Social Commitment and need for changes in Legal Education
By Aravind V.
18/09/2006
Social Commitment and need for changes in Legal Education
Arvind V *
An Abstract
The preliminary structure of the paper is basically clipped on to analyzing the contemporary state of lawyering, where the lawyers are inclined to the process of money mining - here an empirical study is specified (critique). The paper is then constructed to address the marginalized vulnerable sectors and their needs. The paper would then proceed to give a normative proposal on how the law students have to tune their incentives and for acclimatization so as to commit for social causes. Thereafter a scrutiny of the concepts of ‘social engineering’ and of ‘professionalism’ of Roscoe Pond, followed by an admixture of Bar Council of India’s and Law Commission’s essential contents on social responsibility of a lawyer, is attended to. Here how a lawyer ‘ought to be’ than he ‘is’ is calculated.
Methods to make changes are in the next section. This part of the paper would be a comparative study on how law students are ‘socially’ trained in other countries; furthermore, concerns over adoption of these methods would be expressed. All the above articulations would pertain to the execution of ‘clinical legal education’, where field visits, orientation programs, seminars, workshops etc., would be a resort to attain ‘social lawyers.’ Then the impact on students, of doing internship with those organizations which care for social accountability would be discussed. The commitment would thus depend on the collective culmination of these nurturing methods.
Subsequent to streaming discourse of present legal system and schemes on changes, the epilogue part speaks of implementing the methods discussed. The initiation should be from the law students and their voices should echo, which call for changes. These methods form catalysts for orientation; the real emanation is for the time to prove.
Lawyers - an empirical scrutiny
It would not carry relevance to discuss upon the credentials and credibility of the so called top-lawyers who need wells for depositing their earnings,1 and hence, here, the discussion is centered on the motive for which they work. There are even lawyers who fix appointments with their clients during their travel in air. Payment of six digited bills/fees per appearance has become a matter of routine than alarming. Time is currency and hence they work round the clock – not for any social causes but for money mining. The most disheartening part is indeed the arrogance which has become their shadow. The reflecting queries after an appraisal of the above statements would indeed be: a) is this the way they should be? b) lawyers being the defenders of rights, what is the difference between them and the violators?
No one would ever reject opportunity s/he gets to be a Jetmalani or a Nariman. These lawyers, who are icons, transform into role models thus inspiring the younger generations. They are praised as Legal Lords.2 But the boiling question is to what extend are these ‘Lords’ socially conscious? Here I challenge they have contributed nothing to the society,3 but false notions on how a successful lawyer should be. This calls on the redefining of ‘Who is a successful lawyer? – is he the one who have a hundred juniors holding briefs and following? or the one who travels in an array of Mercedes? or the one who take lakhs per appearance? or the one who is unapproachable to the inferior sections of a society?
Now, the marginalized sectors are susceptible to be tormented. All the rights and notions of social justice guaranteed under Constitution and other legislations always remain in paper and violations persist.4 Furthermore, ‘The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and the capacity through reason for enlightened self-government.’5 The Governments take a little step to protect them. I mark this as problem number 1 -- violation of social justice and no initiatives for protection.
Furthermore, chronicling the high cost of our legal system would blatantly state the helplessness of the vulnerable and susceptible sections within. Studies and works pertaining to the approachability of the apex Courts are innumerable, but with no implementation they remain in paper. Even more than 50 years after independence from almost two centuries of British rule, large scale poverty 6 remains the most shameful blot on the face of India. With no full meals per day, how can one expect them to approach Courts? Legal process has become too expensive, so justice is with those holding more currency. So the next reflective query is indeed what should be done? I mark this as problem number 2 – the expensive legal system.
How can lawyers find solutions for these problems, would be a succeeding query. A study of the above problems (1&2) would stipulate that a re-emphasis is required on ‘socially committed lawyering’.7 The discussed problems are combined and now a re-emphasis is given – how a lawyer ought to be?
Lawyers - a normative proposal
Lawyer’s profession is considered as the noblest one because he works for the society as a whole.8 To illustrate; Majority of the forefront freedom fighters of India, were lawyers.9 Sardar Patel left his high yielding practice for freedom struggle. The lawyers of that era earned high esteem, honor and reverence not only because they had in dept knowledge of the subject, but also because they were committed to use their knowledge for social causes. They gave implementation of social justice10 the prime importance.
When one of Shakespeare’s characters says the first thing to do is kill all the lawyers,11 it’s not another bad joke about the legal profession. It’s not Shakespeare himself speaking even in fun. He puts the words in the mouth of a rabble-rousing demagogue who wants to put an end to law and order and liberty and knows it’s hard to do while there are courts and judges and lawyers to defend them. This reflects the duty of and how a lawyer should be.
Dean Pound,12 says that a lawyer should be a social engineer. His theory, on further expansion, stipulates that law students should obtain a deeper understanding of the law, the kind of power that it exercises, and its role in human societies. A social engineer should improve the society by studying what the law is, what it ought to be, and how it actually operates. Pound further proposed the word ‘professionalism’. The term refers to a group pursuing a learned art as a common calling in the spirit of public service - no less a public service because it may incidentally be a means of livelihood, but the pursuit of the learned art in the spirit of a public service is the primary purpose.13 Now a combine reading of ‘social engineer’ and ‘professionalism’ would give us an idea how a lawyer should be. This is what the law students understand and aim at. Pound has analyzed deeply the role of lawyer in society and its development. He calls upon for the commitment of the lawyers to society. His whole work on sociological jurisprudence says the same. Now the query is how to develop commitment on the side of students and how to sensitize them?
Moreover, ‘Whenever you are in doubt, or when the self becomes too much with you, apply the following test. Recall the face of the poorest and the weakest man [woman] whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him [her]. Will he [she] gain anything by it? Will it restore him [her] to a control over his [her] own life and destiny? In other words, will it lead to ‘swaraj’ [freedom] for the hungry and spiritually starving millions? Then you will find your doubts and your self melt away.’14 So pronounces, a test to determine one’s actions, by Gandhi, as a reflection to the plight of the downtrodden in India.
An advocate under the Bar Council of India (BCI)15 Regulations owes allegiance to a higher cause- that of truth and justice.16 BCI, under Section 7(1)(h) of the Advocates Act, 1961,17 is empowered to promote legal education and lay down ‘standards’ of such education in consultation with the Universities imparting such education. The BCI Regulations on Legal Education18 stipulates a paper dedicated to public interest lawyering, legal aid and para-legal services. The gist of all the elements prescribed by the BCI regulations is to import legal education in such a manner that students shall become socially conscious.
Furthermore the Law Commission19 reports are also favoring the ‘social’ factor being embedded in the lawyering sectors. The Commissions have time and time again expressed its concern over the socially irresponsible attitude of contemporary lawyering. The 14th Law Commission Report stated the fact that if laws do not provide for an equality of opportunity to seek justice to all segments of society they have no protective value and unless some arrangement is made for providing a poor man the means to pay Court fee’s, advocates fees and other incidental costs of litigation, he is denied an opportunity to seek justice.20 The result of the report was legal aid.
Most social evils are an outcome or creation of poverty and the misery that comes with being poor in a country like India, at the same time it also needs to be borne in mind that the judiciary no matter however committed it may be towards uplifting the cause of the poor is ultimately bound by procedural formalities which do not take into account the misery or problems of the masses. Therefore, since the Courts have limitations, the law students should work for the support of the downtrodden marginalized sectors.
