DALIT ONLINE – e News Weekly
Spreading the light of humanity & freedom
Editor: Nagaraja.M.R.. Vol.15..Issue.25......23 / 06 / 2019
PIL - Godhra Carnage & Cover ups
IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION
CRIMINAL WRIT PETITION NO. OF 2019
IN THE MATTER OF
NAGARAJA . M.R
editor DALIT ONLINE ,
# LIG 2 , No 761 ,, HUDCO First Stage , Laxmikantanagar ,
Hebbal , Mysore – 570017 , Karnataka State
.
....Petitioner
Versus
Cabinet Secretary GOI
Cabinet Secretary Government of Gujarat
& Others
....Respondents
PETITION UNDER ARTICLE 12 to ARTICLE 35 & ARTICLE 51A OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS UNDER ARTICLE 32 & ARTICLE 226 OF THE CONSTITUTION OF INDIA.
To ,
All Honourable Judges ,
Supreme Court of India ,
New Delhi.
The Humble petition of the Petitioner above named.
MOST RESPECTFULLY SHOWETH :
1. Facts of the case:
"Power will go to the hands of rascals, , rogues and freebooters. All Indian leaders will be of low calibre and men of straw. They will have sweet tongues and silly hearts. They will fight among themselves for power and will be lost in political squabbles . A day would come when even air & water will be taxed." Sir Winston made this statement in the House of Commons just before the independence of India & Pakistan. Sadly , the forewarning of Late Winston Churchill has been proved right by some of our criminal , corrupt public servants.
2. Godhra train carnage committed on innocent karsevaks by rowdy muslim elements must be severely punished.
3. In the same way Gujarath riots committed by rowdy hindu elements must be severely punished.
4. Persons who openly spoke truth, who professionally investigated the cases , who professionally judged the cases were silenced by murder or by dismissal, jail sentence.
5. To cover up a crime , series if crimes were committed. Godhra carnage , Gujarath riots , Haren pandya murder , fake encounters of tulsiram prajapati , sohrabuddin , his wife , Judge Loya murder , Police officer Rai's dismissal , Sanjiv Bhatt's dismissal and jail term are all inter related.
6. Presiding judges of these cases failed to uphold justice out of fear or for favor.
2. Question(s) of Law:
Are criminals behind Godhra carnage and Gujarath riots above law ?
3. Grounds:
Requests for equitable justice , Accountability of judges.
4. Averment:
Before law common man , minister , beggar , judge are all equal and must be treated as equals.
Respect for judiciary has been eroded by improper actions of few unfit judges not from media or the public. If judges respect law in letter & spirit by their actions then automatically public will respect judiciary.
Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the concerned public servants in the following cases to perform their duties.
PRAYER:
In the above premises, it is prayed that this Hon'ble Court may be pleased:
(i) Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the concerned public servants in the following cases to perform their duties.
(ii) to pass such other orders and further orders as may be deemed necessary on the facts and in the circumstances of the case.
3. To provide protection to families of police officers rai , sanjiv butt and Judge Loya.
4. To institute a transparent impartial investigations into Godhra Carnage , Gujarath riots and it's cover ups as a whole.
5. To reopen cases filed by police officers Rai , Sanjiv Bhatt.
6. To reopen Judge Loya Murder case.
FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL BE DUTY BOUND, EVER PRAY.
Dated : 23rd June 2019……………………………………….. FILED BY: NAGARAJA.M.R.
Place : Mysuru , India………………………….. PETITIONER-IN-PERSON
Sanjiv Bhatt Case: In 16 Years, Gujarat Saw 180 Custodial Deaths – and Zero Convictions
Law enforcement in Gujarat left no stone unturned to ensure Bhatt was incarcerated. That deviates significantly from the norm.
Police escort former IPS officer Sanjiv Bhatt to Jamnagar Sessions Court, where he was sentenced to life imprisonment, on June 20. Photo: PTI
The Wire Staff
RIGHTS
21/JUN/2019
New Delhi: While Sanjiv Bhatt’s sentence to life imprisonment in a 1990 custodial death case has raised questions once again on the consequences of the IPS officer’s claims about Narendra Modi’s role in the 2002 riots, a Times of India report has shown that Gujarat isn’t in the habit of punishing other policemen accused of the same crime.
The report highlights, with the help of data accessed from the National Crime Records Bureau, that as many as 180 custodial deaths took place in Gujarat between 2001 and 2016 (the last year for which numbers are available). However, no police personnel have been punished for any of these deaths in this time.
The countrywide numbers are even worse — only 26 policemen have been convicted for 1,557 custodial deaths, most from Uttar Pradesh.
Notwithstanding the dire need for accountability in the police force, the figures draw attention to the context in which Bhatt (along with another policeman, Pravinsinh Zala) was found guilty in a case that is nearly 30 years old.
Also read: We Must Recognise That Discrimination Plays a Large Role in Custodial Torture
The 1990 custodial death case
Bhatt’s case dates back to November 1990, when he had detained several people (the numbers vary between 110 and 150 in different reports) for rioting in Jamjodhpur town on the day of a Bharat Bandh, called to coincide with the end of Bharatiya Janata Party veteran L.K. Advani’s rath yatra. The 1988-batch IPS officer, who was then additional superintendent of police of Jamnagar district, had been send to Jamjodhpur by then superintendent of police, T.S. Bisht, Indian Express has reported.
Among those detained was one Prabhudas Vaishnani, who was released on bail after nine days and allegedly died ten days after his release, while undergoing treatment in a hospital. His brother, Amrutlal, had then filed a complaint alleging custodial torture against Bhatt and eight other policemen. To Express, Amrutlal said that Prabhudas was a farmer and not responsible for rioting at all.
Cognisance of the case had been taken by a magistrate in 1995, but its trial had been stayed by the Gujarat high court till 2011, when the stay was vacated.
A week ago, last Wednesday, the Supreme Court had refused to entertain Bhatt’s plea seeking to examine 11 additional witnesses in the case. The former policeman had moved the apex court claiming that while nearly 300 witnesses had been listed by prosecution in the case, only 32 were actually examined. Many crucial witnesses, including three policemen who were a part of the team which investigated the offence, were left out, he had claimed.
The Gujarat government had termed Bhatt’s move a “tactic to delay the trial”.
A report released by Human Rights Watch in 2016 revealed that 591 people had died in police custody in India between 2010 and 2015 alone, according to official data. Representational image. Photo: Steven Depolo/Flickr (CC BY 2.0)
Incriminating numbers
In what is no great testament to either the legal system or the concept of accountability in Indian law enforcement, the narrative surrounding custodial deaths until now has largely focused on the lack of action taken against police personnel. A much talked about report released by Human Rights Watch in 2016 revealed that 591 people had died in police custody in India between 2010 and 2015 alone, according to official data. Police, the report revealed, were loath to follow arrest procedures, their impunity bolstered by a system that allows them to blame such deaths in custody “on suicide, illness, or natural causes.”
While the NCRB data considered by TOI for their report does not mention figures relevant to the period during which the custodial death for which Bhatt has been convicted took place, a 1992 Amnesty International report on the issue in India quoted 415 custodial deaths in the country between 1985 and 1991. The report notes that within that period, only two cases of action having been taken in situations of custodial violence had come within the purview of the surveyors.
Also Read: Gujarat Police Officer Who Probed Sohrabuddin Shaikh Case Suspended
The first was for a case of the rape of a tribal women in 1986. A Supreme Court commission investigating the allegation found sufficient evidence to conclude that four police officers and two doctors could be charged with “having hatched the conspiracy for destroying the evidence and thereby keeping the accused constables from being prosecuted in a court of law”.
“The most recent case known to Amnesty International resulted in a Gujarat High Court judgment on October 23, 1991; six police officers were sentenced to six years’ imprisonment for beating Kantuji Mohansinh to death in 1982 and destroying the evidence of their offence. The same police officers had previously been acquitted in May 1983 but, in the only such case known to Amnesty International, the state appealed against that judgment to the court which set aside the acquittal and convicted the police officers.”
Indeed, like the Amnesty report suggests, the untold custom is that of the state government championing the cause of its police in cases of custodial violence or deaths. Which brings us back to the particular escape from custom seen in Bhatt’s case.
Why Bhatt?
Gujarat law enforcement’s efforts in stripping Bhatt of his powers, sacking him, taking him into custody for a 22-year-old drug possessions case and arguing for his life imprisonment in the custodial death case can be considered particularly insistent.
His wife Shweta, in an interview to The Wire, had alleged likewise and detailed extraordinary steps taken to particularly humiliate and corner Bhatt and his family. Their security cover was allegedly withdrawn without prior intimation, agency officials allegedly walked into their bedroom as Shweta was asleep seeking to question her husband, and the municipal corporation allegedly sent labourers to demolish ‘illegal structures’ in their 23-year-old house.
