used to locate and abduct Sohrabuddin and his wife Kausarbi,

and was thus a material witness against the Police personnel.

The writ petitioner further seeks a writ of habeas corpus to

produce Kausarbi, the sister-in-law of the writ petitioner.

3. As noted herein above, out of the four interim reports

submitted by one V.L.Solanki, Police Inspector, working under

Ms. Johri, only one report was submitted initially in this

Court. It was only on 16th of May, 2007 that the other three

reports were submitted.

4. In the Report submitted on 12th of May, 2007, by

Ms.Johri, it has been stated as follows:

"However, based on the statement of various
witnesses and subsequent identification of the
photographs of Sohrabuddin and Kausarbi taken
by Inquiry Team of CID Crime there appears to
be some discrepancy regarding the presence of
Sohrabuddin and Kausarbi at Hyderabad and
Ahmedabad which needs to be further enquired
into. Further enquiry also needs to be conducted
with regards (1) who were the persons who
claimed to be police who picked up the three
passengers namely Sohrabuddin, Kausarbi and
third unknown person. (2) what happened to
Kausarbi after 22.11.2005 when the so-called
police personnel took her off the bus."

5. In the same report, Ms. Johri sought permission to

interrogate one Tulsiram who was at that time in Rajasthan

Jail. From the record, it appears that on 27th/28th of

December, 2006, an FIR was lodged in which it was stated

that when Tulsiram was sent on transit remand from

Rajasthan to Gujarat, two armed persons rescued him at gun

point and fled with Tulsiram. In the said FIR, it has been

alleged that while search was launched to locate Tulsiram

early in the next morning, he, along with two other persons,

was spotted on a highway trying to stop a matador van. It has

also been alleged, that one of the police officers who was

following the matador in which Tulsiram was traveling,

accosted him, upon which Tulsiram was said to have fired at

the Police officer and the bullet was said to have hit the

mudguard of the vehicle. The Police Officers were said to have

fired at Tulsiram in self-defence, killing him. However, the

other two persons somehow managed to escape in the

darkness.

6. One Mr. Raigar, Additional Director General of Police and

Head of CID Gujarat Police who was in-charge of the

investigation on the incident of death of Sohrabuddin and

disappearance of Kausarbi was replaced by one Mr. O.P.

Mathur, Additional Director General of Police (prison) who was

given an additional charge as Head of CID.

7. Ms. Johri was replaced by Mr. Rajneesh Rai, Deputy

Inspector General, as an Investigating Officer in respect of the

fake encounter relating to the incident of Sohrabuddin's case

and disappearance of Kausarbi.

8. The Writ Petitioner had, on an earlier occasion, filed a

petition under Article 32 of the Constitution of India, praying

for a direction to the Gujarat police to produce Kausarbi and

for a fair and impartial investigation in both the episodes by

the CBI so that the matter goes beyond the influence of the

local police. On the said application, while issuing a notice to

the Union of India, this Court on 22nd of January 2007

requested Mr. Gopal Subramanium, learned Addl. Solicitor

General for India, (as he then was) who was present in the

Court, to take instructions in the matter, in the meantime.

9. Subsequently, by another order dated 19th of March

2007, this Court issued a notice to the State of Gujarat which

was made returnable on 23rd of March 2007. It is evident from

the said order that the State of Gujarat was asked to produce

the relevant records on 23rd of March 2007. When the matter

came up before it on 23rd of March 2007, the learned senior

counsel for the respondent State submitted that as regards

some of the police officers who were involved in the alleged

acts, some of the details were collected by the State and after

the full details were available further action would be taken in

the matter. It was also submitted that the State would be

writing to the Government of Madhya Pradesh for giving

protection to the writ petitioner, residing at Village Jharnia

Sheikh, Dist Ujjain, M.P. Three weeks time was granted to the

State to file a report in a sealed cover. In the meantime, the

report submitted by the Additional Solicitor General for India,

(as he then was), was perused and placed on record. The

matter came up again on 20th of April 2007 for consideration

before this Court. A week's time was granted to enable the

State of Gujarat to make submissions on the report submitted

by Additional Solicitor General for India (as he then was), a

copy of which was ordered to be supplied to the learned

Counsel for the State of Gujarat and other parties.
10. On 27th of April 2007, the State of Gujarat submitted an

interim report on the investigation conducted by them in

pursuance of the orders of this Court dated 22nd of January,

2007, 19th of March 2007, 20th of March, 2007 and 23rd of

April 2007.

11. At that point of time, it was submitted by the learned

counsel for the State of Gujarat before this Court that if some

more time was granted, a comprehensive status report or

Action Taken Report could be submitted before this Court. The

learned Attorney General for India submitted that in view of

the serious nature of the offence in which some highly placed

police officials of the State of Gujarat were alleged to have been

involved, orders may be immediately passed directing the CBI

to take charge of the investigation and report to this Court.

12. This Court, by an order dated 3rd of May, 2007 ordered

that some more time may be granted to the State of Gujarat

before any further action was taken in the matter. However,

after going through the Interim Report of the Additional

Solicitor General and also the Interim Status Report filed by

the State of Gujarat, this Court held the view that a prima

facie case was made out for issuance of a Rule Nisi calling

upon the Union of India and the State of Gujarat to show

cause why the order prayed for should not be granted and also

as to why a writ of Habeas Corpus should not be issued to

produce Kausarbi in Court. At that stage, learned senior

counsel appearing for the State of Gujarat brought to the

notice of the court that the body of Kausarbi was disposed of

by burning it in village Illol, Sabarkantha District', which fact

was brought on record in the Action Taken Report No. 3

submitted on 30th of April, 2007. In that view of the matter at

that stage, this Court restrained itself from issuing a formal

writ. The State of Gujarat was directed to submit the final

status report within two weeks from that date. An allegation

was made that Ms.Johri was taken off the investigation for

some reasons best known to the State Authorities. The State of

Gujarat was directed to submit a report in that regard also.

13. When the matter came up for hearing before this Court

on 17th of May, 2007, Learned Attorney General for India

again submitted before us that this was a fit case where this

Court should pass an order directing handing over the

investigation from the State Investigating Agency to CBI as the

investigation would not only be made in the State of Gujarat,

but also in the States of Andhra Pradesh and Rajasthan and

for such investigation, cooperation of the State of Rajasthan

and State of Andhra Pradesh and their high police officials

may be required. Therefore, according to Attorney General for

India, it would be difficult for the Investigating Agency of the

State of Gujarat to make proper and thorough enquiry and

submit a report to this Court. Mr. Ahmadi, learned counsel

appearing on behalf of the writ petitioner also submitted that

this Court should direct the CBI to take over the investigation

at the same time permitting Ms.Johri and Mr. Rajneesh Rai to

make the investigation jointly and submit a report to this

Court. Mr. Gopal Subramanium, learned Addl. Solicitor

General for India (as he then was) also agreed with the

submissions of Mr.Ahmadi that it was a fit case for handing

over the investigation to CBI from the State of Gujarat.

14. From the Action Taken Report No. 4 submitted before

this Court on 14th of May, 2007, it was found that the

assistance of Directorate of Forensic Science, Gujarat State,

and BJ Medical College, Ahmedabad has been sought to

obtain advice on the exhibits collected from the scene of

offence. Permission of the Court was also sought for

microanalysis and other related tests in case of the accused

namely, (1) Shri D.B. Vanzara, IPS, Ex-DIG of Police, Border

Range, Kutch-Bhuj, (2) Shri Rajkumar Pandyan, Ex-SP, CID,

IB and (3) Shri Dinesh MN, IPS, SP, Alwar, Rajasthan. The

application was pending then. In Action Taken Report No. 4, it

was also stated that efforts were being made to arrest the

remaining accused officers and men against whom there was

prima facie evidence. Efforts were being made to trace the

remains of Kausarbi. A well where reportedly the remains of

Kausarbi were disposed of was dug up and samples collected

were sent to Forensic Science Laboratory, Gandhinagar for

further analysis and for comparison with the soil samples

taken from the scene where the body of Kausarbi was alleged

to have been disposed of by burning at Illol Village,

Sabarkanta District, in the State of Gujarat. From the Action

Taken Report No. 4 it appeared that the following

investigations were still awaited:

a. Andhra Pradesh Police Personnel who helped the

ATS, Gujarat in picking up the accused was yet to be

identified. Cooperation of DGP & IGP, Andhra Pradesh

was enlisted in this regard.

b. Apprehension of accused of Rajasthan for which

help of DGP & IGP Rajasthan was enlisted.

c. Reports from Directorate of Forensic Science,

Gujarat State.

d. Identification of the farm house to which Kausarbi

was shifted and method by which she might have died

and those involved in the crime, if any.

15. From the aforesaid report, it also appeared that the

charge sheet shall be filed as soon as the evidence came on

record. It was observed by this Court at that point of time that

on a perusal of the materials already brought on record, it was

difficult to conclude at that stage that the investigation was

not proceeding towards correct direction. At that stage, we did

not find it appropriate to direct the State of Gujarat to include

Mr. Raigar with Ms. Johri for completing the investigation.

16. At that stage, it was submitted before this Court by the

learned senior counsel appearing for the state of Gujarat that

the final report would be submitted within four to six weeks

from 15th of May, 2007.

17. Fifth Action Taken Report was dated 2nd of July, 2007. In

this report, taking a departure from what was stated in the

Fourth Action Taken Report, Ms.Johri stated that the Andhra

Pradesh Police authorities had denied any official involvement

of Andhra Pradesh Police Personnel. Examining 194 witnesses,

they had been able to array another six persons as accused.

Against the order of the Metropolitan Court rejecting

permission of the Court for conducting the NARCO Analysis

test of six accused persons, an appeal had been filed in the

Sessions Court.

18. The body of Kausarbi was cremated on 29th of November,

2005 in Illol village. The assistance of Directorate of Forensic

Science was sought to establish whether soil samples collected

from Illol village contained any remains of a human body. As

per FSI dated 28th of May, 2007, nothing incriminating was

found.

19. The investigation was pending with respect to i) Arrest of

two police personnel ii) To establish the identity of Andhra

Pradesh Police personnel who might have unofficially helped

ATS officials.

20. Charge sheet was proposed to be filed within prescribed

time frame against the accused who was arrested.

21. On 16th of July, 2007, this Court directed that a copy of

the charge sheet must be supplied to the Addl. Solicitor

General for India (as he then was) after taking note of the fact

that the 6th Action Taken Report dated 14th of July, 2007 was

filed in court. This Report reiterated the stand that no official

assistance was rendered by Andhra Pradesh Police to ATS

Gujarat. Charge sheet had been filed in the Court of Chief

Metropolitan Magistrate against 13 accused for Criminal

Conspiracy, abduction, wrongful confinement, murder etc. 13

have been arrested. One of the 13 accused whose names had

been listed is one Mr. N.V. Chauhan, PSI who, in the previous

ATR, had been mentioned as yet to be arrested. However, the

name of one Mr. Jadeja, Driver PC who was also supposed to

be arrested as per previous ATR, did not appear among the

names of the accused who were arrested. Evidently, he had

not been charge sheeted.

22. The motives for killings was attributed as "name, fame

and promotion", in case of Sohrabuddin's death and

"destruction of evidence", in Kausarbi's case.

23. The report expressly states that no link of Tulsiram

Prajapati had been established in this case. The third person

who was abducted was not to be said Tulsiram Prajapati.

24. Ms.Johri also stated that the investigation had been

carried on in a fair and impartial manner under her direct

supervision.

25. It was stated that the writ petitioner did not cooperate

with the investigation. It is also stated that copies of ATR

cannot be supplied as the same would help the accused.

26. On 2nd of August, 2007, the Seventh Action Taken Report

was filed, which stated that the third person who was picked

up was one Kalimuddin, who was suspected to be an informer

of Police. He could be hiding somewhere, unharmed. It again

detailed the efforts of the State CID (Crime) to make sure that

none of the accused goes scot-free. Accused Police Officers,

irrespective of their rank, had been arrested. They were

suspended or transferred to avoid their interference with the

case. Police personnel themselves had deposed against the

accused Police officers. No anticipatory bail was granted to any

of the accused.

27. Mr. Jadeja was the one who had first revealed the name

of N.K.Amin on 26th of April, 2007.

28. The accused had challenged subjecting them to NARCO

analysis and the matter was pending before the Court. The

Report submitted that analyzing the voluminous details of the

calls made by the accused, collected from various service

providers, would take time. It was also urged that the Habeus

Corpus filed by Rubabbuddin Sheikh does not survive as

Kausarbi's body was found to be cremated.

29. On 15th of September, 2008, Ms. Johri filed the Eighth

Action Taken Report. It mentioned that a supplementary

charge sheet was filed on 10th of December, 2007. It also

detailed the status of bail applications rejected or pending. The

Writ Petitioner filed an application in the Sessions Court,

which was partly allowed and the Investigating Officer Police

Inspector Shri. D.H.Trivedi, was directed to carry out further

investigation under Section 173(8) of the Code of Criminal

Procedure within 90 days.

30. The details of communication between the witnesses and

the owner of the Crane which was sent to pull out the tempo

which got bogged while carrying firewood for the cremation of

Kausarbi's body were revealed. The call details revealed the

movements of the accused, their connection between each

other, and the wrongful confinement of Kausarbi and

Sohrabbuddin in Disha farm.

31. In order to establish motive as mentioned in the charge

sheet, details of 15 criminal cases in which Sohrabbuddin was

involved were collected. Efforts were still made to trace

Kalimuddin and to identify the Police officers and men of

Andhra Pradesh who had allegedly helped the accused though

no involvement of the Police Personnel of Andhra Pradesh was

suspected. On the question of NARCO Analysis, the matter

was heard by this Court and the judgment was kept reserved.

FSL Gujarat had stated that NARCO Analysis would be

conducted only with the consent of the accused. The

Investigating Officer was asked to move the High Court in the

matter.

32. After eight Action Taken Reports were submitted and

objections thereto were also filed by the parties, the writ

petition came up for final hearing for the purpose of deciding

whether in the facts and circumstances of the present case, it

would be just and proper to transfer the case to the CBI

Authorities for the purpose of investigation into the allegations

made on behalf of the writ petitioner. On this aspect of the

matter, we have heard Mr.Dushyant Dave, learned senior

counsel for the writ petitioner and Mr.Gopal Subramanium,

learned Solicitor General for India, who appeared as Amicus

Curiae and Mr.Mukul Rohtagi, learned senior counsel for the

State of Gujarat and other learned counsel appearing for the

parties. After hearing the learned senior counsel and after

going through the eight Action Taken Reports and other

materials on record, two questions were articulated by the

learned counsel for the parties - one is whether after the

charge sheet was submitted by the police and the trial was

going on, under that circumstances whether the investigation

can be transferred to the CBI Authorities. Secondly, it was

argued that in respect of the fact that eight Action Taken

Reports were submitted but from the said reports, it would be

clear that the Police Authorities of the State of Gujarat were

not taking proper action in the matter although some of their

high police officials were taken to custody. Therefore, let us

first consider the first question, namely, whether investigation

can be transferred to CBI Authorities or any other independent

agency when the charge sheet has already been submitted. In

support of his contention that the investigation can be

transferred to the CBI Authorities when the charge sheet in

the criminal proceeding was already filed, reference was made

to in Kashmeri Devi vs. Delhi Administration & Anr. [AIR

1988 SC 1323] by the learned senior counsel for the writ

petitioner. He also relied on a decision of this court in the case

of Inder Singh vs. State of Punjab & Ors. [1994 (6) SCC

275] in which this Court held that the enquiry should be

transferred to the CBI Authorities for investigation in view of

the fact that the police authorities had not been able to locate

the whereabouts of the abducted persons. Therefore, these

decisions were cited by the learned counsel for the writ

petitioner to show that even after the charge sheet has been

filed in the Court of Competent Jurisdiction, this Court is

empowered to direct the CBI Authorities or any other

independent agency to take over the investigation from the

police authorities. The learned counsel for the writ petitioner

also placed strong reliance on a decision of this Court in the

case of Gudalure M.J.Cherian & Ors. vs. Union of India

[1992 (1) SCC 397] from which it also appears that although

the charge sheet was filed in that case, this Court directed the

CBI to hold further investigation in respect of the offence so

committed. Similar is the question raised in P & H High

Court Bar Association vs. State of Punjab & Ors. [AIR 1994

SC 1023] in which case also the investigation was handed over

to the CBI Authorities after the charge sheet was submitted in

the court. While making such order, this Court observed :

"The High Court was wholly unjustified in closing
its eyes and ears to the controversy which had
shocked the lawyer fraternity in the Region. For
the reasons best known to it, the High Court
became wholly oblivious to the patent facts on the
record and failed to perform the duty entrusted to
it under the Constitution. After giving our
thoughtful consideration to the facts and
circumstances of this case, we are of the view that
the least the High Court could have done in this
case was to have directed an independent
investigation/enquiry into the mysterious and
most tragic abduction and alleged murder of
Kulwant Singh, Advocate and his family.

We are conscious that the investigation
having been completed by the police and
charge-sheet submitted to the court, it is not
for this Court, ordinarily, to reopen the
investigation. Nevertheless, in the facts and
circumstances of the present case, to do
complete justice in the matter and to instill
confidence in the public mind it is necessary,
in our view, to have fresh investigation in
this case through a specialised agency like
the Central Bureau of Investigation (CBI)."

33. Accordingly, the learned senior counsel appearing for the

writ petitioner submitted that even if the charge sheet was

submitted it was still open to the court to direct investigation

to be made by the CBI Authorities and accordingly in view of

the above position in law, this Court, considering the facts and

circumstances of the present case, should direct the CBI

Authorities to investigate the offences alleged to have been

committed by some of the police authorities of the State of

Gujarat and submit a report if this Court is of the view that

the State Police Authorities who had already filed eight Action

Taken Reports had not done such investigation in the proper

direction nor had they investigated in a fair and proper

manner.

34. This submission of the learned senior counsel for the writ

petitioner was hotly contested by Mr.Mukul Rohtagi, learned

senior counsel who appeared for the State of Gujarat.

