Supreme Court agreed to hear plea on Rafale deal next week

NEW DELHI: A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud considered the plea of advocate M L Sharma and agreed to hear next week seeking a stay on the Rafale fighter jet deal between India and France.

The controversial purchase of 36 Rafale aircraft was deal signed between India and France in 2015. Advocate M L Sharma listed in his plea urgent hearing. In his PIL, Sharma had alleged discrepancies in the fighter jet deal with France and sought a stay on it.

Sharma has claimed in his plea that the inter-government agreement to buy 36 Rafale fighter jets must be quashed as it was an “outcome of corruption” and not ratified by Parliament under Article 253 (Parliament has power to make any law for implementing any inter-government agreement) of the Constitution.

The Congress had earlier said the deal signed by the National Democratic Alliance (NDA) government smacked of corruption and crony capitalism. Congress President Rahul Gandhi had said the price negotiated by the NDA government for 36 Rafales that were to be purchased under a government to government deal in a fly away condition were higher than prices negotiated by the previous  United Progressive Alliance (UPA) government.

In January this year, a plea was filed in the apex court seeking an independent probe into the Centre’s decision to procure 36 Rafale fighter jets from France.

Absence of timely legal help to poor affects credibility: CJI

The credibility of the legal system and the rule of law have come under “severe strain” in the absence of timely help to poor and illiterate Indians, Chief Justice of India J S Khehar said today.

The CJI made the observations while highlighting the importance of Para Legal Volunteers (PLV) who, according to him, enabled ordinary and helpless people to avail the benefits of the legal system for alleviating their sufferings and injustice.

“In the absence of timely help to most Indians, the credibility of the legal system and the rule of law comes under severe strain,” he said, stressing that the poor and illiterate Indian were the main clients of the justice system.

Law and Justice Minister Ravi Shankar Prasad, who also spoke at the two-day National Meet of Para Legal Volunteers here, emphasised the use of technology in providing access and administration of justice.

Inaugurating two-day National Meet, the CJI said the service to poor was a “super divine duty” being carried out by the volunteers, which was move than the “divine duty discharged by the judges”.

The last-mile connectivity for a villager under the PLV scheme was not the lawyers but the PLVs working under the competent legal authorities which impart awareness of laws and legal system to them, he said.

When the disputes are such that they are beyond the capacity of these volunteers who have basic training in law, they approach the nearest legal services authority for a dispute settlement mechanism like Lok Adalat, mediation or more formal legal remedies.

“These volunteers trained under the 2009 para legal volunteer scheme act as filters relating to the number and nature of disputes that need to be formally and institutionally dealt with by the legal services. Para legal volunteers save time and money of the poor, the official administration and the courts,” Justice Khehar said.

Lauding NALSA’s poverty allevation scheme, he said it ensured that the benefits of various anti-poverty schemes of the central and the state governments actually reach the intended beneficiaries.

Emphasising the need for restructuring its approach and design, the CJI favoured skill-driven PLVs who can properly research and investigate facts or laws related to a case.

“In fact, this will develop para legal volunteer as multi skilled individual and enhance his or her performance as the critical interface between the common litigant and the courts by a process of upgradation that opens more opportunity for them,” he said.

The Minister emphasised the need for increasing use of technology in the judicial process.

“Time is changing fast and with the changing times, we have to change our technology. Technology is a very important tool in the administration of justice.

“In a country of 125 crore people, 108 crore people have mobile phones, among whom 35 crore have smart phones, which will very fast reach 50 crore figure”, Prasad said.

He said 113 crore people have Aadhaar cards but refused to speak on it further saying the matter was sub-judice.

Noting that good governance can be delivered with the help of technology, he said with government’s scheme of common service centre (CSC), people in villages and in small towns could avail digital services like making of ration cards, PAN cards, Aadhaar cards or booking of railway tickets.

“We have decided to link the CSC with the access to justice. Now these centres could help Dalit women, Kashmiri women and people from North East to get access to justice,” he said, adding that CSCs were being opened in 1,000 panchayats of Uttar Pradesh and Bihar and soon 800 such centres will be opened in Jammu and Kashmir and the North East.

Justice Dipak Misra, the executive chairman of NALSA, said this year has been dedicated as the year of excellence to “access to justice through para-legal volunteers”.

