Dissenting Note on Gopalakrishnan @ Dileep v. State of Kerala,
Reported in 2019 (4) KLT 853 (SC)

(By Sajeer H., Section Officer, Law Department,Government Secretariat,                                Thiruvananthapuram)

The crux of the case is that the appellant is a well known and popular cine artist and the de facto complainant (victim) is also on the same field in Malayalam film industry. It is alleged that the appellant maintained enmity towards the victim, believing that she is to be responsible for the breakdown of his wedlock. To retaliate, he allegedly conspired with the first accused to abduct the victim, for the purpose of sexuallyabusing her and to record the acts of sexual abuse and thereby black mail her by using the video graphed materials. In consequence of the above conspiracy, the first accused allegedly solicited the assistance of other accused. On 17.2.2017, while the victim was proceeding in a car along through the National Highway, she was intercepted by the accused and they abducted her to Ernakulum and on the way she was sexually abused inside the vehicle and the acts of sexual violence involving the first accused and the victim were video graphed by the first accused on his mobile phone. Painfully, the victim was abandoned thereafter and the accused were hidden in shadows. The data in the mobile phone was allegedly transferred by the first accused to a memory card. In the meanwhile, the incident was reported by the victim to the Nedumbassery police on the same day and they registered a Crime and commenced their investigation. On getting information about the registration of the crime, the first accused entrusted the memory card to a lawyer, who later produced it before the Judicial Magistrate. The appellant was arrested in the course of investigation, on a specific allegation that he had masterminded the entire crime and had hatched the criminal conspiracy with A1, who accomplished it with the aid of other accused. Investigation claimed to have unearthed materials to link appellant with the first accused. The offences were under Sections 120A, 120B, 342, 354, 354B, 366, 376D, 506(i), 201, 212 and 34 I.P.C. and Sections 66E and Section 67A of the I.T. Act. However, the mobile phone, which was used for recording the sexual abuse, could not be recovered in the course of investigation.

Pursuant to the filing of the final report, cognizance was taken and committal proceedings commenced by the Judicial First Class Magistrate. Pursuant to the summons, appellant and other accused appeared and they were furnished with the records relied on by the prosecution. The appellant raised an objection that, the memory card relied on by the prosecution was a crucial document, but a copy of it was not furnished to him. He accordingly filed a petition for a direction to the prosecution to hand over him a cloned copy of the video footage of the memory card and the transcript of human voice. In the meanwhile, the appellant was permitted to watch the video footage in the presence of his counsel and Magistrate. But he filed another petition, wherein he was stated that he needed a thorough examination of the contents of the memory card. He sought a direction to the prosecution to furnish a cloned copy of the contents of memory card containing the video and audio contents in the same format, as obtained in the memory card and the transcript of human voices, both male and female recorded in it. But the same was rejected. Against which he preferred an appeal before the Honourable Supreme Court.

By partly allowing the appeal Honourable Supreme Court held that, 

Resultantly, instead of allowing the prayer sought by the appellant in toto, it may be desirable to mould the relief by permitting the appellant to seek second opinion from an independent agency such as the Central Forensic Science Laboratory (CFSL), on all matters which the appellant may be advised, in that, the appellant can formulate queries with the help of an expert of his choice, for being posed to the stated agency. That shall be confidential and not allowed to be accessed by any other agency or person not associated with the CFSL, after analyzing the cloned copy of the subject memory card/Pen drive, shall be kept confidential and shall not be allowed to be accessed by any other agencyor person except the concerned accused or his authorized representative until the conclusion of the trial.

We are inclined to say so because the State FSL has already submitted its forensic report in relation to the same memory card at the instance of the investigating agency.