According to Mr. Rohtagi, after the charge sheet was

submitted in court, it was not open to the court to hand over

the investigation to the CBI or any other independent agency

and in support of that contention a decision of this Court in

the case of Vineet Narayan & Ors. vs. Union of India [1996

(2) SCC 199] was relied on. In this decision, this Court

observed:

"In case of persons against whom a prima facie
case is made out and a charge-sheet is filed in the
competent court, it is that Court which will then
deal with that case on merits, in accordance with
law.
However, if in respect of any such person the
final report after full investigation is that no prima
facie case is made out to proceed further, so that
the case must be closed against him, that report
must be promptly submitted to this Court for its
satisfaction that the authorities concerned have
not failed to perform their legal obligations and
have reasonably come to such conclusion. No such
report having been submitted by the CBI or any
other agency till now in this Court, action on such
report by this Court would be considered, if and
when that occasion arises."

35. Subsequent to the aforesaid decision of this Court,

another decision of this Court, namely, Union of India vs.

Sushil Kumar Modi [1998 (8) SCC 661] was relied on by

Mr.Rohatgi, learned senior counsel in which this Court

observed after considering and following the decision in Vineet

Narayan's case that once a charge sheet is filed, the

adequacy or otherwise of the charge sheet and the

investigation cannot be gone into by this Court under Article

32 of the Constitution of India and the only remedy which can

be pursued if any aggrieved party feels that in some areas the

investigation is inadequate is an application under Section

173 (8) of the Code of Criminal Procedure. This Court observed

as follows:

"This position is so obvious that no discussion of
the point is necessary. However, we may add that
this position has never been doubted in similar
cases dealt with by this Court. It was made clear
by this Court in the very first case, namely, Vineet
Narain v. Union of India that once a chargesheet is
filed in the competent court after completion of the
investigation, the process of monitoring by this
Court for the purpose of making the CBI and other
investigative agencies concerned perform their
function of investigating into the offences
concerned comes to an end and thereafter it is
only the Court in which the charge sheet is filed
which is to deal with all matters relating to the
trial of the accused including matters falling
within the scope of Section 173(8) of the Code of
Criminal Procedure. We make this observation
only to reiterate this clear position in law so that
no doubts in any quarter may survive. It is
therefore clear that the impugned order of the High
Court dealing primarily with this aspect cannot be
sustained."

36. Another decision of this Court which was strongly relied

on by Mr.Mukul Rohatgi, learned senior counsel appearing for

the State of Gujarat is the decision in Rajiv Ranjan Singh

`Lalan' (VIII) and Anr. Vs. Union of India & Ors. [2006 (6)

SCC 613]. In this decision referring to the case of Sushil

Kumar Modi (supra) and Vineet Narayan (supra), this court

held :

"It is thus clear from the above judgment that once
a charge-sheet is filed in the competent Court after
completion of the investigation, the process of
monitoring by this Court for the purpose of making
CBI and other investigative agencies concerned
perform their function of investigating into the
offences concerned comes to an end and
thereafter, it is only the Court in which the charge-
sheet is filed which is to deal with all matters
relating to the trial of the accused including
matters falling within the scope of Section 173(8).

We respectfully agree with the above view
expressed by this Court. In our view, monitoring of
pending trial is subversion of criminal law as it
stands to mean that the Court behind the back of
the accused is entering into a dialogue with the
investigating agency. Therefore, there can be no
monitoring, after the charge sheet is filed."

37. Mr.Rohatgi, learned senior counsel appearing for the

State of Gujarat had then drawn our attention to another

decision of this Court in the case of Hari Singh vs. State of

U.P. [(2006) 5 SCC 733] in which it was held that when there

is a remedy provided under the Code of Criminal Procedure,

1973, the CBI Authorities cannot be directed to investigate

into the matter.

38. Before we take up the decisions cited at the Bar from the

side of the writ petitioner, we may deal with the decisions cited

by Mr.Rohatgi, learned senior counsel appearing for the State

of Gujarat. The first decision is Vineet Narayan (supra). In

that case, it was alleged that the CBI and the Revenue

Authorities had failed to perform their duties and legal

obligations inasmuch as the investigation into "Jain Diaries"

seized in raids conducted by the CBI is concerned.

39. From a careful examination of this decision of this Court

relied on by the learned senior counsel appearing for the

respondent, we are not in a position to say that the said

decision has clearly held that after the charge sheet is

submitted, the question of handing over the investigation of

the criminal case to the CBI cannot arise at all. From that

decision, it is clear that the CBI and the Revenue Authority

had failed to perform their duties and legal obligations

inasmuch as the investigation into `Jain Diaries' seized in

raids conducted by the CBI was concerned. Therefore, we are

unable to accept the contention of Mr.Rohatgi that this

decision can at all help the State of Gujarat to substantiate

their argument that after the charge sheet is filed in court,

there was no question that the investigation cannot be handed

over to the CBI authorities. So far as the decision cited by

Mr.Rohatgi in Union of India vs. Sushil Kumar Modi (supra)

is concerned, it is clear that the said decision was rendered

following the decision in the case of Vineet Narayan (supra).

In view of our discussions made in respect of the Vineet

Narayan's case, we do not think that any advantage could be

taken by the State of Gujarat to hold that after the charge

sheet is submitted it was not open for the court to hand over

the investigation to an independent agency.

40. In Vineet Narayan's case (supra), the fact was that the

investigation was already with the CBI Authorities and in that

investigation charge sheet was submitted. In that context, this

Court observed that once the charge sheet has been

submitted, the CBI Authorities cannot approach the High

Court for issuance of directions in such investigation where

the charge sheet was already submitted.

41. In Sushil Kumar Modi (supra), we find that the

investigation was also with the CBI and charge sheet in that

investigation was submitted, therefore, this Court in Sushil

Kumar Modi(supra) observed that there was no occasion for

any of the officer of the CBI to approach the High Court or for

the Division Bench of the High Court to issue any directions,

oral or otherwise, for seeking the aid of the army for execution

of the warrant against Shri Lalu Prasad Yadav. Again in Para 7

of the decision in Sushil Kumar Modi's case (supra), it would

be evident that the CBI Authorities were investigating the

offences and that is the reason this Court observed that after

the charge sheet was filed, no directions can be taken by the

CBI Authorities or its officers from the High Court or this

Court as the case may be. This is not the case before us. It is

true that in the present case, the charge sheet has already

been submitted but that does not debar, in our view, this

court from handing over the investigation to the CBI

Authorities.

42. So far as Rajiv Ranjan Singh's case (supra) which was

relied on by Mr.Mukul Rohatgi, learned senior counsel for the

State of Gujarat, is concerned, we find that this decision was

also rendered relying on Sushil Kumar Modi's case (supra)

and Vineet Narayan's case (supra) as noted herein earlier. In

that case also, the process of monitoring by this Court for the

purpose of making the CBI investigating agency perform their

functions and investigate into the offence would come to an

end but it is repeated that in the present case the question is

whether an investigation can be handed over to the CBI

authorities even if the charge sheet is submitted. The question

of monitoring investigation by the CBI Authorities in all the

three cases cited by Mr.Rohatgi in the facts and circumstances

of the present case cannot arise at all.

43. It was next contended by Mr.Rohatgi, learned senior

counsel for the State of Gujarat that it was not open for this

court under Article 32 of the Constitution to direct the CBI

Authorities or any other independent agency to investigate into

the matter when the police authorities are proceeding with the

trial and charge sheet has already been submitted. Therefore,

according to Mr.Rohatgi when there is specific remedy

provided under the Code of Criminal Procedure, 1973, this

Court cannot again direct the CBI to investigate into the

offence alleged by allowing a writ petition under Article 32 of

the Constitution.

44. In support of this contention, reliance was also placed in

the case of Aleque Padamsee & Ors. vs. Union of India &

Ors. [2007 (6) SCC 171].

45. Reliance was also placed in a decision of this Court in

M.C.Mehta vs. Union of India & Ors. [2008 (1) SCC 407]

where this Court held that once the court is satisfied itself that

a proper investigation has been carried out, it would not

venture to take over the functions of the Magistrate or pass

any order which would interfere with its judicial functions.

Accordingly, Mr.Mukul Rohatgi submitted that in the absence

of any error being committed by the police authorities in

conducting the investigation, it would not be proper for this

Court to exercise its power under Article 32 of the Constitution

and direct that the CBI authorities or any other independent

agency should be given the charge of investigating the offence

alleged in this writ petition.

46. Accordingly, Mr.Mukul Rohatgi, learned senior counsel

submitted that in view of the decisions of this Court, it would

not be proper for this Court at this stage, when the

investigation has been carried out by the police without any

blemish, to hand over the investigation to the CBI authorities

or any other independent agency particularly when the charge

sheet has already been submitted.

47. Having heard the learned senior counsel appearing for

the parties and after going through the eight Action Taken

Reports submitted by the Police Authorities before this Court

and after considering the decisions of this Court cited at the

Bar and the materials on record and considering the nature of

offence sought to be investigated by the State Police

Authorities who are themselves involved in such crime, we are

unable to accept that the investigation at this stage cannot be

handed over to the CBI Authorities or any other independent

agency. We have already discussed the decisions cited by

Mr.Mukul Rohatgi, learned senior counsel appearing for the

State of Gujarat and have already distinguished the said cases

and came to a conclusion that those decisions were rendered

when CBI enquiries have already been made and at that stage

this Court held that after the charge sheet is submitted, the

CBI authorities would not be able to approach this Court or

the High Court to have issuance of directions from this Court.

48. In R.S.Sodhi vs. State of U.P. (AIR 1994 SC 38) on

which reliance was placed by the learned senior counsel

appearing for the writ petitioner, this Court observed :

"We have perused the events that have taken
place since the incidents but we are refraining
from entering upon the details thereof lest it may
prejudice any party but we think that since the
accusations are directed against the local police
personnel it would be desirable to entrust the
investigation to an independent agency like the
Central Bureau of Investigation so that all
concerned including the relatives of the deceased
may feel assured that an independent agency is
looking into the matter and that would lend the
final outcome of the investigation credibility.
However, faithfully the local police may carry out
the investigation, the same will lack credibility
since the allegations are against them. It is only
with that in mind that we having thought it both
advisable and desirable as well as in the interest
of justice, to entrust the investigation to the
Central Bureau of Investigation."
(Emphasis supplied)

49. This decision clearly helps the writ petitioner for handing

over the investigation to the CBI Authorities or any other

independent agency. It is an admitted position in the present

case that the accusations are directed against the local police

personnel in which High Police officials of the State of Gujarat

have been made the accused. Therefore, it would be proper for

the writ petitioner or even the public to come forward to say

that if the investigation carried out by the police personnel of

the State of Gujarat is done, the writ petitioner and their

family members would be highly prejudiced and the

investigation would also not come to an end with proper

finding and if investigation is allowed to be carried out by the

local police authorities, we feel that all concerned including

the relatives of the deceased may feel that investigation was

not proper and in that circumstances it would be fit and

proper that the writ petitioner and the relatives of the

deceased should be assured that an independent agency

should look into the matter and that would lend the final

outcome of the investigation credibility, however, faithfully the

local police may carry out the investigation, particularly when

the gross allegations have been made against the high police

officials of the State of Gujarat and for which some high police

officials have already been taken into custody.

50. It is also well known that when police officials of the

State were involved in the crime and in fact they are

investigating the case, it would be proper and interest of

justice would be better served if the investigation is directed to

be carried out by the CBI Authorities, in that case CBI

authorities would be an appropriate authority to investigate

the case. In Ramesh Kumari vs. State (NCT Delhi) & Ors.

[2006 (2) SCC 677], this Court at Paragraph 8 observed :

"...................We are also of the view that since
there is allegation against the police personnel,
the interest of justice would be better served if
the case is registered and investigated by an
independent agency like CBI."

51. In Kashmeri Devi vs. Delhi Administration, (supra),

this court held that in a case where the police had not acted

fairly and in fact acted in partisan manner to shield real

culprits, it would be proper and interest of justice will be

served if such investigation is handed over to the CBI

authorities or an independent agency for proper investigation

of the case. In this case, taking into consideration the grave

allegations made against the high police officials of the State in

respect of which some of them have already been in custody,

we feel it proper and appropriate and in the interest of justice

even at this stage, that is, when the charge sheet has already

been submitted, the investigation shall be transferred to the

CBI Authorities for proper and thorough investigation of the

case. In Kashmeri Devi (supra), this Court also observed as

follows : -

"Since according to the respondent charge-sheet
has already been submitted to the Magistrate we
direct the trial court before whom the charge sheet
has been submitted to exercise his powers under
Section 173(8) Cr. P.C. to direct the Central Bureau
of Investigation for proper and thorough
investigation of the case. On issue of such
direction the Central Bureau of Investigation will
investigate the case in an independent and
objective manner and it will further submit
additional charge sheet, if any, in accordance with
law."

52. In Gudalure M.J.Cherian (supra), in that case also the

charge sheet was submitted but inspite of that, in view of the

peculiar facts of that case, the investigation was transferred

from the file of the Sessions Judge, Moradabad to Sessions

Judge, Delhi. Inspite of such fact that the charge sheet was

filed in that case, this Court directed the CBI to hold further

investigation inspite of the offences committed. In this case at

Page 400 this court observed :

".........................The investigation having been
completed by the police and the charge sheet
submitted to the court, it is not for this court
ordinarily to reopen the investigation specially
by entrusting the same to a specialized agency
like CBI. We are also conscious that of late the
demand for CBI investigation even in police
cases is on the increase. Nevertheless - in a
given situation, to do justice between the
parties and to instill confidence in the public
mind - it may become necessary to ask the CBI
to investigate a crime. It only shows the
efficiency and the independence of the agency."

53. In this connection, we may reiterate the decision of this

Court in the case of P & H High Court Bar Association

(supra) strongly relied on by the learned senior counsel

appearing for the writ petitioner. A reference of the paragraph

of the said decision on which reliance could be placed has

already been made in Para No.32 from which it would be

evident that in order to do complete justice in the matter and

to instill confidence in the public mind, this court felt it

necessary to have investigations through the specialized

agency like the CBI.

54. Therefore, in view of our discussions made hereinabove,

it is difficult to accept the contentions of Mr.Rohatgi learned

senior counsel appearing for the state of Gujarat that after the

charge sheet is submitted in Court in the criminal proceeding

it was not open for this court or even for the High Court to

direct investigation of the case to be handed over to the CBI or

to any independent agency. Therefore, it can safely be

concluded that in an appropriate case when the court feels

that the investigation by the police authorities is not in the

proper direction and in order to do complete justice in the case

and as the high police officials are involved in the said crime,

it was always open to the court to hand over the investigation

to the independent agency like CBI. It cannot be said that after

the charge sheet is submitted, the court is not empowered, in

an appropriate case, to hand over the investigation to an

independent agency like CBI.

55. Keeping this discussion in mind, that is to say, in an

appropriate case, the court is empowered to hand over the

investigation to an independent agency like the CBI even when

the charge sheet has been submitted, we now deal with the

facts of this case whether such investigation should be

transferred to the CBI Authorities or any other independent

agency in spite of the fact that the charge sheet has been

submitted in court. On this ground, we have carefully

examined eight Action Taken Reports submitted by the State

Police Authorities before us and also the various materials

produced and the submissions of the learned counsel for both

the parties. From a careful examination of the materials on

record including the eight Action Taken Reports submitted by

the State Police Authorities and considering the respective

submissions of the learned senior counsel for the parties, we

are of the view that there are large and various discrepancies

in such reports and the investigation conducted by the police

authorities of the State of Gujarat and also the charge sheet

filed by the State Investigating Agency cannot be said to have

run in a proper direction. It appears from the charge sheet

itself that it does not reveal the identity of police personnel of

Andhra Pradesh even when it states that Sohrabbuddin and

two others were picked up by Gujarat Police Personnel,

accompanied by seven personnel of Hyderabad Police. It also

appears from the Chargesheet that Kausarbi was taken into

one of the two Tata Sumo Jeeps in which these police

personnel accompanied the accused. They were not even

among the people who were listed as accused. Mr.Gopal

Subramanium, Addl. Solicitor General for India (as he then

was) was justified in making the comment that an honest

investigating agency cannot plead their inability to identify

seven personnel of the Police Force of the State.

56. From the charge sheet, it also appears that the third

person was `sent somewhere'. However, it appears that the

literal translation of the Chargesheet in Gujarati would mean

that he was `anyhow made to disappear'. From this, we are

also satisfied that an attempt was made by the investigating

agency of the State of Gujarat to mislead the Court. Also there

had been no mention of Accused No. 12 (Dr.N.K.Amin) as a

part of the criminal conspiracy in the charge sheet, who

otherwise finds mention in the original charge sheet.

57. With respect to the killing of Kausarbi, it was only stated

that she was seen in the company of the ATS personnel, on

26th of November, 2005 and her dead body was taken for

cremation on 29th of November, 2005. It is not clear from the

eight Action Taken Reports filed by the police authorities of the

State of Gujarat as to what happened to Kausarbi in the

meanwhile, nor is the mode of killing stated. The investigating

agency of the State of Gujarat has made a false excuse for not

conducting the NARCO Analysis of the accused because a

judgment of this Court is pending on the matter, though the

Sessions Judge had permitted such NARCO Analysis. In our

view, it is merely an excuse for not being able to conduct the

investigation relating to mode and manner of killing of

Kausarbi.

58. It also appears from the charge sheet that it identifies the

third person who was taken to Disha farm as Kalimuddin. But

it does not contain the details of what happened to him once

he was abducted. The possibility of the third person being

Tulsiram Prajapati cannot be ruled out, although the police

authorities or the State had made all possible efforts to show

that it was not Tulsiram. In our view, the facts surrounding

his death evokes strong suspicion that a deliberate attempt

was made to destroy a human witness.