“Through these legal volunteers, the poor people of the country will be able know about government schemes and seek redressal of their grievances,” he said.

Several Supreme Court judges, high court judges and judicial officers from various trial courts across the country were also present at the event.

Source : PTI

CJI criticises electoral politics, unfulfilled poll promises

Chief Justice of India J S Khehar today criticised the electoral politics in the country, saying poll promises are “routinely unfulfilled”, caste issues projected differently to get a majority and party manifestos do not have any linkage to socio-economic justice.

The CJI said that electoral politics in India centres around “mobilisation and politicisation” of the social groups which were poor or disadvantaged and have long remained politically dominant.

Justice Khehar, who was speaking at a seminar on ‘Electoral Issues and Economic Reforms’, said, “Caste issues are projected in different ways to ensure a majority in each constituency.”

He said that ever since these marginalised sections have begun turning up in larger numbers to vote, it has led to an unprecedented volatility in the electoral outcome.

This has forced political parties to seek new forms of political alignment, social engineering and support, he said.

Despite these changes in the electoral process, the non- fulfillment of poll promises never becomes an electoral issue, the CJI observed.

“No consequence occurs whether promises are fulfilled or not. Every political party brazenly finds an excuse of not reaching consensus amongst alike partners.

“Even our legal system provides for no consequences to be suffered by political parties if promises made in the manifesto are not fulfilled,” he said.

“Uninformed citizenry, with a short term memory forgets and the election manifesto becomes a mere piece of paper. For this political parties have to be made accountable,” the CJI said at a seminar here.

Justice Dipak Misra, the next senior-most judge of the apex court, who spoke before the CJI, also stressed on the need for electoral and economic reforms by categorically stating that “purchasing power has no room in an election” and “a candidate must bear in mind that contesting elections is not an investment”.

“It is because in an elevated constitutional democracy, purity of election and credibility of the process of election have their signification,” he said.

He further said that elections have to be “bereft of criminalisation” and “must be perceived as an activity involving norms of fiscal morality”.

He said that the apex court had in 1996 said the best available men should be chosen as people’s representatives.

“This can be best achieved through men of high moral and ethical values who win elections on a positive vote obtained on their own merit and not by negative vote process of elimination from comparative demerits of the candidates,” Justice Misra said.

He also said that candidates and the voters are to remember the old saying that ‘out of debt out of danger’.

Justice Khehar said pursuant to Supreme Court’s directions to the Election Commission of India to formulate guidelines with regard to manifestos and freebies, the poll panel has introduced these in the model code of conduct and has been taking action against parties for its violation.

Speaking on the topic of economic reforms, the CJI said economic reforms are “confined only to economic growth and not linked to social and political justice”.

“Unconstitutional economics for economic growth produces serious socio-economic ills. Economic reforms take centre stage while democracy in terms of the priorities in the directive principles is overlooked, whereas the Constitution requires just the opposite.

“Consequently, electoral politics does not tell the citizens as to what kind of reforms they are entitled to under the Constitution,” he said.

The CJI said the real problem of economic reforms arises in their implementation.

“This problem arises because the Constitution treats the distribution and use of national wealth generated by the economic system as an integral part of generation of such wealth.

“Interestingly, political parties and their manifestos compartmentalise the generation of wealth separately from its end use,” it said.

Without mentioning the names of the political parties, the CJI referred to the slogans– ‘Your Voice Our Pledge’ and ‘Ek Bharat Shreshtha Bharat’– adopted by Congress and the BJP respectively, in the 2014 General Assembly polls, and said, their manifestos showed “no linkage between economic reforms and the Constitutional goal of socio-economic justice”.

The CJI, however, said the land reforms and the Industrial Disputes Act put in place by the government after Independence has resulted in people from the enormous below poverty line being brought into the equally enormous middle class.

“This is the economic reform that deals with and caters to the Directive Principles” and “it is this economic reform which has made all the difference between India and Pakistan”, where, the CJI said, individual families own hundreds of villages with the peasants living in mud huts and carrying out farming for the land owners.

