Category: Law

Uttar Pradesh: Court-Appointed Commissioner Surveys Mughal-Era Mosque Amid Claims of Ancient Hindu Temple

The mosque, built by Babar, is acknowledged as a ‘historic monument’ on the official website of Sambhal district. However, Hindu petitioners claim it’s the site of an ancient Kalki temple.

New Delhi: A Mughal-era mosque in Uttar Pradesh’s Sambhal district was on Tuesday (November 19) surveyed by an advocate commissioner on the orders of a local civil court which acted on a petition filed by Hindu activists claiming the Islamic religious site was originally a prominent Hindu temple dedicated to an avatar of Vishnu.

The managing committee of the Shahi Jama Masjid as well as the local Muslim population were astounded by the tearing hurry displayed by the advocate commissioner Ramesh Raghav in initiating the survey proceedings within a few hours after the court’s directions.

Photography and videography of the mosque premises were carried out during the survey which lasted for one and a half to two hours, according to different sources. The proceedings were carried out in the presence of the district magistrate and the district police chief.

Civil judge senior division Aditya Singh directed the survey of the mosque after an application was filed by eight plaintiffs, led by pro-Hindutva lawyer Hari Shankar Jain and Hindu seer Mahant Rishiraj Giri, as part of a civil suit claiming right for access into the mosque.

The mosque, claimed to have been built on the directions of the first Mughal emperor Babar, is acknowledged as a “historic monument” on the official website of the Sambhal district. The Hindu petitioners, however, claimed that the mosque was the site of an ancient temple dedicated to Kalki, the prophesised final incarnation of Vishnu. In 1529, Babar partly demolished the Hari Hari temple and tried to convert it into a mosque, said Vishnu Shankar Jain, lawyer and the son of the chief plaintiff Hari Shankar Jain.

While accepting the plea of the Hindu plaintiffs to get the mosque surveyed by an advocate commissioner, the court said, “The submission of a report of the site might facilitate the court to adjudicate the suit.”

Also read: Arson, Loot and ‘Unidentified’ Vandals: How Muslims Were Targeted in Bahraich

Zafar Ali, an advocate representing the mosque, said the survey went on for two hours. “No objectionable object was found during the survey. There was nothing that could have created a doubt. This has made it clear that the Shahi Jama Masjid is indeed a mosque,” Ali said.

The lawyer said the survey was carried out immediately after the court order came in  as the advocate commissioner had a personal engagement, his daughter’s wedding, to cater to in the coming days.

A copy of the civil judge senior division Sambhal order directing a survey of the Shahi Jama Masjid by an advocate commissioner. The court passed the order on an application by some Hindu plaintiffs who claim that the mosque was the site of an old Kalki (avatar of Vishnu) temple.

According to a source, the court passed its order at around 3:30 pm while the advocate commissioner’s survey began at 7 pm. “It was conducted without giving us an opportunity to file objections or without holding the necessary peace meetings in the area so that no untoward incident takes place,” said a lawyer associated with the mosque.

During the survey, the boundaries of the mosque and store rooms that were locked were also inspected, said Ali. stressing that the caretakers of the mosque fully cooperated with the court-appointed commissioner.

Vishnu Shankar Jain, lawyer for the Hindu plaintiffs, said further surveys would continue as many features of the mosque were yet to be studied. This was a “non-invasive survey,” stressed Jain.

He alleged that Babur had partly demolished the original site in 1529. “It is believed that Kalki avatar is to happen at Sambhal,” said Jain, claiming that there were several signs and symbols of the Hari Har Mandir inside the mosque.

In their suit, the plaintiffs said that the mosque was  a monument protected under Section 3 (3) of the Ancient Monuments Preservation Act, 1904. They claimed that they were being “denied access” to the mosque, described by them as “subject property,” as the Archaeological Survey of India had not taken any steps for entry of the general public as mentioned in the provisions of Section 18 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958.

The plaintiffs claimed that the site was a centuries-old Har Hari Temple dedicated to Kalki and was being “used forcibly and unlawfully” by the Jama Masjid caretaking committee. 

Zia-ur-Rehman Barq, Samajwadi Party (SP) MP from Sambhal, raised concern over the hurried manner in which the advocate commissioner’s survey was initiated. “We were not given any notice. Our reply was not sought. They carried it in a hurried manner. But there was no emergency or anything urgent,” Barq told reporters outside the mosque. 

Also read: History Will Record the Helping Hand Many Judges Lent When Indian Secularism Was Being Demolished

Barq said that the mosque was protected by The Place of Worship Act, 1991. “Despite this, some people want to spoil the atmosphere of the state and the country,” he said.

The SP leader underlined that the Jama Masjid was a Muslim place of worship. “They will not find anything even the size of a needle which can be called objectionable. This was a mosque, is a mosque and will remain a mosque,” said Barq.

Rajender Pensiya, district magistrate Sambhal, said the administration and the police were present during the survey proceedings to provide security.

According to a British-era gazetteer published in 1891, ‘The Monumental Antiquities and Inscriptions, in the North-Western Provinces and Oudh’, the Hindu claim on the mosque existed even then. The document said that the Muslims ascribed the erection of the building to the time of Babur and point to an inscription inside the mosque, which records the constriction of the site by Mir Hindu Beg in the year 933 as per the Islamic calendar, which corresponds to the year 1526.

The Hindus, however, claimed that the inscription was a forgery of a later date, said the gazetteer. “At or on the back of this slab, they say that there is the original Sanskrit inscription belonging to the temple,” the gazetteer said.

Commenting on the issue, All India Majlis-e-Ittehadul Muslimeen (AIMIM) president Asaduddin Owaisi said the Babri Masjid judgement has emboldened Hindutva groups to target Muslim places of worship across India.

Referring to the Sambhal survey, Owaisi underlined that within three hours of the application being submitted, the civil judge ordered an initial survey at the mosque site to find out if a temple had been demolished to build the mosque.

“The application was made by a lawyer who is the UP govt’s standing counsel in SC. The survey was carried out on the same day. This is how Babri’s locks were also opened within an hour of the court order, without even hearing the other side,” wrote Owaisi on his X handle.

Full Text | Justice B.V. Nagarathna on a ‘Judge’s Prerogative’ and a ‘Judge’s Duty’

‘Ultimately, the extent of independence of the judiciary relates back to independence, impartiality and integrity of the men and women holding judicial office.’

Justice B.V. Nagarathna delivered a speech at Justice S. Natarajan’s centenary celebrations in Chennai on November 16. In it, she referred to the recent Supreme Court judgment on extrajudicial bulldozer demolitions, on what a judge is required to do at work and the judiciary’s connections with the legislature. 

Her full text is produced below.

I deem it a privilege to deliver the Justice Sivasankar Natarajan Centenary Commemoration Lecture and make my humble contribution to the path of legal thought that Justice Natarajan’s memory signifies. At the outset, I must extend my gratitude to Sri Ramesh Rajan and his family for inviting me to deliver this lecture.

Born on 29th October, 1924, Justice Sivasankar Natarajan witnessed and contributed to the development of independent India’s constitutional legal system. He was a contemporary of my father who was born on 18th December 1924 and they shared many Benches together including two seven-Judge Benches in India Cements Limited, (1990) 1 SCC 12 and Synthetics & Chemicals, AIR 1990 SC 1927, in which by two dissenting judgments, 8:1, I have upheld those judgments as part of the nine-judge Bench in July and October this year.

Having received his early education in Salem, he joined Loyala College, Madras and then Madras Law College for his education in the law. Charting his journey as a member of the bar before the Madras High Court in August 1947, his versatility and deep grasp of law was in civil, criminal, industrial and labour laws. Appointed as the Public Prosecutor of Salem in 1959, Justice Natarajan’s legal acumen and moral fidelity to the law was rewarded soon and he was appointed as District and Sessions Judge (Grade-II) on 2.9.1965. His judicial service was characterised by a pragmatic and intellectual understanding of law. He was appointed as Additional Judge, Madras High Court on 15.2.1973 and as a permanent judge from 27.2.1974.

Appointed as a Judge of the Supreme Court in the year 1986, Justice Natarajan served until his retirement in October 1989, a time which he admirably used in rendering judgments of significant import for the times to follow. He was a part of Thakkar – Natarajan Commission which inquired into a controversy. His wife Smt. Bhagirathi was a source of strength to Justice Natarajan. He was socially very active after retirement.

The true measure of a judge’s character and personality is through his/her judgments providing for development of law. I deem it fit to mention a few judgments of Justice Natarajan that reflect his incisive commitment to the pursuit of development of law and its employ as a tool for social justice.

Justice Natarajan demonstrated his legal acumen and deep wisdom in his judgments and contributions to the salient fourteen Constitution Benches he was a member of. In A.R. Antulay v. R.S. Nayak and Another, (1988) 2 SCC 602 he was part of the leading majority opinion authored by Justice Mukharji, which by 5 : 2 set- aside an earlier Constitution Bench judgment.

His commitment to law as a tool for justice and respect for the Constitution shone in his judgment in Begum Subanu alias Saira Banu and Another vs. A.M. Abdul Gafoor, (1987) 2 SCC 285. In what was hailed across the country’s dailies as a ‘trend-setting judgment’, Justice Natarajan held that the right of a Muslim husband to a polygamous marriage cannot act as a bar on operation of Section 125 of the CrPC 1973.

In a perfect confluence of judicial activism and restraint, Justice Natarajan was aware of the Court’s limitations through the centrality of the doctrine of separation of powers. This mindfulness of the delicate but functional balance that needs to be maintained between different organs of the government is most visible in Justice Natarajan’s opinion in State of J&K v. Mahmood Ahmed, 1989 Supp (2) SCC 319. Therein, the High Court had observed that Sections 8 and 14 of the Evacuee (Administration of Property) Act, 1950 had outlived their purpose after thirty-nine years of the Act coming into force and directed officers of the State to not entertain any application made in future by persons laying claim to properties which had been notified as evacuee property. Justice Natarajan, espousing his respect for the constitutional separation of powers, effectively observed that the High Court was incorrect in nullifying a statutory provision by determining its utility, that being, a matter of decision for the legislature.

In my lecture, I will build up on Natarajan, J.’s respect for the functional distribution and the principle of checks and balances in our Constitution.

Checks and Balances:

The fundamental principle of checks and balances under the Constitution rests on the fulcrum that the exercise of power by any one authority namely, the legislature, executive and judiciary must be balanced and checked by the exercise of power by other authorities. Closely related to the principle of checks and balances is the functional principle of separation of powers. Its origins can be traced to Locke’s Second Treatise on Civil Government or Montesquieu’s The Spirit of Law.