Also read: The Death of Amrit Das and the Search for Foreigners in Assam
The alleged harassment began in 2011, when Bhatt filed an affidavit in the Supreme Court claiming to have attended a meeting on the eve of the 2002 Gujarat riots. He alleged that Modi, who was then chief minister and is now prime minister, at the meeting asked senior IPS officers to to let Hindus “vent out their anger against Muslims” in the aftermath of the Godhra train carnage.
In the affidavit, he also alleged that it was discussed in the meeting that the bodies of the Hindu pilgrims who had died in the Sabarmati Express would be brought to Ahmedabad before being cremated. Senior police officials had, according to Bhatt, then advised against this as they feared it would incite religious violence.
Several police officers investigating the 2002 violence and the series of alleged fake encounters have reportedly been targeted by the Gujarat government and continue to face consequences of their involvement even now. Some of the officers targeted were Rahul Sharma and R.B. Sreekumar, who like Bhatt had deposed before the Nanavati Commission regarding the government’s culpability in the riots. Satish Verma, part of the SIT probing the Ishrat Jahan encounter case and Kuldip Sharma, who pursued a corruption case which involved Amit Shah, were also reported targeted.
In late 2018, a Rajnish Rai, a Gujarat cadre IPS officer who was the first investigator in the Sohrabuddin Shaikh fake encounter case, was suspended by the Ministry of Home Affairs.
Gujarat Police Officer Who Probed Sohrabuddin Shaikh Case Suspended
Rajnish Rai arrested top-cop D.G. Vanzara in connection with the encounter and had numerous run-ins with the Gujarat and Central governments.
Gujarat IPS officer Rajnish Rai.
The Wire Staff
GOVERNMENT
RIGHTS
21/DEC/2018
New Delhi: A special Central Bureau of Investigation court on Friday acquitted all 22 accused in the Sohrabuddin Shaikh fake encounter case. A day earlier, Rajnish Rai, a Gujarat cadre IPS officer who was the first investigator in the case, was suspended by the Ministry of Home Affairs.
Rai arrested high-profile officers such as D.G. Vanzara in the fake encounter case. He also investigated corruption in the Uranium Corporation of India in Jharkhand and filed an internal report stating that an encounter in Assam was staged.
Also read: All 22 Accused Acquitted in Sohrabuddin Shaikh Fake Encounter Case
A 1992 batch officer, he is serving central deputation, heading the Counter Insurgency and Anti-Terrorism (CIAT) School of the Central Reserve Police Force (CRPF) at Chittoor in Andhra Pradesh.
Rai, 52, sought voluntary retirement in August this year and wrote to the MHA saying he may be considered deemed to have resigned from the service. The Centre rejected his plea. He had stopped attending office after applying for VRS. The suspension order was issued because of his absence.
Rai has challenged the MHA’s rejection of his VRS before a Central Administrative Tribunal in Ahmedabad.
According to The Hindu, the MHA order states disciplinary proceeding were initiated against Rai in “connection with his unauthorized handing over the charge of IG & Principal, CIAT School, CRPF, Chittoor and abdication of office on 30.11.2018.” It adds that until he is under suspension, Rai cannot leave Chittoor without the permission of the CRPF’s director-general.
The order was delivered to Rai’s Vadodara residence. According to The Hindu, Rai marked his protest while receiving the suspension order. He wrote, “The order of suspension by MHA, GOI is absolutely illegal and unconstitutional as I have retired from service as for operations of law and rules after office hours on on 30.11.2018.”
Sohrabuddin Shaikh
Sohrabuddin Shaikh investigation
Rai was the first investigating officer in the fake encounters of Sohrabuddin Shaikh, his wife Kausar Bi and Shaikh’s aide Tulsiram Prajapati. In 2007, as the deputy inspector general (DIG) of the Gujarat CID’s crime branch, Rai arrested top cops D.G. Vanjara and Rajkumar Pandian of the Gujarat cadre and Dinesh M.N. of the Rajasthan cadre as key accused.
The case was then handed over to the CBI under the Supreme Court’s guidelines. During the CBI’s investigation, several high-profile accused in the case, including Amit Shah and the three officers arrested by Rai, were discharged. The 22 people acquitted by the special CBI court on Friday were mostly low-level police cadre.
After the case was handed over to the CBI, the Gujarat government downgraded his annual confidential report, an annual appraisal system within the civil services. Rai appealed before a Central Administrative Tribunal, which stayed the downgrading. The state government later rectified his record in 2011.
Uncovering corruption in Jharkhand
In August 2014, soon after the Bharatiya Janata Party (BJP), led by Narendra Modi, came to power at the Centre, Rai was transferred out of Gujarat. He was posted as the chief vigilance officer (CVO) of the Uranium Corporation of India Ltd (UCIL) in Jadugoda, Jharkhand.
Here, he submitted a report to the CBI stating that he had uncovered massive corruption and irregularities. The report said the “work of removal of overburden/waste and extraction of uranium ore at Banduhurang opencast mine” was awarded in a corrupt manner. Sadbhav Engineers Ltd, an Ahmedabad-based engineering company, was awarded the contract through an open tender despite a Delhi-based firm quoting Rs 46 crore less.
Also read: The Gujarat Government’s Attempt to Target a Police Officer Has Backfired, Badly
Bizarrely, the department chargesheeted him for conducting an unauthorised probe. He was accused of acting “without due approval from the competent authority”.
He once again approached the Central Administrative Tribunal, which later stayed the inquiry against him for probing alleged “misconduct by CMD and functional director, Uranium Corporation of India Ltd (UCIL), Jaduguda, in Jharkhand without permission.”
Former Gujarat Police Officer, D.G. Vanzara. Credit: PTI
Transferred again
In April 2015, Rai was once again transferred, this time to the CRPF at Shillong. Two years later, in April 2017, he filed an internal report saying the March 30 encounter in Assam’s Chirang district, which killed two people, was “staged”.
The details of the report were published by the media and the home ministry initiated an inquiry, suspecting Rai was the source of the leak.
Also read: It’s Time to Recall the Other Gujarat Model
In June 2017, Rai was abruptly transferred to the Counter Insurgency and Anti Terrorism (CIAT) School of the CRPF in Chittoor in Andhra Pradesh.
In August 2018, Rai sought early retirement, which the Centre rejected.
Several other Gujarat police officers also hounded
During Modi’s reign as the chief minister of Gujarat, several police officers investigating the 2002 violence and the series of alleged fake encounters were targeted by the state government.
Some of the officers targeted were Rahul Sharma, R.B. Sreekumar and Sanjeev Bhatt, who deposed before the Commission of Inquiry regarding the government’s culpability in the 2002 riots. Rai, Satish Verma, part of the SIT probing the Ishrat Jahan encounter case and Kuldip Sharma, who pursued a corruption case which involved Amit Shah, were also targeted.
Lawyer Sarim Naved, writing for The Wire, said:
All these police officers who took on difficult cases against the government were first sought to be targeted during the course of their investigations. Almost all of them were denied promotion on the grounds of flimsy departmental chargesheets and had to approach the Central Administrative Tribunal for simple things like promotion. … What is odd about the treatment meted out to all these officers was that the attacks against them by the government have been so uniform. The pattern is the same. Denial of promotion, resurrection of old cases, filing of flimsy departmental chargesheets and an absurd criminal case or two.
Sanjiv Bhatt was arrested in September this year in connection with a 22-year-old drug seizure case. His bail plea was rejected earlier this month.
How Has the Supreme Court Fared During the Modi Years?
After five years of Modi rule, we see the Supreme Court timid, tentative, fragmented and vulnerable; wary of hurting the central executive which has grown mighty in strength.
The Supreme Court. Credit: PTI
Manu Sebastian
LAW
POLITICS
12/APR/2019
The Supreme Court of India grew considerably in power and stature during the two decades since 1990, earning the epithet “the most powerful court in the world”. During this period, the Supreme Court conferred on itself the primacy in judicial appointments through the invented system of ‘collegium’, and substantially expanded its judicial review powers to intervene in several issues which were traditionally reserved for the executive. The weapon of “continuing mandamus” was sharpened by the Court, using which it passed orders and formulated guidelines on issues of social welfare, environment protection, electoral reforms etc.
The growth in power of the apex court was in tune with the corresponding decline in the assertiveness of central executive, which was mostly stitched together by hotchpotch alliances. The apex court emerged as the last bastion of hope in the eyes of public, who were disillusioned with political executive. The judiciary was seen as playing an activist role to compensate the inaction of the executive, which was perceived to be weak, compromised and corrupt.
But the 2014 elections changed the scenario. For the first time in past 30 years, the electorate returned a mandate with absolute majority. And for the first time after donning the activist-reformist role, the judiciary was encountering a government, which was strong on its feet in terms of numbers.
Has the Supreme Court been able to assert its independence in the face of new found assertiveness exhibited by the Central government? The answer cannot be an emphatic yes, as will be explained through the following issues.