59. So far as the call records are concerned, it would be

evident from the same that they had not been analyzed

properly, particularly the call data relating to three senior

police officers either in relation to Sohrabbuddin's case or in

Prajapati's case. It also appears from the charge sheet as well

as from the eight Action Taken Reports that the motive, which

is very important in the investigation reports was not properly

investigated into as to the reasons of their killing. The motive

of conspiracy cannot be merely fame and name. No

justification can be found for the investigating officer Ms. Johri

walking out the investigation with respect to Tulsiram

Prajapati's death without even informing this Court. That

apart, the charge sheet was filed in the court of Chief

Metropolitan Magistrate, Ahmedabad against 13 persons who

were charge sheeted for criminal conspiracy, abduction,

wrongful confinement and murder etc. 13 were arrested. One

of the 13 accused whose names had been listed is one

Mr.N.V.Chauhan, PSI who in the previous Action Taken

Report, was mentioned as yet to be arrested. However, in the

5th Action Taken Report, the name of Mr.Jadeja, driver (Police

Constable) who was also supposed to be arrested as per

previous Action Taken Report was not appearing among the

names of the accused who were arrested. Evidently, he had

not been charge sheeted. From the above factual discrepancies

appearing in eight Action Taken Reports and from the charge

sheet, we, therefore, feel that the police authorities of the State

of Gujarat had failed to carry out a fair and impartial

investigation as we initially wanted them to do. It cannot be

questioned that the offences the high police officials have

committed was of grave nature which needs to be strictly dealt

with. We have observed that from the record, it was found that

Mr.V.L.Solanki, an investigating officer, was proceeding in the

right direction, but Ms.Johri had not been carrying out the

investigation in the right manner, in view of our discussions

made herein above. It appears that Ms.Johri had not made

any reference to the second report of Solanki, and that though

his first report was attached with one of her reports, the same

was not forwarded to this Court. Therefore, we are of the view

that her mentioning the criminal background of Sohrabbuddin

and the discussion among the accused officers concerning

Sohrabbuddin was meant to obfuscate the enquiry.

60. In our view , the investigation of crime was carried out de

hors the mandate contained in the Cr.P.C. and particularly

Chapter XII containing Section 154-176 of the Code. There had

been no fresh FIR filed despite primary investigation No. 66 to

make the same the basis for investigation and trial. In the case

of Sheikh Hasib alias Tabarak v. The State of Bihar [(1972)

4 SCC 773], it was held that the object of FIR, from the point of

view of the investigating authorities, is to obtain information of

the alleged criminal activity so as to take suitable steps for

tracing and bringing to book the guilty party. Admittedly, the

FIR dated 16th of November, 2005 which was filed following the

alleged encounter was a fabricated one and, therefore, it could

not have formed the basis of the real investigation to find the

truth. Ms. Geeta Johri herself in her report dated 7th of

December, 2006 had conceded that ATS was not a regular

police station in which FIR should have been filed. It was

further submitted that the investigation and charge sheet were

silent on the motive behind the `killings'. The only motive stated

is fame. In the cases of Babu Lodhi v. State of UP (1987) 2

SCC 352 and Prem Kumar and Anr. v. State of Bihar,

(1995) 3 SCC 228, it was held that motive assumes greater

significance in case where the case rests on circumstantial

evidence, as in the present case. That apart, from the Action

Taken Reports submitted by the State Police Authorities, we

also find that the State Police Authorities of the Gujarat had to

take help from the other police officials of other States, namely,

Andhra Pradesh and Rajasthan. If the investigation is

transferred to the CBI Authorities it would be fair and proper

that the other State police officials should also help the CBI

Authorities in coming to a final conclusion on the allegations

made by the writ petitioner and also on the offences alleged to

have committed by some of them.

61. Mr.Rohatgi, learned senior counsel appearing for the

State of Gujarat sought to argue that when the State of

Gujarat had completed free and professional investigation, and

also had filed periodical Action Taken Reports and since the

elaborate charge sheet had also been filed by the State

including all documentary, oral and scientific evidence, along

with the papers pertaining to the preliminary inquiry including

the periodical interim reports submitted by the Inquiry officer

to the Supervisory officer during such inquiry, it would not be

proper for this Court to transfer the investigation to any other

agency. According to Mr.Rohatgi, if this Court finds that the

investigation is incomplete in respect of lacunae in respect of

which other remedies are available, in that case it would be

open to this court to direct further investigation in respect of

lacunae to be filled up by further investigation. This was not

the position in the present case. According to Mr.Rohatgi, a

detailed charge sheet has been filed and subsequent to the

filing of the said detailed charge sheet, a supplementary

charge sheet has also been filed on 10th of December, 2007

with complete evidence including oral, documentary and

scientific evidence to bring home the guilt of the accused

before the Competent Court. Mr.Rohatgi further submitted

that the findings in the Charge-sheet have already been

summarized in the affidavit and the Investigating Agency has

collected voluminous oral & documentary evidence to ensure

that the charges leveled against them are adequately proven.

Further, the investigating agency has also taken steps

including Crime Scene Reconstruction, taking Expert Advice

and Video Recording.

62. Mr.Rohatgi, further submitted that in order to enable this

Court to decide what could be in the interests of justice, the

criminal antecedents of the Sohrabuddin, his father, and his

brother have also been enumerated. It was further submitted

that assistance from the Dept. of Police, Andhra Pradesh was

also received as ordered by this Court. However, the Andhra

Pradesh Police Officers had not been identified. It was urged

that this would not affect the conviction of the accused in any

manner. Similarly, it was submitted that non-identification of

the third person who was abducted along with Sohrabuddin

and Kausarbi would also not affect the prosecution case.

63. Mr.Rohatgi further submitted that since the charge-sheet

has already been filed, it would not be necessary to go into the

preliminary inquiry conducted prior to the registration of the

offence. Giving the aforesaid particulars on the question of

investigation by the State Police Authorities, Mr.Rohatgi

submitted that the enquiry was conducted in an independent

and impartial manner and the investigating team has been

given complete independence with respect to such an enquiry.

64. It was further contended by Mr.Rohatgi that the writ

petitioner approached the competent court under Section

173(8) of the Cr.P.C. in accordance with whose directions,

further investigation was also conducted. The report on such

investigation could not be submitted before this Court because

this Court had stayed the proceedings before the Competent

Court and the report is kept sealed with the Registrar General

of the High Court of Gujarat. The lacunae that the writ

petitioner raised during the oral submissions do not find place

in the application that he filed before the Competent

Authority. Under these circumstances and in view of the

submissions made by Mr.Rohatgi, as noted herein earlier, the

jurisdiction of this Court under Article 32 of the Constitution

would come to an end as soon as a charge sheet is filed after

conducting an investigation under the supervision and

monitoring of this Court.

65. In view of our discussions made herein earlier and the

submissions of the learned senior counsel for the parties and

the Amicus Curiae and keeping in mind the earlier various

directions given by this Court to the Police Authorities of the

State of Gujarat and the materials on record, we are of the

view that although the charge sheet was submitted but

considering the nature of crime that has been allegedly

committed not by any third party but by the police personnel

of the State of Gujarat, the investigation concluded in the

present case cannot be said to be satisfactorily held. We have

already discussed the decisions cited from the Bar on the

question that after the charge sheet being filed whether the

investigation could be handed over to the CBI Authorities or to

any other independent agency from the State police

authorities. We have already distinguished the decisions cited

by the State that they related to the power of the court to

monitor the investigation after the charge sheet was filed. The

scope of this order, however, cannot deal with the power of

this Court to monitor the investigation, but on the other hand

in order to make sure that justice is not only done, but also is

seen to be done and considering the involvement of the State

police authorities and particularly the high officials of the

State of Gujarat, we are compelled even at this stage to direct

the CBI Authorities to investigate into the matter. Since the

high police officials of the State of Gujarat are involved and

some of them had already been in custody, we are also of the

view that it would not be sufficient to instill confidence in the

minds of the victims as well as of the public that still the State

Police Authorities would be allowed to continue with the

investigation when allegations and offences were mostly

against them. In the present circumstances and in view of the

involvement of the police officials of the State in this crime, we

cannot shut our eyes and direct the State Police authorities to

continue with the investigation and the charge sheet and for a

proper and fair investigation, we also feel that the CBI should

be requested to take up the investigation and submit a report

in this Court within six months from the date of handing over

a copy of this judgment and the records relating to this crime

to them.

66. Accordingly, in the facts and circumstances even at this

stage the police authorities of the State are directed to hand

over the records of the present case to the CBI Authorities

within a fortnight from this date and thereafter the CBI

Authorities shall take up the investigation and complete the

same within six months from the date of taking over the

investigation from the State police authorities. The CBI

Authorities shall investigate all aspects of the case relating to

the killing of Sohrabuddin and his wife Kausarbi including the

alleged possibility of a larger conspiracy. The report of the CBI

Authorities shall be filed in this Court when this court will

pass further necessary orders in accordance with the said

report, if necessary.

67. We expect that the police authorities of Gujarat, Andhra

Pradesh and Rajasthan shall co-operate with the CBI

authorities in conducting the investigation properly and in an

appropriate manner.

68. The Registry shall send copies of this judgment forthwith

to the Director, CBI, the Secretary, Ministry of Home

Affairs, Government of India, and the Secretary, Home

Ministry, State of Gujarat.

Writ Petition (Crl.) No.115 of 2007 :-

So far as W.P.(Crl.) No.115 of 2007 is concerned, let this

matter be listed after eight weeks before an appropriate Bench.

Contempt Petition (Crl.) No. 8 of 2007 in Writ Petition
(Crl.) No.6/2007 :-

So far as contempt petition being Contempt Petition (Crl.)

No.8 of 2007 is concerned, we are of the view that in view of

our final order passed in the main writ petition being

W.P.(Crl.)No.6 of 2007, we do not find any reason to proceed

with this contempt application any further. Accordingly, the

contempt petition is disposed of. Notice, if there be any, stands

discharged.

............................J.
[Tarun Chatterjee]

New Delhi; .............................J.
January 12, 2010. [Aftab Alam]

Police, Death in Police Custody and PIL

2010-07-17T13:07:00.000+01:00

Question:

Can I write a letter to Supreme Court to file a Public Interest Litigation?

Answer:

Yes. Supreme Court may treat a letter as a petition – if it wants to.

Question:

So it is better to write a letter to Supreme Court rather than going through trouble of filing petitions. Right?

Answer:

Wrong. Don’t expect Supreme Court to deal with every matter as a PIL. In rare cases Supreme Court takes up letters to be treated as a PIL.

Question:

Can you explain about custodial deaths?

Answer:

Well deaths in the custody of police are called custodial deaths.

Question:

Why do custodial deaths happen?

Answer:

Death in police custody may happen on account of any reason just as deaths can happen anywhere. However, we all know (including people who are just not connected with courts or police in any way) that police uses torture as means of extracting information or various other dubious reasons. The police in India uses force, bad treatment, abusive language, threats, physical torture and all such words that can be used to explain inhuman behavior. This leads to custodial deaths.

Question:

Is it lawful for police to torture people?

Answer:

Obviously – it is not lawful for the police to maltreat people; rather courts are very against any inhuman behavior – if they are found (and they are rarely found-out). But the fundamental make-up of courts as institution and police department as institution are basically very different. Courts have empathy and are governed by strict rule of law. The judicial officers (judges) are far more humane, they are highly educated people with a law background and on other side the police authorities particularly on the grass root are brutal.

Question:

I have often heard people say that “Human rights” are non-sense. The activist support criminals while they are demoralizing police in their work. Is that right?

Answer:

It is true to say that many times human rights are pressed with bad intentions on hind side by some people advocating them. It is equally true that police misuses its authority to protect and support real criminals while harassing totally innocent people. If both are compared the “police supported crime” is highly prevalent and “human right supporting crime” is rare. Human rights to the contrary under NHRC are absolutely necessary. You will agree with this if in India you unfortunately mess up with police some day. They will show you how bad they can be with some of their people having great ability to fiddle with law. Remember: when you are fighting against police department – you spend money from your pocket and police uses government money, government transport, government given lawyers.

No body can really have problems if terrorist or real criminals are taken to task. But that does not always happen. In fact real criminals go unabated and most of the time innocent people have to go running from pillar to post. That is what hurts most – particularly to the intelligent and justice loving people. People will have high respect for police authorities – if they become real saviors. But people are full of sarcasm for police just because of various practical experiences they have with Indian Police.

Saying that human rights are non-sense is therefore not true. With the way police authorities are functioning today – human rights are very essential in addition to courts that guard human liberty.

Question:

Is there anybody to check the police atrocities?

Answer:

Yes and no.

If you are strong enough to fight back – police can be restrained. Otherwise - no.

The basic reason behind this is very simple. Most of police authorities (particularly at grass root level) are conditioned to treat people badly. Some of them take corruption as a matter of right. Some allow crimes after accepting bribes. There is a regular wholesaler-retailer like chain in these areas. This it is so normal for them to mistreat people. I have not heard their people (police personnel) regularly receiving training on human psychology (necessary for crime prevention) and other things like human values. They simply do not know any concept of reformative punishments or reformative behavior.

In India there is a joke – it goes like this: An American said their police is so alert that they catch criminals within one hour of crime. A Briton brags that they do same thing within half an hour. An Indian said – you guys are slow. We are aware when a criminal will commit crime even before he has done it.

Second reason why police goes unchecked is slow progression of cases in Indian Courts. Third reasons, is high illiteracy. Fourth reason: fear. People fear police same way as they fear criminals. Even if police calls them or sends them a notice u/s. 160 or 91 – they will just fear. This fear is not ungrounded.

Question:

Can you explain court’s view on custodial death?

Answer:

Broadly answer is simple: Court’s frown very strongly when they find police doing hanky-panky and wrong. This happens too often.

Let us take an example from a prior Supreme Court Judgment in case of Basu Versus West Bengal (for entire judgment text, please refer to prior post). Some newspaper reported regarding custodial death. A public spirited person knowing no other way simply wrote a letter to Supreme Court of India drawing attention of the judge. The Court treated this letter as a PIL and a long spate of legal rounds went thereafter.

Supreme Court framed following guidelines in Basu's case:

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.

6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is.

7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

8. The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.

10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

11. A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.

Note:
The above guidelines (1) through (11) are part of the Judgment of Court. Remember and draw attention of authorities if you find any of the above guidelines not being complied. Not following the above, can lead to contempt of court proceedings. Police should not mistake the word guidelines as optional recommendations. According to court - these requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.

Question:

Are these guidelines being implemented?

Answer:

Yes they are always implemented on paper. In reality – they are mostly implemented! ! ! ! !

But the police custody continues to be a dreaded place for every subject of India, particularly those subjects who are innocent.

Question:

How do the Supreme Court requirements help me, if I want to do anything about custodial death?

Answer:

You get a short cut in that you can straight away apply to high court for contempt and actions on custodial death. The High Court will be obliged to follow the Supreme Court Order. You can also demand departmental actions against police officers who are responsible for custodial death. You can use this judgment to support your legal grounds and factual matrix. Entire text of judgment as stated can be found in prior post.

You get a short cut in that you can straight away apply to high court for contempt and actions on custodial death. The High Court will be obliged to follow the Supreme Court Order. You can also demand departmental actions against police officers who are responsible for custodial death. You can use this judgment to support your legal grounds and factual matrix. Entire text of judgment as stated can be found in prior post.

Question:

Does this apply to cases where there is custodial torture but not death?

Answer:

It may not apply squarely. Never mind – you still have option to fight back using the broader sense given in the judgment and ask for departmental inquiry and personal complaints against police officers joining them as party in personal capacity through routine complaint route via trial court. Kindly note that it is not as easy as it sounds while you fight in the battle ground. Personal complaints make police officers more vindictive. So when you take such legal actions, make sure you are well prepared with sufficient legal material for a sound case. Talk to your lawyer openly, prepare points and work with a responsive lawyer who is willing to explain things to your satisfaction. During your first meeting with your lawyer – make your expectations out of him very clear.

Question:

I have a similar case; can you study my papers and help me? Can you provide me judgment of XYZ Court in ABC Versus EFG?

Answer:

I cannot - please read “Specific Note” below "End Note" hereunder.

End Note:

I have received a lot from internet community and I feel I owe to this community what it gave me.

In my initial days of career, I was secretive about what I learnt. For example: if I spotted a great book that explains criminal law - I would not share the book with my friends fearing they may learn things just as easily as I could. I refrained from sharing and always opted to get knowledge from others. It is more than 10 years now as I was then. Over a period of time as my maturity continuum grew and as I have seen other people do wonderful work on internet, I have found that my knowledge is essentially not mine, it is built on lot of peoples' experience, their teaching and their kindness to enlighten me on various thought processes. So why hold and stagnate what is not mine essentially. Why not let knowledge flow? It is this process that taught me - "Knowledge Sharing" is power. If I do not share- I am a biggest loser. If I share - I get greatest benefit. So even from pure selfish point of view, sharing is essential. Without sharing "knowledge" is of no use. Without sharing- this world would be a bad place to live. Now therefore I have become a strong proponent of open source, sharing and a patent-free world.

Thanks to every netizens who have unknowlingly always helped me when-ever I wanted information of any type.

In my humble attempt - I have written this post. I also recommend the reader to share his / her experience on internet so that togeather - we can make a beautiful world.

SPECIFIC NOTE:

It is clarified that author of this blog is not available for any professional work to "non-lawyer clients" or "lawyers / solicitors without prior references" and neither gives any counsel on case-by-case basis to direct clients. Not making any inquiry is therefore highly recommended.

Shri D.K. Basu,Ashok K. Johri vs State Of West Bengal,State Of U.P on 18 December, 1996

2010-07-15T19:21:00.000+01:00

PETITIONER:

SHRI D.K. BASU,ASHOK K. JOHRI

Vs.

RESPONDENT:

STATE OF WEST BENGAL,STATE OF U.P.

DATE OF JUDGMENT: 18/12/1996

BENCH:

KULDIP SINGH, A.S. ANAND

ACT:

HEADNOTE:

JUDGMENT:

WITH

WRIT PETITION (CRL) NO. 592 OF 1987

J U D G M E N T

DR. ANAND, J.

The Executive Chairman, Legal Aid Services, West Bengal, a non-political organisation registered under the Societies Registration Act, on 26th August, 1986 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in the Telegraph dated 20, 21 and 22 of July, 1986 and in the Statesman and India express dated 17th August, 1986 regarding deaths in police lock-ups and custody. The Executive Chairman after reproducing the new items submitted that it was imperative to examine the issue in depth and to develop "custody jurisprudence" and formulate modalities for awarding compensation to the victim and/or family members of the victim for attrocities and death caused in police custody and to provide for accountability of the efforts are often made to hush up the matter of lock-up deaths and thus the crime goes unpunished and "flourishes". It was requested that the letter alongwith the new items be treated as a writ petition under "public interest litigation" category. Considering the importance of the issue raised in the letter being concerned by frequent complaints regarding custodial violence and deaths in police lock up, the letter was treated as a writ petition and notice was issued on 9.2.1987 to the respondents.