The French philosopher Montesquieu emphasised the mutual exclusiveness of the three organs of the Government, namely, the legislature, the executive and the judiciary. The purpose underlined in the Separation Doctrine is to defuse governmental authorities so as to prevent absolutism and guard against tyrannical and arbitrary power of the State for it is said by Lord Acton that power corrupts, and absolute power corrupts absolutely. This is also to protect the freedom of the people. In H.H. Kesavananda Bharati vs. State of Kerala, AIR 1973 SC 1463, it was observed that separation of powers between the legislature, executive and judiciary is part of the basic structure of the Constitution which cannot be destroyed by any form of amendment.

The concept of separation of powers creates a system of “checks and balances” by reason of which the powers so distributed to each of the organs do not predominate or disable the other organs from exercising and discharging the powers and functions entrusted to them.

In practice, the theory of “checks and balances” is accepted with the hope of coordination and cooperation between the three organs of the State to achieve the aim of upholding constitutional values or constitutional Dharma, I may say, and the laws for the protection of people’s individual and collective rights.

P. Sathasivam. J. (as His Lordship then was) authored words of wisdom on the subject in Bhim Singh vs. Union of India, (2010) 5 SCC 538, para 78. He opined that:

“While understanding this concept, two aspects must be borne in mind. One, that separation of powers is an essential feature of the Constitution. Two, that in modern governance, a strict separation is neither possible, nor desirable. Nevertheless, till this principle of accountability is preserved, there is no violation of separation of powers. We arrive at the same conclusion when we assess the position within the constitutional text. The Constitution does not prohibit overlap of functions, but in fact provides for some overlap as a parliamentary democracy. But what it prohibits is such exercise of function of the other branch which results in wresting away of the regime of constitutional accountability.”

These instructive words encapsulate the pertinency and position of the doctrine of separation of powers in our Constitution and also expound my reason for choosing the topic for the lecture, ‘Checks and Balances under the Indian Constitution through a Looking Glass’.

The basic structure of our Constitution aids as a Looking Glass and takes us to a clearer picture of testing any exercise of powers. In that spirit, over the course of my lecture, I would:

  1. Trace the origins of doctrine of separation of powers and its place in the Indian Constitution.
  2. Highlight how our constitutional scheme envisions parliamentary supervision of executive action.
  3. Describe how judicial review ensures checks and balances on legislative and administrative action without crossing the Lakshman Rekha.
  4. Finally, I put forth the centrality of judicial independence to rule of law.

The book Judicial Process in Comparative Perspective by Mauro Cappelletti contains the following observations:

“Clearly the notion of democracy cannot be reduced to a simple majoritarian idea. Democracy, as already stated also means participation and it means tolerance and freedom. A judiciary reasonably independent from majoritarian wings can contribute much to democracy and so can a judiciary active, dynamic and creative enough to be able to assure both the preservation of the system of checks and balances vis-à-vis the political branches and adequate control vis-à-vis those other non-governmental or quasi-governmental centres of power which are so typical for modern society.

Before discussing the concept, I might refer to a recent order of the Supreme Court for an understanding of the concept in Re: Directions in the matter of demolition of structures in W.P.(C)No. 295 of 2022 and I quote,

“71. …If a citizen’s house is demolished merely because he is an accused or even for that matter a convict, that too without following the due process as prescribed by law, in our considered view, it will be totally unconstitutional for more than one reason. Firstly, the executive cannot declare a person guilty, as this process is the fundamental aspect of the judicial review. Only on the basis of the accusations, if the executive demolishes the property/properties of such an accused person without following the due process of law, it would strike at the basic principle of rule of law and is not permissible. The executive cannot become a judge and decide that a person accused is guilty and, therefore, punish him by demolishing his residential/commercial property/properties. Such an act of the executive would be transgressing its limits.

“72. The chilling sight of a bulldozer demolishing a building, when authorities have failed to follow the basis principles of natural justice and have acted without adhering to the principle of due process, reminds one of a lawless state of affairs, where “might was right”. In our Constitution, which rests on the foundation of ‘the rule of law’, such high-handed and arbitrary actions have no place. Such excesses at the hands of the executive will have t be dealt with the heavy hand of the law. Our constitutional ethos and values would not permit any such abuse of power and such misadventures cannot be tolerated by the Court of law.”

Further, in an era of tribunalisation, the constant refrain is that the executive trenches into areas of adjudication and therefore accused of usurping judicial functions by appointing persons with executive bias. In Rojer Mathew vs. South India Bank, (2020) 6 SCC 1, the Constitution Bench of the Supreme Court issued a Writ of Mandamus to the Ministry of Law & Justice to carry out a judicial impact assessment of all the Tribunals. The Central Government responded with the notification of Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and other conditions of Service of Members] Rules, 2020.

This was again challenged in Madras Bar Association v. Union of India, [WP No.804 of 2020, SC dated 27.11.2020] on the ground that the rules were violative of the principles of separation of powers and independence of judiciary. The Supreme Court has directed that the Union shall constitute a National Tribunals Commission, which shall act as an independent body to supervise appointments and functioning of Tribunals, to consider disciplinary proceedings and to take care of administrative and infrastructural needs of Tribunals. This is in order to maintain independence in judicial adjudication.

The doctrine of separation of powers can be interpreted in two dimensions: (i) in a restrictive or “negative” sense, where it imposes boundaries on each branch of government, preventing overreach; and (ii) in a constructive or “positive” sense, where it not only defines limits but also delineates the minimum range of powers within those boundaries, which courts can enforce to achieve constitutional objectives and uphold core values.

The call of modern technocratic, transparent and efficient governance structures beckons a constitutional regime of checks and balances that travels beyond traditional state actors. Rather, the structure of 21st Century Open Governance frameworks makes it prudent to acknowledge that regime of checks and balances also responds to citizen participation.

Professor Jerome G.Kerwin, a professor of Political Science at University of Chicago, encapsulated in 1945 the inextricable link between structure and governance. He said, “Forms of government, it is true, do not reform the men who administer them but they do make it easier for good administrators to do the job well and they do very often make it easier for the people to observe the operation of the government.”

Thus, an efficient rendition of principle of checks and balances allows and emboldens responsible legislators to effectuate their scheme for the nation while still enabling harmonious coordination with other power-holders and also ensuring open governance.

The relationship between the president vis-à-vis the Parliament under Article 74 and governors vis-à-vis state legislatures under Article 163 have been the centre of controversy in a series of cases before the Supreme Court. Reflecting a malleability in law by amendments and judicial declarations, these cases have distilled the degree of primacy of elected legislatures and the control they exercise over executive action.

Although not entirely ceremonial in everyday exercise of executive power, the President and Governors have been relegated to exercise of little degree of discretion. A.N. Ray, J. speaking for the Supreme Court in Shamsher Singh v. State of Punjab,1974 AIR 2192, explained that wherever the Constitution requires the exercise of any power or function, the satisfaction of the President or the Governor is not their ‘personal satisfaction’ or anybody else’s satisfaction but the satisfaction in the “constitutional sense” particularly when the aid and advice of the Council of Ministers is not contemplated. This conclusion is a necessary exposition of rule of law and representative government in a constitutional democracy.

Such is the friction between political incentives and constitutional methods that in a contrary landscape, checks and balances are necessary even on the law-making power of Presidents and Governors acting on aid and advice of the Council of Ministers. Equivalent to parliamentary legislation, the Constitution authorises the executive to exercise original legislative power. The President may promulgate ‘ordinances’ under Article 123 provided that at least one House of Parliament must not be in session and that the President must be satisfied that ‘circumstances exist which render it necessary for her to take immediate action’.

Practically promulgated by the President on ‘satisfaction’ of the Ministers, ordinances are products of legislative power, vested in the executive and beyond the ordinary grounds of judicial review. Nevertheless, ordinances must be laid before both Houses once the Parliament reconvenes. Finding a convenient path to law-making sans legislative approval, several Governments have abused the possibility of repromulgating ordinances. In DC Wadhwa vs. State of Bihar, (1987) 1 SCC 378; the Supreme Court frowned on ordinances being kept “alive” for periods ranging from three to fourteen years merely by repromulgation and converted an ‘exception’ into a norm called ordinance raj.

This usurpation of legislative power was held contrary to India’s ‘constitutional scheme’. More recently, in Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, a seven-Judge Bench of the Supreme Court affirmed the view taken in DC Wadhwa and held that repromulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.

On that note, I will now turn to judicial review of parliamentary and executive action.

Judicial Review of Parliamentary and Executive Action:

On September 17, 1787, George Washington, the then President of the Constitutional Convention put in two sentences as the essence of the judicial task. He said, “Individuals entering into society must give up a share of liberty to preserve the rest…It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved.” Drawing that line is, in my view, the core task of the Judicial branch.

Of all the unanticipated political developments since 1787, none has been more consequential than the acceptance of judicial review by the Supreme Court of the United States in Marbury v. Madison, 2 L Ed. 60.

At this point the words of James Madison from 1788 on separation of powers in Federalist Papers, No. 47 merit interest. He said,

“The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.”

Since then, this principle has been exported all over the world, including into India where the Constitution, since its inception, in Articles 13, 32, and 226 recognised the principle of judicial review. The principle has since been hallowed and cemented by reiteration by our constitutional courts.

The critique that judicial review is illegitimately grafted onto popular government is wholly misplaced and, in fact, improper. For one, this idea suggests that democracy is meant only to reflect one popular opinion. With all humility, I think it is reductive. The process of democracy in my view is meant also to refine and elevate public opinion from all angles and viewpoints. There cannot be only one public opinion applicable to all. Ultimately, democracy is also about arriving at a consensus by taking the best from a variety of ideas and opinions that emerge at a particular point of time. Therefore, in a true democracy, there cannot be scuttling of divergent opinion or thought nor a curb on ideas which may appear contrarian.

Secondly and more importantly, democracy is dedicated to preconditions: liberty and equality. Without the judicial protection of individual rights against their encroachment, the preconditions of liberty and equality would fall. To be sure, my submission is not that majorities will necessarily fail those conditions but the truth is that they often do.

And while majorities have a right to work their mistaken wills anyway, that right is not untrammelled: it is the Judiciary, therefore, which determines the limits of that right. In fact, the legitimacy of the courts comes precisely from the fact that courts act without reference to popular sentiment and by doing so, they address injustices which majoritarian institutions are fundamentally incapable of addressing.