Judicial appointments
The bitter experiences of Indira Gandhi-era, where judges were appointed, transferred and superseded at the whims of the executive, forced the judiciary to think of a solution to guard its independence. The Collegium system of judges appointing judges with a subdued role for the executive was the answer found by it.
However, post-2014, there has been a considerable shift in the power dynamics over judicial appointments.
Immediately after coming to power, the NDA government sought to establish who will get to call the final shots over judicial appointments. Giving no hoots about established conventions, the central government split up collegium recommendations to reject the proposal for elevation of senior advocate Gopal Subramanium. The then CJI R.M. Lodha responded strongly to this act of the Centre, and wrote to the law minister that the government should not adopt such “unilateral segregation” in the future.
However, Gopal Subramanium’s abrupt withdrawal of consent avoided a possible escalation of the confrontation between the two. He said that he was targeted for his role as amicus curiae in the Sohrabuddin fake encounter case.
Former Chief Justice R.M. Lodha. Credit: PTI/Files
With the intent of wresting the primacy over judicial appointments from judiciary, the government soon brought in an amendment to the Constitution to create ‘National Judicial Appointments Commission'(NJAC). The amendment had a very short life, as within 10 months, it was struck down by a constitution bench of the Supreme Court by a 4:1 majority. Rather than constitutional wisdom, what is discernible in the majority judgment is the anxiety of the judiciary to preserve its own primacy in judicial appointments. The judgment acknowledged that the collegium system needed reforms, and said that a new Memorandum of Procedure (MoP) for judges appointment was to be formulated
Ever since the striking down of Constitutional amendment introducing NJAC, things have not been very smooth between the Centre and the Collegium. Union minister Arun Jaitley lashed out at the NJAC judgment terming it “tyranny of the unelected”. The major bone of contention between the two wings was the finalisation of MoP for appointment of judges.
Because of the stand-off between the government and the Collegium about MoP finalisation, judicial appointments got delayed. The Centre dragged its feet on the Collegium recommendations regarding judges’ appointments and transfers, leading to a spike in unfilled vacancies in high courts across the country. Many high courts such as the ones in Calcutta and Karnataka are now functioning with half the sanctioned strength, and lawyers have resorted to strike calling for filling up of vacancies.
In 2016, the Centre’s delay in processing the Collegium recommendations caused much anguish to the then CJI T.S. Thakur. While speaking at a public function in which PM Narendra Modi was also attending, CJI Thakur made an emotional appeal to the Centre to act promptly on judicial appointments and, in fact, broke down to tears during his speech. Neither his criticism nor the tears could move the government.
Chief Justice of India T.S. Thakur. Credit: PTI
This period witnessed the Centre gradually establishing its one-upmanship regarding judicial appointments. The Centre wore brazenness on its sleeve while sending back the recommendation for elevation of Justice K.M. Joseph.
This pattern was followed in cases of controversial transfers of Justice Rajeev Shakdher, Justice Jayant Patel and Justice A.M. Kureshi (discussed in more detail in this article). Coincidentally, all these judges had at one of point of time in their judicial career passed verdicts adverse to the interests of the powerful establishment.
Another recurring trend was that of Centre ignoring the recommendations reiterated by the Collegium, blatantly violating the settled law that once a name is re-recommended by the Collegium, it is binding on the government (the instances are detailed in this article).
One can also see a consistent pattern of sitting over files, splitting up recommendations and selective acceptances of names by the Centre over the past five years. In some cases, files were kept pending for several months; while in some cases, the Centre acted within 48 hours of recommendation by the Collegium.
The Supreme Court has appeared confused and helpless in responding to the repeated snubs from the government on collegium recommendations. It has signalled its protests, but to not much avail. Former CJIs Lodha, Thakur, and Khehar have been very active in voicing concerns in this regard. The present CJI Ranjan Gogoi has also conveyed to the Centre his unhappiness over delay. However, the Centre has been giving a cold shoulder to these concerns.
Questionable verdicts in cases involving political stakes
The pre-2014 apex court was not hesitant in going against the Central executive in matters involving high political stakes. This was evident in the 2G licenses cancellation cases and coal scam cases. Though the coal-gate case verdict was delivered in September 2014 after the coming of NDA government, its hearings took place in the last leg of UPA-II, during which the court passed several oral remarks (including the now famous “CBI is caged parrot” remark), badly stinging the government. The interventions of the court drew a lot of cheers from the media and public, which hailed judiciary as a crusader against corruption and misgoverance.
But post-2014, the SC presented a meeker version when it came to dealing with cases which could prick the political interests of the ruling party. The verdicts in politically charged cases such as Sahara-Birla, Loya, Bhima-Koregaon, Rafale, Aadhaar etc have invited a lot of criticism that when it comes to taking on the system, the Court acts hesitant.
Sahara-Birla papers case
The first one of such challenges was posed by the Sahara-Birla papers case. It was a PIL filed by the NGO Common Cause seeking a court monitored probe in respect of documents retrieved by the Income Tax department while raiding offices of the Sahara and Birla group of companies, which allegedly had entries suggesting giving crores of rupees as bribe to Narendra Modi and other BJP leaders.
The writ petitioner sought registration of FIR and court monitored probe, based on the dictum in Lalithakumari’s case that registration of FIR is mandatory when a complaint revealing cognizable offence is lodged.
The bench of Justices Arun Mishra and Amitava Roy dismissed the petition. But it was not a simple dismissal. The court aborted the issue once and for all, by declaring that the “materials in question are not good enough to constitute offences to direct registration of FIR”. The court could have simply dismissed the case, asking the petitioner to avail other statutory remedies. Instead, the court went on to adjudicate the merits of the matter, and held that the diary entries are not admissible in evidence as per Section 34 of the Evidence Act. The admissibility of the documents is not an issue which is to be looked into at the stage of investigation.
That issue arises only during the trial of the case. Only a full-fledged investigation can unearth other materials which can substantiate entries in the documents. Therefore, to abort investigation on the ground that documents are not admissible in evidence is like putting the cart before the horse. To decide whether to order investigation, the Supreme Court applied the yardstick of a trial court with regard to admissibility of evidence. The judgment appeared to be against the well established legal principle that for registration of FIR, allegation of cognizable offence is sufficient.
The Court’s approach was in stark distinction with its earlier approach adopted in the 2G case, where a court monitored probe was ordered on the basis of materials produced by the petitioner-NGO.
Loya case
Similar thing happened in the Loya case too, which was equally controversial with high political stakes. The case pertained to suspicions raised about the death of CBI judge B.H. Loya, who was hearing the Sohrabuddin encounter case in which BJP chief Amit Shah faced conspiracy allegations.
Not only did the Court dismiss the petitions seeking independent probe into judge Loya’s death, but the court conclusively held that he died of natural causes. Constitutional lawyer Gautam Bhatia has commented that the judgment “reads like a trial court judgment that has been delivered without a trial”. The judgement authored by Justice D.Y. Chandrachud (for the bench of himself, CJI Dipak Misra and Justice Khanwilkar) placed unverified trust on the statements of judicial officers, who had said that Loya had died of natural causes.
The court refused to allow the cross-examination of those judicial officers. The court ought to have seen that the petitioners’ were praying for an independent investigation, and for ordering an investigation, it was enough to raise reasonable suspicion of commission of offence. There is no need to establish the offence with all materials for seeking an investigation. But all the questions were shut down with the “discreet enquiry report” produced by the state government, which was opposing the investigation tooth and nail.
Judge B.H. Loya. Credit: Facebook
The judgement, with its constant invocation of the theory that judicial officers will not make false statements, fails to satisfy an inquisitive and discerning mind. The conclusive findings are arrived at without following any fair process. The court ought to have borne in mind that it was closing the issue forever by its conclusive findings. Therefore, it was ethically incumbent on the court to hear the views of all stake-holders, like the family members of Judge Loya, reporters of the Caravan magazine who brought out the issue, etc before putting a permanent quietus to the issue. But such considerations of fairness and transparency were totally ignored by the SC.
Bhima Koregaon
The Bhima Koregaon case related to a PIL filed by Romila Thapar and four other eminent persons seeking SIT investigation over the UAPA charges against five activists Sudha Bhardwaj, Gautam Navlakha, Vernon Gonsalves, Varavara Rao and Arun Ferreira on the ground that investigation by Maharashtra police was biased. The case was dismissed by 2:1 majority, with the dissent of Justice Chandrachud.
While the majority opinion of the then CJI Dipak Misra and Justice Khanwilkar endorsed the probe by Maharashtra police, Justice Chandrachud disagreed saying that it was a case of arrest targeting political dissent. The majority opinion omitted from consideration certain facts which acted as heavy influencers in the dissent of Justice D.Y. Chandrachud.
While the majority opinion is on set of facts ‘A’, the dissenting opinion is on set of facts ‘A+B’. The majority opinion does not care to state why the additional facts ‘B’, which caused the dissent, are not applicable or totally irrelevant for consideration. The majority was blissfully blind to those facts!