We should emphasize and highlight the fundamental role of law in society and remind ourselves of the great and sublime purpose which law is intended to serve in a republic governed by the rule of law. Moreover, to quote the Chief Justice of India, ‘We must realize that the end of law must be justice. Law and justice cannot afford to remain distant neighbours. There must be harmony between law and justice.’21 Therefore, in all seriousness, ask ourselves the question as to how far we have been able to fulfill the mission of law to deliver justice and to what extent we have succeeded in using law as a vehicle for ensuring social justice to the large masses of people in the country.
Nurturing of social lawyers – methodologies
The relevance and need of the hour should be cognized and the budding lawyers should tune their incentives accordingly. When a lawyer stands for society, his speech should not be stumbled, he should not loose his train of thought, but should be clear on what he is trying to diagram. He should be socially conscious and his actions should reflect the same. For this, no book reading and by hearting of social justice will do, but the same should be coming from the inner conscious, and to come from inside, a student should be trained so. Social responsibility cannot be taught, it has to be learnt.22 The focus should be on innovation in education thus changing the outdated and traditional systems.23 Now certain methods adopted for the training and for the sensitization of the students shall be studied. These methods are steps to democratize and decentralize the educational system. The educational institution can help promote the values in society by internalizing them in the institution itself. When young learners witness the practice of democratic values and practices within the portrayals of their institution, they trend to internalize the same and make it part of their life and thinking in their future life as responsible citizens of a progressive and democratic society.
In United States, during the third year of law school,24 a student must satisfactorily complete a substantial paper that requires in-depth research and rigorous analysis of a specific area of law and evidences a sophisticated knowledge of the law. This is to include knowledge of larger issues of the impact of law on various parts of society and the future directions the law may take. For this the student first required to do immense field work.25 This creates huge impacts on students on understanding why a statue should be ‘society-friendly’. Similar programs are there in Australia and United Kingdom.
Providing legal aid to the poor and the weaker sections of the society is one of the Directive Principles of State Policy.26 The Legal Services Authorities Act, 1987 provides for constitution of Legal Services Authorities. These bodies have the responsibilities of providing free and competent legal services to the weaker sections of the society and to organize Lok Adalats. The method suggested is - why not the law students take up the task of legal aid. The concept of Legal Aid Clinics in law schools is well practiced in foreign countries.27 This method is followed only in few of the law schools in India. Each student should be given a project to work upon, with respect to legal aid which they have practically given. If each student provides legal aid for ten, then the millions who are suffering will definitely find resort.
Legal education (spreading awareness), if provided to the poor and needy, would indeed make a big difference. The law students should be given tasks of educating sectors in the society. For this there should be a preliminary selection of the sectors where the students should work. This selection should depend on: a) Literacy rate b) Economic capability c) right violation probabilities d) and all other criterion which determines marginalized sectors. After the selection of the sectors, then the responsibility of educating them should be put on the shoulders of the students. On this process the students will learn and develop an incentive towards helping the poor.
Participation in seminars, conferences, training programs, debates, competitions, summer schools, and all other such programs would all immensely contribute for the creation of ‘social’ lawyers. These programs are significant role players in molding up the younger generations to be socio-sensitive. Such programs are indeed prevailing in the country, but the desired participation from the students, is lacking. The present system should be tuned accordingly that the each and every students are given opportunities to attend such programs. The next vital fact to be borne in mind is the contents in the programs. The contents which are selected should have the potentials to sharpen the stimulations of the participant students. After selection of the topics, a careful scrutiny on presentation of the same should be done. The programs should never make the participant students feel heavy; rather, it should be a period of strong creative impulse for change. The credibility of moderators, and the way it is been organized also play significant roles. It should not be forgotten that an imperfect program does damage rather than the expected results. Thus the programs should be conducted in such manner so as to be acting as inspirations for the student; with which they can compose their acts in a ‘socio-friendly’ manner.
The law schools must devise such programs that will bridge the gap between classroom and social reality. The placement program of the law schools would be another such effort towards this. The students should be given exposure to different organizations which work in the fields of protection of social justice and human rights. There are indeed many such organizations which are offering internships.28 There the students are put into different fields of social reality and the torturing of the weaker sections is well made aware. These organizations start the work from the grass root level thus giving a picture of ground reality for the students. This contributes highly to frame a student’s approach. The above such methods are not exhaustive but such natured ones should be adopted.
Optimism – a postscript
To give a sum up - An overall change in view of ‘a successful lawyer’, as told earlier, is the need of the hour. The above disserted methods would be instrumental in the process of building a lawyer who is committed socially and embedded with instincts of social justice. The students should also take initiatives and raise voice to include such methodologies in curriculum. Another significant role player would be the law schools and the higher authorities, who prescribe the curriculum. The Educational institutions are platforms on which young lawyers in society learn the first lesson in social equality and equality of treatment.29 The essence of all these training methods should be selected with caution. As said earlier, these are the catalysts for orientation; the commitment should arise and awake within oneself.
The success of educational institutions is today caused merely by the actions and commitment of its promoters. It is to be remembered real social achievement is the by-product of the active involvement of all the stakeholders. Promoting the cause of education is initiated by those who take initiatives to start educational institutions but for the goals to be fully achieved, it must ensure the active involvement of government, society, concerned citizens, parents and students.
I have used the word optimism in the epilogue header, not because there is doubt in me, but because the success of the initiative would all depend on how the same is been implemented and organized. It would also be depended on the effective intake by the listeners. If these methods are practiced in its sprits, there is no doubt that we could build social engineers. It is just a matter of time to prove that these would help in making of socially committed lawyers, so that the lost prestige, honor and respect which the earlier lawyers had, could be brought back. Thus that time is not far, but the time to realize and to act is now.
A Note on the decision of the High Court of Kerala on the Suo Moto Jurisdiction of Lokayukta Reported in 2006 (4) KLT PAGE 166
By K.K. Mohandas, Advocate, Thiruvananthapuram
11/09/2006
A Note on the decision of the High Court of Kerala on the
Suo Moto Jurisdiction of Lokayukta
Reported in 2006 (4) KLT Page 166
(By K.K. Mohandas, Advocate, Thiruvananthapuram)
The subject matter of this note is the common judgment whereby three connected Writ Petitions challenging the suo moto power of the Lok Ayukta and Upalok Ayuktas were finally disposed of by a Division Bench of the High Court of Kerala.