In a succinct sentence in Marbury v. Madison, Marshall, C.J. of the Supreme Court of the United States espoused the role of judicial review. He said,

“It is emphatically the province and duty of the judicial department to say what the law is.”

Under our transformative Constitution, the power of judicial review has time and again been invoked to prevent and remedy injustice. Such an injustice could be a result of State neglect or be a social malaise. To borrow the felicitous expression from Vivian Bose, J., it had been a zealous endeavour of the Indian judiciary that the Constitution should work for the butcher, the baker and the candlestick maker. The judges of the highest adjudicatory body in the world’s largest democracy consider it their duty to redeem their constitutional oath and do justice no less to the pavement-dweller than to the guest of the five-star hotel.” O. Chinnappa Reddy, J. in Randhir Singh vs. Union of India, (1982) 1 SCC 618.

Therefore, it will not be excessive or out of place to say that the Judiciary is at the epicentre of constitutional government. Our constitutional endeavour has been to ensure that judicial review acts as a measured but effective check on exercise of power by Parliament and the executive.

Beyond the challenge to vires of any Act of Parliament or a State Legislature as being violative of Part III of the Constitution, the judiciary is the bulwark against abuse of power by the Executive. Therefore, statutory provisions limiting the jurisdiction of courts and provisions seeking to exclude the jurisdiction of courts are strictly construed or struck down. In Kihoto Hollohan v Zachillhu, 1992 SCR (1) 686, where a challenge was raised to Paragraph 6(1) of the Tenth Schedule to the Constitution, which seeks to impart finality to the decision of the Speaker/Chairperson as to whether a member of a House has become subject to disqualification because of defection, the Supreme Court held that such finality could not detract from or abrogate judicial review of the decision under Articles 136, 226, and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with rules of natural justice and perversity, are concerned.

More concerned with day-to-day governance, judicial control of delegated legislation deals with the concept of excessive delegation, substantive and procedural ultra vires and such other grounds of review.

Additionally, judicial control is exercised over administrative discretion by way of judicial review when administrative duties are not undertaken in accordance with the recognised principles of administrative law. Some of the principles or the basis on which exercise of administrative discretion could be checked are, promissory estoppel, legitimate expectation, proportionality, restitution and such other principles which are applied to strike down erroneous exercises of administrative discretion are of great importance in administrative law.

Furthermore, the checks exercised by the judiciary are not restricted to examining the compatibility of the content of laws with Part III rights but also extends to judicial overview of actions within the legislative bodies and the manner in which such actions are conducted. In Anil Kumar Jha vs. Union of India, (2005) 3 SCC 150, the Supreme Court issued directives on the manner in which trust vote in the Jharkhand Assembly should be conducted.

To illustrate, judicial decisions have worked as checks and balances on prospective and sitting members of legislatures. In Union of India vs. Association for Democratic Reforms, (2002) 5 SCC 294, the Supreme Court held that derivable from Article 19(1)(a) for voters is a right to know who they were electing. Therefore, the Court directed disclosure to every voter of detailed information relating to a candidate. This carving of Article 19(1)(a) has contributed to new rights in Article 19(1)(a). In fact, the theoretical basis has been acknowledged since long.

In State of Uttar Pradesh v Raj Narain, (1975) 4 SCC 428, the respondent sought access to documents in an election petition. Rejecting the State’s claim of privilege from disclosure, the Supreme Court traced the right to know from the freedom of speech as it built on the ideal of transparency of governance. This approach, I find, acts as a dual-use check and balancing mechanism: firstly, it acts a check on decisions of public functionaries who must factor that publicly relevant information need to be disclosed, except for certain exceptions. Secondly, it enables citizens to participate in political processes and empowers them to exercise checks and balances in the form of accountability from those who wish to govern. Therefore, a loop of demanding propriety and morality from legislators is set in motion between citizens and Parliament.

The ‘Citizen-Parliament loop’ must be discussed in the context of Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, wherein the Parliament used its amending power to amplify a moral and legal wrong, and furthermore to validate an invalidated election by withdrawing the jurisdiction of the judiciary.

The Court finally held that such an amendment declaring a judgment void without removing the basis for judicial decision making and without any judicial application to the facts of the case, would, ‘toll the death knell of the democratic structure of the Constitution’. H.R. Khanna, J. opined that if the Thirty-Ninth amendment was allowed to stand, the mechanism for determining the real representative of the people in an election as contemplated by the Constitution’ would be destroyed and a judgment inter se parties pending appeal would be declared void without any judicial application of mind. Thereby, the separation of powers doctrine would have been truly discarded.

This brings me to the next theme of my address: legislative overruling of judicial pronouncements.

The legislative power to amend the enacted law with retrospective effect, is not only subject to legislative competence but is also subject to several judicially recognised limitations. Where the legislation is introduced to overcome a judicial decision, the power to amend cannot be used to directly subvert the decision without removing the basis of the decision. This is settled law per Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2 SCC 283. A court’s decision must always bind unless the

conditions on which it is based are so fundamentally altered by the amendment that the decision could not have been given in the altered circumstances. Therefore, to reiterate, the validity of a validating law, depends not only upon whether the Legislature possessed the competence over the subject-matter but also whether in making the validation it has removed the defect which the court had found in the previous law.

By ensuring that the legislature cannot simpliciter overrule judicial decisions, the principle of separation of powers is maintained. It allows the legislative branch to retain its power to amend its laws; yet at the same time, it retains the judiciary’s interpretive authority as the final and sole arbiter on questions of law. In this way, an equilibrium is struck between the powers of the two branches.

In NHPC Ltd. vs. State of Himachal Pradesh & Others, 2023 SCC OnLine SC 1137 35, I elaborated the interlink between judicial review, separation of powers and its inextricable relationship with rule of law. The crystallized principle is that:

“35. …a legislature cannot directly set aside a judicial decision.

However, where a legislature merely seeks to validate the acts carried out under a previous legislation which has been struck down or rendered inoperative by a Court, by a subsequent legislation without curing the defects in such legislation, the subsequent legislation would also be ultra- vires. Such instances would amount to an attempt to ‘legislatively overrule’ a Court’s judgment by a legislative fiat, and would therefore be illegal and a colourable legislation.

The power of judicial review is a part of the basic feature of our Constitution which is premised on the rule of law. Unless a judgment has been set aside by a competent court in an appropriate proceeding, finality and binding nature of a judgment are essential facets of the rule of law informing the power of judicial review. Simply setting at naught a decision of a court without removing the defects pointed out in the said decision, would sound the death knell for the rule of law. The rule of law would cease to have any meaning if the legislature is at liberty to defy a judgment of a court by simply passing a validating legislation, without removing the defects forming the substratum of the judgment by use of a non-obstante clause as a technique to do so.”

Equally crucial to rule of law is the procedure of the Parliament as is the content of laws. Recently, in Sita Soren v. State of Jharkhand, (2024) 5 SCC 629, the Supreme Court addressed whether MPs and MLAs have constitutional immunity under Article 194(2) (for State Legislatures) and Article 105(2) (for Parliament) in cases involving allegations of bribery.

Overruling the judgment in P.V. Narasimha Rao v. State (1998) 4 SCC 626, the Supreme Court undertook a thorough examination of Articles 105(2) and 194(2), which provide immunity to members of Parliament and State Legislatures for “anything said or any vote given” in the legislature. Bribery, the Court held, is inherently unlawful and does not qualify as an act essential to legislative duties. The judgment marks a significant precedent, emphasising that lawmakers are subject to anti-corruption laws and that legislative privilege cannot shield criminal or corrupt behaviour. Recently, while interpreting Article 200, the Supreme Court speaking through Chandrachud, C.J. in State of Punjab v. Principal Secretary to the Governor of Punjab, 2023 INSC 1017, reiterated and explained that the Governor is a symbolic head and cannot withhold action on bills indefinitely. In an exposition of checks and balances between different constitutional postholders, the Court explained that reconvening a sitting of the Legislative Assembly which had not been prorogued is an exclusive prerogative of the Speaker and not of the Governor. This instance surfaces the presence and strength of checks and balances. While in a different context, the wisdom of the judgment in S.R. Bommai has emboldened constitutional checks and balances and has empowered the judiciary to not shy away from questions having ‘political complexion’.

Instructive in this regard is the following paragraph from State of Punjab:

“Political differences in a democratic polity have to be worked upon and sorted out with a sense of sobriety and maturity. The dialogue between constitutional functionaries cannot degenerate into a race to the bottom.”

So long as there is deviation from the goal of constitutional methods and constitutional statesmanship being not the norm till then, I think the Constitutional Court will continue to be burdened with such cases and exercise its power of judicial review. Nevertheless, it is clear that a centripetal force of Indian separation of powers involves an activist role for the Supreme Court and the High Courts to ensure that institutions act within their spheres.

It is pertinent to acknowledge that when courts exercise judicial review they are not legislating or employing political power. They are applying the elementary principle of law that the acts of an agent in excess of his authority do not bind his principal: the agent being the state, the principal being the people, and the authority as defined and detailed in the Constitution. Judges in such instances have no choice but to enforce the Constitution as the law of highest obligation. Necessary to true enforcement is the judicial independence, which I will dilate on now.

Judicial Independence: a check to balance judicial powers:

The inception point of any understanding of independence of the judicial organ is the doctrine of separation of powers and the consequent independence of the judiciary from the executive and the legislature. Expansively, independence of judiciary is not limited to independence of an autonomous institution but also requires the absence of any extraneous influence in exercise of judicial duty viz. independence of the individual member of the judiciary.

Where independence exists, courts are able to be more forceful mechanisms for defence of constitutionalism and justice. Article 50 of the Constitution urges for separation of judiciary from the executive in the public services of the State.

In my view, only an independent and impartial judiciary can effectively exercise its power of judicial review. Judicial decisions, rendered by exercising the power of judicial review are the most significant situs for judicial independence to be secured.

The focus of institutional independence is on ensuring an appointments process which upholds independence of the judiciary and administrative independence of the Courts. Montesquieu’s conception recognized the importance of institutional separation as a prerequisite of judicial independence.Ultimately, the independence of the judiciary depends on the totality of a favourable environment created and backed by all state organs.

Political insularity is critical to the independence of the judiciary. In formulating a general definition of judicial independence, most scholars have placed a great deal of emphasis on impartiality and insularity.

The first is impartiality or the idea that judges will base their decisions on the law and facts and not any predilection toward any of the litigants. Impartiality can be thought of as related to judges’ attitudes and beliefs as well as their behaviour vis-à-vis particular political and social actors.

