Right to freedom of speech and expression guarantees individuals the liberty to express themselves, criticise others and comment on issues. All these must necessarily be peaceful. But can any court shut an individual’s right to protest against judgments and orders?
The Supreme Court did just that in the contentious Cauvery water issue. Escalating protests coupled with violence in Karnataka and Tamil Nadu made the SC say , “There cannot be any agitation when it relates to an order passed by the court.”
The SC was right in asking the authorities to clamp down on violence. But the anxiety to see return of normalcy cannot be a ground to convey that even peaceful protests and agitations against SC orders would not be tolerated.
We are witness to public protests against orders of the highest courts world over, including India.On June 2015, the US Supreme Court by a slender five to four majority declared gay marriages con stitutionally valid, mandating all 50 states of the federal republic to recognise same sex unions (Obergefell vs Hodges, Director, Ohio Department of Health).
The LGBT community celebrated. But the church erupted in protest. Billy Graham Evangelist Association, Southern Baptist Ethics and Religious Liberty Commission and US Bishops Conference virtually rebelled against the judgment. Some of the churches said they would not conduct same-sex marriages.
In India, too, we witnessed this.An SC judgment closed a small window opened for the LGBT community by the Delhi High Court, which decriminalised Section 377 to exempt consensual relations between adults of the same sex in private from penal consequences.
The rainbow community protested, albeit peacefully, against the SC judgment.
The SC’s decision to limit the height of `dahi handi’ and bar participation of minors in Janmashtami celebrations in Maharashtra saw 500 `dahi handi mandals’ congregate at Shivaji Park on August 22 to protest against the court or der. In May , several hundred Kosovo Albanians protested against a ruling of the Kosovo Constitutional Court for confirming the rights of Serbian Orthodox Visoki Decani monastery to 24 hectares of land.”The constitutional court trespassed on justice,” read the banners with protesters.
A person may militate against a perfectly valid and legitimate court order because in his perception it was an unjust judgment. Can we deny him the right to protest against the court order? Are court orders infallible?
Even the SC cannot claim infallibility. More than 70 years ago, US SC judge Robert H Jackson had said judges, despite being addressed as Lords, shared the human susceptibility to err.
In Brown vs Allen, (1944 US 443 at 540), he had said, “Reversal by a higher court is no proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.”
True, Indian Constitution under Article 144 mandates “all authorities, civil and judicial, in the territory of India to act in aid of the Supreme Court”. But it does not even remotely suggest that while implementing an SC order, one must wholeheartedly subscribe to it. A five-judge bench of the SC in Bihar Legal Support Society vs Chief Justice of India (1986 SCC (4) 767) had in a short and crisp judgment told judges that they were neither infallible nor their words the last. Legally may be, but not in the perception of a common man.
The society’s petition had protested against a midnight sitting of the SC to grant bail to two industrialists -Lalit Mohan Thapar and Shyam Sundar Lal -and asked the CJI why similar expeditious hearing was not accorded to bail petitions of poor men languishing in jails? This question is ironic and bound to inspire a feeling of deja vu in those who have been following the SC for some time.
The SC had conceded that it would not be possible for it to right all wrongs because it was not immune from making mistakes. To make judges realise that they did not possess the panacea for all ills, it had said, “The apex court must interfere only in limited class of cases where there is a substantial question of law involved which needs to be finally laid at rest by the apex court for the entire country or where there is grave, blatant and atrocious miscarriage of justice.
“Sometimes, we judges feel that when a case comes before us and we find that injustice has been done, how can we shut our eyes to it. But the answer to this anguished query is that the judges of the apex court may not shut their eyes to injustice but they must equally not keep their eyes too wide open, otherwise the apex court would not be able to perform the high and noble role which it was intended to perform according to the faith of the Constitution makers.”
The 30-year-old judgment needs to be put up in bold big font in the inner chambers of the SC, which has forayed into unimaginably diverse fields from constitutionality of jokes on Sikh community to mushrooming of NGOs.
This judicial innovation, formalised by a Constitution Bench of the Supreme Court in the Rajiv Gandhi killers’ case in December 2015, helps “get rid of death penalty” and addresses the genuine concerns of the society to see justice done, a three-judge Bench led by Justice J. Chelameswar observed in its recent judgment.
The innovation involves substituting death penalty with a “special category” of life imprisonment without the benefit of release on remission for prolonged periods ranging from 25 to 30 years, if not more.
This innovative approach veering away from capital punishment was formalised after the Supreme Court gave itself the authority to tweak the sentencing laws and evolve a special category of sentence in its judgment in Union of India versus Sriharan alias Murugan last year. The special category is to be limited to a “very few cases”. This special category finds its first mention in the Swami Shraddananda versus State of Karnataka judgment of the Supreme Court in 2008.