Needless to mention that, the appellant before us or the other accused are not claiming any expertise, much less capability of understanding forensic analysis of the cloned copy of the contents of the memory card/pen drive. They may have to eventually depend on some expert agency. In our opinion, the accused who are interested in reassuring themselves about the genuineness and credibility of the contents of the memory card in question or that of the pen drive produced before the trial court by the prosecution on which the prosecution would rely during trail ,are free to take opinion of an independent expert agency, such as the CFSL on such matters as they may be advised, which information can be used by them to confront the prosecution witnesses including the forensic report of the State FSL relied upon by the prosecution forming part of the police report.

It is evidently clear that the appellant purposefully and intentionally used the name and identity of the victim throughout his appeal memorandum. The same was timely opposed by the State and the counsel appearing for the intervenor (the victim). The appellant counter blasted the same by saying that F.I.R., 161 Statements, 164 Statements, mahazer would also include the name of the victim and hence he had a qualified right to mention the name and identity of the victim in his appeal memorandum. By rejecting the argument of the respondents, the Honourable Court held that “the explanation offered by the appellant is plausible inasmuch as the prosecution itself had done so by naming the victim in the First Information Report/Crime Case, the statement of the victim under Section 161, as well as under Section 164 of the 1973 Code and the charge sheet/police report filed before the Magistrate”.

But in reality what Section 228A(1) of the Indian Penal Code says is that,

Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under Section 376, Section 376A, Section 376B,
Section 376C or Section 376D is alleged or found to have been committed shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

(2) Nothing in sub-section (1) extends to any printing or publi­cation of the name or any matter which may make known the identity of the victim if such printing or publication is, (a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation,.....

(3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub-section (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.                                 (underline supplied)

On going through the above section, it is ample clear that the mentioning of name and identity of the victim clearly come under the penal ambit of Section 228A(3) of IPC. Mentioning the name and Identity on F.I.R., 161 Statements and 164 statements by the prosecution are not offensive but are statutory for the purpose of proving the case of prosecution. But that may not be a ground for the accused, to disclose the name or identity of the victim in a proceeding before a court of law. Therefore the mentioning of name and identity of the victim in the appeal memorandum was intentional and purposeful and benefit ought not to have been given to the appellant, which it may lead detrimental to the interest of the victim.

It is pertinent to note that, the appellant alone approached the Honourable Apex Court for allowing and permitting him to obtain cloned copy of video, which was alleged to be taken by the accused. By allowing the same the benefit was also extended by the court to all other accused also. But the trial court by denying the application, says that “in order to uphold the esteem, decency, chastity and reputation of the victim and also in the public interest the prayer could not be allowed”. If it is to be presumed that the intention of the appellant may be fair and if he approached with clean hands, then, why the other accused who were allegedly and actively participated in the incident were permitted to watch the video which they had taken by, with a sadist mind.

Some of the relevant questions in this aspect are, whether the contents of memory card/pen drive produced with the police report can be treated as document?, covered under Section 3 of the Indian Evidence Act and defined under Section 29 of the Indian Penal Code and if so, whether it is permissible to the accused to claim copy of it?, whether the cloned copy of the memory card can be denied to the accused on the ground of infringement of privacy, dignity, decency, honour and chastity of the victim?.

The accused, other than the appellant herein, actually participated in the physical and sexual assault over the victim and thereby video graphed the entire thing. The accused were known criminals and theirs acts were not spontaneous but a preplanned one. All incidents were done for the appellant, who was the alleged mastermind of all the incidents. The material used for the commission of the crime was the mobile phone and after the incident the videos taken by the accused on the mobile phone were copied by the accused into a memory card. They alleged to be entrusted it to a legal practitioner, who in turn produced the same before the jurisdictional magistrate. Though the mobile phone wasn’t yet recovered, the same can be treated as a material object and the contents therein cannot be treated as documents. Because it was the end result of a crime as held by the Honourable High Court.