On the other hand, insularity relates to the notion that Courts must not become grounds for realisation of political aims. Insularity is believed to result, inter alia, from granting security of tenure to judges and providing significant checks and balances in their appointment.

While the other two traits of independence concentrate on the status of individual judges, the third component places emphasis on the position of the courts within the larger political system and their functional relationship with other branches of the government. It makes the existence of significant levels of judicial independence contingent on the degree to which the judicial institution has a distinct and discrete role. Such a role must be detached from the interests of the political system or the concerns of powerful social groups. The role must solely be to regulate the legality of state acts, ensure justice and determine the general constitutional and legal values.

Judicial independence is the degree to which a judge decides cases consistent with his/her own interpretation of the law, sometimes, in opposition to what others think or desire in like matters. In other words, it is the degree to which judges actually decide cases in accordance with their own determination of facts, evidence and the law, free from coercion, blandishments or interference from other organs of government, or other citizens.

The concept of judicial independence is believed to be closely intertwined with the doctrine of separation of powers. Independence of the judiciary, is more closely related to the supremacy of the law.

Judicial independence and supremacy of the law work together to guarantee that the rule of law will not be eroded by the political pressures in existence at any particular point in time. Insulating judges from political influence advances the same objective. Both these concepts are therefore important underpinnings to the rule of law which we cannot afford to take for granted.

The next question that needs to be addressed is as to the relationship between judicial accountability and independence. Are these mutually incompatible values, destined always to be in a state of tension? Alternatively, should accountability be viewed as a correlative obligation of independence, the one being the necessary complement of the other? In my view, these two values are to be perceived as complementary rather than antithetical. Judicial independence is merely the other side of the coin from judicial accountability. The two are not at war with each other but rather are complements. Neither is an end in itself but rather means to an end, or a variety of ends surrounding the constitutional ideals.

But judicial independence was not designed as, and should not be allowed to become, a shield for judicial misbehaviour or incompetence Judicial accountability must seek to moderate decisional independence and other judicial behaviour that is inconsistent with the ability of courts to achieve the role envisioned for them.

This idea has been conveyed in the most evocative manner by Justice Frankfurter of the US Supreme Court in Baker vs. Carr, 369 US 186 (1962) wherein it was observed and I quote: “The Court’s authority- possessed of neither the purse nor the sword-ultimately rests on sustained public confidence in its moral sanction.”

In the ultimate analysis, judicial accountability is owed to the Law itself. Accountability to the law, the idea that it is the duty of the judges to remain faithful to the law.

The rule of law, defended by an independent judiciary, plays a crucial function by ensuring that civil and political rights and civil liberties are safe and that the equality and dignity of all citizens are not at risk. It also helps protect the effective performance of the various agencies of electoral, societal and horizontal accountability from potential obstructions and intimidation by powerful State actors.

Ultimately, the extent of independence of the judiciary relates back to independence, impartiality and integrity of the men and women holding judicial office. It is therefore, all important that meritorious judges are appointed, who have the pulse of the Indian society and the Country in their hearts and the rule of law in their mind, while seeking to render justice. It is the personality of the judges that will determine in the truest sense, the extent of judicial independence and autonomy.

In my view, independent exercise of judicial power is not only a judge’s prerogative but also a judge’s duty. It is therefore important that judges decide true to their own appreciation of the law and their conscience, unfettered by the views of another. It is ultimately conviction, courage and independence of Judges which decide matters before a court of law. From the aspect of judicial independence within the court system, separate opinions or dissenting opinions must be seen as an expression of mutual independence of the judges, i.e., independence of a judge from other judges. This is independence of the judiciary in its most enlightened form.

On that note, I conclude my lecture with the firm hope that all gathered here will reaffirm our commitment to securing independence of the judiciary, remain alive to the insidious challenges to it, and be vigilant in safeguarding and strengthening the judiciary.

Justice B.V. Nagarathna is a judge at the Supreme Court.

Despite Stern Rebuke by Supreme Court, Adityanath Issues Bulldozer Threat in Jharkhand

‘These bulldozers are parked here to retrieve the money looted in dacoities, to get back the money taken in these dacoities,’ the UP chief minister said in Jamtara.

New Delhi: The Supreme Court may have deemed bulldozer justice “totally unconstitutional” and equated it a “lawless state of affairs” but that has not deterred Uttar Pradesh chief minister Adityanath from warning of their use in future.

Wrapping up his election campaign in Jharkhand on November 18, Adityanath hinted at the use of bulldozers against political opponents if the Bharatiya Janata Party was voted to power in the state. In fact, just five days after the apex court stated that the government would not be allowed to demolish the property of an accused person without following due process of law, bulldozers were parked at the venue of at least two public meetings addressed by Adityanath in Jharkhand on November 18.

Adityanath’s defiant reference to the bulldozer comes in the wake of two adverse decisions in the Supreme Court against the government on the trend of illegal demolition of property. A three-judge bench including the then Chief Justice of India, D.Y. Chandrachud, on November 6, directed Adityanath’s government to pay a senior journalist Manoj Tibrewal a compensation of Rs 25 lakh after his ancestral house and shop were unlawfully demolished by officials for widening a road in Maharajganj. In its judgment, the court said that “Bulldozer justice is simply unacceptable under the rule of law” and that, “Justice through bulldozers is unknown to any civilised system of jurisprudence.”

Then, on November 13, the Supreme Court while indicting the government for starting a trend of illegally demolishing homes and properties of persons accused of crime, said such arbitrary actions by officials would be dealt with a heavy hand of the law.

These words seem to have had no impact on Adityanath, who has often glorified the use of bulldozers, earning the moniker ‘bulldozer baba‘ – ‘father who uses bulldozers’. While accusing the Jharkhand Mukti Morcha-led government in Jharkhand of looting the resources of the state, Adityanath said bulldozers were ready to retrieve the money.

“Isi dacoity se paisa nikalne ke liye bulldozer khada hain. Isi dacoity ke paise ko vapas lene ke liye (these bulldozers are parked here to retrieve the money looted in dacoities, to get back the money taken in these dacoities),” Adityanath said in Jamtara district. The statement was met with loud cheers.

Also read: In Jharkhand and Maharashtra, Yogi Unleashes Rhetoric of Hatred to Mobilise Hindus Behind BJP

His allegations that the JMM and its partner Congress had looted the resources of the state along with the funds sent by the central government of Narendra Modi were based on the recovery of alleged unaccounted cash from two opposition leaders during raids by central agencies. In May, the Enforcement Directorate said that it recovered around Rs 20 crore in “unaccounted cash” from the premises of the domestic help of the personal secretary to Jharkhand minister Alamgir Khan. In a previous rally in Koderma, Adityanath had compared Alamgir Khan to Mughal emperor Aurangzeb.

In December 2023, the Income Tax department said it had recovered Rs 350 crore in cash from entities linked to the companies of Congress Rajya Sabha MP Dhiraj Sahu.

Referring to both these raids, Adityanath said the “mountain of notes” recovered from Sahu and Khan were examples of how the JMM-Congress government had looted the state. “This money does not belong to the JMM or the Congress but to the people of Jharkhand,” said Adityanath as he warned that the bulldozers (parked at his rally venue) would retrieve the money.

The bulldozers also featured in his rally in Rajmahal. But he did not refer to them in the rally. However, in a post made later on social media site X (formerly Twitter), Adityanath shared a picture of the rally in Rajmahal showing his supporters perched on three bulldozers. Two of the bulldozers had supporters holding large saffron flags (shaped as stacked triangles).

Adityanath referred to the use of bulldozers in a recent rally in Koderma, where he gloated about the impact demolitions through bulldozers had in his state UP ever since he assumed power. “Prior to 2017, the mafia would walk around UP with the chests pumped. But after 2017, when bulldozers started being used, even the most dreaded mafia left the lands of UP. Today, some are in jail while others have embarked on a ‘ram naam satya hain’ yatra,” said Adityanath.

How Bashir Badr’s Couplets Echo in SC’s Judgment on Bulldozer Actions

It is nothing but unfortunate that Badr’s couplets written almost four decades ago are still equally relevant even today.

Earlier last week while delivering the judgment in a matter related to arbitrary demolition of properties of people accused of a crime, Justice B.R. Gavai of the Supreme Court began his verdict with the following couplets of Kavi Pradeep: 

“Apna Ghar Ho, Apna Angan Ho

Is Khwaab Mein Har Koi Jeeta Hai

Insaan Ke Dil Ki Ye Chahat Hai 

Ki Eik Ghar Ka Sapna Kabhi Na Chhoote”

Meaning, in everyone’s heart lives a dream to have one’s own home, one’s own courtyard. It is a longing that never fades and they never lose the dream of a home.

Justice Gavai goes on to note that, “It is a dream of every person, every family to have a shelter above their heads. A house is an embodiment of the collective hopes of a family or individuals’ stability and security.”

Hence, “if a citizen’s house is demolished merely because he is an accused or even for that matter a convict, that too without following the due process as prescribed by law, in our considered view, it will be totally unconstitutional for more than one reason,” the apex court declared. 

Reading the judgment, one was reminded of another poet and some of his couplets. In fact, over the last few years, especially with advent of ‘bulldozer justice’, I have been time and again reminded of noted Urdu poet Bashir Badr and his following couplets:

Log Toot Jaate Hain Ek Ghar Banane Mein 

Tum Taras Nahi Khate Bastiyan Jalane Mein

(People break their backs making a house

You don’t think twice burning down colonies)

Bade shauq se mera ghar jala, Koi aanch tujh pe na aayegi

Ye zabaan kisi ke khareed li, Ye qalam kisi ka ghulam hai

(Burn my house with pleasure, you will hardly face any repercussion

Someone has bought this tongue, and this pen has also been enslaved)

While it is not known what prompted Kavi Pradeep, who is best known for one the most famous patriotic song, “Ae Mere Wattan Ke Logon”, there is a tragic story behind Badr penning down these couplets, which are part of two separate Ghazals. Currently suffering from dementia, Badr is one of the most quoted Urdu poets in popular culture and politics. His couplets has been often used by leaders across the party-line to settle political scores. And the leaders include Narendra Modi, Mallikarjun Kharge, Rahul Gandhi and Akhilesh Yadav, to name a few. 