In response to the notice, the State of West Bengal filed a counter. It was maintained that the police was no hushing up any matter of lock-up death and that whereever police personnel were found to be responsible for such death, action was being initiated against them. The respondents characterised the writ petition as misconceived, misleading and untenable in law.

While the writ petition was under consideration a letter addressed by Shri Ashok Kumar Johri on 29.7.87 to the Hon'ble Chief Justice of India drawing the attention of this Court to the death of one Mahesh Bihari of Pilkhana, Aligarh in police custody was received. That letter was also treated as a writ petition and was directed to be listed alongwith the writ petition filed by Shri D.K. Basu. On 14.8.1987 this Court made the following order :

"In almost every states there are

allegations and these allegations

are now increasing in frequency of

deaths in custody described

generally by newspapers as lock-up

deaths. At present there does not

appear to be any machinery to

effectively deal with such

allegations. Since this is an all

India question concerning all

States, it is desirable to issues

notices to all the State

Governments to find out whether

they are desire to say anything in

the matter. Let notices issue to

all the State Governments. Let

notice also issue to the Law

Commission of India with a request

that suitable suggestions may be

returnable in two months from

today."

In response to the notice, affidavits have been filed on behalf of the States of West Bengal, Orissa, Assam Himachal Pradesh, Madhya Pradesh, Harayana, Tamil Nadu, Meghalaya , Maharashtra and Manipur. Affidavits have also been filed on behalf of Union Territory of Chandigarh and the Law Commission of India.

During the course of hearing of the writ petitions, the Court felt necessity of having assistance from the Bar and Dr. A.M. Singhvi, senior advocate was requested to assist the Court as amicus curiae.

Learned counsel appearing for different States and Dr. Singhvi, as a friend of the court. presented the case ably and though the effort on the part of the States initially was to show that "everything was well" within their respective States, learned counsel for the parties, as was expected of them in view of the importance of the issue involved, rose above their respective briefs and rendered useful assistance to this Court in examining various facets of the issue and made certain suggestions for formulation of guidelines by this court to minimise, if not prevent, custodial violence and kith and kin of those who die in custody on account of torture.

The Law Commission of India also in response to the notice issued by this Court forwarded a copy of the 113th Report regarding "injuries in police custody and suggested incorporation of Section 114-B in the India Evidence Act." The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens. Custodial violence, including torture and death in the lock ups, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental. "Torture" has not been defined in Constitution or in other penal laws. 'Torture' of a human being by another human being is essentially an instrument to impose the will of the 'strong' over the 'weak' by suffering. The word torture today has become synonymous wit the darker side of human civilisation.

"Torture is a wound in the soul so

painful that sometimes you can

almost touch it, but it is also so

intangible that there is not way to

heal it. Torture is anguish

squeezing in your chest, cold as

ice and heavy as a stone paralyzing

as sleep and dark as the abyss.

Torture is despair and fear and

rage and hate. It is a desire to

kill and destroy including

yourself."

Adriana P. Bartow

No violation of any one of the human rights has been the subject of so many Conventions and Declarations as 'torture'- all aiming at total banning of it in all forms, but inspite of the commitments made to eliminate torture, the fact remains that torture is more widespread not that ever before, "Custodial torture" is a naked violation of human dignity and degradation with destroys, to a very large extent, the individual personality. IT is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward-flag of humanity must on each such occasion fly half-mast. In all custodial crimes that is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma a person experiences is beyond the purview of law.

"Custodial violence" and abuse of police power is not only peculiar to this country, but it is widespread. It has been the concern of international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1984, which market the emergency of worldwide trend of protection and guarantee of certain basic human rights, stipulates in Article 5 that "No one shall be subjected to torture or to curel, inhuman or degrading treatment or punishment." Despite the pious declaration, the crime continues unabated, though every civilised nation shows its concern and takes steps for its eradication.

In England, torture was once regarded as a normal practice to ger information regarding the crime, the accomplices and the case property or to extract confessions, but with the development of common law and more radical ideas imbibing human though and approach, such inhuman practices were initially discouraged and eventually almost done away with , certain aberrations here and there notwithstanding. The police powers of arrest, detention and interrogation in England were examined in depth by Sir Cyril Philips Committee- 'Report of a Royal Commission on Criminal Procedure' (command - Paper 8092 of 1981). The report of the Royal Commission is, instructive. In regard to the power of arrest, the Report recommended that the power to arrest without a warrant must be related to and limited by the object to be served by the arrest, namely, to prevent the suspect from destroying evidence or interfering with witnesses or warning accomplices who have not yet been arrested or where there is a good reason to suspect the repetition of the offence and not to every case irrespective of the object sought to be achieved.

The Royal Commission suggested certain restrictions on the power of arrest on the basis of the `necessity principle'. The Royal commission said : ".... We recommend that detention

upon arrest for a offence should

continue only on one or more of the

following criteria :

(a) the person`s`s unwillingness

to identify himself so that summons

may be served upon him;

(b) the need to prevent the

continuation or repetition of that

offence;

(c) the need to protect the

arrested person`s himself or other

persons or property;

(d) the need to secure or preserve

evidence of or relating to that

offence or to obtain such evidence

from the suspect by questioning

him; and

(e) the likelihood of the person`s

failing to appear at court to

answer anycharge made against him."

The Royal Commission also suggested

:

"To help to reduce the use of

arrest we would also propose the

introduction here of a scheme that

is used in Ontario enabling a

police officer to issue what is

called an appearance notice. That

procedure can be used to obtain

attendance at the police station

without resorting to arrest

provided a power to arrest exists,

for example to be finger printed or

to participate in an identification

parade. It could also be extended

to attendance for interview at a

time convenient both to the suspect

and to the police officer

investigating the case...."

The power of arrest, interrogation and detention has now been streamlined in England on the basis of the suggestions made by the Royal Commission and incorporated in police and Criminal Evidence Act, 1984 and the incidence of custodial violence has been minimised there to a very great extent.

Fundamental rights occupy a place of pride in the India Constitution. Article 21 provides "no person shall be deprived of his life or personal liberty expect according to procedure established by law". Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression "life of personal liberty" has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and the shall not be denied the right to consult and defend himself by a legal practitioner of his choice. Clause (2) of Article 22 directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the Magistrate. Article 20(3) of the Constitution lays down that a person accused of an offence shall not be compelled to be a witness against himself. These are some of the constitutional safeguard provided to a person with a view to protect his personal liberty against and unjustified assault by the State, In tune with the constitutional guarantee a number statutory provisions also seek to project personal liberty, dignity and basic human rights of the citizens. Chapter V. of Criminal Procedure Code, 1973 deals with the powers of arrest of a person and the safeguard which are required to be followed by the police to protect the interest of the arrested person. Section 41, Cr. P.C. confers powers on any police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Under this Section no formality is necessary while arresting a person. Under Section 49, the police is not permitted to use more restraint than is necessary to permitted to use more restraint than is necessary to prevent the escape of the person. Section 50 enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. The police officer is further enjoined to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the event of his arrest for a non-bailable offence. Section 56 contains a mandatory provision requiring the police officer making an arrest without warrant to produce the arrested person before a Magistrate without unnecessary delay and Section 57 echoes Clause (2) of Article 22 of the Constituion of India. There are some other provisions also like Section 53, 54 and 167 which are aimed at affording procedural safeguards to a person arrested by the police. Whenever a person dies in custody of the police, Section 176 requires the Magistrate to hold and enquiry into the cause of death.

However, inspite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. A reading of the morning newspapers almost everyday carrying reports of dehumanising torture, assault, rape and death in custody of police or other governmental agencies is indeed depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the creditibility of the Rule of Law and the administration of criminal justice system. The community rightly feels perturbed. Society's cry for justice becomes louder.

The Third Report of the National Police Commission in India expressed its deep concern with custodial demoralising effect with custodial torture was creating on the society as a whole. It made some very useful suggestions. It suggested :

".......An arrest during the

investigation of a cognizable case

may be considered justified in one

or other of the following

circumstances :-

(1) The case involves a grave

offence like murder, dacoity,

robbery, rape etc., and it is

necessary to arrest the accused and

bring his movements under restraint

to infuse confidence among the

terror stricken victims.

(ii) The accused is likely to

abscond and evade the processes of

law.

(iii) The accused is given to

violent behaviour and is likely to

commit further offences unless his

movements are brought under

restraint.

(iv) The accused is a habitual

offender and unless kept in custody

he is likely to commit similar

offences again. It would be

desirable to insist through

departmental instructions that a

police officer making an arrest

should also record in the case

diary the reasons for making the

arrest, thereby clarifying his

conformity to the specified

guidelines......"

The recommendations of the Police Commission (supra) reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. These recommendations, however, have not acquired any statutory status so far.

This Court in Joginder Kumar Vs. State [1994 (4) SCC, 260] (to which one of us, namely, Anand, J. was a party) considered the dynamics of misuse of police power of arrest and opined :

"No arrest can be made because it

is lawful for the police officer to

do so. The existence of the power

of arrest is one thing. The

justification for the exercise of

it is quite another...No. arrest

should be made without a reasonable

satisfaction reached after some

investigation about the genuineness

and bonafides of a complaint and a

reasonable belief both as to the

person's complicity and even so as

to the need to effect arrest.

Denying person his liberty is a

serious matter."

Joginder Kumar's case (supra) involved arrest of a practising lawyer who had bee called to the police station in connection with a case under inquiry on 7.1.94. On not receiving any satisfactory account of his whereabouts, the family member of the detained lawyer preferred a petition in the nature of habeas corpus before this Court on 11.1.94 and in compliance with the notice, the lawyer was produced on 14.1.94 before this court the police version was that during 7.1.94 and 14.1.94 the lawyer was not in detention at all but was only assisting the police to detect some cases. The detenue asserted otherwise. This Court was not satisfied with the police version. It was noticed that though as on that day the relief in habeas corpus petition could not be granted but the questions whether there had been any need to detain the lawyer for 5 days and if at all he was not in detention then why was this Court not informed. Were important questions which required an answer. Besides, if there was detention for 5 days, for what reason was he detained. The Court' therefore, directed the District Judge, Ghaziabad to make a detailed enquiry and submit his report within 4 weeks. The Court voiced its concern regarding complaints of violations of human rights during and after arrest. It said:

"The horizon of human rights is

expanding. at the same time, the

crime rate is also increasing, Of

late, this Court has been receiving

complaints about violations of

human rights because of

indiscriminate arrests. How are we

to strike a balance between the

two?

...................................

A realistic approach should be made

in this direction. The law of

arrest is one of balancing

individual rights, liberties and

privileges, on the one hand, and

individual duties, obligations

weighing and balancing the rights,

liberties and privileges of he

single individual and those of

individuals collectively; of simply

deciding what is wanted and where

to put the weight and the emphasis;

of deciding with comes first-the

criminal or society, the law

violator or the abider....."

This Court then set down certain procedural "requirements" in cases of arrest.

Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. The rights inherent in Articles 21 and 22(1) of the Constitution required to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture of cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilised nation can permit that tp happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal court of human rights jurisprudence. The answer, indeed, has to be an emphatic 'No'. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicted undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.

In Neelabati Bahera Vs. State of Orissa [1993 (2) SCC, 746], (to which Anand, J. was a party) this Court pointed out that prisoners and detenues are not denuded of their fundamental rights under Article 21 and it is only such restrictions as are permitted by law, which can be imposed on the enjoyment of the fundamental rights of the arrestees and detenues. It was observed :

"It is axiomatic that convicts,

prisoners or undertrials are not

denuded of their fundamental rights

under Article 21 and its is only

such restrictions, as are permitted

by law, which can be imposed on the

enjoyment of the fundamental right

by such persons. It is an

obligation of the State to ensure

that there is no infringement of

the indefeasible rights of a

citizen o life, except in

accordance with law, while the

citizen is in its custody. The

precious right guaranteed by

Article 21 of the constitution of

India cannot be denied to convicts,

undertrials or other prisoners in

custody, expect according to

procedure established by law. There

is a great responsibility on the

police or prison authorities to

ensure that the citizen in its

custody is not deprived of his

right to life. His liberty is in

the very nature of things

circumscribed by the very fact of

his confinement and therefore his

interest in the limited liberty

left to him is rather precious. The

duty of care on the part of the

State is responsible if the person

in custody of the police is

deprived of his life except

according to the procedure

established by law.

Instances have come to out notice were the police has arrested a person without warrant in connection with the investigation of an offence, without recording the arrest, and the arrest person has been subjected to torture to extract information from him for the purpose of further investigation or for recovery of case property or for extracting confession etc. The torture and injury caused on the body of the arrestee has sometime resulted into his death. Death in custody is not generally shown in the records of the lock-up and every effort is made by the police to dispose of the body or to make out a case that the arrested person died after he was released from custody. Any complaint against such torture or death is generally not given any attention by the police officers because of ties of brotherhood. No first information report at the instance of the victim or his kith and kin is generally entertained and even the higher police officers turn a blind eye to such complaints. Even where a formal prosecution is launched by the victim or his kith and kin, no direct evidence is available to substantiate the charge of torture or causing hurt resulting into death as the police lock-up where generally torture or injury is caused is away from the public gaze and the witnesses are either police men or co- prisoners who are highly reluctant to appear as prosecution witness due to fear of letaliation by the superior officers of the police. It is often seen that when a complaint is made against torture, death or injury, in police custody, it is difficult to secure evidence against the policemen responsible for resorting to third degree methods since they are incharge of police station records which they do not find difficult to manipulate. Consequently, prosecution against the delinquent officers generally results in acquittal. State of Madhya Pradesh Vs. Shyamsunder Trivedi & Ors. [ 1995 (3) Scale, 343 =] is an apt case illustrative of the observations made by us above. In that case, Nathu Bnjara was tortured at police station, Rampura during the interrogation. As a result of extensive injuries caused to him he died in police custody at the police station. The defence set up by the respondent police officials at the trial was that Nathu Banjara had been released from police custody at about 10.30 p.m. after interrogation 13.10.1986 itself vide entry EX. P/22A in the Roznamcha and that at about 7.00 a.m. on 14.10.1981, a death report Ex. P/9 was recorded at the police station, Rampura, at the instance of Ramesh respondent No. 6, to the effect that he had found "one unknown person" near a tree by the side of the tank riggling with pain in his chest and that as a soon as respondent No. 6 reached near him, the said person died. The further case set up by SI Trivedi, respondent No. 1, incharge of the police station was that after making a Roznamcha entry at 7.00 a.m. about his departure from the police station he (respondent No. 1- Shyamsunder Trivedi) and Constable Rajaram respondent proceeded to the spot where the dead body was stated to be lying for conducting investigation under Section 174 Cr.P.C. He summoned Ramesh Chandra and Goverdhan respondents to the spot and in their presence prepared a panchnama EX. P/27 of the dead body recording the opinion therein to the effect that no definite cause of death was known.

The First Additional Sessions Judge acquitted all the respondents of all the charges holding that there was no direct evidence to connect the respondents with the crime. The State of Madhya Pradesh went up in appeal against the order of acquittal and the High Court maintained the acquittal of respondents 2 to 7 but set aside the acquittal of respondent No. 1, Shyamsunder Trivedi for offences under Section 218, 201 and 342 IPC. His acquittal for the offences under Section 302/149 and 147 IPC was, however, maintained. The State filed an appeal in this court by special leave. This Court found that the following circumstances have been established by the prosecution beyond every reasonable doubt and coupled with the direct evidence of PWs 1, 3, 4, 8 and 18 those circumstances were consistent only with the hypothesis of the quilt of the respondents and were inconsistent with their innocence :

(a) that the deceased had been

brought alive to the police station

ad was last seen alive there on

13.10.81;

(b) That the dead body of the

deceased was taken out of the

police station on 14.1.81 at about

2 p.m. for being removed to the

hospital;

(c) that SI Trivedi respondent No.

1, Ram Naresh shukla, Respondent

No. 3, Raja Ram, respondent No. 4

and Ganiuddin respondent No. 5 were

present at the police station and

had all joined hands to dispose of

the dead body of Nathu-Banjara:

(d) That SI Trivedi, respondent

No. 1 created false evidence and

fabricated false clues in the shape

of documentary evidence with a view

to screen the offence and for that

matter, the offender:

(e) SI Trivedi respondent in

connivance with some of his

subordinates, respondents herein

had taken steps to cremate the dead

body in haste describing the

deceased as a 'lavaris' though the

identity of the deceased, when they

had interrogated for a sufficient

long time was well known to them.

and opined that:

"The observations of the High Court

that the presence and participation

of these respondents in the crime

is doubtful are not borne out from

the evidence on the record and

appear to be an unrealistic over

simplification of the tell tale

circumstances established by the

prosecution."

One of us (namely, Anand, J.) speaking for the Court went on to observe :

"The trial court and the High

Court, if we may say so with

respect, exhibited a total lack of

sensitivity and a 'could not

careless' attitude in appreciating

the evidence on the record and

thereby condoning the barbarous

there degree methods which are

still being used, at some police

stations, despite being illegal.

The exaggerated adherence to and

insistence upon the establishment

of proof beyond every reasonable

doubt, by the prosecution, ignoring

the ground realities, the fact

situations and the peculiar

circumstances of a given case, as

in the present case, often results

in miscarriage of justice and makes

the justice delivery system a

suspect. In the ultimate analysis

the society suffers and a criminal

gets encouraged. Tortures in police

custody, which of late are on the

increase, receive encouragement by

this type of an unrealistic

approach of the Courts because it

reinforces the belief in the mind

of the police that no harm would

come to them if an odd prisoner

dies in the lock-up, because there

would hardly be and evidence

available to the prosecution to

directly implicate them with the

torture. The Courts, must not loose

sight of the fact that death in

police custody is perhaps on of the

worst kind of crime in a a

civilised society, governed by the

rule of law and poses a serious

thereat to an orderly civilised

society."

This Court then suggested :

"The Courts are also required to

have a change in their outlook and

attitude, particularly in cases

involving custodial crimes and they

should exhibit more sensitivity and

adopt a realistic rather than a

narrow technical approach, while

dealing with the case of custodial

crime so that as far as possible

within their powers, the guilty

should not escape so that the

victim of crime has the

satisfaction that ultimately the

Majesty of Law has prevailed."