In addition to the grant of supply of cloned copy of image to the accused, the court had given certain directions to the magistrate. It allows the accused to obtain a second expert opinion from an independent agency, say, Central Forensic Science Laboratory .The court also directed the magistrate to provide an opportunity to the accused to obtain a second expert report from an independent agency, say, Central Forensic Science Laboratory regarding the authenticity of the videos and its contents. It also directed the Magistrate to provide an opportunity to the accused to view and inspect the video along with his counsel and an IT Professional of his choice. It is the IT Professional who will make queries about the authenticity and the contents of the video before the Central Forensic Science Laboratory and they are bound to answer the same. It can be said that these directions are not in accordance with the fair trial, but an overtake on the fundamental right guaranteed under Article 21 of the Constitution of India.

It is also directed that the inspection of the report of the CFSL is to be, only open to the accused and not to any other person including the prosecution also. Now the question is after these decision, which relevant thing will remain for the prosecution to reach the accused. The only link in between the prosecution and the defense is the report of the State Forensic Science Lab, which covered all area of the video and copied the same in to pen drive by using the most modern equipments having like that of the Central Forensic Science Laboratory But the same remained inoperative as a new report was called for. Hence the report of the State Forensic Science Laboratory has only value of a skeleton in the graveyard.

It is relevant to move to Chapter eighteen of the Criminal Procedure Code. Wherein Section 226 reads that when the accused appears or brought before the court in pursuance of a commitment of the case the prosecutor shall open the case and describe the charge brought  against the accused, Section 227 reads that if upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf  the judge considers that   not sufficient ground   for proceeding against the accused then he shall discharge the accused. If it presume that the accused has commissioned the offence it shall frame the charge against the accused. Section 231 of the Code reads that on the date so fixed the Judge shall proceed to take all evidence as may be produced by the prosecution. If it finds no ground for proceeding against the accused it shall acquit the accused. Or otherwise it shall call upon the defense to adduce the evidence. On going through these sections and Chapter XVIII of the Code in entirety, it can be seen that the right of the defense to adduce evidence comes only after adducing evidence of the prosecution and not before the prosecution. The decision of the Honourable Court had laid down a procedure that without awaiting the stage of pre trial steps, defense side can take up and adduce evidence by deviating from the statutory mandate of the Code. Definitely it may a precedent in every case having connected or incidental subject matter.

The case in hand may also be a precedent in all cases having the charge of sexual violence and cyber crimes having the background of or materials tendered on memory card or pen drive, the accused may claim for the copy of the same, before taking evidence of the prosecution, on the guise of right to have a free trail.

Another matter is that, the sadist accused in this case committed the brutal crime against a poor, innocent, helpless lady on 17.02.2017 at night and she was abandoned on the way after midnight. The accused allegedly copied the video from his mobile to a memory card and allegedly entrusted the same to their counsel. The counsel submitted the same before the Magistrate on the same day. On going through these facts in detail, one can see that there will be every chance for tampering, editing and alteration of the video before it reached the court.

Neither the appellant nor any accused had a case that the details in the memory card were forged one and they had not done the act as pictures in the memory card. Without considering these aspects the Honourable Court had given benefit to the accused for watching their videos again and again.

As far as the rape case is concerned the statement of the victim is sufficient for presuming that the rape was committed against her. In State of Himachal Pradesh v. Raghubir Singh (1993 (1) KLT OnLine 1029 (SC) = (1993) 2 SCC 622) Honourable Supreme Court held that evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which mitigate her veracity. On going through catena of decisions of the Honourable Supreme Court it can be seen that corroboration of the prosecutrix is not necessary on the cases of rape and its end in acquittal may be on account of mishandling of the crime by the police and the invocation of the theory of “consent” by the Courts who tried the offence.

Section 114-A of the Indian Evidence Act states that, in a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause(g) or sub-­section (2) of Section 376 IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in heir evidence before the Court that she did not consent, the Court shall presume that she did not consent. This Section enables a court to raise a presumption that the woman who was the victim of rape had not consented and that the offence was committed against her will. On a journey through all these decisions by comparing with the case in hand the memory card details alone is not a sufficient ground for escaping sanction from the accused from a court of law.