In February 2018, while participating in the debate on the motion of thanks to the President’s address in the parliament, Prime Minister Modi quoted poet Badr to attack the Congress. Modi chose the following couplet by the Urdu poet for the occasion: 

Jee bahut chahta hai sach bolein

kya karein hausla nahi hota 

(My heart want to speak only what’s true 

But courage fails, what can I do) 

He was responding to Congress leader Kharge, who had recited Badr in the parliament to hit out at the Modi government on the previous day. Kharge, quoting the Urdu poet, said:

Dushmani jamkar karo lekin ye gunjaish rahe, 

jab kabhi hum dost ho jaayen toh sharminda naa ho

(Keep pursuing bitter enmity but let there be a little scope,

That when we become friends, we must not feel ashamed)

Notably, this couplet was written in the context of the Partition and was quoted in 1972 by the then President of Pakistan Zulfikar Ali Bhutto in the presence of Indira Gandhi, the then prime minister of India, during the signing ceremony of the Shimla Agreement, a peace treaty between India and Pakistan. 

Also read: ‘Executive Cannot Become Judge’: Supreme Court Continues Onslaught Against Bulldozer Justice

In December 2016, while addressing a public rally in Almora (Uttarakhand) Rahul Gandhi used the following couplet of Badr to attack the demonetisation exercise by the Modi government. 

Log toot jaate hain eik ghar banane mein 

Tum taras nahi khate bastiyan jalane mein 

(People break down while trying to build one house

You don’t feel sorry for burning entire settlements)

It is this couplet of Badr which kept coming to my mind every time I heard of an arbitrary demolition.

According to a study on forced evictions in India, more than half a million people (five lakh) were evicted in India in 2023 alone, the highest in the last seven recorded years. The study notes that a large number of affected persons belonged to historically marginalised groups such as Dalits, Adivasis, OBCs, nomadic communities, migrant workers, Muslims and religious minorities. Another study notes that the authorities in four BJP-ruled states and one Aam Aadmi Party-governed (AAP-governed) state punitively bulldozed 128 structures, mostly belonging to Muslims, between April and June 2022.

Badar wrote the above couplet after his house was burnt down during the communal violence of Meerut in 1987. Apart from his other belongings, Badr lost his unpublished poems in the communal fire. According to filmmaker and music composer Vishal Bhardwaj, “Bashir sahab was very upset and went into depression after losing his unpublished poems.”

It was Bhardwaj, who helped him to rewrite most of those poems as he had heard/ read them and remembered most of it by heart. “I wrote down 90% of those ghazals and gave him back. In those days, I was one of the two people who had privilege to have access to his company. As a matter of routine, he would recite his poems to me. Therefore, his poetry was preserved in my memory,” recalled Bhardwaj, during a session at Jashn e Rekhta 2015. 

However, Badr was so traumatised by the event that he left the city thereafter and settled in Bhopal for life.

His another couplet, “Bade Shauq Se Mera Ghar Jala, Koi Aanch Tujh Pe na Aayegi…” features in popular film Dedh Ishqiya (2014), whose screen play was co-written by Bhardwaj. It is nothing but unfortunate that Badr’s couplets written almost four decades ago are still equally relevant even today. The only apparent difference is bulldozing has replaced burnings and the state authorities have occupied the role, earlier performed by the communal mob.

With the Supreme Court warning that if these directions are flouted, the officials responsible will be liable for contempt of court and prosecution, one hopes that we won’t be forced to be reminded of Badr’s words, expressing helpless of the victims of burning and bulldozing. 

Poor Prisoners Left in Limbo as Centre’s Bail Scheme Fails to Deliver

India is reported to have 573,220 prisoners, based on the latest government data released in 2023. The majority of them — more than three in four — are undertrials.

Bengaluru: Shishir (name changed) was released on cash bail in the middle of October 2024, after spending three years as an undertrial prisoner in Thane jail in a case of murder. A mason and carpenter, the 35-year-old from Palghar whose trial is yet to begin is from a poor family — his father is a mason, mother a domestic worker, and younger brother does odd jobs.

“We [family] make around Rs 10,000-15,000 a month,” said Shishir, who has studied till grade VII and has not found a fulltime job since his release from jail. “The others [other eight accused] went out almost a year ago, but I could not find someone to stand surety and pay Rs 25,000 for my bail.”

He was released on cash bail under the Union government’s 2023 scheme for support to poor prisoners. In her 2023 budget speech, Union finance minister Nirmala Sitharaman announced that the required financial support will be provided for poor prisoners who are unable to afford the bail amount. The scheme provides financial aid of up to Rs 40,000 for undertrials and Rs 25,000 for convicts, based on the approval of the empowered committee chaired by district collectors.

The scheme is intended to solve for a problem: In December 2023, based on data submitted by the high courts, 24,879 accused who were granted bail by trial courts continue to be in custody due to their inability to furnish bail bonds, said an October 2024 report by the Centre for Research and Planning (CRP), the Supreme Court’s research wing. Allahabad (6,158), Madhya Pradesh (4,190), Bihar (3,345) and Bombay (1,661) high courts identified the most number of undertrials in prison due to their inability to furnish bail bonds, it said.

While the scheme is intended to support such prisoners, it has not been effectively utilised and implemented by states. An October 2024 home ministry advisory said that “many states/UTs are yet to take full advantage of this scheme despite MHA’s [Ministry of Home Affairs’] repeated persuasion in this regard”. The report indicated the limited impact of the scheme.

This is further evident in the responses to right to information (RTI) requests filed by IndiaSpend in Delhi and eight states — Maharashtra, Uttar Pradesh, Odisha, Madhya Pradesh, Chhattisgarh, Kerala, Bihar, West Bengal. We sought information on formation of empowered committees at the district level and oversight committees at the state level, their meetings, and the number of prisoners identified for release under the scheme in 2023 and 2024. We filed the first request on August 16 and received the latest response on October 17. As of November 14, we received responses from six of these:

  • Maharashtra was the only state which has released prisoners — 10 undertrials and one convict–through the scheme.
  • Odisha said that it had identified four convicts and three undertrials by July 31, but no one had been released as on the date of the response.
  • Delhi identified 103 eligible convicts and undertrials; two jails said they did not release any prisoners, one said it did not maintain such data.
  • Three Bihar jails shared data of custodial populations released through legal aid from District Legal Services Authority (DLSAs), but not through the scheme.
  • Kerala did not share data on those released under the scheme, but said that the prisons department had opened a zero-balance subsidiary account for the scheme’s implementation
  • West Bengal has not implemented the scheme as yet
  • Uttar Pradesh, Madhya Pradesh and Chhattisgarh did not share data by the time of publishing.

Experts said that the scheme will not lead to the reduction of prison congestion or have a significant impact in tackling related issues. In any case, they said, the scheme may not be as impactful since existing court orders and processes are adequate for the purpose if implemented properly.

Odisha held 84 district level meetings, did not release prisoners

India is reported to have 573,220 prisoners, based on the latest government data released in 2023. The majority of them — more than three in four — are undertrials like Shishir, and 30% are educated below grade X.

Despite the Undertrial Review Committee’s (UTRC) campaign in July 2022 to identify undertrial prisoners eligible for release, and the country adding 11 prisons since 2021, India’s prisons were filled to 131% of capacity. One of the reasons to formalise the scheme was to reduce this congestion.

The scheme guidelines say that the National Crime Records Bureau (NCRB), as the central nodal agency (CNA), will provide funds. An ‘empowered committee’ — to be constituted in each district with the district collectors and magistrates (DCs/DMs) as chair — will assess the financial support required in each case and will draw bail money from the CNA account.

Also read: G.N. Saibaba’s 2017 Prison Letter Sheds Light on the Rights of Disabled Prisoners

Oversight committees at the state level including the principal secretary (home/jail), secretary (law), secretary-state legal services authority, director general/inspector general (prisons) and registrar general of the high court, will decide in cases where the bail amount is more than Rs 25,000 or Rs 40,000, respectively, for convicts and undertrials

Those accused under the Prevention of Corruption Act, Prevention of Money Laundering Act, The Narcotic Drugs and Psychotropic Substances Act, Unlawful Activities Prevention Act or crimes against women are not eligible for the scheme.

The NCRB, which is the nodal agency, said that information was not available with the central public information officer.

Delhi had constituted 16 empowered committees, one for each of its jails, and an oversight committee, RTI replies show. As noted above, data were received from only three jails.

Odisha constituted empowered committees in all 30 districts and held 84 meetings. Its oversight committee had met once. The state has also identified one undertrial prisoner whose bail amount is more than Rs 40,000, but the case was rejected by the oversight committee. Two other convicts were identified whose bail amount was more than Rs 25,000, and their cases were under consideration as on July 31.

Kerala had constituted both district- and state-level committees but did not share information on meetings. In October, it was reported that the Kerala High Court had asked the state government and director general for prisons to furnish information on the current status of the zero balance subsidiary account opened under the scheme including the amount presently available in the account. The RTI said that a zero balance account had been opened and NCRB had been requested to map it based on scheme guidelines.

Maharashtra did not share any information on meetings held, but the state had demanded and utilised Rs 2.09 lakh in 2024-25. It released 11 prisoners. West Bengal had not implemented it as on September 26, 2024.

In Bihar, only Bennipetti jail in Madhubani district said that it had constituted committees in the state, although it did not specify if it was at the state or district level.

The RTI data shared by Betia, Muzaffarpur and Samastipur jails were related to prisoners released through legal aid support, and not specifically identified for the scheme. The jail did not share any other data.

“The SOP and guidelines for the support for poor prisoners have only been shared recently with Bihar jails,” said Praveen Kumar, founder and director of the Patna-based Law Foundation. The guidelines and SOP were signed on October 14 by the additional secretary and director (administration).

Scheme being housed in collectors’ office makes it a non-starter

Vijay Raghavan, professor, Centre for Criminology and Justice at the Tata Institute of Social Sciences (TISS), Mumbai and project director of TISS’s Prayas, which works on social work intervention in criminal justice, was part of the committee constituted by the home ministry to finalise the scheme.

Section 436 of the erstwhile Criminal Procedure Code (now replaced by Section 478/479 of the Bharatiya Nagarik Suraksha Sanhita) said that if person is in jail unable to give bail even after a week of his arrest has passed, that person should be considered indigent and be released on personal bond, said Raghavan. “If this were implemented sincerely, the cash bail scheme may not be required. The discretion is with the presiding magistrate or judge.”

In January 2023, in the Sonadhar case, the Supreme Court order noted that, based on data furnished by the amicus curiae, there were 5,000 undertrials in India who were in jail despite being granted bail, of which less than half were provided legal assistance and less than one third had been released.

The Supreme Court in its order also issued a seven-point guideline for releasing prisoners. Points six and seven recommended that bail conditions may be modified or relaxed if bail bonds are not furnished within one month from the date of grant of bail, and the local courts may not impose local surety because it leads to delay in release of prisoners on bail.