The challenge in W.P.(c)5250 of 2006-Y was against the exercise of suo moto power of the Lok Ayukta to initiate proceedings for investigations under the Kerala Lok Ayukta Act 1999 (for short the Act). The contention raised in that petition was that Lok Ayukta can initiate proceedings under the Act only on the basis of a complaint filed in accordance with the provisions in the Act and the relevant rules. The challenge in the other two Writ Petitions was, on the other hand, against two proceedings initiated suo moto by one Upa Lok Ayukta in exercise of powers vested in him under the Act. This difference is clear from the statement of facts of the proceedings given in para 9 and 10 of the judgment. It is to be noted in this connection that Lok Ayukta and Upa Lok Ayukta are two different authorities constituted under the Act conferring different jurisdiction or powers under different sections of the Act using different words and phrases therein, sufficient to indicate the difference made between the two jurisdictions while the provisions in S. 7(1) of the Act deals with the matter coming within the domain of Lok Ayukta and the conditions subject to which Lok Ayukta can initiate and conduct investigation, S. 7(2) deals with the matters coming within the domain of Upa Lok Ayukta and the conditions subject to which Upa Lok Ayukta can initiate and conduct investigations. Viewed in this back ground, it is submitted with respect that the basic assumption made in the very first sentence in the judgment that the “simple but significant question that arises in these three connected Writ Petitions is as to whether the Lok Ayukta, exercising the power under the Kerala Lok Ayukta Act 1999 hereinafter referred to as ‘Act of 1999’ has suo moto powers to conduct investigations with respect to matters in its domain envisaged under the Act” seems to be factually and legally not fully correct. The questions that were raised in the three Writ Petitions were not the same. In fact the question framed by the Division Bench in the first sentence of the judgment and considered in the judgment arose only in WP(C) 5250 of 2006-Y. That was not the question that was raised in the other two Writ Petitions. In the other two Writ Petitions the common question raised was whether the Upa Lok Ayukta has suo moto powers to initiate and conduct any investigation with respect to matters within its domain envisaged under the Act? It is submitted that the above question is not only not the same as the question raised for consideration in WP(C)5250 of 2006-Y- but is totally or substantially different from it. Therefore it was a question which deserved an independent consideration by the Division Bench after referring to the relevant provisions conferring and regulating the exercise of jurisdictions conferred on the Upa Lok Ayukta under the Act. The Division Bench seems to have omitted to take note of the above difference in the questions arising for consideration in the three Writ Petitions. As a result it has only considered the question arising in WP(C) 5250 of 2006-Y and omitted to frame and consider separately the common question raised for consideration in the two other Writ Petitions.
The purpose of this note is not to examine the correctness of the decision arrived at on the question specifically raised and considered in the judgment but is only to point out the mistake committed while making the basic assumption made in the judgment and the illegality and impropriety involved in the matter of disposal of all the three Writ Petitions by a common judgment wherein the Division Bench has considered only the question raised in one of the three Writ Petitions and omitted to consider a different question raised in the other two Writ Petitions and the adverse legal consequences of such an improper disposal.
For a proper understanding of the substantial difference between the two questions already referred to above it is necessary to quote the provisions in Ss. 7 (1) and 7 (2) and analyse the ingredients of the above two provisions carefully. Ss. 7(1) and 7 (2) of the Act are thus:
(1) subject to the provisions of this Act, the Lok Ayukta and one of the Upa Lok Ayuktas, as may be nominated by the Lok Ayukta for the purpose, may investigate any action which is taken by or with the general or specific approval of
(i) the Chief Minister; or
(ii) a Minister; or
(iii) a Member of the State Legislature; or
(iv) a Secretary; or
(v) an office bearer of a political party at the State level; or
(vi) an officer referred to in sub-cl. (iii) of cl. (d) of S.2, in any case where a complaint involving a grievance or an allegation is made in respect of such action and where there is difference of opinion between the Lok Ayukta and Upa Lok Ayuktas as so nominated, the action shall be investigated by the Lok Ayukta and both the Upa Lok Ayuktas together and the decision of the majority therein shall prevail.
(2) subject to the provisions of this Act, an Upa Lok Ayukta may investigate any action which is taken by, or with the general or specific approval of, any public servant not being the Chief Minister or a Minister or a member of the State Legislature or a Secretary or an office bearer of a political party at State level or an officer referred to sub-cl.(iii) of cl.(d) of S.2, in any case where a complaint involving a grievance or an allegation is made in respect of such actions or such action can be or could have been in the opinion of the Upa Lok Ayukta, the subject of a grievance or an allegation.
On an analysis of the above two provisions, it can be seen that
1. Lok Ayukta and Upa Loka Ayukta are two different authorities defined separately in Ss.2(j) and 2 (r).
2. The matter in respect of which the two different authorities are conferred with jurisdiction are different.
3. The categories of public servants coming within the respective domains of the two different authorities are also different. Such difference has also been indicated clearly in the two provisions.
4. Most importantly there is a substantial difference made by the legislature while imposing the conditions subject to which the two authorities are allowed to exercise their respective jurisdiction or power. Thus, exercising the legislative wisdom and caution and taking note of the seriousness of the matters and the high status of the public servants conning within the domain of the Lok Ayukta, the legislature has thought it fit to permit the Lok Ayukta to exercise its jurisdiction only in any case where a complaint involving a grievance or an allegation is made in respect of any of the actions of any of the public servants indicated in cl. (1) of S. 7. This provision in S. 7 (1) is in sharp contrast with the provision in S. 7 (2) of the Act. The said provision in so many words permits the Upa Lok Ayukta to exercise its jurisdiction in two different cases unlike in the case of Lok Ayukta namely:
(i) In any case where a complaint involving a grievance or an allegation is made in respect of any action of any of the public servants conning within the domain of Upa Lok Ayukta.
or
(ii) In any case where such action can be or could have been the subject matter of a grievance or an allegation.
The first is a case exactly similar to the only one case incorporated in clause (1) of S. 7 in which Lok Ayukta is permitted to exercise its jurisdiction. The provision in S. 7(2) does not stop there. It proceeds on to incorporate a further or additional case therein, in which case also Upa Lok Ayukta is permitted to exercise its jurisdiction to initiate and conduct investigation under the Act. In the 2nd Case the provision does not make the filing of a complaint a condition precedent for exercise of its jurisdiction. What is made a condition in such cases, is the formation of an opinion by the Upa Lok Ayukta that the concerned action is ‘such an action which can be or could have been the subject matter of a grievance or an allegation’. In other words the second case is an instance where the Upa Lok Ayukta is permitted to exercise his jurisdiction without any complaint ie. suo moto. By incorporating the last portion of the provision in clause (2) of S. 7 of the Act which is underlined in the quote, the legislature has beyond any doubt, specifically conferred the Upa Lok Ayuktas jurisdiction to initiate proceedings even without a complaint in addition to their jurisdiction to initiate proceedings on the basis of complaint filed. The meaning of the words and phrases used in the last portion of the provision in cl. (2) of S.7 are clear beyond any doubt. There is also no ambiguity in the provision. In the circumstances in this Case, the last portion of the provisions in S.7 (2) is liable to be interpreted as a provision conferring on the Upa Lok Ayukta a special power to initiate proceedings for investigation under the Act without a complaint being filed, applying the golden rule of interpretation of statutes which requires the Courts and all authorities to adopt and adhere to at the first instance the ordinary grammatical sense of words used where the grammatical construction is unambiguous and without doubt. Further, the legislative intent to confer an additional power on the Upa Lok Ayukta other than the one granted to the Lok Ayukta is also clear from the last portion of the provision in S. 7(2) of the Act which incorporates an additional case in which proceedings can be initiated without any complaint being filed. Thus it is submitted that if the Bench had not omitted to take note of the difference in the question raised in the other two connected Writ Petitions and had framed an appropriate question in those two petitions and construed the provisions in S. 7(2) it would have been very difficult to hold that Upa Lok Ayukta had no suo moto power to initiate proceedings in appropriate cases after forming necessary opinion as indicated in the section. It is submitted that without rewriting S. 7(2) or without ignoring the under lined portion of the provision it may not have been possible for any court to hold that the said provision also grants jurisdiction to the Upa lok Ayukta to initiate proceedings only on the basis of a complaint filed in accordance with law just like in the case of Lok Ayukta. Such an interpretation of the provision would be against all cannons of interpretation of statutes.