The innovation, according to Justice S.K. Singh, who authored the Lodhi judgment for Justice Chelameswar’s Bench, is an endeavour by the apex court to make “no party (convict or the society) a loser”.
So having saved Lodhi from the hangman’s rope, Justice Singh stripped him of his right to apply for release from prison on remission for the next 25 years. Thus, any hope Lodhi might have had for his release after serving the first 14 years was effectively extinguished.
The prolonged period of incarceration with no hope, Justice Singh observed, was justice enough for the rape and murder of a “defenceless child” whose body was found in a gunny bag at Lodhi’s residence in 2011.
“The judicial innovation bridges the gap between death sentence on the one extreme and only 14 years of actual imprisonment in the name of life imprisonment on the other… it serves a laudable purpose,” the Supreme Court observed.
Law Commission of India Chairperson, Justice B.S. Chauhan, seconds the judgment’s optimism, saying the Supreme Court may have indeed found an “alternative” to capital punishment .
Quoting both the Sriharan and Shraddananda verdicts, Justice Singh, in his judgment in the Tattu Lodhi case, observed that “the innovative approach, on the one hand, helps the convict get rid of death penalty in appropriate cases. On the other, it takes care of genuine concerns of the victim, including the society…”
Special Judge O.P. Saini dismissed their common plea saying it had no merit.
p style=”color:rgb(0,0,0);font-family:sans-serif;font-size:medium;line-height:normal;”>A Delhi court on Saturday dismissed petitions filed by former Telecom Minister Dayanidhi Maran and four others challenging its jurisdiction to hear the money laundering case connected with the Aircel-Maxis deal case.
p style=”color:rgb(0,0,0);font-family:sans-serif;font-size:medium;line-height:normal;”>Special Judge O.P. Saini dismissed their common plea saying it had no merit.
p style=”color:rgb(0,0,0);font-family:sans-serif;font-size:medium;line-height:normal;”>They had challenged the court’s jurisdiction arguing that it was designated only to hear 2G spectrum allocation scam cases.
p style=”color:rgb(0,0,0);font-family:sans-serif;font-size:medium;line-height:normal;”>Mr. Maran, his brother, Kalanidhi Maran and Ms. Kaveri Kalanithi Maran and the two other accused are facing prosecutions in the case.
p style=”color:rgb(0,0,0);font-family:sans-serif;font-size:medium;line-height:normal;”>The Enforcement Directorate has alleged that two firms, South Asia FM Limited (SAFL) and Sun Direct TV Private Ltd. (SDTPL), had received Rs. 742.58 crore as “proceeds of crime” from some Mauritius-based firms and that the two firms was then allegedly controlled by Mr. Kalanidhi Maran.
Phrase ‘contract to the contrary’ does not mean that the parties are free to contract out of the express provisions of the law: SC [Read Judgment]
The phrase ‘contract to the contrary’ in Section 106 of the Act cannot be read to mean that the parties are free to contract out of the express provisions of the law, thereby defeating its very intent, the Bench said.
The Supreme Court in M/S PARK STREET PROPERTIES (PVT) LTD. VS. DIPAK KUMAR SINGH & ANR has held that the phrase ‘contract to the contrary’ in Section 106 of the Transfer of Property Act means a ‘valid contract’ and it cannot be read to mean that the parties are free to contract out of the express provisions of the law, thereby defeating its very intent.
Apex Court Bench comprising of Justices V. Gopala Gowda and Adarsh Kumar Goel restored the Judgment of Trial Court which had decreed the suit of Landlords for recovery and Khas possession.
As per the agreement, the landlord was entitled to terminate the tenancy only in case there was a breach of the terms of the agreement or in case of non-payment of rent for three consecutive months and the tenants failed to remedy the same within a period of thirty days of the receipt of the notice. The notice issued by Landlord requiring it to vacate the premises was contested by the Tenants terming it as illegal. This contention, though initially rejected by the Trial Court, was accepted by the High Court which had remanded back the case to Trial Court. The Landlords challenged the High Court judgment before the Apex Court.
Setting aside the Judgment of High Court which had remanded back the matter to Trial Court, the Bench said: “The above said clause of the agreement is clearly contrary to the provisions of Section 106 of the Act. While Section 106 of the Act does contain the phrase ‘in the absence of a contract to the contrary’, it is a well settled position of law, as pointed out by the learned senior counsel appearing on behalf of the appellant that the same must be a valid contract.”