The dismissal of the case gave momentum to the ‘urban naxal’ narrative tailored by anti-constitutional propagandists to label those who question government policies.
Rafale case
In the Rafale case too, the approach of the court was not above criticism. While declining to order probe into corruption allegations over the deal by citing the limited scope of judicial review over defence deals, the court declared that decision making process was proper, accepting the government’s version on pricing and concluding that government did not interfere in selection of Reliance as offset partner.
To analyse the issue whether the alleged procedural irregularities in the deal gave raise to doubts of corruption, which warrant a court-monitored probe, there was no need to review the merits of the deal.
However, the court went on to do that. When there are conflicting versions of facts presented by two sides, the proper course would have been to entrust the job of facts collection to an independent agency. Instead, the court took the denial of one of the contesting parties at face value and sealed the issues with a seemingly conclusive force.
Chief Justice of India Ranjan Gogoi. Credit: PTI
However, the court soon landed itself in embarrassment, as the government said that the judgment contained factual errors and required correction. The observations in the judgment regarding CAG tabling a report on the pricing details of the deal, and Parliamentary Accounts Committee verifying the same were termed as a misunderstanding of the information supplied by the government to the court in a sealed cover.
Since the court has decided to give a detailed hearing in open court to the review petitions, it is inappropriate to comment more. The court has decided to consider the review petition on merits, rejecting the objections of Centre against use of ‘privileged’ documents produced by petitioners in evidence.
CBI-Alok Verma
CBI-Alok Verma was a case of justice delayed. The case presented a straightforward question: whether divesting Alok Verma of the powers of CBI director amounted to his removal from the post, which needed sanction of the High Powered Selection Committee as per the Delhi Special Police Establishment Act. The CJI-led bench initially sought for the details of the corruption allegations against Verma in sealed cover. Later, the court chose to restrict itself to the point of need for sanction from Selection Committee, without touching on the merits of allegations.
When the court directed his reinstatement on January 10, it was too late, as Verma had only three weeks left in his term. The reinstatement was made subject to the sanction of Selection Committee.
Anyhow, the delay in the case ensured that the powers that wanted Verma out of the director post succeeded in doing so without facing legal consequences.
Aadhaar Act as a Money Bill
Another problematic decision delivered by the SC is the Aadhaar judgment, where it accepted that there was no illegality in introducing Aaadhaar Act as a money bill.
The majority judgment by Justice A.K. Sikri held that since Section 7 of the Act said that Aadhaar based identity authentication will be done for delivering of subsidies, benefits or services charged on the consolidated fund of India, it could be introduced as a money Bill. This incidental connection with consolidated fund of India qualified it as a money Bill, as per majority opinion. This is a highly puzzling logic.
Fie photo of Justice A K Sikri. Credit: PTI
As per Article 110 of the Constitution, a money Bill can have provisions only relating to the spending and receiving of money by the Union government. The manner in which identity of a person is authenticated before delivery of subsidies, services, benefits cannot be a concern of money Bill.
Criticising the judgment, Alok Prasanna Kumar wrote in The Wire:
A money bill has provisions only relating to the spending and receiving of money by the Union government. Nowhere does the majority judgement grapple with the meaning of this crucial word. Nowhere does it cite case law on the meaning of the word “only” and its implications for a clause such as this. Nowhere does it make the effort to segregate the provisions of the Aadhaar to see which ones would fall within the scope of Article 110.
Justice Chandrachud dissented and described the passing of Aadhaar Act as money Bill a “fraud on constitution”.
This judgment of the Constitution Bench will have far reaching consequences in legislative process, as it will embolden the government to completely bypass the Rajya Sabha by introducing any bill as a money bill by citing some remote connection with the consolidated fund of India.
Challenge to demonetisation, electoral bonds: No timely hearing
Another emerging trend seen in SC was the evasion of decision by delaying the hearing of highly controversial matters.
After the announcement of demonetisation in November 2016, several petitions were filed in SC challenging the decision. The petitions had raised substantial legal points such as whether the decision was unilaterally announced by the Government without the proper consultation of RBI Board. On November 25, 2016, the SC agreed to examine the constitutionality of the decision; Many of such concerns are found to be relevant in the light of post demonetisation-revelations and current status of economy. Anyhow, the petitions never got an effective hearing.
A poster at a store. Credit: Reuters
Similar was the fate of the petitions challenging electoral bonds scheme. These petitions were filed soon after the passing of Finance Act 2017, which introduced the legislative amendments for the scheme. However, the case became alive only by March 2019, by which time most of the electoral bonds have been purchased. The failure to consider these cases timely is a grave concern, as the Election Commission of India itself has come on record saying that the scheme has dangerous impact on transparency in political funding.
Executive interference in judicial administration?
Another disturbing concern is that of the revelations by judges regarding executive interference in administrative matters of judiciary such as appointment and constitution of benches.
Supreme Court judge Jasti Chelameswar along with Justice Ranjan Gogoi during a press conference in New Delhi on January 12. Credit: PTI/Ravi Choudhary
Hints regarding this was dropped at the historic press conference held by four senior judges on January 12, 2018. Justice Chelameswar, who did most of the talking at the presser, said that administration of justice was not in order and that “many things which are less than desirable have happened in the last three months”.
The judges handed over to media a letter written by them to the then CJI Dipak Misra, which, among other things, stated that “cases having far-reaching consequences for the nation and judiciary were selectively assigned to benches of preference without any rational basis”.
More clarity on this issue was provided by Justice Kurian Jospeh, who in a post-retirement interview to Times of India said that there was “outside influence” in judiciary.
“Someone from outside was controlling the CJI(former CJI Dipak Misra).There were several instances of external influences on the working of the Supreme Court relating to allocation of cases to benches headed by select judges and appointment of judges to the Supreme Court and high courts. Starkly perceptible signs of influence with regard to allocation of cases to different benches, to select who were perceived to be politically biased.”
Justice Kurian Joseph. Credit: LiveLaw
In this backdrop, it has to be borne in mind that the allocation of Loya case to the bench headed by Justice Arun Mishra (who headed the bench in the Sahara-Birla case) was one of the sudden trigger for the press conference. The case was later heard by a bench headed by CJI.
Justice Chelameswar has also made similar comments, while calling for a full court meeting to discuss government interference in appointments. To block the elevation of judge Krishna Bhatt to Karnataka HC, the central government had directly written to the then CJ of Karnataka HC Justice Dinesh Maheswari (now elevated to SC). Condemning such practice of the Centre directly communicating with the High Courts, Justice Chelameswar asserted that “bonhomie” between the judiciary and the government “sounds the death knell to democracy”
Judiciary left battered and enfeebled
Emboldened by its brute majority, the Modi government has embarked on open confrontation with the judiciary over several matters. The collision course with the political wing over five years has left the judiciary battered and enfeebled. Coupled with it, the controversies emanating from the court (medical college bribery case, master of roster issue, impeachment motion against former CJI Dipak Misra) made it look like a divided house and resulted in the erosion of moral authority it once enjoyed among public.
Prime Minister Narendra Modi at a dinner hosted by Chief Justice of India Ranjan Gogoi on November 25, 2018.
At the same time, it will be an overstatement to say that the Supreme Court did not exhibit its reformist spirit to uphold constitutional values during this period. Subdued it may have been; but not totally extinguished.
In matters concerning civil liberties where there are no political stakes involved, the Court has adopted a progressive stand, expanding the transformative vision of the Constitution. This was clear in privacy case, Sabarimala case, and also judgments striking down Section 66A IT Act, Section 377 & 497 IPC.
To its credit, the court got the government to appoint the Lokpal, though belatedly, after a long inaction of five years. The Constitutional Bench judgment in Delhi-LG case is also notable, as it gave primacy to the decision of the elected government in Delhi, resisting the attempts of the central government to control it through LG. However, on the issue of who has the power to control services in Delhi, the SC could not reach a decision, and the matter stands referred to larger bench.
The midnight intervention of the court in the Karnataka assembly case, which ensured that proper democratic conventions will be followed in government formation, is also commendable.
But these instances are little rays of home amidst dense clouds of scepticism generated over independence of judiciary.
To sum up, after five years of Modi rule, we see the Supreme Court timid, tentative, fragmented and vulnerable, wary of hurting the central executive which has grown mighty in strength.