Such conferment of a special jurisdiction on the Upa Lok Ayukta as far as the lower category of the public servants and their actions are concerned, can only be considered as one in consonance with the object sought to be achieved namely providing a special and comparatively cheaper remedy against actions as defined in S. 2 (a) of the Act to the public especially to the poorer sections of the public who may not have even the necessary information and wherewithal to file a complaint before Lok Ayukta after complying with all legal requirements and prosecuting the same before the Upa Lok Ayukta. The substantial difference in the wording of the two provisions contained in cl.(1) & (2) of S. 7 could be considered only as one made deliberately after careful application of legislative wisdom and concern taking note of the two aspects of public interest involved in the matter of conferment of jurisdiction to two different authorities functioning under the Act. In the case of high dignitaries and higher public servants and their actions, legislature took special caution and thought it fit to confer jurisdiction to initiate proceedings for investigations under the Act only on Lok Ayukta and that too only on the basis of a written complaint filed in accordance with law. But, in contrast to the above situation the legislature thought that in the case of public servants of lower categories and their actions which may affect the public especially the poorer section, in their day to day life it is only fair, reasonable and advisable to confer jurisdiction on the Upa Lok Ayukta to initiate proceedings even suo moto without insisting upon complaint in appropriate cases if he considers that such actions can be or could have been the subject matter of a grievance or an allegation.
The reasoning contained in the judgment to the effect that there is elaborate provisions like S. 9 made in the Act and rules for filing a complaint with an affidavit and after satisfying other conditions, and since the Lok Ayukta is to conduct investigation in accordance with the provisions of the Act, a complaint filed in accordance with law is a condition precedent for the exercise of the jurisdiction of Lok Ayukta may not be applicable in cases where Upa Lok Ayukta exercise his jurisdiction to initiate suo moto power after forming necessary opinion as provided in the last portion of the provision in S. 7 (2) of the Act. This submission is made for the weighty reason that the provision in S. 7(2) itself specifically empowers the Upa Lok Ayukta concerned to initiate suo moto proceedings without any complaint, but on formation of necessary opinion as provided therein. Therefore in the light of the last portion of S. 7(2) it will be meaningless and illegal to insist upon the filing of a complaint in the 2nd case also as in the first case provided by the earlier portion of that clause. Application of the provisions in S. 9 of the Act and strict compliance with all the legal requirements for filing of complaints may arise only in cases where the Act has made the filing of a complaint a condition precedent for exercising jurisdiction and not in a case where no such condition is made. Further, even in a case where application is insisted, R.3, of “Forms and manner of complaint Rules” lays down only that every complaint shall as far as practicable be in accordance with the form set out in the Schedule and not to the full extent in all cases.
It is sad to note that inspite of all the above difference between the provisions conferring jurisdiction separately on Lok Ayukta and Upa Lok Ayukta and conferment of a special power to initiate proceedings suo moto on formation of necessary opinion as provided in S. 7(2) by using clear and unambiguous words and phrases, the Division Bench has quashed two proceedings initiated by the Upa Lok Ayukta also as per the judgment without even referring to the special provisions in S. 7(2) of the Act leave alone a detailed consideration and legal interpretation of the same. The judgment thus deprives Upa Lok Ayukta of a special jurisdiction conferred by a benevolent provision in the statute to redress the grievance of many aggrieved persons who cannot even approach the institution of Lok Ayukta by filing a complaint. A perusal of the details included in the Annual consolidated Reports submitted by the Lok Ayukta under S. 12(6) to the Government in the last 5 or 6 years would show that in a number of cases Upa Lok Ayukta had initiated and conducted investigations suo moto and had redressed the grievance of may aggrieved persons belonging to the poorer section of the Society. Almost all such cases were initiated either on the basis of newspaper reports or letter sent by individuals or group of persons or even anonymous letters. In almost all such cases on issuance of notice to the concerned public servant either the public servant or the department used to appear and admit that the action in respect of which proceedings are initiated had in fact been taken. The decision now rendered would preclude the Upa Lok Ayuktas from exercising such jurisdiction and rendering service to the public hereafter. The saddest part of it is that it is by a side wind, the jurisdiction which is seen expressly granted to the Upa Lok Ayukta and so far exercised smoothly and appreciated by all concerned has been taken away.
In the circumstances, with utmost respect it is submitted that the judgment in question in so far as it has quashed the two proceedings initiated suo moto by the Upa Lok Ayukta is one rendered without considering the only one relevant question arising for consideration in the two writ petitions W.P(C) 6485 of 2006 - v and W.P.(C)11418 of 2006 - H and as such vitiated by a serious error apparent on the face of it and therefore warranting correction in accordance with law after due consideration of the relevant question arising in those petitions as indicated above.
Chief Justice V.P.G. Nambiar Reminiscences of an old student
By V. Bhaskaran Nambiar, Former Judge, High Court of Kerala
11/09/2006
Chief Justice V.P.G. Nambiar
Reminiscences of an old student
(By V. Bhaskaran Nambiar, Former Judge)
Shri V.P.Gopalan Nambiar was our lecturer at the Law College, Madras and all his students, without a single exception, continued to maintain, even after they left the college, the highest regard for him. His lectures were not a mere dry narration of facts of cases or references to the pertinent laws on the subjects; but he did ‘inspire his listeners and kindle their minds’. He had a thorough grasp of the subject, analysed every aspect with mathematical precision; and he could express the same idea, without any repetition, but, in three or four distinct, different, short, simple elegant sentences, so that the students could take down their own notes in the class without missing any vital detail. Attending to his lectures, whether it was the dry Roman law or the difficult criminal law was a thrilling exercise, inculcating and developing a sense for search and study. He taught us that one should not walk through the streets wearing black coat, advocate’s band and court gown. He imbibed in us the nobility of the profession.
He was gifted with a prodigious memory of interesting and lasting account of the lives and work of very eminent men, mainly in the legal arena. He had told me that he would not venture writing about his experiences which would naturally and unwittingly become autobiographical, which he desired to avoid at any cost. Why not be autobiographical when it can be for public benefit, is my lingering doubt even now.
With his Juniors in Office
He was absolutely honest in all his dealings, and as a senior he was a hard taskmaster. He extracted from this juniors the sweat of their brows. We were about seven juniors, with him at one time, without counting the larger number of part- time juniors who gave him senior briefs in several cases very often. He took care of his juniors, guided and instructed them and stood solidly behind them, in times of any crisis. One third of the fee received by him in every case, according to Nambiar, was the junior’s share. It may be, that in some cases, the junior would have done nothing that month, to earn any junior fee; but the entitlement arose, according to Nambiar, immediately the vakalath was filed and his name was included as a junior.
Upholding the juniors’ cause
In one case, his junior Shri P.C. Balakrishna Menon [who later became a Chief Justice] was arguing a Civil Revision matter before a learned judge. The judge became unfortunately and unnecessarily angry and showered abuses on the young lawyer. The case stood adjourned the next day. Nambiar was told about the incident. Therefore he himself came to Court and in his emphatic tone, manner, and strain and in a commanding choice of expression in chaste English, forcefully and openly lodged his protest against the ‘reprehensible’ and unbecoming conduct of the judge in insulting and rebuking his junior, for no fault of the junior lawyer, and in unmistakable language chastised the judge, to the stunned disbelief of all the lawyers in court. The judge kept mum. He handed over the brief to P.C.B. Menon to continue the arguments. When Nambiar came out of Court, the then Advocate General, the accredited leader of the Bar, congratulated Nambiar for the dignified displeasure and admonition, against the unjust outburst of the judge. Pat came Nambiar’s reply the Advocate General himself should have been the first to protect the bar against the judge’s unprovoked onslaught.