The State appeal was allowed and the acquittal of respondents 1, 3, 4 and 5 was set aside. The respondents were convicted for various offences including the offence under Section 304 Part II/34 IPC and sentenced to various terms of imprisonment and fine ranging from Rs. 20,000/- to Rs.. 50,000/-. The fine was directed to be paid to the heirs of Nathu Banjara by way of compensation. It was further directed :

"The Trial Court shall ensure, in

case the fine is deposited by the

accused respondents, that the

payment of the same is made to the

heirs of deceased Nathu Banjara,

and the Court shall take all such

precautions as are necessary to see

that the money is not allowed to

fall into wrong hands and is

utilised for the benefit of the

members of the family of the

deceased Nathu Banjara, and if

found practical by deposit in

nationalised Bank or post office on

such terms as the Trial Court may

in consultation with the heirs for

the deceased consider fit and

proper."

It needs no emphasis to say that when the crime goes unpunished, the criminals are encouraged and the society suffers. The victim of crime or his kith and kin become frustrated and contempt for law develops. It was considering these aspects that the Law Commission in its 113th Report recommended the insertion of Section 114B in the Indian Evidence Act. The Law Commission recommended in its 113th Report that in prosecution of a police officer for an alleged offence of having caused bodily injury to a person, if there was evidence that the injury was caused during the period when the person was in the custody of the police, the Court may presume that the injury was caused by the police officer having the custody of the person during that period. The Commission further recommended that the court, while considering the question of presumption, should have regard to all relevant circumstances including the period of custody statement made by the victim, medical evidence and the evidence with the Magistrate may have recorded. Change of burden of proof was, thus, advocated. In sham Sunder Trivedi's case (supra) this Court also expressed the hope that the Government and the legislature would give serious thought to the recommendation of the Law Commission. Unfortunately, the suggested amendment, has not been incorporated in the statute so far. The need of amendment requires no emphasis - sharp rise i custodial violence, torture and death in custody, justifies the urgency for the amendment and we invite Parliament's attention to it. Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of a an offence but it must be remembered that the law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with that view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purpose full to make the investigation effective. By torturing a person and using their degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No. society can permit it. How do we check the abuse of police power? Transparency of action and accountability perhaps are tow possible safeguards which this Court must insist upon. Attention is also required to be paid to properly develop work culture, training and orientation of police force consistent with basic human values. Training methodology of the police needs restructuring. The force needs to be infused with basic human values and made sensitive to the constitutional ethos. Efforts must be made to change the attitude and approach of the police personal handling investigations so that they do not sacrifice basic human values during interrogation and do not resort to questionable form of interrogation. With a view to bring in transparency, the presence of the counsel of the arrestee at some point of time during the interrogation may deter the police from using third degree methods during interrogation.

Apart from the police, there are several other governmental authorities also like Directorate of Revenue Intelligence, Directorate of Enforcement, Costal Guard, Central Reserve Police Force (CRPF), Border Security Force (BSF), the Central Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies like the Intelligence Bureau, R.A.W, Central Bureau of Investigation (CBI) , CID, Tariff Police, Mounted Police and ITBP which have the power to detain a person and to interrogated him in connection with the investigation of economic offences, offences under the Essential Commodities Act, Excise and Customs Act. Foreign Exchange Regulation Act etc. There are instances of torture and death in custody of these authorities as well, In re Death of Sawinder Singh Grover [1995 Supp (4) SCC, 450], (to which Kuldip Singh, j. was a party) this Court took suo moto notice of the death of Sawinder Singh Grover during his custody with the Directorate of Enforcement. After getting an enquiry conducted by the additional District Judge, which disclosed a prima facie case for investigation and prosecution, this Court directed the CBI to lodge a FIR and initiate criminal proceeding against all persons named in the report of the Additional District Judge and proceed against them. The Union of India/Directorate of Enforcement was also directed to pay sum of Rs. 2 lacs to the widow of the deceased by was of the relevant provisions of law to protect the interest of arrested persons in such cases too is a genuine need. There is one other aspect also which needs out consideration, We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals, Many hard core criminals like extremist, the terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalisation and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation. It is felt in those quarters that if we lay to much of emphasis on protection of their fundamental rights and human rights such criminals may go scot-free without exposing any element or iota or criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worst than the disease itself. The response of the American supreme Court to such an issue in Miranda Vs. Arizona, 384 US 436 is instructive. The Court said :

"A recurrent argument, made in

these cases is that society's need

for interrogation out-weighs the

privilege. This argument is not

unfamiliar to this Court. See. e.g.

Chambers v. Florida, 309 US 227,

240-41, 84 L ed 716, 724, 60 S Ct

472 (1940). The whose thrust of out

foregoing discussion demonstrates

that the Constitution has

prescribed the rights of the

individual when confronted with the

power of Government when it

provided in the Fifth Amendment

that an individual cannot be

compelled to be a witness against

himself. That right cannot be

abridged. "

(Emphasis ours)

There can be no gain saying that freedom of an individual must yield to the security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statures has been upheld by the Courts. The right to interrogate the detenues, culprits or arrestees in the interest of the nation, must take precedence over an individual's right to personal liberty. The latin maxim salus populi est supreme lex (the safety of the people is the supreme law) and salus republicae est suprema lex (safety of the state is the supreme law) co-exist an dare not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however must be "right, just and fair". Using any form of torture for extracting any kind of information would neither be 'right nor just nor fair' and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated - indeed subjected to sustained and scientific interrogation determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third degree methods or eleminated with a view to elicit information, extract confession or drive knowledge about his accomplices, weapons etc. His Constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be qualitative difference in the methods of interrogation of such a person as compared to an ordinary criminal. Challenge of terrorism must be met wit innovative ideas and approach. State terrorism is not answer to combat terrorism. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to 'terrorism'. That would be bad for the State, the community and above all for the Rule of Law. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. that the terrorist has violated human rights of innocent citizens may render him liable for punishment but it cannot justify the violation of this human rights expect in the manner permitted by law. Need, therefore, is to develop scientific methods of investigation and train the investigators properly to interrogate to meet the challenge.

In addition to the statutory and constitutional requirements to which we have made a reference, we are of the view that it would be useful and effective to structure appropriate machinery for contemporaneous recording and notification of all cases of arrest and detention to bring in transparency and accountability. It is desirable that the officer arresting a person should prepare a memo of his arrest on witness who may be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. The date and time of arrest shall be recorded in The memo which must also be counter signed by The arrestee.

We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures :

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaga Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.

These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.

The requirements mentioned above shall be forwarded to the Director General of Police and the Home Secretary of every Stare/Union Territory and it shall be their obligation to circulate the same to every police station under their charge and get the same notified at every police station at conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on the All India Radio besides being shown on the National network of Doordarshan and by publishing and distributing pamphlets in the local language containing these requirements for information of the general public. Creating awareness about the rights of the arrestee would in out opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped that these requirements would help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes.

PUNITIVE MEASURES

UBI JUS IBI REMEDIUM - There is no wrong without a remedy. The law will that in every case where man is wronged and undamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done. Some punitive provisions are contained in the Indian Penal Code which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Section 330 and 331 provide for punishment of those who inflict injury of grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustration (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Indian Penal Code. These Statutory provisions are, However, inadequate to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, nor by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience.

Article 9(5) of the International convent on civil and Political Rights, 1966 (ICCPR) provides that "anyone who has been the victim of unlawful arrest or detention shall have enforceable right to compensation". of course, the Government of India as the time of its ratification (of ICCPR) in 1979 had made a specific reservation to the effect that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention and thus did not become party to the Convent. That reservation, however, has now lost its relevance in view of the law laid down by this Court in number of cases awarding compensation for the infringement of the fundamental right to life of a citizen. (See with advantage Rudal Shah Vs. State of Bihar [ 1983 (4) SCC, 141 ]: Sebastian M. Hongrey Vs. Union of India [ 1984 (3) SCC, 339] and 1984 (3) SCC, 82]; Bhim Singh Vs State of J & K [1984 (Supp) SCC, 504 and 1985 (4) SCC, 677] Saheli Vs. Commissioner of Police. Delhi [1990 (1) SCC 422]}. There is indeed no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life, nonetheless, this Court has judicially evolved a right o compensation in cases of established unconstitutional deprivation of person liberty or life. [See : Nilabati Bahara Vs. State (Supra)] Till about tow decades ago the liability of the government for tortious act of its public servants as generally limited and the person affected could enforce his right in tort by filing a civil suit and there again the defence of sovereign immunity was allowed to have its play. For the violation of the fundamental right to life or the basic human rights, however, this Court has taken the view that the defence of sovereign immunity is not available to the State for the tortious act of the public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution of India. In Nilabati Behera Vs. State (supra) the decision of this Court in Kasturi Lal Ralia Ram Jain Vs. State of U.P. [1965 (1) SCR, 375] wherein the plea of sovereign immunity had been upheld in a case of vicarious liability of the State for the tort committed by its employees was explained thus:

"In this Context, it is sufficient

to say that the decision of this

Court in Kasturilal upholding the

State's plea of sovereign immunity

for tortious acts of its servants

is confined to the sphere of

liability in tort, which is

distinct from the State's liability

for contravention of fundamental

rights to which the doctrine of

sovereign immunity has no

application in the constitutional

remedy under Articles 32 and 226 of

the Constitution which enables

award of compensation for

contravention of fundamental

rights, when the only practicable

mode of enforcement of the

fundamental rights can be the award

of compensation. The decisions of

this court in Rudul Sah and others

in that line relate to award of

compensation for contravention of

fundamental rights, in the

constitutional remedy upon Articles

32 and 226 of the Constitution, On

the other hand, Kasturilal related

to the value of goods seized and

not returned to the owner due to

the fault of government Servants,

the claim being of damages of the

tort of conversion under the

ordinary process, and not a claim

for compensation for violation of

fundamental rights. Kasturilal is,

therefore, inapplicable in this

context and distinguishable."

The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages of tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitutions is remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or 226 of the Constitution of India for the established violation or the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrong door and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.

The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the court and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim - civil action for damage is a long drawn and cumber some judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim. Who may have been the bread winner of the family.

In Nilabati Bahera's case (supra), it was held: "Adverting to the grant of relief

to the heirs of a victim of

custodial death for the infraction

or invasion of his rights

guaranteed under Article 21 of the

Constitution of India, it is not

always enough to relegate him to

the ordinary remedy of a civil suit

to claim damages for the tortious

act of the State as that remedy in

private law indeed is available to

the aggrieved party. The citizen

complaining of the infringement of

the indefeasible right under

Article 21 of the constitution

cannot be told that for the

established violation of the

fundamental right to life he cannot

get any relief under the public law

by the courts exercising Writ

jurisdiction, The primary source of

the public law proceedings stems

from the prerogative writs and the

courts have therefore, to evolve '

new tools' to give relief in public

law by moulding it according to the

situation with a view to preserve

and protect the Rule of Law. While

concluding his first Hamlyn Lecture

in 1949 under the title "freedom

under the Law" Lord Denning in his

own style warned :

No one ca suppose that the

executive will never be guilty the

of the sins that are common to all

of us. Your may be sure that they

will sometimes to things which they

ought to do : and will not do

things that they ought to do. But

if and when wrongs are thereby

suffered by any of us what is the

remedy? Our procedure for securing

our personal freedom is efficient,

out procedure for preventing the

abuse of power is not. Just as the

pick and shovel is no longer

suitable for the winning of coal,

so also the procedure of mandamus,

certiorari and actions on the case

are not suitable for the winning or

freedom in the new age. They must

be replaced by new and up-to date

machinery by declarations,

injunctions and actions for

negligence... This is not the task

of Parliament... the courts must do

this. Of all the great tasks that

lie ahead this is the greatest.

Properly exercised the new powers

of the executive lead to the

welfare state : but abused they

lead to a totalitarian state. None

such must ever be allowed in this

country."

A similar approach of redressing the wrong by award of monetary compensation against the State for its failure to protect the fundamental rights of the citizen has been adopted by the Courts of Ireland, which has a written constitution, guaranteeing fundamental rights, but which also like the Indian Constitution contains no provision of remedy for the infringement of those rights. That has, however, not prevented the Court in Ireland from developing remedies, including the award of damages, not only against individuals guilty of infringement, but against the State itself.

The informative and educative observations of O' Dalaigh CJ in The State (At the Prosecution of Quinn) v. Ryan [1965] IR 70 (122) deserve special notice. The Learned Chief Justice said:

"It was not the intention of the

Constitution in guaranteeing the

fundamental rights of the citizen

that these rights should be set at

nought or circumvented. The

intention was that rights of

substances were being assured to

the individual and that the Courts

were the custodians of those

rights. As a necessary corollary,

it follows that no one can with

impunity set these rights at nought

of circumvent them, and that the

Court's powers in this regard are

as ample as the defence of the

Constitution require."

(Emphasis supplied)

In Byrne v. Ireland [1972] IR 241, Walsh J opined at p 264:

"In several parts in the

Constitution duties to make certain

provisions for the benefit of the

citizens are imposed on the State

in terms which bestow rights upon

the citizens and, unless some

contrary provision appears in the

Constitution, the Constitution must

be deemed toe have created a remedy

for the enforcement of these

rights. It follows that, where the

right is one guaranteed by the

State. It is against the State that

the remedy must be sought it there

has been a failure to discharge the

constitutional obligation impose"

(Emphasis supplied)

In Maharaj Vs. Attorney General of Trinidad and Tobago [ (1978) 2 All E.R. 670]. The Privy Council while interpreting Section 6 of the Constitution of Trinidad and Tobago held that though not expressly provided therein, it permitted an order for monetary compensation, by way of 'redress' for contravention of the basic human rights and fundamental freedoms. Lord Diplock speaking for the majority said:

"It was argued on behalf of the

Attorney General that Section 6(2)

does not permit of an order for

monetary compensation despite the

fact that this kind of redress was

ordered in Jaundoo v. Attorney

General of Guyana. Reliance was

placed on the reference in the sub-

section to 'enforcing, or securing

the enforcement of, any of the

provisions of the said foregoing

sections' as the purpose for which

orders etc. could be made. An order

for payment of compensation, it was

submitted, did not amount to the

enforcement of the rights that had

been contravened. In their

Lordships' view of order for

payment of compensation when a

right protected under Section 1

'has been' contravened is clearly a

form of 'redress' which a person is

entitled to claim under Section 6

(1) and may well be any only

practicable form of redress, as by

now it is in the instant case. The

jurisdiction to make such an order

is conferred on the High Court by

para (a) of Section 6(2), viz.

jurisdiction 'to here and determine

any application made by any person

in pursuance of sub-section (1) of

this section'. The very wide power

to make orders, issue writs and

give directions are ancillary to

this."

Lord diplock then went on to observe ( at page 680) : "Finally, their Lordships would say

something about the measure of

monetary compensation recoverable

under Section 6 where the

contravention of the claimant's

constitutional rights consists of

deprivation of liberty otherwise

that by due process of law. The

claim is not a claim in private law

for damages for the tort of false

imprisonment, under which the

damages recoverable are at large

and would include damages for loss

of reputation. IT is a claim in

public law for compensation for

deprivation of liberty alone."

In Simpson was, Attorney General [ Baigent's case ] (1994 NZLR, 667) the Court of Appeal in NewZealand dealt with the issue in a very elaborate manner by reference to a catena of authorities from different jurisdictions. It considered the applicability of the doctrine of vicarious liability for torts, like unlawful search, committed by the police officials which violate the New Zealand Bill of Rights Act, 1990. While dealing with the enforcement of rights and freedoms as guaranteed by the Bill of Rights for which no specific remedy was provided. Hardie Boys, J. observed :

"The New Zealand Bill of Rights

Act, unless it is to be no more

that an empty statement, is a

commitment by the Crown that those

who in the three branches of the

government exercise its functions,

powers and duties will observe the

rights hat the Bill affirms. it is

I consider implicit in that

commitment, indeed essential to its

worth, that the Courts are not only

to observe the Bill in the

discharge of their own duties but

are able to grant appropriate ad

effective remedies where rights

have been infringed. I see no

reason to think that this should

depend on the terms of a written

constitution. Enjoyment of the

basic human rights are the

entitlement of every citizen, and

their protection the obligation of

every civilised state. They are

inherent in and essential to the

structure of society. They do not

depend on the legal or

constitutional form in which they

are declared. the reasoning that

has led the Privy Council and the

Courts of Ireland and India to the

conclusions reached in the cases to

which I have referred (and they are

but a sample) is in my opinion

equally valid to the New Zealand

Bill of Rights Act if it is to have

life and meaning." (Emphasis

supplied)

The Court of appeal relied upon the judgment of the Irish Courts, the Privy Council and referred to the law laid down in Nilabati Behera Vs. State (supra) thus: "Another valuable authority comes

from India, Where the constitution

empowers the Supreme Court to

enforce rights guaranteed under it.

In Nilabati Bahera V. State of Orissa (1993) Cri. LJ 2899, the Supreme Court awarded damages

against the Stare to the mother of

a young man beaten to death in

police custody. The Court held that

its power of enforcement imposed a

duty to "forge new tools", of which

compensation was an appropriate on

where that was the only mode of

redress available. This Was not a

remedy in tort, but one in public

law based on strict liability for

the contravention of fundamental

rights to which the principle of

sovereign immunity does not apply.

These observations of Anand, J. at

P 2912 may be noted.

The old doctrine of only relegating

the aggrieved to the remedies

available in civil law limits the

role of the courts too much as

protector and guarantor of the

indefeasible rights of the

citizens. The courts have the

obligation to satisfy the social

aspirations of the citizens because

the courts and the law are for the

people and expected to respond to

their aspirations. The purpose of

public law is not only to civilize

public that they live under a legal

system which aims to protect their

interest and preserve their

rights."

Each the five members of the Court of Appeal in Simpson's case (supra) delivered a separate judgment but there was unanimity of opinion regarding the grant of pecuniary compensation to the victim, for the contravention of his rights guaranteed under the Bill of Rights Act, notwithstanding the absence of an express provision in that behalf in the Bill of Rights Act.

Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is nor available and the citizen must revive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do, That award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will. of course, depend upon the peculiar facts of each case and no strait jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under he public law jurisdiction is, in addition to the traditional remedies and not it derrogation of them. The amount of compensation as awarded by the Court and paid by the State to redress The wrong done, may in a given case , be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.