Rape is an aggression on the mind, body, reputation, morality, decency, dignity, honour, privacy and chastity of poor helpless women. A large number of women still fail to report rapes to the police, because, they fear of embarrassing and insensitive treatment by the doctors, the law enforcement personnel and the cross-examining defense counsels. In Bodhisattwa Gautam v. Subhra Chakraborty (1996 (1) KLT OnLine 912 (SC) = (1996) 1 SCC 490) our Apex Court held that, Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by Nature. The justice dispensing, in these cases, should be considered the emotional and physical plight of the victims also. Therefore the decision in P.Gopalakrishnan@ Dileep v. State of Kerala is not a good law.

“The Tales of Three Cities”

(By.K.V.Narayana Menon, Advocate, Calicut)

It was midsummer in Madras. Dreaming when dawn’s loose jacket orange for the day was in the sky I woke up when “The Hindu” was dropped in my room. There was none to wake me up. Glancing through the columns of the “The Hindu” I learnt that the Madras Legislative Assembly was in session that day. It was my dream to visit a Legislative Assembly, the law making house. The legislature often does serious business in the fresh hours of the day and I was there by 8 a.m., close to Mount Road, the unmistakable land mark of Madras, as it then was.

As I entered the legislative assembly with mounting excitement I saw a young member in serene white, full sleeved shirt with beautiful cufflinks, addressing the speaker in brief British English. His bright eyes were visible through the black rimmed glasses. He had a light fade crop on the sides and was dressed impeccably. All the members present and visitors in the assembly were closely listening to the talk of the member. The speaker was not restraining him though the member was stretching beyond the assigned time.

The member I guessed, was highlighting the grievances and demands of the Malabar District, the jewel of the west coast of the Madras province. In terms of economic development, the Malabar District then was several years behind the rest of the province. The Honourable Chief Minister was seen standing up, repeatedly assuring the house that he will certainly look into the matter. The submission of the member was so effective and authoritative. It was not argumentative. He was literally carrying the day. Like several others, I had also enjoyed his “British Breakfast”.

Tremendous applause followed when the member completed and sat down. When he sat down I saw even other members in the assembly talking about him. His oratory had left an indelible impact on the august assembly. The applause lasted for a long time. The ovation was actually an approval of the Madras Legislative Assembly of the remarkable performance of the member. It was not only the beauty of the language but also the quality of the parliamentary practice, probably recommended by Erskine May that attracted the ovation. The member may have mastered May’s Parliamentary Practice (Originally published in 1844) before entering the assembly hall. And that was, V.R.Krishna Iyer, from the Malabar District of the Madras Province.

The Government Law College Emakulam must have witnessed many debates, discussions and discourses in its splendid history. But the debate on whether the Central Intervention under Article 356 of the Constitution in Kerala was justifiable or not, is unparalleled and shines almost alone a star.

The stage was set for a verbal duel between Panampilly Govinda Menon and V.R.Krishna Iyer. Never, never in the history of the Law College did so many students attend a debate with so-much patience for so long a time. Two of the most renowned speakers of Kerala on either side, a highly inflammable subject which required expertise in constitutional jurisprudence, coupled with current politics and above all at a venue close to the Queen of the Arabian sea-what else do you need?.

Long before the speakers came, the first year law students with boyish delight had fully occupied the front rows of the B.L. lecture hall. Once a Legislative Assembly of the Cochin State it was a comfortable hall with fine seating arrangements.

The patience exhibited by the students was remarkable. That quality of patience and discipline I later observed only among the visitors with children, from all over the world, standing in line for hours, to watch the ‘Wizarding world of Harry Potter’, in Universal’s Islands of Adventure at Orlando, in the United States of America.