Independence at the Bar and impromptu retorts in Court
I remember, once, he was arguing an appeal before a Division Bench. He had just commenced, when one of the judges asked him to read a particular document. Nambiar said that he would read the document, but a little later, at the appropriate time. The judge insisted that Nambiar should read the document first and then proceed to argue the case. Nambiar did not accede; the judge was annoyed and told Nambiar ‘ Mr. Nambiar, You should know, I have seen many Courts in many parts of the world which you can never dream of.” Nambiar coolly replied. 'That does not seem to have made any impact on your Lordship’. The arguments continued.
Two different Judgments from two pockets of t he same judge
There is yet another incident which is worth mentioning here. There was an appeal with comparatively high stakes, in which difficult questions of Hindu Law were involved. Nambiar initially entrusted that case to me for preparation and after the conference, he asked me to argue the matter also. The appeal came before a learned single Judge, a scholar in Hindu Law. After arguments on both sides were over, the Judge dictated the judgment in open Court dismissing the appeal. The fact was conveyed to Nambiar and was, in turn, communicated to the client. The very next day, the judge stated in open court that he intended to reconsider and the appeal was again posted for hearing. This information also was transmitted to the client. After the second hearing, the judge allowed the appeal, set aside the judgment of the lower court and remanded the matter to the trial court. This fact was also intimated to the client. Thereafter the judge orally directed that the appeal would be heard again. This also was communicated to the client.
The client could not make head or tail of what was happening to his case. He therefore came and met Nambiar and asked him, whether he was aware, what was happening in his office, when the same appeal was dismissed one day, allowed another day and then posted for hearing again. Nambiar told him that he was only informing what really happened in court. The client then said, ‘we have heard that almost all your civil matters are attended by two of your “wonderful” juniors, namely. P.C. Balakrishna Menon [who later became a Chief Justice] and myself [who became a Judge later.] I do not want my case to be touched by either of them’. I was a mute spectator. Nambiar flew into a rage and told the client that it was none of his business to teach him how to conduct the cases entrusted to him and asked him to leave the office.
Next day, when the appeal came up for hearing, Nambiar asked me to continue the arguments. I appeared and after hearing both sides, judgment was reserved. On the date when the judgment was to be delivered, the judge asked whether the appellant was rich? I said, ‘ No, My Lord’. The Judge said, ‘ this is an important matter, which has to be taken to the Supreme Court. If the appeal is dismissed, the appellant would not be able to approach the Supreme Court. So saying, he took one judgment from his right pocket, and signed the judgment, allowing the appeal. He then took out the other judgment from the left pocket dismissing the appeal and tore it and threw it in the waste paper basket. I believe that the respondent did not appeal to the Supreme Court. He was also poor!
This procedure seems to be backed by judgments of the highest Courts of England as would be seen from an article published several years thereafter, in 1980, by Justice Madhavan Nair, after he retired from the bench, in the journal part of the Kerala Law Times under the ‘heading ‘ About Extempore Judgments’.
One day, at about 4 P.M.when he was presiding over a Division Bench in the Chief Justice’s Court, the employees of the High Court without any prior notice, staged a lightning strike, marched through the corridor of the Chief Justice Court, shouting slogans and then squatting at the Judges’ entrance near the first court, with deep throated, deafening, slogans.
Chief Justice Nambiar did not utter one word; but stopped work and rose. It was thought by everybody that the Chief Justice had meekly surrendered to the threat and was afraid to take any action, lacking the will of an astute politician. The Chief went to his chambers, returned to the court, and resumed the sitting till the court rose at 4-30P.M as usual.
None knew, how composed he was, in spite of the volatile, hostile atmosphere all around and what the Chief Justice did for about 5 or 6 minutes when he went to his chambers; What he did in his chambers was to direct the Commissioner of Police to remove the strikers who had obstructed the course of justice and issued instructions to the Registrar to prepare a list of retired officers who could be appointed the next day. The police van came all on a sudden, took the strikers, including the large number of women strikers, to the police station. They then realised the danger of resorting to strike in the High Court and pleaded that they may be released and they were prepared to resume work the next day. They were let off and they attended office the next day without any demur. No action was taken against them for striking; but thereafter they never struck work in the High court.
On Ragging
His judgments, mostly delivered on the bench itself, in open Court, [extempore as it were,] were remarkable pieces of legal literature. I am not mentioning about all his decisions, for that would make a law digest. But I shall just extract from one judgment on ragging.
The petitioners were charged with “ragging” of different grades and varieties, ranging from abusing in filthy and obscene language or demanding the repetition of obscene language by the freshers, to beating, manhandling and other debasing forms of behaviour. Regarding the jurisdiction of the principal to punish the students for ragging he said thus: -
‘The inherent right and the quasi- parental authority of a teacher to proceed by way of disciplinary action against a pupil under his charge has been well-recognised over the years; and we should think it is ingrained in the habits of thought and philosophy of our country.’
On the question whether there was any violation of the principles of natural justice, he said,
“It is an interesting and a sad commentary on the rules of natural justice that while the free flow of its stream is poisoned and even arrested at its fountain source itself, the cry for natural justice and about its violation should continue unabated - (Whether by the very persons who raise the cry or their sympathizers, we need not decide in the present context).”
“The proverbial fable reminds us of the cry in distress of the mute and helpless creatures in the pond on being teased by the ranks of playful youngsters, that it was all fun and frolic on the one side and humiliation, torture and suffering on the other. May be, that with the rapidly changing pattern of thought and ideas, or the evolution of the times, or change in outlook these may pass as acts of socialization, to chisel the recluse freshers and to draw them forth to mix and mingle with the stream of the corporate life in the campus. We do not cavil at the managing committee or the principal of the view they took of the incidents; and our power of correction under Article 226, does not, we are afraid, extend to correcting the said view on the facts disclosed.”
As a Student
Shri V.P. Gopalan Nambiar was a brilliant student at the Law College, Madras securing a First class in 1938 and standing First in the Madras University in the F.L. examination and was the recipient of the Morehead Law Scholarship. He obtained the highest marks in Hindu Law and was awarded the Sir V. Bhashyam Ayyangar Gold Medal. He became Advocate General in 1962, a Judge of the High Court of Kerala in 1965 and the Chief Justice of Kerala in 1977. I think that he was, perhaps, the only Judge nominated suo motu by the Chief Justice of India, Shri Justice Gajendragadkar.
What Shri Nambiar achieved alone, we, his juniors together shared those honours, later. Indeed a very proud achievement for a lawyer’s office, possibly unbeaten so far.
Morehead Law Scholarship -- V.P.G.N. and Myself
Bhashyan Iyengar Gold Medal -- V.P.G.N. and P.C.B. Menon
Chief Justice -- V.P.G.N --P.C.B.Menon
And V.P.Mohankumar Ag C.J.
Judge, High Court -- V.P.G.N, P.C.B Menon,
Myself and V.P. Mohan Kumar
Advocate General -- V.P.G.N. and Myself
Government Pleader -- V.P.G.N. and Myself
I am told that Shri P.C.B. Menon wrote his answers in Hindu Law, mostly in Sanskrit quoting profusely Hindu scriptures. The Sanskrit grip got him gold medal.