Source : PTI

SC collegium finalises MoP for higher judiciary appointments

The Supreme Court collegium has finalised the Memorandum of Procedure (MoP) for appointment of judges in the higher judiciary resolving a year-long impasse with the executive by agreeing to include the contentious clause of national security in selection of judges.

Sources said the collegium, comprising five seniormost judges of the apex court, had met recently and agreed to the national security clause which the Centre had insisted as one of the necessary criteria for appointment of judges to the higher judiciary.

The collegium consisting of Chief Justice J S Khehar and four seniormost judges — Justices Dipak Misra, J Chelameswar, Ranjan Gogoi and M B Lokur — has agreed with the Centre on the national security clause provided the specific reasons for use of the clause are well documented or recorded.

The national security clause, which gave veto power to the government to reject a name recommended by the collegium, and the issue of setting up of secretariats in the apex court and all the high courts, were among the two key clauses in the MoP on which the Centre and the judiciary had differences for more than a year.

The sources said that after deliberations, the collegium has also agreed on setting up secretariats in the apex court and the high courts to collate data about judges and assist in the selection procedure for their appointment to the higher judiciary.

In October 2015, a Constitution bench headed by Justice J S Khehar had struck down the NJAC Act passed by Parliament and had directed the Centre to frame a new MoP in consultation with the chief justice of India.

After holding the Constitution (Ninety-ninth Amendment) Act, 2014 and the NJAC Act, 2014, as unconstitutional and void, the apex court in its separate order had decided to consider the incorporation of additional appropriate measures, if any, for an improved working of the collegium system.

Striking a dissent note, Justice J Chelameswar who was part of the five-judge Constitution bench which heard the NJAC case, had said that the collegium system for the appointment of judges is “opaque” and needs “transparency”.

He had said that “primacy of the judiciary” in the appointment of judges is a basic feature of the Constitution and “is empirically flawed.”

Last month, Chief Justice J S Khehar had indicated that the Supreme court may come out with the MoP for the appointment of judges for the higher judiciary by the end of the month.

“We will finalise the MoP may be within this month,” he had said while dismissing a plea seeking transparency in the appointment of judges for higher courts.

Source:PTI

Decide death row convict’s plea in 2 months:SC to HC

The Supreme Court today asked the Delhi High Court to decide within two months the plea of a death row convict seeking commutation of his sentence to life imprisonment on the ground of delay to decide his mercy petition.

A bench comprising Justices Dipak Misra and R Banumathi passed the order after taking into account the submission of Attorney General Mukul Rohatgi who said if the apex court would go into the legal issues concerning jurisdiction of high courts the delay would benefit the death row convict.

The apex court’s direction came while disposing of the transfer petition of the Chhattisgarh government which alleged that the Delhi High Court has no jurisdiction to stay the execution of a man held guilty of murder of five persons, including two children, in 2004 in its territory.

The high court in its December 6, 2016 order had said the rejection of mercy petition by the President “does give rise to a cause of action at Delhi”.

It had on March 2, 2015 stayed the execution of Sonu Sardar after which the Chhattisgarh government approached the Supreme Court challenging its jurisdiction to hear the matter.

The state government had told the apex court that the high court had no jurisdiction to stay the execution of convict Sonu Sardar as the offence had taken place in Chhattisgarh.

The Supreme Court had in February 2012 concurred with the findings of two courts below and upheld the punishment. His mercy petition was also dismissed by both the state Governor and the President of India.

In February 2015, the apex court had also rejected his review plea.

Sardar in his plea before the high court had contended that there was a delay of two years and two months by the President in deciding his mercy plea.

He had also sought commutation of his death sentence to life imprisonment on account of delay in deciding his mercy plea as well as for allegedly keeping him in “solitary confinement illegally”.

Sardar, along with his brother and accomplices, had killed five members of a family, including a woman and two children, during a dacoity bid in Chhattisgarh’s Cher village on November 26, 2004. The trial court had awarded death penalty to him which was upheld by the Chhattisgarh High Court.

Duty of judge to sustain judicial balance for adjudication: SC

The duty of a judge is to sustain judicial balance and not to cause trauma to adjudication process, the Supreme Court has ruled while setting aside an order of the Hyderabad High Court directing the police not to arrest three accused in a riots case.