Before parting with this judgment we wish to place on record our appreciation for the learned counsel appearing for the States in general and Dr. A.M. Singhvi, learned senior counsel who assisted the Court amicus curiae in particular for the valuable assistances rendered by them.

BALJIT SINGH v. IMPROVEMENT TRUST LUDHIANA & ANR.

2009-08-29T06:33:00.000+01:00

Judgement CIVIL APPELLATE JURISDICTION Civil Appeal No. 9 of 2009 (Arising out of Special Leave Petition (Civil) NO.6979 of 2006) Baljit Singh ...Appellant Improvement Trust Ludhiana & Anr. ...Respondents
ALTAMAS KABIR,J.

1. Leave granted.

2. Can a person who is a transferee of a plot of land allotted to the transferor by the Improvement Trust, Ludhiana, claim a right to 2 continue with such allotment even after the same is cancelled, particularly when such transfer was effected with the approval of the Trust, is the question for consideration in the instant appeal.

3. There is no dispute that on 28th October, 1982, one Smt. Shammi Verma was allotted plot No.94-D in the Development Scheme of 256 Acres at Balmik Nagar, Ludhiana, under Memo No.9913 dated 26th October, 1982 issued by the Improvement Trust, Ludhiana. Although, Smt.

Verma deposited the amounts which were required to be paid against such allotment, she was informed by the respondent No.1 by its letter dated 2nd January, 1989, that the Trust was unable to make over possession of the plot to her. Subsequently, Smt. Verma was allotted another plot, being No.91-B and an agreement to sell was also executed in her favour.

3

4. On 11th May, 1989, the appellant herein acquired the said plot No.91-B from Smt. Verma and such transfer was also permitted by the Trust. Surprisingly, however, three months later on 14th August, 1989, when the appellant applied for approval of the site plan submitted by him, he came to learn that the allotment of plot No.91-B in favour of Smt. Shammi Verma had been cancelled on the ground that such allotment had been made by one Shri S.S. Mann, who was not competent to make such allotment.

The appellant allegedly made various representations to the respondent Trust and also to the Government and on consideration thereof the Trust was directed by the Government to restore the plot in question to the appellant and consequently the allotment in favour of Smt. Verma stood restored. It is the case of the appellant that since the interest of Smt. Verma devolved upon him as her approved transferee, possession of plot No.91-B ought to have been made over to him.

4

5. However, since the appellant was unable to obtain any relief from the respondents, he filed Civil Writ Petition No.17103 of 2003 before the High Court seeking directions upon the respondents to allot any alternative plot to the appellant in lieu of plot No.94-D in Balmik Nagar, Ludhiana. While disposing of the writ petition on 31st October, 2003, the High Court directed the respondents to pass an appropriate speaking order on the appellant's representation within four months from the date of the order upon production of a certified copy thereof. Pursuant to the said directions, the Chairman of the Trust heard the appellant on 11th February, 2004, but rejected his claim on the ground that although the plot in question had been allotted to Smt. Shammi Verma as a Local Displaced Person, she was not the owner of any portion of the land acquired by the Trust and was not a Displaced Person, which was the eligibility criteria for coming under 5 the Scheme. Even the subsequent change in the allotment was effected by an officer who was neither authorized nor entitled to do so.

6. The decision of the Chairman of the Trust was challenged by the appellant in Writ Petition No.11844 of 2004, wherein various reliefs were prayed for and in particular for restoration of plot No.91-B, Rajguru Nagar, Ludhiana. On being served with notice, the respondents herein filed their written statement on 23rd December, 2005, claiming that since the predecessor-in-interest of the appellant was ineligible for allotment of the plot in her name, the appellant could not get a better right than she enjoyed in respect of plot No.91-B subsequently offered to her in lieu of plot No.94-D.

7. The High Court dismissed the writ petition by holding that the appellant did not have any 6 independent right in the plot and as a transferee his fortunes depended on the fortunes of the transferor. The High Court having dismissed the civil writ petition, any claim made by the appellant either over plot No.94-D or plot No.94-B also stood rejected.

However, according to the appellant, since a mistake had been committed by the respondents themselves at the initial stage and various transactions had already taken place in respect of the plot in question, the cancellation of the allotment which stood transferred to the appellant with the permission of the Trust and its authorities, was unacceptable. However, as indicated hereinbefore, the said argument did not find favour with the High Court, which dismissed the writ petition, which has given rise to the present appeal.

8. On behalf of the appellant it was urged that the transfer effected in his favour with the approval of the Trust created an interest in 7 the plot in his favour which was independent of and not dependent on the allotment made in favour of Smt. Shammi Verma. It was urged that after the transfer was effected in his name on 11th May, 1989, a fresh right accrued in the appellant's favour and Smt. Verma ceased to have any interest in the plot thereafter and, in any event, she had no subsisting right in the plot on 14th August, 1989, when the allotment was cancelled.

9. It was also urged that the amounts deposited for allotment of the plot had yet to be refunded and if the respondents were determined to re-allot the plot on fresh terms, the appellant was willing to pay any additional amount that might be imposed to retain the plot or even for a fresh allotment in his name, in the special facts of the case.

10. The submissions made on behalf of the appellant were vehemently opposed on behalf of the 8 respondents and on their behalf it was maintained that since the predecessor-in- interest of the appellant, Smt. Shammi Verma, was not eligible for allotment of any plot under the Scheme, the allotment had been rightly terminated and the appellant could not derive any right thereto on account of the transfer made in his favour. According to the respondents, the appellant would have to sink or swim with the fortunes of his transferor as no independent right had been acquired by him by virtue of such transfer.

11. Having considered the submissions made on behalf of the respective parties and the materials on record, we are unable to accept the case as made out on behalf of the appellant. We agree with the Chairman of the Trust that notwithstanding the fact that the transfer of the plot in favour of the appellant had been duly approved by the Trust, the appellant did not acquire any independent right 9 in the plot and he only acquired whatever rights the transferor or the original allottee had therein. The position may have been different if after the transfer a fresh allotment had been made in favour of the appellant. The defect in the allotment made in Smt. Shammi Verma's favour, on account of her ineligibility to avail of the Scheme for rehabilitation of Locally Displaced Persons, was inherited by the appellant as her transferee. The view taken by the Chairman of the Trust in his order dated 11th February, 2004 and affirmed by the High Court, cannot be faulted. However, since the transfer was effected in the appellant's favour with the approval of the Trust before the allotment was cancelled, the appellant's case could have been treated differently in the special facts thereof. While the allotment of the plot was made in Smt. Verma's favour on 28th October, 1982, it was after almost seven years that the order of cancellation of such allotment was 10 passed by the Trust, during which period not only had the allotment been altered from one plot to another plot, but even the transfer in favour of the appellant had taken place.

12. We, accordingly, dispose of the appeal by modifying the judgment and order of the High Court dated 30th January, 2006, and the order of the Chairman, Improvement Trust, Ludhiana dated 11th February, 2004, and directing the said Chairman to reconsider the case of the appellant in the light of the submissions made on his behalf that he was willing to pay such additional amount as may be levied for a fresh allotment of the plot in question in his favour, after giving the appellant a reasonable opportunity of being heard, in the event the said plot has not been re-allotted in the meantime. Such consideration must be completed by the Chairman of the Trust within two months from the date of communication of this order and in the event the plot in question has not been re- allotted, the same shall not be re-allotted until a 11 decision is arrived at in terms of the directions given in this order.

13. In the facts of the case, the parties will bear their own costs.

_______________J.

(Altamas Kabir) _______________J.

TRUPTI K. PATEL & ANR. v. M/S. ROCKLINES CONSTRUCTIONS & ANR.

2009-08-29T06:32:00.000+01:00

Judgement CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. OF 2009 (D.No.15761 of 2007) Trupti K. Patel and Anr. ...Appellant(s) Versus M/s. Rocklines Constructions and Anr. ...Respondent(s) O R D E R Delay condoned.
Heard learned counsel for the parties.

By the impugned order, the National Consumer Disputes Redressal Commission (hereinafter referred to as `the National Commission') dismissed the original complaints as, in its opinion, the complainants were not "consumer" within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 (for short, `the Act') and Respondent No.1 was not a "service provider" within the meaning of Section 2(1)(o) of the Act. The point raised in this case is concluded by the judgment of this case in Faqir Chand Gulati vs. Uppal Agencies Private Limited and Another [2008 (10) SCC 345] in which this Court dealt with a case similar to that of the appellants and held that complaint is maintainable.

....2/- -2- In view of this, the appeals are allowed, impugned order is set aside and the matter is remitted to the National Commission for disposal of the complaints in accordance with law after giving opportunity of hearing to the parties.

As the complaint petitions were filed in the years 1998 and 1999, the National Commission is requested to dispose of the matter as expeditiously as possible.

......................J.

[B.N. AGRAWAL] ......................J.

[G.S. SINGHVI] New Delhi, January 05, 2009.

ORISSA ELECTRICITY REGULATORY COMMN. v. WESTERN ELECT.COMPANY OF ORISSA LTD.&ORS

2009-08-29T06:31:00.002+01:00

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.946 OF 2007 Orissa Electricity Regulatory Commission ...Appellant(s) Versus Western Electricity Company of Orissa Limited and Ors. ...Respondent(s) With Civil Appeal No.2309 of 2007 O R D E R Civil Appeal No.946 of 2007:
By an order dated 27th January, 2006, Orissa Electricity Regulatory Commission (for short `the Regulatory Commission') directed issue of notice to the respondents under proviso to Section 24(1) of the Electricity Act, 2003 (for short `the Act'), requiring them to file representations against proposed suspension of their licences. Simultaneously, the Regulatory Commission appointed three special officers to over see working of the respondents. The appeals filed by the respondents against that order were allowed by the Appellate Tribunal for Electricity (for short `the Appellate Tribunal') vide its order dated 13th December, 2006. The Appellate Tribunal set aside the order impugned in the appeals but observed that if the Regulatory Commission proposes to continue or initiate fresh action under Section 24 of the Act, then it shall do so strictly in accordance with the relevant statutory provisions and follow the procedure prescribed therein.

...2/- -2- We have heard the learned counsel for the parties and perused the record.

In our view, in the facts and circumstances of the case, the Regulatory Commission was justified in issuing notice to the respondents calling upon them to file representations against proposed suspension of their licences, but there was no warrant for appointment of special officers to over see their work. Therefore, the Appellate Tribunal had rightly annulled the appointment of the special officers.

However, it could not have set aside the order of the Regulatory Commission in its entirety without properly appreciating that only show cause notice had been issued to the respondents and final order was yet to be passed by the Regulatory Commission.

Accordingly, the appeal is allowed in-part. The impugned order of the Appellate Tribunal is quashed so far as it annuls the show cause notice issued by the Regulatory Commission under Section 24(1) of the Act. Now, it would be open to the respondents to file their representations/ objections before the Regulatory Commission, which shall proceed to decide the matter in accordance with law without being influenced by the observations made in the order impugned in these appeals.

Needless to say that we have not gone to the question as to whether while issuing notice under Section 24(1) of the Act proposing suspension of the licence, the Regulatory Commission could pass an order for appointment of special officer and this question is left to be decided in appropriate case.

...3/- -3- Civil Appeal No.2309 of 2007:

In view of the order passed in Civil Appeal No.946 of 2007, it is not necessary to pass any further order in this appeal, but we clarify that any observation made against the appellants in the impugned order shall not prejudice their cause before the Regulatory Commission.

......................J.

[B.N. AGRAWAL] ......................J.

[G.S. SINGHVI] New Delhi, January 05, 2009.

MANOJ MENON v. E.K.ABDUL HAMMED AND ORS.

2009-08-29T06:31:00.001+01:00

ORDER Leave granted.

Having heard the learned counsel for the parties, although we agree that the impugned judgment passed by the High Court suffers from no legal infirmity, but in the peculiar facts and circumstances of this case and, particularly, we having been taken through the entire records by the learned counsel for the parties, are of the opinion that the appellant may be given an opportunity before the High Court to argue the matter on merit of the appeal.

We make it clear that we have passed this order keeping in view the peculiar facts and circumstances of this case and, in particular, the relationship between the appellant, on the one hand, and the defendant No.2 and defendant No.3, on the other. We further make it clear that -2- we are passing this order in exercise of our discretionary jurisdiction under Article 142 of the Constitution of India with a view to do complete justice to the parties.

As a sum of Rs. 50 thousands has been deposited by the appellant in terms of the order passed by this Court on 3.4.2006, which amount, admittedly, has been withdrawn by the plaintiff-respondent No. 1, we are of the opinion that the said amount may be treated to be the costs payable by the appellant for the purpose condonation of delay.

The appellant, however, shall pay a further sum of Rs. 25 thousands to the plaintiff-respondent No.1 by way of costs of this appeal.

We would request the High Court to consider the desirability of disposing of the appeal as expeditiously as possible and preferably within a period of six weeks from the date of receipt of a copy of this order.

The appeal is disposed of with the aforementioned observation and direction.

..........................J (S.B. SINHA) ..........................J (V.S. SIRPURKAR) NEW DELHI, JANUARY 5, 2009.

M/S. CROSS COUNTRY HOTELS LTD. v. TOURISM FINANCE CORPN.OF INDIA LTD.&ORS.

2009-08-29T06:30:00.000+01:00

Having heard Mr. Altaf Ahmed, learned senior counsel appearing on behalf of the appellant and Mr. Dushyant Dave, learned senior counsel appearing on behalf of the respondents, with the consent of the parties, this appeal is disposed of with the following directions:

1. Respondents herein need not supply the appraisal reports for various projects of the appellant company.

-2-

2. The respondents herein shall produce for inspection of the learned counsel for the appellant, within four weeks, all other documents wherefor an application for production and discovery had been filed before the learned Debt Recovery Tribunal, New Delhi, being I.A. No. 186/2003.

3. It is directed that all such documents which are available with the respondents-Corporation shall be supplied to the appellant within two weeks thereafter.

Keeping in view the fact that the matter is pending for a long time, the Debt Recovery Tribunal is requested to dispose of the matter as expeditiously as possible.

With the aforementioned direction, the impugned judgment is set aside and the appeal is disposed of.

CIVIL APPEAL NO. 51/2009 [@ SLP(C) No.26738/2008] Leave granted.

This appeal is directed against the judgment and order dated 24th October, 2008 passed by a learned Single Judge of the High Court of Judicature of Rajasthan at Jaipur, in S.B. Civil Writ Petition No. 9609/2008, whereby and whereunder it was directed:

-3- "Meanwhile, operation of the office order dated 14.8.2008 (Anx.4) and 19.8.2008 (Anx.5) shall remain stayed. Further, in case the petitioner submits the notorised undertaking within a period of fifteen days from today, for payment of Rs. 10 lacs (Rupees ten lacs) per month for a period of one year, then the possession of the seized property shall be restored to the petitioner on depositing first installment of Rs. 10 lacs.

The remaining installments shall be paid by the 15th of each month, failing which the interim order shall stand vacated automatically without reference to this Court.

List in the month of December, 2008 for further orders."

In view of the order proposed to be passed by us we need not enter into the merit of the matter as the order as quoted above was passed ex-parte.

Mr. Dave, learned senior counsel appearing on behalf of the appellant submits that the possession of the Hotel in question had already been taken over on 22.8.2008.

Mr. Altaf Ahmed, learned senior counsel on the other hand, submits that the orders impugned before the High Court, being office orders dated 14.8.2008 and dated 19.8.2008, the said orders are ex-facie illegal and without jurisdiction and, furthermore, as the possession had been obtained by the -4- writ petitioner purportedly to be in terms of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and in that view of the matter the High Court cannot be said to have committed any error in passing the impugned order.

Be that as it may, by reason of the impugned judgment, the High Court has passed the ex-parte order in mandatory form.

By an order dated 25.11.2008, a Division Bench of this Court while issuing notice, directed status quo as on that date, to be maintained by all concerned. In that view of the matter, we are of the opinion that interest of justice would be subserved if the impugned judgment is set aside and the High Court be requested to hear out the matter afresh, after giving an opportunity of hearing to both the parties. It is directed accordingly.

While making the interim order dated 25.11.2008 passed by this Court absolute, we would request the High Court to hear out the parties and pass appropriate order as expeditiously as possible, preferably within a period of three weeks from the date of communication of this order.

-5- With the aforementioned observation and direction, this appeal is disposed of.

..........................J (S.B. SINHA) ..........................J (V.S. SIRPURKAR) NEW DELHI, JANUARY 5, 2009.

KAILASH NATH TRIPATHI v. KEDARNATH TEWARI & ORS.

2009-08-29T06:29:00.000+01:00

Leave granted.
By the impugned order, the High Court dismissed the second appeal on the ground that no substantial question of law is involved therein.

Having heard learned counsel for the parties and perused the records, we are of the opinion that the High Court was not justified in dismissing the second appeal on the ground that no substantial question of law was involved therein. In our view, the following substantial questions of law do arise in the second appeal before the High Court:

"[a] Whether the statement made by an advocate appearing on behalf of the plaintiff under Order X Rule 2 of the Code of Civil Procedure, 1908, could be treated to be an admission by the party?;

[b] Whether the finding of fact recorded by the First Appellate Court to the effect that passage from `Gha' to `Cha' in the map prepared by the Amin could not be treated as a public road as the passage ends at the `Ghari' [cattle shed] of the plaintiff was vitiated in law?"

...2/- -2- Accordingly, the appeal is allowed, impugned order rendered by the High Court is set aside and the matter is remitted to it for fresh disposal of the second appeal in accordance with law. Upon remand, the High Court shall issue notice to the respondents in the appeal and formulate aforesaid substantial questions of law.

It would be open to the High Court to formulate any other substantial question of law which it deems fit and proper.

......................J.

[B.N. AGRAWAL] ......................J.

[G.S. SINGHVI] New Delhi, January 05, 2009.

ADMN.OFFICER,MUNIC.SCHOOL BOARD,KAGAL v. K.T.K.K.S.& S.MANDAL & ORS.

2009-08-29T06:28:00.000+01:00

Leave granted.
2. The appellant is the Municipal School Board, Kagal, ('the Board', for short).

Sant Rohidas Vidyamandir, the fourth respondent, is one of the schools run by the Board. The said school, which was running classes from first to fourth standards, started fifth standard classes (Standard V Division) from the session 2007-2008. The first respondent, which runs a secondary school (V Standard to X Standard) in the Zila Parishad area adjoining the municipal area, filed W.P. No.8261/2007 seeking a direction to the State of Maharashtra, the appellant and the Deputy Director of Education, Kolhapur Region to close down the V Standard started in the fourth respondent school and a further direction not to grant any recognition or permission to the fourth respondent school to start Standard V Division. They also sought an interim direction restraining the fourth .......2.