Edited, printed , published owned by NAGARAJA.M.R. @ # LIG-2 No 761,
HUDCO FIRST STAGE , OPP WATER WORKS , LAXMIKANTANAGAR , HEBBAL
,MYSURU – 570017 KARNATAKA INDIA Cell : 91 8970318202
WhatsApp 91 8970318202
Home page :
http://eclarionofdalit.dalitonline.in/ ,
https://dalit-online.blogspot.com/
Contact : editor@dalitonline.in , editor.dalitonline@gmail.com
Spreading the light of humanity & freedom
Editor: Nagaraja.M.R.. Vol.15..Issue.25......23 / 06 / 2019
PIL - Godhra Carnage & Cover ups
IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION
CRIMINAL WRIT PETITION NO. OF 2019
IN THE MATTER OF
NAGARAJA . M.R
editor DALIT ONLINE ,
# LIG 2 , No 761 ,, HUDCO First Stage , Laxmikantanagar ,
Hebbal , Mysore – 570017 , Karnataka State
.
....Petitioner
Versus
Cabinet Secretary GOI
Cabinet Secretary Government of Gujarat
& Others
....Respondents
PETITION UNDER ARTICLE 12 to ARTICLE 35 & ARTICLE 51A OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS UNDER ARTICLE 32 & ARTICLE 226 OF THE CONSTITUTION OF INDIA.
To ,
All Honourable Judges ,
Supreme Court of India ,
New Delhi.
The Humble petition of the Petitioner above named.
MOST RESPECTFULLY SHOWETH :
1. Facts of the case:
"Power will go to the hands of rascals, , rogues and freebooters. All Indian leaders will be of low calibre and men of straw. They will have sweet tongues and silly hearts. They will fight among themselves for power and will be lost in political squabbles . A day would come when even air & water will be taxed." Sir Winston made this statement in the House of Commons just before the independence of India & Pakistan. Sadly , the forewarning of Late Winston Churchill has been proved right by some of our criminal , corrupt public servants.
2. Godhra train carnage committed on innocent karsevaks by rowdy muslim elements must be severely punished.
3. In the same way Gujarath riots committed by rowdy hindu elements must be severely punished.
4. Persons who openly spoke truth, who professionally investigated the cases , who professionally judged the cases were silenced by murder or by dismissal, jail sentence.
5. To cover up a crime , series if crimes were committed. Godhra carnage , Gujarath riots , Haren pandya murder , fake encounters of tulsiram prajapati , sohrabuddin , his wife , Judge Loya murder , Police officer Rai's dismissal , Sanjiv Bhatt's dismissal and jail term are all inter related.
6. Presiding judges of these cases failed to uphold justice out of fear or for favor.
2. Question(s) of Law:
Are criminals behind Godhra carnage and Gujarath riots above law ?
3. Grounds:
Requests for equitable justice , Accountability of judges.
4. Averment:
Before law common man , minister , beggar , judge are all equal and must be treated as equals.
Respect for judiciary has been eroded by improper actions of few unfit judges not from media or the public. If judges respect law in letter & spirit by their actions then automatically public will respect judiciary.
Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the concerned public servants in the following cases to perform their duties.
PRAYER:
In the above premises, it is prayed that this Hon'ble Court may be pleased:
(i) Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the concerned public servants in the following cases to perform their duties.
(ii) to pass such other orders and further orders as may be deemed necessary on the facts and in the circumstances of the case.
3. To provide protection to families of police officers rai , sanjiv butt and Judge Loya.
4. To institute a transparent impartial investigations into Godhra Carnage , Gujarath riots and it's cover ups as a whole.
5. To reopen cases filed by police officers Rai , Sanjiv Bhatt.
6. To reopen Judge Loya Murder case.
FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL BE DUTY BOUND, EVER PRAY.
Dated : 23rd June 2019……………………………………….. FILED BY: NAGARAJA.M.R.
Place : Mysuru , India………………………….. PETITIONER-IN-PERSON
Sanjiv Bhatt Case: In 16 Years, Gujarat Saw 180 Custodial Deaths – and Zero Convictions
Law enforcement in Gujarat left no stone unturned to ensure Bhatt was incarcerated. That deviates significantly from the norm.
Police escort former IPS officer Sanjiv Bhatt to Jamnagar Sessions Court, where he was sentenced to life imprisonment, on June 20. Photo: PTI
The Wire Staff
RIGHTS
21/JUN/2019
New Delhi: While Sanjiv Bhatt’s sentence to life imprisonment in a 1990 custodial death case has raised questions once again on the consequences of the IPS officer’s claims about Narendra Modi’s role in the 2002 riots, a Times of India report has shown that Gujarat isn’t in the habit of punishing other policemen accused of the same crime.
The report highlights, with the help of data accessed from the National Crime Records Bureau, that as many as 180 custodial deaths took place in Gujarat between 2001 and 2016 (the last year for which numbers are available). However, no police personnel have been punished for any of these deaths in this time.
The countrywide numbers are even worse — only 26 policemen have been convicted for 1,557 custodial deaths, most from Uttar Pradesh.
Notwithstanding the dire need for accountability in the police force, the figures draw attention to the context in which Bhatt (along with another policeman, Pravinsinh Zala) was found guilty in a case that is nearly 30 years old.
Also read: We Must Recognise That Discrimination Plays a Large Role in Custodial Torture
The 1990 custodial death case
Bhatt’s case dates back to November 1990, when he had detained several people (the numbers vary between 110 and 150 in different reports) for rioting in Jamjodhpur town on the day of a Bharat Bandh, called to coincide with the end of Bharatiya Janata Party veteran L.K. Advani’s rath yatra. The 1988-batch IPS officer, who was then additional superintendent of police of Jamnagar district, had been send to Jamjodhpur by then superintendent of police, T.S. Bisht, Indian Express has reported.
Among those detained was one Prabhudas Vaishnani, who was released on bail after nine days and allegedly died ten days after his release, while undergoing treatment in a hospital. His brother, Amrutlal, had then filed a complaint alleging custodial torture against Bhatt and eight other policemen. To Express, Amrutlal said that Prabhudas was a farmer and not responsible for rioting at all.
Cognisance of the case had been taken by a magistrate in 1995, but its trial had been stayed by the Gujarat high court till 2011, when the stay was vacated.
A week ago, last Wednesday, the Supreme Court had refused to entertain Bhatt’s plea seeking to examine 11 additional witnesses in the case. The former policeman had moved the apex court claiming that while nearly 300 witnesses had been listed by prosecution in the case, only 32 were actually examined. Many crucial witnesses, including three policemen who were a part of the team which investigated the offence, were left out, he had claimed.
The Gujarat government had termed Bhatt’s move a “tactic to delay the trial”.
A report released by Human Rights Watch in 2016 revealed that 591 people had died in police custody in India between 2010 and 2015 alone, according to official data. Representational image. Photo: Steven Depolo/Flickr (CC BY 2.0)
Incriminating numbers
In what is no great testament to either the legal system or the concept of accountability in Indian law enforcement, the narrative surrounding custodial deaths until now has largely focused on the lack of action taken against police personnel. A much talked about report released by Human Rights Watch in 2016 revealed that 591 people had died in police custody in India between 2010 and 2015 alone, according to official data. Police, the report revealed, were loath to follow arrest procedures, their impunity bolstered by a system that allows them to blame such deaths in custody “on suicide, illness, or natural causes.”
While the NCRB data considered by TOI for their report does not mention figures relevant to the period during which the custodial death for which Bhatt has been convicted took place, a 1992 Amnesty International report on the issue in India quoted 415 custodial deaths in the country between 1985 and 1991. The report notes that within that period, only two cases of action having been taken in situations of custodial violence had come within the purview of the surveyors.
Also Read: Gujarat Police Officer Who Probed Sohrabuddin Shaikh Case Suspended
The first was for a case of the rape of a tribal women in 1986. A Supreme Court commission investigating the allegation found sufficient evidence to conclude that four police officers and two doctors could be charged with “having hatched the conspiracy for destroying the evidence and thereby keeping the accused constables from being prosecuted in a court of law”.
“The most recent case known to Amnesty International resulted in a Gujarat High Court judgment on October 23, 1991; six police officers were sentenced to six years’ imprisonment for beating Kantuji Mohansinh to death in 1982 and destroying the evidence of their offence. The same police officers had previously been acquitted in May 1983 but, in the only such case known to Amnesty International, the state appealed against that judgment to the court which set aside the acquittal and convicted the police officers.”
Indeed, like the Amnesty report suggests, the untold custom is that of the state government championing the cause of its police in cases of custodial violence or deaths. Which brings us back to the particular escape from custom seen in Bhatt’s case.
Why Bhatt?
Gujarat law enforcement’s efforts in stripping Bhatt of his powers, sacking him, taking him into custody for a 22-year-old drug possessions case and arguing for his life imprisonment in the custodial death case can be considered particularly insistent.
His wife Shweta, in an interview to The Wire, had alleged likewise and detailed extraordinary steps taken to particularly humiliate and corner Bhatt and his family. Their security cover was allegedly withdrawn without prior intimation, agency officials allegedly walked into their bedroom as Shweta was asleep seeking to question her husband, and the municipal corporation allegedly sent labourers to demolish ‘illegal structures’ in their 23-year-old house.