Reply speech by Chief Justice on retirement
‘ I strode, in the Justice Cardozo style, to place our Court between the two extremes of Valorous impatience and pedestrian timidity’. The Bar has given me not merely co-operation but even encouragement in the execution of my plans. I have found rich potential at all levels of the readiness and eagerness of the younger section of the bar to step into the breach. I have derived immense benefit from the same. I have little doubt that all those younger members of the Bar will succeed in getting comfortable berths in the profession. The senior members of the Bar have treated me with tolerance and indulgence for which I express to them my sincere gratitude and thanks. First and foremost, let me acknowledge my deep debt of gratitude to the Bar.’
On 2.11. 96, 18 years after retirement he wrote to me thus: -
‘With old age creeping, with shelving of position and power, contacts loosen, affections fade and responses cease. That is particularly so in the present day individualistic society. I have been rather surprised about the many who never failed to respond to my letters and who now never respond. Isolation and seclusion appear to be the inevitable consequence.’
(Excerpts from my book ‘Life’s Likes and Dislikes’).
Criminal Justice in Independent India
By K.P. Radhakrishna Menon, Judge
04/09/2006
Criminal Justice in Independent India
(By Justice K.P. Radhakrishna Menon)
If I were to look over the whole world to find out the country most richly endowed with all the wealth, power and beauty that nature can bestow-in some parts a very paradise on earth - I should point to India. - F. Max Muller
Nation is passing through a period unparalleled in the history of the Republic. The Governments partake of the character of organizations of byzantine complexity. Everything is chaotic. Rule or supremacy of law is lying dormant in the law books. Consequently, lawless men like terrorists in the North, South, West, North West and North East and such other militant groups in Central India, Naxalates in Andhra Pradesh and Orissa, and fundamentalists belonging to every religion spread all over the Country, are able to maraud unmolested, “as in the reign of Stephen”. Political leaders have only contempt for Rule of Law. Many are being prosecuted for offences, classified by criminologists as white collared crime, organized crime, sex offences, drug abuse, and pre-meditated murders. Some are even convicted. Yet they are free birds as their cases are yet to be dealt with and finally disposed of by appellate forums. Due to the intricacies of century old procedural laws enacted by the British Rule, these cases will never be disposed of during the lifetime of these accused. Criminals with political backing are virtually holding the nation to ransom. Mafias are frolicking about the country. Mercenary killers are on the increase. Yet citizens are not reporting crimes to the police, because they have lost faith in the administration of criminal Justice.
Violence of all types and kinds is violently rattling the Country. Political Parties, after coming to power, are misusing administrative machinery to terrorize their opponents. ‘Might is Right’ concept, which shall not be there in a democracy, has virtually eclipsed the supremacy of law. To the mercenary killers, terrorists, the fundamentalists, the country has become a haven. Due to the prevalence of accusatorial system, followed in the administration of criminal justice, the VIP & VVIP’s and the rich figuring as accused in criminal cases, continue to enjoy that status with immunity and impunity. Self centered and highly selfish persons are adorning high places. Accused belonging to the masses, due to their impecuniousness, has to suffer the conviction, notwithstanding the intricacies of procedural law. This pathetic situation cannot be better stated than to quote a few lines from the poem “The Second Coming”, describing the world after the second world war, written by the Irish poet W.B.Yeats:
“Things fall apart, the centre cannot hold
Mere anarchy is loosed upon the world
The blood-dimmed tide is loosed
And everywhere the ceremony of the innocent is drowned
The best lack all convictions
While the worst are full of passionate intensity”.
A true picture of the legacy of mal-administration at the close of the second millennium A.D.!. This legacy is passed on to the new millennium.
The good, honest, and patriotic citizens, incapable of reacting to the above set up, are compelled to remain in the mighty world of the deviants. This apathy of the Punya Atmas in a democratic set up, as the French thinker Montesquieus said, is more dangerous then the tyranny of a prince in oligarchy.
Time has arrived to do something drastic, to deliver our democracy from the tight embrace of the criminals and restore The Rule of law.
My experience as a lawyer for more than a quarter of a century, as a Judge of the High Court and Ombudsman for the State, as a one man commission to enquire into the misdeeds of the Calicut University, emboldens me to give expression to my opinion that criminal justice delivery system shall completely be revamped. Accusatorial system which treats an accused, as innocent until found guilty by Court is a boon to the public men and the rich, accused of grave offences, even offences affecting the security of the nation; the mafias, mercenary killers and the likes of them, who are having absolute control over the advanced technological developments. This system thus helps these criminals to flourish. Since money culture stands well established, investigation to a considerable extent is either misled or misdirected. To crown this there is what is called “trial by media”. To deal with these criminals, the first thing that shall be done is to introduce the inquisitorial system under which the accused has to prove that he is innocent. This system is accepted by some of the western nations. All the antiquarian laws, the IPC, Cr. PC, Evidence Act, and the Police Act, etc. shall be revamped, taking into account the provisions of the Constitution.
The police force shall be brought under an autonomous body. When once the investigation commences, the police team conducting the investigation shall function under the Chief Judicial Magistrate of the district. This is highly essential, because as stated by Palkhivala, today the Police force is wholly demoralised due to political interference by ministers and other politicians in the discharge by the police of their professional duties. The police force shall be given the training, which would help them to realise that they are not mere functionaries but administrators empowered to serve the people. They shall remember that their solemn duty is to keep awake when citizens sleep. They shall be taught that they have no authority to ill-treat or manhandle any citizen. This is necessary to transform the nation into a welfare State. This change will help them to be above board. Unfortunately even now we are following the training system introduced by the British, whose idea was only to suppress revolts, against their administration. Third degree methods employed by the Police to collect evidence are the product of such training. The system now available to train the police therefore shall be recast.
The champions of Human Rights shall remember that those who commit crimes are persons who are not concerned with the human rights and fundamental rights of the law-abiding citizens. Yet these champions fight for the human rights of the criminals. They are unconcerned about the rights of the victims. This attitude of these champions is suggestive that persons found to have committed crimes is on a higher pedestal. They fail to understand that human rights and the rights recognised by the constitution can be enjoyed only by people who believe in human values. These champions shall also remember that, what our constitution contemplates is a welfare State, an egalitarian society and not an administration, which compels the law-abiding citizen to live in the mighty world of the deviants. In order to gear our administration to the human purposes of that national and social milieu we have to effect a complete transformation within the administration, which is to deliver criminal justice.
The above suggestions are illustrative. Whatever that be, to sustain democracy, we shall hasten a new order. This will not be achieved unless the apoliticals interested in the welfare of the commoners and development of the nation, imbibe the message compressed in the powerful upanishad words “Udihishtatha, Jagratha, Prapyavaran Nibodhatha” i.e. Arise, Awake and stop not till the goal is reached, as freely translated by Swami Vivekananda, and act before the corrupt completely defile our democratic set up. The apoliticals shall compel their representatives in The Parliament and Assembly to revamp the criminal laws, which the British enacted to introduce, “State Terrorism" with a view to suppress the Freedom Movement; and enact new laws consistent with the provisions of the Constitution. The new laws shall substitute the accusatorial system with inquisitorial system. This is highly essential to relieve Mother India from the tight embrace of the lawbreakers.