Bail conditions for an accused can include the option for the accused and their sureties to enter into a bond of a certain amount so fixed by the judge, which may be forfeited upon violation of the conditions, said the CRP report.

The issue of local surety is a significant problem, particularly for prisoners who are not from the local area or jurisdiction. IndiaSpend had reported how poverty and lack of local community ties affect migrants under trial.

In the 1978 case of Moti Ram v. State of Madhya Pradesh, the Supreme Court had asked magistrates to consider fair and affordable bail conditions, and release on personal bonds.

There is a tendency for courts to “insist on monetary security with surety where only release on bail is provided for under the Code, without using the option of releasing an indigent accused on personal bond”, IndiaSpend had reported in March 2023.

When the scheme is housed in the DC’s office, “it becomes a non-starter”, said Raghavan. “It is low on the priority of the DC’s agenda. The DLSA should lead this process. But the Union government was concerned about releasing the funds from CNA which requires DC’s involvement.”

“The scheme does not complement the legal provisions or the bail jurisprudence which calls for liberal bail policies,” said Madhurima Dhanuka, a criminal justice reform expert. “… the prudent step is to ensure that such circumstances where financial support [is needed] for securing bail do not arise in the first place.”

The UTRC, which was established based on a 2015 Supreme Court order, has district level committees headed by the District & Sessions Judge, with the District Magistrate, Superintendent of Police and Secretary, DLSA as members. The committee reviews cases of prisoners and ensures they are not subjected to prolonged detention. It is similar to the role of committees in the 2023 financial support for poor prisoners.

Social workers needed for due diligence

TISS’s Prayas has been working with custodial populations in different prisons in Maharashtra for years, and has social work and legal fellows who since February of this year have been following up on cases of prisoners who can benefit from the scheme.

According to Raghavan, given the resource and time constraints faced by jail and legal authorities, it is important that the scheme provides for the presence of social workers to identify those prisoners who really need the support, based on their family financial and social circumstances.

“I had suggested during [MHA] Committee meetings that social workers should be attached to the DLSA or the prison on a pilot basis, to carry out due diligence of cases before they are considered for release,” Raghavan said. “Usually the prisoner’s family is poor, or the family does not know the process, or they live in a far off location. My suggestion to appoint social workers was appreciated by the committee members, but not taken on board fully.”

The final guideline did not make it mandatory to include a social worker or conduct a pilot. It said that the DLSA “may take” the assistance of civil society representatives, social workers/ NGOs, district probation officers or revenue officers, and that reviews should be completed within a period of 10 days.

Paralegal volunteers in jail, usually prisoners, identify and share information about the case status of a prisoner with jail authorities, who share a list with the DLSA. Based on those who are eligible under the guidelines, a due diligence is done by social work fellows of Prayas who visit homes and families of the prisoners. Presently the work is mostly limited to Thane, Taloja and Alibaug jails. Shishir was identified in February 2024.

While more eligible prisoners had been identified initially, some of them managed to pay bail and furnish surety. Finally, due diligence was done for those prisoners who were finalised by the DLSA before it was sent to the DC, said Saugata Hazra, Prayas’s legal fellow placed at Thane’s DLSA. “There were two meetings (April and August),” he said. “Most of the prisoners were in their 20s and the families were poor or did not want to take up the responsibility.”

Pravin Patil, Prayas’s social work fellow placed in Thane jail, who did the due diligence in Shishir’s case has been part of the team for 10 months. During due diligence, the social workers access copies of documents like Aadhaar or rent which are available with the court. The final list is approved and sent to DC, where it is signed off after a review meeting.

“Often, if the person is a habitual offender, the family does not want to take the responsibility. We inform them [and the prisoner] that after release they cannot abscond or miss court hearings,” said Patil.

Because of the requirement that the DC clear the final list, there are delays in releasing the prisoners whose due diligence has been approved by the DLSA. In Shishir’s case, he was identified in February but released only in mid-October.

While Prayas’s existing work and familiarity with the legal system in Maharashtra fit into the scheme’s requirement for due diligence, other states may not necessarily be able to replicate the process.

Also read: From Segregation to Labour, Manu’s Caste Law Governs the Indian Prison System

Praveen Kumar of Law Foundation in Patna said that the process is bureaucratic because it makes the DCs chair and they have the final say, and not the DLSAs. “It will require involvement of civil society organisations to invest time and resources.”

The organisation helps release prisoners through personal recognizance bond or PR bonds, where the prisoner themselves undertake that they would appear for court hearing. Praveen Kumar said that in Bihar, judges ask for surety which means someone has to stand as a guarantor. This means that there is additional effort needed to place a modification application in court to convert surety to cash bail, if the prisoner is to benefit from the scheme.

“I think the impact of the support for poor prisoners scheme is going to be limited because in Bihar cash bail is not prominent unlike in some of the metropolitan areas,” Kumar said.

Scheme won’t reduce prison congestion

One of the claims of the scheme is that it will reduce overcrowding of prisons, but experts do not believe this will happen. The scheme must be revised to align with the ground realities of India’s criminal justice system and with the UTRC that already exists, they said.

Valay Singh, lead, India Justice Report, feels that the scheme is “extremely imperfect” for ensuring decongestion of prisons or reducing the number of undertrials languishing in prisons despite bail. The focus must shift to unnecessary arrests and detention, and to the rejection of bail despite multiple Supreme Court orders.

“…there is already a mechanism of the UTRC whose mandate is to identify prisoners who can be released,” said Singh. “It is not clear why it has been left out of this scheme.”

Of the 73,635 undertrial prisoners recommended by UTRC for release, 48% were released in 2023, as were 352 convicts of the 2,188 recommended.

Dhanuka also does not agree that the scheme has any role to play in reducing prison overcrowding. “Lack of construction of prisons in accordance with increase in prison population, and the increasing duration of trials are in my view the major cause of overcrowding, which is not talked about enough,” she said.

Although courts seem concerned about accused absconding during court hearings, she said that courts must rely on PR bonds given improved technology and possibility of tracking released people, ensuring privacy-related legal requirements are met.

Amritha Moorthy, a research intern at IndiaSpend, contributed to the story.

This story was first published on IndiaSpend, a data-driven, public-interest journalism non-profit.

My Wishlist for the 51st Chief Justice of India

Please remember Lord Denning’s advice. Please take your colleagues into confidence in whatever you do. Whatever you do, please don’t speak to God.

Justice Sanjiv Khanna is now the 51st Chief Justice of India. My congratulations to him.

I have a wishlist that I would like to share with him and it reads like this:

First, everyone knows judges speak through their judgments. So, speak when you have to, but through your judgments, not at public platforms. In college, we would refer to constant speechifying as verbal diarrhoea. Its a terrible disease and can get you into into all kinds of messy situations.

There are a few exceptions to this; you could speak (and you should) at judicial academies in different parts of the country. This will immensely benefit judges and judicial officers and you will also get to know their strengths and problems. A token visit is not good enough – it will soon be forgotten. 

You could speak at law schools so that students and their professors know first-hand what judges and justice delivery are all about. You could speak on topics like legal aid and access to justice for the disadvantaged, the marginalised, those in custody and a few other sections of society. Something grounded. Do you know, millions of people are demanding justice, but cannot access courts for one reason or another. Please speak about giving them justice. About a decade ago judicial academies talked of a docket explosion, but there was also talk of docket exclusion. This is a reality you could talk about.

Whatever you do, please don’t speak to God. We have 30 million of them plus a few more. Their message is the same, but everyone interprets this differently. Can you imagine what will happen if God tells you and a brother or sister judge the same thing and both (or more) of you interpret the message differently. What will God think of you?

The other day, my doctor asked me to take a particular tablet before dinner. I asked three different Gods when exactly should I take the tablet. I got three different answers. God can play tricks. Don’t mess around with God and if you do, do it privately, not under the gaze of a camera.

Second, while on decision making, may I suggest that judgments delivered by courts should be short and to the point. Remember Lord Denning’s advice – keep it short, stupid. Please share it with your colleagues, but don’t call them stupid. There is no need to sermonise. If the people want to participate in a sermon, they can always go to a satsang and then there are all night jagrans if you are looking for a long sermon. There’s plenty to chose from. So, why bore everybody with judicial sermons they really don’t care about.

One day, I took a 450-page judgment to my neighbourhood book club. This led to an animated discussion – were we expected to discuss and review a judgment or a book? Opinion was divided, as one would expect, but more importantly, nobody cared to read the judgment cum book. So much for respect for the law and the courts. 

Many years ago, I met a professor of English who teaches judgment writing. Among his students are judges of the Supreme Court of Canada and the High Court of Australia and many such legal luminaries. He asked me one question: for whom do you write a judgment? There are many answers to this question. It could be the litigants before you, for there is no one else who is interested in the case but the litigating parties. It could be the lawyers since they need to advise their clients, that is why there are law reports galore. It could be your friend, your neighbour or the average newspaper reader who needs to know the law. The words and sentences employed in the judgment must be crafted accordingly. The average newspaper reader does not know Latin. The lawyers in Delhi or Mumbai have a good knowledge of English, but not the mofussil or taluka lawyers. In other words, short and well articulated judgments are the need of the hour, not hundreds of pages.

Third, please pay attention to appointment of judges. The political executive has emasculated the collegium system of appointments. They appoint whom they want to and disappoint others. The committed judiciary of Indira Gandhi’s dreams is gradually becoming a reality today. There are horror stories of pre-appointment consultations between the collegium and the political executive. I don’t believe them, but there are some who do. There is a recent article in the public domain that mentions this quite explicitly. True or not, the fact is some recommendations by the collegium have raised question marks and the failure to make some recommendations have raised even more question marks. We will know the truth in just a couple of years and if we do have a committed judiciary, we might as well write off our democracy. 

While on the issue of appointments, the collegium must also discipline itself. If the collegium doesn’t discipline itself, the political executive will certainly not. There is enough anecdotal evidence to suggest that files forwarded by the government for consideration of the collegium do not follow any chronological order and the collegium also does not follow any chronological order in its consideration. So, you have a situation (once too often) when a high court gets precedence over another. Candidates from that High Court therefore get appointed sooner. Why should the collegium play favourites? This unsavoury game upsets the seniority of judges and will have a visible impact about 10 years later when the appointment of Chief Justices and judges to the Supreme Court are made. While this discussion is relevant today, it looks like it will become irrelevant a decade later by which time the political executive will have taken full control of the appointment of judges. Please see if you can guard against this. You and the Supreme Court are our only hope.