Also read: The Death of Amrit Das and the Search for Foreigners in Assam
The alleged harassment began in 2011, when Bhatt filed an affidavit in the Supreme Court claiming to have attended a meeting on the eve of the 2002 Gujarat riots. He alleged that Modi, who was then chief minister and is now prime minister, at the meeting asked senior IPS officers to to let Hindus “vent out their anger against Muslims” in the aftermath of the Godhra train carnage.
In the affidavit, he also alleged that it was discussed in the meeting that the bodies of the Hindu pilgrims who had died in the Sabarmati Express would be brought to Ahmedabad before being cremated. Senior police officials had, according to Bhatt, then advised against this as they feared it would incite religious violence.
Several police officers investigating the 2002 violence and the series of alleged fake encounters have reportedly been targeted by the Gujarat government and continue to face consequences of their involvement even now. Some of the officers targeted were Rahul Sharma and R.B. Sreekumar, who like Bhatt had deposed before the Nanavati Commission regarding the government’s culpability in the riots. Satish Verma, part of the SIT probing the Ishrat Jahan encounter case and Kuldip Sharma, who pursued a corruption case which involved Amit Shah, were also reported targeted.
In late 2018, a Rajnish Rai, a Gujarat cadre IPS officer who was the first investigator in the Sohrabuddin Shaikh fake encounter case, was suspended by the Ministry of Home Affairs.
Gujarat Police Officer Who Probed Sohrabuddin Shaikh Case Suspended
Rajnish Rai arrested top-cop D.G. Vanzara in connection with the encounter and had numerous run-ins with the Gujarat and Central governments.
Gujarat IPS officer Rajnish Rai.
The Wire Staff
GOVERNMENT
RIGHTS
21/DEC/2018
New Delhi: A special Central Bureau of Investigation court on Friday acquitted all 22 accused in the Sohrabuddin Shaikh fake encounter case. A day earlier, Rajnish Rai, a Gujarat cadre IPS officer who was the first investigator in the case, was suspended by the Ministry of Home Affairs.
Rai arrested high-profile officers such as D.G. Vanzara in the fake encounter case. He also investigated corruption in the Uranium Corporation of India in Jharkhand and filed an internal report stating that an encounter in Assam was staged.
Also read: All 22 Accused Acquitted in Sohrabuddin Shaikh Fake Encounter Case
A 1992 batch officer, he is serving central deputation, heading the Counter Insurgency and Anti-Terrorism (CIAT) School of the Central Reserve Police Force (CRPF) at Chittoor in Andhra Pradesh.
Rai, 52, sought voluntary retirement in August this year and wrote to the MHA saying he may be considered deemed to have resigned from the service. The Centre rejected his plea. He had stopped attending office after applying for VRS. The suspension order was issued because of his absence.
Rai has challenged the MHA’s rejection of his VRS before a Central Administrative Tribunal in Ahmedabad.
According to The Hindu, the MHA order states disciplinary proceeding were initiated against Rai in “connection with his unauthorized handing over the charge of IG & Principal, CIAT School, CRPF, Chittoor and abdication of office on 30.11.2018.” It adds that until he is under suspension, Rai cannot leave Chittoor without the permission of the CRPF’s director-general.
The order was delivered to Rai’s Vadodara residence. According to The Hindu, Rai marked his protest while receiving the suspension order. He wrote, “The order of suspension by MHA, GOI is absolutely illegal and unconstitutional as I have retired from service as for operations of law and rules after office hours on on 30.11.2018.”
Sohrabuddin Shaikh
Sohrabuddin Shaikh investigation
Rai was the first investigating officer in the fake encounters of Sohrabuddin Shaikh, his wife Kausar Bi and Shaikh’s aide Tulsiram Prajapati. In 2007, as the deputy inspector general (DIG) of the Gujarat CID’s crime branch, Rai arrested top cops D.G. Vanjara and Rajkumar Pandian of the Gujarat cadre and Dinesh M.N. of the Rajasthan cadre as key accused.
The case was then handed over to the CBI under the Supreme Court’s guidelines. During the CBI’s investigation, several high-profile accused in the case, including Amit Shah and the three officers arrested by Rai, were discharged. The 22 people acquitted by the special CBI court on Friday were mostly low-level police cadre.
After the case was handed over to the CBI, the Gujarat government downgraded his annual confidential report, an annual appraisal system within the civil services. Rai appealed before a Central Administrative Tribunal, which stayed the downgrading. The state government later rectified his record in 2011.
Uncovering corruption in Jharkhand
In August 2014, soon after the Bharatiya Janata Party (BJP), led by Narendra Modi, came to power at the Centre, Rai was transferred out of Gujarat. He was posted as the chief vigilance officer (CVO) of the Uranium Corporation of India Ltd (UCIL) in Jadugoda, Jharkhand.
Here, he submitted a report to the CBI stating that he had uncovered massive corruption and irregularities. The report said the “work of removal of overburden/waste and extraction of uranium ore at Banduhurang opencast mine” was awarded in a corrupt manner. Sadbhav Engineers Ltd, an Ahmedabad-based engineering company, was awarded the contract through an open tender despite a Delhi-based firm quoting Rs 46 crore less.
Also read: The Gujarat Government’s Attempt to Target a Police Officer Has Backfired, Badly
Bizarrely, the department chargesheeted him for conducting an unauthorised probe. He was accused of acting “without due approval from the competent authority”.
He once again approached the Central Administrative Tribunal, which later stayed the inquiry against him for probing alleged “misconduct by CMD and functional director, Uranium Corporation of India Ltd (UCIL), Jaduguda, in Jharkhand without permission.”
Former Gujarat Police Officer, D.G. Vanzara. Credit: PTI
Transferred again
In April 2015, Rai was once again transferred, this time to the CRPF at Shillong. Two years later, in April 2017, he filed an internal report saying the March 30 encounter in Assam’s Chirang district, which killed two people, was “staged”.
The details of the report were published by the media and the home ministry initiated an inquiry, suspecting Rai was the source of the leak.
Also read: It’s Time to Recall the Other Gujarat Model
In June 2017, Rai was abruptly transferred to the Counter Insurgency and Anti Terrorism (CIAT) School of the CRPF in Chittoor in Andhra Pradesh.
In August 2018, Rai sought early retirement, which the Centre rejected.
Several other Gujarat police officers also hounded
During Modi’s reign as the chief minister of Gujarat, several police officers investigating the 2002 violence and the series of alleged fake encounters were targeted by the state government.
Some of the officers targeted were Rahul Sharma, R.B. Sreekumar and Sanjeev Bhatt, who deposed before the Commission of Inquiry regarding the government’s culpability in the 2002 riots. Rai, Satish Verma, part of the SIT probing the Ishrat Jahan encounter case and Kuldip Sharma, who pursued a corruption case which involved Amit Shah, were also targeted.
Lawyer Sarim Naved, writing for The Wire, said:
All these police officers who took on difficult cases against the government were first sought to be targeted during the course of their investigations. Almost all of them were denied promotion on the grounds of flimsy departmental chargesheets and had to approach the Central Administrative Tribunal for simple things like promotion. … What is odd about the treatment meted out to all these officers was that the attacks against them by the government have been so uniform. The pattern is the same. Denial of promotion, resurrection of old cases, filing of flimsy departmental chargesheets and an absurd criminal case or two.
Sanjiv Bhatt was arrested in September this year in connection with a 22-year-old drug seizure case. His bail plea was rejected earlier this month.
How Has the Supreme Court Fared During the Modi Years?
After five years of Modi rule, we see the Supreme Court timid, tentative, fragmented and vulnerable; wary of hurting the central executive which has grown mighty in strength.
The Supreme Court. Credit: PTI
Manu Sebastian
LAW
POLITICS
12/APR/2019
The Supreme Court of India grew considerably in power and stature during the two decades since 1990, earning the epithet “the most powerful court in the world”. During this period, the Supreme Court conferred on itself the primacy in judicial appointments through the invented system of ‘collegium’, and substantially expanded its judicial review powers to intervene in several issues which were traditionally reserved for the executive. The weapon of “continuing mandamus” was sharpened by the Court, using which it passed orders and formulated guidelines on issues of social welfare, environment protection, electoral reforms etc.
The growth in power of the apex court was in tune with the corresponding decline in the assertiveness of central executive, which was mostly stitched together by hotchpotch alliances. The apex court emerged as the last bastion of hope in the eyes of public, who were disillusioned with political executive. The judiciary was seen as playing an activist role to compensate the inaction of the executive, which was perceived to be weak, compromised and corrupt.
But the 2014 elections changed the scenario. For the first time in past 30 years, the electorate returned a mandate with absolute majority. And for the first time after donning the activist-reformist role, the judiciary was encountering a government, which was strong on its feet in terms of numbers.
Has the Supreme Court been able to assert its independence in the face of new found assertiveness exhibited by the Central government? The answer cannot be an emphatic yes, as will be explained through the following issues.