The Court also said that contract between the parties must be in relation to a valid contract for the statutory right under Section 106 of the Act available to a lessor to terminate the tenancy at a notice of 15 days to not be applicable. The Bench further observed: “If the argument advanced on behalf of the respondents is taken to its logical conclusion, this lease can never be terminated, save in cases of breach by the tenant. Accepting this argument would mean that in a situation where the tenant does not default on rent payment for three consecutive months, or does not commit a breach of the terms of the lease, it is not open to the lessor to terminate the lease even after giving a notice. This interpretation of the clause 6 of the agreement cannot be permitted as the same is wholly contrary to the express provisions of the law. The phrase ‘contract to the contrary’ in Section 106 of the Act cannot be read to mean that the parties are free to contract out of the express provisions of the law, thereby defeating its very intent. As is evident from the cases relied upon by the learned senior counsel appearing on behalf of the appellant, the relevant portions of which have been extracted supra, the contract between the parties must be in relation to a valid contract for the statutory right under Section 106 of the Act available to a lessor to terminate the tenancy at a notice of 15 days to not be applicable.”
A Division bench comprising Justices Madan B Lokur and RK Agrawal Today has issued notices to the Maharashtra Government and the Bar Council of India in a Special Leave Petition filed against the Bombay High Court judgment dismissing the writ petitions challenging the introduction of CET for undergraduate courses in law.
It is argued that the counseling is yet to be held because approximately 40 colleges don’t have the recognition from BCI and admissions are likely to be delayed till October first week. According to the Petitioners “Very few students have managed to obtain more than 35% score in CET, thus in order to fill in the seats cut off has been reduced to 0%’.In these circumstances, it is prayed before the Court to allow the admissions to be made on class 12th marks by individual colleges for the year 2016-17.
The Bombay High Court while dismissing the petitions had expressed its dissatisfaction with regards to the mode and manner of the conduct of the CET stating that-
“True it is that it would have been ideal if the Rules were made promptly and the requirement of the Statute fulfilled. True it is that even the Notifications ought to be promulgated and issued much prior to the examinations. True it is that even this Court would have been happy to note that the syllabus was made and notified to the students well in advance.However, merely because all this has not been done in the manner suggested by the petitioners does not mean that the exercise as undertaken by the State is unlawful or unconstitutional.”
The court also expressed dissatisfaction at the fact that the Bar Council of India, the national regulator for legal education, was not consulted in the entire process. As was also the case with the state bar council, and the Law and Judiciary department.
“The involvement of the Bar Council may have improved the standards. Those teaching the theory of law and those actually practicing it, if consulted, could have brought about a blend which the State ought to welcome. It is no use consulting some teachers and Principals and then finalizing the process, that too hurriedly.”
Advocates Pradnya Talekar, and Atul Dakh appeared for the petitioners.
Much to the relief of the four debarred Law colleges of Mumbai, the Bar Council of India has afforded a brief window of opportunity. The Legal Education Committee (LEC) of BCI has reportedly allowed admissions this year on payment of fine and achieving the prescribed norms within the stipulated time.
City’s four law colleges Government Law College in Churchgate, GJ Advani College in Bandra, Jitendra Chauhan College in Vile Parle and KC College in Churchgate, were reportedly axed by BCI in the final hearing held on Friday. These colleges were already on the no-admission list since 2013 for not meeting the basic norms specially with regard to inadequacy of teaching staff and classrooms, and had been running on extensions ever since. Ten other colleges under the University of Mumbai have been fined for failing to seek BCI’s recognition.
“Every college which fulfils the condition before September 5 will be granted permission, subject to LEC approval. We might ask the government to give us an undertaking that it will appoint teachers in three-four months,” said a member of LEC told HT. As the four colleges are state funded, the BCI is expected to approach the government authorities and enable official sanction and funding for hiring more teachers.
Students were however apprehensive of delay in start of admission procedure and were hoping the issue will be resolved soon. “These are the top colleges of the city. Where will students go?”reportedly said Ashok Yende, director, University National Law School, Mumbai University. BCI’s tempered stance helps to address this concern while tightening its noose on legal education standards in the country.
“We want to do various things but we cannot do. Our capacity to do things is limited. This is a problem,” the bench said.
The Supreme Court Friday said it cannot order establishment of ‘Ram Rajya’ in the country and that it had “limited capacity” to change things. “Do you think with our directions, everything will be done? Do you (petitioner) think we will pass an order that there will be no corruption in the country and all corruption will go? Should we pass an order that there will be ‘Ram Rajya’ in the country? It cannot be like this,” said a bench led by Chief Justice of India T S Thakur.
“We want to do various things but we cannot do. Our capacity to do things is limited. This is a problem,” the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said while hearing a PIL on the problem of encroachments on roads and footpaths across the country.
The apex court’s observation came when petitioner NGO Voice of India complained of inaction by the authorities to prevent hawkers and roadside vendors from encroaching public space. “If this court does not take any action or pass any direction, then who will?” NGO’s chairman Dhanesh Kumar submitted before the bench while adding he could not go to each and every high court with this plea.
“But we cannot go by an assumption that everything in the country is wrong…you can educate the people about this,” responded the bench, while adjourning the matter for February next year.