A bench headed by Justice Dipak Misra also said courts should oust “unscrupulous litigants” from invoking the inherent jurisdiction of the court at the drop of a hat to file an application for quashing of an FIR or investigation.

The court allowed an appeal filed by the Telangana government in which it had said that whether the high court, while refusing to exercise its inherent powers under Section 482 of CrPC, can restrain the probe agency from arresting the accused persons during the course of probe.

The bench also comprising Justice Amitava Roy said that while entertaining petitions under Article 226 of the Constitution or Section 482 of CrPC, a high court should exercise “judicial restraint”.

“It is the duty of a judge to sustain the judicial balance and not to think of an order which can cause trauma to the process of adjudication. It should be borne in mind that the culture of adjudication is stabilised when intellectual discipline is maintained and further when such discipline constantly keeps guard on the mind,” the bench said.

“The courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the court at the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is the obligation of the court to keep such unprincipled and unethical litigants at bay,” the court said.

“What needs to be stated here is that the states where Section 438 CrPC has not been deleted and kept on the statute book, the high court should be well advised that while entertaining petitions under Article 226 of the Constitution or Section 482 CrPC, exercise judicial restraint,” it said.

SC gives govt time to suggest ways to ban child porn

child pornography
child pornography

New Delhi,The Supreme Court today gave time to the government to suggest ways to ban child pornography in all its forms and took on record the Centre’s earlier direction to internet service providers to block porn sites.

“In pursuance to our earlier order, some suggestions have been filed. The Centre has sought two weeks time to file its suggestions. Put up the matter for further hearing in the week commencing from April 18,” a bench headed by Justice Dipak Misra said.

Additional Solicitor General Pinky Anand, appearing for the Centre, said due to holidays, the meeting of concerned departments could not be held and sought two weeks to file suggestions on the issue of banning child pornography.

The bench, also comprising Justice Shiva Kirti Singh, took on record the suggestions given by the advocate Vijay Panjwani appearing on behalf of petitioner Kamlesh Vaswani to block the pornographic sites, especially those containing child pornographic contents.

Panjwani also placed on record, the government’s last year’s order in which Internet Service Providers were directed to block websites containing pornographic content, submitting that similar steps are required to be taken to ban such websites containing child pornographic materials.

The apex court had on February 26, asked the government to suggest ways to ban child pornography saying the nation cannot “afford to carry on any experiment” in the name of “liberty or freedom of speech and expression”.

It had said that innocent children cannot be made prey to this kind of painful situation and a nation cannot afford to carry on any experiment on children in the name of liberty or for that matter freedom of speech and expression.

It had asked the government to seek advice from experts and suggestions from the National Commission for Women (NCW) on banning of websites dealing with adult and child pornography.

A women lawyers’ body had earlier moved the apex court seeking blocking of all porn websites, saying that pornography “corrupts” the mind of the young generation and leads them to commit crime against women and children.

The intervention application filed by the SCWLA, had come after the Centre’s decision to lift ban on 857 porn sites.

In Supreme Court, Kerala supports ban on women’s entry at Sabarimala temple

sabrimalaThe Kerala government has told the Supreme Court that banning entry of women of menstrual age in historic Sabarimala temple in the state is a “matter of religion” and it is duty bound to “protect the right to practice the religion of these devotees”.
In an affidavit, the state government said administration of the temple vests with the Travancore Devaswom Board under the Travancore-Cochin Hindu Religious Institutions Act and the decision of the priests is final in the matter of worship.
“In the context of Sabarimala, the administration vests with the Travancore Devaswom Board under the provisions of the Travancore-Cochin Hindu Religious Institutions Act, 1950. Under the Act, there is a statutory duty cast on the Board to arrange worship in temples in accordance with the usage. Therefore, in matters of religion, it is the opinion of the priests that is final,” the affidavit filed by state chief secretary Jiji Thomson said.
A bench of Justice Dipak Misra and Justice NV Ramana would take up the matter on February 8.

SC nod to laws of Bihar, Orissa to confiscate assets of babus

The Supreme Court has upheld the constitutional validity of two laws of Bihar and Odisha which allow confiscation of properties of the accused in corruption cases, including those occupying high public or political office, saying a “social calamity” like graft has become a “national economic terror”.A bench comprising justices Dipak Misra and A R Dave upheld the validity of Orissa Special Courts Act, 2006 and Bihar Special Courts Act, 2009, passed by the two state assemblies, which allow setting up of special courts and confiscation of properties, saying the laws do not violate constitutional provisions.