Judicial appointments
The bitter experiences of Indira Gandhi-era, where judges were appointed, transferred and superseded at the whims of the executive, forced the judiciary to think of a solution to guard its independence. The Collegium system of judges appointing judges with a subdued role for the executive was the answer found by it.
However, post-2014, there has been a considerable shift in the power dynamics over judicial appointments.
Immediately after coming to power, the NDA government sought to establish who will get to call the final shots over judicial appointments. Giving no hoots about established conventions, the central government split up collegium recommendations to reject the proposal for elevation of senior advocate Gopal Subramanium. The then CJI R.M. Lodha responded strongly to this act of the Centre, and wrote to the law minister that the government should not adopt such “unilateral segregation” in the future.
However, Gopal Subramanium’s abrupt withdrawal of consent avoided a possible escalation of the confrontation between the two. He said that he was targeted for his role as amicus curiae in the Sohrabuddin fake encounter case.
Former Chief Justice R.M. Lodha. Credit: PTI/Files
With the intent of wresting the primacy over judicial appointments from judiciary, the government soon brought in an amendment to the Constitution to create ‘National Judicial Appointments Commission'(NJAC). The amendment had a very short life, as within 10 months, it was struck down by a constitution bench of the Supreme Court by a 4:1 majority. Rather than constitutional wisdom, what is discernible in the majority judgment is the anxiety of the judiciary to preserve its own primacy in judicial appointments. The judgment acknowledged that the collegium system needed reforms, and said that a new Memorandum of Procedure (MoP) for judges appointment was to be formulated
Ever since the striking down of Constitutional amendment introducing NJAC, things have not been very smooth between the Centre and the Collegium. Union minister Arun Jaitley lashed out at the NJAC judgment terming it “tyranny of the unelected”. The major bone of contention between the two wings was the finalisation of MoP for appointment of judges.
Because of the stand-off between the government and the Collegium about MoP finalisation, judicial appointments got delayed. The Centre dragged its feet on the Collegium recommendations regarding judges’ appointments and transfers, leading to a spike in unfilled vacancies in high courts across the country. Many high courts such as the ones in Calcutta and Karnataka are now functioning with half the sanctioned strength, and lawyers have resorted to strike calling for filling up of vacancies.
In 2016, the Centre’s delay in processing the Collegium recommendations caused much anguish to the then CJI T.S. Thakur. While speaking at a public function in which PM Narendra Modi was also attending, CJI Thakur made an emotional appeal to the Centre to act promptly on judicial appointments and, in fact, broke down to tears during his speech. Neither his criticism nor the tears could move the government.
Chief Justice of India T.S. Thakur. Credit: PTI
This period witnessed the Centre gradually establishing its one-upmanship regarding judicial appointments. The Centre wore brazenness on its sleeve while sending back the recommendation for elevation of Justice K.M. Joseph.
This pattern was followed in cases of controversial transfers of Justice Rajeev Shakdher, Justice Jayant Patel and Justice A.M. Kureshi (discussed in more detail in this article). Coincidentally, all these judges had at one of point of time in their judicial career passed verdicts adverse to the interests of the powerful establishment.
Another recurring trend was that of Centre ignoring the recommendations reiterated by the Collegium, blatantly violating the settled law that once a name is re-recommended by the Collegium, it is binding on the government (the instances are detailed in this article).
One can also see a consistent pattern of sitting over files, splitting up recommendations and selective acceptances of names by the Centre over the past five years. In some cases, files were kept pending for several months; while in some cases, the Centre acted within 48 hours of recommendation by the Collegium.
The Supreme Court has appeared confused and helpless in responding to the repeated snubs from the government on collegium recommendations. It has signalled its protests, but to not much avail. Former CJIs Lodha, Thakur, and Khehar have been very active in voicing concerns in this regard. The present CJI Ranjan Gogoi has also conveyed to the Centre his unhappiness over delay. However, the Centre has been giving a cold shoulder to these concerns.
Questionable verdicts in cases involving political stakes
The pre-2014 apex court was not hesitant in going against the Central executive in matters involving high political stakes. This was evident in the 2G licenses cancellation cases and coal scam cases. Though the coal-gate case verdict was delivered in September 2014 after the coming of NDA government, its hearings took place in the last leg of UPA-II, during which the court passed several oral remarks (including the now famous “CBI is caged parrot” remark), badly stinging the government. The interventions of the court drew a lot of cheers from the media and public, which hailed judiciary as a crusader against corruption and misgoverance.
But post-2014, the SC presented a meeker version when it came to dealing with cases which could prick the political interests of the ruling party. The verdicts in politically charged cases such as Sahara-Birla, Loya, Bhima-Koregaon, Rafale, Aadhaar etc have invited a lot of criticism that when it comes to taking on the system, the Court acts hesitant.
Sahara-Birla papers case
The first one of such challenges was posed by the Sahara-Birla papers case. It was a PIL filed by the NGO Common Cause seeking a court monitored probe in respect of documents retrieved by the Income Tax department while raiding offices of the Sahara and Birla group of companies, which allegedly had entries suggesting giving crores of rupees as bribe to Narendra Modi and other BJP leaders.
The writ petitioner sought registration of FIR and court monitored probe, based on the dictum in Lalithakumari’s case that registration of FIR is mandatory when a complaint revealing cognizable offence is lodged.
The bench of Justices Arun Mishra and Amitava Roy dismissed the petition. But it was not a simple dismissal. The court aborted the issue once and for all, by declaring that the “materials in question are not good enough to constitute offences to direct registration of FIR”. The court could have simply dismissed the case, asking the petitioner to avail other statutory remedies. Instead, the court went on to adjudicate the merits of the matter, and held that the diary entries are not admissible in evidence as per Section 34 of the Evidence Act. The admissibility of the documents is not an issue which is to be looked into at the stage of investigation.
That issue arises only during the trial of the case. Only a full-fledged investigation can unearth other materials which can substantiate entries in the documents. Therefore, to abort investigation on the ground that documents are not admissible in evidence is like putting the cart before the horse. To decide whether to order investigation, the Supreme Court applied the yardstick of a trial court with regard to admissibility of evidence. The judgment appeared to be against the well established legal principle that for registration of FIR, allegation of cognizable offence is sufficient.
The Court’s approach was in stark distinction with its earlier approach adopted in the 2G case, where a court monitored probe was ordered on the basis of materials produced by the petitioner-NGO.
Loya case
Similar thing happened in the Loya case too, which was equally controversial with high political stakes. The case pertained to suspicions raised about the death of CBI judge B.H. Loya, who was hearing the Sohrabuddin encounter case in which BJP chief Amit Shah faced conspiracy allegations.
Not only did the Court dismiss the petitions seeking independent probe into judge Loya’s death, but the court conclusively held that he died of natural causes. Constitutional lawyer Gautam Bhatia has commented that the judgment “reads like a trial court judgment that has been delivered without a trial”. The judgement authored by Justice D.Y. Chandrachud (for the bench of himself, CJI Dipak Misra and Justice Khanwilkar) placed unverified trust on the statements of judicial officers, who had said that Loya had died of natural causes.
The court refused to allow the cross-examination of those judicial officers. The court ought to have seen that the petitioners’ were praying for an independent investigation, and for ordering an investigation, it was enough to raise reasonable suspicion of commission of offence. There is no need to establish the offence with all materials for seeking an investigation. But all the questions were shut down with the “discreet enquiry report” produced by the state government, which was opposing the investigation tooth and nail.
Judge B.H. Loya. Credit: Facebook
The judgement, with its constant invocation of the theory that judicial officers will not make false statements, fails to satisfy an inquisitive and discerning mind. The conclusive findings are arrived at without following any fair process. The court ought to have borne in mind that it was closing the issue forever by its conclusive findings. Therefore, it was ethically incumbent on the court to hear the views of all stake-holders, like the family members of Judge Loya, reporters of the Caravan magazine who brought out the issue, etc before putting a permanent quietus to the issue. But such considerations of fairness and transparency were totally ignored by the SC.
Bhima Koregaon
The Bhima Koregaon case related to a PIL filed by Romila Thapar and four other eminent persons seeking SIT investigation over the UAPA charges against five activists Sudha Bhardwaj, Gautam Navlakha, Vernon Gonsalves, Varavara Rao and Arun Ferreira on the ground that investigation by Maharashtra police was biased. The case was dismissed by 2:1 majority, with the dissent of Justice Chandrachud.
While the majority opinion of the then CJI Dipak Misra and Justice Khanwilkar endorsed the probe by Maharashtra police, Justice Chandrachud disagreed saying that it was a case of arrest targeting political dissent. The majority opinion omitted from consideration certain facts which acted as heavy influencers in the dissent of Justice D.Y. Chandrachud.
While the majority opinion is on set of facts ‘A’, the dissenting opinion is on set of facts ‘A+B’. The majority opinion does not care to state why the additional facts ‘B’, which caused the dissent, are not applicable or totally irrelevant for consideration. The majority was blissfully blind to those facts!