In conclusion, I quote Rabindranath Tagore:
Where the mind is without fear and the head is
held high
Where knowledge is free
Where the world has not been broken up into
fragments...................
My Father let my country awake.
The Case of Hostile Witnesses
By B.D. Harindranath, District Judge
04/09/2006
The Case of Hostile Witnesses
(By B.D. Harindranath, District Judge)
In the land of Mahatma Gandhi, the father of our nation, a base pogrom was let loose, ostensibly as a requital against the massacre of karsavaks in the Godhra train. The killing of Karsevks was indeed outrageous, but more appalling was the unleashing of the pogrom, as the very people who ought to have protected the innocent citizens were said to have been part of this carnage. At that time in Gujarat law and order went kaput. Arsonists burnt several persons to death. From the very beginning, the Gujarat Government was accused of being unfair in the investigation of riot cases. A charge sheet was filed against a number of accused, which included among others, M.L.As and other politicians in Gujarat. Plight of the Muslim victims was horrendous. Many were said to have suffered at the hands of the government machinery and local police. Finally, the cases ended up in the Fast Track Court set up for trying cases swiftly. Fast Track Court took a year to dismiss the case. There was a chorus of disapproval that the accused were given a free hand to bribe the witnesses. Zahira’s case is a classic example. Newspapers overflowed with reports of Zahira’s appearance in court premises escorted by B.J.P. M.L.A. Madhu Sreevasthava. The trial court did not bother to consider why so many victims including Zahlra turned hostile. Right to fair trial was violated. National Human Rights Commission approached the Hon’ble Supreme Court and requested the Apex Court to exercise its powers under Art. 142. All the cases were shifted to Mumbai where there was a special court to try the case. Zahira changed her stand again. She filed an affidavit before the Vodadara Collector asseverating that N.G.O. activist Teesta Setelwad pressurized her.
When the trial opened in Mumbai, the key witness Zahira Sheik turned hostile. She did not support the prosecution case. Her role in the whole was an eye opener for all concerned with the administration of justice. The Hon’ble Supreme Court found that Zahira Sheik had changed her stand at different stages. She departed from her former statements one after the other. Huge amount of money was involved in getting Zahira’s stand changed and the Supreme Court observed that amount involved was nearly five lakh rupees. The Supreme Court did not accept the explanation offered by Zahira and her family members. It was proved beyond doubt that she was won over by money power. In the aforementioned setting, the Hon’ble Supreme Court sentenced Zahira Sheik to undergo simple imprisonment for one year and to pay cost of Rs. 50,000/-. Her assets including bank deposits were ordered to be attached. Income tax authorities were directed to probe into the matter.
The incidence of witnesses turning hostile in high profile cases is nothing new. The Indian newspaper columns contain never-ending reports about crimes that go unpunished, from fraud and embezzlement to rape and murder and its major cause; the odium called perjury. Why does it happen? One major reason is our cavalier tolerance of perjury. The Best Bakery case was a horrendous case of communal murder during the Gujarat riots. Yet, the accused went scot-free because several witnesses resiled from their former versions of what had happened. In technical way of speaking, the witnesses turned hostile. In plain language, they told lies despite taking an oath to tell the truth, the whole truth and nothing but the truth. In Jessica Lai’s case, one witness after another turned hostile, except for an NRI who lived abroad and so could not be cowed. In the BMW case, the original facts changed unbelievably in the middle of the case because nobody feared prosecution for lying under oath. The U-turn of key witnesses in criminal cases throws up important questions related to the role of witnesses in criminal trials.
The term “hostile witness” has its origins in common law. Such a witness by wily means could “ruin the cause” of the party calling him to the witness box. Such actions hamper not only the interests of the litigating parties but also get in the way the court’s voyage to the shores of truth and justice. The “safeguard” as envisaged under the Common Law, consisted of contradicting witnesses with their former statements intended for impeaching their credit. There are penal provisions in various statutes prescribing punishments for lying under oath. Obviously, those lying under oath must be dealt with sternly but causes why they do so must also be tackled.
Indian witnesses are a besieged group. In Swaran Singh v. State of Punjab (2000) 5 SCC 68 Wadhwa J. while delivering the judgment said about the conditions of witnesses in the following words:
“the witnesses ...are a harassed lot. A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the Court many times and at what cost to his own-self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and he gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him. In adjourning the matter without any valid cause, a Court unwittingly becomes party to miscarriage of justice. A witness is then not treated with respect in the Court. He is pushed out from the crowded courtroom by the peon. He waits for the whole day and then he finds that the matter adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in Court, he is subjected to unchecked and prolonged examination and cross-examination and finds himself in a hapless situation. For all these reasons and others a person abhors becoming a witness. It is the administration of justice that suffers. Then appropriate diet money for a witness is a far cry. Here again the process of harassment starts and he decides not to get the diet money at all. High Courts have to be vigilant in these matters. Proper diet money must be paid immediately to the witness (not only when he is examined but for every adjourned hearing) and even sent to him and he should not be left to be harassed by the subordinate staff. If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery. Each trial should be properly monitored. Time has come that all the Courts, district Courts; subordinate Courts are linked to the High Court with a computer."
The most important aim of a criminal trial is to find out the truth. The principal objective of criminal law is to ensure that the guilty are punished. And for this purpose in prosecuting the crime the State has to obtain credible and legally sound evidence from the witnesses. To this end, witnesses are entitled to protection from intimidation, considering the crucial role played by them in the delivery of criminal justice. The victims, their family members, and the society at large have an interest to see that the guilty are punished. The right of the accused to a fair trial is a guarantee ingrained in our procedural laws. The right of the accused to get a fair trial, if misused to twist the arm of witnesses makes the trial unfair as far as the victim and the State are concerned. Court has to balance the conflicting rights of the accused to fair trial and the right of the witnesses to get protection from the miscreants who wants to thwart the course of justice. The Hon’ble Supreme Court in Zahira Habibulla Sheikh v. State of Gujarat (2006 (2) KLT 350 (SC)) observed thus:
“Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.”
“Witnesses” as observed by Justice Wadhwa are a harassed lot and they require protection. Witnesses in the words of Bentham are the eyes and ears of the court. The accounts of incidents, perceived by the witnesses through their senses, are made known in court when witnesses depose. Events are unfolded before the court through the medium of ocular testimony of witnesses. If witnesses are not permitted to say the truth in court, trials become meaningless. Wealthy and the powerful may go scot-free after committing crimes with impunity.
Unmerited acquittal is a challenge to the society and necessarily court should make certain that the witnesses are free from fear, intimidation and they are in a position to speak the truth. To this end, there should be laws for the protection to witnesses as there are inbuilt safeguards in the procedural laws to protect the right of the accused to get fair trial. Sadly, this is just about absent in our country. The need for a comprehensive witnesses protection programme has never been felt so urgent as in the recent years. Witness protection is the process in which witnesses such as those who testify in criminal trials are protected against intimidation before their testimony or criminal retaliation after the trial.
Witness protection in other countries: In the United Kingdom, vulnerable witnesses who are likely to be intimidated are protected and their identities are not made known to the accused. In R. v. Murphy (1989) it was held by the House of Lords that the identity of the witnesses should be kept secret not only from the accused, but also from the defence lawyer. The Court of Appeal in R. v. Lord Seville of Newdigate 1999 (4) All ER 360, overturned the decision of a Tribunal refusing to grant anonymity to soldier witness. It was observed that it would not be fair to the soldiers and their families, if their identities were exposed to the terrorists. The Courts in Australia, New Zealand, Canada, and South Africa on several occasions permitted the witnesses to give evidence behind closed doors to retain anonymity. Similarly, the Courts in United States held that the right to cross-examination is not absolute right guaranteed under the Constitution and the witnesses are entitled to get their identity kept unknown when there is fear of revenge.