Also read: Full Text | ‘The Seven Mistakes of Ex-CJI Chandrachud,’ According to Justice Madan Lokur

Fourth – pendency of cases. This is a massive problem. We now have more than 51 million cases pending in the courts across the country and more than 80,000 in the Supreme Court. Its difficult to find out how many are pending in various tribunals and other adjudicatory bodies all over the country. Is anybody bothered?

I’m sorry to say this, but your predecessors in office have shown hardly any interest in tackling the burgeoning pendency of cases for a variety of reasons – some, because of a short tenure as the Chief Justice and others because they don’t really care. You may be aware that every other day, somebody or the other makes a plaintive cry for justice. They don’t know that they may not get justice for the next 10 or 15 years and perhaps not in their lifetime. On the other hand, there are some who get justice surprisingly quickly. Is this fair? Justice and its dispensation has to be even-handed. The people of the country expect this. Public trust and credibility are the hallmarks of a robust justice delivery system and if these are missing, we’re heading for big trouble.

The huge pendency of cases can be tackled successfully – it will take a couple of years, but it is possible to achieve. Full cooperation and proper planning by the government and the judiciary is essential. At present, neither of them seem interested and the beat goes on. 

It is essential to make all high courts equivalent to the Supreme Court of the state. Why should the Supreme Court entertain cases relating to the interpretation of state and municipal laws? The high court of the state must have the final word and if it makes a mistake, it can always correct the error. Even the Supreme Court corrects its mistakes, why can’t the high courts? The Supreme Court has always been loathe to interfere in interlocutory orders, but now petitions are filed and sometimes (though infrequently) entertained by the Supreme Court. Ask yourself, why?

Finally, please take your colleagues into confidence in whatever you do, particularly your potential successors. Justice management is not a one man show.You can’t tackle all problems by yourself. You also can’t tackle them during your tenure – some problems take time to get sorted out. If your colleagues are involved in the decision making and implementation process, continuity is assured. Often, the succeeding Chief Justice undoes what his predecessor started out to do. Don’t let that happen. Chief Justices of high courts are key players in the justice system. You can (and must) consult them also. After all, some of them might become judges of the Supreme Court one day. 

You have inherited a great legacy, that of your uncle Justice H.R. Khanna. He spoke truth to power and in doing so, he was true to the constitutional oath that he had taken. Nothing less, absolutely nothing less is expected of you. I am confident you will take correct decisions in the interest of the Supreme Court and justice delivery across the country. Worrying about the legacy that you have inherited, not your legacy, will help.

Justice Madan B. Lokur is a judge of the Supreme Court of Fiji. He is former judge of the Supreme Court.

Delhi Court Grants Vikash Yadav Exemption From Case Hearing Citing Security Concerns

Yadav’s application claimed that his life is at risk due to his photographs and residential address being publicly accessible. He argued that even appearing via video conferencing could compromise his safety.

New Delhi: A Delhi court on Saturday, November 16, granted exemption from hearings for about three months to Vikash Yadav, who is facing charges in India for an extortion case and is wanted by the US Department of Justice for alleged involvement in a “murder-for-hire” plot and money laundering linked to pro-Khalistan separatist lawyer Gurpatwant Singh Pannun.

The court on Saturday accepted Yadav’s plea citing threats to his life and directed him to appear for the next hearing on February 3, 2025, reported the Indian Express.

The newspaper reported that Yadav’s application, filed through advocate R.K. Handoo, claimed that his life is at risk due to his photographs and residential address being publicly accessible. Yadav argued that even appearing via video conferencing could compromise his safety as the location could be traced. He attached media reports to buttress his claim for exemption from hearing.

In November 2023, US authorities had unsealed an indictment that charged an Indian national, Nikhil Gupta, for charges of attempted murder of Pannun. The charges observed that Gupta was directed by an Indian government official, who was then identified only as “CC-1.”

A Delhi Police FIR shows that Yadav was arrested three weeks after the unsealing of the indictment on December 18 on charges of kidnapping and extortion. He was released on bail by a Delhi court after four months in Tihar Jail in April this year.

Last month, the US prosecutors unsealed a second indictment that directly charged “CC-1,” now identified as Vikash Yadav, an official at the cabinet secretariat under the prime minister’s office.

The Ministry of External Affairs later stated that he was “no longer an employee of the government of India.” However, the government has yet to disclose his current whereabouts.

The next hearing in the Delhi Court will, of course, take place after Donald Trump’s second presidential term will be officially inaugurated.

When The Wire had visited Yadav’s village in Haryana in October, his family had said that he had called them immediately and told him that he was “safe and sound,” but did not reveal his whereabouts.

Also read: FBI Accused Vikash Yadav Visited Family Last Week; ‘Can You Take My Voice to the Government?’ Asks His Mother

The US indictment had also indicated that the alleged conspiracy to assassinate Pannun was part of a larger plan which also included the killing of Canadian Khalistani separatist Hardeep Singh Nijjar.

In September 2023, Canadian Prime Minister Justin Trudeau was the first to accuse India of involvement in Nijjar’s killing – an allegation India swiftly dismissed while taking measures that have effectively frozen political ties.

In contrast to its stance on the Canadian claims, India established a committee to investigate the US allegations of an Indian government official’s involvement. The panel even travelled to Washington last month. Indian officials explained the differing responses, stating that Canada had seemingly failed to provide any evidence to support its allegations.

What Is CJI Chandrachud’s Legacy as Administrator of India’s Judicial System?

His conduct indicates a serious lack of interest for the woes of the common litigant and a myopic outlook.

Familial, social, and political factors shaped the journey of former Chief Justice of India D.Y. Chandrachud within the Indian judiciary.

His father, Justice Yeshwant Chandrachud, is remembered as the longest-serving Chief Justice of India. As a prominent figure in law, the senior Chandrachud’s legacy created opportunities and opened many doors to young Dhananjay Chandrachud. He completed his Master of Laws on an Inlaks scholarship and later went on to do his Doctor of Juridical Science from Harvard University.

At a relatively young age he achieved key career milestones, such as his appointment as an additional solicitor general and as a high-court judge at the age 40. His early promotion was unusual, as the judicial system typically reserves such positions for candidates in their late forties. Despite objections due to his age, his father and influential mentors like Soli Sorabjee and Ram Jethmalani had advocated strongly for his elevation. 

In many ways, he was treated by everyone as someone who is destined to inherit his father’s legacy. However, his tenure does not reflect any enduring legacy of his own. It was marked by superficial makeovers and publicity stunts as an administrator. A lot has already been said about his judicial legacy, however we shall analyse his administrative legacy here. 

Pendency and the common litigant

His image of being a tech-savvy judge did not translate to a reduction of pendency. When Chandrachud took over as CJI in November 2022, there were 69,781 cases pending in the Supreme Court. As of October 29, 2024, there were 82,668 cases pending. Considering COVID-19 was long gone at the time of his assuming the office, it can clearly be stated that pendency cannot be attributed to the pandemic. In fact, filings have nearly doubled since Chandrachud took over. The perception of Chandrachud being a modern and reform-driven judge seems to have faltered against the reality of mounting delays in the judicial process.

Similarly, data from National Judicial Grid indicates that out of 4.5 crores pending before the sub-ordinate judiciary, 62.05% is more than one-year-old and out of 60.57 lakhs cases pending before the high courts, 73.44% are more than a year old. The book ‘50th Chief Justice of India’, published by Centre for Research and Policy, Supreme Court of India, paints a glowing picture of Chandrachud’s tenure, landmark judgements and his efforts to modernise the judiciary. While the book celebrates his legacy as the 50th CJI, but conveniently hides these figures and highlights only cumulative disposals. 

In his tenure he is said to have initiated the following changes in court:

  • introduction of transcription software for constitution benches,
  • WhatsApp notification service for advocates-on-record,
  • improvement of Fast and Secured Transmission of Electronic Records or FASTER system,
  • creation of a war room in registry,
  • release of new website for the Supreme Court, etc. 

No doubt these little changes are welcome, however in a situation where 1/5th of the court complexes do not have basic infrastructure such as toilets, the radio silence on them clearly indicates a serious lack of interest for the woes of the common litigant and a myopic outlook.

During his tenure, there was no streamlining of filing or listing policies. Further, many members of the bar and post-holders of the Supreme Court Advocates-on-Record Association have continuously complained about the registry being inefficient, with new recruits not having the sufficient legal background to understand the nature of filings.

Benches

Additionally, there has been a new trend of not allowing lawyers to circulate letters of adjournment, which has become a cause of concern for certain senior practitioners. Such a change was introduced by going against the existing old norms of the court. We saw bail pleas of Mahesh Raut, Umar Khalid, Palaniswamy, Chandrababu Naidu, Senthil Balaji, and D.K. Shivkumar as instanceswhich portrayed the then CJI’s lack of adherence to rules of allocation. 

Even among his brethren judges, collegiality was clearly missing. It has been revealed that profiles of advocates were not completely disclosed to judges for senior designation, rather judges were called to view pictures of advocates to be designated on a large screen. This is said to have created friction between Chandrachud and his colleagues, leading to a verbal spat over the impropriety in the selection process. Moreover, there have been repeated instances of judges taking the registry to task over misallocation of cases under his regime.

Collegium

His collegium also has not met the expectation of people. He was able to appoint only 124 number of judges to various high courts when the vacancy stands at over 320. His rhetoric of women empowerment did not reflect in action as he was not able to appoint a single women out of the 17 appointments he made to the Supreme Court. Justification on lack of availability of senior women judges does not hold water as many a time seniority has been overlooked to appoint a Supreme Court judge. There was no representation from the Sikh community. Certain regions like Odisha, Jammu and Jharkhand did not see representation.

Critical appointments of senior advocate Saurabh Kirpal, R. John Sathayan, Amitesh Banerjee and Sakhya Sen were not pushed and he allowed government objections to prevail. Grave errors were committed in not elevating talented judges like S. Murlidhar, while at the same time aspersions were cast on appointments of the likes of Justice Victoria Gowri.

More importantly, the collegium headed by CJI Chandrachud transferred around 20 high court judges across the country. Considering the opaque nature of these transfers whether any norms are followed or not is left for speculation. It has come to light that one of the transferred judges, who has a specially-abled child and a spouse who is undergoing treatment for cancer, had allegedly requested to continue in the same court. His representation was allegedly denied stating that it lacks merit. A similar response was given to a judge who requested to be transferred so as to be able to care for his seriously ill wife at the place of treatment.