-2- respondent school from running or continuing the V Standard classes. The first respondent contended that starting of the V Standard classes by the fourth respondent school was unauthorised and illegal.

3. In the said writ petition, the High Court, while issuing rule on 8.4.2008 issued an interim direction to the fourth respondent to close down the V Standard and transfer the students of V Standard to other schools as per the desire of the students and their guardians, and issue school leaving certificates to the students to enable them to get admissions in other authorised schools. The Deputy Director of Education and the petitioner were also directed by way of interim order to ensure that the V Standard classes opened by the fourth respondent was closed down and the students were transferred to other schools. The said interim order is challenged by the appellant Board which runs the fourth respondent school.

4. We find that the High Court has virtually allowed the writ petition by the interim order, that too by an irreversible peremptory direction that the students be shifted to other schools. The students were not parties before the High Court and they have been asked to take school leaving certificates from the fourth respondent school and shift to other schools. Such a peremptory irreversible step should not normally have been granted by way of interim relief, unless ......3.

-3- extraordinary or special circumstances exist. We find that there are no such special circumstances.

5. Learned counsel for the first respondent submitted that the fourth respondent was one of the feeder schools for the first respondent school, and if the fourth respondent runs classes from V Standard onwards, their admission will be affected. This contention, we are afraid, is not sound. The question is not whether first respondent is affected, but whether fourth respondent was doing something which was illegal and whether the first respondent had any right to complain.

6. Primary education is defined in Section 2(15) of the Bombay Primary Education Act, 1947 as meaning education in such subjects and upto such standards, as may be determined by the State Government from time to time. Primary education, therefore, does not mean education from first to fourth standards only, as contended by the first respondent.

7. The State Government has, in its counter filed before the High Court, clearly stated that as per the provisions of the Mumbai Primary Education Rule 1949 the Primary Education Boards of Municipal Council are empowered to open standards as natural growth in the primary schools being run by them, that ........4.

-4- the Primary Education Board had opened the V Standard classes in the fourth respondent school in pursuance of such natural growth and that no permission was required to open V Standard classes as natural growth in schools run by Municipal Board. It was further categorically stated that the Board was authorised to open V Standard as natural growth in the fourth respondent school and that was not unauthorised or illegal. We may also refer to the Government Resolution dated 14.11.1979 of the State Government relied on by the first respondent itself which says that classes V to VII may either be annexed to secondary schools or to primary schools run by local bodies. If that is so, primary schools run by Boards, prima facie, can run classes V to VII. Be that as it may. All that we are pointing out is there was absolutely no basis for the High Court at the stage of admission of the writ petition filed by the first respondent to assume that the starting of V Standard by the fourth respondent school was unauthorised or illegal and direct closure by way of interim relief.

8. We, therefore, allow this appeal, set aside the interim order. The fourth respondent school run by the appellant can, therefore, have V, VI and VII Standards, subject to the final decision in the writ petition. We are told that the issue as to whether Standards V to VII can be part of primary ......5.

-5- schools, is causing considerable confusion in the State. In view of it, we request the High Court to dispose of the Writ Petition expeditiously.

...........................J.

( R.V. RAVEENDRAN ) New Delhi; ...........................J.

STATE OF KERALA & ORS. v. MINI SHAMSUDIN & ANR.

2009-08-29T06:26:00.000+01:00

Heard learned counsel for the petitioner.

Delay condoned.

Leave granted.

In view of the decision of the Constitution Bench of this Court in Sunrise Associates vs. Govt. of NCT of Delhi & Ors reported in 2006 (5) SCC 603, we find no merit in this appeal which is accordingly dismissed. It need to be stated that this Court in the said case inter alia held as follows:

"We have noted earlier that all the statutory definitions of the word `goods' in the State Sales Tax Laws have uniformly excluded, inter alia, -2- actionable claims from the definition for the purpose of the Act. Were actionable claims etc., not otherwise includible in the definition of `goods' there was no need for excluding them. In other words, actionable claims are `goods' but not for the purpose of the Sales Tax Acts and but for this statutory exclusion, an actionable claim would be `goods' or the subject matter of ownership. Consequently, an actionable claim is movable property and `goods' in the wider sense of the term but a sale of an actionable claim would not be subject to the sales tax law.

xxxxxx xxxxxx xxxxx A lottery ticket has no value in itself. It is a mere piece of paper. Its value lies in the fact that it represents a chance or a right to a conditional benefit of winning a prize of a greater value than the consideration paid for the transfer of that chance. It is nothing more than a token or evidence of this right. The Court in H.Anraj, as we have seen, held that a lottery ticket is a slip of paper of memoranda evidencing the transfer of certain rights. We agree.

xxxxxxx xxxxxxx xxxxxx -3- The question is, what is this right which the ticket represents? There can be no doubt that on purchasing a lottery ticket, the purchaser would have a claim to a conditional interest in the prize money which is not in the purchaser's possession. The right would fall squarely within the definition of an actionable claim and would therefore be excluded from the definition of `goods' under the Sale of Goods Act and the Sales tax statutes."

....................J.

(Dr. ARIJIT PASAYAT) ...................J.

(ASOK KUMAR GANGULY) New Delhi, February 2, 2009.

Phillips v. Washington Legal Foundation

2009-08-24T05:23:00.000+01:00

SUPREME COURT OF THE UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Under Texas’ Interest on Lawyers Trust Account (IOLTA) program, an attorney who receives client funds must place them in a separate, interest-bearing, federally authorized “NOW” account upon determining that the funds “could not reasonably be expected to earn interest for the client or [that] the interest which might be earned … is not likely to be sufficient to offset the cost of establishing and maintaining the account, service charges, accounting costs and tax reporting costs which would be incurred in attempting to obtain the interest.” IOLTA interest income is paid to the Texas Equal Access to Justice Foundation (TEAJF), which finances legal services for low-income persons. The Internal Revenue Service does not attribute such interest to the individual clients for federal income tax purposes if they have no control over the decision whether to place the funds in the IOLTA account and do not designate who will receive the interest. Respondents-a public-interest organization having Texas members opposed to the IOLTA program, a Texas attorney who regularly deposits client funds in an IOLTA account, and a Texas businessman whose attorney retainer has been so deposited-filed this suit against TEAJF and the other petitioners, alleging, inter alia, that the Texas IOLTA program violated their rights under the Fifth Amendment, which provides that “private property” shall not “be taken for public use, without just compensation.” The District Court granted petitioners summary judgment, reasoning that respondents had no property interest in the IOLTA interest proceeds. The Fifth Circuit reversed, concluding that such interest belongs to the owner of the principal.

Held:

1. Interest earned on client funds held in IOLTA accounts is the “private property” of the client for Takings Clause purposes. The existence of a property interest is determined by reference to existing rules or understandings stemming from an independent source such as state law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577. All agree that under Texas law the principal held in IOLTA accounts is the client’s “private property.” Moreover, the general rule that “interest follows principal” applies in Texas. See Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 162. Petitioners’ contention that Webb’s does not control because examples such as income-only trusts and marital community property rules demonstrate that Texas does not, in fact, adhere to the general rule is rejected. These examples miss the point of Webb’s. Their exception by Texas from the “interest follows principal” rule has a firm basis in traditional property law principles, whereas petitioners point to no such principles allowing the owner of funds temporarily deposited in an attorney trust account to be deprived of the interest the funds generates. Petitioners’ further contention that “interest follows principal” in Texas only if it is allowed by law does not assist their cause. They do not argue that Texas law prohibits the payment of interest on IOLTA funds, but, rather, that interest actually “earned” by such funds is not the private property of the principal’s owner. Regardless of whether that owner has a constitutionally cognizable interest in the anticipated generation of interest by his funds, any interest that does accrue attaches as a property right incident to the ownership of the underlying principal. Petitioners’ final argument that the money transferred to the TEAJF is not “private property” because IOLTA funds cannot reasonably be expected to generate interest income on their own is plainly incorrect under Texas’ requirement that client funds be deposited in an IOLTA account “if the interest which might be earned” is insufficient to offset account costs and service charges that would be incurred in obtaining it. It is not that the funds to be placed in IOLTA accounts cannot generate interest, but that they cannot generate net interest. This Court has indicated that a physical item does not lack “property” status simply because it does not have a positive economic or market value. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, 437, n. 15. While IOLTA interest income may have no economically realizable value to its owner, its possession, control, and disposition are nonetheless valuable rights. See Hodel v. Irving, 481 U.S. 704, 715. The United States’ argument that “private property” is not implicated here because IOLTA interest income is “government-created value” is factually erroneous: The State does nothing to create value; the value is created by respondents’ funds. The Federal Government, through its banking and taxation regulations, imposes costs on this value if private citizens attempt to exercise control over it. Waiver of these costs if the property is remitted to the State hardly constitutes “government-created value.” In any event, this Court rejected a similar argument in Webb’s, supra, at 162. Pp. 6-14.

2. This Court leaves for consideration on remand the question whether IOLTA funds have been “taken” by the State, as well as the amount of “just compensation,” if any, due respondents. P. 14.

94 F. 3d 996, affirmed.

Rehnquist, C. J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, and Thomas, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.

Nix v. Whiteside

2009-08-24T05:22:00.002+01:00

SUPREME COURT OF THE UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

In preparing for his Iowa state court trial on a murder charge, respondent consistently told his attorney that, although he had not actually seen a gun in the victim's hand when he stabbed the victim, he was convinced that the victim had a gun. Respondent's companions who were present during the stabbing told counsel that they had not seen a gun, and no gun was found. Counsel advised respondent that the existence of a gun was not necessary to establish a claim of self-defense, and that only a reasonable belief that the victim had a gun nearby was necessary, even though no gun was actually present. However, during preparation for direct examination shortly before trial, respondent for the first time told counsel that he had seen "something metallic" in the victim's hand. When asked about this, respondent said: "If I don't say I saw a gun, I'm dead." On respondent's insisting that he would testify that he saw "something metallic," counsel told him that, if he testified falsely, it would be counsel's duty to advise the court that he felt respondent was committing perjury, and that counsel probably would be allowed to impeach that testimony and would seek to withdraw from representation if respondent insisted on committing perjury. Respondent ultimately testified as originally contemplated, admitting on cross-examination that he had not actually seen a gun in the victim's hand. After the jury found respondent guilty, respondent moved for a new trial, claiming that he had been deprived of a fair trial by counsel's admonitions not to state that he saw a gun or "something metallic." The court denied the motion after a hearing, and the Iowa Supreme Court affirmed the conviction, holding that counsel's actions were not only permissible, but were required under Iowa law. Respondent then sought federal habeas corpus relief, alleging that he had been denied effective assistance of counsel by his attorney's refusal to allow him to testify as he proposed. The District Court denied relief, but the Court of Appeals reversed, concluding that an intent to commit perjury, communicated to counsel, does not alter a defendant's right to effective assistance of counsel, and that counsel's threatened violation of his client's confidences violated the "effective representation" standards set forth in Strickland v. Washington, 466 U.S. 668. [p158]

Held: The Sixth Amendment right of a criminal defendant to assistance of counsel is not violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial. Pp. 164-176.

(a) Strickland v. Washington, supra, held that, to obtain relief by way of federal habeas corpus on a claim of a deprivation of effective assistance of counsel under the Sixth Amendment, the movant must establish both serious attorney error and prejudice. The Sixth Amendment inquiry is into whether the attorney's conduct was "reasonably effective." A court must be careful not to narrow the wide range of attorney conduct acceptable under the Sixth Amendment so restrictively as to constitutionalize particular standards of professional conduct, and thereby intrude into a state's proper authority to define and apply the standards of professional conduct applicable to those it admits to practice in its courts. Pp. 164-166.

(b) Counsel's conduct here fell within the wide range of professional responses to threatened client perjury acceptable under the Sixth Amendment. Counsel's duty of loyalty to, and advocacy of, the defendant's cause is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth. Although counsel must take all reasonable lawful means to attain his client's objectives, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law. Moreover, accepted norms require that a lawyer disclose his client's perjury and frauds upon the court. Iowa's Code also expressly permits withdrawal from representation as an appropriate response of an attorney when the client threatens to commit perjury. Pp. 166-171.

(c) The Court of Appeals' holding is not supported by the record, since counsel's action, at most, deprived respondent of his contemplated perjury. Whatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely, and the right to counsel includes no right to have a lawyer who will cooperate with planned perjury. There was no breach of professional duty in counsel's admonition to respondent that he would disclose respondent's perjury to the court. Pp. 171-175.

(d) As a matter of law, counsel's conduct here cannot establish the prejudice required for relief under the Strickland inquiry. The "conflict of interests" involved was one imposed on the attorney by the client's proposal to commit the crime of fabricating testimony. This is not the kind of conflict of interest that would render the representation constitutionally infirm. Pp. 175-176.

744 F.2d 1323, reversed. [p159]

BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 176. BLACKMUN, J., filed an opinion concurring in the judgment, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 177. STEVENS, J., filed an opinion concurring in the judgment, post, p. 190.

Supreme Court of New Hampshire v. Piper

2009-08-24T05:22:00.001+01:00

SUPREME COURT OF THE UNITED STATES

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

Appellee, a resident of Vermont, was allowed to take, and passed, the New Hampshire bar examination. But pursuant to Rule 42 of the New Hampshire Supreme Court, which limits bar admission to state residents, she was not permitted to be sworn in. After the New Hampshire Supreme Court denied appellee's request that an exception to the Rule be made in her case, she filed an action in Federal District Court, alleging that Rule 42 violates the Privileges and Immunities Clause of Art. IV, § 2, of the United States Constitution. The District Court agreed, and granted appellee's motion for a summary judgment. The Court of Appeals affirmed.

Held: Rule 42 violates the Privileges and Immunities Clause of Art. IV, § 2. Pp. 279-288.

(a) Derived, like the Commerce Clause, from the fourth of the Articles of Confederation, the Privileges and Immunities Clause was intended to create a national economic union.

[O]ne of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.

Toomer v. Witsell, 334 U.S. 385, 396. Moreover, although a lawyer is "an officer of the court," he does not hold a position that can be entrusted only to a "full-fledged member of the political community" and thus is not an "officer" of the State in any political sense. In re Griffiths, 413 U.S. 717. Therefore, a nonresident's interest in practicing law is a "privilege" protected by the Clause. Pp. 279-283.

(b) A State may discriminate against nonresidents only where its reasons are "substantial" and the difference in treatment bears a close or substantial relationship to those reasons. None of the reasons offered by appellant for its refusal to admit nonresidents to the bar -- nonresidents would be less likely to keep abreast of local rules and procedures, to behave ethically, to be available for court proceedings, and to do pro bono and other volunteer work in the State -- meets the test of "substantiality," and the means chosen do not bear the necessary relationship to the State's objectives. Pp. 284-287.

723 F.2d 110, affirmed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., [p275] joined. WHITE, J., filed an opinion concurring in the result, post, p. 288. REHNQUIST, J., filed a dissenting opinion, post, p. 289.

Butz v. Economou

2009-08-24T05:21:00.001+01:00

SUPREME COURT OF THE UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

After an unsuccessful Department of Agriculture proceeding to revoke or suspend the registration of respondent's commodity futures commission company, respondent filed an action for damages in District Court against petitioner officials (including the Secretary and Assistant Secretary of Agriculture, the Judicial Officer, the Chief Hearing Examiner who had recommended sustaining the administrative complaint, and the Department attorney who had prosecuted the enforcement proceeding), alleging, inter alia, that, by instituting unauthorized proceedings against him, they had violated various of his constitutional rights. The District Court dismissed the action on the ground that the individual defendants, as federal officials, were entitled to absolute immunity for all discretionary acts within the scope of their authority. The Court of Appeals reversed, holding that the defendants were entitled only to the qualified immunity available to their counterparts in state government.

Held:

1. Neither Barr v. Matteo, 360 U.S. 564, nor Spalding v. Vilas, 161 U.S. 483, supports petitioners' contention that all of the federal officials sued in this case are absolutely immune from any liability for damages even if, in the course of enforcing the relevant statutes, they infringed respondent's constitutional rights, and even if the violation was knowing and deliberate. Nor did either of those cases purport to abolish the liability of federal officers for actions manifestly beyond their line of duty; if they are accountable when they stray beyond the plain limits of their statutory authority, it would be incongruous to hold that they may nevertheless willfully or knowingly violate constitutional rights without fear of liability. Pp. 485-496.

2. Without congressional directions to the contrary, it would be untenable to draw a distinction for purposes of immunity law between suits brought against state officials under 42 U.S.C. § 1983 Scheuer v. Rhodes, 416 U.S. 232, and suits brought directly under the Constitution against federal officials, Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388. Federal officials should enjoy no greater zone of protection when they violate federal constitutional rules than do state officers. Pp. 496-504. [p479]

3. In a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to the qualified immunity specified in Scheuer v. Rhodes, supra, subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business. While federal officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law, there is no substantial basis for holding that executive officers generally may with impunity discharge their duties in a way that is known to them to violate the Constitution, or in a manner that they should know transgresses a clearly established constitutional rule. Pp. 504-508.

4. Although a qualified immunity from damages liability should be the general rule for executive officials charged with constitutional violations, there are some officials whose special functions require a full exemption from liability. Pp. 508-517.

(a) In light of the safeguards provided in agency adjudication to assure that the hearing examiner or administrative law judge exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency, the risk of an unconstitutional act by one presiding at the agency hearing is clearly outweighed by the importance of preserving such independent judgment. Therefore, persons subject to these restraints and performing adjudicatory functions within a federal agency are entitled to absolute immunity from damages liability for their judicial acts. Pp. 508-514.

(b) Agency officials who perform functions analogous to those of a prosecutor must make the decision to move forward with an administrative proceeding free from intimidation or harassment. Because the legal remedies already available to the defendant in such a proceeding provide sufficient checks on agency zeal, those officials who are responsible for the decision to initiate or continue a proceeding, subject to agency adjudication are entitled to absolute immunity from damages liability for their parts in that decision. Pp. 515-516.