The dismissal of the case gave momentum to the ‘urban naxal’ narrative tailored by anti-constitutional propagandists to label those who question government policies.
Rafale case
In the Rafale case too, the approach of the court was not above criticism. While declining to order probe into corruption allegations over the deal by citing the limited scope of judicial review over defence deals, the court declared that decision making process was proper, accepting the government’s version on pricing and concluding that government did not interfere in selection of Reliance as offset partner.
To analyse the issue whether the alleged procedural irregularities in the deal gave raise to doubts of corruption, which warrant a court-monitored probe, there was no need to review the merits of the deal.
However, the court went on to do that. When there are conflicting versions of facts presented by two sides, the proper course would have been to entrust the job of facts collection to an independent agency. Instead, the court took the denial of one of the contesting parties at face value and sealed the issues with a seemingly conclusive force.
Chief Justice of India Ranjan Gogoi. Credit: PTI
However, the court soon landed itself in embarrassment, as the government said that the judgment contained factual errors and required correction. The observations in the judgment regarding CAG tabling a report on the pricing details of the deal, and Parliamentary Accounts Committee verifying the same were termed as a misunderstanding of the information supplied by the government to the court in a sealed cover.
Since the court has decided to give a detailed hearing in open court to the review petitions, it is inappropriate to comment more. The court has decided to consider the review petition on merits, rejecting the objections of Centre against use of ‘privileged’ documents produced by petitioners in evidence.
CBI-Alok Verma
CBI-Alok Verma was a case of justice delayed. The case presented a straightforward question: whether divesting Alok Verma of the powers of CBI director amounted to his removal from the post, which needed sanction of the High Powered Selection Committee as per the Delhi Special Police Establishment Act. The CJI-led bench initially sought for the details of the corruption allegations against Verma in sealed cover. Later, the court chose to restrict itself to the point of need for sanction from Selection Committee, without touching on the merits of allegations.
When the court directed his reinstatement on January 10, it was too late, as Verma had only three weeks left in his term. The reinstatement was made subject to the sanction of Selection Committee.
Anyhow, the delay in the case ensured that the powers that wanted Verma out of the director post succeeded in doing so without facing legal consequences.
Aadhaar Act as a Money Bill
Another problematic decision delivered by the SC is the Aadhaar judgment, where it accepted that there was no illegality in introducing Aaadhaar Act as a money bill.
The majority judgment by Justice A.K. Sikri held that since Section 7 of the Act said that Aadhaar based identity authentication will be done for delivering of subsidies, benefits or services charged on the consolidated fund of India, it could be introduced as a money Bill. This incidental connection with consolidated fund of India qualified it as a money Bill, as per majority opinion. This is a highly puzzling logic.
Fie photo of Justice A K Sikri. Credit: PTI
As per Article 110 of the Constitution, a money Bill can have provisions only relating to the spending and receiving of money by the Union government. The manner in which identity of a person is authenticated before delivery of subsidies, services, benefits cannot be a concern of money Bill.
Criticising the judgment, Alok Prasanna Kumar wrote in The Wire:
A money bill has provisions only relating to the spending and receiving of money by the Union government. Nowhere does the majority judgement grapple with the meaning of this crucial word. Nowhere does it cite case law on the meaning of the word “only” and its implications for a clause such as this. Nowhere does it make the effort to segregate the provisions of the Aadhaar to see which ones would fall within the scope of Article 110.
Justice Chandrachud dissented and described the passing of Aadhaar Act as money Bill a “fraud on constitution”.
This judgment of the Constitution Bench will have far reaching consequences in legislative process, as it will embolden the government to completely bypass the Rajya Sabha by introducing any bill as a money bill by citing some remote connection with the consolidated fund of India.
Challenge to demonetisation, electoral bonds: No timely hearing
Another emerging trend seen in SC was the evasion of decision by delaying the hearing of highly controversial matters.
After the announcement of demonetisation in November 2016, several petitions were filed in SC challenging the decision. The petitions had raised substantial legal points such as whether the decision was unilaterally announced by the Government without the proper consultation of RBI Board. On November 25, 2016, the SC agreed to examine the constitutionality of the decision; Many of such concerns are found to be relevant in the light of post demonetisation-revelations and current status of economy. Anyhow, the petitions never got an effective hearing.
A poster at a store. Credit: Reuters
Similar was the fate of the petitions challenging electoral bonds scheme. These petitions were filed soon after the passing of Finance Act 2017, which introduced the legislative amendments for the scheme. However, the case became alive only by March 2019, by which time most of the electoral bonds have been purchased. The failure to consider these cases timely is a grave concern, as the Election Commission of India itself has come on record saying that the scheme has dangerous impact on transparency in political funding.
Executive interference in judicial administration?
Another disturbing concern is that of the revelations by judges regarding executive interference in administrative matters of judiciary such as appointment and constitution of benches.
Supreme Court judge Jasti Chelameswar along with Justice Ranjan Gogoi during a press conference in New Delhi on January 12. Credit: PTI/Ravi Choudhary
Hints regarding this was dropped at the historic press conference held by four senior judges on January 12, 2018. Justice Chelameswar, who did most of the talking at the presser, said that administration of justice was not in order and that “many things which are less than desirable have happened in the last three months”.
The judges handed over to media a letter written by them to the then CJI Dipak Misra, which, among other things, stated that “cases having far-reaching consequences for the nation and judiciary were selectively assigned to benches of preference without any rational basis”.
More clarity on this issue was provided by Justice Kurian Jospeh, who in a post-retirement interview to Times of India said that there was “outside influence” in judiciary.
“Someone from outside was controlling the CJI(former CJI Dipak Misra).There were several instances of external influences on the working of the Supreme Court relating to allocation of cases to benches headed by select judges and appointment of judges to the Supreme Court and high courts. Starkly perceptible signs of influence with regard to allocation of cases to different benches, to select who were perceived to be politically biased.”
Justice Kurian Joseph. Credit: LiveLaw
In this backdrop, it has to be borne in mind that the allocation of Loya case to the bench headed by Justice Arun Mishra (who headed the bench in the Sahara-Birla case) was one of the sudden trigger for the press conference. The case was later heard by a bench headed by CJI.
Justice Chelameswar has also made similar comments, while calling for a full court meeting to discuss government interference in appointments. To block the elevation of judge Krishna Bhatt to Karnataka HC, the central government had directly written to the then CJ of Karnataka HC Justice Dinesh Maheswari (now elevated to SC). Condemning such practice of the Centre directly communicating with the High Courts, Justice Chelameswar asserted that “bonhomie” between the judiciary and the government “sounds the death knell to democracy”
Judiciary left battered and enfeebled
Emboldened by its brute majority, the Modi government has embarked on open confrontation with the judiciary over several matters. The collision course with the political wing over five years has left the judiciary battered and enfeebled. Coupled with it, the controversies emanating from the court (medical college bribery case, master of roster issue, impeachment motion against former CJI Dipak Misra) made it look like a divided house and resulted in the erosion of moral authority it once enjoyed among public.
Prime Minister Narendra Modi at a dinner hosted by Chief Justice of India Ranjan Gogoi on November 25, 2018.
At the same time, it will be an overstatement to say that the Supreme Court did not exhibit its reformist spirit to uphold constitutional values during this period. Subdued it may have been; but not totally extinguished.
In matters concerning civil liberties where there are no political stakes involved, the Court has adopted a progressive stand, expanding the transformative vision of the Constitution. This was clear in privacy case, Sabarimala case, and also judgments striking down Section 66A IT Act, Section 377 & 497 IPC.
To its credit, the court got the government to appoint the Lokpal, though belatedly, after a long inaction of five years. The Constitutional Bench judgment in Delhi-LG case is also notable, as it gave primacy to the decision of the elected government in Delhi, resisting the attempts of the central government to control it through LG. However, on the issue of who has the power to control services in Delhi, the SC could not reach a decision, and the matter stands referred to larger bench.
The midnight intervention of the court in the Karnataka assembly case, which ensured that proper democratic conventions will be followed in government formation, is also commendable.
But these instances are little rays of home amidst dense clouds of scepticism generated over independence of judiciary.
To sum up, after five years of Modi rule, we see the Supreme Court timid, tentative, fragmented and vulnerable, wary of hurting the central executive which has grown mighty in strength.
Edited, printed , published owned by NAGARAJA.M.R. @ # LIG-2 No 761,
HUDCO FIRST STAGE , OPP WATER WORKS , LAXMIKANTANAGAR , HEBBAL
,MYSURU – 570017 KARNATAKA INDIA Cell : 91 8970318202
WhatsApp 91 8970318202
Home page :
http://eclarionofdalit.dalitonline.in/ ,
https://dalit-online.blogspot.com/
Contact : editor@dalitonline.in , editor.dalitonline@gmail.com