Our beloved Principal was very happy, since the boys were behaving well. P.Govinda Menon started the debate, supporting of course, the dismissal of the elected government. He appeared relaxed like the captain of a cricket team, who had just won the toss. He was firm on his grounds and absolutely confident of what he was advocating.

V.R.Krishna Iyer, on the other hand, was vehement at the outset opposing the validity and propriety of the action taken. The speeches for about two hours kept the audience spell bound. Both speakers showed their phenomenal knowledge in constitutional law. They argued with meticulous thoroughness of facts as well. Occasional blending, of constitutional law with a bit of politics made the debate lively, sparkling and a truly unforgettable event. It was akin to diamond cutting diamond.

V.R.Krishna Iyer was one of the most sought-after speakers of the Calicut Bar Association, because he was a legal luminary. The centenary celebration committee of the Calicut Bar Association honoured Krishna Iyer by offering him the first law lecture of the law lecture series initiated by the committee. He gladly accepted it and delivered it in 1986. It was a master-piece, no doubt.

The Bhopal Gas Tragedy was the topic he had dealt with once when addressing the Bar Association. In his brilliant talk, he uncovered the intensity of the tragedy in his inimitable style. His account of the tragedy was as surprising as it was shocking. The tragedy had wounded his feelings so deeply. It is impossible to recapture his words, phrases and expressions when dealing with any topic effectively. Age had slightly withered him when he addressed the Calicut Bar Association in 2012. But his memory had not faded and it was sharp even at 94 and it was his razor sharp mind and crystal clear memory of a youngster that made me think of him reverentially.

The inaugural lecture of the V.K.Krishna Menon Lectures was delivered by V.R.Krishna Iyer way back in 1978 at the Senate Hall, Trivandrum. V.K.Krishna Menon was yet another powerful speaker from the legal fraternity. There are some similarities one could notice in Padmavibhushan V.K.Krishna Menon former Defence Minister of India and Padmavibhushan V.R.Krishna Iyer not only in names initials, career and outlook but also in the style of oratory.

The outright frankness in both speakers is unique. This city can be proud of the breakthroughs of the two precious speakers in the art of oratory. My humble tribute to all the illustrious lawyers.

The three cities viz Chennai, Cochin and Calicut have the same story to tell that, V.R.Krishna Iyer was one of their favourite speakers. Undoubtedly he was also the favourite of the legislature, the executive and the judiciary. But, Padmavibhushan Vaidyanathapuram Rama Iyer, Krishna Iyer, was my absolute favourite as a powerful speaker.

No Brick Bats Even If No Boquets

(By K.Ramakumar, Sr.Advocate, High Court of Kerala)

Acceptance of judgeship by successful and eminent legal practitioners was considered a call of duty in the past. Many leading practitioners had forsaken their lucrative practice for service in the judiciary, which then meant service to the public.  At that time there was no canvassing and the choice invariably fell only on the meritorious.

Times have changed.  A system not even contemplated under the Constitution of India has emerged, which however, has received flak from all concerned. Sri Justice Chelameswar had made the following observations about the system calling itself Collegium.

“The process by which a judge is appointed to a superior court is one of the best kept secrets in the country. The very secrecy of the process leads to an inadequate input to information as to the abilities and suitability of a possible candidate for appointment as a judge.   A chance remark, a rumour or even third-hand information may be sufficient to damn a judge’s prospects.  Contrariwise a personal friendship or unspoken obligation may colour a recommendation. Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system.  Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.”

Sri Justice Kurian Joseph adds:

“The trust deficit has affected the credibility of the Collegium system, as sometimes observed by the civic society.  Quite often, very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective.  Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised, selection of patronised or favoured persons were made in blatant violation of the guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the collegium seriously affecting the self-respect and dignity, if not, independence of Judges, the court, particularly the Supreme Court, often being styled as the Court of the collegium, the looking forward syndrome affecting impartial assessment, etc., have been some of the other allegations in the air for quite some time. These allegations certainly call for a deep introspection as to whether the institutional trusteeship has kept up the expectations of the framers of the Constitution… To me, it is a curable situation yet.”