(c) There is no substantial difference between the function of an agency attorney in presenting evidence in an agency hearing and the function of the prosecutor who brings evidence before a court, and, since administrative agencies can act in the public interest only if they can adjudicate on the basis of a complete record, an agency attorney who arranges for the presentation of evidence on the record in the course of an adjudication is absolutely immune from suits based on the introduction of such evidence. Pp. 516-517.

5. The case is remanded for application of the foregoing principles [p480] to the claims against the particular petitioner-defendants involved. P. 517.

535 F.2d 688, vacated and remanded.

WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed an opinion, concurring in part and dissenting in part, in which BURGER, C.J., and STEWART and STEVENS, JJ., joined, post, p. 517.

Primus

2009-08-24T05:19:00.000+01:00

SUPREME COURT OF THE UNITED STATES

Appellant, a practicing lawyer in South Carolina who was also a cooperating lawyer with a branch of the American Civil Liberties Union (ACLU), after advising a gathering of women of their legal rights resulting from their having been sterilized as a condition of receiving public medical assistance, informed one of the women in a subsequent letter that free legal assistance was available from the ACLU. Thereafter, the disciplinary Board of the South Carolina Supreme Court charged and determined that appellant, by sending such letter, had engaged in soliciting a client in violation of certain Disciplinary Rules of the State Supreme Court, and issued a private reprimand. The court adopted the Board's findings and increased the sanction to a public reprimand.

Held: South Carolina's application of its Disciplinary Rules to appellant's solicitation by letter on the ACLU's behalf violates the First and Fourteenth Amendments. NAACP v. Button, 371 U.S. 415, followed; Ohralik v. Ohio Bar Assn., post, p. 447, distinguished. Pp. 421-439.

(a) Solicitation of prospective litigants by nonprofit organizations that engage in litigation as "a form of political expression" and "political association" constitutes expressive and associational conduct entitled to First Amendment protection, as to which government may regulate only "with narrow specificity," Button, supra at 429, 431, 433. Pp. 422-425.

(b) Subsequent decisions have interpreted Button as establishing the principle that "collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment," United Transportation Union v. Michigan Bar, 401 U.S. 576, 585, and have required that "broad rules framed to protect the public and to preserve respect for the administration of justice" must not work a significant impairment of "the value of associational freedoms," Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 222. P. 426.

(c) Appellant's activity in this case comes within the generous zone of protection reserved for associational freedoms because she engaged in solicitation by mail on behalf of a bona fide, nonprofit organization that pursues litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public. There is nothing in the record to suggest that the ACLU [p413] or its South Carolina affiliate is an organization dedicated exclusively to providing legal services, or a group of attorneys that exists for the purpose of financial gain through the recovery of counsel fees, or a mere sham to evade a valid state rule against solicitation for pecuniary gain. Pp. 426-432.

(d) The Disciplinary Rules in question, which sweep broadly, rather than regulating with the degree of precision required in the context of political expression and association, have a distinct potential for dampening the kind of "cooperative activity that would make advocacy of litigation meaningful," Button, supra at 438, as well as for permitting discretionary enforcement against unpopular causes. P. 433.

(e) Although a showing of potential danger may suffice in the context of in-person solicitation for pecuniary gain under the decision today in Ohralik, appellant may not be disciplined unless her activity in fact involved the type of misconduct at which South Carolina's broad prohibition is said to be directed. P. 434.

(f) The record does not support appellee's contention that undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, or lay interference actually occurred in this case. And the State's interests in preventing the "stirring up" of frivolous or vexatious litigation and minimizing commercialization of the legal profession offer no further justification for the discipline administered to appellant. Pp. 434-437.

(g) Nothing in this decision should be read to foreclose carefully tailored regulation that does not abridge unnecessarily the associational freedom of nonprofit organizations, or their members, having characteristics like those of the ACLU. Pp. 438-439.

268 S.C. 259, 233 S.E.2d 301, reversed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and STEVENS, JJ., joined, and in all but the first paragraph of Part VI of which MARSHALL, J., joined. BLACKMUN, J., filed a concurring opinion, post, p. 439. MARSHALL, J., filed an opinion concurring in part and concurring in the judgment, post, p. 468. REHNQUIST, J., filed a dissenting opinion, post, p. 440. BRENNAN, J., took no part in the consideration or decision of the case. [p414]

Ex parte Garland

2009-08-24T05:18:00.000+01:00

SUPREME COURT OF THE UNITED STATES

1. The act of Congress of January 24th, 1865, providing that, after its passage, no person shall be admitted as an attorney and counselor to the bar of the Supreme Court, and, after March 4th, 1865, to the bar of any Circuit or District Court of the United States, or Court of Claims, or be allowed to appear and be heard by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed to the oath prescribed in the act of July 2d, 1862 -- which latter act requires the affiant to swear or affirm that he has never voluntarily borne arms against the United States since he has been a citizen thereof, that he has voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto, that he has neither sought nor accepted, nor attempted to exercise the functions of any office whatever under any authority or pretended authority in hostility to the United States, and that he has not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States hostile or inimical thereto -- operates as a legislative decree excluding from the practice of the law in the courts of the United States all parties who have offended in any of the particulars enumerated.

2. Exclusion from the practice of the law in the Federal courts, or from any of the ordinary avocations of life for past conduct is punishment for such conduct. The exaction of the oath is the mode provided for ascertaining the parties upon whom the act is intended to operate.

3. The act being of this character partakes of the nature of a bills of pains and penalties, and is subject to the constitutional inhibition against the passage of bills of attainder, under which general designation bills of pains and penalties are included.

4. In the exclusion which the act adjudges, it imposes a punishment for some of the acts specified which were not punishable at the time they were committed, and for other of the acts, it adds a new punishment to that before prescribed, and it is thus within the inhibition of the Constitution against the passage of an ex post facto law.

5. Attorneys and counselors are not officers of the United States; they are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair private character.

6. The order of admission is the judgment of the court that the parties possess the requisite qualifications and are entitled to appear as attorneys and counselors and conduct causes therein. From its entry, the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded. Their admission and their exclusion are the exercise of judicial power. [p334]

7. The right of an attorney and counselor, acquired by his admission, to appear for suitors and to argue causes, is not a mere indulgence -- a matter of grace and favor -- revocable at the pleasure of the court, or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.

8. The admitted power of Congress to prescribe qualifications for the office of attorney and counselor in the Federal courts cannot be exercised as a means for the infliction of punishment for the past conduct of such officers, against the inhibition of the Constitution.

9. The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control.

10. A pardon reaches the punishment prescribed for an offence and the guilt of the offender. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights. It gives him a new credit and capacity. There is only this limitation to its operation: it does not restore offices forfeited, or property of interests vested in others in consequence of the conviction and judgment.

11. The petitioner in this case, having received a full pardon for all offences committed by his participation, direct or implied, in the Rebellion, is relieved from all penalties and disabilities attached to the offence of treason, committed by such participation. For that offence, he is beyond the reach of punishment of any kind. He cannot, therefore, be excluded by reason of that offence from continuing in the enjoyment of a previously acquired right to appear as an attorney and counselor in the Federal courts.

On the 2d of July, 1862, Congress, by "An act to prescribe an oath of office, and for other purposes," [n1] enacted:

That hereafter every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, take and subscribe the following oath or affirmation:

I, A. B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to [p335] persons engaged in armed hostility thereto; that I have neither sought nor accepted, not attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution with the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God;

&c.

Any person who shall falsely take the said oath shall be guilty of perjury, and, on conviction, in addition to the penalties now prescribed for that offence, shall be deprived of his office, and rendered incapable forever after of holding any office or place under the United States.

On the 24th of January, 1865, [n2] Congress passed a supplementary act extending these provisions so as to embrace attorneys and counselors of the courts of the United States. I t is as follows:

No person, after the date of this act, shall be admitted to the bar of the Supreme Court of the United States, or at any time after the fourth of March next, shall be admitted to the bar of any Circuit or District Court of the United States, or of the Court of Claims, as an attorney or counselor of such court, or shall be allowed to appear and be heard in any such court, by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed the oath prescribed in "An act to prescribe an oath of office and for other purposes," approved July 2d, 1862. And any person who shall falsely take the said oath shall be guilty of perjury, and, on conviction,

&c.

By the Judiciary Act of 1789, the Supreme Court has power to make rules and decide upon the qualifications of attorneys.

At the December Term of 1860, A. H. Garland, Esquire, was admitted as an attorney and counselor of the court, and took and subscribed the oath then required. The second rule, as it then existed, was as follows: [p336]

It shall be requisite to the admission of attorneys and counselors to practise in this court that they shall have been such for three years past in the Supreme Courts of the States to which they respectively belong, and that their private and professional character shall appear to be fair.

They shall respectively take the following oath or affirmation, viz.:

I, A. B., do solemnly swear (or affirm, as the case may be) that I will demean myself as an attorney and counselor of this court, uprightly, and according to law, and that I will support the Constitution of the United States.

There was then no other qualification for attorneys in this court than such as are named in this rule.

In March, 1865, this rule was changed by the addition of a clause requiring an oath, in conformity with the act of Congress.

At the same term at which he was admitted, Mr. Garland appeared, and presented printed argument in several cases in which he was counsel. His name continued on the roll of attorneys from then to the present time. but the late Rebellion intervened, and all business in which he was concerned at the time of his admission remained undisposed of. In some of the cases alluded to, fees were paid, and in others, they were partially paid. Having taken part in the Rebellion against the United States by being in the Congress of the so-called Confederate States from May, 1861, until the final surrender of the forces of such Confederate States -- first in the lower house and afterwards in the Senate of that body as the representative of the State of Arkansas, of which he was a citizen -- Mr. Garland could not take the oath prescribed by the acts of Congress before mentioned and the rule of the court of March, 1865.

The State, in May, 1861, passed an ordinance of secession, purporting to withdraw herself from the Union, and afterwards, in the same year, by another ordinance, attached herself to the so-called Confederate States.

In July, 1865, Mr. Garland received from the President [p337] a pardon, by which the chief magistrate, reciting that Mr. Garland, "by taking part in the late Rebellion against the government, had made himself liable to heavy pains and penalties," &c., did thereby

Grant to the said A. H. Garland a FULL PARDON AND AMNESTY for all offences by him committed, arising from participation, direct or implied, in the said Rebellion, conditioned as follows: this pardon to begin and take effect from the day on which the said A. H. Garland shall take the oath prescribed in the proclamation of the President, dated May 29th, 1865, and to be void and of no effect if the said A. H. Garland shall hereafter at any time acquire any property whatever in slaves, or make use of slave labor, and that he first pay all costs which may have accrued in any proceedings hitherto instituted against his person or property. And upon the further condition that the said A. H. Garland shall notify the Secretary of State in writing that he has received and accepted the foregoing pardon.

The oath required was taken by Mr. Garland and annexed to the pardon. It was to the purport that he would thenceforth

faithfully support, protect, and defend the Constitution of the United States and the union of the States thereunder, and that he would in like manner abide by and faithfully support all laws and proclamations which had been made during the existing Rebellion with reference to the emancipation of slaves.

Mr. Garland now produced this pardon, and, by petition filed in court, asked permission to continue to practise as an attorney and counselor of the court, without taking the oath required by the act of January 24th, 1865, and the rule of the court. He rested his application principally upon two grounds:

1st. That the act of January 24th, 1865, so far as it affected his status in the court, was unconstitutional and void, and,

2d. That, if the act were constitutional, he was released from compliance with its provisions by the pardon of the President. [p374]

Barron v. Mayor & City Council of Baltimore

2009-08-01T15:20:00.000+01:00

ON WRIT OF ERROR TO THE COURT OF APPEALS FOR THE WESTERN SHORE OF THE STATE OF MARYLAND

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Argued: --- Decided:

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The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.

The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally and necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.

This case was instituted by the plaintiff in error, against the City of Baltimore, under its corporate title of "The Mayor and City Council of Baltimore," to recover damages for injuries to the wharf property of the plaintiff, arising from the acts of the corporation. Craig & Barron, of whom the plaintiff was survivor, were owners of an extensive and highly productive wharf in the eastern section of Baltimore, enjoying, at the period of their purchase of it, the deepest water in the harbor. The city, in the asserted exercise of its corporate authority over the harbor, the paving of streets, and regulating grades for paving, and over the health of Baltimore, diverted from their accustomed and natural course certain streams of water which flow from the range of hills bordering the city, and diverted them, partly by adopting new grades of streets, and partly by the necessary results of paving, and partly by mounds, [p244] embankments and other artificial means purposely adapted to bend the course of the water to the wharf in question. These streams becoming very full and violent in rains, carried down with them from the hills and the soil over which they ran large masses of sand and earth, which they deposited along, and widely in front of the wharf of the plaintiff. The alleged consequence was that the water was rendered so shallow that it ceased to be useful for vessels of an important burden, lost its income, and became of little or no value as a wharf. This injury was asserted to have been inflicted by a series of ordinances of the corporation, between the years 1815 and 1821; and that the evil was progressive; and that it was active and increasing even at the institution of this suit in 1822.

At the trial of the cause in the Baltimore county court, the plaintiff gave evidence tending to prove the original and natural course of the streams, the various works of the corporation from time to time to turn them in the direction of this wharf, and the ruinous consequences of these measures to the interests of the plaintiff. It was not asserted by the defendants, that any compensation for the injury was ever made or proffered, but they justified under the authority they deduced from the charter of the city, granted by the legislature of Maryland, and under several acts of the legislature conferring powers on the corporation in regard to the grading and paving of streets, the regulation of the harbor and its waters, and to the health of the city. They also denied, that the plaintiff had shown any cause of action in the declaration, asserting that the injury complained of was a matter of public nuisance, and not of special or individual grievance in the eye of the law. This latter ground was taken on exception, and was also urged as a reason for a motion in arrest of judgment. On all points, the decision of Baltimore county court was against the defendants, and a verdict for $4,500 was rendered for the plaintiff. An appeal was taken to the court of appeals, which reversed the judgment of Baltimore county court, and did not remand the case to that court for a further trial. From this judgment, the defendant in the court of appeals prosecuted a writ of error to this court. [p245]

The counsel for the plaintiff presented the following points: the plaintiff in error will contend that apart from the legislative sanctions of the state of Maryland, and the acts of the corporation of Baltimore, holding out special encouragement and protection to interests in wharves constructed on the shores of the Patapsco river, and particularly of the wharf erected by Craig and the plaintiff, Barron; the right and profit of wharfage, and use of the water at the wharf, for the objects of navigation, was a vested interest and incorporeal hereditament, inviolable even by the state except on just compensation for the privation; but the act of assembly and the ordinance of the City are relied on as enforcing the claim to the undisturbed enjoyment of the right.

This right was interfered with, and the benefit of this property taken away from the plaintiff by the corporation avowedly, as the defence showed, for public use, for an object of public interest -- the benefit more immediately of the community of Baltimore, the individuals, part of the population of Maryland, known by the corporate title of the Mayor and City Council of Baltimore. The "inhabitants" of Baltimore are thus incorporated by the Acts of 1796, ch. 68. As a corporation, they are made liable to be sued, and authorized to sue, to acquire and hold and dispose of property and, within the scope of the powers conferred by the charter, are allowed to pass ordinance and legislative acts, which it is declared by the charter shall have the same effect as acts of assembly, and be operative, provided they be not repugnant to the laws of the state, or the constitution of the state, or of the United States. The plaintiff will contend accordingly:

1. That the Mayor and City Council of Baltimore, though viewed even as a municipal corporation, is liable for tort and actual misfeasance, and that it is a tort, and would be so even in the state, acting in her immediate sovereignty to deprive a citizen of his property, though for public uses, without indemnification; that, regarding the corporation as acting with the delegated power of the state, the act complained of is not the less an actionable tort.

2. That this is the case of an authority exercised under a [p246]

State, the corporation appealing to the legislative acts of Maryland for the discretional power which it has exercised.

3. That this exercise of authority was repugnant to the constitution of the United States, contravening the fifth article of the amendments to the constitution, which declares that "private property shall not be taken for public use, without just compensation," the plaintiff contending, that this article declares principles which regulate the legislation of the states for the protection of the people in each and all the states, regarded as citizens of the United States or as inhabitants subject to the laws of the Union.

4. That under the evidence, prayers, and pleadings in the case, the constitutionality of this authority exercised under the state must have been drawn in question, and that this court has appellate jurisdiction of the point, from the judgment of the Court of Appeals of Maryland, the highest court of that state, that point being the essential ground of the plaintiff's pretention in opposition to the power and discussion of the corporation.

5. That this court, in such appellate cognisance, is not confined to the establishment of an abstract point of construction, but is empowered to pass upon the right or title of either party, and may therefore determine all points incidental or preliminary to the question of title and necessary in the course to that inquiry; that consequently, the question is for this court's determination whether the declaration avers actionable matter, or whether the complaint is only of a public nuisance, and on that head, the plaintiff will contend, that special damage is fully shown here, within the principle of the cases where an individual injury resulting from a public nuisance is deemed actionable, the wrong being merely public only so long as the law suffered in the particular case is no more than all members of the community suffer.

Upon these views, the plaintiff contends that the judgment of the court of appeals ought to be reversed. [p247]

Buck v. Bell

2009-08-01T15:19:00.000+01:00

1. The Virginia statute providing for the sexual sterilization of inmates of institutions supported by the State who shall be found to be afflicted with an hereditary form of insanity or imbecility, is within the power of the State under the Fourteenth Amendment. P. 207.

2. Failure to extend the provision to persons outside the institutions named does not render it obnoxious to the Equal Protection Clause. P. 208.

ERROR to a judgment of the Supreme Court of Appeals of the State of Virginia which affirmed a judgment ordering [p201] the Superintendent of the State Colony of Epileptics and Feeble Minded to perform the operation of salpingectomy on Carrie Buck, the plaintiff in error. [p205]

Griswold v. Connecticut

2009-08-01T15:17:00.000+01:00

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT

Appellants, the Executive Director of the Planned Parenthood League of Connecticut, and its medical director, a licensed physician, were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife's use. A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception. Appellants claimed that the accessory statute, as applied, violated the Fourteenth Amendment. An intermediate appellate court and the State's highest court affirmed the judgment.

Held:

1. Appellants have standing to assert the constitutional rights of the married people. Tileston v. Ullman, 318 U.S. 44, distinguished. P. 481.

2. The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights. Pp. 481-486.