“In a way, corruption becomes a national economic terror. This social calamity warrants a different control and hence, the legislature comes up with special legislation with stringent provisions,” the bench said.
It said that establishment of Special Courts under these Acts were “not violative of Article 247 of the Constitution”.

The bench observed this in its verdict passed on a bunch of pleas, challenging the provisions of confiscation of properties even before conviction on the ground that these violated constitutional provisions.

“The Chapter III of the both the Acts providing for confiscation of property or money or both, neither violates Article 14 nor Article 20(1) nor Article 21 of the Constitution,” the bench said.

It also rejected the submission of petitioners that confiscation of properties before conviction was a pre-trial punishment.

“It is basically a confiscation which is interim in nature. Therefore, it is not a punishment as envisaged in law and hence, it is difficult to accept the submission that it is a pre-trial punishment and, accordingly, we repel the said submission,” the bench said.

It further said the provisions target the persons who have assets disproportionate to their known sources of income, which is conceptually a period offence and not incident specific where proof of corruption is required.

“This conceptually is a period offence, for it is not incident specific as such. It does not require proof of corruption in specific acts, but has reference to assets accumulated and known sources of income in a particular period,” it said. (More) PTI MNL RKS ARC DV
Source : Press Trust of India

SC stays defamation proceedings against Rahul Gandhi

rahul gandhiThe Supreme court on Thursday stayed defamation proceedings against Congress vice-president Rahul Gandhi over a statement linking Mahatama Gandhi’s assasination with RSS.

The court also agreed to hear Rahul’s plea challenging the constitutional validity of criminal defamation law under Section 499 and 500 of Indian Penal Code which makes defamation an offence punishable with up to two-year jail term.

Rahul submitted that criminal defamation law is a colonial legacy and it has no place in a democratic country.

He said in his petition that the law violates people’s fundamental right to freedom of speech and expression and the law must be done away with.

A bench of justices Dipak Misra and PC Pant clubbed Rahul’s petition with the petition filed by Arvind Kejriwal and Subramanium Swamy and posted the case for final hearing on July 8.

“Criminal defamation laws are inherently harsh and have a disproportionate chilling effect on free expression. Individuals face the constant threat of being arrested, held in pre-trial detention, subjected to expensive criminal trials, and then in the event of conviction, saddled with a criminal record, fines and imprisonment, and the social stigma associated with this,” Rahul said in his petition.

“Sections 499 and 500 of the IPC violate the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. These provisions results in curbs on the fundamental right to freedom of speech and expression beyond the limits of restrictions under Article 19(2) of the Constitution of India,” the Congress vice-president said.

He said criminal defamation laws violated international norms on freedom of speech and people felt threatened by the penal provision.

“The internet could serve as a great medium for public discourse, but bloggers and citizen journalists could feel threatened by the criminal provisions related to defamation and this could cause a chilling effect,” the Congress leader said.

“Whatever be the position prior to the independence of India, Sections 499 and 500 of IPC have ceased to be reasonable restrictions after the Constitution came into force guaranteeing the right to equality in Article 14, the right to freedom of speech and expression in Article 19 (1) (a) and the right to personal liberty in Article 21 which constitute an integral part of the basic structure of the Constitution,” he said.

Rahul said offences like murder and theft affected society and therefore freedom could be curtailed but the act of defamation posed no discernible threat to society at large.

“Its scope of impact is primarily restricted to the alleged victim and persons close to him who always have the option of responding to the defamatory allegations and setting the record straight. Thus, treating acts of defamation in a similar manner as grave offences against the public is patently arbitrary,” Rahul said.

An RSS activist Rajesh Kunte had alleged that the Congress leader had accused the saffron outfit of killing Mahatma Gandhi at a rally during last year’s Lok Sabha polls.
According to the RSS activist, the Congress vice-president had told an election rally at Sonale on March 6 that “RSS people killed Gandhiji”.

He further accused Rahul of trying to tarnish the reputation of the Sangh through his speech.