Recently Sri Justice Chandrachud in Central Public Information Officer v. Subash Chandra Agarwalobserved as follows:

“The Collegium system has come under immense criticism for its lack of transparency.  As early as in S.P.Gupta, this Court acknowledged that disclosure would lead to bona fide consideration and deliberation and proper application of mind on the part of the judges.”

On transparency in judicial appointment Sri Justice Chandrachud quoted Sri Lorne Sossin in the following manner:-

“What matters most in a democracy, I would suggest, is not the precise criteria for merit but the transparency of the criteria, and the authenticity of the reasons for choosing one individual over another. Merit, in other words, is as much about process as substance.”

Accountability therefore in judicial appointments has been rightly emphasized as the need of the hour.  What is now happening? Members of a profession, which is the only one finding a place of honour in the Constitution of India, opt for the harsh life of a Judge. They however, are not only not recognised with honour but rebuffed with dishonour.   The new method of working of the Collegium has led to humiliating some of the lawyers recommended for appointment by declaring them unfit and ineligible after making them wait for a long period.  Even the integrity of some of them, has been questioned by superior bodies situate in New Delhi. Frustrated some of them have withdrawn their consent.  For instance Sri Shriram Panchu, an eminent lawyer from Madras High Court was understood to be one among them.  He was one of the persons chosen by the Supreme Court as a mediator in the Ayodhya Case.  In similar many prominent Lawyers in Bombay, Patna and other High Courts have withdrawn their consent.  A lady Lawyer of eminence has also done so.  The fact that it has not happened in Kerala or not likely to happen due to institutional deference, is not a reason to demoralise or discomfit dignified and decent practitioners, whose integrity is unquestionable.

Plum positions of power and prestige cannot be permitted to be cornered by the Corporates and the clout commanding upper crest of the society alone.  They also belong to the hitherto un-equals to enable them to limp back to equality. Cry for social justice consistent with the magnificent preamble of our Constitution cannot be criticised as communal.

What do all these indicate?  The system needs thorough revamping.  It should not result in dispiriting legal practitioners who have opted for judgeship, which is a question of personal preference.  Even if they are not inducted, at least the indignity meted out to them along with the disgusting uncertainty may be avoided.

Let us remind ourselves of the wise words of Dr.B.R. Ambedkar:-

“however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot.”

Lambasting Judges by Name – The Supreme Slur and Its Aftermath

(By Rajit, Advocate,High Court of Kerala)

If arguing a matter in the manner and style of the advocate, warrants proceedings under the Contempt of Courts Act and also a conviction without following due process, then I am sure none of the lawyers can escape the tag of being in contempt. This strikes at the very root of advocacy. Stretching it a bit further, an advocate needs just to draft and file the case and remaining is for the Court to read and decide. I am afraid we are going way beyond the fundamentals. This needs to be checked.

There is a very disturbing trend evident more visibly in the recent times, where dispensation of justice is carried out with a sense of fear. The fear of being named in the Supreme Court. Every order passed is with fear and every order which ought to be passed is refused to be passed for the fear of having your name called out and published in the media.

Is this how the highest Court in this State must function?  Before trying to understand the effect of this syndrome, it is necessary to refer to certain constitutional provisions:-

Article 121 :- No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided .

Article 124. (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

………..

…………….

(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under
clause (4).