Under the English law, threatening a witness from giving evidence is contempt of Court. An act of threat or revenge against a witness after he has given evidence in Court is punishable under the Criminal Justice and Public Order Act. S.51 of the Act protects a person who helps the police in the investigation of a crime.
Organized criminal gangs in the United States of America were able to run mayhem and were rarely held accountable for their misdeeds, as they were able to browbeat witnesses. The American mafia was able to threaten witnesses by imposing the Code of silence. It was largely due to the efforts of Senator Robert F. Kennedy that a comprehensive witnesses protection programme came into being in the United States of America. The federal program is called WITSEC (the Federal Witness Protection Program). Gerald Shur founded it in the late 1960s when he was in the Organized Crime and Racketeering Section of the United States Department of Justice. Witnesses Security Programme in the United State of America was authorised by the Organized Crime Control Act of 1970. The Comprehensive Crime Control Act of 1984 later amended it. Since its inception, more than 7500 witnesses and over 9500 family members entered the programme. Based on the recommendations of the U.S. Attorney General, in major criminal cases throughout the United States of America, witnesses were offered protection. The procedure involves the removal of witnesses and his and her family members from the danger area within the proximity of criminals. The U.S. Marshall’s Service relocates them in a farther place in a secure area. They get new identities, authentic documentation, housing, medical care, job training and new employment.
Under the National Witness Protection Program in Australia, the Commissioner of the Australian Federal Police provides protection and other assistance for witnesses (Section 4). Before the witness is included in the Program, he must disclose all relevant information about his obligations, details of his criminal history and details of his financial liabilities. As per Australian Witness Protection Act, 1994 the Commissioner is the sole authority empowered to decide whether to include a witness in the Program or not.
The Witness Protection Act, 1998 of South Africa provides for the establishment of an office called the Office for Witness Protection within the Department of Justice. The Director of this, office exercises control over Witness Protection Officers and Security Officers. Witnesses who are threatened can apply to the investigating officer or the Public Prosecutor for getting protection under this Act. A Witness Protection Officer scrutinizes the application and submits a report to the Director. Director has to consider the report in deciding whether the witnesses are entitled to protection or not. In almost all the European countries, there are programmes to protect threatened witnesses. Similarly, there are witness protection programmes in Singapore, Philippines etc.
Our I ndian Experience
India sadly does not have a comprehensive witness protection programme. In 1958, the 14 report of the Law Commission made recommendation for providing adequate facilities to witnesses attending in cases in the court. Security of witnesses did not come up for consideration before the Commission. The fourth report of the National Police Commission in 1980 acknowledged the troubles undergone by witnesses while attending courts. It was in 1996 that the 154th report of the Law Commission took serious note of the difficulties of the witnesses. It was observed thus:
“Necessary confidence has to be created in the minds of the witnesses that they would be protected from the wrath of the accused in any eventuality”.
In dealing with review of Rape Laws, 172nd report of the Law Commission suggested recording of the testimony of a minor subjected to sexual abuse at the earliest opportunity in the presence of a Judge and a child support person. Commission urged that the courts should permit the use of video-taped interview of the child or allow the child to testify by a closed circuit television and that the cross examination of the minor should be carried out by the Judge based on written questions submitted by the defence. The Commission also recommended insertion of a proviso to S.273 Cr.P.C to the effect that it should be open to the prosecution to request the court to provide a screen so that the child victim does not see the accused during the trial. Amendment of S. 273 of the Cr.P.C. was also suggested. In its 178th Report (2001), the Law Commission recommended the insertion of S.164A in the Cr.PC for recording of the statement of material witnesses in the presence of Magistrates for offences punishable with imprisonment of 10 years and more. Based on this recommendation, the Criminal Law (Amendment) Bill, 2003 was introduced in the Rajya Sabha. Under the Terrorists and Disrupted Activities and the Prevention of Terrorists Act, 2002, the prosecution can request court to keep the address and identity of the witnesses’ secret. The court can even avoid mentioning of the name and address of the witnesses in its order or judgment. Though these provisions were incorporated primarily to prevent terrorist activities, it nevertheless served as a protection to witnesses.
Protecting Witnesses during trial:-- As early as in 1952, The Hon’ble Supreme Court upheld the provisions in Bombay Police Act, which denied permission to detinue to cross-examine the witnesses (Gurubachan Singh v. State of Bombay, AIR 1952 SC 221). In Menaka Gandhi v. Rani Jethmalani ((1979) 4 SCC 147), the Hon’ble Supreme Court observed that there must be affable atmosphere for the conduct of fair trial. This necessarily includes protection of witnesses. In Kartar Singh v. State of Punjab, (1994) 3 SCC 569, the Hon’ble Supreme Court upheld the validity of S.16(2) and (3) of the Terrorists and Disrupted Activities Preventions Act, 1987 which gave discretion to keep identity and address of the witnesses secret. It was also held that the right of the accused to cross-examine the prosecution witnesses was not absolute, but subject to exceptions. In Peoples Union of Civil Liberties v. Union of India, (2003 (10) Scale 967 = 2003 (1) KLT (SC)(SN) 128, Hon’ble Supreme Court upheld similar provisions contained in S. 30 of the Prevention of Terrorism Act of 2002.
In State of Punjab v. Gurmit Singh (AIR 1996 SC 1405), the Hon’ble Supreme Court observed thus:
“Wherever possible it may also be worth considering whether it would not be more desirable that the cases of sexual assaults on the females are tried by lady Judges, wherever available, so that the prosecutrix can make her statement with greater ease and assist the Courts to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities while appreciating evidence in such cases. The Court should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime. The anonymity of the victim of the crime must be maintained as far as possible throughout.” (Emphasis supplied)
The Hon’ble Supreme Court also suggested that S. 273 of the Cr.P.C. should be amended suitably.
Witness protection is fundamental for the successful prosecution of offenders. Due to the violent and horrific nature of the crime, it is not surprising that victims rarely want to testify against offenders. Offenders often blackmail victims into staying silent. They may terrorize the victim’s family. Protection not only of the witnesses but also of their immediate family is a prerequisite for any modern legal system to endure. Besides witness protection programmes, casual treatment of perjury should end. Judgment in Zahira Sheik’s case has opened a new chapter in our criminal jurisprudence. Words of warning to dithering witnesses to an extent would check the problem of hostile witnesses. Courts necessarily have to be strict; there must be laws to punish witnesses who after taking the oath to tell the truth, the whole truth and nothing but the truth lie without batting their eyelids. A comprehensive witness protection programme is an absolute necessity and for that there has to be a new legislation. We can look forward to our lawmaker’s and hope that they act swiftly taking note of the gravity of the state of affairs.
BIBLIOGRAPHY
I . Law Commission Report No. 154 on the Code of Criminal Procedure Code 1973, Vol.I, 1996.
2. Law Commission Report No. 178 on the Recommendations for amending various enactments both Civil and Criminal. December 2001.
3. United States Federal Witness Protection Programme from wikipedia the free Encyclopaedia.
4. Law Commission of India’s Consultation paper on witness protection.