The past year saw transfer of judges from the southern states to northern states, and vice-versa. It is a known fact that proceedings in the high court, other than the Chief Justice’s court, often take place in colloquial languages. How the judges are expected to do their judicial work to their  full capacity is not known. In all the transfers orders, it is mentioned that the transfers were affected for better administration. However, the logic betrays the same. 

His relations with the bar has also been tumultuous. As recent as three days before he left office, both the Supreme Court Bar association as well as the association for advocates-on-record passed a resolution boycotting the inauguration ceremony. His regime was marked with unilateral decisions, without consideration of inputs from members of the bar. Policies such as induction of a new emblem, a new flag, a modified Lady Justice without the blindfold and sword of implementation, modifications of the Supreme Court building and planning of work stations have not gone well with the members of the bar.

A fraught judicial legacy too

Coming to his judicial legacy, his tenure was marked by the dismissal of a case alleging suspicion in Justice Loya’s death, extension of the tenure for Jay Shah as BCCI Secretary, siding with BJP allies in Shiv Sena politics by allowing the cause to be rendered infructuous, the Hindenburg debacle, providing new methods to increase power of the Union government in Delhi, upholding the Union government’s Article 370 move, etc. The list continues and much has been written about it. However, the case which stands out is the opening of the review of an old judgment which struck down retrospective application of Benami Transaction Act, without allowing proper chance for parties to argue.

Further, the judgment delivered by a coordinate bench comprising Justice Krishna Murari and Justice C.T. Ravi Kumar in the case of Ritu Chhabaria, wherein it was held that incomplete charge sheets cannot be used a tool by investigating agencies to scuttle the right of default bail, was stayed by another coordinate bench headed by CJI Chandrachud on mere mentioning by the Solicitor General of India. This was done neither by way of a review, nor by way of a curative. Never before had a coordinate bench of the Supreme Court stayed another judgment of a coordinate bench, that too by way of an unknown jurisprudence of a “recall application”, which essentially gave the bench of the CJI appellate powers over other coordinate benches of the Supreme Court. 

The lowest point of his Chief Justiceship came when two judges publicly scorned his high handedness in dealing with his brother judges. First, Justice B.V. Nagarathna castigated him for calling Justice Krishna Iyer’s jurisprudence a disservice for India. Her opinion on the draft judgment ultimately led the CJI to omit such observations. Second, Justice Dipankar Dutta called out his tactics of not allowing sufficient time for judges to deliberate on draft judgments.  

The CJI’s tenure has been largely about media hype, bookish jurisprudence, judicial evasion and an overall disinterest in manning the judiciary in India.

It is beyond doubt that he left the system more divided, than what he had inherited. 

Sughosh Subramanyam is a BA LLM from the University of Cambridge.

Terms Like ‘Bhangi’ and ‘Neech’ Not Grounds for SC/ST Act Charges: Rajasthan HC

High court judge Justice Birendra Kumar made this observation in a case where the petitioners were accused of using these terms against government officials during a 2011 inspection of alleged encroachments in Jaisalmer.

New Delhi: While squashing charges against four persons, the Rajasthan high court has ruled that words such as bhangi (scavenger), neech (lowly person), bhikhari (beggar), and mangani (beggar) are not caste names and their usage does not warrant charges under the 1989 Scheduled Castes and the Scheduled Tribes Act.

High court judge Justice Birendra Kumar made this observation in a case where the petitioners were accused of using these terms against government officials during a 2011 inspection of alleged encroachments in Jaisalmer.

“The words used were not caste name nor there is allegation that the petitioners were known to the caste of the public servants, who had gone to remove the encroachments. Moreover, it is crystal clear on bare perusal of allegation that the petitioners were not intending to humiliate the (public servants) for the reason that they were members of Schedule Caste and Schedule Tribes rather act of the petitioners was in protest against the action of measurements being wrongly done by the public servants,” the court said in its November 12 order, as quoted by Bar and Bench.

In January 2011, public officials inspecting encroachments on public land in Jaisalmer alleged that they were obstructed and verbally abused with derogatory terms by the petitioners, led by Achal Singh. 

This led to a criminal case under the Indian Penal Code Sections 353 (assault to deter a public servant), 332 (causing hurt to deter public servant), and 34 (common intention), along with Section 3(1)(X) of the SC/ST Act.

The police initially concluded there was no evidence and submitted a negative report, but a protest petition prompted the trial court to frame charges under the SC/ST Act.

The accused challenged the case in the high court, arguing that there was no basis for the charges under the SC/ST Act. They claimed ignorance of the complainants’ caste and highlighted the absence of independent witnesses to confirm the incident occurred in public view.

The high court agreed with the petitioners, noting that the allegations lacked independent corroboration.

“In the case on hand, only the informant and its officials are witnesses of the incident, no independent witness has turned up to support that he was the witness of the incident,” the court observed.

Consequently, the court discharged the petitioners from SC/ST Act charges but upheld the IPC charges, finding prima facie evidence of obstruction of public servants performing their duties.

“While there is prima facie allegation that the petitioners obstructed in the official discharge of public duty by the respondent and therefore for that act of the petitioners, criminal prosecution would go on,” the court said.

‘Police in Tandem with Smugglers, Daily Wagers Facing Wrath’: HC Slams Bihar’s Liquor Prohibition Act

According to official data, 8.69 lakhs persons have been arrested under the liquor law till May 14, 2023. The state has not updated the data since 2023. 

Patna (Bihar): The Patna high court has raised serious questions on the effectiveness of the liquor ban in Bihar, which came into force eight years ago in April 2016.

The court labeled the liquor ban provisions as ‘draconian’ and noted that the majority of the poor section of the state, comprising daily wagers who are the sole breadwinners of their families, bear the brunt of the Act.

The order came on October 29 when the court was hearing a petition filed by Mukesh Kumar Paswan, of the Bypass police station in Patna.

In his order, Justice Purnendu Singh said:

“The Article 47 of the Constitution of India while mandating the duty of the State to raise standards of living and to improve the public health at large and as such State Government enacted Bihar Prohibition and Excise Act, 2016 with the said objective, but for several reasons, it finds itself on the wrong side of the history.” 

“The prohibition has, in fact, given rise to unauthorized trade of liquor and other contraband items,” the order added.

According to PIB data, only 697 cases were registered in 2019 under Narcotics Drugs and Psychotropic Act (NDPA), 1985 in Bihar which increased by 110% to 1469 cases in 2021. 

As per the state government data, 1.6 crore litres of foreign liquor and 1.05 crore litres of country liquor were seized in the state from April 2016 to May 14, 2023.

The case 

Mukesh Kumar Paswan was police inspector in Bypass police station in 2021 when the excise department had raided a godown and recovered illicit foreign liquor worth Rs 4 lakh. The godown was just 500 meters away from Bypass police station, so it was alleged by the excise department that Mukesh along with chowkidar Lalu Paswan may be involved in the sale of illicit liquor.

Mukesh was suspended in February 2021, and a show-cause notice was issued to him regarding his alleged negligence in enforcing excise and prohibition laws, which constitutes a breach of the Government Official Conduct Rule, 1976.

Next, Mukesh submitted his detailed show cause reply in March 2021 denying all the allegations. 

Also read: 67 Drugs Found Substandard in September; 6 Manufacturers Also Appeared in List For August

Later, an inquiry was initiated against him, which concluded that he should be dismissed as a penalty.

The government ordered that he should be demoted to the basic pay scale of police sub inspector for five years and shall not get “Officer-In-Charge or any responsible post for 10 years”.

“He shall not be posted as Officer-In-Charge or any responsible post for 10 years from the date of issuance of this order,” the government order said.

In 2023, Mukesh appealed to the Patna high court against this order.

After going through the arguments of both sides, the court concluded that the punishment to the petitioner was predetermined. “I set aside and quash the suspension order and the penalty order.” 

‘Police in tandem with smugglers’

The high court order said:

“The draconian provisions have become handy for the police, who are in tandem with the smugglers. Innovative ideas to hoodwink law enforcing agencies have evolved to carry and deliver the contraband. Not only the police officials, excise officials, but also officers of the state tax department and the transport department love liquor ban, for them it means big money.”

“The number of cases registered is few against the kingpin/syndicate operators in comparison to the magnitude of the cases registered against the poor who consume liquor and those poor people who are prey of hooch tragedy,” the order added. 

In October this year, a hooch tragedy killed 35 people in Siwan and Saran districts.

Last year, prohibition, excise and registration minister Sunil Kumar had said there was official data of around 200 hooch-related deaths in Bihar since April 2016 but experts claim that the real data could be much higher.

The Rashtriya Janata Dal (RJD) claims that so far more than 300 people have died from consuming illicit liquor. 

RJD leader Tejashwi Yadav said, “Nexus between politicians, the police and liquor mafia has resulted in a flourishing illegal liquor trade worth Rs 30,000 crore every year.”

He added that more than 300 people have died in the state due to consumption of spurious liquor since April 2016.

Bihar’s former IPS officer Amitabh Kumar Das said, “Liquor ban is a complete failure in the state and it is because police are not working effectively. If you want to stop the illegal liquor trade you have to first nab big mafias who run the trade. But, this is not happening. Police are arresting poor people and careers of liquor. If big mafias will be arrested then only liquor law can work effectively.”

Mahendra Suman, Patna-based social activist who has worked among the Dalits and Adivasi community for decades termed the liquor ban “anti-poor”.

“Liquor is part of people’s food culture. Drinking is a bad addiction but not a criminal Act. But the Bihar government is criminalising liquor consumers and its victims are poor,” he told The Wire.

The high court said that the ultimate victims of this Act are the poor and their families.

“The majority of the poor section of the state who are facing wrath of the Act are daily wagers who are only earning members of their family. The investigating officer deliberately does not substantiate the allegations made in the prosecution case by any legal documents and such lacunae are left and the same allows the mafia scot free in want of evidence by not conducting search, seizure and investigation in accordance with law,” the court order said. 

According to official data, 8.69 lakh persons have been arrested under the liquor law till May 14, 2023. The state has not updated the data since 2023. 

What the court has said in its order has been reiterated by experts for years. The Wire had also done an extensive report on this. 

“We have been saying for years that most of the arrested and jailed persons under this law are poor and belong to backward and dalit communities. Police have imposed multiple cases on one person and they are languishing in jails for years without bail and hearing,” said Praveen Kumar, founder of LAW Foundation, which works with persons who can’t afford legal assistance.

Kumar added that Musahars, who are amongst the poorest of the Scheduled Castes, are the biggest victims of this draconian law. “If one person is arrested in a liquor case from a Musahar basti, the police often goes to that Musahar colony and randomly arrests dozens of other persons.”