 (6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

The oath in the Third Schedule reads as follows:-

VIIIForm of oath or affirmation to be made by the Judges of a High Court:—“I, A.B., having been appointed Chief Justice (or a Judge) of the High Court at (or of) .........., do swear in the name of God that I will bear true faith and allegiance to the Constitution of India as by law established,²[that I will uphold the sovereignty and integrity of India,] that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my officewithout fear or favour,affection or ill-will and that I will uphold the Constitution and the laws.”                   (emphasis supplied)

Has not the fear syndrome breached the oath undertaken by the Judges of our High Court. It is a common refrain from many of the Judges that, Do you want our names called out by the Supreme Court? That is why this Frankenstein Monster has to be overcome and overcome with might at the earliest. Silence or allowing this to grow will only create a situation where the common man will lose faith in the institution of the High Court and then be left with no other option but to move the Supreme Court in all matters.

The orders of the Supreme Court are not beyond interpretation. It is only by such process, the legal system sustains a healthy growth. The utterances of the Supreme Court, in the heat of a moment, and very unfortunately reported and highlighted by the media must be discarded with the disdain it deserves.

The Constitutional provisions referred to above provide sufficient protection to the Judges of the High Court. Then why the fear? I can understand the fear of moving up the ladder or being denied the legitimate right of ascendancy. But when the right of ascendancy only affects a few, why must there be this general fear, by all? Justice Madan B.Lokur, in a recent article, after his retirement, has called upon the Judges to show some backbone and spine, particularly in dealing with the issue of personal liberty.

The utterances by individuals, who are occupying the exalted position for a temporary period, does not and should not reflect on the institution. A courteous Judge will always command respect and affection of the lawyers, long after his retirement, which is inevitable. A Judge has a retirement age and a lawyer, well he will be there for a considerably long time. A bold and fearless Judge called Hans Raj Khanna is still remembered, whereas the name of the Chief Justice, who superseded him, has to be memorized and is unfortunately known only for having superseded Justice H.R.Khanna. There is a choice to be made and I rest my case.

Not A Catch-All Jurisdiction

(By K.Ramakumar, Sr. Advocate, High Court of Kerala)

“If I was asked to name any particular Article in the Constitution as most important . . . . . . .  an Article without which the Constitution would be nullity – I could not refer, to any other Article except this one.  It is the very soul of the Constitution and the very heart of it” – Dr. Ambedkar.

Article 32 of the Constitution is itself a fundamental right granting to all citizens the right to move the Supreme Court for the enforcement of the rights conferred by Part III of the Constitution of India.  The Article has been interpreted by the Apex Court clearly laying down that only violation of fundamental rights can be enforced under Article 32.  Issues not involving fundamental right, the Supreme Court said “cannot be determined by it”. (See Indian Express Newspapers v. Union of India (1985 KLT OnLine 1205 (SC) = (1986) 1 SCC 633).

However what is happening now?  For every grievance whether political, personal or both the Supreme Court is directly approached contrary to its own pronouncement earlier that unless initially the High Courts are moved the Supreme Court cannot be burdened with petitions under Article 32.  This also because the power of the High Courts under Article 226 is wider than that of the Supreme Court under Article 32. This is what the Supreme Court said in Kumar v. Municipal Corporation of Delhi (1988 (1) KLT 124 (SC) = (1987) 4 SCC 609.

“The scope of the powers of the High Courts under Article 226 of the Constitution is wider than the scope of the powers of this Court under Article 32 of the Constitution.  The relief prayed for in the petition is one which may be granted by the High Court and any of the parties who is dissatisfied with the judgment of the High Court can approach this Court by way of an appeal. The fact that some case involving the very same point of law is pending in this Court is no ground to entertain a petition directly by-passing the High Court.  If the parties get relief at the High Court, they need not come here and to that extent the burden on this court is reduced.”

In fact the Supreme Court declared the contours of its own jurisdiction in Kanubhai Brahmbhatt v. State of Gujarat (1987 (1) KLT OnLine 1020 (SC) =AIR 1987 SC 1159) cautioning
the entire country in the following words.

“If this Court takes upon itself to do everything which even the High Courts can do, this Court will not be able to do what this Court alone can do under Article 136 of the Constitution, and other provisions conferring exclusive jurisdiction of this Court.  There is no reason to assume that the concerned High Court will not do justice.  Or that this Court alone can do justice. If this Court entertains Writ Petition at the instance of parties who approach this Court directly instead of approaching the concerned High Court in the first instance, tens of thousands of Writ Petitions would in course of time be instituted in this Court directly.  The inevitable result will be that the arrears pertaining to matters in respect of which this Court exercises exclusive jurisdiction under the Constitution will assume more alarming proportions. As it is, more than ten years old Civil Appeals and Criminal Appeals are sobbing for attention.  It will occasion great misery and immense hardship to tens of thousands of litigants if the seriousness of this aspect is not sufficiently realized. And this is no imaginary phobia.  A dismissed government servant has to wait for nearly ten years forredress in this Court.  Kashinath Dikshita v. Union of India (1986) 3 SCC 229: (AIR 1986 SC 2118).
A litigant whose appeal has been dismissed by wrongly refusing to condone delay has to wait for 14 years before his wrong is righted by this Court.Shankarrao v. Chandrasenkunwar, (Civil Appeal No. 1335(N) of 1973 decided on January 29, 1987. The time for imposing self-discipline has already come, even if it involves shedding of some amount of institutional ego or raising of some eyebrows.  Again, it is as important to do justice at this level as to inspire confidence in the litigants that justice will be meted out to them at the High Court level and other levels. Faith must be inspired in the hierarchy of Courts and the institution as a whole.  Not only in this Court alone. And this objective can be achieved only by this Court showing trust in the High Court by directing the litigants to approach the High Court in the first instances. Besides, as a matter of fact, if matters like the present one are instituted  in the High Court, there is likelihood of the same being disposed of much more quickly, and equally effectively, on account of the decentralisation of the process of administering justice.”

These principles hold good even now and to my humble knowledge have not been departed from in any subsequent decisions.  Yet the Supreme Court is approached not only by influential political parties but affluent businessmen as Sri Ratan Tata did in the Neera Radia Tape case who obtained a stay of disclosure of its contents by purportedly moving under Article 32 of the Constitution.  Which one of his fundamental rights is infringed by disclosure which should have shook the entire corporate world if the contents are true? The business tycoon could have easily moved one of the finest High Courts in India within walking distance of his cosy Chairman’s Cabin in the Bombay house.  By resort to Article 32 the right to information, which is now considered valuable and great to the people of India was effectively shut out by a very prominent businessman, unfortunately with the assistance of the highest court of the country.   So are the instances of moving immediately the Supreme Court in relation to proving majority in Legislative Assemblies, etc, none of which to the best of my limited legal knowledge involves any violation of fundamental rights. The right to vote, the right to stand for elections, the right to get elected are only statutory rights as declared explicitly by the Supreme Court in number of cases.  No elected member can be heard to say that the assembly shall meet at a particular date or the Speaker shall fix a date for trust vote in a particular manner that secret ballot should be evolved etc, particularly by moving the Supreme Court under Article 32 of the Constitution. Article 32 cannot be invoked to make Articles 105 and 194 dead letters. Still surprisingly none of the parties including the answering respondents, do not appear to have raised seriously any preliminary objection regarding the maintainability of such petitions. It was for the first time that in the Maharashtra case objection was raised that a petition under Article 32 is not maintainable.

Direct approach by litigants who command clout in the corridors of power to the Supreme Court will definitely send a wrong message. What is not available to a common citizen cannot be a bonanza to rich and affluent people who are put up in Five Star Resorts, presumably at the huge expense of big corporates who have stakes in getting an administration of their choice.  This is indeed a blow to the Indian democracy which in spite of debilities suffered on account of the assault by unscrupulous politicians is deep rooted and embedded in our system.

Wily politicians shall not be permitted to misuse the machinery of Courts for their own selfish interests.  No open sesame to Article 32.Please go to the High Court first and then on to the Apex Court.